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MASTER SERVICE AGREEMENT
FOR DARK FIBER LICENSING
This MASTER SERVICE AGREEMENT for Dark Fiber Licensing (the "Agreement") is made as of
October 18,2011,between SUNESYS,LLC,which has a place of business at 185 Titus Avenue,Warrington,PA 18976
("SUNESYS�') and City of Redlands, having a place of business at 35 Cajon Street, Redlands, CA 92373
("LICENSEE").
WHEREAS, SUNESYS has or intends to acquire easements, conduit rights,pole attachment and license
agreements to construct, install,operate,maintain,modify,replace or remove a redundant communications transmission
system in and around Pennsylvania,New Jersey,Delaware,Maryland,Virginia,the District of Columbia,Georgia,Ohio,
California and Illinois;and
WI-IEREAS, SUNESYS has or intends to install, construct, operate and maintain an optical fiber
communication transmission system on utility poles or within conduit systems located within those jurisdictions and
such other jurisdictions as it may determine from time to time(collectively, "SUNESYS' Fiber System")consisting of
one or more strands of optical fiber;and
WHEREAS, LICENSEE desires to license certain specific strands of such optical fiber along specific
routes;and
WHEREAS, SUNESYS agrees to grant such license subject to the terms and conditions set forth in this
Agreement and any subsequent Addendum.
NOW,THERE FORE,the parties agree as follows:
1. DEFINITIONS
As used in this Agreement,-
LO Addendum means an executed supplement to this Agreement that contains detailed information
describing a specific LICENSEE Fiber Optic Facilities segment including the Route,term and license fee as set forth in
substantially the fian-nat of Schedule A of this Agreement.
Ll Authorized Use means a business purpose of LICENSEE's optical fiber telecommunications
network for telecommunication traffic of LICENSEE or its employees,officers or agents,provided that Authorized Use
shall not include any use which would be in violation of any law,rule,regulation or order of any governmental authority
having jurisdiction over such Fiber Optic Facilities.
1.2 Dark Fiber means one or more fiber optic strands subject to this Agreement through which an
associated tight,signal or light communication transmission must be provided to furnish service.
1.3 Fiber Optic Facilities means a certain fiber optic cable composed of one or more strands of single
mode optical fibers,which cable is owned by SUNESYS and installed along a defined route.
1.4 Hazardous Substances include any substance the presence of which requires investigation or
remediation under any federal,state or local statute,regulation, ordinance,order, action,
,policy or common law or any
substance which is or becomes defined as "Hazardous Waste," "Hazardous Substance," pollutants, toxic substances,
compounds,elements, or chemicals pursuant to the Comprehensive Environmental Response Act(42 U.S.C. § 651 et
sect.),as amended,or any other federal, state or local environmental cleanup laws. Hazardous Substances also include
asbestos,lead paint,Polychlorinated Biphenyls("PCBs")and radon gas.
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1.5 Hazardous Discharge means any releasing spilling,leaking,pumping,pouring,emitting,emptying,
Z" --
discharging,injecting,escaping,leaching,disposing,or dumping of Hazardous Substances from,in,or onto SUNESYS'
Fiber System.
1.6 LICENSEFs Fiber Optic Facilities means specific Strands,as designated by SUNESYS, of Dark
Fiber of the Fiber Optic Facilities identified as being licensed to the LICENSEE by Addendum to this Agreement,
1.7 Route means a delineated segment of the SUNESYS' Fiber System containing LICENSEE's Fiber
Optic Facilities and defined by addendum to include physical end points,distance,and fiber count.
1.8 Strands means individual fiber optic strards within the Fiber Optic Facilities.
1.9 Taxes means all sales,use, gross receipts,excise,access,bypass and other local, state and federal
taxes, charges, fees and surcharges (including, without limitation, telecommunications taxes, universal service fees,
franchise fees and other similar charges), however designated, imposed on or based upon the provision,lease, license,
sale or use of LICENSEE'S Fiber Optic Facilities, but excluding any taxes assessed upon the net income or imposed
upon the capital of SUNESYS.
2. GRANT OF LICENSE
SUNESYS grants to LICENSEE- and LICENSEE accepts from SUNESYS an exclusive and indefeasible
license solely for Authorized Use of LICENSEE's Fiber Optic Facilities in SUNESYS' Fiber System(the"License"),as
provided in this Agreement.LICENSEE shall have no further right,title or other interest in SUNESYS'Fiber System or
in LfCENSEPs Fiber Optic Facilities. SUNESYS shall have the right to grant and renew rights to any entity to use
SUNESYS' Fiber System or any other property of SUNESYS; provided, however, that during the teen of this
Agreement,SUNESYS shall have no right to grant and renew any rights to any entity with respect to LICENSEE's Fiber
Optic Facilities.
3. WORK
3.1 SUNESYS shall use best efforts to provide,construct and install the Fiber Optic Facilities within
SUNESYS'Fiber System along the Route within the amount of time specified in each Addendum to this Agreement(the
"Construction Completion Date"). SUNESYS covenants that the segments of the Fiber Optic Facilities along the Route
that it constructs pursuant hereto shall be constructed substantially and in all material respects in accordance with
standard outside plant specifications. Work shall include the labor and inaterials.
3.2 SUNESYS shall test all LIC ENSE Fs Fiber Optic Facilities in accordance with Exhibit A to this
Agreement to verify that LICENSEE's Fiber Optic Facilities are installed and operational in accordance with the fiber
optic specifications included on Exhibit B to this Agreement. When SUNESYS has determined that the results of the
testing with respect to the entire span show that LICENSEE's Fiber Optic Facilities so tested are installed and operating
to the specifications,SUN ESYS shall promptly notify and provide LICENSEE with the fiber test results.
3.3 When SUNESYS gives notice to LICENSEE that the Fiber Optic Facilities are complete,
LICENSEE shall provide SUNIESYS with notice accepting(or rejecting by specifying the defect or failure in the testing
that is the basis for such rejection) LICENSEE's Fiber Optic Facilities, If LICENSEE fails to notify SUNESYS of its
acceptance or rejection of the final test results with respect to LICENSEE's Fiber Optic Facilities within thirty(30)days
after LICENSEE's receipt of notice of such test results,LICENSEE shall be deemed to have accepted LICENSEE's Fiber
Optic Facilities.If,during the course of such construction, installation and testing,any material deviation from standard
specifications is discovered, the constraction or installation of the affected portion of the segment shall be repaired to
such specification by SUN YS. The date of such notice of acceptance (or deemed acceptance)of all LICENSEFs
Fiber Optic Facilities for the Route shall be the"Acceptance Date"for the Route.
4. LICENSE FEES
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4.1 LICENSEE shall pay to SUNESYS a license fee according to the terms and conditions specified in
each Addendum to this Agreement, The initial license fee shall be due and payable on the Acceptance Date.
4.2 In addition to the License fee, Licensee shallP ay to SUNESYS all Taxes. Such Taxes may be
separately stated on the applicable invoice.
4.3 Except as otherwise specifically provided, LICENTSEE shall pay all applicable fees and charges
provided for in this Agreement on or before the due date specified in the invoice,
4.4 All payments not made when due shall bear a late payment charge of one and one-half(1 1,,'21/16)percent
per month of the unpaid balance or the highest lawful rate,whichever is less.
5. TERM
5.1 The teen of the Agreement shall commence on the date first above set forth and shall continue on a
year to year basis. Either Party may terminate this Agreement by giving one hundred-eighty (180) calendar days
prior written notice to the other Party. Notwithstanding the termination of this Agreement,the terms and conditions
of this Agreement shall remain in force for any existing Addendum until the expiration of the term of such
Addendum.
5.2 The initial term of each Addendum shall commence on the Acceptance Date and shall expire at the
end of the term period set forth in the Addendum.
6. MAINTENANCE AND OPERATION
6.1 SUNESYS shall be solely responsible to maintain LICENSEE's Fiber Optic Facilities. LICENSEE
shall cooperate with and assist SUNESYS,as reasonably may be required,in performing said maintenance.In the event
of service outages or other maintenance request,SUNESYS agrees to use best efforts to respond within two(2)hours of
tin-te of notice.
6.2 Notwithstanding anything to the contrary contained herein,LICENSEE shall solely be responsible,
at its own expense,for the construction,installation,operation,maintenance,repair and any other activity engaged by or
on behalf of LICENSEE relating to all light communications transmission equipment and other terminal equipment and
facilities required in connecticia with the use,electronics or signals of LICENSEE's Fiber Optic Facilities.
6.3 SUNESYS shall be responsible for all necessary splicing on the SUNESYS' Fiber Optic Facilities,
Where SUI-4ESYS' Fiber Optic Facilities connect to LICENSEE fiber optic cable,the associated Addendum will detail
and describe the Pat-ties splicing responsibilities.
6.4 Should LICENSEE perform, authorize, or contract any splices or other work not in accordance
with the provisions of this Agreement(specifically article 6.1 stating SUNESYS must do the work),SUNESYS may at
its option correct said condition. SUNESYS shall nofif t LICENSEE in writing prior to performing such work whenever
practicable. However,when such conditions pose an immediate threat to the physical integrity of SUNESYS' facilities,
SUNESYS may perform such work and take such action that it decins necessary without first giving notice to
LICENSEE. As soon as practicable thereafter, SUNESYS shall advise LICENSEE of the work performed and the
action taken and shall endeavor to arrange for re.-accorninodation of LICENSEPs Fiber Optic Facilities so affected.
LICENSEE shall promptly reirriburse SUNESYS for all reasonable costs incurred by SUNESYS for all such work,
action and re-accomatiodation performed by SUNESYS,
6.5 LICENSEE shall,at its sole cost and expense,promptly respond to and remediate any Hazardous
Discharge to and from SUNESYS' Fiber System resulting from LICENSEE's operations.
6.6 SUNESYS shall be responsible for obtaining and maintaining from the appropriate public or
private authority any pole attachment agreements, franchises, licenses, state, local or right-of-way permits or other
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authorizations required to enter upon the property where SUNESYS' Fiber System is located and to operate and
maintain LICENS-ElTs Fiber Optic Facilities in SUNESYS' Fiber System. LICENSEE will not engage in any activity
which affects SUNESYS'right-of-way interests without the written permission of SUNESYS.
6.7 LICENSEE, at its sole cost and expense, shall(i)use LICENSEE's Fiber Optic Facilities and (ii)
conduct all work in or around SUTNESYS' Fiber System in a safe condition and in a manner reasonably acceptable to
SUNESYS, so as not to physically, electronically or inductively conflict or interfere or otherwise adversely affect
SUNESYS' Fiber System or the facilities placed therein by SUNESYS,or other authorized LICENSEE's of the Fiber
Optic Facilities.
6.8 LICENSEE must obtain prior written authorization, which such authorization shall not be
unreasonably withheld, conditioned or delayed, from SUNESYS approving any further work and the party performing
such work before LICENSEE shall perform any work-in or around SUNESYS'Fiber System.
6.9 In the event LICENSEE receives information that the Fiber Optic Facilities are damaged, it shall
notify SUNESYS of said danrage by phone at 800.286.6664, in the event SUNBSYS receives information that
LICENSEE'S Fiber Optic Facilities are damaged,SUNESYS will notify LICENSEE of said damage by phone at: (909)
335-4705. In each case,the caller shall provide the following information-
1. Narne of entity making report.
2. Location reporting problem.
3. Marne of contact person reporting problem.
4. Description of the problem in as much detail as possible.
5. Time and date the problem occurred or began.
6. State whether or not the problem presents a jeopardy situation to SUNESYS' Fiber System or
LICENSEE's Fiber Optic Facilities.
6.10 SUNESYS shall designate the particular Strands of Dark Fiber that will constitute LICENSEE's
Fiber Optic Facilities and the location and manner in which they will enter and exit SUINESYS' Fiber 'System. This
information shall be contained on each executed Addendum,
6.11 If SUNESYS moves, replaces or changes the location, alignment or grade of SUMMSYS' Fiber
System C'Relocation"),SUNESYS shall concurrently relocate LICENSEE's Fiber Optic Facilities. If the Relocation is
bemuse of an event of Force Majeure or of any governmental or third party authority,including and taking by right of
eminent domain, LICENSEE shall reimburse SUNESYS for LICENSEE's proportionate share of the costs of the
Relocation of SUNESYS' Fiber System. To the extent SUNESYS receives reimbursement from a third party which is
allocable to a Relocation of SUNESYS' Fiber System,it will credit or reimburse LICENSEE for its proportionate share
of the reimbursement, If SUNESYS relocates SUNESYS' Fiber System solely for its own benefit,LICENSEE shall not
be required to reimburse SUNESYS for the costs of the Relocation of SUNESYS' Fiber System. LICENSEE's
proportionate share shall be the combined calculation of (a)a fraction,the numerator of which shall be the number of
conduits occupied by the LICENSEE's Fiber Optic Facilities and the denominator of which shall be the total number of
conduits in the affected SUNT-SYS' Fiber System, and (b)a fraction, the numerator of which shall be the number of
Strands in LICEINSEFs Fiber Optic Facilities and the denorninator of which shall be the total number of Strands in the
SUNIESYS conduit containing the LICENSEE's Fiber Optic Facilities.'
7. OWNERSHIP
7.1 LICENSEE's Fiber Optic Facilities shall at all times remain the sole and exclusive property of
SUNT-SYS and legal title shall be held by SUNESYS. Neither the provision or the use of LICEINISEFs Fiber Optic
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Facilities by SUNESYS to LICENSEE hereunder,nor the payments by LICENSEE contemplated hereby,shall create or
vest in LICENSEE any easement,interest,or any other ownership or property right of any nature in LICENSEE's Fiber
Optic Facilities or Strands,except that SUNESYS agrees to LICENSEPs right to use LICENSEEs Fiber Optic Facilities
for Authorized Use during the term of this Agreement. LICENSEE shall not grant any security interest in the
LIC ENSEVs Fiber Optic Facilities or any part or component thereof,
8. EMINENT DOMAIN
If there is a taking of LICENSEE's Fiber Optic Facilities by right or threat of eminent domain(a"Taking")
which,as agreed by the parties,or in the absence of such agreement as determined pursuant to the previsions of Section
16 of this Agreement,results in the remainder of LICFNSEE's Fiber Optic Facilities being unable to be restored to a
condition suitable for LICENSEEs business need within ninety (90) days from the date of the Taking ("Substantial
Taking"), this Agreement (or the Addendum subject to such Taking, if less than all of LICENSEEs Fiber Optic
Facilities)shall teirainate. In such event any periodic LICENSEE fee and/or maintenance fee shall abate torn the date
of Taking and any previously paid license fee and/or maintenance fee shall abate from the date of Taking and any
previously paid license fee and/or maintenance fee attributable for any period beyond such date shall be returned to
LICENSEE. If there shall be a Taking which does not constitute a Substantial Taking, this Agreement (or the
Addendum subject thereto)shall not terminate but SUNESYS shall,with due diligence,restore LICENSERs Fiber Optic
Facilities as speedily as practical to its condition before the Taking in accordance with the provisions of Section 6.11.
9. INDEMNIFICATION
9.1 Each Party will compensate the other Party for the full actual loss,damage or destruction of that
Party's property that in any way arises from or is related to the first Party's activities undertaken pursuant to this
Agreement(including,without limitation,the installation,construction,operation or maintenance of LICENSEUs Fiber
Optic Facilities).
9.2 Each Party further will indemnify,defend,and hold harmless the other Party and its agents,officers
and employees,from any and all losses,damages,costs,expenses(including reasonable attorneys fees),statutory fines or
penalties,actions or claims for personal injury(including death),darnage to property,or other damage or financial loss of
whatever nature in any way arising from its activities undertaken pursuant to this Agreement (including, without
limitation,the installation,construction,operation or maintenance of LICENSEFs Fiber Optic Facilities),except to the
extent caused by the negligence or willful misconduct on the part of that Party or its agents,officers or employees.
9.3 Without limiting the foregoing,LICENSEE assumes all risk for,and agrees to relieve SUNESYS
of any and all liability for, loss or damage (and the consequences of loss or damage) to any property installed in
TE YS'Fiber System by LICENSEE and any other financial loss sustained by LICENSEE,whether caused by fire,
extended coverage perils,or other casualty,except to the extent caused by the negligence or willful misconduct on the
part of SUNESYS or SUNESYS'agents,officers or employees.
9A Without limiting the foregoing,SLINESYS assumes all risk for,and agrees to relieve-LICENSEE
of any and all liability for, loss or damage (and the consequences of loss or damage) to any property installed in
SUINESYSI Fiber System by SUNESYS and any other financial loss sustained by SLINESYS,whether caused by fire,
extended coverage perils.or other casualty,except to the extent caused by the negligence or willful misconduct on the
part of LICENSEE or LICE?' SEE's agents,officers or employees,
9.5 Each Party further shall indemnify and hold harmless the other Party, its officers, directors,
employees and agents, and its successors and assigns from and against any claims, liabilities, lages, fines,
penalties,and costs(including reasonable attorneys fees),whether foreseen or unforeseen,which the indemnified patties
suffier or in because of. (i) any Hazardous Discharge resulting from acts or omissions of the Parry or the Partys
predecessor in interest;(ii) acts or omissions of the Party, its agents or representatives in connection with any cleanup
required by law or(iii)failure of Party to comply with environmental.safety and health lam.
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9.6 Except for personal injury and property damage as provided above,in no event shall either party be
liable to the other party for any special,consequential or indirect damages(including by way of illustration,lost revenues
and lost profits)arising out of this Agreement or any obligation arising thereunder,whether in action for or arising out of
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breach of contract,tort or otherwise.
10. INTENTIONALLY OMITTED
11. COMPLIANCE WITH LAWS
Notwithstanding anything to the contrary in this Agreement, each Party shall ensure that any and all
activities it performs pursuant to this Agreement shall comply with all applicable laws. Without limiting the generality
of the foregoing, each Party shall comply with all applicable provisions of i) workmen's compensation laws, ii)
unemployment compensation laws, iii) the Federal Social Security Law, iv) the Fair Labor Standards Act, and v) all
laws, regulations,rules, guidelines, policies, orders, permits, and approvals of any governmental authority relating to
environmental matters and/or occupational safety.
12. DISCLAIMER OF WARRANTIES
EXCEPIT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SUNESYS MAKES NO
WARRANTIES REGARDING THE SERVICES OR DELIVERABLES, PROVIDED LWDER THIS AGREEMENT
AND MAKES NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
13. SUNESYS'SALES OR DISPOSITIONS
Nothing in this Agreement shall prevent or be construed to prevent SUNESYS from selling or otherwise
disposing of any portion of SUNESYS' Fiber System or other property of SUNESYS used for LICENSEF-s Fiber Optic
Facilities,provided,however,that in the event of a sale or other disposition,SUNESYS shall condition such sale or other
disposition subject to the rights of LICENSEE under this Agreement. SUNESYS shall promptly notify LICENSEE of
the proposed disposition of SUNESYS'Fiber System or other property used by LICENSEE-
14. LIENS
Each Party shall keep SUNESYS' Fiber System and other property of SUNESYS free from all mechanic's,
artisans,niaterialman's,architect's,or similar services'liens which arise in any way from or as a result of its activities and
cause any such liens which may arise to be discharged or released.
15. DEFAULT PROVISIONS AND REMEDIES
15.1 Each of the following shall be deerned an Event of Default by LICENSEE under this Agreement:
15.1.1 Failure of LICENSEE to pay the license fee or any other sum required to be paid under the
terns of this Agreement and such default continues for a period of fourteen (14) days after written notice thereof to
LICENSEE-;
15.1,2 Failure by LICENSEE to perform or observe any other terms, covenant, agreement or
condition of this Agreement on the part of LICENSEE to be performed and such default continues for a period of thirty
(30)days after written notice thereof from SUNESYS(provided that if such default cannot be cured within such thirty
(3 0)day period,this period will be extended if LICENSEE conmiences,to cure such default within such thirty(3 0)day
period and proceeds diligently thereafter to effect such cure);
15,13 The filing of a tax or mechanic's lien caused by LICENSEE against SUNESYS' Fiber
System or other property of SUNESYS which is not bonded or discharged wait on thirty(30)clays of the date LICENSEE
receives notice that such lien is filed;
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B.1.4 Ali event of LICENSEPs bankruptcy;
15.1.5 If LICENSEE knowingly uses LICENSEF's Fiber Optic Facilities in violation of any law or
in aid of any unlawful act or undertaking;
15,1.6 If LICENSEE occupies any portion of SUNESYS' Fiber System without having first been
issued a license therefore;or
15.1.7 If any authorization which lawfully may be required of the LICENSEE by any
governmental or private authority for the operation (including splicing or other activities by LICENSEE), of
LICENSEFs Fiber Optic Facilities within SUNESYS'Fiber System is denied or revoked.
15.2 Upon the occurrence of an Event of Default, SUNFSYS, without further notice to LICENSEE in
any instance(except where expressly provided for below or by applicable law)may do any one or more of the following:
15.2.1 Perfatin, on behalf and at the expense of LICENSEE,any obligation of LICENSEE under
this Agreement which LICENSEE has failed to perform and of which SUNESYS shall have given LICENSEE notice,
the cost of which performance by SUNESYS shall be payable by LICENSEE to SUNESYS upon demand;
15,2.2 Elect to terminate Agreement by giving notice of such election to Licensee;
15.2.3 Immediately disconnect and remove LICENSEE's Fiber Optic Facilities from St WESYS'
Fiber System..
15.2.4 Exercise any other legal or equitable right to remedy which it may have.
Any costs and expenses incurred by SUNESYS(including,without limitation, reasonable attorneys'fees) in enforcing
any of its rights or remedies under this Agreement shall be repaid to SUNESYS by LICENSEE upon demand.
15.3 All lights and remedies of SUNESYS set forth in this Agreement shall be cumulative,and none shall
exclude any other right or remedy,now or hereafter allowed by or available under any statute,ordinance,rule of court,or
the common law,either at law or in equity,or both.
15.4 The following events Or Occurrences shall constitute a default by SLJNIESYS under this Agreement:
15.4,1 Any material noncompliance by SUNESYS with the terms of this agreement--
15A.2 Any material breach by SUN ESYS of a representation or warranty under this Agreement;
15.4.3 An event of SL,NIESY S'bankruptcy;
LICENSEE shall give prompt written notice to SUNESYS of the occurrence of any default under this
Agreement. If such default continues for seven(7)days after receipt of such notice(provided that if such default Cannot
be cured within such seven day period,this period will be extended if SUNESYS cont hues to cure such default within
such seven(7)day period and proceeds diligently thereafter to effect such cure),LICENSEE may at its option:
15.4.4 Perform,on behalf and at the expense of SUNESYS, any obligation of SUNESYS under
this Agreement which SUNESYS has failed to perform and of which LICENSEE shall have given SUNESYS notice,
the cost ofurhich performance by LICENSEE shall be payable by SUNESYS to LICENSEE upon demand;
15,4.5 Elect to terminate Agreement by giving notice of such election to SUNIESYS;
15.4.6 Exercise any other legal or equitable right to remedy which it may have.
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15.5 Any costs and expenses incurred by LICENSEE(including,without limitation,reasonable attorneys'
fees)in enforcing any of its rights or remedies under this Agreement shall be repaid to LICENSEE by SUNESYS upon
demand.
15.6 All rights and remedies of LICENSEE set forth in this Agreement shall be cumulative,and none shall
exclude any other right or remedy,now or hereafter allowed by or available under any statute,ordinance,rule of court,or
the common law,either at law or in equity,or both,
16. DISPUTES RESOLUTION
If a dispute arises out of or relates to this Agreement or its breach and the dispute cannot be settled through
negotiation,the parties agree to submit the dispute to a sole mediator selected by the parties,or,at any time at the option
of a party,to mediation by the AAA.If not thus resolved,it will be referred to a sole arbitrator selected by the patties
within thirty(30)days after the mediation or in the absence of such selection to AAA arbitration which shall be governed
by the United States Arbitration Act and judgment on the award may be entered in any court having jurisdiction.The
arbitration shall determine issues of arbitrabiliql, but may not lituit, expand or otherwise modify the terms of this
Agreement. The parties, their representatives and other participants and the mediator and arbitrator shall hold the
existence, content and results of mediation and arbitration in confidence. Each party will bear its own attorneys' fees
associated with the mediation and arbitration and will pay all other costs and expenses of the mediation and arbitration as
the rules of the AAA provide, All such mediations and arbitrations shall be held in San Bernardino County,California.
17. FORCE MAJEURE
Except for payment of the license fee and other amounts,neither party shall have any liability for its delays
or its failure to performance due to: fire-,explosion,pest damage,power failures,strikes or labor disputes,acts of God,
the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw
materials,transportation facilities,lbel or energy shortages,or other causes beyond its control,whether or not similar to
the foregoing.
18. SUCCESSION,ASSIGNABILITY
18.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors or assigns.
18.2 LICENSEE shall not assign,transfer,or dispose this Agreement or any of its rights or obligations
hereunder without prior written consent of SUTNESYS, which shall not be unreasonably withheld; provided,however,
that LICENSEE may assign or transfer this Agreement to a controlling or controlled affiliate or to a successor in the
event of reorganization, including a merger or sale of substantially all of its assets,without the consent of SUNESYS.
An assignment transfer or disposition of this Agreement by LICENSEE shall not relieve LICENSEE of any of its
obligations under this Agreement, Notwithstanding the foregoing, LICENSEE shall not have the right to license to any
third party the right to use or the use of LICENSEE's Fiber Optic facilities as provided in and subject to this Agreement.
183 Subject to Section 13 hereof, SUNESYS shall have the rLitit to assign this Agreement and to assign
its rights and delegate its obligations and liabilities under this Agreement, either in whole or in part, to ally patty.
SUNESYS shall provide notice to LICENSEE as soon as possible of any assignment under this Section.
18A Neither this Agreement, nor any term or provision hereof, not- any inclusion by reference shall be
construed as being for the benefit of any person or entity not a signatory hereto.
19. NOTICES
Any demand,notice or other communication to be,given to a party at connection with this Agreement shall
be given in writing and shall be given by personal delivery by registered or certified mail,return receipt requested,by
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telecopy or commercial overnight delivery service addressed to the recipient as set forth as follows or to such other
address,individual or telecopy number as may be designated by notice given by the party to the other:
SUNESYS:
SUNESYS,LLC
185 Titus Avenue
Warrington,PA 18976
Attention: Senior Counsel
Telecopier Number:267,927.2099
Emergency Telephone Number:800.286.6664
LICENSEE:
Chief Information Officer
Department of Innovation and Technology
City of Redlands
35 Cajon Street
Redlands,CA 92373
Office-(909)335-4705
Any demand, notice or other communication given by personal delivery shall be conclusively deemed to have been
given on the day of actual delivery thereof and, if given by registered or certified mail return receipt requested on the
date of receipt thereof and,if given by telecopy,the day of transmittal thereof if given during the normal business hours
of the recipient and on the next business day if not given during normal business hours,
20. NON-WAIVER
No course of Heating, course of performance or failure of either patty strictly to enforce any term,right or
condition of this Agreement shall be construed as a waiver of any term,right or condition.
21. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be governed by the law of the
State of California without regard to its conflicts of laws and provisions,
22. HEADINGS
All headings contained in this Agreement are inserted for convenience only and are not intended to effect
the meaning or interpretation of this Agreement or any clause.
23. CONFIDENTIALITY AND PROPRIETARY INFORMATION
23.1 In connection with this Agreement, either party may furnish to the other certain information that is
marked or otherwise specifically identified as proprietary or confidential("Confidential Information"). This Confidential
Information may include,among other things private easements licenses,utility agreements,permits,other right-of-way
granting documents, specifications, designs, plans, drawings, data prototypes, and other technical and/or business
information. For purposes of this Section 23, the party that discloses confidential Information is referred to as the
"Disclosing Party",and the party that receives hiformation is referred to as the"Receiving Party".
23,2 When Confidential Information is furnished in tangible form, the Disclosing Party shall mark it as
proprietary or confidential. When confidential Information is provided orally,the disclosing Party shall,at the time of
disclosure or promptly thereafter,identify the Confidential Infonnation as being proprietary or confidential.
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233 With respect to Confidential Information disclosed tinder this Agreement,the Receiving Party and its
employees shall:
(a) hold the Confidential hiforniation in confidence,exercising a degree of care not less than the care
used by the Receiving Party to protect its own proprietary or confidential information that it does
not wish to disclose.
(b) restrict disclosure of the Confidential Information solely to those of its employees who have a
need to know in connection with the performance of this Agreement, and not disclose the
Confidential Information to any other person or entity without the prior Written consent of the
disclosing Party.
(C) advise those employees of their obligations with respect to the Confidential Information;and
(d) use, the Confidential Information only in connection with the performance of this Agreement,
except as the Disclosing Party may otherwise agree in writing.
23.4 Confidential Information shall be deemed the property of the Disclosing party. Upon written request
of the Disclosing Party,the Receiving Party shall return all Confidential Information received in tangible form,except
that each party's legal counsel may retain one copy in its files solely to provide a record of such Confidential Information
for archival purposes. If the Receiving Party loses or makes an unauthorized disclosure of Confidential Information it
shall notify the Disclosing Party and use reasonable efforts to retrieve the Confidential Information.
23.5 the Receiving Party shall have no obligation to preserve the proprietary nature of Confidential
Information which:
(a) was previously known to the Receiving Party free of any obligation to keep it confidential;or,
(b) is or becomes publicly available by means other than unauthorized disclosure;or
(c) is developed by or on behalf of the Receiving Party independently of any Confidential
information furnished under this Agreement-,or
(d) is received form a third party whose disclosure does not violate any confidentiality obligation,
23.6 If the Receiving Party is required to disclose the Disclosing Party's Confidential Infunriation by an
order or a lawful process of a court or govermilental body,the Receiving Party shall promptly notify the disclosing Part),,
and shall cooperate with the Disclosing Party in seeking reasonable protective arrangements before the Confidential
Information is produced.
23.7 Each party agree that the Disclosing Party would be irreparably minted by a breach of this Section 23
by the Receiving Part),or its representatives and that the Disclosing Party may be entitled to equitable relief including
injunctive relief and specified performance, in the event of any breach of the provisions of this Section 1-3, Such
remedies shall not be deemed to be the exclusive remedies for a breach of this Section 23.but shall be in addition to all
other remedies available at law or in equity.
Page 10 of 17
osunesys
o, Fibei. aster.
24, REQUIRED RIGHTS
24.1 SUNESYS covenants that it will, to the best of its knowledge, have obtained by the time the
LICENSEE's Fiber Optic Facilities are made available to LICENSEE(and will use commercially reasonable efforts to
cause to remain in effect during the term of this Agreement) easement, ]cases, licenses, fee interests, rights of-way,
permits,authorizations and other rights necessary and requisite to enable SUNESYS to grant the License to LICENSEE
("Required Rights"). Subject to the foregoing obligations of SUNESYS,LICENSEE is accepting the License on an"AS
IS, W14ERE IS"basis and receiving its interests in LICENSEE's Fiber Optic Facilities only to the extent such interests
are field by SUNESYS. SUNESYS will provide evidence of such Required Rights upon request.
24.2 If SUNESYS fails to obtain andlor cause to remain effective throughout the term of this Agreement all
Required Rights for the route,either party may terminate this Agreement upon written notice. In event of termination,
any periodic license andior maintenance fee shall abate from the date of termination and any previously paid
maintenance. fee and/or license fee attributable for any period beyond such date shall be returned to LICENSEE.
SUNESYS'failure to obtain or cause to remain effective Required Rights does not constitute a breach of any warranty,
representation or covenant of SUNESYS.
25. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that: (i)it has full right and authority to enter into,execute,deliver and
perform its obligations under this Agreement; (ii) this Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and
general equitable principle-,; and (iii) its execution of and performance Linder this Agreement shall not violate any
applicable existing regulations,rules,statutes or court orders of any local,state or federal government agency,court,or
body.
26. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all prior oral or written understandings
between the patties and constitute the entire agreement between them concerning the subject matter of this Agreement.
There are no understandings or representations, express or implied, not expressly set forth in this Agreement. This
Agreement shall not be modified or amended except by a writing signed by the party to,be charged.
[Signatures appear on the following page.]
Page I I of 17
sunesys
11 Fiber.Faster. 11
fN)A'ITNFSS VTIMREOF,the paities have caused this agreement to be signed by their duly authorized representatives.
SLINESYS,LLC LICENSEE
1
By: Ey. J�
Marne: ALUM Name:fete Aguilar
Title: V, ' Title: Mayor,City of Redlands
Dater Date:
ATTEST:
t
SamIrwin,City Cle ---
Page 12 of 17
sunesys
Fibeffaster.
SCIIE DULE A
FORM OF ADDEND
Licensee:
Type of Service:
Order Date-
This Service Order is entered into pursuant to that certain Master Fiber Lease Agreement setting forth the terms and
conditions governing the lease of Licensee's Fiber Optic Facilities by Sunesys to Licensee dated
?t11—A(the"Agree-ment!). Capitalized terms used but not otherwise defined herein shall have the meanings set forth
in the g=ment.
I. Description of Licensee's Fiber Optic Facilities: strands of fiber meeting the specifications set
forth in Schedule A-I attached hereto and terminating at tbe—following Connecting Points:
A-LOC Z-LOC
Site Name: Site Name:
§t—reet Address: Street Address,
Suite/Floor: CLU Code. Suite/Floor: CLLI Code:
Local Site Contact: Local Site Contact:
NPA"NXX--'-- JPA/NX
Licensee Cross-connectin to(GFA N* Licensee Cross-conn ectin to CF
Hand-Off fihimr,rnq-- ALand-Of t i e e. ..fiber. coaxARA" ('nt
I Preliminary Route Maps and Details[including number of Licensee's Fibets and total number of Fibers
along each Route,in sufficient detail and clarity to allow calculation of Pro-Rata Share]:
I
Schedule of Estimated Completion Dares:
4, Lease Fee;Payment Terms:
C.
NRC:
Renewal Term Charges:
S. Term:
Tenn:
Renewal Term:
Other:
6. Early Termination Liability and Service Charges:
7. Additional Terms:
LICENSEE:
By,
Name:
Title:
Date:
Page 13 of 17
sunesys
Frite .
S � SYS,LLC
By:
Name:
Title: _.--
Dake:
Page 14 of 17
sunesys
FiberFaster.
EXMBIT A
FIBER ACCEPTANCE TESTINC
This document specifies the acceptance tests for dark fiber that will be performed by SUNESYS and the manner in
which such tests will be accomplished,LICENSEE.shall have the right to witness all tests.
Cable Test Procedures
Bi-directional attenuation measurenients of each fiber will be measured on an end-to-end basis from the demarcation
points.A calibrated optical power meter and stable light source will be used for this measurement.Tests will be
performed at the 1310 am.and 1550 ram.wavelengths.
Bi-directional optical reflectivity of each fiber will be measured using air Optical Time Domain Reflectometer
(OTDR). Measurements will be accomplished from both ends of the fiber system. The.OTDR traces will be
recorded at 1310 too.and 1550 nor. wavelengths.
Enol-To-End Attenuation Acceptance Criteria:
Design Criteria
SUNIESYS will endeavor to keep the number of splices in a span to a minimum. All splices shall be fusion
splices. Fiber connectivity at fiber termination locations will be accomplished by the use of a
connectorized patch cord.
Splice Loss
The average bi-directional splice loss for each span shall not exceed 0,1 db. The maximum individual bi-
directional splice loss shall not exceed 0.20 dB. Individual splice losses that do not meet a 0.20 dB loss
will be reviewed by LICENSEE, LICENSEE may accept individual splice losses greater than 0.20 dB at
its sole discretion
Maximum acceptable end-to-end attenuation for each span shall not be greater than(A X L)+(O.I X N)+C
where:
A=Max,attenuation at 1310 run.and 1550 urn,as specified Fiber Technical Specifications.
L=Installed length of the fiber in kilometers(km).
N=Number of fiber splices in the fiber.
C=Connector/pigtail loss. The attenuation contribution of each pigtail with associated connector
is considered to be O.6 dB,comprised of 0,5 cib connector loss and 0.1 dB splice loss(pigtail to OSP cable
splice).
Therefore,C=0.6 dB if the fiber is connectorized on one end and 1,2 db if the fiber is connectorized on
both ends.
Page 15 of 17
0 sunesys
w 11 Fibeffaster, 11
In the event that the measured fiber attenuation degrades by 2 dB or greater after the fiber acceptance tests
are performed,SUNS YS will perform corrective maintenance pursuant to the Agreement to attempt to
restore the fiber to its original tested attenuation values.
Results and Documentation
Attenuation test results will be provided on standardized test fora-is showing the test results of each fiber strand at
each wavelength tested. Reflectometry test results will be provided in the form of an OTDR trace for each fiber
strand at each wavelength tested.All documentation shall be supplied to LICENSEE on 3.5 inch disks and will be
forwarded to LICENSEE within 14 days of completion of the fiber testing.
Page 16 of 17
sunesys
FiberFaster.
EXHIBIT B
FIBER TECHNICAL SPECIFICATIONS
SUNESYS will typically meet the optical specifications as detailed below.
Optical Fiber Specifications-Singlenrode Fiber:
Operation Temperature -60 c to 85 c
Optical Properties 1300-1550 nm
Standard Attenuation 0.400 dB/kin @ 1310 nm
0.300 dB/km Ca.) 1550 nin
Attenuation Uniformity 0.1 dB/km @ 1310 @1550 nra
Mode Field Diameter 9.15 4:.85 Microns @1300 imi
lU± 1.0 Micron 0
, 1550 nor
Zero Dispersion Wavelength 1310 nm--r/- 10 tun
Maximum Dispersion <2.8 pshim-kin between 1285—1330 nm
18 ps/nm-km between 1510—1570 am
Polarization Mode Dispersion -0.25 ps/sqrt-kin
Macro Bending Loss 0.100 dB @, 1310 nm
0.050 dB @ 1550 nm
Tensile Testing Strength 100 kpsi w/1 second dwell time
Cladding Diameter 125±2 Microns
Concentricity Error I Micron
Cladding Ovality Ratio 2%
Buffer Coating Diameter 250± 15 Microns
Fiber Coating Color Code Bellcore Standard
Optical Connectors FC/SPC with greater than 45 dB back reflection
Page 17 of 17
Sunesys
SERVICE ORDER 2011-01
Customer: City of Redlands
Type of Service: Dark Fiber
Order Date:
This Service Order is entered into pursuant to that certain Master Fiber Lease Agreement setting forth the terms and
conditions governing the lease of Customer Fibers by Sunesys to Licensee dated October 18,2011 (the
"Agreement"}. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the
Agreement.
t. Description of Licensee Fiber Optic Facilities: Two(2)strands of single mode fiber meeting the
specifications set forth in Schedule A-I attached hereto and terminating at the following Connecting
Points:
A-LOC Z-LOC
Site Name:Redlands USD District Office Site Name:Citrus Valley High School
Street Address:20 West, Lugonia Avenue Street Address:800 West Pioneer Avenue
City/St/Zip: Redlands,CA 82373 City/SUZp Redlands,CA 92374
Note: Sunesys shall terminate in existing fiber patch panel Note:Sunesys shall terminate in existing fiber patch panel
located in the school MDF. located in the school MDF.
s '
7112
aatsu�t57a-oe9�
-
I
j� sunesys -
`� ' Fiber.Faster. (( LU_
Page 1 of 2
v
sunesys
2, Schedule of Estimated Completion Dates: 90 Days from executed service order
3. License Fee;Payment Terms:
During the period from the Acceptance Date for the Customer fibers provided tinder this Service Order
through June 30,2012(the"Initial Term"),the monthly license fee for the Customer Fibers shall be Zero($0.00)
Dollars. Commencing on July 1,2012 and continuing for 60 months through June 30,2017(the"Secondary
Terni"),LICENSEE shall pay to StJNESYS a monthly license fee in the amount of Four hundred Dollars($400.00)per
month,payable monthly,in advance,on the first day of each month of the Teen.
4. Term:
The term of the Agreement shall commence on the Effective Date of this Agreement and shall end upon
expiration of the Secondary Term, LICENSEE shall have the right to terminate this agreement at the end of the Initial
Term by providing SUNITSYS'with written notice of the same at least thirty(30)calendar days prior to the expiration of
Initial Term. LICENSEE shall have the right to terminate this agreement at any time during the Secondary Tenn by
giving one hundred-eighty(180)calendar days prior written notice to UNE YS.
LICENSEE:
City of Redlands
i
By: �
Name:Pete Aguilar
Title: Mayor.City ofRed_lands
Date:
ATT EST:
A
Sam Irwin,C Cie
SU ESYS,LLC.
By:
Name:Alan N.Katz
Title: Senior Vice I rresident
Date:
Page 2 of 2