CONFIDENTIAL
CITY DRAFT 10-9-2025
CITY OF SANTA CLARITA – ASPIRE
FIBER-TO-THE-PREMISES (FTTP) PROJECT AGREEMENT
This Fiber-to-the-Premises (FTTP) Project Agreement (“Agreement”) is entered into this _______ day of ______________, 2025 (the “Effective Date”) by and between the CITY OF SANTA CLARITA , a California municipal corporation (“City”) and ASPIRE BROADBAND HOLDINGS INC. a Delaware Corporation (“Aspire”). For the purposes of this Agreement, City and Aspire may be referred to collectively as the “Parties” or individually as a “Party.”
RECITALS
WHEREAS, Aspire is an internet service provider that desires to install a fiber-to- the-premises (“FTTP”) network within the City’s public rights-of-way to provide to City residents and businesses high speed internet access and other data services that are not currently classified as telecommunications services; Aspire is not a telephone corporation or video services provider and does not currently hold any state fra nchise or state authorization to use public rights -of-way in California for the provision of any communications services; and
WHEREAS, the City has the authority to manage public property through its police power (Cal. Const. art. XI, § 9) and other Constitutional and statutory powers granted to municipalities, and to regulate encroachments within the City’s public rights -of-way pursuant to Division 1 of Title 13 (Highways) of the Santa Clarita Municipal Code (the “highway permit ordinance”); and
WHEREAS, the City owns a fiber optic network in the public rights-of-way referred to as the “City’s Fiber Optic Network” which includes lit fiber strands used by the City , spare dark fiber strands, and ancillary facilities, including City data centers for electronic equipment; and
WHEREAS, in order to facilitate the deployment of its FTTP networ k, Aspire desires the City’s authorization: 1) to encroach in, under, and upon the City’s public rights- of-way to install its FTTP network, and 2) to use certain dark fiber strands within certain segments of the City ’s Fiber Optic Network and certain physical space within the City’s data centers as well as available network capacity on the City’s lit fiber connection to One Wilshire; and
WHEREAS, in exchan ge for such rights, Aspire is willing to make substantial community commitments that will benefit the City and its residents and businesses, including commitments to build-out its FTTP network City-wide, to offer symmetrical one (1) gigabit per second (Gbps) and greater high speed internet services, to provide discounts to low -income residents, to maintain a local presence, and to provide certain services, facilities and financial compensation to the City.
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WHEREAS, the City’s approval of this Agreement constitutes a discretionary action under the California Environmental Quality Act (“CEQA”) and the City has determined that the project described herein is categorically exempt from CEQA pursuant to CEQA Guidelines Section 15301 (existing facilities), Section 15303 (new construction of small structures), and Section 15304 (minor a lterations to land), as the installation, operation, and maintenance of FTTP network facilities will occur within existing public rights-of-way and easements, involve only minor trenching or surface disturbance with restoration of surface conditions, and result in no expansion of use or significant environmental impacts . Further, the City has determined, based upon information submitted by Aspire, that the project is not subject to any exception to categorical exemptions, 14 CCR §15300.2; and
WHEREAS, t he City is willing to grant such rights to Aspire in exchange for Aspire’s community commitments, and subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE , in consideration of the mutual promises and agreements contained in this Agreement, the Parties agree as follows:
1. Recitals. The facts set forth in the recitals, above, are true and correct, and are hereby incorporated by this reference.
2. Term of Agreement.
a. Initial Term. This Agreement shall commence on the Effective Date and shall expire on the date that is one day prior to the twentieth (20th) anniversary of the Effective Date (“Initial Term”), unless sooner terminated as provided herein.
b. Renewal Term(s). Upon expiration of the Initial Term and provided that Aspire is not in default under this Agreement and Aspire continues to have all necessary governmental permits, licenses, easements, franchises and approvals that may lawfully be required by federal, state or local law, statute, regulation or ordinance , this Agreement may be automatically renewed for up to three (3) additional, successive, ten (10) year terms (each a “Renewal Term”); unless either Party provides the other with written notice of voluntary non-renewal not less than ninety (90) days prior to the expiration of the Initial Term or any then-current Renewal Term. The “Term” shall be inclusive of the Initial Term and any Renewal Terms.
3. Nonexclusive Right to E ncroach. Aspire has permission to encroach upon and under its public rights-of-way for the purpose of the installation, maintenance, and operation of its FTTP network under the terms and conditions set forth herein, subject to the execution of a master encroachment agreement (“Master Encroachment Agreement”) substantially in the form attached hereto as Exhibit A.
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4. Lease of City Fiber and Colocation Space ; Right to Use Capacity on City’s Lit Fiber Connection. Aspire has the right to lease certain spare strands of fiber in the City’s Fiber Optic Network and certain colocation space and power within certain City data rooms as well as the right to use certain available capacity on the City’s lit fiber connection to One Wilshire , under the terms and conditions set forth herein , subject to the execution of a fiber lease agreement (“Fiber Lease”) substantially in the form attached hereto as Exhibit B.
5. Aspire’s Community Commitments
a. City-Wide Build-Out Commitment. Aspire will construct a FTTP network capable of serving all residents and businesses within the City of Santa Clarita in accordance with this Agreement and the Master Encroachment Agreement in Exhibit A; except that Aspire will not be required to build areas of the City that are demonstrated, through verifiable public or provider data, to already have fiber-optic broadband service available from one (1) or more existing services providers in the area, or in private communities, multi-tenant properties, or other locations that require right -of-entry agreements, easements, or other third-party consents that Aspire is unable to secure on commercially reasonable terms.
b. Quality of Service Commitment. Aspire covenants to the City that Aspire’s FTTP network within the City of Santa Clarita will be a state of the art FTTP network backed by technical support that is available to all customers 24 hours per day, 7 days per week, 365 days per year. Further, in all geographical areas of the City of Santa Clarita served by Aspire, the FTTP network shall have sufficient capacity and redundancy to provide to all customers who desire to purchase same Internet access service having a minimum symmetrical bandwidth and speed of one (1) gigabit per second (Gbps). Aspire agrees to make lower and higher bandwidth Internet access services available to customers as well , and to invest in future network upgrades as necessary during the Term to ensure the network and service offerings are comparable to that of other providers of fiber services in Los Angeles County.
c. Discounts for Seniors and Low-Income Residents. Aspire will offer a monthly discount off of any service tier s Aspire offers within the City of Santa Clarita in the amount of: (1) ten percent (10%) to seniors over the age of 65 years; and (2) thirty dollars ($30) to low-income households who meet the eligibility criteria below. ). Eligibility for the low-income discount shall be determined using the same criteria and methodology as were used in the federal Affordable Connectivity Program. Aspire further agrees to: (i) publish the availability of its discounted service on its website, in a manner that prominently advertises the service where Aspire’s other services and pricing are advertised; (ii) establish a verification process for applicants that is not onerous to customers; and (iii) manage its program in good faith at all times
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d. Commitment to Local Presence and Community Involvement.
Beginning in 2027, Aspire will invest in the City of Santa Clarita community throughout the Term of this Agreement, with such investment to include, at a minimum, payment of a cash sponsorship to the City in the amount of Fifty Thousand Dollars ($50,000) by July 1 st of every year. Such investment is anticipated to be used for activities such as sponsoring or participating in local events, local charitable organizations, and/or other community programs.
6. Aspire’s Financial Compensation to City
a. Quarterly Fee. Aspire shall pay City, on a quarterly basis, beginning in 2026, a fee known as the “ Quarterly Fee” in an amount determined in accordance with paragraph (b).
b. Calculation. For each calendar quarter, the amount due shall be the greater of: (i) ten percent (10%) of Gross Revenues; or (ii) one quarter of the Minimum Annual Guarantee Fees.
c. Definitions. For the purposes of th is Agreement : (i) “Gross Revenues” means all revenue actually received by Aspire that is de rived from the operation of Aspire ’s FTTP network within the then-current geographic boundaries of the City of Santa Clarita, including but not limited to receipts from all customers for internet access and other data services, and leasing or subleasing any fiber. (ii) “Minimum Annual Guarantee Fees” means:
2026 $50,000
2027 $100,000
2028 $150,000
2029 $200,000
2030 $250,000
2031 $300,000
2032 $350,000
2033 $400,000
2034 $450,000
2035 $500,000
annually after 2035 $500,000
plus CPI
adjustment
made
annually in
accordance
with Sec. 6.h
d. Frequency of Payments. Aspire shall remit Quarterly Fee payments to the City within forty -five (45) days after the end of each calendar quarter (quarters ending March 31, June 30, September 30, and December 31).
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e. Method of Payments; Late Payments. Payments shall be made by ACH pursuant to the City’s written instructions. Failure to make payment in full when due shall result in a two percent (2%) late fee. Penalty and bank charges will also be assessed for any payments returned by the bank.
f. Revenue Report. With each Quarterly Fee payment, Aspire shall furnish a sworn statement or declaration under oath from the Chief Finance Officer or designee, setting forth the amount and calculation of the payment. The high-level accounting statement, shall detai l all sales to customers of any kind, including a listing of the number of subscribers in each service tier and gross revenues from each tier used to calculate the Revenue Share payments. The City may require Aspire to provide any additional information reasonably necessary for administration of the Quarterly Fee.
g. Auditable Records. Throughout the Term of this Agreement, and for four years following termination or expiration, Aspire shall maintain detailed records of all revenues received in connection with this Agreement. The City shall have the right to inspect and audit any or all such records during normal business hours, upon seventy-two hours prior, written notice. In the event that an audit of the Quarterly Fee payments results in a determination that an additional payment is due to the City, such additional payment shall be subject to interest at the rate of ten percent (10%) per annum from the date the original pa yment was due. If the additional payment amount exceeds five percent (5%) of the amount reported, Aspire shall reimburse City for all audit costs.
h. Compensation for Col ocation Space . Beginning on July 1, 2026, and annually in advance and on or before July 1 thereafter, Aspire shall pay six thousand dollars ($6,000) (“Colocation Space Fee”) for use of the colocation space in the City Data Center provided pursuant to the Fiber Lease. If Aspire occupies the colocation space prior to July 1, 2026, Aspire shall include in its first payment an additional prorated amount to cover the period of occupation prior to July 1, 2026. The amount of the Colocation Space Fee shall increase annually on July 1 by the percentage change in the Consumer Price Index – All Urban Consumers (CPI-U) for Los Angeles - Long Beach -Anaheim, CA (“CPI Index”) published for the month that is three (3) months preceding the adjustment date compared to the CPI Index published twelve (12) months before the month that is three (3) months preceding the adjustment date. Payments to the City shall be made in accordance with paragraph (e) of this Section.
7. Aspire’s Provision of Services and Facilities to the City a. Internet Access Service. Aspire shall provide the City w ith two (2) geographically diverse ten (10) gigabit per second (Gbps) high speed
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internet access service at two City locations at no charge, as more fully described in Exhibit C.
b. Fiber Connections to City Demand Points. Aspire shall provide the City with fiber optic connections at up to fifty (50) City-designated demand points, including traffic signals and City-owned properties or facilities at no charge, upon City request, as more fully described in Exhibit D.
8. Aspire’s Representations. Aspire represents, warrants and covenants to the City the following:
a. Aspire: (i) is a corporation organized and existing under the laws of the State of Delaware, and is a duly qualified to transact business and is in good standing in the State of California; (ii) has the financial, technical and legal capability to perform its obligations under this Agreement ; and (iii) is in compliance and will remain in compliance during the Term with all applicable federal, state and local laws and g overnment rules and regulations.
b. Aspire is not a public utility and does not hold , and to the best of its knowledge, is not legally required to hold , any certificate of public convenience and necessity (CPCN), video services franchise issued pursuant to the Digital Infrastructure and Video Competition Act (DIVCA), or any other authorization from the California Public Utilities Commission or the Federal Communications Commission to lawfully perform its obligations or exercise its rights under this Agreement.
c. Aspire is not currently offering and does not intend to offer telecommunications, video or cable services within the geographic limits of the City of Santa Clarita during the Term.
d. Aspire is not claiming and does not intend to claim during the Term any rights, privileges, or protections under state or federal law as a public utility, a provider of telecommunications services, a franchised telephone company under Public Utility Code Sections 7901 and 7901.1, or a holder of a video services franchise issued pursuant to DIVCA. e. Aspire will promptly provide written notice to the City: (i) if and when served, if any state or federal regulator or other person provides a notice, initiates a lawsuit or proceeding or otherwise challenges or questions the accuracy of any of the representations in (b), (c), and (d) above; or (ii) if Aspire intends to voluntarily seek to change its service offerings or regulatory status described in (b), (c) and (d) above.
f. In the event Aspire is found by any state or federal regulator to not be in compliance with then current applicable state or federal telecommunications laws, Aspire will promptly notify the City in writing and
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obtain approvals or authorizations needed to come into compliance with such laws.
g. Regardless of any voluntary or involuntary change in Aspire’s regulatory status during the Term, Aspire will continue to honor the terms of this Agreement including but not limited to its commitments to the community and the City in Sections 5, 6 and 7.
9. Most-Favored Treatment. If, within five (5) years after the Effective Date, City enters into any agreement with any other provider that does not hold any state franchise or state authorization to use public rights -of-way in the City , and which grants similar rights to use City public rights-of-way, fiber and other City facilities to provide residential or commercial broadband and data services to end users within the City, City shall ensure that the overall economic terms agreed with the other provider considered as a whole are materially equivalent to those applicable to Aspire under this Agreement such that the new provider is not afforded a competitive advantage. If Aspire believes that materially more favorable economic terms were agreed to by City and such provider , it shall notify the City in writing within ninety (90) da ys of the effective date of such other agreement , and the Parties to this Agreement shall meet and confer in good faith to negotiate amendments to this Agreement to achieve materially equivalent economic terms.
In no event will the City be required to refund or to offset against future amounts due, the value of compensation and benefits already received from Aspire under this Agreement; and Aspire may not obtain any relief from obligations it may have under settlements or other contracts with the City via this provision . Further, this provision shall not apply to agreements with third parties already in effect as of the Effective Date.
10. Notices. All notices permitted or required hereunder shall be in writing and shall be given by (i) established national courier service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested . Notices are effective upon receipt , or upon attempted delivery if delivery is refused or if delivery is impossible because of failure to provide reasonable means for accomplishing delivery. The notices shall be sent to the Parties at the following addresses:
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CITY: CITY OF SANTA CLARITA
Attn: City Manager
23920 Valencia Blvd
Santa Clarita, CA 91355
With a copy to:
CITY OF SANTA CLARITA
Attn: Information Services Manager
23920 Valencia Blvd
Santa Clarita, CA 91355
ASPIRE: Aspire Broadband Holdings Inc
Attn: Stephen Weatherford
11943 Discovery Ct
Moorpark, CA 93021
11. Indemnification.
a. To the fullest extent permitted by law, Aspire agrees to defend and pay reasonable attorney’s fees and experts’ costs, indemnify and hold the City, its elec ted and appointed officials, officers, employees, and agents (the “Indemnified Parties”) harmless with respect to any and all claims, stop notices, judgments, penalties, losses, damages, injuries and liability including, but not limited to, claims and liability for bodily injury, death, and/or property damage (collectively, “Losses”), arising out of, related to, or caused by the acts, omissions, or willful misconduct of Aspire, its officials, officers, employee, consultants, or contractors related to or in connection with the exercise of rights and/or performance of obligations under this Agreement, except to the extent such Loss es are caused by the active negligence or willful misconduct of any of the Indemnified Parties. b. Third-Party Claims Indemnification. Aspire shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all third -party claims, lawsuits, actions, damages, costs or expenses suffered by the City Indemnified Persons due to or arising out of any claims by or injuries or damage to persons or property to the extent the same arise out of, are caused by or due to: (i) Aspire’s negligence or willful misconduct in exercising its rights and performing its obligations under this Agreement; (ii) Aspire’s noncompliance with or Default under this Agreement; (iii) Aspire’s failure to comply with applicable law in connection with its performance under the Agreement. The City agrees to promptly provide Aspire with notice of any claim which may result in a third -party indemnification obligation hereunder. Aspire may defend such claim with counsel of its own choosing provided that no settlement or compromise of
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any such claim shall occur without the consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed. c. Further, i n the event any third party claim, action or proceeding is commenced naming any of the City Indemnified Persons as defendant, respondent or cross defendant arising or alleged to arise from the City's approval of this project or this Agreement, Aspire shall defend, indemnify, and hold harmless the City Indemnified Persons from liability, damages, penalties, costs or expenses in any such claim, action, or proceeding to set aside, void, or annul such City approval . The Ci ty agrees to promptly provide Aspire with notice of any such claim, action, or proceeding and will cooperate fully in the defense. If Aspire fails to defend such claim, action, or proceeding, City may opt to provide its own defense, or to terminate the Agreement without any liability to Aspire.
12. Insurance. Beginning on the Effective Date, and continuing through the expiration of the Term, Aspire shall procure and maintain, insurance, as more fully described in Exhibit E, attached hereto and incorporated by reference herein.
13. Taxes. Aspire will be solely responsible for the payment of any and all taxes, charges, excises, fees, exactions and assessments, including without limitation any possessory interest taxes, relating to its construction, operation, placement, and maintenance of Aspire-owned facilities. Aspire shall not allow or suffer any lien for any taxes, assessments, charges, excises, fees or excises to be imposed on or in connection with any City property. In the event that the City receives any tax or assessment notices on or in co nnection with the City property related to this Agreement, the City shall forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount attributable to Aspire. Aspire acknowledges that notice is and was hereby given to Aspire, pursuant to California Revenue and Taxation Code Section 107.6, that use or occupancy of any public property pursuant to the Agreement may create a possessory interest which may be subject to the payment of p roperty taxes levied upon such interest. Aspire shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against Aspire’s right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy or use created by this Agreement. Aspire further understands and acknowledges that any sublicense or assignment under this Agreement and any options, extensions or renewals in connection with this Agreement may constitute a change in ownership for taxation purposes and therefore result in a revaluation for any possessory interest created under this Agreement.
14. Prevailing Wages. Aspire is aware of the requirements of California Labor Code sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq. (the “Prevailing Wage Laws”). Aspire shall comply with such Prevailing Wage Laws with respect to any work under this Agreement which Aspire determines or is determined by the Department of
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Industrial Relations or by a court to be, a “public works” project under California law. Aspire shall also defend, indemnify, and hold harmless City, its elected officials, officers, employees and agents from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage La ws in connection with this AGREEMENT. For the avoidance of doubt, this Section shall not be construed to imply that any work under this AGREEMENT is a public works project.
15. Letter of Credit . Within 60 calendar days of the Effective Date, Aspire shall provide to the C ity a letter of credit as security for its faithful performance of this Agreement.
a. Amount. The letter of credit shall be in the amount of two hundred and fifty thousand dollars ($250,000) and meet the following requirements:
(i) Be issued by a bank licensed to do and doing business in California and acceptable to the City;
(ii) Be irrevocable and in a form acceptable to the City; (iii) Provide for automatic renewal of the letter unless the bank has given the City written notice by certified mail at least thirty (30) days prior to expiration of the letter;
b. Use. The City may draw on the letter of credit if Aspire fails to pay the City any amounts due, liquidated damages, damages, costs or expenses incurred by the City by reason of any act or Default of Aspire. The City shall notify Aspire of the amount and date of the withdrawal. c. Restoration of Funds . Within t hirty (30) Days after the City gives Aspire written notice that an amount has been withdrawn from the letter of credit, Aspire must deposit a sum of money sufficient to restore the letter of credit to the original amount.
16. Default. A “Default” shall be deemed to have occurred under this Agreement under the following circumstances:
a. in the case of a failure to pay any amount when due under this Agreement, a Party fails to pay such amount within thirty (30) days after written notice from the other Party specifying such breach;
b. in the case of any other material breach of this Agreement, a Party fails to cure such breach within thirty (30) days after written notice from the other Party specifying such breach, provided that if the breach is of a nature that cannot reasonably be cured within said thirty (30) day time period, a Default shall not have occurred so long as the breaching Party has commenced cure within said thirty (30) day time period and thereafter diligently pursues cure to completion;
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c. if Aspire files or initiates proceedings, or has proceedings initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or other such official) under any bankruptcy, insolvency or other similar law, and the same is not rescinded or dismissed within thirty (30) days.
17. Remedies.
a. In the event of any Default hereunder, the non-Defaulting Party may do any one or more of the following: (i) take such actions as it deems reasonably necessary to correct the Default and charge its costs of cure to the Defaulting Party; (ii ) terminate this Agreement; or (i ii) pursue any other remedies available to it under this Agreement, at law or in equity. b. In the event of any Default involving Aspire’s failure to pay any amounts due under this Agreement, in addition to other remedies herein, the City may also draw on the letter of credit to recover such outstanding amounts. c. In the event of any Default where Aspire fails to complete its FTTP network buildout within the Construction Period set forth in the Master Encroachment Agreement, the City’s sole remedy will be that Aspire will pay the City as liquidated damages, the amount that is three-hundred thousand dollars ($300,000.00 multiplied by the percentage of the Encroachment Areas that were not built out. For example, if Aspire has built out its FTTP network in only half of the Encroachment Areas, the liquidated damages payment would be $150,000. Upon City’s receipt of the liquidated damages payment, Aspire will continue to have the right to build out its FTTP network in accordance with the Master Encroachment Agreement, but shall be relieved of its obligation to complete its FTTP network buildout within the Construction Period set forth therein.
d. In the event Aspire is found by any state or federal regulator to not be in compliance with then current applicable state or federal telecommunications laws, and fails to come into compliance with such laws within a reasonable period as required or allowed by the applicable regulatory body, the City may suspend performance of its obligations, terminate the Agreement or require renegotiation to limit the scope of activities to those that are authorized by law.
18. Effect of Agreement Expiration or Termination for Default. a. Expiration or Voluntary Non-Renewal. Upon expiration or voluntary non- renewal of the Agreement, the Parties’ rights and obligations under th is Agreement, the Master Encroachment Agreement and the Fiber Lease shall cease except those specifically identified as surviving in this Agreement, the Master Encroachment Agreement, and the Fiber Lease and those rights and obligations such as indemnification that by their nature survive such
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expiration. Unless Aspire demonstrates to the sa tisfaction of the City that its continued use of the City’s public rights -of-way is authorized under Cal.
Pub. Util. Code Section 7901, or Aspire has another lawful basis for occupying the City’s public rights -of-way (which could be another agreement with the City if Parties mutually agree) , Aspire shall, at its sole cost and expense within ninety one hundred eighty (1890) days following such expiration or voluntary non -renewal, remove its facilities and restore any affected property or public right -of-way to the condition that existed immediately before the Effective Date, reasonable wear and tear excepted.
Notwithstanding the foregoing removal obligation, in the event the Parties agree that some or all of Aspire’s facilities should nevertheless remain in place, the Parties shall negotiate in good faith the terms of any transfer, lease, or continued use by City. Any facilities not removed or subject to a separate agreement between the Parties within such one hundred eighty ninety ( 1890) days, shall be deeme d abandoned . Title to any Aspire facilities that the City authorizes for abandonment shall automatically transfer to the City without additional consideration. Within thirty sixty (630) days following the transfer of title, Aspire shall provide the City all GIS data, KMZ files, as-built drawings and/or any other documentation that evidences the precise location and configuration of Aspire’s abandoned facilities. b. Termination for Aspire’s Default. If the City terminates the Agreement for Aspire’s Default , Aspire shall, at its sole cost and expense within one hundred eighty ninety (1890) days following such termination, remove its facilities and restore any affected property or public right -of-way to the condition that existed immediately before the Effective Date, reasonable wear and tear excepted. Notwithstanding the foregoing removal obligation, in the event the Parties agree that some or all of Aspire’s facilities should nevertheless remain in place, the Parties may negotiate in good faith the terms of any transfer, lease, or continued use by City. Any facilities not removed or subject to a separate agreement between the Parties within such ninety (180) days, shall be deemed abandoned. Title to any Aspire facilities that the City authorizes for abandonment shall automatically transfer to the City without additional consideration. Notwithstanding the foregoing, the City may, in the City’s sole and absolute discretion, authorize Aspire to abandon some or all facilities in place. Title to any Aspire facilities that the City authorizes for abandonment shall automatically transfer to the City without additional consideration. Within thirty sixty (630) days following the transfer of title, Aspire shall provide the City all GIS data, KMZ files, as- built drawings and/or any other documentation that evidences the precise location and configuration of Aspire’s abandoned facilities. c. Payment on Termination or Expiration . Aspire shall file with the C ity within one -hundred eighty (180) Days of the date of the termination or expiration of the Agreement , a financial statement, certified by an independent certified public accountant, showing the Gross Revenues received by Aspire since the end of the last calendar quarter for which payment was made to the City up to the date of termination or expiration of
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the Agreement , together with a final paym ent of financial c ompensation owed to the City for this period , calculated in accordance with Section 6 .
The City reserves the right to satisfy any remaining financial obligations of Aspire to the City by utilizing the funds available in a letter of credit, and/or other security provided by Aspire.
d. Letter of Credit . If the Agreement expires or terminates for any reason, the letter of credit in Section 15 shall remain in place and may be terminated only upon written confirmation by the City that Aspire does not owe monies to the City.
19. General Terms and Conditions.
a. Assignment. This Agreement may not be assigned by Aspire without the City’s prior, written consent and such assignee agreeing in writing to the terms of this Agreement. Notwithstanding the foregoing, the transfer of the rights and obligations of Aspire to a parent, subsidiary, or other affiliate of Aspire, or to any successor-in-interest or entity acquiring fifty -one percent (51%) or more of Aspire’s stock or assets will not be deemed an assignment for the purposes of this Agreement and will not require the City’s prior, written consent provided that Aspire demonstrates to City’s reasonable satisfaction compliance with the following criteria: (i) the proposed transferee will have a financial strength after the proposed transfer at least equal to that of Aspire immediately prior to the transfer; (ii) the proposed transferee assumes in writing all of Aspire’s obligations under this Agreement; and (iii) the experience and technical qualifications of the proposed transferee in providing telecommunications or similar services evidences the ability to sustainably operate the network. Any assignment that is not in compliance with this section will be deemed to be a material default by Aspire.
b. Governing Law and Venue. This Agreement shall be construed under and governed by the laws of the State of California without regar d for conflicts of laws principles. Venue for any legal action arising out of this Agreement shall be the Superior Court for the County of Los Angeles, California, or the U.S. District Court, Central District, State of California. c. Entire Agreement. This Ag reement supersedes all prior or contemporaneous negotiations, commitments, agreements (written or oral) and writings between Aspire and the City with respect to the subject matter hereof. This Agreement, together with all exhibits constitutes the entire agreement between the Parties with respect to the subject matter here of.
No modification of this Agreement shall be binding unless in writing and executed by both Parties. No written or verbal promise, representation or agreement that is not expressly set forth herein shall be binding or have any force or effect.
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d. Time is of the Essence. Time is of the essence in the performance of the obligations in this Agreement.
e. Independent Contractors. Nothing in this Agreement shall be construed to create a part nership, joint venture or agency relationship between the City and Aspire 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 i s acting as the agent of the other Party.
f. Prevailing Party. If any legal action is necessary to enforce any provision hereof or for damages by reason of an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party reasonable costs and expenses in such amount as the court or arbitrator may adjudge to be reasonable attorney's fees and costs incurred by the prevailing party in such action or proceeding.
g. Construction of Agreement. Each of the Parties acknowledge that each Party to this Agreement has been represented by counsel in connection with this Agreement. Legal or equitable principles that might require the construction of this Agreement or any provision hereof against the party drafting this Agreement 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 partie s 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.
h. No Publicity. N either Party will issue any press releases or announcements, or any marketing, advertising or other promotional materials related to this Agreement or referencing or implying the other Party or its trade names, trademarks or service marks, without the prior written approval of the other Party.
i. Electronic Signatures. Each Party agrees that the electronic signatures of the Parties are intended to authenticate this writing and to have the same force and effect as manual signatures . As used herein, “electronic signature” means any electronic sound, symbol, or process attached t o or logically associated with this Agreement and executed and adopted by a Party with the intent to sign such Agreement, including digital, facsimile or email electronic signatures.
j. Force Majeure. In the event either Party is unable to perform any of the terms of this A greement by reason of strikes, riots, acts of God (including but not limited to earthquake, wild fire, epidemics and pandemic) acts of public enemies, supply chain delays, or other such cause beyond its control, it shall not be deemed to be in default or have forfeited its rights hereunder
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if it promptly notifies the other Party in writing of the force majeure event within ten (10) days of its occurrence, and commences and prosecutes such performance with all deliberate speed upon the cessa tion of the force majeure event.
k. No Waiver. The failure of either Party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that Party’s right to enforce such provisions, nor shall the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision . 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. l. Severability. If any term, provision or condition in this Agreement shall, to any extent, be declared invalid or unenforceable, then, unless such invalidation would deprive a Party of its essential purpose for enteri ng into this Agreement, the remainder of this Agreement shall not be affected thereby, and each term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. m. Counterparts. This Agreement may be executed simultaneously or in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
n. No Third-Party Beneficiaries. This Agreement is made and entered into for the sole benefit of Aspire and the City. No third party shall be deemed to have any rights under this Agreement; there are no third party beneficiaries to this Agreement.
o. Exhibits. The exhibits listed below are incorporated into and made a part of this Agreement. In the event of a conflict between a term of this Agreement and any exhibit, this Agreement will prevail.
EXHIBIT A - Master Encroachment Agreement
EXHIBIT B - Fiber Lease
EXHIBIT C - Aspire Internet Service SLA
EXHIBIT D - Future Demand Points / Aspire Dark Fiber SLA EXHIBIT E - Insurance Requirements
IN WITNESS WHEREOF, and in order to bind themselves legally to the terms and conditions of this Agreement, each of the signatories hereto warrants and represents that he or she has been duly authorized to execute this Agreement, and that this Agreement is binding on such Party in accordance with its terms.
CITY:
CITY OF SANTA CLARITA,
ASPIRE:
ASPIRE BROADBAND HOLDINGS INC.
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a California municipal corporation
By:
Name:
Title:
Date:
a Delaware Corporation
By:
Name:
Title:
Date:
Attest:
[Name], City Clerk
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1 EXHIBIT A
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2 EXHIBIT A
MASTER ENCROACHMENT AGREEMENT
This Master Encroachment Agreement (“Agreement”) is entered into this _______ day of ______________, 2025 (the “Effective Date”) by and between the CITY OF SANTA CLARITA, a California municipal corporation (“City”) and ASPIRE BROADBAND HOLDINGS INC. a Delaware Corporation (“Aspire”). For the purposes of this Agreement, City and Aspire may be referred to collectively as the “Parties” or individually as a “Party.” In consideration of the mutual promises and agreements contained in that certain Fiber-to- the-Premises (FTTP) Project Agreement by and between the Parties with effective date of _____, 2025, and in this Agreement, the Parties agree as follows:
1. Term and Termination of Agreement.
The term of this Agreement shall commence on the Effective Date hereof and, shall be coterminous with that certain Fiber -to-the-Premises (FTTP) Project Agreement by and between the parties (the “Term”), unless earlier terminated for default in accordance with this Agreement.
2. Non-Exclusive Encroachment Right.
a. Grant of Non -Exclusive Encroachment Right. During the Term , Aspire is granted the non-exclusive right to construct, install, maintain, operate, relocate, and remove a fiber-to-the-premises (“FTTP”) n etwork, including all related facilities, fiber optic cables, equipment, and infrastructure (collectively, “Aspire -Owned Facilities”) in the designated geographic areas of Santa Clarita with the City’s Highways as defined in Santa Clarita Municipal Code Se ction 13.04.100 (“Encroachment Areas”) identified in Exhibit A-1 to provide to City residents and businesses high speed internet access and other data services that are not currently classified as telecommunications services under state or federal law. Such non - exclusive right is subject to this Agreement and the issuance of required encroachment and building permits and approvals. Aspire shall not proceed with any work in any Encroachment Areas within the City’s Highways without first obtaining all required permits and authorizations.
b. Build Order and Construction Period. Aspire shall apply for permits and install Aspire-Owned Facilities in the Encroachment Areas in the Encroachment Area build order specified in Exhibit A -1. Aspire will begin construction of Aspire- Owned Facilities within thirty (30) days of City’s issuance of the first encroachment permit for an Encroachment Area, and complete construction in all Encroachment Areas within 60 months of commencement of the construction in the first Encroachment Area (the “Construction Period”). The Parties may extend the Construction Period by mutual agreement up to a total of 24 additional months, provided that the City may not refuse to agree to extend the Construction Period for
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3 any period of delay in the construction arising from City’s actions and not the fault of Aspire. For the avoidance of doubt, the Parties acknowledge and agree that the City’s normal processing times for encroachment and other permits do not constitute a period of delay arising from the City’s actions. c. Build Order Fairness . During the Construction Period, if the City enters into a similar project agreement with another FTTP provider that does not hold any state franchise or state authorization to use public rights-of-way in the City, the City shall require such provider to commence construction of its FTTP network in the same build order shown in Exhibit A-1 including but not limited to commencing with Encroachment Areas 1 and 2. Further, such provider shall not be permitted to initiate construction in any Encroachment Area that Aspire has identified in a submitted permit application until Aspire has commenced construction in such Encroachment Area.
3. Limitations and Restrictions
a. Nothing in this Agreement shall be construed as granting or creating any franchise rights.
b. This Agreement is not a grant by City of any property interest but is made subject and subordinate to the prior and continuing right of City to use all the Highways , including but not limited to, public use as a street and for the purpose of laying, installing, maintaining, repairing, protecting, replacing and removing sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electric and telephone wires, electroliers, cable television and other utility and municipal uses together with appurtenances thereof and with right of ingress and egress, along, over, across and in said Highways.
c. This Agreement shall not create a vested right of any nature in Aspire to use the Highways. This Agreement is made subject to all easements, restrictions, conditions, covenants, encumbrances and claims of title which may affect the Highways, and it is understood that Aspire, at its own cost and expense, shall obtain such permission as may be necessary consistent with any other existing right s. No reference herein to “Highways” shall be deemed to be a representation or guarantee by City that its interest or other rights to control the use of such property is sufficient to permit its use for such purposes. It is not a warranty of title or inter est in any Highways. It does not confer rights other than as expressly provided in the grant hereof, and Aspire shall be deemed to gain only those rights to use as are properly in City and as City may have the undisputed right and power to give. d. This Agree ment only authorizes Aspire to use the portions of the Highways specifically described in one or more encroachment permits if and when issued by the City. It does not require the City to approve any particular encroachment permit applications, nor does it provide Aspire with any interest in any particular location within the Highways . This Agreement shall not be deemed to approve any particular design or installation technique. Certain specific physical design aspects
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4 of the Aspire-Owned Facilities and deta iled approvals of the installation of the Aspire-Owned Facilities will occur through the issuance of specific permits and approvals by the City.
e. This Agreement shall be for the non-exclusive use of the Highways. By executing this Agreement, City does not agree to restrict the use of the Highways in all or any part of the City by any person in the same business, a related business, or a competing business as Aspire.
f. Aspire is not authorized to use any City property located outside of the Highways nor may Aspire use any City -owned infrastructure located within the Highways without the prior express written agreement of the City.
4. Installation of Aspire-Owned Facilities in Encroachment Areas.
All Aspire-Owned Facilities to be installed, maintained, operated, relocated and removed under this Agreement shall be underground, provided City may grant written approval for limited above-ground facilities, such as cabinets, only in separate, individual permits. The precise location of any Aspire-Owned Facilities to be installed shall be subject to approval by the City Engineer or their designee, as part of the encroachment permit process. Plans and specifications accurately depicting the proposed location of all Aspire-Owned Facilities must be submitted with each permit application. Aspire shall not materially alter, modify, or revise the approved plans or specifications, including any changes that affect the location, size, or chara cter of the Aspire - Owned Facilities, without the City’s prior written approval. No cabinets proposed to be installed at a height of 42 inches or greater above travel way elevation will be approved or permitted within the restricted area of a driveway or intersection, in accordance with the City’s Standard Plans for Line-of-Sight Corner Sight Distance at Driveways or Intersections.
5. Permitting Procedure.
a. Aspire Contact. Aspire shall designate and use a single point of contact who shall have authority to make decisions on behalf of Aspire required or permitted under this Agreement concerning all aspects of installation and operation of the Aspire- Owned Facilities.
b. Encroachment Requirements. Aspire will comply with the City’s requirements in the permit application forms and standards f or encroach ments within City Highways, including microtrenching detail as set forth in the City of Santa Clarita Municipal Code and the Engineering Services Department documents available on the webpage ( https://santaclarita.gov/engineering-services/ ), which may be
updated or modified from time to time in the City’s sole discretion . Aspire’s “Sample Microtrenching Detail” in Exhibit A -2 is attached, pending City Engineer’s final discretion.
c. Permit Fees; Deposit. Aspire shall pay all application, plan review, permitting, and inspection services fees set forth in the then -current Engineering Services Schedule of Fees posted on the City’s website. The City may, in its sole discretion,
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5 require Aspire to post and maintain a minimum deposit from which such fees and costs will be withdrawn as City’s services are performed , not to exceed eighty thousand dollars ($80,000) per planned phase as described in Exhibit A -1. Upon completion of all installation and inspection, any funds remaining will be returned to Aspire within ninety (90) days.
d. Permit Processing. The City’s Engineering Services Department will process all permit applications , be responsible for the plan checks, inspections, and communicating with Aspire , its contractors, and representatives. The City acknowledges and agrees that in order for Aspire to timely perform its obligations under this Agreement, time is of the essence in connection with permit processing.
Accordingly, City will endeavor to complete plan review or issue a permit within fourteen (14) calendar days for any initial submittal that is complete and within seven (7) calendar days for any resubmittal.
6. Performance Security . Prior to commencing construction in any individual Encroachment Area, Aspire shall provide and maintain security to ensure substantial completion of the Aspire -Owned Facilities in accordance with app roved plans and specifications and restoration of the Encroachment Area following construction. Such security shall be in the amount of one million dollars ($1,000,000) per Encroachment Area, and shall be in the form of a performance bond, letter of credit, or cash deposit, acceptable to City. Upon substantial completion of construction within any individual Encroachment Area, City shall release the corresponding security within a reasonable time.
7. Construction Notifications. Aspire shall make the following notifications to each affected residence and business:
a. Pre-Construction Notices:
i. At least fourteen (14) calendar days before commencing construction of Aspire- Owned Facilities in any individual street within the Encroachment Area, Aspire shall post a door hanger that includes, at minimum, information about what to expect during construction and contact information for Aspire. ii. At least seventy-two (72) hours before commencing construction of Aspire- Owned Facilities , Aspire shall pl ace ‘No Parking’ signs that include, at minimum, the date(s) of construction, information regarding any parking prohibitions, and contact information for Aspire , for use by affected residents and businesses.
b. Post-Construction Notices : Upon completion of construction of Aspire -Owned Facilities in any individual street within the Encroachment Area , Aspire shall deliver a post -construction door hanger advising any affected residence s and businesses that construction has been completed.
c. City Notices: Except in the event of an emergency, Aspire shall provide notice to City at least forty-eight (48) hours prior to any intended access of the Encroachment
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6 Area. In the event of an emergency (which shall include any loss of service), Aspire shall provide notice to City as soon as practicable and if at all possible, prior to accessing the Encroachment Area.
8. Standard of Care. All work and Aspire operations within the Encroachment Areas, including any and all entry upon, over, under or along the Highways, must be performed under the supervision of Aspire and its contractors, in a good and skillful manner, and in compliance with all applicable standards contained in the Santa Clarita Municipal Code, and any and all applicable local, state, and federal laws, statutes, codes, orders and regulations , including but not limited to the then-current California Manual on Uniform Traffic Control Devices (CA -MUTCD), and any other applicable City or State regulations, and California Public Utilities Commission G eneral Order 95 and General Order 128. Any and all damage to any property within the Encroachment Area, including the Highways, resulting from the activities of Aspire must be repaired by Aspire at Aspire’s sole expense, to the condition existing prior to such activities, and to the reasonable satisfaction of City. The excavation within any Highway by Aspire must be monitored by Aspire for any lateral movement or other forms of trench failure. Aspire agrees to maintain its Aspire - Owned Facilities in good operational and safe condition, in good condition as to aesthetic issues including painting of equipment and refuse removal at work locations within the Encroachment Areas.
9. Membership In Underground Service Alert. Pursuant to California Government Code Section 4216.1, Aspire shall become a member of Underground Service Alert -Southern California and shall field mark, at its sole expense, the locations of its underground Facilities upon notification in accordance with the requirements of Section 4216 of the State of California Government Code, as it now reads or may hereinafter be amended. Aspire shall furnish written proof of such member ship to the City Engineer within thirty (30) days of obtaining such membership (or within 30 days of the date of this Agreement if such membership has been obtained prior to the date of this Agreement). Repeal or amendment of Government Code Section 4216.1 shall not negate Aspire’s obligation to maintain such membership, unless such repeal or amendment disbands or eliminates Underground Service Alert-Southern California, and shall not negate any notice requirement to City.
10. Coordination of Work with Other Permittees. Aspire shall coordinate work with other utilities using the Highways in accordance with this Agreement and any requirements imposed by any applicable encroachment permit. Aspire shall be solely responsible for any struck or damaged utilities and shall take precautionary measures to protect all existing utilities. Prior to excavating near any underground utilities, Aspire shall call Underground Service Alert -Southern California (USA) at least two (2) full working days (48 hours) in advance at 81 1. Aspire is responsible to directly notify any utility company that is not a USA member and provide them the opportunity to mark their facilities in the field. Aspire shall be solely responsible for verifying the horizontal and vertical location of all existing underground utilities in the work area by employing necessary means, including but not limited to USA markings, ground penetrating radar (“GPR”), and potholing/daylighting. Any utilities struck or damaged shall be repaired or replaced in kind at the City Engineer’s sole discretion and at Aspire’s sole expense. In any work area where the City or other utility provider is unable to identify utility mainlines or services locations, Aspire shall construct facilities by open cut trench method to minimize the risk of striking utility services. All
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7 trenches and pot-holes shall be backfilled in accordance with City of Santa Clarita Standards and Specifications.
11. Operations Center. Aspire’s operations center shall be available to City staff 24 hours a day, 7 days a week, regarding problems or complaints resulting from Aspire’s activities and Aspire-Owned Facilities installed pursuant to this Agreement and may be contacted by telephone at: [________________] regarding such problems or complaints. Aspire shall, upon an emergency notification from City, dispatch a Aspire representative to arrive as needed within one hour of receipt of the City’s call.
12. Relocation of Facilities.
a. Relocations at Aspire’s Expense. Whenever City (i) changes the grade, width or location of any street or improves any street in any manner, including the laying of any sewer, storm drain, conduits, gas, water, electric or other utility system, or other pipes owned or operated by City or any other City-controlled public agency or City- controlled public utility, (ii) constructs any pedestrian tunnels, (iii) moves existing utilities where Aspire-Owned Facilities are located to an underground location, or (iv) performs other work and such work will, in the sole opinion of City, render necessary any change in the position or location of any of the Aspire -Owned Facilities in or into the Highway , Aspire shall, at its own cost and expense, effect such change in position or location, in reasonable conformity with the written notice of City to Aspire , and make reasonable restorations as requested by City, which shall be subject to all terms and conditions of this Agreement. This provision shall not apply where Aspire has an easement superior to the subject easement at the time of such written notice of City and can furnish evidence, when required, of such superior easement.
b. Notice of Relocation . Aspire will be given not less than ninety (90) days’ prior written notice of any necessary relocation or rearrangement of Aspire -Owned Facilities that Aspire is required to make hereunder. Such notice will specify in reasonable detail the work to be performed by Aspire and will specify the time for completion of the work to be accomplished. In the event City changes the provisions of any such notice provided to Aspire, Aspire shall have an additional period of time, not less than ninety (90) days, to accomplish such work, to the extent reasonably feasible to complete performance of the work within such additional period of time.
c. Remedy. If Aspire fails or refuses to relocate its affected Aspire-Owned Facilities located in, on, upon, along, under, over, across or above any H ighway or to pave, surface, grade, repave, resurface or regrade in accordance with the provisions of this Agreement, City may undertake commercially reasonable efforts to cause the work to be performed by City or City contractors, and shall maintain itemized records reasonably documenting the cost and expense associated therewith. Aspire shall reimburse City for such cost and expense within thirty (30) days after
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8 presentation to Aspire of the itemized records reasonably documenting such cost and expense.
d. Expense of Others . Except as provided elsewhere in this Agreement , when rearrangement of Aspire -Owned Facilities is done for the accommodation of any third party, the cost of such rearrangement will be borne by such party, not Aspire. e. Rearrangement of the Facilities of Others. Nothing contained in this Agreement will be construed to (i) require City to move, alter or relocate any of its infrastructure, utilities, or other facilities upon said Highways , at its own expense, for the convenience, accommodation or necessity of any other public utility, person, firm or corporation, or (ii) require City or any person, firm or corporation now or hereafter owning a public utility system of any type or nature, to move, alter or relocate any part of its system upon said streets for the convenience, accommodation or necessity of Aspire. Likewise, Aspire is under no obligation to pay for relocation of public utilities or other infrastructure in the Encroachment Areas that is not owned and controlled by Aspire.
13. Utilities. Aspire will pay for all utilities necessary to operate the Aspire-Owned Facilities. City will cooperate with Aspire ’s efforts to obtain utilities from any location provided by City or the servicing utility. Aspire agrees to obtain utility access from the nearest possible connection to minimize damage to the Highways , to the extent commerc ially reasonable and acceptable to City.
14. As-Built Drawings. Aspire shall maintain accurate maps and improvement plans of Aspire-Owned Facilities located within City. Prior to the City’s release of the performance bond for any individual phase of the network, Aspire shall provide the City with as -built drawings in both PDF format and a GIS-compatible format.
15. Contractors. Any contractor or subcontractor used for the c onstruction, installation, operation, maintenance or repair of the Aspire -Owned Facilities must be properly licensed under the laws of the state and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as Aspire would have under this Agreement and applicable law if the work were performed by Aspire . Aspire shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with this Agreement and applicable law, shall be responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. This section is not meant to alter tort liability of Aspire to third parties.
16. Hazardous Materials. Aspire shall not cause or permit the escape, disposal or release of any Hazardous Materials within, upon or from the License Area, in any manner prohibited by law. Aspire shall indemnify, defend and hold the Indemnified Parties harmless with respect to any and all Losses, including but not limited to, all costs of remediation, removal and disposal, arising out of or related to the release of any Hazardous Materials within the License Area by License, or any of its employee, agents or contractors. For purposes of this License, the term “Hazardous Mat erials” means any substance which is (i) designated, defined, classified or
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9 regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or ena cted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (viii) radioactive materials. “Environmental Laws” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. Secti ons 2601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 5101, et seq., and the Clean Water Act, 33 U.S.C. Sections 1251 et seq., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal, presence, clean- up, transportation or release or threatened release into the environment of Hazardous Materials.
17. Assumption of Risk. Aspire shall assume all risk of damage to any and all other property of Aspire, or any property under the control or custody of Aspire while upon or near the Highways incident to the use of the Highways . Aspire releases City from any liability, including claims for damages or extra compensation, arising from construction delays due to any activities by City.
18. Limitation of City’s Liability . Under no circumstances shall City be liable to Aspire for any loss of service downtime, lost revenue or profits or third -party damages. Aspire expressly acknowledges that the City is not responsible or liable to Aspire for any claims that arise in connection with: (i) acts or omissions by persons or entities using the Highways or other areas adjoining, adjac ent to or connected with Aspire -Owned Facilities; (ii) any utility service interruption; (iii) theft; (iv) burst, stopped or leaking water, gas, sewer, steam or other pressurized pipes; (v) fires, floods, earthquakes or other force majeure; (vi) any casual ty or accident on or about the Highways or other City property; (vii) any costs or expenses incurred in connection with any removal or restoration as provided in this Agreement.
19. Indemnification.
a. To the fullest extent permitted by law, Aspire agrees to defend and pay reasonable attorney’s fees and experts’ costs, indemnify and hold the City, its elected and appointed officials, officers, employees, and agents (the “Indemnified Parties”) harmless with respect to any and all claims, stop notices, judgments , penalties, losses, damages, injuries and liability including, but not limited to, claims and liability for bodily injury, death, and/or property damage (collectively, “Losses”), arising out of, related to, or caused by the acts, omissions, or willful misconduct of Aspire, its officials, officers, employee, consultants, or contractors related to or in connection with the exercise of rights and/or performance of obligations under this Agreement, except to the extent such Losses are caused by the active negligence or willful misconduct of any of the Indemnified Parties.
b. Third-Party Claims Indemnification. Aspire shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all third- party claims,
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10 lawsuits, actions, damages, costs or expenses suffered by the City Indemnified Persons due to or arising out of any claims by or injuries or damage to persons or property to the extent the same arise out of, are caused by or due to: (i) Aspire’s negligence or willful misconduct in exercis ing its rights and performing its obligations under this Agreement; (ii) Aspire’s noncompliance with or Default under this Agreement; (iii) Aspire’s failure to comply with applicable law in connection with its performance under the Agreement. The City agrees to promptly provide Aspire with notice of any claim which may result in a third- party indemnification obligation hereunder. Aspire may defend such claim with counsel of its own choosing provided that no settlement or compromise of any such claim shall occur without the consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed.
c. Further, in the event any third party claim, action or proceeding is commenced naming any of the City Indemnified Persons as defendant, respondent or cross defendant arising or alleged to arise from the City's approval of this project or this Agreement, Aspire shall defend, indemnify, and hol d harmless the City Indemnified Persons from liability, damages, penalties, costs or expenses in any such claim, action, or proceeding to set aside, void, or annul such City approval.
The City agrees to promptly provide Aspire with notice of any such claim , action, or proceeding and will cooperate fully in the defense. If Aspire fails to defend such claim, action, or proceeding, City may opt to provide its own defense, or to terminate the Agreement without any liability to Aspire.
20. Exhibits. The following Exhibits are attached to this Agreement and incorporated herein by this reference:
EXHIBIT A-1 - Buildout Schedule and Encroachment Areas
EXHIBIT A-2 - Aspire Sample Microtrenching Detail
[signature pages follow]
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11 IN WITNESS WHEREOF, and in order to bind themselves legally to the terms and conditions of this License, each of the signatories hereto warrants and represents that he or she has been duly authorized to execute this Agreement, and that this Agreement is binding on such Party in accordance with its terms.
CITY:
CITY OF SANTA CLARITA,
a California municipal corporation
By:
Name:
Title:
Date:
ASPIRE:
ASPIRE BROADBAND HOLDINGS INC.
a Delaware Corporation
By:
Name:
Title:
Date:
Attest:
[Name], City Clerk
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12 EXHIBIT A-1
ENCROACHMENT AREAS
BELOW: PLANNED BUILD SCHEDULE
BELOW: ENCROACHMENT AREA PHASES
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13 EXHIBIT A-2
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EXHIBIT B
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2 EXHIBIT B
FIBER LEASE
This Fiber Lease Agreement (“Agreement ”) is entered into this _______ day of ______________, 2025 (the “Effective Date”) by and between the CITY OF SANTA CLARITA, a California municipal corporation (“City”) and ASPIRE BROADBAND HOLDINGS INC. a Delaware Corporation (“Aspire”). For the purposes of this Agreement, City and Aspire may be referred to collectively as the “Parties” or individually as a “Party.” In consideration of the mutual promises and agreements contained in that certain Fiber-to- the-Premises (FTTP) Project Agreement by and between the Parties with effective date of _____, 2025, and in this Agreement, the Parties agree as follows:
1. Term and Termination of Agreement. The term of this Agreement shall commence on the Effective Date hereof and, shall be coterminous with that certain Fiber-to-the-Premises (FTTP) Project Agreement by and between the parties (the “Term”), unless earlier terminated for default in accordance with the Agreement.
2. Grant of Right to Use Leased Fibers
a. Grant. Subject to the terms and conditions herein , the City grants to Aspire an exclusive lease of those dark fiber strands in the City’s Fiber Optic Network installed within the City’s Highways which are specifically identified in Exhibit B-1 (the “Leased Fibers”) for the Term.
b. Limitations on Grant. This grant of Leased Fibers is made subject to all easements, restrictions, conditions, covenants, encumbrances and claims of title which may affect the City’s Fiber Optic Network installed within the City’s Highways. No reference herein to “Highways” shall be deemed to be a representation or guarantee by City that its interest or other rights to control the use of such property is sufficient to permit its use for such purposes. It is not a warranty of title or interest in any Highways. This Agreement does not confer rights other than as expressly provided in the grant hereof, and Aspire shall be deemed to gain only those rights to use as are properly in City and as City may have the undisputed right and power to give. Nothing herein shall be construed as to be a representation, warranty or covenant of the City’s right, title or interest with respect to the terms and limitations under which is at all times subject and subordinate to, and shall not be construed to be greater than, any and all agreements, licenses, permits, regulatory approvals and authorizations, and other rights, consents, and approvals that are necessary to construct, install, maintain, operate, and repair the City’s Fiber Optic Network.
c. Title; No Encumbrances. The City’s Fiber Optic Network , including the Leased Fibers, shall at all times be and remain the personal property of the City. The Leased
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3 Fibers do not include any right on the part of Aspire to encumber, pledge, or cause or permit any security or lien to attach to the Leased Fibers, the City’s Fiber Optic Network, or any other property belonging to the City. Any attempted grant of a security interest or lien by Aspire in the Leased Fibers, the City’s Fiber Optic Network or other City property shall be null and void. If such lien shall be filed, Aspire shall discharge same by payment, bond or otherwise, within ten (10) days subsequent to the date of its receipt of notice thereof from the City. d. Limited Warranty:. The Leased Fibers are single-mode fiber optic strands and shall be delivered to Aspire in good working condition and capable of supporting standard optical transmission. Except as expressly stated herein, the Leased Fibers are otherwise provided “as is,” and the City makes no additional representations or warranties as to their fitness for Aspire’s specific intended purpose.. e. Other City Fiber or Conduit . This Agreement does not allow Aspire to use or access any of the other fiber optic strands or conduit contained in the City’s Fiber Optic Network other than the Leased Fibers, except with the City’s express written permission.
3. Limitations on Aspire’s Use of Leased Fibers. Aspire may use the Leased Fibers for the purpose of connecting the Leased Fibers to other Aspire -Owned Facilities in order to provide residential and commercial broadband and related data services; and Aspire may also sublease or grant a right to use the Leased Fibers, or sell or otherwise permit use by third parties of capacity carried over the Leased Fibers as a “lit” service; provided that Aspire may not use the Leased Fibers to provide any services that are currently classified as telecommunications services or video services under state or federal law. Aspire shall not use the Leased Fibers in a way that interferes in any way with or adversely affects the use of the fibers or cable of any other person using the City’s Fiber Optic Network.
4. Splicing. Aspire shall (a) have the right and responsibility to perform and immediately cure its own splicing work with respect to the Leased Fibers and (b) be liable at Aspire’s sole cost and expense for errors, damage, or outages caused by Aspire’s splicing work.
Aspire shall be required to obtain the City’s written approval prior to splicing any specific Leased Fiber. All splicing shall be done within Aspire’s own vaults/handholes according to “Aspire’s Fiber Specifications” (see Exhibit B-5). Aspire shall utilize fiber jumper cable to connect to City’s Fiber Optic Network. All splicing, testing, maintenance, and repair by Aspire shall be performed in accordance with the City’s then- current ”Fiber Splicing and Testing Standards, Specifications, and Procedures (FSTSSP)”(see Exhibit B-6). Any or all fiber integration and fiber splicing, including all necessary permitting and payment of inspection-related costs, must be completed by Aspire in possession of a C -10 license in good standing with the State of California and in possession of all necessary permits, licenses, inspections, certificates, or authorizations required by any governing body or entity. A City representative may elect to be present at the time of the fiber integration work and shall be notified ten (10) days prior to any work.
5. Non-Exclusive License to Use Ancillary City Facilities. The Parties acknowledge that the City’s Fiber Optic Network includes or will include other users, including the City and
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4 third parties. Subject to the terms and conditions of this Agreement, Aspire is granted a non-exclusive license to use City -owned vaults, manholes, hand holes, and other City property used to access, maintain and operate the City’s Fiber Optic Network as reasonably necessary for Aspire to access the Leased Fibers.
6. Right to Request Additional Fiber Strands Within the Same Segment(s) as the Leased Fibers. If Aspire is currently using eighty percent (80%) or more of the Leased Fibers in any given segment identified in Exhibit B-1, and Aspire has plans to increase its fiber use in said segment beyond one hundred percent (100%) of the Leased Fibers, Aspire may request from the City the right to use additiona l fiber strands in that segment. The City may approve or deny Aspire’s request in the City’s sole and absolute discretion. If the City is willing to grant Aspire the right to use same, the Parties shall memorialize the terms and conditions for Aspire’s right to the additional fiber strands by executing a L eased Fiber Supplement on the form provided as Exhibit B-2 to this Agreement.
7. Right to Request Additional Fiber Strands Within Other Segments of the City’s Fiber Optic Network. At any time and from time to time during the Term, Aspire may request the right to use additional fiber strands in additional segments of the City’s Fiber Optic Network. The City may approve or deny Aspire’s request in the City’s sol e and absolute discretion. If the City is willing to grant Aspire the right to use same, the Parties shall memorialize the terms and conditions for Aspire’s right to the additional fiber strands in the additional segments of the City’s Fiber Optic Network by executing a L eased Fiber Supplement on the form provided as Exhibit B-2 to this Agreement.
8. Maintenance; SLA. As the owner of the City‘s Fiber Optic Network, the City shall be responsible for all maintenance and repair of same in accordance with the Service Level Agreement in Exhibit B-3. Aspire, and not the City, shall be responsible for the repair and maintenance of all Aspire-Owned Facilities.
9. Right to Use Colocation Space in City’s Data Center (s). Subject to the terms and conditions of this Agreement, the City shall provide Aspire with colocation space, at the City’s Data Center located at 23920 Valencia Boulevard, Santa Clarita, California 91355, for up to three (3) cabinets not to exceed a total square footage of _____________ (“Colocation Space”) . The Parties may augment the Colocation Space, upon mutual agreement (which may include additional compensation) , to include more square footage or space at other future City-owned locations identified in Exhibit B -4. Aspire’s use of Colocation Space is subject to the terms set forth in this section:
a. Aspire shall pay the City Colocation Fee as provided in the FTTP Project Agreement.
b. Aspire shall have 24x7x365 unescorted access to the Colocation Space. The Colocation Space in the City’s Data Center is accessed through a locked card key access door. Aspire employees and contractors will need authorization from the City to obtain card keys for access.
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5 c. Aspire shall use the Colocation Space solely for the purpose of installing, maintaining, connecting and utilizing Aspire -owned equipment necessary for the operation of its FTTP network. The Colocation Space shall not be used for storage of materials or tools or decommissioned or failed equipment or for co -location of third-party equipment.
d. Aspire shall be responsible for maintaining the cleanliness of the Colocation Space and for replacing or repairing, to the reasonable satisfaction of the City, any damage caused to the Colocation Space or the Data Center arising from Aspire’s activities. e. Aspire shall not interfere, or allow the operation of equipment it uses to interfere, with the City or any other occupants of the Data Center. f. Aspire sha ll be responsible for the security of its equipment including using appropriate lockable cabinets or racks for housing of equipment or installing a secure cage.
g. The City will be responsible for the general maintenance of the building such as lighting and bulb replacement, janitorial services, waste removal and sweeping of floors to maintain cleanliness, and will provide climate and environmental controls for the Colocation Space which are suitable for the placement of standard commercial FTTP network and internet access equipment, with commercial power backed up by the City’s generator. The City will be responsible for ongoing fueling, operations, maintenance, monitoring, repair, and replacement of the climate and environmental controls only.
h. Any necessary electrical upgrades shall be paid for by Aspire, which may include redundant AC power consisting of 2 x 20 Amp feeds at 208/240 Volt per cabinet, with the power to be backed up by the City’s UPS and generator. i. No mechanics’ lien or other liens shall be f iled against the property of the City, or any improvement thereon, by reason of or arising out of any labor or materials furnished to Aspire. If such lien shall be filed, Aspire shall discharge same by payment, bond or otherwise, within ten (10) days subse quent to the date of its receipt of notice thereof from the City.
j. Except as expressly stated herein, the Colocation Space shall be delivered to Aspire “as is” and no representation has been made by the City as to the fitness of the Colocation Space for Aspire’s intended purpose.
10. Cooperative Use of Shared Facilities; Liability. Pursuant to the rights granted to Aspire by this Agreement, the Parties will be sharing use of certain City fiber cable, and associated facilities during the Term. It is the shared objective of the Parties to minimize, to the extent reasonably feasible, any interference with or interruption in either Party’s use of the facilities that are the subject of this Agreement. Each of Aspire and the City covenants to the other Party that it shall exercise its rights and perform its obligations under this Agreement and in full compliance with all applicable laws, rules and regulations, in a
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6 manner that reasonably cooperates and coordinates with the other Party in good faith in order to accomplish the above stated objective. Notwithstanding anything to the contrary contained elsewhere in this Agreement should the negligence or willful misconduct of either Party in exercising its rights or performing its obligations under this Agreement cause damage to facilities and/or other property belonging to the other Party, the Party responsible for the damage shall bear the costs of the required repair, restoration and/or replacement; provided however that neither party shall be liable to the other Party for any special, incidental, indirect, punitive or consequential costs, liabilities or damages, whether foreseeable or not, arising out of, or in connection with such Party’s performance of its obligations under this Agreement.
11. Relocation. In the event that the City is required for any other reason beyond the City ’s reasonable control, to relocate or modify any or all of the cable in the City’s Fiber Optic Network on a segment that includes the Leased Fibers, the City’s costs for any such work shall be shared on a pro rata basis with Aspire . The City shall not be responsible for the costs of, nor shall it be liable for, the removal, relocation or replacement of any Aspire equipment or other Aspire property on Aspire’s side of the demarcation point. If the relocation or replacement of the cable is requested or caused by a third party, the City shall attempt to obtain reimbursement of the City’s costs from said third party. Notice to Aspire will be provided as soon as reasonably practicable. The City shall not incur liability for any outage, disruption, degradation, interference, or interruption of any service in connection with any such removal or relocation. Aspire and City shall cooperate in performing such relocation or modifications so a s to minimize any interference with the use of the Leased Fibers and the c able and to avoid conflicting physically or otherwise interfering with joint users of the cable or any other property impacted by the installation, construction, maintenance or use of the Cable, to the extent reasonably possible. Any such relocation shall be accomplished consistently with the City’s specifications.
12. Capacity on City’s Lit Fiber Connection to One Wilshire. The City has the right to use certain dark fibers connecting the City’s Fiber Optic Network to the carrier hotel in downtown Los Angeles known as One Wilshire (the “One Wilshire Fibers ”) pursuant to an agreement with Crown Castle (the “Crown Castle Agreement”). The City has installed and maintains equipment that has lit the One Wilshire Fibers, is allowed, under the Crown Castle Agreement, to sell lit capacity on the One Wilshire Fibers. Subject to the terms and conditions of the Crown Castle Agreement , and in exchange for payment of a monthly recurring charge of $3,2 00 to the City , Aspire shall have the right to connect to the One Wilshire Fibers from Santa Clarita City Hall and use 40 Gbps bandwidth on the One Wilshire Fibers (“Lit Capacity”). Aspire’s right to use Lit Capacity shall be for the Term, or such shorter period as provided in the next sentence . If the Crown Castle Agreement expires or terminates for any reason, and the City, in its sole discretion, does not extend or renew it, this Section 12 shall automatically terminate without any further obligation or liability by City. The City will provide Aspire with sixty (60) days advance notice of any anticipated termination.
13. Exhibits. The following Exhibits are attached to this Agreement and incorporated herein by this reference:
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7 EXHIBIT B-1 - Leased Fiber Strands
EXHIBIT B-2 - Supplemental Leased Fiber Form
EXHIBIT B-3 - City Maintenance SLA
EXHIBIT B-4 - City Datacenter(s) Colocation Space
EXHIBIT B-5 - Aspire’s Fiber Specifications
EXHIBIT B-6 - Fiber Splicing and Testing Standards, Specifications, & Procedures
IN WITNESS WHEREOF, and in order to bind themselves legally to the terms and conditions of this License, each of the signatories hereto warrants and represents that he or she has been duly authorized to execute this Agreement, and that this Agreement is binding on such Party in accordance with its terms.
CITY:
CITY OF SANTA CLARITA,
a California municipal corporation
By:
Name:
Title:
Date:
ASPIRE:
ASPIRE BROADBAND HOLDINGS INC.
a Delaware Corporation
By:
Name:
Title:
Date:
Attest:
[Name], City Clerk
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EXHIBIT B-1
LEASED FIBER STRANDS
<TO BE INSERTED>
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EXHIBIT B-2
SUPPLEMENTAL LEASED FIBERS FORM
LEASED FIBERS FORM NO. 202X-XX Date: Month XX, 202X
This Supplemental Segments of Leased Fibers Form (“Leased Fibers Form”) is entered into on Xnd day of XXXXX, 20XX, and between Aspire (“Aspire”) and the CITY OF SANTA CLARITA (“City”) with respect to the following:
A. The parties wish to establish a Supplemental Segment(s) of Leased Fibers Form to grant an exclusive license, subject to the terms and conditions of the Fiber Lease Agreement, for use by Aspire for the following City Leased Fibers:
AMENDMENT:
1. The “Leased Fibers” attached as Exhibit “B-1” to the Original Agreement shall be augmented by the following:
Fiber
Route
Identifier
Location A
End Point
Location Z
End Point
Descripti
on of
Fiber
Approx. Route
Distance
Fiber
Route X
[INSERT STREET
ADDRESS]
[CITY, STATE ZIP
CODE]
Lat: [INSERT LAT]
Long: [INSERT
LONG]
[INSERT STREET
ADDRESS]
[CITY, STATE ZIP
CODE]
Lat: [INSERT LAT]
Long: [INSERT
LONG]
___
strands
single
mode dark
fiber
______ ft.
2. Additional Terms:
3. Except as otherwise set forth in this form, all other terms and conditions of the Original Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, each party has caused this Modification to be executed on the date set forth above.
ASPIRE CITY OF SANTA CLARITA
By: ____________________________________ By: _________________________________ Name: __________________ Date:___________ Name: __________________ Date:________ Title: ___________________________________ Title: ________________________________
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EXHIBIT B-3
CITY DARK FIBER AND LIT SERVICE SLA
1. Defined Terms
a. "Routine Maintenance" is all preventive maintenance activities, upgrades and repairs, including but not limited to those activities outlined in this Exhibit. City shall notify Aspire at least seven (7) days prior to the date of any planned routine maintenance activity. In the event that a City-planned activity is canceled or delayed for any reason as previously notified, City shall notify Aspire at City's earliest opportunity and will comply with the provisions of the previous sentence to reschedule any delayed activity.
b. "Non-Routine Maintenance" is all efforts and activities in response to an emergency circumstance which requires restoration. City shall contact Aspire in the event of accidental or unscheduled service disruption to coordinate emergency repair work and/or to inform Aspire of the nature, extent, and expected duration of that work. At no time shall the City reimburse or credit Aspire for any downtime or loss of revenue caused by City’s planned or unplanned, routine or non-routine, maintenance related to City’s Fiber Optic Network.
2. General Terms / Notifications
a. City shall provide a means for Aspire to report trouble with the Dark Fiber and Lit Services to trained and qualified personnel on a twenty-four (24) hours a day, (7) seven days a week basis, which may include a City contractor or consultant ("Technician"). Aspire shall report trouble to the City at 661-255-4388. Helpdesk during normal business hours as defined herein and outside normal business hours in accordance with the escalation list "City Escalation List" described in this Section 2(c). The normal business hours shall mean and refer to the hours between 8:00 a.m. to 5:00 p.m. Pacific Standard Time, Mondays through Fridays, except for City observed holidays. The City shall dispatch a Technician along the Fiber Optic Network to handle and repair problems reported by Aspire or otherwise discovered by the City.
b. The Technician shall be available for dispatch twenty-four (24) hours a day, seven (7) days a week. City shall use best efforts to have its Technician at the site requiring a non- routine maintenance activity within four (4) hours from notification by Aspire or other discovery by the City, whichever occurs first. In the event that the Dark Fibers are spliced to Third Party Fiber, Aspire shall dispatch the third party's maintenance personnel to determine if the problem is on the City's Dark Fibers or the Third Party Fiber network before the City dispatches a Technician to restore the Dark Fibers; however, the City's four (4) hour response interval described in this Section 2(b) shall not be deferred or extended due to the time taken by the third party to determine the location of the problem.
c. Aspire shall utilize the City Escalation List provided by City, to report and seek immediate initial redress of exceptions noted in the performance of City in meeting maintenance service objectives. City may update the Operations Escalation List from time to time.
CITY OF SANTA CLARITA Escalation Contact List
Tie
r
Contact Title Tel.# I Email Address
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1 City Helpdesk
2 Information Services
Manager
d. City shall take workmanlike care to prevent impairment to the signal continuity and performance of the Dark Fiber. The precautions to be taken by City shall include notification to Aspire.
In addition, City shall reasonably cooperate with Aspire in sharing information and analyzing the disturbances regarding the Dark Fiber and/or Fiber Optic Network.
e. Routine maintenance work that is reasonably expected to produce any signal discontinuity must be coordinated between the parties, and performed in accordance with Scheduled Maintenance Procedures. " Scheduled Maintenance Procedures" or "SMP" means a pre-arranged period of time reserved for performing certain work on City' s Fiber Optic Network that may impact communication services. Unless otherwise agreed by Aspire, SMP will be completed after 6:00 p.m. and before 6:00 a.m., local time. Major Fiber Optic Network work such as fiber rolls and hot cuts will also be scheduled utilizing SMP.
f. City shall maintain the Dark Fiber in a manner that permits normal operation of the equipment associated with the Dark Fiber. Such maintenance includes, but is not limited to, landscaping, weed control, fence repair , smoke detectors, air conditioning, power, and trash removal.
g. Aspire shall provide and maintain titles and telephone numbers of primary and secondary contact personnel "Aspire Escalation List" who are trained in trouble-shooting network problems. These personnel will diagnose potential problems with Aspire's equipment and determine there are no problems with such equipment prior to making a Non-Routine Maintenance request to City.
Aspire Escalation Contact List
Tier Contact Title Tel.# Email Address
1 2
3 3. Facilities
a. City shall maintain the Dark Fiber in conformance with the Specifications in a manner that permits normal operation of the Dark Fibers.
b. City shall perform appropriate Routine Maintenance on the Fiber Optic Network in
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accordance with City's then current preventive maintenance procedures that shall not substantially deviate from industry practice and shall be responsible for correcting dysfunction.
4. Fiber Optic Network
a. City shall maintain the Fiber Optic Network in good and operable condition and shall repair the fiber in workmanlike manner.
b. City shall perform appropriate routine maintenance on the Fiber Optic Network in accordance with City's then current preventative maintenance procedures. City's maintenance procedures shall not substantially deviate from industry practice.
c. City responsibility ends at demarcation point. Testing would take place from demarcation point A to demarcation location Z.
5. Restoration
a. When restoring a cut fiber, the parties agree to work together to restore all traffic as quickly as possible. City, upon arriving on the site of the cut, shall determine the best course of action to be taken to restore the fiber and shall begin restoration efforts as required in the Agreement.
b. It will be the responsibility of City and Aspire to report to one another respectively of any known environmental hazards that would restrict or jeopardize any maintenance work activities in shelters or right of way areas of operations.
c. Upon notification of interruption of fiber service, disrepair, impairment or other need for repair or restoration of the Dark Fiber and the location of the damaged Dark Fiber, City shall pursue commercially reasonable efforts to mobilize technicians to achieve necessary repair or restoration, including, but without limitation, to have maintenance personnel at the affected site within four (4) hours after receipt of such notice with the required restoration material and equipment. If Aspire's use of the Dark Fiber is interrupted due to the occurrence of a Force Majeure event, the non-performing party will contact the other party and repairs and restoration will be made as expeditiously as possible.
d. The requirement for detection of the fault location is "as exact as possible" utilizing test records, fiber documentation, GPS coordinates and OTDR test results of the affected Dark Fiber. Subject to the priorities described above, if Aspire's use of the Dark Fiber is interrupted due to an occurrence of a Force Majeure event, repairs and restoration shall be made as expeditiously as possible.
e. For purposes of this section, "commercially reasonable efforts" means activities and performances consistent with prudent utility practice, existing contract provisions for City hourly employees, preserving Fiber Optic Network integrity, and response times that do not jeopardize the health and safety of the employees and agents of City and Aspire.
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f. City maintenance employees or contractors shall be responsible for correcting or repairing fiber discontinuity or damage, including, but not limited to, the non-routine repair of the Dark Fibers. City shall use commercially reasonable efforts to repair the Dark Fiber's traffic- affecting discontinuity as soon as possible after learning of the discontinuity or the service affecting situation.
g. City shall maintain sufficient capability to teleconference with Aspire during a non- routine repair in order to provide continuous communication. Restoration of open fibers on fiber strands not immediately required for service, the repair shall be scheduled for the next available SMP.
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EXHIBIT B-4
City Datacenter(s) Colocation Space
Facilities to be used:
City Hall, Transit Maintenance Facility, Canyon Country Community Center
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Exhibit B-5
Aspire’s Fiber Specifications
1. Type and Constitution. Single-mode Dark Fibers are made of high grade doped silica core surrounded by a silica cladding; and coated with a dual layer, UV-cured acrylic-based coating.
Properties Units
Single
Mode
Single Mode
Enhanced MetroCor NZDSF
Glass Geometry
Mode Field Diameter at 1310 nm (µm) 9.2 ± 0.4 9.2 ± 0.4 N/A N/A Mode Field Diameter at 1550 nm (µm) 10.4 ± 0.8 10.4 ± 0.8 8.1 ± 0.5 9.2 ± 0.8 Fiber Attenuation
Maximum value at 1310 nm (dB/km) 0.4 0.4 0.5 N/A
Maximum value at 1550 nm (dB/km) 0.3 0.3 0.3 0.3
2. Fiber Optic Specification
Bi-directional splice value (“Splice Value”) ≤ 0.20 dB at 1550 nm. In exceptional cases, a Splice Value may be accepted if its value is higher than 0.20 dB at 1550 nm. An exception case is, for instance, when three (3) re-trials of a splice cannot improve the Splice Value. The Splice Value will be given by the equation:
(Splice attenuation from A to B) + (Splice attenuation from B to A) 2 (a) Splice attenuation average (“Splice Attenuation Average”) ≤ 0.15 dB at 1550 nm. The Splice Attenuation Average is given by:
___________Σ Splice Values
Number of splices in the Route Segment
(b) It is recognized by the Parties that due to the use of ribbon fiber optic cable on some of the segments, the Splice Value of individual splices may exceed 0.20 dB. However, the Splice Attenuation Average for any Route Segment as designated in (b) above shall supersede all other splicing requirements.
3. Connectors
(a) Maximum Connector/pigtail loss. The attenuation contribution of each pigtail with associated connector is considered to be 1.0 dB, comprised of 0.8 dB connector loss and 0.20 dB splice loss (pigtail to cable splice).
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4. Fiber Optic Test Parameters
I. Standard Fiber Optic Testing:
(a) Bi-directional OTDR
(i) Span traces will be captured at 1310nm and 1550nm. Traces will be provided in native format and / or PDF.
(b) Bi-Directional Power Meter.
(i) Bi-Directional power meter results will be furnished with light source data at 1550nm. Data will be supplied in a excel format with all locations clearly identified including demarcation details.
II. Additional Fiber Optic Testing (for an additional charge):
(a) Optical Return Loss/Reflectance
(i) The ORL value measures the total light ref lected back to the transmitter caused by the system components of the fiber under test and can degrade the performance by affecting the stability of the laser; this in turn can create bit errors. (ii) Specifications – ORL
Vendor and Telcordia specifications regarding Optical Return Loss are as follows:
Parameter Required Threshold
Optical Return Loss >30 dB
(b) Polarization Mode Dispersion.
(i) PMD is caused by different polarizations of the light pulse traveling along the fiber at slightly different speeds due to imperfections of size and material properties along the length of the fiber. This causes the light pulses or waveforms to spread out or broaden causing possible bit error rate of the transmission signal. The higher the bandwidth, the shorter the pulse a nd the increase of importance of testing prior network turn up.
(ii) Polarization-Mode Dispersion Measurement for Single-Mode Optical Fibers by Interferometry Method.
(iii) PMD coefficient of the tested fiber should not exceed <0.2 ps/km 1/2.
(c) Chromatic Dispersion
(i) Chromatic Dispersion is the broadening or spreading of a pulse of light due to the nonzero spectral width of a transmission signal. The effects of chromatic
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dispersion can limit the network transmission rate or the length of fiber a signal can be transmitted before requiring re-generation.
(ii) Specifications – Chromatic Dispersion
(iii) Record the total Chromatic dispersion for the tested span, the value per kilometer should be within the range specified below.
Type Dispersion @ 1550nm
SMF (ITU-T 6.652.D) ≤18 ps/(nm*km)
ELEAF (ITU-T G.655) 4 ps/(nm*km)
TrueWave RS (ITU-T G.655) 4.5 ps/(nm*km)
TrueWave Classic (early G.655) 2 ps/(nm*km)
DSF (ITU-T G.653) 0 ps/(nm*km)
SMF-LS -1 ps/(nm*km)
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EXHIBIT B-6
FIBER SPLICING AND TESTING STANDARDS,
SPECIFICATIONS, AND PROCEDURES
1. Fiber and Connector Standards
1.1 Connector Standards
City shall use connectors with a UPC polish. The loss value of any pigtail connector and any associated fiber jumper or pigtail with matching mode field diameters will not exceed
0.5dB at 1550 nm. The loss value of a connector and its associated jumper with mismatched mode field diameters should not exceed 0.8 dB.
1.2 Field Splice Standards
All splices shall be fusion splices. The objective for each splice is an averaged loss value of 0.1 dB or less when measured bi -directionally with an OTDR at 1550 nm. In the event of damage and subsequent restoration of the Fibers, commercially reasonable efforts will be made to restore the Fibers to this standard. If after 3 restoration splicing attempts, City is not able to produce a loss value of 0.1 dB or less bi -directionally at 1550 nm, then 0.5 dB or less bi-directionally at 1550 nm will be acceptable. Fibers not meeting the 0.1 dB or less specification will be identified as Out of Specification (OOS). Documentation of the three attempts (reburns) to bring the OOS fiber within specification will be provided.
1.3 Span Loss
It is City’s responsibility to ensure proper continuity of all fibers at the fiber level, not just the pigtail level. Any “frogs” or fibers that cross in the route will be remedied by City. The attenuation as measured by a light source and power meter shall not exceed the following:
Maximum Allowable Attenuation per Fiber Span = (A * L) + (0.1 * N) + (0.5 * C) A = 0.3 dB per kilometer (at 1550 nm)
L = Optical length of cable measured in kilometers (from OTDR trace) N = Number of splices in the span
C = Number of mated connector pairs in the span. The connector loss will not exceed 0.5dB per mated pair.
1.4 Reflectance
The maximum reflectance per event, as measured by an OTDR, shall not exceed –40dB.
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2. Naming of Traces
OTDR traces taken for bi -directional testing, and the OTDR traces of the pigtail splice must be recorded on floppy diskette and provided to Lessee. To name the traces, each party will provide alpha abbreviations for the sites. The 8- character file name plus 3 - character file extension name should follow this example:
First four letters = source point
Letters 5, 6, 7 = Destination point
8th letter = wavelength
Extension = fiber number
Examples:
Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096 Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001
NOTE: ALL HEADER INFORMATION ON OTDR TRACE MUST BE
COMPLETED.
3. Test Packages
Aspire shall provide a package containing the following test data for each fiber. All data provided should be provided to Lessee in digital format.
A. Bi-directional OTDR span traces taken at 1550 nm.
B. An Excel spreadsheet containing the power meter and light source data for both directions at 1550 nm. Should also include the average for each fiber.
C. A document identifying splice points with OOS test results. Should also include documentation supporting the three reburn attempts.
D. The test data shall not include any test of third-party connections or any other connections than the Dark Fiber identified in the applicable Route Order.
E. An electronic GIS map file, such as a KMZ or shapefile, depicting the Route Order.
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EXHIBIT C
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EXHIBIT C
ASPIRE SERVICE INTERNET SERVICE AND SLA
1. Initial Dedicated Internet Access Circuit. Within approximately one-hundred and eighty (180) days after the City has granted Aspire access to the colocation space in the City Data Center, Aspire shall initially provide to the City, at no charge, a dedicated Internet access circuit having a bandwidth of 10 Gbps / 10 Gbps, with BGP peering for City’s IP Address Block (“Internet Access Service”), which shall continue through the Term of this Agreement. This initial Internet access circuit shall be delivered to City Hall / City Data Center, 23920 Valencia Boulevard, Santa Clarita, California 91355.
2. Second Dedicated Internet Access Circuit . No later than the third anniversary of this Agreement, Aspire shall provide to the City, at no charge, a second 10 Gbps / 10 Gbps dedicated Internet Access circuit with BPG peering connected with geo-diverse network and fiber path diversity to ensure fault tolerance of the City’s Internet connections. The second circuit shall be delivered to TMF, 28250 Constellation Rd, Santa Clarita, CA 91355 or another mutually agreed upon City facility and shall continue through the Term of this Agreement.
3. Future Capacity Upgrades. During the Term of this Agreement, if the City’s Internet service needs are not satisfactorily met, then Aspire will, upon request by the City, provide the City with an additional 10 Gbps of bandwidth to stay ahead of the City’s needs.
4. Relocation. The locations at which any of the complimentary Internet access circuits are provided to the City may be changed at any time and from time to time by mutual agreement of the Parties.
5. Service Level Agreement. Aspire shall use reasonable efforts to ensure that t he Internet Access Service is available to City 24 hours per day, seven days per week, consistent with Aspire’s Enterprise Service Level Agreement (“SLA”).
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EXHIBIT C-1
Internet Supplement & SLAs
1. SCOPE.
This Exhibit C-1 and any additional exhibit(s) attached hereto apply to Internet products licensed under an order form that specifies Internet as further defined in this Section. This Supplement shall not apply to other products, including Ethernet, wavelength, dark fiber , or colocation.
2. ADDITIONAL DEFINITIONS.
“Product” means Internet connectivity and Bandwidth provisioned by Aspire at a Location.
Product includes, without limitation, the following types of Products:
“Internet Access” means Internet connectivity and Bandwidth provided via a connection at Aspire’s POP.
“Dedicated Internet Access” means Internet connectivity and Bandwidth provided via a local access from a Location to Aspire’s POP.
“Internet Integrated with SD-WAN” means Internet connectivity at a Location enabling a software defined wide area network, an application aware, policy driven network, delivered by an Edge Device (as defined in Exhibit C-3 attached hereto and incorporated by this reference) or virtual instance of such device at the Location.
“Internet Access with Basic Firewall” means Internet Access with L4 stateful firewall and static routing capabilities delivered by an Edge Device or virtual instance of such device without advanced routing or other Managed Internet Router features.
“Dedicated Internet Access with Basic Firewall” means Dedicated Internet Access with L4 stateful firewall and static routing delivered by an Edge Device or virtual instance of such device without advanced routing or other Managed Internet Router features.
“Managed Internet Router” means Internet Access or Dedicated Internet Access with an L4 stateful firewall for a single Location that includes static and dynamic advanced routing capabilities that are enabled by an Edge Device or virtual instance of such device at the Location.
Access Port” means the port on Aspire’s equipment at the Location which is the point of attachment and entry into the Network (as defined in the Agreement), and the demarcation point for the applicable Product.
“Bandwidth” means the amount of data (quantified as “Mbps” or “Gbps”) made available to City.
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“Aspire’s POP(s)” means Aspire’s point of presence(s) at which Aspire provides interconnectivity to its networks routes and facilities.
“Frame Delivery Rate” means the monthly average percentage of Internet Protocol (“IP”) packets successfully received from the relevant portion of the Network relative to the number of IP packets offered to the Network between the Aspire’s POPs and Access Port. “Latency” means the monthly average round- trip transmission time (in milliseconds) for IP packets to travel on the relevant portion of the Network between the Aspire’s POPs and Access Port. Latency is measured (i) between the Aspire’s POPs and Access Port, and (ii) using Aspire’s network management systems or testing hardware. Aspire’s network management systems or testing hardware shall be the sole and conclusive source of measurements for the purposes of measuring Latency.
“Location” is an address wherein Aspire will hand off product to City. “Product Availability” means the percentage of minutes during a calendar month that the licensed Product has not incurred a Product Outage. Product Availability is calculated as follows: (43,200 - total number of minutes of Product Outage during the calendar month) divided by 43,200. “Product LD” means liquidated damages that City may be eligible to receive in the event of a Product Outage or Product Performance Failure.
“Product Outage” means any period of time during which the Product is unable to send or receive data.
“Product Performance Failure” m eans a failure of the Product to meet any performance parameters set forth in Section 6.2.2 through 6.2.4 below. Product Performance Failure is not a Product Outage.
3. SPECIFICATIONS.
The specifications applicable to Products are the performance par ameters set forth in Section 5 below.
4. USE BY CITY.
4.1 The Product provides IP transit service via the Network to the public Internet.
4.2 The Product is configured at designated speeds on a port(s) at the Location utilizing Aspire’s equipment. The selected speed of service, physical handoff type on the City’s equipment to the City, pricing and length of the initial Term shall be set out in the individual order form.
4.3 City shall utilize the Product(s) in compliance with all applicable international, federal, state and local laws and regulations, as well as abide by Aspire’s Customer Acceptable Use Policy, which is posted on Aspire’s website at aspirebroadband.com and incorporated herein by reference.
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4.4 Upon expiration or termination of a Product for any reason, City agrees to return to Aspire any IP addresses or address blocks assigned to City by Aspire.
5. SERVICE LEVEL AGREEMENT.
5.1 Product Service Level. Subject to this Section 5, in the event of a Product Outage to any licensed Product or a Product Performance Failure, City may be entitled to a Product LD in accordance with the applicable Service Level Objective set forth in Section 5.2 below. A Product Outage, or Product Performance Failure as the case may be, shall be deemed to begin upon the earlier of Aspire’s actual knowledge of the same or Aspire’s receipt of notice from City of the same, and end when the Product is operational and in material conform ance with the applicable specifications. Notwithstanding anything to the contrary in this Exhibit C -1, the Agreement or any order form, in no event shall a Product Outage and/or Product Performance Failure and/or any other defect or failure in the Product be deemed to be or constitute a breach by Aspire of this Exhibit C-1, the Agreement or any order form. Traffic traversing the public Internet is not subject or applicable to this Section 5 or this Exhibit C-1.
5.2 Service Level Objectives.
5.2.1 Product Availability.
If the Product Availability in any calendar month is less than the Product Availability objective set forth in the table below, City shall be entitled to a Product LD equal to the percentage of the applicable $2,000 set forth in the following table:
Quality Level
Product
Availability
Objective
Measure
ment
Timefra
me
Product LD
Cumulative Duration of
Product Outage(s)
% of $2000
Product
Availability
99.9 %
One
Month
0 to 2 hrs. 0%
>2 hrs. to 4 hrs. 10%
>4 hrs. to 8 hrs. 15%
>8 hrs. to 12 hrs. 20%
>12 hrs. to 24hrs. 25%
> 24 hrs. 30%
5.2.2 Latency.
If the actual monthly average Latency exceeds the number of milliseconds set forth in the table below and such failure is quality-impacting, City shall be entitled to a Product LD equal to the percentage of the applicable LD set forth in the following table:
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LATENCY
Domestic US Product LD
60ms or less No LD
>60ms $200
5.2.3 Frame Delivery Rate (Packet Delivery).
If the actual monthly average Frame Delivery Rate is less than the percentages set forth in the left column of the table below and such failure is quality-impacting, City shall be entitled to a Product LD equal to the percentage of the applicable MRC set forth in the following table:
FRAME DELIVERY RATE
Domestic US Product LD
99.5% or greater No LD
Less than 99.5% 10%
5.3 Product LDs. Product LDs hereunder are calculated as a percentage of the MRC set forth in the order form, and may not be applied to usage charges, government fees, taxes, or surcharges, or any third-party charges passed through to City by Aspire. Product LD s hereunder may be paid only once per any given billing cycle. Product LDs issued to City hereunder shall be City’s sole and exclusive remedy at law or in equity on account of any Product Outage and/or Product Performance Failure and/or any other defect or failure in the Product. Product LD s will not be issued to City if City’s account with Aspire is in arrears. If an incident affects the performance of the Product and results in a period or periods of interruption, disruption, failure or degradation in quality, entitling City to one (1) or more LDs under multiple quality level standards, only the single highest LD with respect to that incident will be applied, and City shall not be entitled to LD s under multiple quality level standards for the same incident. Notwithstanding anything to the contrary herein, the above-stated Product LDs shall not apply to off-net Products, and in the event of any Product Outage or Product Performance Failure of any off -net Product provided by Aspire to City, Aspire agrees to pass through a LD equal to the LD received by Aspire from its underlying provider(s) for such Product Outage or Product Performance Failure, in lieu of the above -stated Product LD s. In no event shall Aspire’s total liability for any and all interruptions, disruptions, failures, and/or degradations in quality (including, without limitation, any Product Outage or Product Performance Failure) exceed $1,000 for the affected Product.
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5.4 Product LD Request. City must submit a written request to claim a Product LD no later than thirty (30) days following the event which gives rise to City’s right to request the Product LD. Failure to request an allowance within such period shall constitute a waiver of any claim for a Product LD.
5.5 Events Excepted From Product LD. Notwithstanding the foregoing, City shall not receive any Product LD for any Product Outage, Product Performance Failure, failure to meet any objectives or parameters hereunder, or delay in performing repairs, arising from or caused, in whole or in part, by any of the following events:
1) City’s (including its agents, contractors and vendors) acts or omissions; 2) Failure on the part of City’s equipment, City provided optical fiber, City’s end user equipment or City’s vendor’s equipment;
3) Failure of electrical power not provided by Aspire; 4) Election by City, after requested by Aspire, not to release the Product for testing and repair;
5) Aspire’s inability to obt ain access required to remedy a defect in the Product or restore DDoS Defense;
6) Scheduled maintenance periods;
7) Scheduled upgrade of Product at the request of City; 8) Force Majeure Event;
9) Disconnection or suspension of the Product by Aspire pursuant to a right provided under this Exhibit C or the Agreement;
10) Failure of any local access circuits or lit services provided by City; 11) Aspire’s inability to repair due to utility safety restrictions; 12) Unavailability of required City personnel, including as a result of City’s failure to provide Aspire with accurate, current contact information; 13) Improper or inaccurate network specifications provided by City; 14) Unavailability of required spectrum not due to the fault or negligence of Aspire when fixed wireless is utilized in the provisioning of the Product; 15) Dropping of Internet traffic pursuant to Section 5.2; and/or 16) City attempt ing to exceed maximum Bandwidth of City’s port connection to the Network.
6. ADDITIONAL TERMS.
6.1 Disclaimer of Third Party Actions . At times, actions or inactions caused by third parties (e.g. DDoS attacks and unauthorized network intrusions) can produ ce situations in which City connections to the Internet (or portions thereof) may be impaired or disrupted. In addition, third parties may attempt to intrude into or hack into City’s network. Aspire has no control over
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or responsibility for the security of City’s network or unauthorized intrusions into and/or unauthorized uses of City’s network and/or IP addresses used by City. Aspire cannot guarantee that such situations will not occur, and accordingly Aspire disclaims any and all liability resulting from or related to such events. In the event that City’s use of the Product or such third parties is causing harm to the Network or its operations, Aspire shall have the right to suspend the Product.
Aspire shall restore the Product at such time as it reaso nably deems that there is no further harm or threat to the Network or its operations.
6.2 Network Traffic Samples . Aspire may collect small samples of network traffic for (i) support and maintenance of product performance, and/or (ii) troubleshooting, prevention or correction of service impacting incidents or for correcting and defending against malicious and improper usage of the Network and products (e.g. DDoS attacks, Botnet activity) (“Network Traffic Samples”). Network Traffic Samples typically in clude source and destination IP addresses, source and destination ports, and partial or in some cases full payload data, and may be stored in a secure system for historic, troubleshooting, or reporting purposes for up to one year. The collection of Networ k Traffic Samples is inherent in Aspire providing the Product. Aspire does not otherwise utilize Network Traffic Samples for any other purpose, including, but not limited to, collecting data for marketing or sales purposes, or selling or transferring of data to third parties. Aspire utilizes security best practices and provides reasonable and adequate protections to the systems that collect and store Network Traffic Samples. Aspire is unable to decrypt any Network Traffic Samples that are encrypted; there fore, Aspire highly recommends that City encrypt its network traffic.
Aspire may not utilize, sell, or disclose aggregated data derived from Network Traffic Samples.
To the fullest extent permitted by law, Aspire will defend, indemnify, and hold City, its elected officials, officers, employees and agents free and harmless with respect to claims and liabilities arising out of the unauthorized disclosure or use of, or access to, Network Traffic Samples (“Data Breach”) caused by or arising out of the neglige nce, willful misconduct, or breach of this Agreement by Aspire, or any of its owners, employees, contractors or agents. Aspire will promptly, but no later than 48 hours after such data breach or disclosure, notify the City thereof including providing any and all information necessary for the City to protect itself and/or third parties from further damage and injury. To the extent the Data Breach resulted in the disclosure of or access to “personal information”, as defined in California Civil Code Sec. 1798.140, Aspire shall make all required notifications to the subjects of such Data Breach, and shall otherwise comply with Civil Code Sec. 1798.100, et seq. This Section shall survive the termination of this Agreement.
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EXHIBIT D
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2 EXHIBIT D
FUTURE CITY DEMAND POINTS
Dark Fiber Supplement & SLA
1. SCOPE.
a. Aspire shall provide notice to the City of its planned routes in the form of a KMZ file or another format acceptable to City as soon as they are ready. b. Upon receipt of this information, the City shall review it to determine whether to add connections to City demand points to the planned route. c. The fiber count for such connections shall be ______. d. The City shall advise Aspire of its decision to participate or not within seven (7) days of receiving the routes.
e. If the City decides to participate, Aspire shall be responsible for installation subject to City final inspection/approval of the construction.
f. This Exhibit D applies to Dark Fiber (as defined below) licensed to City under the Agreement. This Exhibit D shall not apply to other products, including Ethernet, wavelength, Internet, or colocation.
2. ADDITIONAL TERMS.
The following additional terms and conditions shall apply to the provision of licensed Dark Fiber.
“Cable” means fiber optic cable with fiber optic filaments contained in any suitable jacketing or sheath that is already in place, or is yet to be installed, and to which Aspire has or will have access by ownership, lease, right to use, or otherwise.
“Dark Fibers” means one (1) or more specified strands of dedicated optical fiber within a Cable without optronics or electricity, subject to the terms of the Agreement. “Product” means the Dark Fibers that are licensed to City under an order form. “Location” is an address wherein Aspire will hand off Dark Fibers to City. “Product Replacement” means a new fiber splice that City may be eligible to receive pursuant to Section 6 below.
“Product Outage” means a loss of continuity or other material degradation of the Dark Fibers such that City is unable to utilize the Dark Fibers for transmission of optical signals.
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3 “Route” means the geographic path along which the Cable and Fibers are located. “Route Segment” means a portion of the Route between any two (2) Locations.
3. SPECIFICATIONS . The specifications applicable to the Dark Fibers are set forth in the attached Exhibit D-1, incorporated herein by reference.
4. USE OF AND ACCESS TO DARK FIBERS; RELOCATION.
4.1 License. Subject to the terms and conditions set forth in the Agreement and this Exhibit D, Aspire and City may from time to time execute one (1) or more order forms pursuant to which Aspire grants to City a license to use the Dark Fibers designated on the order form following the process described in Section 1 of this Exhibit D . Each order form will specify the number, identity, type, and route of the Dark Fibers, and the permitted Locations where City may access the Dark Fibers. Aspire may not be the owner of the Dark Fibers but may instead lease, license, or acquire a right to use such Dark Fibers from a third party together with the right to sub- lease the Dark Fibers to Aspire’s licensees, including City.
4.2 Limitations on Rights and Obligations. In addition to, and not in limitation of, any limitations set forth in the Agreement, the Parties agree that:
4.2.1 Use by City. City shall have no right or interest in the Dark Fibers other than a license to use the Dark Fibers. A license of the Dark Fibers does not convey any ownership interest in the Dark Fibers or the Cable. City is solely responsible for all optical and othe r equipment required to enable City to utilize the Dark Fibers for optical communications.
4.2.2 Use by Aspire. Nothing herein shall be construed as limiting or restricting Aspire or its affiliates in any manner from using its or their own cables, fiber s, or any other facilities, easements and/or rights of way for the installation of additional fiber optic cables, for use as telecommunications facilities, or for any other purpose.
4.2.3 Subordination. City understands and agrees that Aspire’s ability to grant City the license to use the Dark Fibers pursuant to this Exhibit D, and to attach, install, construct, operate, and maintain the Network (as defined in the Agreement) and the Dark Fibers, is at all times subject and subordinate to, and limited by, t he underlying rights, applicable laws, rules, ordinances, codes, and regulations. By virtue of the Agreement, City shall only have a license to use the Dark Fibers or related facilities, expressly granted herein, and in no event shall such license be construed to be greater than the underlying rights to use such Dark Fibers. Aspire shall not be liable for any acts or omissions by Aspire, its employees or affiliates that interfere with or otherwise affect City’s use of the Dark Fibers to the extent such acts or omissions are required by the underlying rights, including, without limitation acts or omissions that deny the use of, alter or remove the Cable.
4.2.4 Sublicensing. City shall not assign, sell, transfer, lease, sublease, license, sub-license, or otherwise grant a right to use the Dark Fibers to any third party without the prior written consent of Aspire.
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4 4.2.5. Access to Dark Fibers. City may access the Dark Fibers only at the demarcation points specified in the applicable order form. City may not access or take any action that impacts the Dark Fibers or the Cable at any other locations.
4.3 Relocation.
4.3.1 Relocation Required By Aspire. In the event that Aspire is required by any underlying service provider, public authorities, or lawful order or decree of a regulatory agency or court or any other reason beyond Aspire’s reasonable control, to relocate or modify any or all Cable on the Route upon which the Dark Fibers are located, Aspire’s costs for any such work shall be shared on a pro rata basis with City. Aspire shall not be responsible for the costs of, nor shall it be liable for, the removal, relocation or replacement of any City equipment or other City property on the City’s side of the Demarcation Point. If the relocation or replacement of the Cable is requested or caused by a third party, Aspire shall attempt to obtain reimbursement of Aspire’s costs from said third party. Notic e to City will be provided as soon as reasonably practicable.
Neither Aspire nor any of its affiliates or agents shall incur liability for any Product Outage, disruption, degradation, interference, or interruption of any Product in connection with any suc h removal or relocation. Aspire and City shall cooperate in performing such relocation or modifications so as to minimize any interference with the use of the Dark Fibers and the Cable and to avoid conflicting physically or otherwise interfering with joint users of the Cable or any other property impacted by the installation, construction, maintenance or use of the Cable, to the extent reasonably possible. Any such relocation shall be accomplished consistently with the Specifications.
4.3.2 Relocation Requested By City. City may request relocation of the Dark Fibers. Any such relocation shall be subject to Aspire’s approval (which shall be in Aspire’s sole discretion), the execution of an order form, and City’s payment to Aspire of such additional charges as Aspire may require. No relocation or replacement of the Cable or related facilities shall be performed without the prior written agreement of Aspire, which shall be in Aspire’s sole discretion.
5. TERMINATION AND CONDEMNATION.
5.1 Termination of Rou te Segment. In addition to, and not in limitation of, any rights set forth in the Agreement, any Route Segment may be terminated by Aspire without liability (unless due to a default by Aspire under any applicable Underlying Rights agreement), upon reasonable notice to City, to the extent Aspire is no longer authorized under the Underlying Rights to install, construct, maintain, operate, or convey the license to use the Cable or other property as contemplated by the Agreement. If a Route Segment is terminated pursuant to this Section, Aspire shall make reasonable efforts to find alternate capacity or facilities owned or controlled by Aspire to meet City’s needs, but under no circumstances shall Aspire be obligated to contract for or to construct new facilities, or otherwise incur any additional cost or expenses, to replace the Cable or Dark Fibers on the Route Segments terminated under this Section 5.1.
5.2 Condemnation Proceedings/Termination Rights. If City receives notice of a proposed taking by eminent domain of any part of the Cable, City will notify Aspire of the proposed taking within five (5) days of receiving said notice and Aspire will have the option to:
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5 (i) declare this Agreement null and void and thereafter neither Party will have any liabilit y or obligation hereunder; or (ii) remain in possession of that portion of the Cable that will not be taken.
With either option Aspire shall have the right to pursue all available remedies at law or equity.
6. SERVICE LEVEL AGREEMENT.
6.1 MTTR Objectives.
6.1.1 Mean Time to Respond. The “Mean Time to Respond” is the average time required for Aspire to begin troubleshooting a reported failure. The Mean Time to Respond objective is two (2) hours from Aspire’s receipt of notice of such failure.
6.1.2 Mean Time to Repair. The “Mean Time to Repair” is the average time required to restore the fibers to an operational condition as defined herein. The Mean Time to Repair objective is eight (8) hours from Aspire’s receipt of notice of such failure.
6.2 Product Outage. Subject to this Section 6, in the event of a Product Outage, City may be entitled to a Product Replacement as provided in Section 6.3 below. A Product Outage shall be deemed to begin upon the earlier of Aspire’s actual knowledge of the Product Outage or Aspire’s receipt of notice from City of the Product Outage, and end when the fibers are operational and in material conformance with the applicable specifications. Notwithstanding anything to the contrary in this Exhibit D , in the Agreement or in any order form, in no event shall a Product Outage or failure to meet any objectives or parameters under this Exhibit D be deemed to be or constitute a breach by Aspire of this Exhibit D, the Agreement or any order form.
6.3 Service Level Objective. If Aspire fails to repair a Product Outage within eight (8) hours of notice from City of such Product Outage (“Repair Window”), City may be entitled to a Product Replacement as follows:
Measurement
Timeframe
Product Replacement for Affected
Product
8 Hours Per Incident The City may request a new fiber splice, at its option, to be completed within 48 hours.
6.4 Product Replacements. The number of minutes of separate and discrete Product Outages will not be cumulated to determine the applicable product Replacement. Product Replacements hereunder may not be applied to usage charges, government fees, taxes, or surcharges, or any third- party charges passed through to City by Aspire. Product Replacement s issued to City hereunder shall be City’s sole and exclusive remedy at law or in equity on account of any Product Outage. Product R eplacements will not be issued to City if City’s account with Aspire is in arrears. Notwithstanding anything to the contrary herein, the above -stated Product Replacements shall not apply to off -net products, and in the event of a Product Outage or other failure of any off- net product provided by Aspire to City, Aspire agrees to pass through a Replacement equal to the Replacement received by Aspire from its underlying provider(s) for such Product Outage, in lieu of the above-stated Product Replacements.
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6 6.5 Product Replacement Request. City must submit a written request to claim a product Replacement no later than thirty (30) days following the event that gives rise to City’s right to request the product Replacement . Failure to request a Replacement within such period shall constitute a waiver of any claim for a product Replacement.
6.6 Events Excepted From Product Replacement. Notwithstanding the foregoing, City shall not receive any Product Replacement for any Product Outage, failure to meet any objectives or parameters hereunder, or delay in performing repairs, arising f rom or caused, in whole or in part, by any of the following events:
a. City’s (including its agents, contractors and vendors) acts or omissions; b. Failure on the part of City equipment, City provided optical fiber, end user equipment or City’s vendor’s equipment;
c. Failure of electrical power not provided by Aspire;
d. Election by City, after requested by Aspire, not to release the Dark Fibers for testing and repair;
e. Aspire’s inability to obtain access required to remedy a defect in a Product, including lack of access due to utility safety restrictions; f. Scheduled maintenance periods;
g. Scheduled upgrade of Product at the request of City; h. Force Majeure Event; or
i. Disconnection or suspension of the Product by Aspire pursuant to a right provided under this Exhibit D.
Exhibit D-1
Fiber Specifications
1. Type and Constitution. Single -mode Dark Fibers are made of high grade doped silica core surrounded by a silica cladding; and coated with a dual layer, UV -cured acrylic-based coating.
2. Fiber Optic Specification
Bi-directional splice value (“Splice Value”) ≤ 0.20 dB at 1550 nm. In exceptional cases, a Splice Value may be accepted if its value is higher than 0.20 dB at 1550 nm. An exception case is, for instance, when three (3) re-trials of a splice cannot improve the Splice Value. The Splice Value will be given by the equation:
(Splice attenuation from A to B) + (Splice attenuation from B to A) 2 (a) Splice attenuation average (“Splice Attenuation Average”) ≤ 0.15 dB at 1550 nm. The Splice Attenuation Average is given by:
___________Σ Splice Values
Number of splices in the Route Segment
(b) It is recognized by the Parties that due to the use of ribbon fiber optic cable on some of the segments, the Splice Value of individual splices may exceed 0.20 dB.
However, the Splic e Attenuation Average for any Route Segment as designated in (b) above shall supersede all other splicing requirements.
3. Connectors
(a) Maximum Connector/pigtail loss. The attenuation contribution of each pigtail with associated connector is considered to be 1.0 dB, comprised of 0.8 dB connector loss and 0.20 dB splice loss (pigtail to cable splice).
Properties Units
Single
Mode
Single Mode
Enhanced MetroCor NZDSF
Glass Geometry
Mode Field Diameter at 1310 nm (µm) 9.2 ± 0.4 9.2 ± 0.4 N/A N/A Mode Field Diameter at 1550 nm (µm) 10.4 ± 0.8 10.4 ± 0.8 8.1 ± 0.5 9.2 ± 0.8 Fiber Attenuation
Maximum value at 1310 nm (dB/km) 0.4 0.4 0.5 N/A
Maximum value at 1550 nm (dB/km) 0.3 0.3 0.3 0.3
4. Fiber Optic Test Parameters
I. Standard Fiber Optic Testing:
(a) Bi-directional OTDR
(i) Span traces will be captured at 1310nm and 1550nm. Traces will be provided in native format and / or PDF.
(b) Bi-Directional Power Meter.
(i) Bi-Directional power meter results will be furnished with light source data at 1550nm. Data will be supplied in a excel format with all locations clearly identified including demarcation details.
II. Additional Fiber Optic Testing (for an additional charge):
(a) Optical Return Loss/Reflectance
(i) The ORL value measures the total light reflected back to the transmitter caused by the system components of the fiber under test and can degrade the performance by affecting the stability of the laser; this in turn can create bit errors.
(ii) Specifications – ORL
Vendor and Telcordia specifications regarding Optical Return Loss are as follows:
Parameter Required Threshold
Optical Return Loss >30 dB
(b) Polarization Mode Dispersion.
(i) PMD is caused by different polarizations of the light pulse traveling along the fiber at slightly different speeds due to imperfections of size and material properties along the length of the fiber. This causes the light pulses or waveforms to spread out or broaden causing possible bit error rate of the transmission signal. The higher the bandwidth, the shorter the pulse and the increase of importance of testing prior network turn up. (ii) Polarization-Mode Dispersion Meas urement for Single - Mode Optical Fibers by Interferometry Method.
(iii) PMD coefficient of the tested fiber should not exceed <0.2 ps/km1/2.
(c) Chromatic Dispersion
(i) Chromatic Dispersion is the broadening or spreading of a pulse of light due to the nonzero spectral width of a transmission signal. The effects of chromatic dispersion can limit the network transmission rate or the length of fiber a signal can be transmitted before requiring re-generation. (ii) Specifications – Chromatic Dispersion
(iii) Record the total Chromatic dispersion for the tested span, the value per kilometer should be within the range specified below.
Type Dispersion @ 1550nm
SMF (ITU-T 6.652.D) ≤18 ps/(nm*km)
ELEAF (ITU-T G.655) 4 ps/(nm*km)
TrueWave RS (ITU-T G.655) 4.5 ps/(nm*km)
TrueWave Classic (early G.655) 2 ps/(nm*km)
DSF (ITU-T G.653) 0 ps/(nm*km)
SMF-LS -1 ps/(nm*km)
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1 EXHIBIT E
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2 EXHIBIT E
INSURANCE REQUIREMENTS
Aspire will maintain insurance in conformance with the requirements set forth below. Aspire acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to the City in excess of the limits and coverage required in this Agreement and which is applicable to a given loss, will be available to the City.
Aspire shall provide the following types and amounts of insurance:
Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Best rating of A - or better and a minimum financial size of VII.
Commercial General Liability Insurance using Insurance Services Office (ISO) “Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $1,000 000 per occurrence for all covered losses and no less than $2,000,000 general aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $2,000,000 per accident. If Aspire owns no vehicles, this requirement may be satisfied by a non- owned auto endorsement to the general liability policy described above. If Aspire or Aspire’s employees will use personal autos in any way on this project, Aspire shall provide evidence of personal auto liability for each such person.
Workers’ Compensation on a state-approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease. Aspire shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Agency, its officers, agents, employees, and volunteers.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlying coverages. Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured’s liability is determined, not requiring actual payment by the insured first. There shall be no cross liability exclusion precluding coverage for claims or suits by one insured against another . Coverage shall be applicable to the City for injury to employees of Aspire , subcontractors or others involved in the License Agreement. The scope of coverage provided is subject to approval by the City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $5,000,000 aggregate.
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3 General conditions pertaining to provision of insurance coverage by Aspire. Aspire and the City agree to the following with respect to insurance provided by Aspire:
1. Aspire agrees to endorse the third party general liability coverage required herein to include as additional insureds City, its officials, employees, and agents, using standard ISO endorsement CG 2010 and CG 2037, or equivalent, with edition acceptable to the City.
Aspire also agrees to require all contractors, subcontractors, and any one else involved in any way with the project contemplated by this agreement to do likewise.
2. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Aspire or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Aspire hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants and/or subcontractors.
3. All insurance coverage maintained or p rocured by Aspire and available or required of others by Aspire pursuant to this Agreement shall be endorsed to delete the subrogation condition as to the City, or to specifically allow Aspire or others providing insurance herein to waive subrogation prior to loss. This endorsement shall be obtained regardless of existing policy wording that may appear to allow such waivers.
4. It is agreed by Aspire and City that insurance provided pursuant to these requirements is not intended by any party to be limited to providing coverage for the vicarious liability of City, or to the supervisory role, if any, of City. All insurance coverage provided pursuant to this or any other Agreement (express or implied) in any way relating to City is intended to apply to the full extent of the policies involved. Nothing referred to here or contained in any agreement involving City in relation to the project contemplated by this Agreement is intended to be construed to limit the application of insurance coverage in any way.
5. No liability policy shall contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and additional requirements by the City, as the need arises. Aspire shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect the City’s protection without the City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Aspire’s general liability policy, shall be delivered to city at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled or reduced at any time and n o replacement coverage is provided, the City has the right, but not the duty, to obtain any insurance it deems
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4 necessary to protect its interests under this or any other Agreement and to pay the premium.
Any premium so paid by the City shall be charged to and promptly paid by Aspire or deducted from sums due Aspire, at the City’s option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to the City of any cancellation or reduction of coverage. Aspire agrees to require its insurer t o modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation or reduction of coverage imposes no obligation, or that any party will “endeavor” (as opposed to being required) to comply with the requirements of the certificate.
9. Coverage provided by Aspire shall be primary and non-contributory and any insurance of self-insurance procured or maintained by the City shall not be required to contribute with it. The limits of insurance requ ired herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self - insurance shall be called upon to protect it as a named insured.
10. Aspire agrees to ensure that subcontractors, and any other party involved with the Agreement who is brought onto or involved in the Agreement by Aspire, provide the same minimum insurance required of Aspire . Aspire agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Aspire agrees that upon request, all agreements with subcontractors and others engaged in the Agreement will be submitted to the City for review.
11. Aspire agrees not to self-insure or to use any self-insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, Architect, Engineer, or other entity or person in any way involved in the performance of work contemplated by this Agreement to self -insure its obligations to the City. If Aspire’s existing coverage includes a deductible or self -insured retention, the deductible or self-insured retention must be declared to the City. At that time, the City shall review options with the Aspire, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Aspire thirty (30) days advance written notice of such change. If such change results in substantial additional cost to the Aspire, the City will negotiate additional compensation proportional to the increased benefit to the City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that ca n be deemed to be in furtherance of or towards performance of this Agreement.
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5 14. Aspire acknowledges and agrees that any actual or alleged failure on the part of the City to inform Aspire of non-compliance with an insurance requirement in no way imposes any additional obligations to the City nor does it waive any rights hereunder in this or any other regard.
15. Aspire will renew the required coverage annually as long as the City, or its employees or agents face an exposure from operations of any type pursuant t o this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until the City executes a written statement to that effect.
16. Aspire shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A cover age binder or letter from Aspire ’s insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to the City within five days of the expiration of coverage.
17. The provisions of any Workers’ Compensation or similar act will not limit the obligations of Aspire under this Agreement. Aspire expressly agrees not to use any statutory immunity defenses under such laws with respect to the City, its employees, officials, and agents.
18. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts or impairs the provisions of this section.
21. Aspire agrees to be responsible for ensuring that no contract used by any party involved in any way with the Agreement reserves the right to charge the City or Aspire for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to the City. It is not the intent of the City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against the City for payment of premiums or other amounts with respect thereto.
Aspire agrees to provide immediate notice to City of any claim or loss against Aspire arising out of the work performed under this Agreement. The City assumes no obligation or liability by such
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6 notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve the City.