HomeMy WebLinkAbout000560 Original Contract4
RIGHT -OF -WAY LICENSE RENEWAL NO. 2
This Agreement is entered into this day of i' 2013 between
the City of Port Angeles (hereinafter "City granting municipal consent to Capacity
Provisioning, Inc. (hereinafter "Grantee in the form of a right -of -way license for the
purpose of constructing, maintaining, operating and using a telecommunications facility
or a telecommunications system in public streets, alleys and rights -of -way in the City of
Port Angeles to provide private telecommunications services and telecommunications
services to public institutions and business end users within the City; providing for
general and administrative provisions; providing fees and compensation for the privileges
conferred under this right -of -way license; providing conditions; providing for
enforcement of right -of -way license provisions; and providing for written acceptance of
the terms of this right -of -way license.
WHEREAS, the City of Port Angeles, pursuant to federal law, state statutes, and
local ordinances, is authorized to consent to one or more non exclusive right -of -way
licenses to construct, operate, and maintain a telecommunications system in the public
rights -of -way within the municipal boundaries of the City as designated in Exhibit "A"
"City Area and
WHEREAS, the Grantee has entered into an Institutional Network Service
Agreement with the City, which is attached hereto as Exhibit `B and has requested
municipal consent from the City to construct, operate and maintain a telecommunications
system; and
WHEREAS, the telecommunications system includes facilities comprised of
conduit, lines, fiber, active or passive dark fiber, utility poles, and other
telecommunications facilities located in the right -of -way that are used to provide private
telecommunications services and telecommunications services for hire, sale or resale to
public institutions and business end users within the City; and
WHEREAS, the Grantee has requested municipal consent from the City to
construct, purchase, acquire, develop, finance, lease, license, handle, provide, add to, or
contract for additional facilities to reach and interconnect with the institutional network
nodes as provided by the Cable Communications Franchise No. 3116
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City of Port Angeles
Record #000560
1
IN CONSIDERATION of the above representations and the agreements set forth
herein, the parties hereby agree as follows:
Section 1 Definitions. The definitions of all words not defined herein shall be as
used in the Revised Code of Washington and the following Chapters of the Port Angeles
Municipal Code: Chapter 11.14 Telecommunications, Chapter 3.70 Revenues and Fees,
Chapter 5.04 Licensing, Chapter 5.80 Taxation, Chapter 11.08 Construction or
Excavation Work Within Rights -of -Way, Chapter 11.12 Right -of -Way Use, Chapter
13.14 Pole Attachments, and Chapter 17.52 Wireless Telecommunications Towers and
Facilities, which are incorporated herein for all purposes.
Section 2 Scone Of City Consent.
The City hereby consents to authorize the Grantee, a renewed term for a period of
five (5) years from and after the effective date of this Agreement (the "Term to
exercise the non exclusive right to construct, purchase, acquire, develop, finance, lease,
license, handle, provide, add to, contract for additional facilities, use, operate, own, and
maintain a telecommunication system in, on, under and over the public rights -of -way, to
reach and interconnect with institutional network nodes as provided by the Cable
Communications Franchise Ordinance No. 3116 and the I -Net Services Agreement,
subject to applicable law and specifically Chapter 11.14 PAMC, hereafter referred to as
the Telecommunications Ordinance.
Section 3 Authority Not Exclusive.
The consent conferred in Section 2 is not exclusive, pursuant to the
Telecommunications Ordinance. The Grantee shall respect the rights and property of the
City and other authorized users of the public rights -of -way.
Section 4 Fees And Compensation.
From and after the effective date of this Agreement and throughout the Term of
this Agreement, the Grantee shall pay the City all taxes, fees and compensation pursuant
to the Telecommunications Ordinance and the Institutional Network Services Agreement.
From and after the effective date of this Agreement and throughout the Term of this
Agreement, Grantee's telecommunications services gross revenues shall be subject to a
public utility tax in accordance with Chapter 5.80, Licensing and Taxation, PAMC.
Section 5 Occupation License Required.
From and after the effective date of this Agreement and throughout the Term of
this Agreement, the Grantee shall obtain an occupation license from the City pursuant to
Chapter 5.80, Licensing and Taxation, PAMC.
Section 6 Construction and Operation of the Telecommunication System.
In constructing and operating its telecommunication system, the Grantee shall
comply with all applicable requirements of the following Chapters of the Port Angeles
Municipal Code: Chapter 11.14 Telecommunications, Chapter 3.70 Revenues and Fees,
Chapter 5.04 Licensing, Chapter 5.80 Taxation, Chapter 11.08 Construction or
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Excavation Work Within Rights -of -Way, Chapter 11.12 Right -of -Way Use, Chapter
13.14 Pole Attachments, and Chapter 17.52 Wireless Telecommunication Towers and
Facilities. In addition, the Grantee shall comply with the following:
6.1 Permits Required. Grantee shall not construct, reconstruct, or relocate the
telecommunication system (or parts thereof) within the public rights -of -way or on
City property unless authority has been obtained in accordance with the
Telecommunications Ordinance or other applicable City approvals. Nothing
within this right -of -way license shall be construed to authorize the Grantee or a
lessee to make interconnections within the City or connections with end users
within the City not authorized by this Agreement. Nothing within this right -of-
way license shall be construed to authorize the Grantee or a lessee to provide
telecommunications services and/or cable television services for hire, sale or
resale to the general public within the City until Grantee or lessee has obtained a
master permit and/or a cable television franchise from the City and has registered
and received all requisite licenses, certificates and authorizations from the Federal
Communications Commission, the Washington Utilities and Transportation
Commission, or any other federal or state agency having jurisdiction.
6.2 Plan Review. Grantee shall not commence construction unless and until all
maps and other documents are provided to the City, in accordance with Chapter
11.14 Telecommunications, Chapter 5.04 Licensing, Chapter 5.80 Taxation,
Chapter 11.08 Construction or Excavation Work Within Rights -of -Way, Chapter
11.12 Right -of -Way Use, and Chapter 13.14 Pole Attachments.
6.3 Scheduling. The Grantee shall provide the City advance notice before
beginning construction or installation, pursuant to the Telecommunications
Ordinance.
6.4 Commencement of Construction. Construction of the facilities
contemplated by the September 9, 2002 right -of -way license was completed. Any
reconstruction, additional construction, and maintenance work shall comply with
this right -of -way license..
6.5 Construction Standards. Grantee shall comply with construction standards
in accordance with Section 11.14.040 of the Telecommunications Ordinance. In
addition, any employee, contractor, vendor or agent assigned to work on the
installation, maintenance, or repair of system equipment must be properly
licensed under the laws of the State of Washington and the City of Port Angeles.
6.6 Inspections. The Grantee shall permit the City to conduct inspections of
construction or installation to ensure compliance with the Telecommunications
Ordinance.
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•1,
6.7 Restoration of Property. At its own cost and expense, Grantee shall within
ten (10) calendar days restore property on public or private lands disturbed by
Grantee's activities, pursuant to the Telecommunications Ordinance.
6.8 Removal or Relocation of Facilities. The Grantee shall remove or relocate
facilities as required by the Telecommunications Ordinance.
6.9 Installations on City Property and Private Property. No cable line, wire,
amplifier, converter, utility pole, or other telecommunications facilities owned by
the Grantee shall be installed by the Grantee on any City property or private
property without first securing the written permission of the City or a grant of
authority as required under this Agreement or written permission of the property
owner and /or lawful occupant of any property involved.
6.10 City Use of Grantee's Facilities. In consideration of the rights and
privileges hereby granted, the City shall have, and Grantee hereby grants to the
City, the right and privilege to suspend and maintain wires and necessary control
boxes on poles placed by the Grantee in the streets, and other places aforesaid, or
if such wires are placed underground, to place and maintain in the pipes or
conduits of the Grantee, if space therein is available, wires which the City may
require for telecommunications, electrical, water, wastewater, fire, police, or
emergency services. All such wires must be placed on the poles or in conduits so
as not to interfere with communications service and shall not carry currents or
voltage dangerous to Grantee's plant or Grantee's users, and all installations,
maintenance and repairs shall be subject to the rules, regulations and supervision
of the Grantee. The City agrees in consideration of establishing this service and
furnishing such facilities, to hold Grantee harmless from all claims and/or liability
for damages, which may arise out of operating these wires and control boxes.
Further, where such facilities have been installed or maintained by the City and
not solely by Grantee, the City agrees to hold the Grantee harmless from all
liability for any claims or damages that may arise out of the negligent installation,
maintenance, use or operation by the City of these facilities.
6.11 Books and Records. The Grantee shall keep books and records as required
by the Telecommunications Ordinance and in accordance with generally accepted
accounting principles.
6.12 Underground Utilities. The Grantee shall subscribe to the One Call
Locator Service and comply with all regulations of Chapter 19.122 RCW for its
telecommunications system within the City.
6.13 Institutional Network Services Agreement. As condition of maintaining
municipal consent under this right -of -way license, the Grantee shall comply with
the Cable Communications Franchise No. 3116, and the Institutional Network
Services Agreement. The City shall have the right to terminate this right -of -way
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license if Grantee fails to comply with the Institutional Network Services
Agreement.
Section 7 Tree Trimming.
Upon ten (10) days' written notice provided to the Director, except in an
emergency of imminent danger to persons or property, the Grantee may trim trees or
other vegetation owned by the City or encroaching upon the public right -of -way to
prevent branches or leaves from touching or otherwise interfering with its wires. All
trimming or pruning within environmentally sensitive areas shall be subject to applicable
requirements of Chapter 15.20 PAMC Environmentally Sensitive Areas Protection. All
trimming or pruning shall be at the sole cost of the Grantee. The Grantee may contract
for said trimming or pruning services with any person approved by the City prior to the
rendering of said services.
Section 8 Renorts.
The Grantee shall make available to the City such information or reports, as
required by the Telecommunications Ordinance. The Grantee shall allow the City to
inspect any of the Grantee's facilities and equipment with sufficient notice as to not
disrupt the operations of the Grantee.
Section 9 Insurance.
The Grantee shall comply with Section 11.14.120(E) of the Telecommunication
Ordinance governing insurance and shall submit to the City a certificate of insurance that
demonstrates such compliance.
Section 10 Indemnity.
The Grantee hereby releases, covenants not to bring suit, and agrees to indemnify,
defend and hold harmless the City, its officers, employees, agents and representatives
from any and all claims, costs, judgments, awards or liability to any person, including
claims by the Grantee's own employees to which the Grantee might otherwise be immune
under Title 51 RCW, arising from injury or death of any person or damage to property, of
which the negligent acts or omissions of the Grantee, its agents, servants, officers or
employees in performing under this license, master permit, or lease are the proximate
cause.
The Grantee further releases, covenants not to bring suit, and agrees to indemnify,
defend, and hold harmless the City, its officers and employees from any and all claims,
costs, judgments, awards or liability to any person including claims by the Grantee's own
employees, including those claims to which the Grantee might otherwise have immunity
under Title 51 RCW, arising against the City solely by virtue of the City's ownership or
control of the rights -of -way or other public properties, by virtue of the Grantee's exercise
of the rights granted herein, or by virtue of the City's permitting the Grantee's use of the
City's rights -of -way or other public property, based upon the City's inspection or lack of
inspection of work performed by the Grantee, its agents and servants, officers or
employees in connection with work authorized on the City's property or property over
which the City has control, pursuant to this license, master permit, or lease or pursuant to
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any other permit or approval issued in connection with this license, master permit, or
lease.
This covenant of indemnification shall include, but not be limited by this
reference to, claims against the City arising as a result of the negligent acts or omissions
of the Grantee, its agents, servants, officers or employees in barricading, instituting
trench safety systems, or providing other adequate warnings of any excavation,
construction or work in any public right -of -way or other public place in performance of
work or services permitted under this license, master permit, or lease.
Section 11 Grantee Default And Remedies.
If Grantee fails to comply with or is in violation of this Agreement or the
Telecommunication Ordinance, Grantee will be subject to termination and remedies as
provided for in PAMC 11.14.120 and 11.14.130.
Section 12 Compliance With Laws: Severabilitv.
12.1 Notwithstanding any other provisions of this Agreement to the contrary,
the Grantee shall at all times comply with all applicable police powers and
regulations of the City and all administrative agencies thereof.
12.2 If any provision of this Agreement or any related ordinance is held by any
court or by any federal, state, or local agency of competent jurisdiction to be
invalid as conflicting with any federal, state or local law, rule or regulation now or
hereafter in effect, or is held by such court or agency to be modified in any way in
order to conform to the requirements of any such law, rule or regulation, said
provision shall be considered as a separate, distinct and independent part of this
Agreement, and such holding shall not affect the validity and enforceability of all
other provisions hereof or thereof. In the event that such law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed, so that the
provision hereof or thereof which had been held invalid or modified is no longer
in conflict with the law, rules and regulations then in effect, said provision shall
thereupon return to full force and effect and shall thereafter be binding on the
parties hereto, provided that the City shall give the Grantee sixty (60) days written
notice of such change before requiring compliance with said provision.
12.3 If the City determines that a material provision of this Agreement is
affected by such action of a court of the federal, state or local government, the
City and Grantee shall have the right to modify any of the provision hereof or in
such related ordinances to such reasonable extent as may be necessary to carry out
the full intent and purpose of this Agreement.
Section 13 Taxes. Permit And Other Fees.
Nothing contained in this Agreement shall be construed to exempt the Grantee
from any tax levy, permit fee or assessment, including but not limited to application,
inspection, pole attachment, excavation impact, or tree trimming fees, which are or may
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be hereafter lawfully imposed on all entities engaged in the same business as the Grantee,
or as are generally applicable in the City or State.
Section 14 Sale Or Transfer.
With respect to the sale or transfer of the Grantee's telecommunication system,
the Grantee shall comply with appropriate sections of the Telecommunications Ordinance
and the I -Net Services Agreement. The City shall have the right of first refusal to acquire
the telecommunications system owned by the Grantee, in the event of any transfer,
assignment or sale, at fair market value for a period of sixty (60) days following service
of notice to the City in accordance with this agreement.
Section 15 Service Of Notice.
15.1 All notices required or permitted to be given to either party by the other
party under any provisions of this Agreement shall be in writing and shall be deemed
served as follows:
(a) When delivered by hand or by Federal Express or similar service to that
party's address set forth below during normal hours; or
(b) When mailed to any other person designated by that party in writing
herein to receive such notice, via certified mail, return receipt requested.
15.2 Notice shall be given to the following:
(a) If to the City: Glenn Cutler, Public Works and Utilities Director
P.O. Box 1150, Port Angeles, WA 98362 -0217
(b) If to Grantee: Craig Johnson, Vice President
116 1/2 West 8th Street, Port Angeles, WA 98362
Section 16 Force Maieure.
Any delay, preemption, or other failure to perform caused by factor
beyond either party's reasonable control, such as an act of God, unauthorized labor
dispute, non delivery by non affiliated suppliers, war, riot, technical breakdown, or
government administrative or judicial order or regulation, shall not result in a default of
the Agreement. Each party shall exercise its reasonable efforts to cure any such delays
and cause thereof, and performance under the terms of this Agreement shall be excused
for the period of time during which such factor continues.
Section 17 Construction And Jurisdiction.
In the event of any conflict between this Agreement and the Telecommunications
Ordinance, the terms of the Telecommunications Ordinance shall prevail and control.
This Agreement is made and performed in Clallam County, Washington, and it
shall be construed in accordance with the laws in the State of Washington and the City of
Port Angeles. Any lawsuit under this Agreement shall be brought in Clallam County,
Washington.
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Section 18 Repeal of Prior Agreement.
Upon the effective date of this Agreement, the Right -Of -Way License Agreement
Amendment No. 1 entered into on August 21, 2007 is hereby repealed and is no longer in
force and effect.
Section 19 Execution.
This Agreement shall take effect upon execution by the following duly authorized
representatives of the parties.
City of Port Angeles:
N \PWKS LIGHT \POWM \I- NETICAPACITY PROVISIONING APPROVED\ AGREEMENTS \ROWLICNESERENEWAL2013 DOCs
By:
Glenn Cutler, Pubic Works Utilities Director
Attest:
Jannss4 Hurd, City Clerk
Approve s to form:
William Bloor, City Attorney
Digitally signed by Craig E
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G rantee: A DN cn {raigE Johnson, o,au,
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CITY OF PORT ANGELES
METROPOLITAN AREA NETWORK SERVICES AGREEMENT
Between
CITY OF PORT ANGELES, WA
and
CAPACITY PROVISIONING, INC.
Dated
March 5, 2010
PURPOSE
1. DEFINITIONS
METROPOLITAN AREA NETWORK SERVICES AGREEMENT
2. SPECIAL PROVISIONS
2.1 Agreement is Non Exclusive
2.2 Occupation License Required
2.3 Right -of -Way License Required
2.4 Agreement Term
2.5 Interlocal Agreement for Acquisition of Metropolitan Area Network Services
2.6 Institutional Network and Wide Area Network Use Agreement Assignments
2.7 Due Diligence
2.8 Surety Bond
2.9 Certification
2.10 Service Standards
2.11 On -Call Network Consulting Services
2.12 Background Checks
3. SERVICES AND SITE DROPS
3.1 City Service Sites
3.2 City Site Changes
3.3 Services Provided to the City
3.4 Network Service Level Requirements
3.5 Site Drop Ownership and Maintenance
3.6 City Site Drop Route Plans, Procedure and Schedule
3.7 Interlocal Agreement Site Drops
4. SERVICE CHARGES AND PAYMENT
4.1 Vendor Service Charges
4.2 City Public Utility Tax
4.3 City Pole Attachment Charge Credit
4.4 Invoicing and Payment
4.5 Public Safety VLAN
5. MISCELLANEOUS PROVISIONS
5.1 Notices
5.2 Non- Disclosure Agreement
5.3 Reports
5.4 Indemnification/Hold Harmless
5.5 Subcontractors /Assignment
5.6 Survival
5.7 Violations and Remedies
5.8 Termination
5.9 City Right to Purchase
5.10 Metropolitan Area Network Core Switching Equipment Lien
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5.11 Force Majeure
5.12 Severability
5.13 Entire Agreement
5.14 Law Jurisdiction Venue and Attorney's Fees
5.15 Amendments
6. EXHIBITS
1 Metropolitan Area Network Services Schedule
2 Network Service Level Requirements
3 Interlocal Agreement for Acquisition of Metropolitan Area Network Services
4 Non Disclosure Agreement
5 Vendor Technical Proposal and Service Charge Proposal
Page 3
PURPOSE
METROPOLITAN AREA NETWORK SERVICES AGREEMENT
THIS METROPOLITAN AREA NETWORK SERVICES AGREEMENT (the
"Agreement between the City of Port Angeles, a Washington municipal corporation, hereinafter
the "City and Capacity Provisioning, Inc., hereinafter "Vendor" sets forth the terms and
conditions for provision by Vendor of Metropolitan Area Network Services. Said services consist
of wide area networking, point to point fiber optic connections, broadband Internet access, on -call
network consulting services and other telecommunications services (all of which collectively are
referred to as "Metropolitan Area Network Services for non commercial use by the City for
municipal purposes in accordance with the terms, conditions and specifications set forth in this
Agreement.
1. DEFINITIONS
Words and terms shall be given their ordinary and usual meanings. The meanings shall be
applicable to the singular, plural, masculine, feminine and neuter of the words and terms.
Where used in this Agreement, the words and terms set forth in Section 11.14.020 of
Chapter 11.14 of the Port Angeles Municipal Code (PAMC), Telecommunications Facilities
within Rights -of -Way, and the Cable Television Franchise Ordinance No. 3116 shall be applicable
to the same terms as used in this Agreement, except as modified herein.
2. SPECIAL PROVISIONS
2.1 Agreement is Non Exclusive
This is a non exclusive Agreement for the purpose of providing metropolitan area network
services within the City, excluding cable television services, by utilizing the Institutional Network
consistent with the provisions of the Cable Television Franchise Ordinance No. 3116 and the
Vendor's facilities and site drops to City sites. Any other substantially similar Metropolitan Area
Network Services Agreement entered into by the City shall be on a competitively neutral basis in
accordance with the Telecommunications Act of 1996, taking into account without limitation
Vendor's obligations under this Agreement.
2.2 Occupation License Required
From and after the effective date of this Agreement and throughout the Tenn of this
Agreement, Vendor shall maintain an occupation license from the City pursuant to Chapter 5.80
PAMC, Licensing and Taxation. Vendor shall pay any federal, state, local and City taxes as may
be levied, imposed or due from carriers, operators, providers, their customers or subscribers, or on
account of the lease, sale, delivery or transmission of telecommunications services, provided said
amounts may be added to the charges the City is required to pay pursuant to this Agreement.
2.3 Right -of -Way License Required
Vendor shall maintain a Right -of -Way License from the City pursuant to Chapter 11.14
PAMC, Telecommunications Facilities within Rights -of -Way.
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Vendor shall not allow other wholesale or retail service providers to provide
telecommunications services under this Agreement until such service providers have received all
requisite licenses, certificates and authorizations from the City, Federal Communications
Commission, the Washington Utilities and Transportation Commission, or any other federal or
state agency having jurisdiction.
2.4 Agreement Term
Vendor shall begin its core network equipment upgrade upon execution of this Agreement
however the service charges set forth in the July 31, 2009 extension and amendment to
Institutional Network Services Agreement of September 6, 2002 shall remain in effect until
September 6, 2010. This Agreement shall commence upon execution and continue to September
6, 2017, subject to extension at the City's sole discretion. City in its sole discretion may no later
than 30 days prior to the expiration of this Agreement extend by giving written notice for
additional 1 year extensions up to two times, extending to an eighth year and again for a ninth year
under the same monetary terms.
2.5 Interlocal Agreement for Acquisition of Metropolitan Area Network Services
Vendor agrees to allow the City to enter into Interlocal Agreements (Exhibit 3) with other
governmental and public institutions, pursuant to Chapter 39.34 RCW, to extend the privileges,
terms and conditions of this Agreement made with Vendor shown in Schedule H of Exhibit 5 for
their sites not receiving similar Vendor services prior to the effective date of this Agreement.
2.6 Institutional Network and Wide Area Network Use Agreement Assignments
The City grants Vendor consent to use up to fifty -one (51) rack -units within each
Institutional Network node enclosure, environmental control systems within three Institutional
Network node enclosures and a spare environmental control system, and up to twenty -four (24)
dark fibers throughout the Institutional Network backbone that are not in operation for City
purposes, which are provided to the City under the Cable Television Franchise Ordinance No.
3116. The City retains the right to recall Vendor use of dark fibers, limited to a maximum of two
(2) dark fiber strands per year, rack -units and use of underground conduits, vaults and related
structures upon one year's written notice from the City Manager to the Vendor.
The City grants Vendor consent to use Wave Broadband underground ducts, conduits and
related structures in accordance with the second amendment to the Fiber Optic Wide Area
Network Use Agreement dated December 2, 2003 at no charge through May 31, 2017 to provide
non commercial and commercial telecommunications services.
City reserves the right to charge the Vendor and other teleconununications service
providers a pro rata share of the electrical power consumption charges at each institutional network
node location.
2.7 Due Diligence
On and after the effective date of this Agreement, Vendor shall provide the City a list of
any changes to the names, addresses, and social security numbers for Vendor personnel that will
be permitted to have unrestricted access to the network operating center or central office,
Institutional Network nodes, core switching equipment, and network operation and management
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software. Such Vendor personnel may be subject to a background check in accordance with
Section 2.12.
On or before May 31, 2010, Vendor shall submit evidence that:
(1) It has the financial resources to fulfill its obligations under this Agreement and shall
file contemporaneously with the execution of core switching equipment loan
agreements, if any, a Uniform Commercial Code U.C.C. -1 Financing Statement
with the Washington State Department of Licensing.
(2) It has obtained a surety bond, if required, in accordance with Section 2.8.
(3) It has provided the City evidence that it has entered into an agreement, including
technical support, with a core switching equipment manufacturer and that the
service levels described in Exhibit 2 will be met. Technical support shall also
include senior network engineering support services as a backup to Vendor staffing.
On or before December 31, 2010, Vendor shall submit evidence that:
(4) It has submitted the detailed implementation plan including: site drop construction
schedule, local area network plans and specifications, construction permit
application, and acceptance testing plan in accordance with Exhibit 1.
2.8 Surety Bond
If Vendor needs to obtain financing to fulfill its obligations under this Agreement, then
Vendor shall provide a surety bond with a surety company approved by the City, in an amount
equal to the cost of the core switching equipment and customer premises equipment at City sites
financed during the Initial Term of this Agreement.
The bond shall contain the following endorsement: "It is hereby understood and agreed that
this bond may not be canceled by the surety nor shall it exercise any intention not to renew until
thirty (30) days after receipt by the City, by certified mail, of written notice of such intention to
cancel or not to renew
The rights reserved to the City with respect to the bond are in addition to all other rights of
the City, whether reserved by this Agreement or authorized by law; and no action, proceeding or
exercise of a right with respect to such bond shall affect the City's rights to demand full and
faithful performance under this Agreement or limit Vendor's liability for damages.
2.9 Certification
Vendor certifies that the core switching equipment, customer premises equipment, and all
work and materials furnished under this Agreement shall comply with the Network Service Level
Requirements described in Exhibit 2 and accepted industry standards.
2.10 Service Standards
(1) Vendor shall interconnect the Vendor network to provide Internet access
within the City.
Vendor shall provide a redundant interconnection point, from an
Institutional Network node to an interconnection point to be specified by the
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City, to provide Internet access that provides a diverse physical route for
Internet access within the City.
Prior to interconnecting the Vendor network to another wide area network,
Vendor shall provide a detailed description of the network security to be
provided by such interconnection which shall be in accordance with Exhibit
2.
In the event a telecommunications service provider that has obtained a right
of way license or master permit from the City requests an interconnection to
the Vendor network for private telecommunications systems in writing,
Vendor shall make commercially reasonable and lawful non exclusive
arrangements for such an interconnection. The arrangement may include
but is not limited to available network capacity and commercially
reasonable terms and conditions for payment to Vendor of all recurring and
non recurring costs, network security, problem reporting and restoration of
service procedures, Network Service Level Requirements, and policies
related to VLAN and dark fiber service sharing among single and common
user group entities and private shared telecommunications services.
The minimum term for interconnection charges shall be consistent with the
Initial Teun of this Agreement, unless otherwise approved by Vendor.
Vendor shall not charge the City a non recurring or recurring service charge
for a network interconnection for a Public Safety VLAN or for Public Safety
dark fiber service. Vendor reserves the right to collect co- location, non-
recurring and recurring service charges for a network interconnection if such
charges are imposed by the interconnecting telecommunications service
provider.
(2) Vendor shall maintain arrangements with qualified service providers for
retail broadband Internet access services within the City limits. Vendor
charges to the City for retail broadband Internet access services shall be
included in Exhibit 5 Schedule "G Upon the request of a qualified retail
service provider, Vendor shall provide wholesale services subject to a
charge to be paid by the retailer and reasonable contractual restrictions by
the Vendor based on competitive market conditions.
Vendor shall be permitted to provide wholesale broadband Internet access.
Vendor shall also be permitted to charge a fee for wholesale Internet access,
and wholesale non commercial use of the Institutional Network backbone
fiber network and nodes, site drops, and all other appurtenant infrastructure.
Furthermore, Vendor shall be permitted to impose reasonable contractual
restrictions based on competitive market conditions to retail broadband
Internet service providers.
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Vendor shall use commercially reasonable efforts to ensure that the retail
broadband Internet access services provided over the Metropolitan Area
Network will conform substantially to the following:
A. The platform will be kept current with industry standards for
interoperability with Internet protocol applications.
B. The City and institutions that receive the service will be able to reach
the Internet.
The City hereby recognizes that Vendor may provide wholesale Internet
access and that qualified service providers may provide retail Internet access
services without ob aining other City approvals.
Upon request from public institutions to Vendor, subject to the availability
of dark fibers assigned to the Vendor in accordance with Section 2.6 within
the Institutional Network backbone from node to node, Vendor may provide
dark fiber marketing services on behalf of the City to public institutions to
use the Institutional Network backbone for non commercial purposes. Dark
fiber marketing services shall include operation, maintenance and
management of the Institutional Network backbone dark fibers and
marketing, billing, and all other functions necessary to provide dark fiber
marketing services under this Agreement.
Vendor use of the Institutional Network nodes and non commercial dark
fibers throughout the backbone shall be allowed for private
telecommunications systems and private shared telecommunications
services to a single user group entity in accordance with the Franchise and
for other purposes and common user groups if approved in writing by the
Vendor and the City Manager.
Vendor may establish commercially reasonable contractual conditions for
dark fiber marketing services which may include but are not limited to terms
and conditions for non-commercial use in accordance with the Franchise,
payment to Vendor of all recurring and non recurring costs, network
security, problem reporting and restoration of service procedures, Network
Service Level Requirements, and policies related to single and common user
group entities sharing or provided access to private telecommunications
systems and private shared telecommunications services.
The recurring and non recurring charges established by Vendor for dark
fiber marketing services shall be based on competitive market conditions.
The recurring service charge, City and Vendor sharing of the recurring
service charge, and duration of dark fiber marketing services shall be
mutually agreed to in writing by the Vendor and the City Manager. The
City shall not be charged for its use of Institutional Network backbone dark
fibers under this Agreement.
Page 8
The City retains the right to recall Vendor use of Institutional Network
backbone dark fibers, limited to a maximum of two (2) dark fiber strands
per year, upon one year's written notice from the City Manager to Vendor.
(4) Vendor may provide dark fiber site drop services from the Institutional
Network nodes or Vendor owned infrastructure to public institutions. The
recurring and non recurring service charges established by Vendor for dark
fiber site drops to public institutions shall be based on competitive market
conditions.
2.11 On Call Network Consulting Services
During the first year of the Initial Term of this Agreement, upon establishing a mutually
agreed upon schedule that is approved in writing by both parties, Vendor shall provide one
hundred (100) hours of on -call network consulting services at no charge for services requested by
the City. Vendor shall obtain written City approval of on -call network consulting services.
Upon written City request, Vendor shall provide additional on -call network consulting
services for a charge. On -call network consulting services shall be available twenty -four hours a
day, seven days a week. The charge for additional on -call network consulting services shall be in
accordance with Exhibit 5 Schedule I. Upon written City request, Vendor shall also provide Local
Area Network (LAN) materials, hardware, and installation services for municipal facilities. The
charges for LAN materials, hardware and installation services shall be mutually agreed upon prior
to commencing work.
2.12 Background Checks
Vendor personnel and any of Vendor's subcontractor personnel that are permitted to have
unrestricted access to the network operating center, central office, core switching equipment, and
network operation and management software during the term of this Agreement may be subject to
a background check, which shall be completed and approved by the City in its sole discretion and
which shall be considered confidential in accordance with Section 5.2. The information that may
be included in a background check includes but is not limited to driving records, vehicle
registration, credit records, criminal records, social security number, education records,
professional certifications, State licensing records, court records, workers' compensation,
bankruptcy, character references, neighbor interviews, medical records, property ownership,
employment verification, and military service records.
Vendor personnel and any of Vendor's subcontractor personnel background checks not
approved by the City shall not have access to the network operating center, central office, core
switching equipment, and network operation and management software during the term of this
Agreement.
3. SERVICES AND SITE DROPS
3.1 City Service Sites
Vendor will initially provide Metropolitan Area Network Services to City sites listed in
Exhibit 5 Schedules "A `B1 "C "D1 "E "F" and 3 Mbps of Internet Access in accordance
Page 9
with Schedule "G Vendor shall be responsible for all costs to provide fully functional
Metropolitan Area Network Services, which have been included in its charges in Section 4 and
within Exhibit 5. Vendor will provide limited universal availability of services to additional City
and institutional sites within the City. Limited universal availability of services within the City
shall also include a standard overhead facility site drop from a site that is within 1,500 lineal feet
of the nearest Institutional Network node or 1,500 lineal feet of Vendor owned infrastructure. For
any site not included in Exhibit 5 that require overhead facilities beyond 1,500 lineal feet or
underground drops, Vendor may charge the City and institutions for the actual cost for any such
additional overhead facilities or underground drop installation.
3.2 City Site Changes
City sites listed in Exhibit 5 Schedules "132", `B3 `B4 and "F and other City sites
determined by the City, may be added within the first three years of the term of this Agreement,
and all additional site drops and non recurring and recurring service charges shall be governed by
the same terms and conditions specified in this Agreement.
City sites serviced under this Agreement may be discontinued by the City by providing
ninety (90) days notice to Vendor. The monthly recurring services charges in accordance with
Exhibit 5 Schedules `BI "C "D1 "D2" and "F" shall no longer be collected for City sites that
are discontinued. The non recurring service charge shall not be reimbursed to the City for any
City site th of is discontinued
33 Services Provided to the City
Vendor shall initially provide wide area networking services to the City in accordance with
the requirements contained in Exhibit 5 Schedules "B 1 "C "Dl", "F" and 3 Mbps of Internet
Access in accordance with Schedule "G At no additional charge to the City, Vendor shall
provide the core switching equipment, expansions to core switching equipment capacity as
required, and operation, maintenance and rnanagement services required to meet its obligations to
the City under this Agreement. Vendor shall also be responsible for marketing, billing, and all
other retail services necessary to provide regular commercial services under this Agreement.
3.4 Network Service Level Requirements
Vendor shall provide Metropolitan Area Network Services to the City and institutions in
accordance with the service levels contained in Exhibit 2 attached.
3.5 Site Drop Ownership and Maintenance
All site drops and dark fiber point to point connections, whether to City or non -City sites,
shall be owned and maintained by Vendor nnless otherwise agreed upon. Upon termination or
expiration of this Agreement, Vendor agrees that all City site drops and dark fiber point to point
connections will be available for use by the City who may continue to use such facilities at no
further charge. However, upon termination of this Agreement, use of Interlocal Agreement site
drops by other service providers shall be subject to competitive, industry standard access charges.
3.6 City Site Drop Route Plans, Procedure and Schedule.
Vendor shall maintain fiber drops, consisting of a minimum of two (2) single mode fibers
to each City site to be served as listed in Exhibit 5.
Page 10
Each site drop connection shall be terminated within fifty (50) feet of entering the
applicable building using a City provided path at a mutually agreed upon point of demarcation in a
Vendor standard termination panel, mounted on a City furnished backboard.
Vendor shall prepare a site drop route plan for each City site to be served and shall prepare
detailed site plans for written City approval and permitting purposes, in accordance with the
Metropolitan Area Network Services Schedule (Exhibit 1) and as follows:
(1) In preparing the plans and specifications, Vendor and the City agree to coordinate
closely to ensure that the project requirements are met expeditiously.
(2) Vendor's plans and specifications shall be in sufficient detail to permit
identification, correlation, verification, and understanding of the components of
Vendor's plans and specifications.
(3) The City will review the plans and specifications and, if acceptable, shall provide
written approval.
(4) If revisions are required by the City, the plans shall be resubmitted by Vendor to the
City and, if acceptable, the City shall provide written approval.
(5) In no event shall the City have any liability for any expenses Vendor incurs in
preparation of such plans and specifications.
(6) All site drop fibers and other Vendor provided fibers necessary to provide the
services described in this Agreement shall be labeled at termination points to
readily enable identification and ownership.
(7) The site drops, core switching equipment, customer premises equipment, and local
area network cabling at redundant City sites including all splicing and testing, shall
be fully complete and operational in accordance with the Metropolitan Area
Network Services Schedule (Exhibit 1). The City shall promptly conduct a final
inspection to verify completion.
(8) Vendor shall deliver as- builts of the network diagram/schematic for all City sites, a
network route map including all of the Vendor's fiber optic infrastructure, City site
drop maps and construction photographs, and identification and labeling of fibers.
Vendor shall also deliver optical time domain reflectometer test results and local
area network as- builts for City sites included in Exhibit 5 Schedule "D2 An
electronic copy of the as- builts shall be provided by the Vendor in a mutually
agreed upon format.
3.7 Interlocal Agreement Site Drops.
Site drops provided under the Interlocal Agreement shall consist of a minimum of two (2)
single mode fibers. Vendor shall construct such drops, subject to the requesting party's acceptance
of an Interlocal Agreement (see Exhibit 3) for acquisition of Metropolitan Area Network Services
in accordance with Section 2.5 or execution of an agreement with Vendor. Payment for Interlocal
Agreement site drops shall be incorporated with and as part of the maximum monthly recurring
service charges per Exhibit 5 Schedule "H unless other payment arrangements are approved by
the Vendor. The minimum term for Interlocal Agreement site drop charges shall be consistent
with the Initial Term of this Agreement, unless otherwise approved by Vendor.
Each Interlocal Agreement site drop connection shall be terminated within fifty (50) feet of
entering the applicable building using a customer provided path at a point of demarcation mutually
Page 11
agreed upon by Vendor and the customer in a Vendor standard termination panel, mounted on a
customer furnished backboard.
4. SERVICE CHARGES AND PAYMENT
4.1 Vendor Service Charges
Upon the availability of commercial services in accordance with Exhibit 1 for Metropolitan
Area Network Core Switching Equipment and Customer Premises Equipment (CPE), the City
agrees to pay a non recurring service charge in the amount of $0.00 for Network Core Switching
Equipment and $13,008.00 for CPE. Upon the availability of commercial services in accordance
with Exhibit 1 for Site Drops and Local Area Network (LAN) Services, the City agrees to pay a
non recurring service charge in the amount of $133,233.00, which includes non recurring service
charges for City site drops, CPE, and local area networks plus all applicable taxes in accordance
with Exhibit 5 Schedules "C "D2 "E" and "F
Upon the availability of commercial services in accordance with Exhibit 1 for Metropolitan
Area Network Core Switching Equipment and Customer Premises Equipment (CPE), the City
agrees to pay a recurring service charge in the amount of $5,045.00 per month plus all applicable
taxes in accordance with Exhibit 5 Schedules `B1 "C "Di "F" and 3 Mbps of Internet Access
in accordance_with_Exhibit 5_Schedule_ "_G ",_during the Initial Term_of this Agreement.
Upon the availability of commercial services in accordance with Exhibit 1 for Site Drop
Construction and Local Area Network (LAN) Services, the Vendor agrees to a reduction in the
recurring service charge in the amount of $150.00 per month plus all applicable taxes in
accordance with Exhibit 5 Schedules `B I", "C "D2 "F" and 3 Mbps of Internet Access during
the Initial Term of this Agreement.
No later than three years after the effective date of this Agreement, the City agrees to pay
an additional recurring service charge in the amount of $520.00 per month plus all applicable taxes
in accordance with Exhibit 5 Schedule "D2 during the remaining Initial Term of this Agreement.
The monthly recurring service charges shown in Exhibit 5 Schedule "H" shall be available
to additional City sites and institutions not included in Exhibit 5.
Charges shown in Exhibit 5 Schedule "H" do not include any required local area network
equipment expenses within additional City facilities and institutions not included in Exhibit 5
beyond the Vendor standard termination panel and customer premises equipment.
The charges within Exhibit 5 Schedules "A `B1 "C "D2 "E "F "G and "I" shall
be available without adjustment throughout the Initial Term and any Extended Term of this
Agreement.
Vendor shall be responsible for all costs to provide fully functional core switching
equipment, City site drops, and local area networks, patch panels and cords, jacks, faceplates, and
all other required materials which have been included in the (recurring or non recurring) service
charges. The City's payment for its site drops and point -to -point (PTP) connections shall entitle it
to exclusive, irrevocable use of all City site drops and dark fiber PTP connections without any
further ongoing charges during the Initial Term and Extended Term, if any, continuing beyond
termination, cancellation or expiration of this Agreement, as provided in Section 5.6, Survival.
Page 12
However, in the event the City continues its use of the site drops and PTP connections beyond
termination, cancellation or expiration of this Agreement, the City shall pay a pro -rata share of
Vendor's reasonable maintenance costs for City site drops and PTP connections.
4.2 City Public Utility Tax
The monthly recurring service charges shown in Exhibit 5 do not include any City public
utility taxes or Washington State sales taxes. Vendor shall collect City public utility taxes from all
institutions and businesses, and remit such taxes to the City, in accordance with Section 2.2.
4.3 City Pole Attachment Charge Credit
Vendor shall be responsible for and timely pay the City pole attachment charges in
accordance with the Right -of -Way License required in Section 2.3 and Chapter 13.14 PAMC. On
or about July of each year, Vendor shall determine the total number of its pole contacts on City
owned poles as of the preceding day. Vendor may request a credit against the annual charges
payable to the City for the total number of Vendor pole contacts for site drop infrastructure made
under this Agreement that are for the sole purpose of serving the City. The credit request shall be
accompanied by a Vendor network route map that identifies all Vendor contacts on City -owned
poles, all Vendor contacts on City -owned poles made under this Agreement that are for the sole
purpose of serving the City, and all customer locations receiving Vendor's services. If the City
determines that the Vendor pole contacts are for the sole purpose of serving the City, then the City
shall grant the credit requested.
4.4 Invoicing and Payment
Vendor charges will be invoiced to the City monthly (12 invoice periods per year). City
payment is due within 30 days of receipt of invoice. Thereafter, interest of 1.0% per month will be
charged on the balance due.
Vendor payment of City public utility taxes shall be made to the City quarterly. Vendor
payment is due within 30 days of the end of the preceding calendar month. Each payment shall
show the gross revenue subject to utility tax in accordance with this Agreement.
4.5 Public Safety VLAN
Vendor shall maintain site drops to current City sites included in Exhibit 5 Schedule "F
Upon the availability of commercial services, the City shall begin to pay a monthly recurring
service charge in accordance with Exhibit 5 Schedule "F" for wide area networking services to
City facilities for a Public Safety VLAN.
Upon the availability of commercial services and continuing throughout the Initial Term of
this Agreement, the City agrees to pay a non recurring service charge representative of Vendor's
actual costs for future site drops and non recurring and recurring service charges shown in Exhibit
5 Schedule "F" for wide area networking to additional City facilities. The recurring charges
shown in Exhibit 5 Schedule "F" shall be available to additional City and non -City owned public
safety facilities not included in Exhibit 5.
Charges shown in Exhibit 5 Schedule "F" do not include an enclosure, electrical service,
and any required local area network equipment expenses within facilities beyond the Vendor
standard termination panel and customer premises equipment.
Page 13
The Public Safety VLAN shall be used for a non commercial private telecommunications
system and private shared telecommunications services for the sole purpose of police, fire and
emergency services within the City. The private shared telecommunications system may be
available to other police, fire and emergency service entities within and outside of the City and
shall not be used for commercial purposes unless approved in writing by Vendor and the City
Manager.
5. MISCELLANEOUS PROVISIONS
5.1 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 if via telecopy or facsimile, when received, or if sent by
courier service providing evidence of delivery, when actually delivered by such service.
All notices from Vendor to the City pursuant to this Agreement shall be directed to the City
Manager at City Hall, 321 East Fifth Street, P.O. Box 1150, Port Angeles, WA 99362 -0217, or to
such officer as designated by the City Manager.
All notices from the City to the Vendor pursuant to this Agreement shall be directed to Mr.
Bill Roberds, President, Capacity Provisioning, Inc., 116 1/2 West 8 Stfet;Prt Angeles; WA
98362.
5.2 Non Disclosure Agreement
The City will maintain confidentiahty of any and all information provided or made
available by Vendor to the extent permitted by law when Vendor has notified the City of the
confidential nature of the information.
Vendor shall maintain confidentiality of all information about the City's LANs, WANs,
network information, security systems, and data under this Agreement. Vendor will maintain
confidentiality of any and all additional information provided or made available by the City to the
extent permitted by law when the City has notified Vendor of the confidential nature of the
information.
Vendor shall accept and comply with Exhibit 4 the Non Disclosure Agreement under this
Agreement.
5.3 Reports
Vendor shall report to the City such information relating to this Agreement as the City may
reasonably require to demonstrate Vendor's compliance with the terms and conditions of this
Agreement and shall comply with the City's reasonable determination of the forms for reports, the
time for reports, the frequency with which any reports are to be made, and whether or not reports
are to be certified.
5.4 Indemnification/Hold Harmless.
Vendor shall defend, indemnify and hold harmless the City, its officers, officials,
employees, and volunteers harmless from any and all claims, injuries, damages, losses or suits,
Page 14
including attorney fees, arising or issuing out of or in connection with this Agreement, except as
may be caused by the sole negligence or willful misconduct on the part of the City.
5.5 Subcontracts /Assignment.
Vendor shall not subcontract, assign or transfer any right, title or interest under the terms of
this Agreement without the prior written approval of the City. Such approval shall not be
unreasonably withheld or delayed, provided it is demonstrated to the City's satisfaction that the
assignee has accepted the Non Disclosure Agreement (Exhibit 4) and has the background,
experience, certifications, ability, and the technical, financial and legal resources to perform the
requirements of this Agreement
5.6 Survival.
The provisions covering site drops, service charges and payment, and indemnification/hold
harmless shall survive expiration of this Agreement.
5.7 Violations and Remedies
If the City has reason to believe that Vendor has breached or is in violation of this
Agreement, after informal and cooperative efforts have failed after two (2) meetings or ten (10)
business days, whichever occurs first, the City shall notify Vendor in writing of the violation,
setting forth the nature of such violation.
Within thirty (30) days of Vendor receipt of such notice or such longer period specified by
the City, Vendor shall respond in writing that the violation has been cured, provide a cure plan or
schedule that reasonably satisfies the City, provide explanations in refutation or excuse with
documentation to support that an alleged violation did not occur, refute the City's denial of
Vendor's cure plan, or refute the City's denial of an additional time period to complete the cure
plan.
The City shall act on the Vendor's cure plan, if any, within thirty (30) days of City receipt
of such plan. The City shall provide written acceptance or denial of Vendor's cure plan, which
acceptance shall not be unreasonably withheld or delayed.
Vendor shall be allowed thirty (30) days to cure violations after written City acceptance of
Vendor's cure plan is received. If the nature of the violation is such that it cannot be fully cured
within 30 days due to circumstances not under Vendor's commercially reasonable control, the
period of time in which Vendor must cure the violation shall be extended by the City in writing for
such additional time reasonably necessary to complete the cure, provided that (1) Vendor shall
have promptly commenced to cure, and (2) Vendor is diligently pursuing its efforts to cure in the
City's reasonable judgment. If the violation has not been cured within the time allowed under this
section, then Vendor shall be liable for liquidated damages for the following violations:
(1) Failure to promptly comply with Section 2: $100.00 per day; provided, however, in
no event shall the aggregate amount for all such violations exceed $2,500.00 per
year.
(2) Failure to comply with Section 3: $100.00 per day; provided, however, in no event
shall the aggregate amount for all such violations exceed $2,500.00 per year.
Page 15
(3) Failure to comply with Section 4: $100.00 per day; provided, however, in no event
shall the aggregate amount for all such violations exceed $2,500.00 per year.
(4) Failure to with Section 5: $100.00 per day; provided, however, in no event shall the
aggregate amount for all such violations exceed $2,500.00 per year.
(5) Failure to comply with Section 6: $100.00 per day; provided, however, in no event
shall the aggregate amount for all such violations exceed $2,500.00 per year
Vendor agrees that each of the foregoing failures shall result in injuries to the City and
institutions, the compensation for which would be difficult to ascertain and to prove. Accordingly
Vendor agrees that the foregoing amounts are Liquidated damages, not a penalty or forfeiture.
If Vendor fails to make full and complete liquidated damage payments as required by this
Agreement within ten (10) business days after receipt of written notice from the City, then the City
may immediately take steps to deduct without further notice to Vendor the amount thereof from
the service charges and payment due to Vendor in accordance with this Agreement. Liquidated
damages shall accrue from whichever applies among the following: (1) thirty (30) clays after City
notice if no cure plan is submitted; (2) on the date of City denial of the Vendor 's cure plan; or (3)
the date of the City accepted cure plan completion date.
5.8 Termination
The City reserves the right to terminate this Agreement if Vendor fails to comply with the
due diligence requirements in accordance with Section 2.7.
Each party reserves 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, then 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.
In the event of termination of this Agreement, City payment of the recurring service
charges to Vendor specified in Section 4 shall no longer be required.
5.9 City Right to Purchase
In the event Vendor is not capable of performing its obligations under this Agreement or
the Agreement is terminated, expires or is not renewed, the City shall have the right of first refusal
to acquire the core switching equipment, customer premises equipment, telecommunications
facilities, and site drops owned by Vendor, in the event it is to be sold, transferred, liquidated, or
assigned, at fair market value less the City's aggregate payment of non-recurring service charges
under this Agreement and the Institutional Network Services Agreement for a period of sixty (60)
days following the date of termination, expiration or non renewal of this Agreement.
5.10 Metropolitan Area Network Core Switching Equipment Lien
If Vendor obtains financing to fulfill its obligations to purchase the core switching
equipment under this Agreement, the City reserves the right to file an equipment lien in an amount
Page 16
not to exceed Exhibit 5 Schedule "A" to secure its payment of the non recurring service charge for
core switching equipment specified in Section 4.1 of this Agreement.
5.11 Force Majeure
The term "Force Majeure" shall mean acts of God, war, civil disturbances, fire,
unavoidable casualty, construction delays due to weather, failure of supplier(s), or other similar
causes beyond the control of Vendor. The time within which Vendor shall be required to perform
any act under this Agreement shall be extended by a period of time equal to the number of days
performance is delayed due to a Force Majeure. Vendor shall not be subject to any penalty
hereunder because of acts or failure to act due to Force Majeure.
5.12 Severability
Whenever possible, each provision of this Agreement will be interpreted to be effective and
valid under applicable law. The invalidity, illegality or unenforceability of any provision will not
affect the validity, legality or enforceability of any other provision of this Agreement, which will
remain valid and binding.
5.13 Entire Agreement
This Agreement and its Exhibit(s) represent the entire agreement between the parties hereto
with respect to the subject matter hereof and supersede all prior oral negotiations and agreements.
5.14 Law, Jurisdiction, Venue and Attorney's Fees.
The Parties agree that in the event any suit or other legal action is made in common that the
law of the State of Washington shall apply. Venue shall be in Clallam County Superior Court.
If any suit or other action is instituted in connection with any controversy arising under this
Agreement, the prevailing party shall be entitled to recover all of its costs and expenses including
such sum as the Court may judge reasonable for attorney fees, including fees upon appeal of any
judgment or ruling.
5.15 Amendments.
Any amendment to this Agreement shall be mutually agreed upon in writing.
Page 17
AGREED TO BETWEEN THE PARTIES on the last date written below.
VENDOR
S to
By: Date
CITY OF PORT ANGELES
By Date
ATTEST: APPROVED AS TO FORM:
City Clerk City Attorney
EXHIBITS
1 Metropolitan Area Network Services Schedule
2 Network Service Level Requirements
3 Interlocal Agreement for Acquisition of Metropolitan Area Network Services
4 Non Disclosure Agreement
5 Vendor Technical Proposal and Service Charge Proposal
EXHIBIT 1
The dates specified herein are required completion deadlines unless otherwise approved by the
City Manager.
METROPOLITAN AREA NETWORK SERVICES SCHEDULE
METROPOLITAN AREA NETWORK CORE SWITCHING EQUIPMENT AND
CUSTOMER PREMISES EQUIPMENT (CPE)
Equipment installed 8/6/2010
Network testing 8/20/2010
Commercial operations 9/7/2010
SITE DROP CONSTRUCTION FOR EXHBIT 2 SCHEDULE D2 SITES
Site plans for City approval and permitting due 12/31/2010
City revisions or approval 1/28/2011
If revisions required, date due 2/18/2011
Revisions approved by City 2/25/2011
Construction complete 4/15/2011
Commercial operations 5/1/2011
LAN SERVICES FOR EXHBIT 2 SCHEDULE D2 SITES
LAN plans and specifications for City approval 12/31/2011
City revisions or approval 1/28/2011
If revisions required, date due 2/18/2011
Revisions approved by City 2/25/2011
Electrical outlets installed by City 4/1/2011
LAN installation complete 4/15/2011
Page 19
EXHIBIT 2
NETWORK SERVICE LEVEL REQUIREMENTS
1. System Availability
Vendor shall provide maintenance twenty -four (24) hours a day, seven (7) days a week
and shall maintain the site drops and network equipment to the City demarcation at all times.
The City demarcation shall be:
1) For Metro Ethernet services: The Ethernet interface provided from Vendor -owned
customer premise equipment located at the City Designated Access Site for
connection of customer equipment; or
2) For Dark Fiber services: The fiber optic connector located in a patch panel or fiber
termination enclosure located at the City Designated Access Site for connection of
customer equipment.
In emergency conditions, including natural disasters, vandalism, or other cause of
widespread service outage, the Vendor shall perform emergency repair work on the fiber and field
equipment. During an emergency, all fibers and field equipment at a given damage location shall
be repaired concurrently without preference to function.
During normal operating conditions, City connections shall be available and
operating within all specified technical parameters defined herein:
At least 99.9% of the time for Basic Service Drops; and
At least 99.999% of the time for Redundant Service Drops.
Service Availability shall be measured over each billing period, not including scheduled
maintenance resulting in outages that are scheduled in advance by the Vendor and approved by
the City.
During normal operating conditions, the Vendor shall respond to all Critical Outage reports
within two (2) hours, and make necessary repairs to the extent feasible to restore service within
four (4) hours of notification. Under normal operating conditions, the Vendor shall respond to
Non-Critical Outage or degradation reports within twenty -four (24) hours. The City shall have
full discretion to define Critical and Non Critical, though "Critical" shall generally be defined
to mean a complete Ioss of connectivity to one or more City Designated Access Sites.
2. Reliability
Recovery due to a logical or physical network outage on a City circuit with a
Redundant Service Drop shall not be greater than 600 milliseconds under worst -case
conditions.
Recovery due to a physical network break or a node enclosure power, heating or air
conditioning failure on a service drop shall be coordinated with Wave Broadband, which is
required by Subsection 8.7.1 of the City's Cable Television Franchise Ordinance No. 3116 to
restore City Institutional Network breaks within four (4) hours of outage notification. The
Vendor shall maintain a spare battery backup hardware in the event of a failure.
Page 20
3. Network Security
Vendor 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 Vendor shall provide
connections over a secure carrier -grade network that provides traffic engineering to allow for
secure provisioning of multiple secure networks between departments and services, with support
for dedicated capacity and security for specific applications. Candidate secure carrier -grade
technologies include:
Secure layer -2 VPN/VLAN service leveraging advanced, carrier -grade network
segmentation solutions, such as Multi- Protocol Label Switching (MPLS), layer -2
VPNs, or Provider Backbone Bridges (PBB) supporting "QinQ" trunking to:
1) provide suitable security to eliminate the need for City encryption of
internal data traffic, and
2) allow the City to implement its own internal VLAN scheme independent of
the Vendor for greater flexibility for internal architecture changes and
interconnections with other networks.
Secure MPLS layer -3 VPN
4. Network Latency
Transmission latency across the MAN 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 10 milliseconds during normal operating conditions, with
maximum end to-end latency not to exceed 600 milliseconds.
5. Packet Loss
Packet Loss across the Institutional Network backbone shall average 0.3% or less. If
the average Packet Loss across the Institutional Network backbone exceeds 0.3% during a
calendar month, Vendor shall immediately take action to comply with this requirement.
6. Network Equipment
All network equipment shall be standards compliant, non proprietary technology, able to
support a standards -based interface type such as Ethernet/IP. The equipment shall be scalable to
meet future network expansion needs. The equipment shall be interoperable with other
standards -based Ethernet networks and capable of enabling cooperative use by related networks.
7. Monitoring and Network Optimization
Vendor will continuously monitor and optimize the operation of the network.
Monitoring shall be done between the furthest client node using software and hardware
components capable of accurately measuring traffic and responses at such nodes. The City
acknowledges that such rneasurements may not meter the exact path traversed by the City's
packets and that such measurements constitute measurements across the network backbone but
not other networks to which the City may connect. Upon City request, the Vendor shall provide
the City with an initial baseline monitoring report upon completion of its network and monthly
reports thereafter detailing all outages, average and peak capacity usage, and any other
available error information.
Page 21
8. Problem Reporting and Escalation Procedure
a. The City shall first troubleshoot network problems to determine that the problem is a
Vendor network problem prior to contacting the Vendor Network Operations Center (NOC).
b. A work order (trouble ticket) will be created based on the trouble call, and the
Vendor troubleshooting process and time clock will begin
c. The Vendor will provide a problem reporting and escalation procedure to the
City and will provide the City with progress and status information on trouble calls. The City
should receive an initial callback regarding the status of the problem within thirty (30)
minutes of the initial trouble report.
d. The Vendor will attempt to resolve most problems within one (1) hour of the
problem report initially being logged and a trouble ticket being generated. The Vendor NOC will
notify the City regarding the status of the reported problem and the estimated time to repair
completion.
e. If, after one (1) additional hour, the problem has not been resolved (within the
parameters of the Vendor escalation procedure), the City will have the option to contact the
Vendor to escalate the problem priority. At this point, the Vendor will assess the situation,
escalate the trouble ticket's priority as necessary, and provide a best estimate of time to
complete the repair.
Ifa representative of the Vendor technical support staff 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 City charge if the problem necessitating the visit is due to a failure of the Vendor's
equipment or network that was not the result of City activity or was caused by the Vendor. In all
other situations, the City will be charged for repair or troubleshoot visits to City sites. The
charge for this service will be in accorcirnce with the Vendor fee schedule. The charge will
include Vendor travel time, with a minimum one (1) hour charge. This Vendor charge will be
added to the City's monthly invoice.
9. New Service
For City sites already receiving managed network services, the Vendor 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 Vendor engineering approval of the
change. Services requiring hardware changes will be scheduled with the City.
For City sites not receiving Vendor service, the Vendor will provide service to a new
site where minimal facilities engineering and provisioning tasks are required within thirty
(30) days from receipt of a written service request from the City. When more than minimal
facilities 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 in writing. A connectivity
change request form will be available from the Vendor and online at the Vendor website. The
change request will be evaluated to assess engineering issues and to determine whether it is a
no -cost change or an additional cost item. If it is an additional cost item, it shall be approved in
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writing by the City, and the cost will be added to the Vendor's monthly invoice to the City.
The Vendor will provision new service within ten (10) days of receipt of a signed change
request order and Vendor engineering approval of the change.
11. Network Interface Equipment Vendor Technical Support
Vendor shall obtain and maintain through the term of the Agreement, and any extensions
thereof, the support services of its network interface equipment.
12. Internet Access
Internet access shall be dedicated to the City and not shared with other Vendor
customers, and shall have equivalent upload and download capacity.
13. On -Call Networking Consulting Services
The City requires on -call networking consulting services to support its information
technology systems. The Vendor's tasks may include, but are not limited to Exhibit 5, the Vendor's
Technical Proposal and Service Charge Proposal.
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EXHIBIT 3
INTERLOCAL AGREEMENT FOR
ACQUISITION OF METROPOLITAN AREA 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 according to the following terms and conditions:
1. The City has negotiated a Metropolitan Area Network Services Agreement with Capacity
Provisioning, Inc., hereinafter called 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 Metropolitan Area Network services
agreement with the VENDOR under Service Charge Schedule "H".
3. The OTHER PARTY accepts responsibility for compliance with all laws and any
additional or varying 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.
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CITY OF PORT ANGELES, WA
Authorized Name Authorized Name
Title Title
Date Date
,WA
WITNESSETH
EXHIBIT 4
NON DISCLOSURE AGREEMENT
THIS AGREEMENT (Agreement) made and entered into this day of
2010, by and between the City of Port Angeles, a municipal corporation (City)
And Capacity Provisioning, Inc. (Vendor) (collectively Parties).
NOW, THEREFORE, in consideration of terms and covenants contained herein, the Parties
agree as follows:
1. The Vendor submitted a Technical Proposal and Service Charge Proposal to the
City in response to the City's request for proposals for Metropolitan Area
Network Services whereby Vendor shall perform telecommunications services for the
City, including but not limited to certain assessments and examination of the City's
local area networks and computer systems.
2. As a condition of such request for proposal and the Metropolitan Area
Network Services Agreement, Vendor is required to enter into this
non disclosure agreement with the City.
3. The Vendor may have access to and become familiar with various confidential
information (City Information) regularly used in the operation of the City's
business. City information includes, but is not limited to, reports, devices; processes;
applications; compilations of information; records; computer system and network
security systems; specifications; and financial, accounting, statistical, security and
personnel information. Vendor shall not disclose any such City information to any
person, directly or indirectly, nor use it in any way, except as required or
authorized by the City.
4. City Information is not to be stored on any local workstation, laptop, or media such
as CD/DVD, USB drives, external hard drives or other similar portable devices
unless Vendor can ensure security for City information so stored.
5. The agreement not to disclose City Information and City and third party software and
related documentation as set forth in Sections 1 through 4 above shall apply during
the term of the Metropolitan Area Network Services Agreement and at any time
thereafter unless specifically authorized by the City in writing.
7. All files, records, documents, drawings, specifications, equipment, software, and
similar items relating to the City's business, whether or not prepared by Vendor, shall
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remain the exclusive property of the City and shall not be removed under any
circumstances from the premises where the City's work is being carried on without
the prior approval of the City. Vendor shall make no copies of any City Information
obtained.
8. Attachment 1 of this non disclosure agreement shall be signed by each Vendor and
subcontractor employee prior to his or her access to confidential City Information.
9. If Vendor breaches this Agreement, the City may immediately terminate this
Agreement and withdraw Vendor's tight to access City Information.
10. Vendor acknowledges that throughout the term of the Metropolitan Area Network
Services Agreement, the City will, based upon the representations made in this
Agreement, disclose security information which is critical to the continued success
of the City's business. Accordingly, Vendor agrees that the City does not have an
adequate remedy at law for breach of this Agreement and therefore, the City shall
be entitled, as a non exclusive remedy, and in addition to an action for damages, to
seek and obtain an injunction or decree of specific performance or any other remedy
from a court of competent jurisdiction to enjoin or remedy any violation of this
Agreement.
11. No act of omission or commission of either the City or Vendor, including without
limitation, any failure to exercise any right, remedy, or recourse, shall be deemed to
be a waiver, release, or modification of the same. Such a waiver, release, or
modification is to be effected only through a written modification to this Agreement.
12. This Agreement is to be construed in accordance with the laws of the State of
Washington. Venue and jurisdiction for any cause of action or claim asserted by either
party hereto shall be in the Superior Court of Clallam County, Washington.
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IN WITNESS WHEREOF the Parties have executed this Agreement on the date first above
written.
VENDOR:
BY:
Title:
APPROVED AS TO FORM:
William E. Bloor, City Attorney
CITY OF PORT ANGELES:
321 E. 5 Street
Port Angeles, WA 98362
BY:
ATTEST:
Janessa Hurd, City Clerk
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NON DISCLOSURE AGREEMENT ATTACHMENT 1
As a condition precedent to being made aware of confidential information, 1 have read the
foregoing Agreement and agree to be bound by its terms.
Employee Name (Print)
Page 29
1 Employee Signature
1
EXHIBIT 5
VENDOR TECHNICAL PROPOSAL AND SERVICE CHARGE PROPOSAL
Intentionally left blank.
A copy of the Vendor's proposal is available for review at City Hall in the Public Works and Utilities engineering
office. Confidential computer network security related information has been removed front all documents.
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