HomeMy WebLinkAbout5.620 Original Contract
FIBER OPTIC WAN USE AGREEMENT
This Fiber Optic Wide Area Network or WAN Use Agreement ("Agreement") is made
this 2,,=1-1k- day of AUiiJ'~ ,2002, by and between NORTHLAND CABLE TELEVISION,
INC., a Washington c rporatlOn ("Northland") and the CITY OF PORT ANGELES, a
municipality governed under the laws of the State of Washington ("City").
Background
1. The United States Congress enacted the Telecommunications Act of 1996 to
promote competition and reduce regulation in order to secure lower prices and higher quality
services for American telecommunications consumers and to encourage the rapid deployment of
new telecommunications technologies.
2. The Washington State Legislature enacted Chapter 35.99 RCW to encourage the
use of City rights-of-way by telecommunications and cable television service providers and also
enacted RCW 35.21.703 to authorize cities to engage in economic development programs.
3. This agreement has been negotiated by the City of Port Angeles in order to secure
lower prices for and higher quality of telecommunications services, specifically in the form of
access to high speed fiber optic or broadband services, through the use of City rights-of-way, and
in order to promote economic development.
4. Northland is the cable television operator serving the City of Port Angeles,
Clallam County, Washington, and nearby areas. The City desires to acquire an exclusive right to
activate and use a certain portion of the dark fiber optic filaments (which have been or will be
constructed by Northland) to establish a fiber optic wide area network (the portion of such dark
fiber optic filaments set aside for the exclusive use of the City being the "Fiber Link") for use in
providing telecommunications services to public institutions and businesses but not to the
general public.
5. Northland's construction of the Fiber Link is part of an approximately $2,700,000
fiber optic and system upgrade project being constructed by Northland for its own commercial
purposes as part of its cable system.
6. The City is desirous of expediting I-Net Services for its own use as well as for
other public institutions and businesses in Port Angeles in advance of the scheduled deadline in
Cable Television Franchise Ordinance No. 3116 ("Franchise") of February 27, 2004, at which
time a dark fiber institutional network ("I-Net") for use by the City and service providers will be
completed by Northland.
7. The expedited I-Net services provided under this WAN Use Agreement will
provide the City with the exclusive right to activate and use a certain portion of the dark fiber
optic filaments, which includes use of two existing dark fiber optic filaments that are within
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Northland's cable sheath and partial use of the space within six nodes for electronic equipment to
activate the network.
8. The City is acquiring the WAN use rights under this Agreement at or below fair
market rates (approximately $19,000 per month for the Initial Term, which expires in April of
2004, or a not to exceed total amount of$336,000).
9. Contributing to the lower rate that the City is paying for the WAN use rights
under this Agreement is the fact that Northland's cable television business allows it to recover
the cost it is paying the City for the use of City rights of way pursuant to the Franchise.
10. The WAN use rights that the City is acquiring under this Agreement will be
followed by the acquisition of the right to use a more extensive institutional network during the
extended Franchise term, which network will be constructed by Northland as a condition of
Cable Television Franchise Ordinance No. 3116, for which Northland will receive additional
compensation (approximately $105,000) and an extended Franchise term.
11. The City has negotiated an Institutional Network Services Agreement with
Capacity Provisioning, Inc. (C.P.I.), which the City intends to enter into following the execution
of this WAN Use Agreement with Northland. Under the terms ofthe Institutional Network
Services Agreement, the City will assign its WAN Use rights to C.P.I., and C.P.I. will provide
Institutional Network Services consisting of wide area networking, broadband Internet access, voice over
Internet protocol, local area network and other broadband telecommunications services, and necessary
infrastructure and equipment, for non-commercial use by the City.
Agreements
Northland and the City hereby agree as follows:
1. Design and Construction ofthe Fiber Link.
1.1 Northland shall construct a node-to-node wide area network using dark
fiber optic transmission filaments to connect the nodes identified in Exhibits A and C. Northland
shall have no responsibility to construct any portion of the Fiber Link from the nodes to any
public institutions or businesses. Northland shall have no responsibility to activate any of the
dark fibers constituting the Fiber Link.
1.2 Design and Performance Characteristics. Design services for the Fiber
Link have been and shall be performed by Northland and by qualified engineers and other
professionals selected by Northland in its sole and absolute discretion. The specific design,
including but not limited to the specific dark fibers designated for the City's exclusive use, and
performance characteristics of the Fiber Link are set forth in Exhibits A and C. The drawings,
designs, blueprints and other documents annexed to this Agreement or otherwise provided or
furnished to the City in connection with the subject matter of this Agreement are copyrighted
materials containing proprietary and confidential material owned by Northland and shall not
become the property of nor be used or disclosed by the City or any person or entity employed by
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or affiliated with the City, whether or not the Fiber Link is completed, except with the prior
written consent of Northland, which consent may not be withheld when, but solely to the extent,
legally required to be disclosed pursuant to Chapter 42.17 RCW. Submission or distribution of
the drawings, designs, blueprints, specifications and other documents annexed to this Agreement
or otherwise furnished to the City in connection with the subject matter of this Agreement to
meet regulatory requirements or for other purposes necessary or convenient to the construction of
the Fiber Link shall not be construed as publication, disclosure or use in derogation of
Northland's common law copyright or other reserved rights.
1.3 Construction Activities. The construction of the Fiber Link and nodes
shall be performed by Northland and/or by qualified construction contractors and suppliers
selected by Northland in its sole and absolute discretion; provided, however, Northland shall
have no responsibility to perform or have performed any construction-related activities from the
nodes to buildings or within the buildings or any appurtenances thereto. The City shall be
responsible for all construction-related activities from the nodes to buildings and within the
buildings or any appurtenances thereto, including but not limited to the installation of any
conduit described in Exhibit A. Construction specifications not otherwise set forth in Exhibit A
shall be governed by the requirements set forth in either the latest edition of the National Electric
Safety Code or the local electrical regulations, whichever is more stringent.
1.4 Construction Permits and Other Authorizations. Commencing on the
mutual execution of this Agreement, Northland shall use its commercially reasonable efforts to
obtain all necessary permits, licenses or similar grants of authority to construct the Fiber Link
and nodes. Northland shall submit plans and specifications on or before the effective date of this
Agreement for City approval in accordance with Cable Television Franchise Ordinance No. 3116
("Franchise"). The City shall cooperate and use its commercially reasonable efforts to assist
Northland in filing the appropriate documentation required to obtain any permits, licenses or
similar grants of authority needed to construct the Fiber Link and nodes.
- --- --1.5 - Completion of Construction. - - Northland shall use its commercially
reasonable efforts to complete the construction of the Fiber Link and nodes on or before October
21, 2002, after obtaining all necessary permits, licenses or similar grants of authority to construct
the Fiber Link and nodes. The City shall promptly conduct a final inspection to verifY
completion of construction.
1.6 Testing and Acceptance of Completed Fiber Link and Nodes. Upon
Northland's completion of the construction of the Fiber Link and nodes, within seven (7) days
Northland shall in accordance with the testing procedures set forth in Exhibit B, test or have
tested the Fiber Link and nodes to demonstrate that the Fiber Link performs in accordance with
the specifications set forth in Exhibit B or as otherwise agreed by the parties. Upon City
verification of completion of construction and testing by Northland, the City will issue formal
written acceptance of the Fiber Link and nodes, which acceptance shall not be unreasonably
withheld or delayed, and make payment in accordance with Subsection 3.1 (2).
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1.7 City Exercise of Institutional Network Fiber Option. In accordance with
Subsection 8.1.2.(1) of the Franchise, the City exercises its option to include a minimum of 24
single-mode fibers in the institutional network backbone.
1.8 Use of Fiber. The City or its assigned entity may use the Fiber Link and
nodes for non-commercial and commercial purposes other than Cable Services as defined by the
Franchise provided that any commercial use shall be limited to businesses and shall not be
available to the general public.
1.9 Obligations under Franchise. By entering into this Agreement, Northland
will not fully satisfy Section 4.2 - Term and Section 8 - Institutional Network of the Franchise
and will not obtain a Franchise term of fifteen (15) years until such Franchise requirements are
fully satisfied.
1.10 Node Quantity and Locations. The Node enclosure quantities and
locations specified under this Agreement have been agreed by the parties to be acceptable
substitutes to the Node enclosure quantities and locations specified in Section 8 and Exhibits B
and C of the Franchise.
1.11 Node Space. The City has a right to use space within each node enclosure
equivalent to a maximum of fifty one (51) rack-units through May 31,2017 at no additional or
continuing cost to the City.
1.12 I-Net Cost. The manner in which the City pays Northland to construct and
interconnect the Fiber Link and nodes under Section 3.1(1-2) of this Agreement has been agreed
upon by the parties to be an acceptable substitute to Subsection 8.11.2(1-2) - I-Net Cost of the
Franchise.
2. Grant of License. Northland hereby grants the City an exclusive, assignable
license to use the Fiber Link and nodes, as identified in Exhibits A and C, during the Initial Term
and the Extended Term, if any, of this Agreement. Nothing herein shall be deemed or construed
to prevent Northland from entering into similar agreements with other parties with respect to the
use of fiber optic filaments and nodes or other distribution facilities that are not the subject of
this Agreement. The City may assign, or otherwise allow use of the License under this
Agreement to Capacity Provisioning, Inc. or to any other person or entity provided that such
person or entity agrees to be bound by the terms hereof and that no assignment or grant of any
rights to any third party by the City hereunder shall release the City from any of its duties or
obligations under this Agreement. In the event that the City assigns or otherwise allows use of
the License under this Agreement, the City's assigned entity may, if so designated by the City,
serve as a single point-of-contact to Northland for all activities relating to this Agreement.
3. Compensation. As partial consideration for Northland's performance and the
City's WAN use rights hereunder, the City shall make the following payments to Northland.
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3.1 Institutional Network Payment. As provided in Subsection 1.6, the City
shaH reimburse to Northland costs not to exceed $208,000.00 to construct and interconnect the
Fiber Link and nodes in exchange for the City's right of use under this Agreement and in
addition, the City will pay Northland a project management fee not to exceed $37,000.00 or 20%
of cost. The total payment of $245,000.00 shall be deducted from the City's cost of the
Institutional Network as specified in Subsection 8.11 of the Franchise. Furthermore, as added
incentive to accelerate the completion of this phase of the Institutional Network the City agrees
to pay Northland an additional project management fee of$55,000.00.
In addition, the City has established a contingency for expenses that are approved by the City in
an amount not to exceed ten percent (10%) of the total Fiber Link and node costs. Any payment
for contingent expenses shall be deducted from the City's cost of the Institutional Network as
specified in Subsection 8.11 of the Franchise.
The City's cost to construct and interconnect the Fiber Link and nodes shall be verified by the
City and payments shall be made by the City after the City approves Northland's plans and
specifications in accordance with Section 1.4 within fourteen (14) days of Grantee's request for
payment as follows:
(1) Payments including reimbursements of costs and pro rata project management fees upon
City receipt of Grantee's request for payment containing all appropriate and complete
inVOIces.
(2) Final payment representing payment of the $55,000 additional project management fee
following formal City acceptance of the "Initial Proof of Performance" described in
subsection 1.6 herein, upon City's receipt of Grantee's request for payment containing all
appropriate and complete invoices and City's receipt of acceptable proof that Northland
has paid all project costs for labor and supplies and all state taxes imposed pursuant to
Title 82 RCW.
In the event Northland fails to complete the Fiber Link and nodes as specified in Subsection 1.6,
Northland shall refund to the City all payments made to Northland by the City pursuant to this
Subsection 3.1.
3.2 Monthly Payments. Commencing with the acceptance of the Initial Proof
of Performance as set forth in Subsection 1.6 and Exhibit B herein, the City shall prepay to
Northland a prorated amount of one thousand four hundred dollars ($1,400.00) (equal to seven
hundred dollars and no cents ($700.00), for each terminated fiber, with a total of two (2) total
fibers to be provided), if any for the first month, and the full amount of one thousand four
hundred dollars (1,400.00) per month, through December 31, 2002. Commencing January 1,
2003 through December 31, 2003 the City shall pay to Northland the monthly sum of nineteen
hundred dollars ($1 ,900.00) (equal to nine hundred and fifty Dollars ($950.00) for each
terminated fiber, with a total of two (2) total fibers to be provided). Commencing January 1,
2004 through the last month of the Initial Term of this Agreement, the City shall pay to
Northland the monthly sum of two thousand four hundred dollars ($2,400.00) (equal to one
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thousand two hundred dollars ($1,200.00) for each terminated fiber, with a total of two (2) total
fibers to be provided).
Commencing with the commencement of the Extended Term (defined below), if any, and
continuing each month during the Extended Term, if any, the City shall pay to Northland the
monthly sum equal to the amount negotiated by the parties.
Except for the institutional network payment and the 2002 monthly payments, which shall be paid
by the City as specified in Subsection 3.1 and 3.2 respectively, the City shall pay to Northland the
above-stated amount, in advance, on or before the fifteenth (15th) day of each month during the
Initial Term and the Extended Term, if any, of this Agreement. The City shall mail or otherwise
deliver its monthly payments to Northland at the address specified in Section 26 or to such other
address as Northland may specifY in writing. Any amounts not paid as set forth above shall be
subject to a late payment charge of ten percent (10%) of the amount then owing. Charges for
electrical power consumption shall be in accordance with Section 12.
The City's payment of monthly payments shall be contingent on Northland's performance of its
obligations under this Agreement.
3.3 Excess Costs and Fees. The monthly payments described in Section 3.2
do not include any sales taxes, use taxes, rental taxes, gross receipt taxes, federal, state or local
regulatory assessment fees, federal, state or local excise taxes, or any other taxes, fees,
assessments, charges or levies which may be imposed by federal, state or local governments, or
agencies thereof, with respect to this Agreement or the subject matter thereof (collectively, the
"Taxes"). In the event that Northland, as a direct or indirect consequence of the exclusive use of
the Fiber Link granted to the City as contemplated by this Agreement, incurs (i) Taxes, or (ii) any
costs, fees or expenses associated with utility pole attachment or utility conduit use, which are in
excess of the charges paid by Northland prior to the date of this Agreement and which are
attributable to the Fiber Link or any services provided thereon, or, in the event that future
legislative and/or xegulatory proceedings affect Northland's obligations pursuant to this
Agreement, such costs will be passed on to the City and shall, in Northland's discretion, be added
to the monthly payment provided in Section 3.2 upon written notice to the City or shall be paid
by the City within 30 days of Northland's billing therefore. In accordance with the Franchise,
franchise fees shall not be imposed upon or collected from Northland by the City as a result or
consequence ofthis Agreement.
4. Term of Agreement. This Agreement shall commence as of the date first written
above and shall continue until April 27, 2004 (the "Initial Term"); provided, however, the City
may, on or before February 1, 2004 request an extension to this Agreement. Upon Northland's
approval of the City's extension request (the "Extended Term"), the parties will be bound to the
same terms and conditions as set forth herein (other than the pricing which may be negotiated by
the parties subject to the terms hereof).
Upon completion of the institutional network in accordance with the Franchise, on or before
February 27, 2004, Northland shall provide the City or to any other person or entity assigned by
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the City the first right of refusal to use two (2) of Northland's reserve fibers, which are not otherwise
subject to the City's or its assignee's exclusive use, pursuant to the Franchise and this Agreement, for
commercial purposes other than Cable Services. In the event that Northland fails to complete the
institutional network in accordance with the Franchise by February 27,2004, at the option of the
City or its assignee, which shall be provided to Northland in writing no later than February 27,
2004 and annually thereafter through May 31,2017, Northland shall continue to be bound to the
same terms and conditions as set forth herein at no additional or continuing cost to the City until
Northland has completed the institutional network in accordance with the Franchise.
To the extent the Fiber Link and Node infrastructure provided under this Agreement is still in use
and needed by the City beyond the date on which Northland has completed the institutional
network in accordance with the Franchise, continued use of the Fiber Link and Node
infrastructure under the same terms and conditions as set forth herein (subject to pricing which
shall be negotiated by the parties subject to the terms hereof) shall be allowed.
5. Representations and Warranties. The following representations, warranties and
covenants are material inducements for the parties to enter into this Agreement.
5. I The City and its assigned entity shall not use the Fiber Link in violation of
any applicable federal, state or local law, regulation, ordinance, franchise, or in violation of any
applicable court order. The City and its assigned entity shall not use the Fiber Link in violation
of the Franchise.
5.2. None of the facilities of the City or its users or anyone acting on its behalf
or pursuant to its authority shall interfere with the operational integrity of Northland's television
cable system.
5.3 Northland is a corporation in good standing and has the corporate power
and authority to enter into and perform this Agreement. Northland shall maintain the Fiber Link
and nodes, which shall be fully caQable of operation, beginning from the date the City formally
accepts the Fiber Link and nodes and continuing through the term of this Agreement.
5.4 The City is a Washington municipality and has the power and authority to
enter into and perform this Agreement.
5.5 The City or its assigned entity may use the Fiber Link and nodes for non-
commercial and commercial purposes other than Cable Services as defined by the Franchise.
5.6 Northland shall warrant the Fiber Link and nodes for a period of one year
following formal City acceptance and be responsible to promptly correct, at its own expense, all
defects and errors in materials and/or construction that may arise during the warranty period.
6. Indemnification.
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6.1 In addition to its indemnification obligations found elsewhere in this
Agreement, the City and its assigned entity, if any, shall jointly and severally, defend, indemnify,
protect and hold Northland and its officers, directors and employees harmless from and against any
and all claims, demands, actions, judgments, costs (including without limitation reasonable
attorneys' and experts' fees), losses, expenses and liabilities of every kind or nature whatsoever
which may arise in connection with or result, directly or indirectly, from (i) the City's or its
assignee's use of the Fiber Link, (ii) the management or conduct of the City's or its assignee's
activities, or (iii) any breach of or default in the terms, conditions, restrictions, representations,
warranties or covenants agreed to or made by the City contained in this Agreement.
6.2 Northland shall defend, indemnify, protect and hold the City, its successors,
assigns, officers, employees and elected officials harmless from and against any and all claims,
demands, actions, judgments, costs (including without limitation reasonable attorneys' and experts'
fees), losses, expenses and liabilities of every kind or nature whatsoever which may arise in
connection with or result, directly or indirectly, from (i) the construction of the Fiber Link and
nodes as provided in this Agreement or (ii) any breach of or default in the terms, conditions,
restrictions, representations, warranties or covenants agreed to or made by Northland contained in
this Agreement.
7. Node Access.
7.1 Northland shall provide to the City or its assigned entity access to the
nodes for the purpose of connecting site drops, testing and inspection. The City or its assigned
entity shall comply with Northland's node access policies and procedures.
7.2 The City or its assigned entity shall provide to Northland reasonable
access to any oftheir facilities for the purpose of testing, inspection and maintenance of the Fiber
Link.
8. Ownership of the F/O Filaments and Nodes; Taxes. Subject only to the rights
granted hereunder to the City, all of the fiber optic filaments and nodes in Northland's cable
system, including without limitation that portion that constitutes the Fiber Link, shall be owned
by Northland and shall not be merged or otherwise annexed to any real or personal property
connected thereto. The City or its assigned entity shall have no right to pledge, mortgage or
otherwise permit a security interest or lien to attach to the Fiber Link or any part of Northland's
cable television system. The City or its assigned entity shall indemnify, defend, and hold
Northland harmless from and against any and all claims, demands and costs (including
reasonable attorney fees) liabilities, causes of action or judgments arising out of or in any way
related to any security interest, lien, encumbrance or legal process against the Fiber Link arising
from any action or omission of the City or its assigned entity or asserted by any creditor of the
City, or otherwise arising out of the use granted to the City or its assigned entity. Each party shall
be responsible for all property taxes imposed on its property.
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9. Insurance. Northland and the City or its assignee agree that they will obtain and
maintain sufficient insurance coverage, or self-insurance, to adequately protect their respective
interest in the Fiber Link.
10. Early Termination ofthis Agreement.
10.1 Northland and the City or its assignee reserve the right to terminate this
Agreement at any time upon breach by the other party of a material term or condition of this
Agreement; provided that the non-breaching party has first given 60 days written notice
specifying in reasonable detail the alleged breach or failure of compliance and demanding the
cure of the breach. If said breach or failure to comply cannot reasonably be cured in 60 days, and
the breaching party shall proceed promptly to cure the same with due diligence, the time for
curing such failure to comply shall be extended for such period of time as may be reasonably
necessary to complete such cure.
10.2 Without limiting the foregoing, Northland may terminate this Agreement
at any time on 60 days prior written notice to the City or its assignee if any of the following
events have occurred:
10.2.1 Northland's pole attachment and/or conduit use rights are
terminated or expire and are not renewed, or become subject to conditions or restrictions such
that continuation of this Agreement or the City's or its assignee's continued use of the Fiber Link
and nodes as provided herein would be in violation of such conditions or restrictions.
10.2.2 Northland's franchise to provide cable television service or any
easements, rights-of-way or other similar authorizations are terminated or expire and are not
renewed, or become subject to conditions or restrictions such that continuation of this Agreement
or the City's or its assignee's continued use of the Fiber Link and nodes would be in violation of
such conditions or restrictions.
10.2.3 The City or its assigned entity uses the Fiber Link in violation of
Cable Television Ordinance No. 3116, any applicable federal, state or local law, statute,
regulation, ordinance, code or other legal requirement.
10.2.4 The City or its assigned entity uses the Fiber Link in violation of
any applicable final order of any court or regulatory authority of competent jurisdiction.
10.2.5 Nothing in Subsections 10.2.3 or 10.2.4 shall be deemed to prevent
the City from appealing the validity of any such legal requirement or order. If appeals procedures
permit, the City or its assignee shall have the right to seek a stay in the enforcement of the legal
requirement or order and to continue to use the Fiber Link during the appeals process.
10.3 Without limiting the foregoing, the City or its assignee may terminate this
Agreement after December 31, 2002 upon 60 days prior written notice to Northland if any of the
following events have occurred:
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10.3.1 The City or its assigned entity discontinues the use of the Fiber
Link and nodes.
10.3.2 The City's assigned entity discontinues performance of its
contractural obligations to the City.
10.4 In the event of termination of this Agreement in accordance with this
Section 10 after completion of construction in accordance with Subsection 1.5 or expiration of
this Agreement, the monthly fee specified at Subsection 3.2 shall terminate, but no portion of the
Institutional Network Payment or monthly payments specified at Section 3 shall be refunded
except as specified in Subsection 3.1.
11. Limitation ofLiabilitv; Disclaimer of Representations and Warranties.
11.1 NORTHLAND SHALL NOT BE RESPONSIBLE OR LIABLE IN
ANY WAY FOR THE CONTENT OF THE DATA OR FOR THE LOSS OF ANY DATA
CARRIED OR TRANSMITTED OVER THE FIBER LINK OR FROM ANY
INTERRUPTION OF SERVICE, INCLUDING BUT NOT LIMITED TO ANY
DOWNTIME OF THE CITY'S OR ITS ASSIGNED ENTITY'S OPERATIONS, NOR
SHALL NORTHLAND BE RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST
INCOME OR LOST COST SAVINGS) INCURRED BY THE CITY OR ITS ASSIGNED
ENTITY AS A RESULT OF ANY INTERRUPTION OF SERVICE OR BREACH OR
PARTIAL BREACH OF THIS AGREEMENT OR ARISING OUT OF ANY ACT OR
OMISSION BY NORTHLAND OR ITS AFFILIATES, SUCCESSORS AND ASSIGNS,
OR ITS OR THEIR EMPLOYEES, SERV ANTS AND/OR AGENTS OR OTHERWISE
ARISING UNDER THIS AGREEMENT. THE FOREGOING SHALL APPLY EVEN IF
NORTHLAND HAS BEEN ADVISED uOF- THE POSSIBILITY OF ANY SUCH
DAMAGES.
11.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, NORTHLAND
HEREBY DISCLAIMS ANY AND ALL REPRESENT A TIONS AND WARRANTIES,
EXPRESS OR IMPLIED.
12. Electrical Power. The City shall be solely responsible for paying all electrical
power consumption charges, if any, at each node location where the City or its assignee is the
only party that has active network equipment. The City shall also be responsible for paying all
electrical power consumption charges, if any, at each node location that is used by the City or its
assignee and/or other service providers. The City reserves the right to charge its assignee and/or
other service providers, on a pro rata basis to be determined by the City, for electrical power
consumption at each node location that has active network equipment in use by its assignee
and/or other service providers. Northland shall provide the City a copy of each fiber optic wide
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area network use agreements it executes with other parties that will have active network
equipment within a node enclosure provided under this Agreement.
13. Maintenance and Repair of the Fiber Link. Subject only to Force Majeure Events,
Northland will perform maintenance and repair of the Fiber Link in accordance with the
standards set forth in Exhibit A, or as otherwise mutually agreed in writing, throughout the Initial
Term and the Extended Term, if any, of this Agreement; provided, however, the City shall
promptly remit payment to Northland, within 30 days of Northland's billing therefore, at
Northland's then-existing applicable rates for materials (including, among other things, fiber and
fiber splices) and labor (including any applicable overtime), for maintenance or repair resulting
from the City's, its assigned entity's, its employees', and agents' negligence or intentional
misconduct or repair resulting from any Catastrophic Break. As used herein, a "Catastrophic
Break" shall be any cut in the Fiber Link, however caused or severe, resulting in a disruption of
service within the Fiber Link. The City shall provide written notice to Northland of any
operational problems with the Fiber Link and will cooperate with Northland to effect any needed
repaIrs.
14. Force Majeure. No party to this Agreement shall be considered in default in the
performance of any of its obligations hereunder to the extent that the performance of such
obligations, except the payment of money, is prevented or delayed by any cause beyond the
reasonable control of the affected party, including, but not limited to, acts of God, acts ofa public
enemy, terrorists, war, riots, epidemics, earthquakes, fires, storms, hurricanes, blizzards, and
other inclement weather, washouts, sinkholes, civic disturbances, explosions, strikes, lockouts,
union jurisdictional disputes, inability to obtain or maintain permits or rights-of-way, inability
after reasonable effort in the exercise of due diligence to obtain parts or materials or equipment,
actions of utilities (not to be construed to include the parties), and any other cause (except
inability to make monetary payments or obtain financing) not within the reasonable control ofthe
parties (any such event being hereinafter refer~ed to a "Force Majeure Event"). Each party to this
Agreement shall give notice promptly to the other of the nature and extent of any event of Force
Majeure Event claimed to delay or prevent its performance under this Agreement.
15. Severability. The invalidity under applicable law of any provision of this Agreement
shall not affect the validity of any other provision of this Agreement, and in the event that any
provision hereof is determined to be invalid or otherwise illegal, this Agreement shall remain
effective and shall be construed in accordance with its terms as if the invalid or illegal provision
were not contained herein.
16. Waiver. No modification, amendment or waiver of or with respect to any provision of
this Agreement, nor consent by either party to the breach of or departure from any of the terms and
conditions hereof, shall in any event be effective or binding against such party unless it shall be in
writing and signed by such party, and then such waiver or consent shall be effective only in the
specific instance and for the particular purpose for which given. Neither any failure nor delay by
either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise thereof preclude any future or further exercise thereof or the
exercise of any other right, power or privilege.
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17. Captions and Headings. The captions and headings are inserted in this Agreement
for convenience only and shall in no event be deemed to define, limit, or describe the scope or
intent of this Agreement, or of any provision hereof, nor in any way affect the interpretation of this
Agreement.
18. No Inference Against Author. No provision of this Agreement shall be interpreted
against any party because such party or its legal representative drafted such provision.
19. Legal Expenses. If any proceeding is brought by either party to enforce or interpret
any term or provision of this Agreement, the substantially prevailing party in such proceeding shall
be entitled to recover, in addition to all other relief as set forth in this Agreement, such party's
reasonable attorneys' and experts' fees and expenses.
20. Exhibits. Each of the Exhibits listed below shall be incorporated into and shall for
all purposes be deemed a part of this Agreement:
Exhibit A
Exhibit B
Exhibit C
-- Design and Performance Characteristics
-- Testing Procedure
-- Node Location Map
Any of such Exhibits may be later amended or revised by the mutual consent of the parties and such
Exhibit, as so amended or revised, shall be incorporated into and shall for all purposes be deemed a
part of this Agreement.
21. Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one instrument.
22. Survival of Representations and Obligations. Sections 3.1, 6, and 11 shall survive
termination or_ expiration of this Agreement, together__ with__any accrued but unpaid payment
obligations which arose prior to such termination or expiration.
23. Further Assurances. At any time and from time to time, upon the request of one
party, the other party shall execute, deliver and acknowledge or cause to be executed, delivered and
acknowledged, such further agreements, documents, and instruments and to do such other acts and
things as the requesting party may reasonably request in order to fully effect the intent of this
Agreement.
24. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior or contemporaneous
written or oral agreements and representations between the parties with respect thereto.
25. Relationship of the Parties. Nothing herein shall be deemed or construed to create
or constitute a partnership, joint venture or agency relationship between the parties, and neither
Page 12
party is authorized to hold itself out or to act toward third parties or the public in any manner that
would indicate the existence of any such relationship with the other.
26. Assignment. This Agreement, license, and the rights and obligations of the City
hereunder may be assigned to Capacity Provisioning, Inc. or to any other person or entity provided,
however, that prior to any such assignment by the City, the City shall provide Northland with a
copy of the agreement, executed by the City and the potential assignee, whereby the potential
assignee agrees to assume all of the obligations of the City herein, as of the date of such
assignment. Northland shall have the right to assign and delegate this Agreement and its rights and
obligations hereunder, in whole or in part, from time to time for any purpose; provided, however,
that prior to any sale by Northland of the Fiber Link and nodes, Northland shall provide the City
with a copy of the agreement, executed by Northland and the potential buyer of the Fiber Link and
nodes, whereby Northland agrees to assign all of its rights herein and such potential buyer of the
Fiber Link and nodes agrees to assume all of the obligations herein, as of closing date of any such
sale.
27. Notices. All notices required to be in writing hereunder shall be deemed given
when personally delivered, or if mailed by certified or registered mail, three (3) days following
deposit in the United States mail, postage prepaid, or ifvia telecopy or facsimile, when received,
or if sent by courier service providing evidence of delivery, when actually delivered by such
service, and sent to the following:
with a copy to:
City of Port Angeles
P.O Box 1150
Port Angeles, W A
Glenn Cutler, P.E.
Phone: (360) 417-4800
Facsimile: (360) 417-4709
Northland Cable Television, Inc.
-1201 Third Avenue, Suite 3600
Seattle, W A 98101
Attention: Legal Department
Phone: (206) 621-1351
Facsimile: (206) 623-9015
Northland Cable Television
725 East First Street
Port Angeles, W A 98362
Attn.: System Manager
Phone: (360) 452-8466
Fax: (360) 457-5901
If to the City:
If to Northland:
Either party may change its designated address for notification by sending notice of such
change in the manner provided above.
Page 13
IN WITNESS WHEREOF, the authorized representatives of the parties have executed
this Agreement as of the date first set forth above.
THE CITY
NORTHLAND
CITY OF PORT ANGELES
~--'
Its /ll/fr c)/(.
NORTHLAND CABLE TELEVISION, INe.
By ~c1 J? c/a-k-
Richard 1. Clark, Executive Vice President ~
Page 14
EXHIBIT A
This is Exhibit A to that certain Fiber Optic WAN Use Agreement made on the _
day of , 2002 (the "Agreement"), by and between NORTHLAND CABLE
TELEVISION, INC., a Washington corporation (herein "Northland") and the CITY OF PORT
ANGELES, a municipality governed under the laws of the State of Washington (herein, the
"City").
Design and Performance Characteristics
I. Fiber Link Description - The Fiber Link will be designed and constructed as a wide area
network connecting nodes by the following number of dark fibers. Any changes to node
locations shall be mutually agreed upon in writing, and such changes shall satisfY the node
location provisions of the Franchise. The City shall grant right-of-way easements to
Northland to construct nodes on City property. Northland shall be responsible for obtaining
all other required easements, if any, to construct nodes on private property.
. Two (2) single mode dark fibers originating at the Clallam County Public Utility
District interconnection, to the Washington Street Substation node, identified in
Exhibit C;
. Two (2) single mode dark fibers originating at the Clallam County Public Utility
District splice case, to a splice case located at 3rd Street and Golf Course Road,
identified in Exhibit C;
. Two (2) single mode dark fibers originating at the Washington Street Substation
node, to the William Shore Memorial Pool node, identified in Exhibit C;
. Two (2) single mode dark fibers originating at the William Shore Memorial Pool
node, to the Valley Substation node, identified in Exhibit C;
. Two (2) single mode dark fibers originating at the Washington Street Substation
node, to the Laurel Substation node, identified in Exhibit C;
. Two (2) single mode dark fibers originating at the Laurel Substation node, to the Corp
Yard node, identified in Exhibit C;
. Two (2) single mode dark fibers originating at the Corp Yard node, to the 16th and I
Street node, identified in Exhibit C;
2. The demarcation points will be each node, unless an alternate demarcation point is mutually
agreed to in advance of construction. Unless a different connector type is agreed to in
advance, each fiber filament will terminate in a bulkhead cabinet using a SC/ APC type
connector.
3. Optical Fiber Description - The fiber optic filaments per manufacturer's specification will be
matched clad type with a typical field mode diameter of 8.8 - 9.6 flm at a wavelength of 1310
nm and 1O.5::l: 1.0 flm at a wavelength of1550 nm. The maximum attenuation of the fiber
cable will be 0.35 dB/km at 1310 nm and 0.25 dB/km at 1550 nm.
Page I 5
4. System Design - A design of the Fiber Link system will be provided to the City and its
assignee prior to construction. Included in the package will be proposed route drawings,
cable storage locations, splice point locations and fiber splice matrix. Additionally, for each
of the fiber paths calculated lengths fibers and path losses at 1310 and 1550 nm wavelengths
will be illustrated.
5. System Construction - The Fiber Link construction will follow good construction and
engineering practices as generally described in the Aerial Cable Placement and Buried and
Underground Cable Placement sections of the Society of Cable Telecommunications
Engineers (SCTE) "Recommended Practices for Optical Fiber Construction and Testing"
handbook.
Page I 6
EXHIBIT B
This is Exhibit B to that certain Fiber Optic WAN Use Agreement made on the _ day of
, 2002 (the "Agreement"), by and between NORTHLAND CABLE TELEVISION,
INC., a Washington corporation (herein "North]and") and the CITY OF PORT ANGELES, a
municipality governed under the laws of the State of Washington (herein, the "City").
Testing Procedure
Fiber Link Field Testing - Testing ofthe Fiber Link will be done in two phases during the Fiber
Link construction:
1. Pre-installation - All dark fiber filaments will be tested at the time of materia] delivery for
proper quality, quantity, and reliability, including but not limited to length, attenuation, and
discontinuities.
2. After Node Installation and Splicing (Fina] Acceptance) - All dark fiber filaments will be
tested after node installation and splicing for proper quality, quantity, and reliability,
including but not limited to total path length, end-to-end attenuation, discontinuities, and
splice loss.
Testing will be done using procedures described in Sections 10.1 through 10.4 of the 1996
edition of Society ofCab]e Te]ecommunications Engineers' ("SCTE") "Recommended Practices
for Optical Fiber Construction and Testing" handbook. A copy of the SCTE handbook is
available at North]and's local business office.
All test results will be documented for future reference.
Page 17
Exhibit C - Northland Fiber Upgrade Plan and Node Areas
Library Node
included in Cable
Television
Franchise
Ordinance No.
3116 relocated to
Laurel Substation
--.-.------~
-l"r ~.
-'I' tu ~
n"".!:
i:!:
'ii
\ '"
t ;;!-
Pump Station #7
I-Net Node
included in
Cable Television
Franchise
Ordinance No.
3116 relocated to
16th and I
Port of Port
Angeles Node
included in Cable
Television
Franchise
Ordinance No.
3116 relocated to
Valley Substation
City Hall Node
included in Cable
Television
Franchise
Ordinance No.
3116 relocated to
William Shore
Memorial Pool
PUD
interconnection
using splice case
EXHIBIT 6.2
I-NET SERVICES EXPEDITED SCHEDULE
SITE DROP CONSTRUCTION
Site plans for City approval and permItting due
CIty revisions or approval
If revisions required, date due
ReVIsions approved by City
Construction complete
I-NET NODE EQUIPMENT AND CUSTOMER PREMISES EQUIPMENT
Equipment installed
Network teshng
Services available
LAN SERVICES
LAN plans and specifications for City approval
City revIsions or approval
If revisions reqUIred, date due
Revisions approved by City
LAN installation complete
8/30/02
9/3/02
9/6/02
9/11/02
11/11/02
11/25/02
12/9/02
12/23/02
11/29/02
12/6/02
12/11/02
12/16/02
1/3/03
page 18
EXHIBIT 6.3
CITY SITE LOCATIONS AND SERVICE REQUIREMENTS
1. CITY SITE LOCATIONS AND SERVICE REQUIREMENTS
Service Requirement
City Municipal Facilities Data, Mbps
Site Description 5 100 1000
8 Node City Hall 321 E 5th Street 1
8 PA Police Department 1
8 Dispatch 911 1
166 Vern Burton Community Center 1
10 Fire Station 102 E 5th St 1
69 Senior Center 328 E 7th St 1
72 Carneqle Library 205 5 Lincoln St 1
73 Fine Arts Center 1203 E Laundsen 1
75 William Shore Pool 225 E 5th St 1
86 Parks Maintenance 16th St F St 1
87 Cemetery-Office 3127 W 18th St 1
55 Node Corp Yard 1703 5 B St 1
57 Wastewater Treatment Plant 1509 Columbia 1
56 Light Ops 240 W Front 1
54 Landfill 3501 W 18th 1
29 Pump Station #1 5th St & N St 1
30 Node Pump Station #7 W 19th St 1
31 Pump Station #10 1829.5 W 12thst 1
32 Pump Station #3 Manne & Hill 1
33 Pump Station #8 H St & 14th 1
34 Pump Station #4 313 Marine Dnve 1
35 Pump Station #2 1/2 Alley & Cherry 1
36 Pump Station #5 219 E 2nd St 1
37 Pump Station #9 Del Guzzi Dr. 1
38 Pump Station #6 933 Church St 1
2. CITY SITE LOCATIONS AND SERVICES COVERED BY THIS AGREEMENT
Service Requirement
City Municipal Facilities Data, Mbps
Site Description 5 100 1000
39 Peabody Substation 2803 5 Peabody 1
40 Race Substation 1
41 Albert Substation 1
42 Laurel Substation 11 0 E 14th St 1
43 Washington Substation 224 5 Washington St 1
44 College Substation 1306 E Park St 1
45 Valley Substation 206 5 Valley St 1
46 A Street Substation 1616 A St 1
47 F Street Substation 1604 5 F St 1
48 I Street Substation 1538 W 7th St 1
page 19
EXHIBIT 6.4
SERVICE LEVELS
1. Network Equipment
All network equipment shall be standards compliant, non-proprietary technology, able to support
standards based interface types such as Ethernet/IP, ATM, and SONET. The equipment shall be scalable to
meet future network expansion needs. The equipment shall be interoperable with other standards based
Ethernet networks, speCIfically that of the Clallam County PUD No.1 (District), and/ or Northland, and/ or
Qwest. The network shall be capable of enablrng cooperahve use by related networks
2. System Availability
CP.I. shall provide demand maintenance twenty-four hours a day, seven days a week and shall
maintain the sIte drops from the nodes to the points of demarcahon at all hmes. In emergency conditions,
such as a natural emergency resulting from a windstorm, C P.I. wIll perform emergency repair work on the
fiber and fIeld equipment. During an emergency, all fibers and field equipment at a given damage locahon
shall be repaired concurrently without preference to function. During normal operating conditions,
customer circuits will be up and operating satisfactorily at least 99.9%, as measured over each billing
period, not including scheduled maintenance time, provided, however, that this reqUIrement does not
apply to routine maintenance outages that are scheduled in advance by CP.I. and approved by the CIty
Durrng normal operation conditions, CP.I. shall respond to all outage reports within two hours and make
necessary repairs to the extent feasIble to restore service WIthin four hours of notification Monday through
Sunday, 6 a.m. to 10 p.m Under normal operating conditions, CP.I. shall respond to degradation reports
within twenty-four hours
3. Reliability
Recovery due to a logical network break in the I-Net backbone under a ring configuration should
not be greater than 12 microseconds under worst case conditions, with detection and rerouting typically
occurring in approximately 300 microseconds.
Recovery due to a physical network break or a node enclosure power, battery backup, heat or au
conditioning fmlure shall be coordinated with Northland, which IS required by Subsection 8.7.1 of its Cable
Television Franchise Ordinance No. 3116 to restore City I-Net breaks within four (4) hours of outage
notificahon. The City and/ or Northland shall maintain a spare battery backup, heat and air conditioning
unit in the event of a failure.
4. Network Security
CP.I. shall provide protection against denial of service attacks with wire-speed extended access
control lists, secure shell, secure copy, SImple network management protocol version 3, and authentication
with AAA, RADIUS or TACACS+. CP.I. shall provide a dynamic virtual local area network (VLAN) that
permits simplified network address administration with logical assignment of users to virtual commumties
based on port, protocol, or subnet that mrnimizes broadcast traffic and ensures network secunty. CP.I.
shall also provide private VLANs that allow increased I.P. addressing flexibility by portioning port-based
VLANs for secunty while sharing a common router port. The VLAN shall allow CP.I. to segment users
requiring access to sensitive irIformation into separate VLANs from the rest of the general user community
regardless of physIcal location. Upon written City request, CP.I. shall assist the City at a charge consistent
with Exhibit 6.5 Schedule 1.C to determine compatibility of any virtual private network (VPN) hardware
and software, including but not limIted to firewalls, Internet secunty deVIces, encryption equipment and
software, VPN servers, and VPN software, that may be provided by the City at the cost of the CIty.
page 20
5. Network Latency
The I-Net network latency will average no greater than 3 milliseconds between directly connected switches
at Layer 2 only, during standard operating condItions. Average end-to-end latency will not exceed 50
milliseconds during normal operating condItions
6. Packet Loss
Packet Loss across the I-Net backbone shall average 0 3% or less. If Packet Loss average across the
I-Net backbone exceeds 0.3% during a calendar month, C P.L shall immedIately take action to comply with
this requirement. This provision will take effect the first full calendar month after City's first use of the 1-
Net backbone.
7. Monitoring and Network Optimization
CP.L will periodically momtor and optimIze the I-Net backbone Monitoring shall be done
between the furthest nodes usrng software and hardware components capable of accurately measuring
traffic and responses at such nodes. The City acknowledges that such measurements may not measure the
exact path traversed by the CIty'S packets and that such measurements constitute measurements across the
I-Net backbone but not other networks to which the City may connect. CP.L shall provide the City with an
inibal baseline monitoring report upon completion of its network and annual reports thereafter upon
request by the City
8. Problem Reporting and Escalation Procedure
a. The City shall first troubleshoot network problems to determine that the problem is a CP.L
network problem pnor to contacting the C P.I Network Operations Center (NOC).
b. A work order (trouble ticket) wIll be created based on the trouble call, and the CP.L
troubleshoobng process and time clock will begin
c. CPoL wIll provide a problem reporting and escalabon procedure to the CIty and will
provide the City with progress and status information on trouble calls. The City should receive an Imtial
callback regarding the status of the problem within thirty (30) minutes of the initial trouble report
d. CP.L will attempt to resolve most problems within 1 hour of the problem report initially
being logged and a trouble ticket being generated. The NOC wIll notify the City regarding the status of the
reported problem and the estimated time to repair completion.
e If, after 1 additional hour, the problem has not been resolved (within the parameters of the
CPoL escalation procedure), the City may contact CP.L to escalate the problem priority. At this point,
CPoL will assess the situabon, escalate the trouble ticket's priority as necessary, and provide a best estimate
of time to complete the repair.
f. If a CPoL technician is required to visit a City site to repair or troubleshoot a problem, the
City may be charged for this service. There will be no charge if the problem necessitating the viSIt IS due to
a failure of CP L's equipment or network that was not the result of City activity or is caused by CP.L In all
other situabons, the City will be charged for repair or troubleshoot visits to City sites. The charge for thIS
service will be in accordance with Exhibit 6.5 Schedule loC, rncluding travel time, with a mrnimum 1 hour
charge. This charge will be added to the monthly invoice.
9. New Service
For sites already receiving CP.L service, CP.L will add new services reqUIring only a software
change within ten (10) days from the receipt of a written request for the additional service from the City
and CP.I engineering approval of the change. Services requiring hardware changes will be scheduled with
the City.
For locations not receiving CP.L service, CP.L will add service to a new site where minimal
facilities engineering and provisioning tasks are required within thirty (30) days from receipt of a written
page 21
request for the service from the City. When more than mimmal facilihes engineering and provisioning tasks
are required, the installation of service will be scheduled with the City.
10. Changes
All requests for additions or changes to City sites shall be m wnting. A connectivIty change request
form will be available from C P.I. and on-line at the CP.!. web site as well. The change request will be
evaluated to assess engineermg issues and to determme whether the change is a no-cost change or is an
addihonal cost item under this Agreement. If it is an additional cost item, it shall be approved in writing by
the City, and the cost will be added to the invoice to the City CP I. will provIsion new service within ten
(10) days of receIpt of a signed change request order and CP.!. engineering approval of the change.
11. I-Net Node Equipment Vendor Technical Support
CP.I shall obtain and maintain through the term of the Agreement, and any extensions thereof, the
support services of its I-Net node equipment vendor at a minimum level of 7x24 technical support
availability and 24 hour parts replacement response time.
page 22
EXHIBIT 6.5
SERVICE CHARGES
1. c.P.I. BASE CHARGESl
A. C P.1. base charge per Ethernet port per facility per month
including site drops during Initial Term for Exhibit 6.3 schedule 1
Ci sites
B CP.1. non-recurrin connection base char e
C C P I. Local Area Network serVICes char e
E Additional CP.1. base charge per month for broadband Internet
access (charges to be proVIded by October 15, 2002)
Wide Area Networking
(Within the Ci
Data Mb s = 100
$345.00
$600.00
$80.00 er hour
$
$
$
$
2. REGULAR COMMERCIAL SERVICE CHARGES WITHIN THE CITYl
A. CP.1. maXImum charge per Ethernet port per site location per
month includin standard overhead faciIi site dro
lUtility Taxes not included.
Wide Area Networking
Within the Ci
Data Mb s = 100
$220.00
$600.00
$
page 23
EXHIBIT 6.5
SERVICE CHARGES
3. WIDE AREA NETWORKING SERVICE ADDITIONAL CHARGESl
Wide Area Networking
(Within the City and Clallam
Coun servICe areas)
Data Mb s = 100
A. Addlhonal charge per Ethernet port per month, mcluding
standard overhead facilIty sIte drops charge within the Clallam
Coun service area char e to be rovided Januar 15,2003
B. AddItional charge per Ethernet port per month, excluding
standard overhead facility sIte drop charge wIthm Clallam County
serVIce area char e to be rovIded Janua 15,2003
$
$
lUtility Taxes not included.
page 24
EXHIBIT 6.6
INTERLOCAL AGREEMENT FOR ACQUISITION OF INSTITUTIONAL NETWORK SERVICES
Pursuant to Chapter 39 34 of the Revised Code of Washington and other provisions of the law,
, hereinafter called OTHER PARTY, and the CITY OF PORT ANGELES, a non-
charter code City of the State of Washington, hereinafter called CITY, hereby agree to cooperatively obtain
servIces accordrng to the following terms and conditions:
1. The City has negohated an institutional network services agreement with Capacity Provisioning,
Inc (VENDOR) for the purchase of telecommunications services, WhICh is attached hereto as
Exhibit A, and agrees to extend the privileges of said negotiation to the OTHER PARTY to the
extent permitted by law and agreed upon by the CITY, the OTHER PARTY, and the VENDOR.
2. This Agreement is limited to services under the City's inshtutional network services agreement
wIth the VENDOR.
3. The OTHER PARTY accepts responsibilIty for compliance with all laws and any additional or
varyrng laws and regulations governing its acquisition of serVIces. Acquisition of services by the
OTHER PARTY shall be effected by a purchase order directed to the VENDOR.
4. The CITY accepts no responsIbility for the performance of any purchasing contract by the
VENDOR and accepts no responsibility for payment of services by the OTHER PARTY to the
VENDOR.
5. Either the CITY or the OTHER PARTY may contract independently for the acquisition of serVIces,
with or without notice to each other.
6. This Agreement is for services necessary for the operation of the CITY and the OTHER PARTY.
7. This Agreement shall remain in force until canceled by the CITY or the OTHER PARTY, which
cancellation may be effected with or without notice to each other.
CITY OF PORT ANGELES, W A
,WA
Authorized Name
AuthOrIzed Name
Title
Title
Date
Date
page 25