«AMENDED AND RESTATED AGREEMENT NO. FO-62S-0S/201O OPTICAL FIBER LEASE AGREEMENT BETWEEN THE DEPARTMENT QF-WATER AND POWER OF LOS ANGELES AND LEVEL 3 ...»
AMENDED AND RESTATED
AGREEMENT NO. FO-62S-0S/201O
OPTICAL FIBER LEASE AGREEMENT
THE DEPARTMENT QF-WATER AND POWER OF LOS ANGELES
LEVEL 3 COMMUNICATIONS, LLC
This OPTICAL FIBER USE LEASE AGREEMENT (hereinafter referred to as the “Master Agreement11) dated for convenience as of, 2015, between the CITY OF LOS ANGELES, a California municipal corporation, acting by and through the DEPARTMENT OF WATER AND POWER (hereinafter referred to as the "LADWP" or “CITY OF LOS ANGELES") having its principal office at 111 North Hope Street, Los Angeles, California 90012, and Level 3 Communications LLC, (hereinafter referred to as "Level 3" or "CUSTOMER"), with Its principal office at 1025 Eldorado Boulevard, Broomfield, Colorado 80021, which are sometimes referred to individually as Tarty" and collectively as “Parties."
WHEREAS, the LADWP owns, maintains, operates, and controls an optical fiber cable system (hereinafter referred to as the “Cable System”) throughout the City of Los Angeles, State of California; • WHEREAS, a portion of the LADWP’s Cable System is not presently needed for LADWP purposes, and any grant of a lease or license will not interfere with its operations;.
WHEREAS, the'CUSTOMER has an interest in obtaining an indefeasible right of use in one or more segments of the LADWP’s Cable System for the provisioning of telecommunication services, including telephone, data and video services;
WHEREAS, the LADWP is willing to grant an indefeasible right of use to CUSTOMER and permit CUSTOMER’S use of certain other property owned and/or controlled by LADWP including, without limitation, innerduct, conduit, building entrance facilities, and associated appurtenances; and WHEREAS, in conjunction with this Master Agreement, the Parties shall enter into one or more Short Form Indefeasible Right of Use Lease Agreements that set forth the terms and provisions of each lease of optica! fiber strands at specific locations (hereinafter referred to collectively or separately as the “Short Form IRU Lease Agreement” or "IRU") and each Short Form IRU Lease Agreement shall be made a part of this Master Agreement and incorporated by reference herein, regardless of the date that each Short Form IRU Lease Agreement was executed.
NOW, THEREFORE, in consideration of all terms, conditions and obligations set forth in this Master Agreement and each related Short Form IRU Lease Agreement, the Parties mutually agree and covenant as follows:..
1.0 DEFINITIONS The following terms, whether used in the singular or the plural, when used in this Master
Agreement and initially capitalized, shall have the meaning specified below:
Acceptance Testing. Formal testing undertaken by LADWP to evaluate the successful operation and/or performance of the optical fiber transmission line or optical communication system which shall become a part of the CUSTOMER SYSTEM to be leased to CUSTOMER, in accordance with the operation requirements and test measurements identified in the applicable Short Form IRU Lease Agreement.
1.5 Agreement or "Master Agreement”. This Optical Fiber Use Lease Agreement.
1.6 Affiliates. Any person or entity, which directly or indirectly controls, is controlled by, or is under the common control of the applicable Party to this Master. Agreement.
1.7 Anticipated Completion Date. “Anticipated Completion Date” has the meaning ascribed in Section 5.2.
1.8 Associated Property. Any tangible and intangible property required for the operation and use of a Party’s optical fiber cable system.
1.9 CABLE SYSTEM. A communication system owned by LADWP which is comprised of optical fiber cables throughout its facilities, designated areas, associated property and interrelated connections and has the capability of transmitting sizeable amounts of information at optical speeds..
1.10 Chronic Failure. “Chronic Failure” has the meaning ascribed in Section 14.6.
1.11 Communications Transport Service or CTS. The provisioning of a fiber optic network system for transmitting and receiving digital signals and/or video streams of information.
1.12 CUSTOMER SYSTEM. Any and all optical fiber strands, Innerducts, conduits, building entrance facilities and associated appurtenances; collocation space, auxiliary power and standby generator capacity; and space on building tops, towers and other structures made available by LADWP to be leased to CUSTOMER under the terms of this Master Agreement, any applicable Short Form IRU Lease Agreement and associated rights to access such space and fiber strands at demarcation points as specified in each Short Form IRU Lease Agreement for the purpose of installing wireless communications antennas and Associated Property.
1.13 Dark Fiber. An unequipped fiber optic strand without any electrical or optical transmission equipment attached at either end of the strands.
1.14 Delivery. The particular strands and/or segment of fiber leased by CUSTOMER from LADWP.
1.15 Demarcation Point. The point at which the CABLE SYSTEM and/or CUSTOMER SYSTEM and any Associated Property under the LADWP’s ownership and control interface with the equipment and fiber cable system under the CUSTOMER’S ownership and control, whereupon each Party assumes full responsibility, on its respective side of such demarcation, for the installation, costs, maintenance, reliability and any liability arising from its ownership, control and operation of its individual fiber cable systems, connections, and equipment.
1.16 Disclosing Party. “Disclosing Party” has the meaning ascribed in Section 22.0.
1.17 Effective Date. “Effective Date” has the meaning ascribed in Section 2.1.
1.19 End User. “End user” is any individual, corporation, limited liability company, limited liability partnership, government agency or other entity that subscribes or receives (directly or indirectly) any intrastate or interstate services from CUSTOMER.
1-20 Expected Delivery Date. "Expected Delivery Date” is the date that LADWP expects to deliver the fiber optical strands identified within a particular Short Form IRU Lease Agreement.
1 -21 Expiration Date. "Expiration Date” has the' meaning ascribed in Section 2.1.
1 -22 Extended Anticipated Completion Date. “Extended Anticipated Completion Date” has the meaning ascribed in Section 5.2.
1.23 False Call Outs. “False Call Outs” has the meaning ascribed in Section 4.2.1.
1.25 Indemnitor. "Indemnitor” has the meaning ascribed in Section 20.0.
1.26 Indemnitee. “Indemnitee” has the meaning ascribed in Section 20.0.
1.27 Insurance Requirements for Construction. “Insurance Requirements” has the meaning ascribed in Section 19.0.
1.28 Notice of Default. Any written notice issued by LADWP to CUSTOMER which announces that CUSTOMER is in default pursuant to one or more subsections of Section 13.1.
1.29 Proprietary Information. “Proprietary Information” has the meaning ascribed in Section 22.0.
130 Recipient Party. “Recipient Party” has the meaning ascribed in Section 22.0.
1.31 Scheduled Maintenance. “Scheduled Maintenance” has the meaning ascribed in Section 4.2.3.
1.32 Short Form IRU Lease Agreement or IRU. Any applicable Short Form IRU Lease Agreement entered between LADWP and CUSTOMER which arise from and consequently are limited by the terms and conditions of this Master Agreement as stated herein.
1.33 Taxes. “Taxes” shall have the meaning ascribed in Section 3.1.
1.34 Term. “Term” shall have the meaning ascribed in Section 2.1.
1.35 Termination Settlement Charges. Any and all payments owed by CUSTOMER to LADWP in accordance with Exhibit B of each applicable Short Form IRU Lease Agreement for early termination of any said agreement, including those charges ascribed in Section 14.10.3.
2.1 Term of Master-Agreement. This Master Agreement became effective on August 3, 2010 (the “Effective Date”) and shall continue in effect for Twenty (20) years ("Term”), unless sooner terminated in accordance with the terms of this Master Agreement. The term of each related IRU and any renewal or extension terms thereof shall be set forth in the applicable IRU for each portion of the CUSTOMER SYSTEM, provided that, the term of any related IRU shall not exceed the term of this Master Agreement, as may be amended from time to time.
2.2. Limitations on Short Form IRU Lease Agreements. Each Short Form IRU Lease Agreement that is subject to this Master Agreement shall be numbered in consecutive order, and shall be subject to and limited by all of the terms and conditions of this Master Agreement.
In the event that the Parties execute one or more Short Form IRU Lease Agreements subsequent to the execution of this Master Agreement, the initial term or cumulative terms (including renewals) of each Short Form IRU Lease Agreement shall not exceed the Expiration Date of this Master Agreement, regardless of the date that any of the Short Form IRU Lease Agreements were entered into by the Parties.
3.0 TAXES AND ENCUMBRANCES
CUSTOMER shall pay, when due, all taxes, special assessments, and 3.1 government fees, including franchise, license and permit fees, of any kind whatsoever which may be levied or assessed upon CUSTOMER for conducting business as a telecommunications service provider within the City of Los Angeles and other California locations or as a result of CUSTOMER’S use of the CABLE SYSTEM and/or CUSTOMER SYSTEM during the term of this Master Agreement and any applicable Short Form IRU Lease Agreement (hereinafter collectively referred to as “Taxes”)..
CUSTOMER represents and warrants that CUSTOMER'S acts or omissions shall 3.2 not interfere with LADWP’s ownership and control of the CABLE SYSTEM and/or CUSTOMER SYSTEM, and said system will remain free and clear from all liens, including mechanic’s liens, and encumbrances resulting from CUSTOMER’S use of the CABLE SYSTEM and/or CUSTOMER SYSTEM during the term of this Master Agreement and any applicable Short Form IRU Lease Agreement.
The LADWP shall pay, when due, all taxes, licenses and state and/or federal 3.3 fees based upon the physical location of the CABLE SYSTEM and/or CUSTOMER SYSTEM and any construction in, on, across, along or through any public or private roads, highways or rights-of-way pertaining thereto, excluding any taxes, fees or costs expressly approved by CUSTOMER within any applicable Short Form IRU Lease Agreement.
In the event that any such Taxes are imposed on or assessed against 3.4 CUSTOMER for the sole reason of its use of or based on the physical location of the CABLE SYSTEM and/or CUSTOMER SYSTEM, CUSTOMER shall have the right to protest, by appropriate proceedings, the imposition or assessment of any such Taxes. In such event, CUSTOMER shall indemnify and hold LADWP harmless from any expense, legal action or cost, including reasonable attorney’s fees, resulting from the exercise of its rights under this Section 3.4, and CUSTOMER shall further adhere.to the provisions of Sections 7.2 and 7.3 herein..
4.0 MAINTENANCE/EMERGENCY REPAIRS AND ADDITIONAL REQUESTS FORSERVICE
4.2 Scope of Maintenance and Repairs. All maintenance and repair functions on the CABLE SYSTEM and/or CUSTOMER SYSTEM and all facilities, conduits, innerducts, poles, and equipment that pass through said system, shall be performed by LADWP or its contractors with reasonable notice to CUSTOMER. CUSTOMER shall provide, upon the request of LADWP, one or more of its employees or contractors to be present when LADWP undertakes any maintenance or repair of CABLE SYSTEM when LADWP accesses the CUSTOMER’S premises or the edge of LADWP’s demarcation.
4.2.1 Emergency Maintenance bv LADWP. The LADWP shall be financially and operationally responsible for all emergency maintenance and repair activities undertaken on the CABLE SYSTEM and/or CUSTOMER SYSTEM during the Term of this Master Agreement and any.applicable Short Form IRU Lease Agreement. "Emergency Maintenance” includes any failure, interruption, or impairment within the CABLE SYSTEM and/or CUSTOMER SYSTEM that CUSTOMER reports to LADWP of such occurrence. The LADWP shall respond to a CUSTOMER request for Emergency Maintenance within Four (4} hours after receiving such request or report. The LADWP shall use its best efforts to perform maintenance and repair to correct any failure, interruption in the CABLE SYSTEM and/or CUSTOMER SYSTEM upon the CUSTOMER’S compliance with the Trouble-Reporting Escalation Procedure, in accordance with Exhibit G of each applicable Short Form IRU Lease Agreement.
In the event that LADWP determines that the error, fault or out of tolerance condition reported by CUSTOMER was not caused by the CUSTOMER SYSTEM, CUSTOMER shall be charged for False Cal! Outs at the standard LADWP rates set forth in the related Short Form IRU Lease Agreements in effect at the time that services were performed.
"False Call Outs” is defined as a CUSTOMER request for LADWP to investigate and/or perform maintenance at a particular location or area which LADWP subsequently discovers to be unnecessary. The LADWP will charge a minimum of Three (3) hours for each request for Emergency Maintenance and/or False Call Outs.
4.2.2 Emergency Maintenance bv CUSTOMER. CUSTOMER, is prohibited frorp performing any Emergency Maintenance on the CABLE SYSTEM and/or CUSTOMER SYSTEM.
4.2.3 Scheduled Maintenance. The LADWP may periodically schedule and perform maintenance, at its sole discretion, on the CABLE SYSTEM and/or CUSTOMER SYSTEM to protect its reliability /"Scheduled Maintenance”).