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HomeMy WebLinkAbout5.620 Amendment (3) 5. ~~ -3 ~l' THIRD AMENDMENT TO INSTITUTIONAL NETWORK SERVICES AGREEMENT BETWEEN THE CITY OF PORT ANGELES AND CAPACITY PROVISIONING, INC. THIS A~DMENT to Institutio I Network Services Agreement is made and entered into m duplicate this -llL-liDotiay of 2004 by and between the City of Port Angeles, a Washington municipal corporation, he in ter the "City", and Capacity Provisioning Inc., a subchapter S Washington corporation, hereinafter "CP.I. If. REPRESENTATIONS 1. On September 6, 2002, the CIty and CP.!. entered into an Instituhonal Network Services Agreement. 2. On December 31, 2002, the City and CP.I. agreed to amendment one to the Institutional Network Services Agreement. On December 31, 2002, the City and WaveDivision Holdings, LLC, hereinafter "Wave", entered into the first amendment to the Fiber Optic Wide Area Network Use Agreement. 3. On November 18, 2003, the CIty and Wave, entered into the second amendment to the Fiber Optic Wide Area Network Use Agreement. On December 2, 2003, the CIty and CP.!. agreed to amendment two to the Institutional Network Services Agreement. 4. The City and CP.!. desire to facIlitate further network interconnections in accordance with the CIty'S economic development goals, and the City is interested in considering additional marketing service options under this Agreement. 5. Tqe parties have decided that it is in their mutual benefit to amend the Agreement in accordance with Section 5.16 of the Agreement and the terms set forth below. AGREEMENTS IN CONSIDERATION of the above representations and the agreements set forth herein, the parties agree that the above-referenced agreement shall be amended by amending Sections 2.10 and 3.3 of the Institutional Network Services Agreement to read as follows: 2.10 Service Options (1) CP.I. shall make reasonable efforts to make arrangements with the Clallam County PUD No.1 (District), and/ or Wave, and/ or Qwest Communications, Ine. to interconnect the CP.I. network to provide wide area networking service with the District, Wave, and/ or Qwest no later than March 31, 2003, or a later date if approved by the City Manager. Such arrangement shall provide wide area networking within both the City limits and Clallam County service areas, to the extent comparable wide area networking services within the Clallam County service area is available and commercially reasonable. CP.I. shall complete and return Exhibit 6.5 Schedule 3 to the City no later than March 31,2003, or a later date if approved by the City Manager. page 1 Prior to interconnecting the CP.!. network to another wide area network, CP.I. shall provide a detailed description of the network security to be provided by such interconnection, which shall be in accordance with Exhibit 6.4 Section 4 unless otherwise approved by CP.!. and the City Manager, and shall be considered confidential in accordance with Section 5.2. On or before August 20, 2004 or a later date if approved by the City Manager, within ninety (90) days of the City's request, CP.I. shall provide another interconnection point, that provides a diverse physical route from Port Angeles to Sequim, to be specified by the City. The City shall not incur any charges until the City provides notice in writing to CP.I. agreeing to pay the wide area networking service charges within Exhibit 6.5 Schedule 3 and the cost of the interconnections. If CP.!. makes an arrangement with the District, the City may require that the arrangement includes a second redundant logical interconnection, in addition to the interconnection provided by Wave pursuant to the WAN Use Agreement, from an I-Net node to a District interconnection point to be specified by the City. The City shall not incur any charges until the City provides notice in writing to CP.I. agreeing to pay for the cost of the interconnections. In the event a telecommunications service provider requests in writing an interconnection and/ or access to the CP.!. network or dark fibers for private telecommunications systems, in writing, CP.I. shall make commercially reasonable and lawful non-exclusive arrangements for such an interconnection and/ or network access. The arrangement may include but is not limited to commercially reasonable terms and conditions for payment to CP.!. of all recurring and non-recurring costs, network security, problem reporting and restoration of service procedures, service level standards, and polIcies related to VLAN and dark fiber service sharing among single and common user group entities and private shared telecommunications services. CP.I. shall not impose a CP.I. non-recurring or recurring service charge for an interconnection for a Public Safety VLAN or for Public Safety dark fIber service. CP.!. reserves the right to collect co-location, non-recurring and recurring service charges for an interconnection if such charges are imposed by the interconnecting telecommunications service provider. (2) c.P.I. shall make reasonable efforts to make arrangements with qualified service providers, and commercial monthly charges shall be established for retail broadband Internet access services within the City limits. CP.I. shall complete and return Exhibit 6.5 Schedule I.E. and provide a schedule for regular commercial Internet access service charges to the City, for each retail service provider entering into an agreement with CP.!., no later than March 31,2003, or a later date if approved by the City Manager to satisfy this requirement. CP.I. charges to the City for retail broadband Internet access services shall be in addition to the charges included in Exhibit 6.5 schedule 1 for wide area networking. Upon the request of a qualified retail service provider, CP.!. shall provide wholesale services subject to a charge to be paid by the retailer and reasonable contractual restrictions by c.P.I. based on competitive market conditions. The City shall not incur any charges until the City provides notice in writing to CP.I. agreeing to pay the retail broadband Internet access service charges. CP.!. agrees to make reasonable efforts to negotiate agreements with retail Internet service providers, whether affiliated or unaffiliated with CP.!, to provide retail broadband Internet access services within the City. CP.I. agrees to negotiate first with all retail Internet service providers that currently conduct business on the North Olympic Peninsula and express an page 2 "'i'J ~ i\_-:'-""~' <-l' - ~ - "'-~.- j interest in such an arrangement with CP.I.; provided that if no such arrangements have been reached by March 31, 2002, or a later date if approved by the City Manager, CP.!. may negotiate with any qualified retail Internet service provider. Said arrangements shall be subject to CP.!. and retail Internet service providers reaching an agreement based on commercially reasonable terms and conditions. CP.I. shall be permitted to provide wholesale broadband Internet access. CP.!. shall also be permitted to charge a fee for wholesale Internet access, wholesale use of the I-Net, and wholesale use of CP.!. I-Net node equipment, s~te drops, and all other appurtenant infrastructure. Furthermore, CP.!. shall be permitted to impose reasonable contractual restrictions based on competitive market conditions to retail broadband Internet service providers. CP.I. shall use commercially reasonable efforts to ensure that the retail broadband Internet access services provided over the I-Net 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, institutions and businesses that receive the service will be able to reach the Internet. The City hereby recognizes that CP.! may provide wholesale Internet access and that qualified service providers may provide retail Internet access services without obtaining other City approvals. ,,(3) Upon written City request, CP.!. shall establish a City base charge for fully scalable VoIP -' . services including a suite of enhanced phone features for municipal facilities. Within " ninety days of the City's written request, CP.!. shall complete and return Exhibit 6.5 Schedules 1.0. to the City to satisfy this requirement. The City and CP.!. shall mutually agree upon the VoIP implementation schedule. Upon completion and written City acceptance of such implementation, the City shall begin to incur a monthly base charge for V oIP services. The City shall not incur any charges until the City provides notice in writing to CP.I. agreeing to pay VoIP service charges. Upon City request, CP.I. shall provide VoIP support services. The charge for VoIP support services shall be in accordance with Exhibit 6.5 Schedule 1.C Upon written City request, CP.I. shall also establish a commercial monthly charge for VoIP services for institutions and businesses. (4) Upon request from public institutions to CP.!., subject to the availability of initial or additional dark fibers within the I-Net backbone from node to node, CP.!. may provide dark fiber marketing services to the City for public institutions to use the I-Net backbone for non-commercial purposes. Dark fiber marketing services shall include operation, maintenance and management of the I-Net backbone dark fibers and marketing, billing, and all other functions necessary to provide dark fiber marketing services under this Agreement. Use of the I-Net 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 CP.!. and the City Manager. CP.!. 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 CP.!. of all recurring and non-recurring costs, network security, problem reporting and restoration of service page 3 procedures, service level standards, 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 CP.!. for dark fiber marketing services shall be based on competitive market conditions. The recurring service charge and duration of dark fiber marketing services shall be mutually agreed to in writing by CP.I. and the Gty Manager and the recurring service charge shall be in accordance with Subsection 4.2. There shall be no non-recurring or recurring service charges for use of up to four (4) I-Net backbone dark fibers used for non-commercial public safety purposes. The Gty retains the right to recall CP.I. use of additional I-Net backbone dark fibers, limited to a maximum of two (2) dark fiber strands per year, upon one year's written notice from the Gty Manager to CP.I. (5) CP.!. may provide dark fiber site drop services from the I-Net nodes or CP.!. owned infrastructure to public institutions. The recurring and non-recurring service charges established by CP.!. for dark fiber site drops to public institutions shall be based on competitive market conditions and is not subject to an I-Net Growth Discount in accordance with Subsection 4.2. (6) Upon written Gty request, CP.I. shall establish non-recurring and/or recurring service charges and make arrangements for off-site data storage and remote data backup services using the I-Net. The arrangement shall include but is not limited to commercially reasonable terms and conditions for security, confidentiality, fire protection, and Gty access to CP.!. storage facilities. Within ninety (90) days of the Gty's written request, CP.!. shall provide a detailed written description of such an arrangement including non- recurring and recurring service charges to satisfy this requirement. The Gty and CP.!. shall mutually agree upon the implementation schedule. Upon completion and written Gty acceptance of such implementation, the Gty shall pay any non-recurring service change and begin to incur a recurring service charge for said services. The City shall not incur any charges until the City provides notice in writing to CP.!. agreeing to pay for off- site data storage and/ or remote backup service charges. Upon written Gty request, CP.!. shall also establish a commercial monthly charge for off-site data storage and/or remote backup services for institutions and businesses. (7) Upon written Gty request, CP.!. shall provide web site support services which inay include but are not limited to, web-site and web-page design, graphic design, development, programmin~ set-up and testin~ and maintenance, submission, and related support services. The charge for web site support services shall be in accordance with Exhibit 6.5 Schedule 1.F. (8) On or before July L 2004 and January 1st of each subsequent year during the Term of this Agreement, CP.I. shall develop a written marketing strategy, including but not limited to target markets, marketing activities per target market. and an implementation and cost schedule. The proposed strategy shall be delivered to the Gty Manager. The goal of the marketing strategy shall be to increase prospective customer awareness of the I-Net, advance the Gty's economic development strategies, and to annually increase connections to the I-Net by five percent (5%). The I-Net may be referred to by an alternative name for promotional purlJoses. page 4 , ' The City Manager shall review and may (at his discretion) approve the marketing strategy subject to the availability of City funds. Unless otherwise approved by the City Manager, the City shall not be obligated to pay more than fifty percent (50%) of the cost to implement the marketing strategy. The City's cost shall be included in the montWy service charges to be paid by the City to c.P.!. The City shall pay c.P.!. all service charges in accordance with the marketing strategy. Th~ City shall not be obligated to pay any charges until the City Manager provides notice in writing to c.P.I. agreeing to pay for the marketing strategy. All marketmg materials, including but not limited to media advertisements, web pages, and brochures shall be approved by the City Manager prior to public distribution or availability. Web site support services provided by COP.!! as part of the marketing strategy shall be in accordance with Sectioh'2.10(7). All marketing materIals shall include the statement "In cooperation with the City of Port Angeles". 3.3 Services Provided to the City c.P.!. shall provide wide area networking I-Net Services to the City in accordance with the service requirements contained in Exhibit 6.3. At no additional charge to the City, c.P.!. shall provide the I-Net. node equipment, expansions to I-Net node equipment capacity as reqUired, and I-Net operation, maintenance and management services required to meet its obligations to the City under this Agreement. Except as expressly provided herein, c.P.!. shall alse-be responsible for marketing, billing, and all other retail services necessary to provide regular commercial services under this Agreement. page 5 '. AGREED TO BETWEEN THE PARTIES on the last date written below. ~:ONO~ By: ATTEST: bD~f)>'H~A City Oerk ~ - - t/'-/ Date ~--18-O V Date ~;;Sk City Attorney page 6