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Home My WebLink About5.620 Amendment (5) 5. (r;~D EXTENSION AND FOURTH AMENDMENT TO INSTITUTIONAL NETWORK SERVICES AGREEMENT BETWEEN THE CITY OF PORT ANGELES AND CAPACITY PROVISIONING, INC. THIS EXTEN~N AND A END ENT (hereafter "this Amendment") is made and entered into in duplicate this ~ ay of 2009 by and between the City of Port Angeles, a Washington municipal corporation, R reinaf the "City", and Capacity Provisioning Inc., a Washington corporation, hereinafter "CP.I. ". IN CONSIDERATION of the agreements set forth herein, the parties recite, covenant, and agree as follows: REPRESENT A TIONS 1. On September 6, 2002, the City and CP.I. entered into an Institutional Network Services Agreement (hereafter "the Services Agreement"). 2. On December 31, 2002, the City and CP.I. agreed to amendment one to the Services Agreement (hereafter "the First Amendment). 3. On December 2, 2003, the City and CP.I. agreed to amendment two to the Institutional Network Services Agreement (hereafter "the Second Amendment). 4. On May 18, 2004, the City and CP.I. agreed to amendment three to the Institutional Network Services Agreement (hereafter "the Third Amendment). 5. The City will be completing a competitive request for proposals process for a new Institutional Network Services Agreement. To allow additional time for that process, and for the benefit of both parties, the City and CP.I. desire to extend the term of the Services Agreement for one year and to provide a service charge discount. 6. The parties have decided that it is in their mutual benefit to amend the Services Agreement in accordance with Section 5.16 of the Agreement and the terms set forth below. EXTENSION OF SERVICES AGREMENT The Initial Term of the Services Agreement expires on September 6, 2009. The Services Agreement provides that the Initial Term may be extended. The parties hereby agree to implement a one year Extended Term, in accordance with and as provided in the Services Agreement. The Extended Term of the Services Agreement shall expire on September 6, 2010. AMENDMENTS TO SERVICES AGREEMENT The following provisions of the Services Agreement and of the First Amendment, the Second Amendment, and the Third Amendment, hereby are amended, in their entirety, to read as follows: 2.4 Agreement Term page 1 This Agreement shall commence as of the date of the execution of this Agreement and shall continue for seven (7) years (the Initial Term); provided, however, the City at its own discretion may, on or before 30 days prior to the expiration of the Agreement, grant annual one (1) year extensions of this Agreement, to extend the total term up to a maximum of ten (10) years (the Extended Term), subject however to the governing terms of the City/}J€lrthhuul W.^.}J Use .^.greemeRt] Cable Television Franchise Ordinance No. 3116, and the same terms and conditions as set forth herein (other than Exhibit 6.5 schedule 2 and 3 pricing which may be negotiated by the parties).. Upon commencement of the Extended Term, if any, the City agrees to pay the base monthly service charge shown in Exhibit 6.5 Schedule 1.A. for wide area networking less a $2.250 monthlv discount and site drop services to City facilities included in Exhibit 6.3 schedules 1 and 2 for a total number of equivalent 100 Mbps Ethernet ports equal to eighteen (18). During the Extended Term, if any, the City, institutions, and businesses shall be provided at least thirty days advance notice of any changes to Exhibit 6.5 schedules 2 and 3. CP.I. shall complete and return Exhibit 6.5 to the City, institutions, and businesses to satisfy the advance notice requirement. The Term of this Agreement may exceed the Initial and Extended Terms if the I-Net node equipment and/ or customer premises equipment is upgraded to match current technology in accordance with Section 5.16. The City and CP.I. shall mutually agree upon the upgrade implementation schedule and an amendment to Section 2.4, Exhibit 6.5., and other terms and conditions of this Agreement. Upon completion and written City acceptance of such upgrade, the Term of this Agreement shall be increased by a minimum of five years. 2.6 WAN Use Agreement Assignment and Payments The City and Northland have entered into a WAN Use Agreement dated August 27,2002, and attached hereto as Exhibit 6.1. In the WAN Use Agreement, Northland has granted to the City or its assigned entity an exclusive right to activate and use certain portions of Northland's fiber optic infrastructure, to establish a fiber optic wide area network ("Fiber Link"), including nodes, for use in providing retail telecommunications services to public institutions and businesses including home offices but not to the general public. The City agrees to assign all of its right, license and interest in its WAN Use Agreement with Northland to CP.I. for CP.I.'s use in providing retail telecommunications services to the City, public institutions and businesses, including home offices but not to the general public consistent with Chapter 11.14 PAMC, Telecommunications Facilities within Rights-of-Way and the Cable Television Franchise Ordinance No. 3116. c.P.I. hereby assumes all obligations of the WAN Use Agreement, except as provided in this Section, and agrees to perform and discharge those obligations in accordance with its terms and conditions. CP.I. agrees to indemnify the City against any losses, claims, damages or liabilities to which either or both parties may become subject to or which arise out of, or in connection with, the WAN Use Agreement. The City shall be responsible for and timely pay to Northland the I-Net payment required by Section 3.1 and the monthly payments required by Sections 3.2 and 3.3 of the assigned WAN Use Agreement. Upon the completion of the I-Net under the Cable Television Franchise Ordinance No. 3116, which is anticipated no later than February 27,2004, CP.I. shall interconnect the I-Net fibers to I-Net node equipment for City and institutional use and shall have continuing City consent to use up to twenty five (25) rack-units within each I-Net node enclosure and up to eight (8) dark fibers throughout the I-Net backbone. Upon CP.I. request, additional rack-units and dark fibers may be provided by the City subject to a charge to be paid by CP.I. and reasonable contractual restrictions by the City based on competitive market conditions. To the extent the I-Net will be utilized by businesses after February 27, 2004, as the City's assignee and in accordance with the Fiber Optic WAN Use Agreement, CP.I. shall be provided the first right of refusal to use two (2) of Northland's reserve fibers under the Cable Television Franchise Ordinance No. 3116 for commercial use subject to a charge to be paid by CP.I. and reasonable contractual page 2 restrictions by Northland based on competitive market conditions and shall have continuing City consent to use up to twenty five (25) rack-units within each I-Net node enclosure and up to eight (8) dark fibers throughout the I-Net backbone. To the extent that CP.I. requires continued use of I-Net enclosures beyond expiration of this Agreement, upon CP.I. written request, which must be received by the City within sixty (60) days of expiration of this Agreement, CP.I. shall be entitled to irrevocable use of up to twenty five (25) rack-units within each I-Net node enclosure, sulljeet te a €ftargE! t@ he paid hy at no charQ:e to CP.I. but subject to reasonable contractual restrictions by the City hasE!d eft eempetitive marhet €eft€litieft3, continuing beyond expiration of this Agreement, as provided in Section 5.6, Survival. The parties recognize and acknowledge that the rights and interests of Northland in the above referenced agreements and ordinance have been acquired by WaveDivision Holdings, LLC, a Delaware limited liability company. Section 4.2, City I-Net Growth Discount, of the Services Agreement is deleted. These amendments to the Services Agreement shall be effective from and after September 7, 2009. SERVICES AGREEMENT, AS AMENDED, RATIFIED Except as expressly provided above, the Services Agreement is ratified and confirmed. AGREED TO BETWEEN THE PARTIES on the last date written below. c-- 7 -3/-0'; Date CITY OF PORT ANGELES .~o~ By: ,7/7~ / Date ATTEST: ~~ge~ J_Jw"- City Clerk 7 \ C .' " page 3