HomeMy WebLinkAboutAgenda Packet 07/09/2002 UTILITY ADVISORY COMMITTEE:
PUBL[r- WORKS CONFERENCE ROOM
PORT ANGELES, WA g8362
· IULY g, 2002
3:00 P.M.
Ar~ENDA
I. CALL To ORDER
II. ROLL CALL
III. APPROVAL OF M~NUTES FOR JUNE 24, 2002
IV. O~SCOSS~ON ITEMS
A. ~AYONIER L~AOHAT~ ~PORT (~UART~RLY)
B. WAIVER O~ LAND~ILL ~5 ~OR CHAIN GANG AND WSOOT
O. BPA CONTRACT AMeNDMeNTS
D. BPA WHOL~SAL~ ~AT~ ADJUSTmeNTS (V~RBAL)
NORTHLAND CABLE WIDE AREA N~TWORK (WAN) USE
UTILITY ADVISORY COMMITTEE
Port Angeles, Washington
June 24, 2002
L Call to Order:
Chairman Bentley called the meeting to order at 4:00 p.m.
II. Roll Call:
Members Present: Chairman Bentley, Councilmember Rogers, Councilman Campbell,
Councilmember Erickson, Dean Reed
Members Absent: None
StaffPresent: Mike Quinn, Craig Knutson, Clenn Cutler, Scott McLain, Tim Smith,
Larry Dunbar, Cate Rinehart
Others Present: Fred Mitchell - Clallam PUD
Pete Grigorieff- Northland Cable
IIL Approval of Minutes:
Chairman Bentley asked if there were any additions or corrections to the meeting minutes of June
11, 2002. None were given. Councilman Campbell moved to approve the minutes. Dean Reed
seconded the motion, which carried unanimously.
IV. Discussion Items:
A. Final Draft Fiber Optic Wide Area Network Use Agreement
Larry Dunbar, Power Resources Manager, reviewed the fast-track planning process noting the City was
in the negotiation process for an agreement with Northland Cable Television which would include use of
existing dark fibers and constmctiun of about 4 miles of the I-Net fiber optic infrastructure. The
agreement is based on contracts from other areas and addresses design and construction, grant of license,
agreement terms, ownership, termination, compensation, and schedule. It was noted that a decision to
exercise an option under the cable franchise for 12 additional fibers needs to be made. Money would be
advanced from Light Reserves. A discussion followed with concerns regarding the $55,000 fast-track
fee versus the approved cost for an 18 month schedule. Further concerns included sharing the fast-track
fee with other users. Another concern was that the City's total costs will not be known until agreements
with Northland and Capacity Provisioning are negotiated. Staff was directed to go forward with
negotiations with Capacity Provisioning while simultaneously negotiating with Northland Cable.
Information will be brought back at the July 94 UAC including costs, and the final agreements.
No action taken. Information only.
UTILITY ADVISORY COMMITTEE
June 24, 2002
I/II. Next Meeting:
The next regular meeting will be July 9, 2002 at 3:00 p.m.
VIII. Adjournment:
The meeting adjourned at 5:15 p.m.
Allen Bentley, Chairman Cate Rinehart, Administrative
Assistant
6/27/02
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2
Gallons Delivered
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WASHINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: July 9, 2002
TO: UTILITY ADVISORY COMMITTEE
FROM: Tom McCabe, Solid Waste Superintendent
RE: WAIVER OF LANDFILL FEES FOR CHAIN GANG AND Washington State
Department of Transportation WSDOT ;;ADOPT A HIGHWAY~ PROGRAMS
Summary: The Clallam County Community Litter Cleanup (Chain Gang) and the WSDOT
(Washington State Department of Transportation) "Adopt a Highway" programs have requested
the City waive landfill fees in exchange for services in kind to be accomplished within the City.
The programs benefit the City by litter clean up on City streets and winter maintenance of the
Tumwater Track Route.
Recommendation: Forward a favorable recommendation to the Council to waive landfill
fees for the Community Litter Cleanup and the WSDOT "Adopt a Highway" programs.
Background/Analysis:
Clallam County Community Litter Cleanup (Chain Gang) Program
The Community Litter Cleanup Program started in 1998 cleans up approximately 400 miles of
roads and 50 illegal dump sites a year in the County. This cleanup effort also involves numerous
streets/roadways within the City limits. The annual labor is estimated at 1,800 hours for the
Sheriff's deputies, and 4,000 hours for the chain gang crew.
The Program is funded by State grant; $60,000 every two years. The goal is to provide for a
countywide comprehensive litter and illegal dump site clean-up, utilizing prisoners supervised by
Sheriff's deputies. The program collected 50 tons in 2001 ($3,840~$76.80/ton), which was
disposed of at the Port Angeles Landfill. Past practice has been to waive the landfill fees as our
in-kind service portion of the grant.
All political subdivisions, County Corrections, the Sheriffs department, public utilities
coordinators, County road crew supervisors, and representatives from the Solid Waste Advisory
Committee, as well as local businesses and interest groups, participate in the success of this
program. The private sector donates some equipment and supplies. The Road and Sheriffs
departments provide staffing support, litter bags, use of additional equipment, and transportation.
The City's participation in the grant is to waive Landfill fees as our portion of in-kind services.
Waive Landfill Fees
Page 2
WSDOT "Adopt a Highway" Program
The WSDOT "Adopt a Highway" Program is a volunteer effort to keep state highway routes flee
of litter. The local WSDOT maintenance operations supervisor has requested that fees be waived
at the Port Angeles Landfill for disposal of litter collected by volunteers on those portions of
State highway that are in Clallam County. In exchange for this waiver WSDOT is prepared to
continue to perform winter maintenance of the Tumwater Truck Route. This effort includes
sanding & de-icing, snow removal and sand removal. Per the agreement dated April 30, 1997
between WSDOT and the Association of Washington Cities on behalf of the Cities, this
maintenance would be the responsibility of the City. Past winter maintenance on this truck route
has been accomplished by WSDOT in cooperation with the City~ In 2001, the "Adopt a
Highway" program disposed of 22 tons ($1,690~$76.80/ton) at the Port Angeles Landfill. The
cost of winter maintenance on the truck route is estimated to be a fair exchange of services. If the
WSDOT did not perform this maintenance it would be the responsibility of the City to perform.
It is recommended that the UAC endorse waiving of fees for both programs. If favorably
endorsed, staff will develop the appropriate agreements/PAMC changes as necessary.
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WASHINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: July 9, 2002
TO: UTILITY ADVISORY COMMITTEE
FROM: Stephen Sperr, Utility Engineer
SUBJECT: Amendment No. I to Consultant Agreement with Skillings-Connolly,
Contract//22-01
Summary: It is necessary to amend the agreement with Skillings-Connolly to perform design
work for various sewer main replacement projects. A scope and budget for the work has been
negotiated.
Recommendation: Forward a favorable recommendation to Council authorizing the
Mayor to sign Amendment No. 1 in the amount of $36, 351.00 to Skillings-Connolly, Inc.
for a total contract amount not to exceed $196,351.00.
Background/Analysis: An agreement for professional services with Skillings-Connolly for
engineering design services for various water and wastewater projects not already being designed
in-house, by Brown & Caldwell (wastewater) or CH2M Hill (water) was executed on May 21,
2002. The agreement included a scope and budget for two tasks with a total not to exceed
$160,000. Additional tasks were anticipated but no agreement on scope or price was included.
A scope and budget for the next task, various sewer main replacement projects, has been
negotiated for this work as Amendment No.1 to the agreement. The negotiated budget for the
design work is $36, 351.00(approximately 17% of construction cost). The preliminary estimate
for construction is $215,000. The work effort covers 4 locations and has been combined to
reduce design and construction costs. Due to other commitments staff is not able to perform the
design in-house.
The sections of sanitary sewer lines to be replaced and/or repaired are as follows:
1. A section of pipe within the planter strip along the north side of the Lincoln St. entrance
to the Safeway parking lot.
2. A section of an existing sanitary sewer line beginning f~om the manhole at Peabody and
Ahlvers, running east approximately 150 fi to the next manhole.
3. A 6-inch sanitary sewer line located in 16/17 Alley both east and west of E Street. The
length of the repair is approximately 220 fi.
4. Replacement of an existing sanitary sewer line located on 9th Street. The actual length to
be replaced will be determined upon further investigation of the damaged pipe and
constmctability.
July 9, 2002 UAC Meeting
Amendment No. 1 to the Consultant Agreement with Skillings-Connolly
Page 2 of 2
Staff is recommending that City Council authorize the City Manager to sign Amendment No. 1 to
the Agreement. Amendment No. 1 will increase the total contract amount from $160,000 to
$196,351.00. Funding for both design and construction for the work under Task 3 has been
identified in the 2002 Wastewater budget by making the following changes to the budget:
Item 2002 budgetII 2002 revised budgetII 2003 Budget
Annual Sewer Main Replacements $105,000.00 ] $215,000.00 [ $0.00
Pump Stations 1 & 3 Construction $500,000.00 $0.00 $500,000.00
The design for Pump Stations 1 & 3 will not be complete until later this year. A portion of the
2002 budget for the construction is available for Annual Sewer Main Replacements. The
additional $110,000 for Annual Sewer Main Replacements in the revised 2002 budget is what
was anticipated for the 2003 budget, and covers the estimated cost to complete all four sewer
main replacement projects.
Attachment: Location Map
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CITY OF PORT ANGELES SCALE
PUBLIC WORKS
~ 2ooo' Location Sewer Main Replacements
1000'
WASHINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: July 9, 2002
To: UTILITY ADVISORY COMMITTEE
FROM: Scott McLain, Deputy Director for Power Systems
RE: Bonneville Power Administration (BPA) Billing Credits Agreement and
Transmission Contract Revisions
Summary: The City needs to revise several provisions in our Transmission Contract and
Billing Credits Agreement with the BPA. These revisions do not represent substantial changes,
but are routine housekeeping changes to bring the contract and agreement up to date with the
latest power prices and Federal Energy Regulatory Commission (FERC) requirements.
Recommendation: Forward a favorable recommendation to City Council authorizing the
Director of Public Works and Utilities to sign the revisions to the BPA Billing Credits
Agreement and Transmission Contract and authorize future revisions to Exhibit H of the
Billing Credits Agreement.
Background/Analysis: The City needs to revise exhibits to both the Billing Credits Agreement
and Transmission Contract with the Bonneville Power Administration.
The Billing Credits Agreement covers payments from BPA to the City for improvements the City
made to the electrical distribution system in the conversion from 4 KV to 12 KV. These
payments vary based on the price of Priority Firm (PF) power from BPA. The implementation of
the Cost Recovery Adjustment Clause (CRAC) each six months during this rate period change
the amount of the payment fi'om BPA as reflected in Exhibit H 0fthe Billing Credits Agreement.
As the PF power rate from BPA will be changing every six months due to changes in the Load
Based (LB) CRAC, Financial Based (FB) CRAC, and Safety Net (SN) CRAC, it is also
recommended that approval be granted for signing changes to this exhibit throughout the
agreement period, which ends in 2022.
The changes to the exhibits for the transmission contract are required due to changes in FERC
orders for open access on high voltage transmission lines and subsequent changes to BPA's Open
Access Transmission Tariff. These changes require all utilities to schedule power transmission
over the Open Access Same-time Information System (OASIS), along with designating the entity
that provides various scheduling and ancillary services.
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Power Supply Update 7-9-02
Three Cost Recovery Adjustment Clauses (CRAC)
Load based CRAC- LB CRAC
Financial CRAC- FB CRAC
Safety Net CRAC- SN CRAC
All CRAC's, if implemented, are incremental
Load based CRAC can be adjusted every six months
Recovers the cost of purchasing augmentation power
Set based on forecast of loads and market prices
Corrected after each six month period based on actual costs
First LB CRAC was set at 46.225%
Second LB CRAC (April-Sept 2002) is 39.08%
Next forecast LB CRAC (Oct-Mar 03) is 31.88%
CRAC true up for second period will be about 3% (refund)
Financial based CRAC allows a temporary one-year adjustment to rates
Triggers if BPA's accumulated net revenues fall below a preset
threshold
Maximum FB CRAC is 11%
FB CRAC is announced Sept 1, for implementation on October 1
FB CRAC is expected to trigger at 11% maximum this October.
Combined FB and LB CRAC will be about 42%
Safety net CRAC can trigger anytime that BPA forecasts a 50% probability
that it will miss a payment to treasury or other creditor or if they have
missed a payment to the treasury or a creditor.
SN CRAC takes place in an expedited 70) process (BPA rate setting
process) and takes effect 61 days after the FERC filing
Still a possibility that SN CRAC will trigger
WASHINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: JUL'/9, 2002
To: UTILITY ADVISORY COMMITTEE
FROM: Larry Dunbar, Power Resources Manager
RE: Fiber Optic Wide Area Network Use Agreement
Summary: At the direction of the Utility Advisory Committee (UAC) and City Council on the
institutional network (I-Net) fast-track concepts and approach, a Fiber Optic Wide Area Network
(WAN) Use Agreement has been negotiated with Northland Cable Television to enable early
activation of the Institutional Network (I-Net) dark fiber backbone and nodes. As part of the
proposed Agreement, construction of fiber optic infrastructure is required and an option to
include an additional 12 dark fibers throughout the institutional network is recommended.
Recommendation: Forward a favorable recommendation to the City Council to approve
the proposed Fiber Optic Wide Area Network Use Agreement with Northland Cable
Television.
Background/Analysis: On May 14, 2002, Staff provided an information only presentation to the
UAC on I-Net activation and site drop alternatives. At the direction of the UAC, Staffbegan to
develop a fast-track concept and approach to compress the I-Net completion schedule, which is
anticipated no later than April 27, 2004. The UAC's desire to compress the I-Net schedule is
consistent with feedback received from potential I-Net users and service providers. On June 11,
2002, the UAC authorized staff to proceed with the fast-track concepts and approach. On June.
17, 2002, the City Council approved consulting services in support of the fast-track concepts and
approach and construction of the I-Net. On June 24, 2002, the UAC provided guidance to staff
on the final draft Fiber Optic WAN Use Agreement.
The proposed Fiber Optic WAN Use Agreement includes City lease of two (2) existing dark
fibers and construction of fiber optic infrastructure necessary to reach planned I-Net node
locations. As part of the fast-track, partial City payment for the I-Net will need to be made
earlier than that required by the Cable Television Franchise Agreement No. 3116. The City lease
could be assigned to a vendor who would install equipment in the I-Net nodes, construct site
drops from the I-Net nodes to the City and potential I-Net and business users, and provide
telecommunications services (excluding Cable Television services).
The aggressive fast-track approach will take about four months to complete before services under
the proposed I-Net Services Agreement (separate Staff report) are available. Approval of the
proposed Agreement with Northland is a critical element of the fast-track concept and approach.
Fiber Optic Wide Area Network Use Agreement
Page 2
July 9, 2002
Please refer to Attachment A for a summary of the main sections of the proposed Agreement. As
part of the proposed Agreement, construction of about 4 miles of fiber optic infrastructure is
required and an option to include an additional 12 dark fibers is recommended throughout the I-
Net for an additional cost of $100,000. Earlier this year, Council approved an option to include
an additional 12 dark fibers in a section of the I-Net that extends from 16~ and C Streets to 16th
and I Streets. The remaining additional dark fiber expense is a wise investment that will delay
node equipment and fiber splicing expenses over the 1-Net's anticipated minimum fifteen year
service life. Subject to the UAC's recommendation and ultimate City Council approval of the
proposed Agreement, Staff will also seek the UAC's recommendation on the proposed I-Net
Services Agreement and master permit with Capacity Provisioning, Inc (separate Staff reports).
The City Attorney has not yet completed the final legal review of the proposed Agreement.
The I-Net will support and promote economic diversification of the community in the areas of
telecommunications and advanced technology. Assuming the fast-track is successful, the I-Net
would help achieve the City's economic develop goals and objectives much earlier than the
April 2004 scheduled availability date.
Attachment A
Summary of the proposed Fiber Optic Wide Area Network Use Agreement
Main sections Section summary
Northland is responsible for design, construction and testing of a fiber
optic link and nodes. The City must approve the plans and specifications
Design and prior to construction. The City must approve construction and testing
construction prior to payment toward its cost of the I-Net. Due to the construction of
3~1 fiber infrastructure as part of this Agreemc~nt, a decision to include 24
fibers throughout the I-Net is recommended which will increase the City's
cost of the I-Net from $250,000.00 to $350,000.00.
Grant of license The City would be granted an exclusive and assignable license to use the
3~2 fiber link and 1-Net nodes. The City would be allowed to assign the
agreement to Capacity Provisioning, Inc. or to any other person or entity.
1-Net early payment: $220,000
Northland fast-track fee: $55,000
Monthly service payments (until 12/31/2002): $1,400/Month
Compensation Monthly service payments (until 12/31/2003): $1,900/Month
Monthly service payments (beginning 1/1/2004): $2,400/Month
The City would pay its share of the I-Net node costs earlier than that
agreed upon as part of the Cable Television Francl/~se Ordinance No.
3116 that City Council approved on May 21, 2002.
Term of The term of the agreement would be until April 27, 2004 which is the date
that the I-Net is anticipated to be fully complete, capable of operation, and
agreement accepted by the City. Upon mutual consent, the agreement may be
3~4 extended.
Fiber link and Northland would own the Fiber Link and nodes provided under the
node ownership agreement which is consistent with the Cable Television Franchise
fi8 Ordinance No. 3116.
Either party reserves the right to terminate the agreement upon breach of
~ the other party. Northland can also terminate the agreement for other
Early termination
3~10 reasons such as expiration of Northland's right to use City utility poles.
The City can also terminate the agreement if it discontinues use of the
Fiber Link and Nodes or if sublease payments are not made.
7/3/2002 FINAL DRAFT FIBER OPTIC WAN USE AGREEMENT
This Fiber Optic Wide Area Network or WAN Use Agreement ("Agreement") is made
this day of ,2002, by and between NORTHLAND CABLE TELEVISION,
INC., a Washington corporation ("Northland") and the CITY OF PORT ANGELES, a
municipality governed under the laws of the State of Washington ("City").
Background
Northland is the cable television operator serving the City of Port Angeles, Clallarn
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.
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 Cable Television Franchise
Ordinance No. 3116. By entering into this Agreement, Northland has not fully satisfied Section
8 - Institutional Network, of Cable Television Franchise Ordinance No. 3116.
Agreements
Northland and the City hereby agree as follows:
1. Design and Construction of the Fiber Link.
1.I Northland shall construct a node-to-node wide area network using dark
fiber optic transmission filaments to connect the nodes identified on 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 on 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
or affiliated with the City, whether or not the Fiber Link is completed, except with the prior
written consent of Northland, which consent may be withheld in Northland's sole and absolute
discretion when legally required to be disclosed pursuant to Chapter 42.17 RCW. Submission or
Final Draft Page 1
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 on Exhibit A. Construction specifications not otherwise set forth on Exhibit A
shall be govemed 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 and the City's prepayment specified at Section 3.2,
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 July 30, 2002 for City approval in accordance with Cable
Television Franchise Ordinance No. 3116. The City shall cooperate and use its commemially
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 commemially
reasonable efforts to complete the construction of the Fiber Link and nodes on or before
September 16, 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 of Completed Fiber Link and Nodes. Upon Northland's
completion of the construction of the Fiber Link and nodes, Northland shall, on or before
September 23, 2002, in accordance with the testing procedures set forth on 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 A 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.
1.7 City Exercise of Institutional Network Fiber Option. In accordance with
subsection 8.1.2.(1) of Cable Television Franchise Ordinance No. 3116, the City exercises its
option to include a minimum of 24 single-mode fibers in the institutional network backbone.
Final Draft Page 2
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 fi.om 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 sublease, or otherwise allow use of the License under
this Agreement to Capacity Provisioning, Inc. or to any other person or entity provided that no
assignment, sublease or grant of any rights to any third party by the City hereunder shall release
the City fi.om any of its duties or obligations under this Agreement. In the event that the City
subleases, 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 hereunder,
the City shall make the following payments to Northland:
3.1 Institutional Network Payment. As provided in Subsection 1.6, the City
shall reimburse to Northland costs not to exceed $183,333.00 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 $36,667.00 or 20%
of cost. The total payment of $220,000.00 shall be deducted from the City's cost of the
Institutional Network as specified in subsection 8.11 of Cable Television Franchise Ordinance
No. 3116. 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 no event shall payments under this agreement exceed $275,000.00.
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 within fourteen (14) days of Grantee's request for
payment as follows:
(1) Payments less five percent (5%) retainage required by RCW 60.28.010 upon City
acceptance and approval of Grantee's request for payment containing all appropriate and
complete invoices.
(2) Final payment representing release of five percent (5%) retainage 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.
3.2 Monthly Payments. Commencing with the acceptance of the Initial Proof
of Performance as set forth in subsection 1.6 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 (!,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
Final Draft Page 3
Agreement, the City shall pay to Northland the monthly sum of two thousand four hundred
Dollars ($2,400.00) (equal to one 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 prepayment, 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 often percent (10%) of the amount then owing.
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 regulatory 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 Cable Television
Franchise Ordinance No. 3116, franchise fees shall not be imposed upon or collected from
Northland by the City as a result or consequence of this Agreement.
4. Term of Agreement. This Agreement shall commence as of the date first written
above and shall continue until April 27, 2004 (the "Irdtial 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 ~n accordance with the Cable Television Franchise
Ordinance No. 3116, on or before February 27, 2004, Northland shall give the City or to any
Final Draft Page 4
other person or entity assigned by 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 Cable Television Franchise Ordinance No. 3116 and this Agreement, for commercial purposes other
than Cable Services. In the event that Northland fails to complete the institutional network in
accordance with Cable Television Franchise Ordinance No. 3116 by February 27, 2004, at the
City's option, 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 (other than the pricing which may be negotiated by the
parties subject to the terms hereof).
To the extent the Fiber Link and Node infi'astructure provided under this Agreement is still in use
and needed by the City beyond May 31, 2017, continued use of the Fiber Link and Node
infrastructure under 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) shall be allowed.
5. Representations and Warranties. The following representations, warranties and
covenants are material inducements for the parties to enter into this Agreement.
5.1 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 Cable Television Franchise Ordinance No. 3116.
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 capable 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 Cable
Television Franchise Ordinance No. 3116.
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.
Final Draft Page 5
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 fi.om 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, fi.om (i) the City's use of the
Fiber Link, (ii) the management or conduct of the City'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, fi.om 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 and its assigned entity shall provide to Northland reasonable
access to any of their 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 limited
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 and 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 and its assigned entity shall indemnify, defend,
and hold Northland harmless fi.om and against any and all claims, demands and costs (including
reasonable attorney fees) liabilities, cause 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 assigned entity hereunder. Each
party shall be responsible for all property taxes imposed on its property.
9. Insurance. Northland and the City each agree that they will obtain and maintain
sufficient insurance coverage, or self-insurance, to adequately protect their respective interest in
the Fiber Link.
Final Draft Page 6
10. Early Termination of this Agreement.
10.1 Each party reserves the fight 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 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 continued ownership or use of the Fiber Link as
contemplated herein would be in violation of such conditions or restrictions.
10.2.2 Northland's franchises 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 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 Sections 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 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 may terminate this Agreement
after December 31, 2002 upon 60 days prior written notice to Northland if any of the following
events have occurred:
10.3.1 The City or its assigned entity discontinues the use of the Fiber
Link and nodes.
Final Draft Page 7
10.3.2 The City's assigned entity discontinues payment of the sublease to
the City.
10.4 In the event of termination of this Agreement in accordance with this
Section lQ after completion of construction in accordance with Subsection 1.5 or expiration of
this Agreement, the monthly fee specified at Section 3.2 shall terminate, but no portion of the
Institutional Network Payment or prepayment specified at Section 3 shall be refunded.
11. Limitation of Liability; 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, SERVANTS AND/OR AGENTS OR OTHERWISE
ARISING UNDER THIS AGREEMENT. THE FOREGOING SHALL APPLY EVEN IF
NORTHLAND HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH
DAMAGES.
11.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, NORTHLAND
HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED.
12. Electrical Power. The City shall provide electric service within the City, and
Northland shall directly pay as and when due, all charges, taxes, levies and assessments for
electric service and all electrical power used in connection with the nodes within the Fiber Link.
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 on 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 entitys', its employees', and agents' negligence or intentional
misconduct o~r 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
Final Draft Page 8
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. Fome 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 of a 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 of the
parties (any such event being hereinafter referred to a "Fome 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 Agreetnent, 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 exemising 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.
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 enfome 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.
Final Draft Page 9
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 -- Design and Performance Characteristics
Exhibit B -- Testing Procedure
Exhibit C -- 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. 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, dehvered 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.
23. 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.
24. 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
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.
25. 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 an
assignment and assumption 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 an assignment and assumption 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.
26. 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,
Final Draft Page 10
or if sent by courier service providing evidence of delivery, when actually delivered by such
service, and sent to the following:
If to the City: City of Port Angeles
P.O Box 1150
Port Angeles, WA
Glenn Cutler, P.E.
Phone: (360) 417-4800
Facsimile: (360)417-4709
If to Northland: Northland Cable Television, Inc.
1201 Third Avenue, Suite 3600
Seattle, WA 98101
Attention: Legal Department
Phone: (206) 621-1351
Facsimile: (206) 623-9015
with a copy to: Northland Cable Television
725 East First Street
Port Angeles, WA 98362
Attn.: System Manager
Phone: (360) 452-8466
Fax: (360) 457-5901Either party may change its designated address for notification by sending
notice of such change in the manner provided above.
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 NORTHLAND CABLE TELEVISION, INC.
By By
R/chard I. Clark, Executive Vice President
Its
Final Draft Page 11
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
1. 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 Cable Television Franchise Ordinance No. 3116. Northland shall
be responsible for obtaining all required easements to construct nodes.
· Two (2) single mode dark fibers originating at the Clallam County Public Utility
District Intertie node, identified in Exhibit C;
· Two (2) single mode dark fibers originating at the Clallam County Public Utility
District Intertie node, to the Washington Street Substation node, identified in Exhibit
C;
· Two (2) single mode dark fibers originating at the Clallam County Public Utility
District Intertie node, to a splice case located at 3~d and Penn Streets, identified in
Exhibit C;
· Two (2) single mode dark fibers originating at the Washington Street Substation
node, to the City Hall node, identified in Exhibit C;
· Two (2) single mode dark fibers originating at the City Hall node, to the Port of Port
Angeles node, identified in Exhibit C;
· Two (2) single mode dark fibers originating at the Washington Street Substation
node, to the Library node, identified in Exhibit C;
· Two (2) single mode dark fibers originating at the Library 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;
1. 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.
Op~ea! Fiber DeScriptmn ,~¢ fib~ optic filaments pe~ manufacturer s spee!fication~ffi be
matched dad ~a iyPi~ ifielfi; mode fiiamete~ Of a Waveieh ~:'::
nm and ;;Bat ~ ~ave!en~ of nm. me m~im~ :menuation of~e fiber
cable Will be ~at mand ~at nm,
Final Draft Page 12
3. System Design- A design:of the Fiber Link system will be provided tO the City prior to
construction. Included in be package will be proposed route drawings,cable storage
locations, spliCe point locations:and fiber splice matrix. Additionally, for eaCh:of the;fiber
pafiaS calculated 1 and path losses at and nm wavelengths
will be iltuslxated.
4. 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.
Final Draft Page 13
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,
1NC., 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").
Testing Procedure
Fiber Link Field Testing - Testing o£the 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 material delivery for
proper quality, quantity, and reliability, including but not limited to length, attenuation, and
discontinuities.
2. After Node Installation and Splicing (Final 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 of Cable Telecommunications Engineers' ("SCTE") "Recommended Practices
for Optical Fiber Construction and Testing" handbook. A copy of the SCTE handbook is
available at Northland's local business office.
All test results will be documented for future reference.
Final Draft Page 14
EXHIBIT C
Pump Station #7
I-Net Node
included in
Cable Television
Franchise
Ordinance No.
3116 relocated to
16th and I Streets.
Final Draft Page 15
WASHINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: JULY 9, 2002
TO: UTILITY ADVISORY COMMITTEE
FROM: Larry Dunbar, Power Resources Manager
RE: Institutional Network Services Agreement
Summary: At the direction of the Utility Advisory Committee (UAC) and City Council on the
institutional network (I-Net) fast-track concepts and approach, an I-Net Services Agreement is
being negotiated with Capacity Provisioning, Inc. (C.P.I.) to activate the I-Net dark fiber
backbone and nodes provided under the Fiber Optic Wide Area Network (WAN) Use Agreement
with Northland Cable Television. Additional information will be provided to the UAC either
before or at the meeting for consideration.
Recommendation: Staff will request the UAC's guidance on the Institutional Network
Services Agreement negotiation with Capacity Provisioning, Inc.
Background/Analysis: On May 14, 2002, Staff provided an information only presentation to the
UAC on I-Net activation and site drop alternatives. At the direction of the UAC, Staff began to
develop a fast-track concept and approach to compress the I-Net completion schedule. On June
4, 2002, in lieu of a competitive bidding process that would have delayed implementation of the
fast-track, the management oversight committee directed staff to pursue an 1-Net activation
agreement with C.P.I., a local service provider, who has been actively soliciting this opportunity
over the last year. On June 11, 2002, the UAC authorized staff to proceed with the fast-track
concepts and approach. On June 17, 2002, the City Council approved consulting services in
support of the fast-track concepts and approach and construction of the I-Net.
On June 19, 2002, a meeting was held with C.P.I. and a core group of potential I-Net users to
review their qualifications and proposed I-Net node equipment. Staff held another meeting with
a core group of potential I-Net users on June 26, 2002 to review a draft I-Net Service Agreement
prior to a negotiation with C.P.I. On June 27, 2002, the management oversight committee
provided guidance to staff on the draft I-Net Services Agreement prior to the negotiation with
C.P.I. On June 28, 2002, a negotiation session was held with C.P.I. On July 2, 2002, Staff held
another meeting with a core group of potential I-Net users to review the draft I-Net Service
Agreement that incorporated changes requested on June 26, 2002. On July 2, 2002, the second
negotiation session was held with C.P.I..
Negotiation of the I-Net Services Agreement with C.P.I. is not complete. Additional information
will be provided to the UAC either before or at the meeting for consideration.
WaShINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: JULY 9, 2002
TO: UTILITY ADVISORY COMMITTEE
FROM: Larry Dunbar, Power Resources Manager
RE: Proposed Capacity Provisioning Master Permit
Summary: Capacity Provisioning will be assigned the Northland Fiber Optic Wide Area
Network Use Agreement. As part of the assignement, Capacity Provisioning will construct site
drops from the institutional network (I-Net) nodes to businesses and public institutions within the
City, and provide retail telecommunications services. To enable such activities, a master permit
is required by the City's telecommunications ordinance.
Recommendation: Forward a favorable recommendation to City Council to approve the
telecommunications master permit with Capacity Provisioning, Inc.
Background/Analysis: On June 18, 2001, City Council adopted a Telecommunications, Pole
Attachment, and Wireless Telecommunications Tower and Facilities ordinance along with
updates to the existing Fees, General Provisions, Public Utility Tax, Construction or Excavation
Work Within Right-of-Way, and Right-of-Way Usc ordinances. In accordance with the
Telecommunications ordinance, entities must obtain City consent prior to construction of
telecommunications facilities and use of municipal rights-of-way. On September 4, 2001,
Capacity Provisioning, Inc. accepted a right-of-way license that enabled construction of a private
telecommunications infrastructure within the City. The primary purpose of Capacity
Provisioning's telecommunications infrastructure was for the use of the Port Angeles School
District. The right-of-way license enabled construction of telecommunications facilities at
specific locations within the City but not throughout the City.
The proposed master permit would allow Capacity Provisioning to construct fiber optic
infrastructure from I-Net nodes to reach public institutions and business end users. Capacity
Provisioning has also requested municipal consent to provide retail telecommunications services
to public institutions and business end users within the City. City approval of the master permit
is subject to approval of the I-Net Services Agreement. To simplify the review process, a
strikeout/underline version of the right-of-way license has been prepared to illustrate the
proposed changes.
D,t-u,r....... ~ OF ¥,rAY L!r'~xm~,~.~ .~.~ ACP-EESa. ENTMASTER PERMIT
This Agreement is entered into this __ day of , 299! 2002
between the City of Port Angeles (hereinafter "City") granting municipal consent to
Capacity Provisioning, Inc. (hereinafter "Grantee"), in the form of a ..~ ....... j
........ master pemnt for the purpose of constructing, maintaining, operating and using a
tm~a~-telecommunications system in public streets, alleys and rights-of-way in the City
of Port Angeles to provide _ ' private telecommunications services and
system-telecommtmications 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 ..~, ~c ...... ~ ...... ,
..... v ........ master pemut provisions;
and providing for written acceptance of the terms of this -~* ^c ...... !iccngcmaster
permit.
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 .~.h~ ~c ......
......... master permits to construct, operate, and maintain a pfivam-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
a,greement with the City and has requested municipal consent from the City to construct a
?~.,c. tc telecommunications system and has submitted a written application for this rigl:t
of--wa)%ie~ssemaster permit, which application is attached hereto as Exhibit .....
B , and
WHEREAS, the pr/;'ate telecommunications system includes facilities comprised
of conduit, lines, fiber or unlit dark fiber located in the right-of-way that are not used to
provide private telecommunications services and telecommunications services for hire,
sale or resale to the public institutions as~d business end users within the City; andgenem4
WHEREAS, the Grantee has requested municipal consent from the City to
construct, purchase, acquire, develop, finm~ce, lease, license, handle, provide, add to, or
contract for additional facilities to reach and interconnect with the institntional network
Page 1 of 8
nodes as provided by the Cable Communications Franchise No. 3116 and the Right-of-
Way License with the Clallmn County Public Utility District No. 1 within the City; and
WHEREAS, the Grantee shall comply with the City institutional network service
agreement; and
WHEREAS, on or before April 1, 2004, the Grantee, subject to City approval,
may use excess capacity in the institutional network and nodes; and
WHEREAS, nothing within this master permit 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; and
WHEREAS, nNothing within this ~g~master pemfit shall be
construed to authorize the Grantee or al....~ ..... lessee to provide '~..l~...~m.~,~.~,..._...o:~*~
~cable television services for hire, sale or resale m-emtq:woer~within the City until
Grantee or leazcc lessee has received all requisite licenses, certificates and authorizations,
the City:
WHEREAS, nothing within this master permit shall be construed to authorize the
Grantee or a lessee to provide telecommunications services or cable television sen, ices
_for hire, sale or resale to the general public within the City until Grantee or lessee 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; and
WHEREAS, as applicable, 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;
IN CONSIDERATION of the above representations and the agreements set forth
herein, the parties hereby agree as follows:
Page 2 of 8
Section 1 - Scope Of City Consent.
The City herby consents to authorize the Grantee, for a period of five (5) years
from and after the effective date of this Agreement (the "Term"), the non-exclusive right
to construct, use, operate, own and maintain a pr4vate-teleco~unication system in, on,
under and over the public rights-of-way, as described in Exhibit "B", subject to
applicable law and specifically Chapter 11.14 PAMC, hereafter referred to as the
Telecommunications Ordinance. The Grantee may obtain up to one (1) automatic
extension of the term of this Agreement for an additional five (5) year period, not to
exceed a maximum term of ten (10) years, if the Grantee is in substantial compliance
with the n~ateriat terms and conditions of this Agreement as affirmatively detenuined by
the Public Works and Utilities Director's written report to the City Council.
Section 2 - Authority Not Exclusive.
The consent conferred in Section 1 is not exclusive, pursuant to the
Telecommunication Ordinance. The Grantee shall respect the rights and property of the
City and other authorized users of the public rights-of-way.
Section 3 - 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. From and after the effective date of this
A~eement and throughout the Term of this Agreement, Grantee's telecommunications
services gross revenues shall be subiect to a public utility tax in accordance with 5.80,
Licensing and Taxation, PANIC.
Section 4 Occupation License Required.
From and after the effective date of this A.m'eement and throughout the Term of
this A~eement, the Grantee shall obtain an occupation license from the City pursuant to
Chapter 5.80, Licensing and Taxation, PAMC.
Section 4-5 - 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
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:
45.1 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
Teleconununications Ordinance or other applicable City approvals.
Page 3 of 8
45_.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.
45.3 Scheduling. The Grantee shall provide the City advance notice before
beginning construction or installation, pursuant to the Telecommunications
Ordinance.
45_.4 Commencement of Construction. Construction of the facilities
contemplated by this right-of-way license shall commence no later than one year
after the effective date of this right-of-way license; provided that such time limit
shall not apply to delays caused by acts of God, strikes, eminent domain litigation,
or other occurrences over which the Grantee has no control.
45_.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.
45.6 Inspections. The Grantee shall permit the City to conduct inspections of
construction or installation to ensure compliance with the Telecommunications
Ordinance.
45-.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.
45_.8 Removal or Relocation of Facilities. The Grantee shall remove or relocate
facilities as required by the Telecommunications Ordinance.
45_.9 Installations on City Property and Private Property. No cable line, wire,
amplifier, converter, or other piece of equipment 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.
45-.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 City may
Page 4 of 8
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. City agrees in consideration of establishing this service and
furnishing such facilities, to hold Grantee harmless from all claims and or liability
for damage, 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 from any claims or damages that may arise out of the negligent
installation, maintenance, use or operation by the City of these facilities.
45.11 Books and Records. The Grantee shall keep books and records as required
by the Telecommunications Ordinance and in accordance with generally accepted
accounting principles.
5.12 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.
5.13 Institutional Network Services A~eement. As a condition of maintaining
municipal consent under this Master Permit, the Grantee shall comply with the
Institutional Network Services A~eement. The City shall have the ri~_,ht to
terminate this Master Permit if Grantee fails to comply with the Institutional
Network Services Agreement.
Section 5-6 - 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 priming 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 6-7 - Reports.
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 g-8 - Indemnity And Insurance.
Page 5 of 8
The Grantee shall comply with applicable sections of the Telecommunication
Ordinance governing indemnity and insurance.
Section 8-9 - 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 11.14.050.
Section 9-10 - Compliance With Laws; Severability.
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.
910.1 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.
91t).2 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 10 11 - 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
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 11 12 - Sale Or Transfer.
With respect to the sale or transfer of the Grantee's franchise or
telecommunication system, the Grantee shall comply with appropriate sections of the
Telecommunications Ordinance. The City shall have the right of first refusal to acquire
the private telecommunications system owned by the Grantee, in the event of any
Page 6 of 8
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 4~-13 - Service Of Notice.
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.
12.1 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: Bill Roberds, President
54 Misty Lane, Port Angeles, WA 98362
Section 4-3-14 - Force Majeure.
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 44-15 - 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.
Section 16 - Repeal of Prior Agreement.
Upon the effective date of this A~eement, the Right-Of-Way License Agreement
entered into on September 24, 2001 is hereby repealed and is no longer in force and
effect.
Section 15 17 - Execution.
This Agreement shall take effect upon execution by the following duly authorized
representatives of the parties.
Page 7 of 8
City of Port Angeles:
By:
Glenn Cutler, Pubic Works and Utilities Director
Attest:
Becky J. Upton, City Clerk
Approved as to form:
Craig D. Knutson, City Attorney
Grantee:
by:
by:
Page 8 of 8
WASHINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: JULY 9, 2002
TO: UTILITY ADVISORY COMMITTEE
FROM: Larry Dunbar, Power Resources Manager
RE: Proposed Clallam County PUD Right-of-Way License Amendment
Summary: An amendment to the right-of-way license with the Clallam County Public Utility
District No. 1 (District) was anticipated to provide an interconnection of District fiber optic
infi'astmcture to the institutional network (I-Net). An amendment is no longer necessary because
the District will provide an interconnection outside of the City limits which is within the
District's legal authority.
Recommendation: No action required.
Background/Analysis: On September 11, 2001, the District accepted a right-of-way license that
enabled construction of telecommunications infrastructure within the City for the District's own
use. The license enabled construction of telecommunications facilities along a specific route
within the City but not throughout the City. The license did not authorize the District to provide
wholesale or retail telecommunications services or connect their infrastructure to any end users
within the City. The District has limited legal authority to provide services and interconnections
outside of their service area.
As part of the I-Net fast-track plan and schedule, an interconnection of the District's
infrastructure at their headquarters facility to the I~Net is anticipated. An amendment to their
license is not required since their headquarters facility is located outside of the City limits. The
interconnection would allow wholesale wide are networking (within the City and District service
areas) and broadband Intemet services to be provided. As part of the I-Net fast-track plan and
schedule, the District would be authorized to provide wholesale telecommunications services,
using the City as the retailer or a City assigned entity as the retailer, to public institutions and
business end users within the City.
The District will not charge for the interconnection to the I-Net. The interconnection will
provide a sizeable wholesale telecommunications service opportunity for the District. In the
event the City or its assigned entity requires rack space within the District's telecommunications
hut at its headquarters facility, charges would be incurred.
WASHINGTON, U.S.A.
UTILITY ADVISORY COMMITTEE MEMO
DATE: JULY 9, 2002
TO: UTILITY ADVISORY COMMITTEE
FROM: Larry Dunbar, Power Resources Manager
RE: Institutional Network Implementation Consulting Services - Monthly Status Report
Summary: This is an informational report on Metropolitan Communications Consultants
activities from June 18, 2002 through the end of June 2002. The advisory services include
support with the I-Net fast-track and during construction of the I-Net backbone.
Recommendation: Information only, no action required.
I-Net Fast-Track Advisory Services ($20,000 authorized time & materials budget)
Task Activity Billing
Project Management Support None $0.00
I-Net Service Agreement Development Completed 6/27/02 $4,972.50
Service Agreement Negotiation 6/28/02 conference call $487.50
Total $5,460.00
I-Net Backbone Construction Advisory Services ($25,000 authorized lump sum budget)
Task Activity Billing
Project Management Support None $0.00
Plans & Specifications Review Anticipated by 7/30/02 $0.00
Construction Phase Engineering None $0.00
Fiber Testing Observation None $0.00
Final Inspection None $0.00
Total $0.00