HomeMy WebLinkAbout5.584 Original Contract (2)RIGHT -OF -WAY LICENSE RENEWAL NO. 1
This Agreement is entered into this E At of 2007 between
the City of Port Angeles (hereinafter "City granting municipal consent to Capacity
Provisioning, Inc. (hereinafter "Grantee in the form of a right -of -way license for the
purpose of constructing, maintaining, operating and using a telecommunications facility
or a telecommunications system in public streets, alleys and rights -of -way in the City of
Port Angeles to provide private telecommunications services and telecommunications
services to public institutions and business end users within the City; providing for
general and administrative provisions; providing fees and compensation for the privileges
conferred under this right -of -way license; providing conditions; providing for
enforcement of right -of -way license provisions; and providing for written acceptance of
the terms of this right -of -way license.
WHEREAS, the City of Port Angeles, pursuant to federal law, state statutes, and
local ordinances, is authorize& to consent to one or more non exclusive right -of -way
licenses to construct, operate, and maintain a telecommunications system in the public
rights -of -way within the municipal boundaries of the City as designated in Exhibit "A"
"City Area and
WHEREAS, the Grantee has entered into an Institutional Network Service
Agreement with the City, which is attached hereto as Exhibit `B and has requested
municipal consent from the City to construct, operate and maintain a telecommunications
system; and
WHEREAS, the telecommunications system includes facilities comprised of
conduit, lines, fiber, active or passive dark fiber, utility poles, and other
telecommunications facilities located in the right -of -way that are used to provide private
telecommunications services and telecommunications services for hire, sale or resale to
public institutions and business end users within the City; and
WHEREAS, the Grantee has requested municipal consent from the City to
construct, purchase, acquire, develop, finance, lease, license, handle, provide, add to, or
contract for additional facilities to reach and interconnect with the institutional network
nodes as provided by the Cable Communications Franchise No. 3116
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5.58/
IN CONSIDERATION of the above representations and the agreements set forth
herein, the parties hereby agree as follows:
Section 1 Definitions. The definitions of all words not defined herein shall be as
used in the Revised Code of Washington and the following Chapters of the Port Angeles
Municipal Code: Chapter 11.14 Telecommunications, Chapter 3.70 Revenues and Fees,
Chapter 5.04 Licensing, Chapter 5.80 Taxation, Chapter 11.08 Construction or
Excavation Work Within Rights -of -Way, Chapter 11.12 Right -of -Way Use, Chapter
13.14 Pole Attachments, and Chapter 17.52 Wireless Telecommunications Towers and
Facilities, which are incorporated herein for all purposes.
Section 2 Scope Of City Consent.
The City hereby consents to authorize the Grantee, a renewed term for a period of
five (5) years from and after the effective date of this Agreement (the "Term to
exercise the non exclusive right to construct, purchase, acquire, develop, finance, lease,
license, handle, provide, add to, contract for additional facilities, use, operate, own, and
maintain a telecommunication system in, on, under and over the public rights -of -way, to
reach and interconnect with institutional network nodes as provided by the Cable
Communications Franchise Ordinance No. 3116 and the I -Net Services Agreement,
subject to applicable law and specifically Chapter 11.14 PAMC, hereafter referred to as
the Telecommunications Ordinance.
Section 3 Authority Not Exclusive.
The consent conferred in Section 2 is not exclusive, pursuant to the
Telecommunications Ordinance. The Grantee shall respect the rights and property of the
City and other authorized users of the public rights -of -way.
Section 4 Fees And Compensation.
From and after the effective date of this Agreement and throughout the Term of
this Agreement, the Grantee shall pay the City all taxes, fees and compensation pursuant
to the Telecommunications Ordinance and the Institutional Network Services Agreement.
From and after the effective date of this Agreement and throughout the Term of this
Agreement, Grantee's telecommunications services gross revenues shall be subject to a
public utility tax in accordance with Chapter 5.80, Licensing and Taxation, PAMC.
Section 5 Occupation License Required.
From and after the effective date of this Agreement and throughout the Term of
this Agreement, the Grantee shall obtain an occupation license from the City pursuant to
Chapter 5.80, Licensing and Taxation, PAMC.
Section 6 Construction and Operation of the Telecommunication System.
In constructing and operating its telecommunication system, the Grantee shall
comply with all applicable requirements of the following Chapters of the Port Angeles
Page 2 of 8
1. 1
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:
6.1 Permits Required. Grantee shall not construct, reconstruct, or relocate the
telecommunication system (or parts thereof) within the public rights -of -way or on
City property unless authority has been obtained in accordance with the
Telecommunications Ordinance or other applicable City approvals. Nothing
within this right -of -way license shall be construed to authorize the Grantee or a
lessee to make interconnections within the City or connections with end users
within the City not authorized by this Agreement. Nothing within this right -of-
way license shall be construed to authorize the Grantee or a lessee to provide
telecommunications services and/or cable television services for hire, sale or
resale to the general public within the City until Grantee or lessee has obtained a
master permit and/or a cable television franchise from the City and has registered
and received all requisite licenses, certificates and authorizations from the Federal
Communications Commission, the Washington Utilities and Transportation
Commission, or any other federal or state agency having jurisdiction.
6.2 Plan Review. Grantee shall not commence construction unless and until all
maps and other documents are provided to the City, in accordance with Chapter
11.14 Telecommunications, Chapter 5.04 Licensing, Chapter 5.80 Taxation,
Chapter 11.08 Construction or Excavation Work Within Rights -of -Way, Chapter
11.12 Right -of -Way Use, and Chapter 13.14 Pole Attachments.
6.3 Scheduling. The Grantee shall provide the City advance notice before
beginning construction or installation, pursuant to the Telecommunications
Ordinance.
6.4 Commencement of Construction. Construction of the facilities
contemplated by the September 9, 2002 right -of -way license was completed. Any
reconstruction, additional construction, and maintenance work shall comply with
this right -of -way license..
6.5 Construction Standards. Grantee shall comply with construction standards
in accordance with Section 11.14.040 of the Telecommunications Ordinance. In
addition, any employee, contractor, vendor or agent assigned to work on the
Page 3 of 8
installation, maintenance, or repair of system equipment must be properly
licensed under the laws of the State of Washington and the City of Port Angeles.
6.6 Inspections. The Grantee shall permit the City to conduct inspections of
construction or installation to ensure compliance with the Telecommunications
Ordinance.
6.7 Restoration of Property. At its own cost and expense, Grantee shall within
ten (10) calendar days restore property on public or private lands disturbed by
Grantee's activities, pursuant to the Telecommunications Ordinance.
6.8 Removal or Relocation of Facilities. The Grantee shall remove or relocate
facilities as required by the Telecommunications Ordinance.
6.9 Installations on City Property and Private Property. No cable line, wire,
amplifier, converter, utility pole, or other telecommunications facilities owned by
the Grantee shall be installed by the Grantee on any City property or private
property without first securing the written permission of the City or a grant of
authority as required under this Agreement or written permission of the property
owner and/or lawful occupant of any property involved.
6.10 City Use of Grantee's Facilities. In consideration of the rights and
privileges hereby granted, the City shall have, and Grantee hereby grants to the
City, the right and privilege to suspend and maintain wires and necessary control
boxes on poles placed by the Grantee in the streets, and other places aforesaid, or
if such wires are placed underground, to place and maintain in the pipes or
conduits of the Grantee, if space therein is available, wires which the City may
require for telecommunications, electrical, water, wastewater, fire, police, or
emergency services. All such wires must be placed on the poles or in conduits so
as not to interfere with communications service and shall not carry currents or
voltage dangerous to Grantee's plant or Grantee's users, and all installations,
maintenance and repairs shall be subject to the rules, regulations and supervision
of the Grantee. The City agrees in consideration of establishing this service and
furnishing such facilities, to hold Grantee harmless from all claims and/or liability
for damages, which may arise out of operating these wires and control boxes.
Further, where such facilities have been installed or maintained by the City and
not solely by Grantee, the City agrees to hold the Grantee harmless from all
liability for any claims or damages that may arise out of the negligent installation,
maintenance, use or operation by the City of these facilities.
6.11 Books and Records. The Grantee shall keep books and records as required
by the Telecommunications Ordinance and in accordance with generally accepted
accounting principles.
Page 4 of 8
6.12 Underground Utilities. The Grantee shall subscribe to the One Call
Locator Service and comply with all regulations of Chapter 19.122 RCW for its
telecommunications system within the City.
6.13 Institutional Network Services Agreement. As a condition of maintaining
municipal consent under this right -of -way license, the Grantee shall comply with
the Cable Communications Franchise No. 3116, and the Institutional Network
Services Agreement. The City shall have the right to terminate this right -of -way
license if Grantee fails to comply with the Institutional Network Services
Agreement.
Section 7 Tree Trimming.
Upon ten (10) days' written notice provided to the Director, except in an
emergency of imminent danger to persons or property, the Grantee may trim trees or
other vegetation owned by the City or encroaching upon the public right -of -way to
prevent branches or leaves from touching or otherwise interfering with its wires. All
trimming or pruning within environmentally sensitive areas shall be subject to applicable
requirements of Chapter 15.20 PAMC Environmentally Sensitive Areas Protection. All
trimming or pruning shall be at the sole cost of the Grantee. The Grantee may contract
for said trimming or pruning services with any person approved by the City prior to the
rendering of said services.
Section 8 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 9 Insurance.
The Grantee shall comply with Section 11.14.120(E) of the Telecommunication
Ordinance governing insurance and shall submit to the City a certificate of insurance that
demonstrates such compliance.
Section 10 Indemnity.
The Grantee hereby releases, covenants not to bring suit, and agrees to indemnify,
defend and hold harmless the City, its officers, employees, agents and representatives
from any and all claims, costs, judgments, awards or liability to any person, including
claims by the Grantee's own employees to which the Grantee might otherwise be immune
under Title 51 RCW, arising from injury or death of any person or damage to property, of
which the negligent acts or omissions of the Grantee, its agents, servants, officers or
employees in performing under this license, master permit, or lease are the proximate
cause.
The Grantee further releases, covenants not to bring suit, and agrees to indemnify,
defend, and hold harmless the City, its officers and employees from any and all claims,
costs, judgments, awards or liability to any person including claims by the Grantee's own
employees, including those claims to which the Grantee might otherwise have immunity
Page 5 of 8
under Title 51 RCW, arising against the City solely by virtue of the City's ownership or
control of the rights -of -way or other public properties, by virtue of the Grantee's exercise
of the rights granted herein, or by virtue of the City's permitting the Grantee's use of the
City's rights -of -way or other public property, based upon the City's inspection or lack of
inspection of work performed by the Grantee, its agents and servants, officers or
employees in connection with work authorized on the City's property or property over
which the City has control, pursuant to this license, master permit, or lease or pursuant to
any other permit or approval issued in connection with this license, master permit, or
lease.
This covenant of indemnification shall include, but not be limited by this
reference to, claims against the City arising as a result of the negligent acts or omissions
of the Grantee, its agents, servants, officers or employees in barricading, instituting
trench safety systems, or providing other adequate warnings of any excavation,
construction or work in any public right -of -way or other public place in performance of
work or services permitted under this license, master permit, or lease.
Section 11 Grantee Default And Remedies.
If Grantee fails to comply with or is in violation of this Agreement or the
Telecommunication Ordinance, Grantee will be subject to termination and remedies as
provided for in PAMC 11.14.120 and 11.14.130.
Section 12 Compliance With Laws; Severability.
12.1 Notwithstanding any other provisions of this Agreement to the contrary,
the Grantee shall at all times comply with all applicable police powers and
regulations of the City and all administrative agencies thereof.
12.2 If any provision of this Agreement or any related ordinance is held by any
court or by any federal, state, or local agency of competent jurisdiction to be
invalid as conflicting with any federal, state or local law, rule or regulation now or
hereafter in effect, or is held by such court or agency to be modified in any way in
order to conform to the requirements of any such law, rule or regulation, said
provision shall be considered as a separate, distinct and independent part of this
Agreement, and such holding shall not affect the validity and enforceability of all
other provisions hereof or thereof. In the event that such law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed, so that the
provision hereof or thereof which had been held invalid or modified is no longer
in conflict with the law, rules and regulations then in effect, said provision shall
thereupon return to full force and effect and shall thereafter be binding on the
parties hereto, provided that the City shall give the Grantee sixty (60) days written
notice of such change before requiring compliance with said provision.
12.3 If the City determines that a material provision of this Agreement is
affected by such action of a court of the federal, state or local government, the
City and Grantee shall have the right to modify any of the provision hereof or in
Page 6 of 8
It t
such related ordinances to such reasonable extent as may be necessary to carry out
the full intent and purpose of this Agreement.
Section 13 Taxes, Permit And Other Fees.
Nothing contained in this Agreement shall be construed to exempt the Grantee
from any tax levy, permit fee or assessment, including but not limited to application,
inspection, pole attachment, excavation impact, or tree trimming fees, which are or may
be hereafter lawfully imposed on all entities engaged in the same business as the Grantee,
or as are generally applicable in the City or State.
Section 14 Sale Or Transfer.
With respect to the sale or transfer of the Grantee's telecommunication system,
the Grantee shall comply with appropriate sections of the Telecommunications Ordinance
and the I -Net Services Agreement. The City shall have the right of first refusal to acquire
the telecommunications system owned by the Grantee, in the event of any transfer,
assignment or sale, at fair market value for a period of sixty (60) days following service
of notice to the City in accordance with this agreement.
Section 15 Service Of Notice.
15.1 All notices required or permitted to be given to either party by the other
party under any provisions of this Agreement shall be in writing and shall be deemed
served as follows:
(a) When delivered by hand or by Federal Express or similar service to that
party's address set forth below during normal hours; or
(b) When mailed to any other person designated by that party in writing
herein to receive such notice, via certified mail, return receipt requested.
15.2 Notice shall be given to the following:
(a) If to the City: Glenn Cutler, Public Works and Utilities Director
P.O. Box 1150, Port Angeles, WA 98362 -0217
(b) If to Grantee: Bill Roberds, President
54 Misty Lane, Port Angeles, WA 98362
Section 16 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 17 Construction And Jurisdiction.
In the event of any conflict between this Agreement and the Telecommunications
Ordinance, the terms of the Telecommunications Ordinance shall prevail and control.
Page 7 of 8
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 18 Repeal of Prior Agreement.
Upon the effective date of this Agreement, the Right -Of -Way License Agreement
Amendment No. 1 entered into on September 9, 2002 is hereby repealed and is no longer
in force and effect.
Section 19 Execution.
This Agreement shall take effect upon execution by the following duly authorized
representatives of the parties.
City of Port Angeles:
By:
Glenn Cutler, Pubic Works Utilities Director
Attest:
69 el
Becky J. Un, (qty Clerk
Appr9wed as to form:
N \PWKSILIGHT1POWMU- NETCAPACITY PROVISIONING APPROVEDW GREEMENTS\ROWLICNESERENEWAL2 DOC
William Bloor, City Attorney
Grantee-
by:
by:
Page 8 of 8
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PURPOSE
RECITALS
1. DEFINITIONS
INSTITUTIONAL NETWORK SERVICES AGREEMENT BETWEEN
THE CITY OF PORT ANGELES AND CAPACITY PROVISIONING, INC.
2. SPECIAL PROVISIONS
2.1 Agreement is Non Exclusive
2.2 Occupation License Required
2 3 Right -of -Way License Required
2.4 Agreement Term
2.5 Cooperative Service Acquisition Agreements
2 6 WAN Use Agreement Assignment and Payments
2.7 Due Diligence
2.8 Surety Bond
2 9 Certification
210 Service Options
211 Local Area Network (LAN) Services
2.12 Background Checks
3. SERVICES AND SITE DROPS
3.1 City Service Locations
3 2 Additional City Sites
3 3 Services Provided to the City
3.4 Service Levels
3.5 Site Drop Ownership and Mamtenance
3 6 City Site Drop Route Plans, Procedure and Schedule
3.7 Non -City Site Drops
4. SERVICE CHARGES AND PAYMENT
4.1 C.P.I. Base Service Charges
4.2 City I -Net Growth Discount
4.3 City Public Utility Tax
4.4 City Pole Attachment Charge Credit
4.5 Invoicing and Payment
5. MISCELLANEOUS PROVISIONS
51 Notices
5.2 Confidentiality
5 3 Reports
5.4 Indemnification /Hold Harmless
5.5 Assignment
5.6 Survival
5.7 Violations and Remedies
5.8 Termination
5.9 City Right to Purchase
5.10 I -Net Node Equipment Lien
5.11 Other Remedies
5.12 Force Majeure
5.13 Severability
5.14 Entire Agreement
page 1
5, (ooQ.L,
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5.15 Attorney's Fees
5.16 Reopeners
6. EXHIBITS
61 Fiber Optic WAN Use Agreement
6 2 I -Net Services Expedited Schedule
6 3 City Site Locations and Services Requirements
6.4 Service Levels
6 5 Service Charges
6.6 Interlocal Agreement for Acquisition of Institutional Network Services
page 2
PURPOSE
INSTITUTIONAL NETWORK SERVICES AGREEMENT
BETWEEN
THE CITY OF PORT ANGELES AND CAPACITY PROVISIONING, INC.
THIS INSTITUTIONAL NETWORK SERVICES AGREEMENT (the "Agreement between the
City of Port Angeles, a Washington municipal corporation, hereinafter the "City", and Capacity
Provisioning Inc., a subchapter S Washmgton corporation, hereinafter "C.P.I." is to:
(1) Effect the assignment by the City to C P.I. of the City's Fiber Optic WAN Use Agreement
"WAN Use A reement with Northland Cable Television, Inc. "Northland dated
8,2'7- and attached hereto as Exhibit 6.1, and
(2) Set forth the terms and conditions for provision by C.P I of Institutional Network Services
consistmg of wide area networking, broadband Internet access, voice over Internet protocol,
local area network and other broadband telecommunications services "I -Net Services for
non commercial use by the City
RECITALS
WHEREAS the United States Congress enacted the Telecommunications Act of 1996 to promote
competition and reduce regulation m order to secure lower prices and higher quality services for American
telecommunications consumers and to encourage the rapid deployment of new telecommunications
technologies, and
WHEREAS the Washington State Legislature enacted Chapter 35.99 RCW to encourage the use of
City rights -of -way by telecommunications and cable television service providers and also enacted RCW
35.21 703 to authorize cities to engage in economic development programs, and
WHEREAS throughout the United States local communities have recognized that broadband
communication systems can be critical to economic development and to delivery of important
governmental and educational services and that the initial broadband challenge is to make higher capacity
connections available on a more pervasive and affordable basis, and
WHEREAS this agreement has been negotiated by the City of Port Angeles in order to secure lower
prices for and higher quality of telecommunications services, specifically m the form of access to high speed
fiber optic or broadband services, through the use of City rights -of -way, and in order to promote economic
development and enhance the delivery of governmental and educational services, and
WHEREAS the City is desirous of expediting I -Net Services for its own use as well as for other
public institutions and businesses in Port Angeles m advance of the scheduled deadline in Cable Television
Franchise Ordinance No. 3116 of February 27, 2004, at which time a dark fiber institutional network "I-
Net") for use by the City and service providers will be completed by Northland, and
WHEREAS the City is in the process of implementing an integrated software and related hardware
system for municipal business purposes that will rely upon local area networks within City facilities and
the I -Net for current and future applications that require broadband communications capability between
City facilities, and
WHEREAS, the City and Northland have entered into a WAN Use Agreement to permit use of
existing excess Northland infrastructure as a means of expediting I -Net services while the City I -Net is
being constructed, and
WHEREAS, Section 25 of the WAN Use Agreement permits the assignment by the City of said
WAN Use Agreement, and the City desires to assign said WAN Use Agreement to C.P.I., and
page 3
WHEREAS, the City is desirous of receiving I -Net Services, and C.P.I. is desirous of providmg said
I -Net Services and represents that it can do so in accordance with the City's expedited schedule attached
hereto as Exhibit 6 2, and
WHEREAS, C.P.I. represents that it is in full compliance with the laws of the State of Washington
and or other applicable requirements to provide said I -Net services, and
WHEREAS, C.P I. represents that it has the adequate background, experience, certifications, ability,
and the technical, financial and legal resources available to perform the requirements of this Agreement,
and has submitted its qualifications and those of its I -Net node equipment vendor to the City and the City's
I -Net Techmcal Advisory Committee, and
WHEREAS, the City and its I -Net Technical Advisory Committee, which consists of
representatives of various institutions in the City, have reviewed C.P.I.'s submittals and are satisfied that
C P.I. and its I -Net node equipment vendor are qualified to provide said I -Net services in accordance with
the terms and conditions of this Agreement, and
WHEREAS, C.P.I. is a local Port Angeles business, recently incorporated in 2001, has invested in
approximately 10 miles of fiber optic cable within the City and an additional 10 miles are currently under
construction, and the City in accordance with its fiber optic business plan goals, is striving to minimize the
duplication of telecommunications infrastructure and accomplish its economic development goals to
support and promote diversification of the community in the areas of telecommunications and advanced
technology, and
WHEREAS, C P.I. has or will be investing approximately $620,000 in providing the infrastructure
and equipment in fulfillment of its obligations under this Agreement;
WHEREAS, the City is acquiring the institutional network service under this Agreement at or
below fair market rates ($345 per month service charge for the seven year Initial Term, a $600 connection
charge, and a non recurring base service charge not to exceed $310,000 which amounts together with the
cost of the City's WAN Use Agreement rights will be offset by a $55 per month I -Net Growth Discount for
services C.P.I. provides to other institutions and businesses).
NOW, THEREFORE, m consideration of the above representations and the terms, conditions,
covenants and agreements set forth below, the parties hereto agree as follows:
1. DEFINITIONS
Words and terms shall be given their ordinary and usual meanings. The meanings shall be
applicable to the singular, plural, masculine, feminine and neuter of the words and terms
Where used in this Agreement, the words and terms set forth in Section 11.14 020 of Chapter 11.14
of the Port Angeles Municipal Code (PAMC), Telecommunications Facilities within Rights -of -Way, and the
Cable Television Franchise Ordinance No. 3116 shall be applicable to the same terms as used in this
Agreement, except as modified herein.
2. SPECIAL PROVISIONS
2.1 Agreement is Non Exclusive
This is a non exclusive Agreement for the purpose of providing retail telecommunications services
within the City, excluding cable television services consistent with the Cable Television Franchise
Ordinance No. 3116, by utilizing the I -Net backbone and nodes. Any other substantially similar I -Net
services agreement entered into by the City shall be on a competitively neutral basis, taking into account
without limitation C.P.I.'s obligations under this Agreement.
page 4
2.2 Occupation License Required
From and after the effective date of this Agreement and throughout the Term of this Agreement,
C.P.I. shall obtain an occupation license from the City pursuant to Chapter 5.80 PAMC, Licensing and
Taxation. C.P.L's telecommunications services gross revenues, including all charges within Exhibit 6.5, shall
be subject to a public utility tax, also m accordance with Chapter 5.80 PAMC, Licensing and Taxation.
Telecommunications services gross revenues do not include the provision of Internet service as defined in
the Revised Code of Washington (RCW) 82.04 297, m accordance with Chapter 5.80 PAMC. C.P.I. shall pay
any additional federal, state, local and City taxes as may be levied, imposed or due from carriers, operators,
providers, their customers or subscribers, or on account of the lease, sale, delivery or transmission of
telecommunications services, provided said amounts may be added to the charges the City is required to
pay pursuant to this Agreement.
2.3 Right -of -Way License Required
Pnor to construction of any telecommunications facilities in, under, over or across any
rights -of -way of the City to provide telecommunications service, C.P.I. shall first obtain a Right -of -Way
License from the City pursuant to Chapter 11.14 PAMC, Telecommunications Facilities within Rights -of-
Way.
C P.I. shall not allow other wholesale or retail service providers to provide telecommunications
services under this Agreement until such service providers have received all requisite licenses, certificates
and authorizations from the City, Federal Communications Commission, the Washington Utilities and
Transportation Commission, or any other federal or state agency having jurisdiction
2.4 Agreement Term
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/Northland WAN Use Agreement, 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 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. C.P.I. shall complete and
return Exhibit 6.5 to the City, institutions, and busmesses 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 m accordance
with Section 5.16. The City and C.P.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.
2.5 Interlocal Agreement for Acquisition of Institutional Network Services
C.P.I. agrees to allow the City to enter into Interlocal Agreements with other governmental and
public institutions, pursuant to Chapter 39.34 RCW, to extend the privileges, terms and conditions of this
Agreement made with C.P.I. to the extent permitted by law, to institutions entering into such Interlocal
Agreements with the City, and attached hereto as Exhibit 6.6.
page 5
2.6 WAN Use Agreement Assignment and Payments
The City and Northland have entered into a WAN Use Agreement dated and
attached hereto as Exhibit 61. 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"), includmg nodes, for use in
providmg 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 C.P.I for C.P.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 m accordance with its terms and conditions.
C.P.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, C.P.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 C.P.I. request, additional rack -units and dark fibers may be provided by the City subject
to a charge to be paid by C P.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 m accordance with the Fiber Optic WAN Use Agreement, C.P.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 C.P.I. and reasonable contractual
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 C.P.I. requires continued use of I -Net enclosures beyond
expiration of this Agreement, upon C.P.I. written request, which must be received by the City within sixty
(60) days of expiration of this Agreement, C.P.I. shall be entitled to irrevocable use of up to twenty five (25)
rack -units within each I -Net node enclosure, subject to a charge to be paid by C.P.I. and reasonable
contractual restrictions by the City based on competitive market conditions, continuing beyond expiration
of this Agreement, as provided in Section 5.6, Survival.
2.7 Due Diligence
On or before August 26, 2002, C.P I. shall provide the City a list of names, addresses, and social
security numbers for C.P.I. personnel that will be permitted to have access to I -Net node equipment and
network operation and management software. Such C.P.I. personnel may be subject to a background check
in accordance with Section 2.12.
On or before August 30, 2002, C.P.I. shall submit evidence that:
(1) It has the financial resources to fulfill its obligations under this Agreement and shall file
contemporaneously with the execution of I -Net node equipment loan agreements, if any, a
Uniform Commercial Code U.C.C. -1 Financing Statement with the Washington State
Department of Licensing.
(2) It has obtained a surety bond, if required, in accordance with Section 2.8.
page 6
(3) The City site drop route plans in accordance with Section 3.6 have been submitted to the
City.
On or before November 25, 2002, C P.I. shall provide the City evidence that it has entered into an
agreement, including technical support, with an I -Net node equipment manufacturer and that the service
levels described m Exhibit 6.4 will be met.
2.8 Surety Bond
If C P.I. needs to obtain financing to fulfill its obligations under this Agreement, then C.P.I. shall
provide a surety bond with a surety company approved by the City, in an amount equal to the cost of the I-
Net node equipment and customer premises equipment at City sites financed during the Initial Term of this
Agreement, to secure C.P.I 's performance of its obligations and faithful adherence to all requirements of
this Agreement.
The bond shall contain the following endorsement. "It is hereby understood and agreed that this
bond may not be canceled by the surety nor any intention not to renew be exercised by the surety until
thirty (30) days after receipt by the City, by certified mail, of written notice of such intention to cancel or not
to renew
The rights reserved to the City with respect to the bond are in addition to all other rights of the
City, whether reserved by this Agreement or authorized by law; and no action, proceeding or exercise of a
right with respect to such bond shall affect the City's rights to demand full and faithful performance under
this Agreement or limit C.P.I.'s liability for damages.
2.9 Certification
C.P.I certifies that the I -Net node equipment, customer premises equipment, and all work and
materials furnished under this Agreement shall comply with the service level standards described m
Exhibit 6.4 and accepted industry standards.
2.10 Service Options
(1) C.P.I. shall make reasonable efforts to make arrangements with the Clallam County
PUD No 1 (District), and /or Northland, and /or Qwest Communications, Inc. to
interconnect the C.P.I. network to provide wide area networking service with the
District, Northland, and /or Qwest no later than January 15, 2003. 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. C.P.I. shall complete and return Exhibit 6.5 Schedule 3 to the City no
later than January 15, 2003 In addition, C.P.I. shall provide a detailed description
of the network security to be provided by such interconnection, which shall be
considered confidential in accordance with Section 5 2. On or before August 20,
2004, within ninety (90) days of the City's request, C.P.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 C.P I. agreeing to pay the wide area networking
service charges within Exhibit 6.5 Schedule 3 and the cost of the interconnections.
If C.P.I. 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 Northland 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
C.P.I. agreeing to pay for the cost of the interconnections.
page 7
(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. C.P.I. shall complete and
return Exhibit 6 5 Schedule 1.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 C.P.I., no later than January 15, 2003 to satisfy this
requirement. C P.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, C.P.I. 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 C.P.I. agreeing to pay the retail broadband Internet access service
charges.
C.P.I. agrees to make reasonable efforts to negotiate agreements with retail Internet
service providers, whether affiliated or unaffiliated with C P.I, to provide retail
broadband Internet access services within the City. C.P.I. agrees to negotiate first
with all retail Internet service providers that currently conduct business on the
North Olympic Peninsula and express an interest in such an arrangement with
C.P.I.; provided that if no such arrangements have been reached by October 15,
2002, C P I. may negotiate with any qualified retail Internet service provider. Said
arrangements shall be subject to C.P.I. and retail Internet service providers
reaching an agreement based on commercially reasonable terms and conditions
C.P.I shall be permitted to provide wholesale broadband Internet access. C.P.I
shall also be permitted to charge a fee for wholesale Internet access, wholesale use
of the I -Net, and wholesale use of C.P.I I -Net node equipment, site drops, and all
other appurtenant infrastructure. Furthermore, C.P.I. shall be permitted to impose
reasonable contractual restrictions based on competitive market conditions to retail
broadband Internet service providers.
C.P.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 C.P.I 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, C.P.I. 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, C.P.I shall complete
and return Exhibit 6.5 Schedules 1.D. to the City to satisfy this requirement. The
City and C.P.I. 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 VoIP services. The City shall not
incur any charges until the City provides notice in writing to C.P.I. agreeing to pay
VoIP service charges. Upon written City request, C P.I. shall also establish a
commercial monthly charge for VoIP services for institutions and businesses.
page 8
2.11 Local Area Network (LAN) Services
During the first year of the Initial Term of this Agreement, upon establishing a mutually agreed
upon schedule that is approved in writing by both parties, C.P.I. shall provide one hundred (100) hours of
LAN services at no charge for services requested by the City, including but not limited to LAN plans and
specifications within municipal facilities, security, and Internet Protocol (I.P.) re- addressing, planning, and
implementation C.P.I. shall obtain written City approval of LAN plans and specifications and the I.P. re-
addressing plan The implementation schedule for the I.P. re- addressing plan shall be mutually agreed
upon in advance of performing services and shall occur outside of normal City business hours.
Upon written City approval of the LAN plans and specifications and cost schedule in accordance
with Exhibit 6.2, C.P.I. shall provide LAN materials, hardware, and installation services for municipal
facilities Upon written City acceptance of the LAN installation services, the City agrees to pay for the LAN
services in an amount not to exceed the cost schedule, actual cost of LAN materials, hardware, and
installation services, or $60,000 00, whichever is the least amount.
Upon written City request, C P.I shall provide additional LAN services for a charge, including but
not limited to plans and specifications, training, network operation, network management, security and
demand maintenance support for the City's LANs within municipal facilities. LAN demand mamtenance
services shall be available twenty-four hours a day, seven days a week. During normal operation
conditions, C P.I. shall respond to all demand maintenance services requests within two hours and make
necessary repairs to the extent feasible to restore services within four hours of notification Monday through
Sunday, 6 a.m to 10 p m The charge for additional LAN services shall be in accordance with Exhibit 6.5
Schedule 1.D. Upon written City request, C.P.I. shall also provide LAN materials, hardware, and
installation services for municipal facilities. The charges for LAN materials, hardware and installation
services shall be mutually agreed upon prior to commencing work.
2.12 Background Checks
C.P.I. personnel and any of C.P.I 's subcontractor personnel that are permitted to have access to I-
Net node equipment and network operation and management software during the term of this Agreement
may be subject to a background check, which shall be completed and approved by the City in its sole
discretion and which shall be considered confidential in accordance with Section 5.2. The information that
may be included in a background check includes but is not limited to driving records, vehicle registration,
credit records, criminal records, social security number, education records, professional certifications, State
licensing records, court records, workers' compensation, bankruptcy, character references, neighbor
interviews, medical records, property ownership, employment verification, and military service records
3. SERVICES AND SITE DROPS
3.1 City Service Locations
C.P.I. will provide I -Net Services at the City site locations listed in Exhibit 6.3. C.P I. shall be
responsible for all costs to provide fully functional I -Net Services, which have been included in its charges
in Section 4 and within Exhibit 6.5. C.P.I. will provide limited universal availability of services to
additional City, institution, and business site locations within the City. Limited universal availability of
services within the City shall include expansion of C.P.I. I -Net node equipment within three (3) nodes that
may be required to provide more than seventy-two (72) Ethernet ports. Limited universal availability of
services within the City shall also include a standard overhead facility site drop from a site location that is
within 1,500 lineal feet of the nearest I -Net node or 1,500 lineal feet of C.P.I. owned infrastructure. For any
site locations not included in Exhibit 6.3 that require overhead facilities beyond 1,500 lineal feet or
underground drops, C.P.I. may charge the City, institutions, and businesses for the actual cost for any such
additional overhead facilities or underground drop installation.
page 9
3.2 Additional City Sites
Additional City sites may be added during the term of this Agreement, and all additional drops
shall be governed by the same terms and conditions specified in this Agreement. The cost for additional
site drops to City facilities not included in Exhibit 6 3 Schedules 1 and 2 shall be in accordance with Exhibit
6.5 Schedule 2 A
3.3 Services Provided to the City
C.P I. 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.I. 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.
C P I. shall also be responsible for marketing, bilking, and all other retail services necessary to provide
regular commercial services under this Agreement.
3.4 Service Levels
C.P.I. shall provide I -Net Services to the City and institutions and regular commercial services to
businesses in accordance with the service levels contained in Exhibit 6.4 attached.
3.5 Site Drop Ownership and Maintenance
All site drops, whether to City or non -City sites, shall be owned and maintained by C.P.I. unless
otherwise agreed upon. Upon termination or expiration of this Agreement, C.P.I. agrees that all site drops
will be "open access," available to other service providers who may use the drops to provide services.
However, upon termination of this Agreement, use of non -City site drops by other service providers shall
be subject to competitive, industry standard access charges
3.6 City Site Drop Route Plans, Procedure and Schedule.
C.P.I. shall provide fiber drops, consisting of a minimum of two (2) single mode fibers to each City
site to be served as listed in Exhibit 6.3 schedules 1 and 2.
Each site drop connection shall be terminated within fifty (50) feet of entering the applicable
building using a City provided path at a mutually agreed upon point of demarcation in a C.P.I. standard
termination panel, mounted on a City furnished backboard.
C.P.I. shall prepare a site drop route plan from the applicable I -Net node to each City site to be
served and shall prepare detailed site plans for written City approval and permitting purposes, in
accordance with the I -Net Services Expedited Schedule (Exhibit 6.2) and as follows:
(1) In preparing the plans and specifications, C.P.I. and the City agree to coordinate closely to
ensure that the project requirements are met expeditiously.
(2) C P.I.'s plans and specifications shall be m sufficient detail to permit identification,
correlation, verification, and understanding of the components of C.P.I.'s plans and
specifications.
(3) The City will review the plans and specifications and, if acceptable, shall provide written
approval.
(4) If revisions are required by the City, the plans shall be resubmitted by C.P.I. to the City
and, if acceptable, the City shall provide written approval.
(5) In no event shall the City have any Lability for any expenses C.P.I. incurs in preparation of
such plans and specifications.
(6) All site drop fibers and other C.P.I. provided fibers necessary to provide the services
described in this Agreement shall be labeled at termination points to readily enable
identification and ownership.
(7) The site drops, I -Net node equipment, and customer premises equipment, including all
splicing and testing, shall be fully complete and operational in accordance with the I -Net
page 10
Services Expedited Schedule (Exhibit 6.2). The City shall promptly conduct a final
inspection to verify completion.
(8) C.P.I. shall deliver as- builts of C.P I.'s infrastructure and the site drops to City facilities and
an electronic copy of the as- builts m a mutually agreed upon format, showing
identification and labeling of fibers
3.7 Non -City Site Drops.
Non -City site drops shall consist of a miiumum of two (2) single mode fibers. C.P.I shall construct
such drops, subject to the requesting party's acceptance of an Interlocal Agreement (see Exhibit 6.6) for
acquisition of I -Net services m accordance with Section 2.5 or execution of an agreement with C.P.I..
Payment for non -City site drops shall be incorporated with and as part of the maximum monthly service
charges per Exhibit 6.5 Schedule 2 A, unless other payment arrangements are approved by C.P.I The
minimum term for non -City site drop charges shall be consistent with the Initial Term of this Agreement,
unless otherwise approved by C P I.
Each site drop connection shall be terminated within fifty (50) feet of entering the applicable
building using a customer provided path at a point of demarcation mutually agreed upon by C.P.I. and the
customer in a C.P.I standard termination panel, mounted on a customer furnished backboard
4. SERVICE CHARGES AND PAYMENT
4.1 C.P.I. Base Service Charges
Upon the availability of services in accordance with Exhibit 6.2, the City agrees to pay a non-
recurring base service charge m the amount of $310,000 00, which includes $140,000.00 for I -Net node
equipment and $170,000 00 for City site drops. C.P.I. shall be responsible for all costs to provide fully
functional I -Net node equipment and City site drops, which have been included in the non recurring base
service charge. In addition, the City has established a contingency for expenses that are approved by the
City in an amount not to exceed ten percent (10 of the non recurring base service charge in the amount of
$31,000. The City's payment for its site drops shall entitle it to exclusive, irrevocable use of the site drops
without any further ongoing charges during the Initial Term and Extended Term, if any, continuing beyond
termination, cancellation or expiration of this Agreement, as provided in Section 5.6, Survival. However, m
the event the City continues its use of the site drops beyond termination, cancellation or expiration of this
Agreement, the City shall pay a pro -rata share of C.P.I.'s reasonable maintenance costs for City site drops.
Upon the availability of services in accordance with Exhibit 6.2 and continuing throughout the
Initial Term of this Agreement, the City agrees to pay the base monthly service charge shown in Exhibit 6.5
Schedule 1.A. for wide area networking and site drop services to City facilities within the City included in
Exhibit 6 3 schedule 1 and 2 for a total number of eighteen (18) equivalent 100 Mbps Ethernet ports City
pump stations and electrical substations shall utilize three (3) equivalent 100 Mbps Ethernet ports of the
eighteen (18) equivalent 100 Mbps Ethernet ports. The City agrees to pay the non recurring connection
charge shown in Exhibit 6.5 Schedule 1.B. for a C.P I. standard termination panel and customer premises
equipment installed at each City site. Upon written City request and acceptance of C.P.I. LAN services, the
City agrees to pay the LAN charges shown in Exhibit 6 5 Schedule 1.C.
The regular commercial monthly service charges shown in Exhibit 6 5 Schedules 2 and 3 shall be
available to additional City facilities, institutions, and businesses including home offices not included in
Exhibit 6.3 Schedules 1 and 2. The City base service charge and monthly service charges shall not apply to
institutions or businesses.
During the Initial Term, if mutually agreed upon in accordance with Section 5.16, Exhibit 6.5 may
be amended if more than three (3) I -Net nodes are required to have I -Net node equipment or an expansion
to C.P.I.'s I -Net node equipment within three (3) I -Net nodes is required by the City.
Charges shown in Exhibit 6.5 do not include any required local area network equipment expenses
within facilities beyond the C.P.I. standard termination panel and customer premises equipment.
page 11
C.P.I.'s customer count will be calculated and expressed as the total number of equivalent 100
Mbps Ethernet ports The service charges within Exhibit 6.5 Schedules 1 and 2 for wide area networking
within the City shall be in effect throughout the Initial Term of this Agreement
4.2 City I -Net Growth Discount
C.P.I shall be responsible for and timely provide the City an I -Net Growth Discount The Discount
shall be available to the City and not to any other I -Net customers, in recognition of economies of scale that
C.P I will realize from additional customers due to reduction of the pro -rata cost of service. The Discount
shall be equal to $55 per month per equivalent 100 Mbps Ethernet port for services provided to institutions
and businesses to be deducted from the monthly service charges to be paid by the City to C.P.I.
4.3 City Public Utility Tax
The monthly service charges shown in Exhibit 6.5 do not include any City public utility taxes.
C.P.I shall collect utility taxes from all institutions and businesses, and remit such taxes to the City, in
accordance with Section 2 2.
4.4 City Pole Attachment Charge Credit
C P.I. shall be responsible for and timely pay the City pole attachment charges in accordance with
the Right -of -Way License required in Section 2 3 and Chapter 13.14 PAMC On or about July 1st of each
year, C.P.I. shall determine the total number of its pole contacts on City-owned poles as of the preceding
day. C.P.I may request a credit against the annual charges payable to the City for the total number of C.P.I.
pole contacts for site drop infrastructure made under this Agreement that are for the sole purpose of
serving the City. The credit request shall be accompanied by a C.P I. network route map that identifies all
C P.I. contacts on City-owned poles, all C.P.I contacts on City-owned poles made under this Agreement
that are for the sole purpose of serving the City, and all customer locations receiving C.P.I.'s services. If the
City determines that the C.P.I. pole contacts are for the sole purpose of serving the City, then the City shall
grant the credit requested.
4.5 Invoicing and Payment
C.P.I. charges will be invoiced to the City monthly (12 invoice periods per year). City payment is
due within 30 days of receipt of invoice. Thereafter, interest of 1.0% per month will be charged on the
balance due.
C.P.I. payment of City public utility taxes shall be made to the City monthly. C.P.I. payment is due
within 30 days of the end of the preceding calendar month. Each payment shall show the certified customer
count and gross revenue subject to utility tax in accordance with this Agreement.
5. MISCELLANEOUS PROVISIONS
5.1 Notices
All notices required to be in writing hereunder shall be deemed given when personally delivered,
or if mailed by certified or registered mail, three (3) days following deposit in the United States mail,
postage prepaid, or if via telecopy or facsimile, when received, or if sent by courier service providing
evidence of delivery, when actually delivered by such service.
All notices from C.P.I. to the City pursuant to this Agreement shall be directed to the City Manager
at City Hall, 321 East Fifth Street, P.O. Box 1150, Port Angeles, WA 99362 -0217, or to such officer as
designated by the City Manager.
All notices from the City to C.P.I. pursuant to this Agreement shall be directed to Mr. Bill Roberds,
President, at Capacity Provisioning, Inc., 54 West Misty Lane, Port Angeles, WA 98362.
page 12
5.2 Confidentiality
The City will maintain confidentiality of any and all information provided or made available by
C P I to the extent permitted by law when C.P.I. has notified the City of the confidential nature of the
information
C P I. shall maintain confidentiality of all information about the City's LANs, WANs, network
information, and data under this Agreement. C.P.I. will maintain confidentiality of any and all additional
information provided or made available by the City to the extent permitted by law when the City has
notified C.P.I. of the confidential nature of the information.
5.3 Reports
C.P.I. shall report to the City such information relating to this Agreement as the City may
reasonably require to demonstrate C P.I.'s compliance with the terms and conditions of this Agreement and
shall comply with the City's reasonable determination of the forms for reports, the time for reports, the
frequency with which any reports are to be made, and whether or not reports are to be certified
5.4 Indemnification/Hold Harmless.
C.P I. shall defend, indemnify and hold harmless the City, its officers, officials, employees, and
volunteers harmless from any and all claims, injuries, damages, losses or suits, including attorney fees,
arising or issuing out of or in connection with this Agreement or the WAN Use Agreement, except as may
be caused by the sole negligence or willful conduct on the part of the City.
5.5 Subcontracts /Assignment.
C.P.I shall not subcontract, assign or transfer any right, title or interest under the terms of this
Agreement or the WAN Use Agreement without the prior written approval of the City. Such approval
shall not be unreasonably withheld or delayed, provided it is demonstrated to the City's satisfaction that
the assignee has the background, experience, certifications, ability, and the technical, financial and legal
resources to perform the requirements of this Agreement
5.6 Survival.
The provisions covering WAN Use Agreement Assignment and Payments, site drops, service
charges and payment, and indemnification /hold harmless shall survive expiration of this Agreement.
5.7 Violations and Remedies
If the City has reason to believe that C.P.I. has breached or is in violation of this Agreement, after
informal and cooperative efforts have failed after two (2) meetings or ten (10) business days, whichever
occurs first, the City shall notify C P I in writing of the violation, setting forth the nature of such violation
Within thirty (30) days of C.P.I. receipt of such notice or such longer period specified by the City,
C P I shall respond m writing that the violation has been cured, provide a cure plan or schedule that
reasonably satisfies the City, provide explanations in refutation or excuse with documentation to support
that an alleged violation did not occur, refute the City's denial of C P.I.'s cure plan, or refute the City's
denial of an additional time period to complete the cure plan
The City shall act on the C.P.I.'s cure plan, if any, within thirty (30) days of City receipt of such
plan. The City shall provide written acceptance or denial of C.P.I.'s cure plan, which acceptance shall not
be unreasonably withheld or delayed.
C.P.I. shall be allowed thirty (30) days to cure violations after written City acceptance of C.P.I.'s
cure plan is received If the nature of the violation is such that it cannot be fully cured within 30 days due to
circumstances not under C.P.I.'s commercially reasonable control, the period of time in which C.P.I. must
cure the violation shall be extended by the City in writing for such additional time reasonably necessary to
complete the cure, provided that (1) C.P.I. shall have promptly commenced to cure, and (2) C.P.I. is
diligently pursuing its efforts to cure in the City's reasonable judgment. If the violation has not been cured
page 13
within the time allowed under this section, then C.P.I. shall be liable for liquidated damages for the
following violations:
(1) Failure to promptly comply with Section 2 $100.00 per day; provided, however, in no
event shall the aggregate amount for all such violations exceed $2,500.00 per year
(2) Failure to comply with Section 3 $100.00 per day, provided, however, in no event shall the
aggregate amount for all such violations exceed $2,500.00 per year.
(3) Failure to comply with Section 4. $100 00 per day; provided, however, in no event shall the
aggregate amount for all such violations exceed $2,500.00 per year.
(4) Failure to with Section 5 $100.00 per day; provided, however, in no event shall the
aggregate amount for all such violations exceed $2,500 00 per year.
(5) Failure to comply with Section 6: $100.00 per day; provided, however, in no event shall the
aggregate amount for all such violations exceed 2,500.00 per year
C.P.I agrees that each of the foregoing failures shall result in injuries to the City, institutions and
businesses, the compensation for which would be difficult to ascertain and to prove. Accordingly C.P.I.
agrees that the foregoing amounts are liquidated damages, not a penalty or forfeiture.
If C P I. fails to make full and complete liquidated damage payments as required by this
Agreement within ten (10) business days after receipt of written notice from the City, then the City may
immediately take steps to deduct without further notice to C.P.I. the amount thereof from the service
charges and payment due to C P I. in accordance with this Agreement. Liquidated damages shall accrue
from whichever applies among the following- (1) thirty (30) days after City notice if no cure plan is
submitted, (2) on the date of City denial of the C P.I 's cure plan; or (3) the date of the City accepted cure
plan completion date.
5.8 Termination
The City reserves the right to terminate this Agreement if C P.I. fails to comply with the due
diligence requirements in accordance with Section 2.7.
Each party reserves the right to terminate this Agreement at any time upon breach by the other
party of a material term or condition of this Agreement; provided that the non breaching party has first
given 60 days written notice specifying in reasonable detail the alleged breach or failure of compliance and
demanding the cure of the breach. If said breach or failure to comply cannot reasonably be cured in 60 days
and the breaching party shall proceed promptly to cure the same, then the time for curing such failure to
comply shall be extended for such period of time as may be reasonably necessary to complete such cure.
In the event of termination of this Agreement, City payment of the service charges to C.P.I.
specified in Section 4 shall no longer be required and the WAN Use Agreement Assignment shall revert to
the City.
5.9 City Right to Purchase
The parties recognize that the City has received adequate consideration for the charges paid to
C.P.I. to receive services under this Agreement. Nonetheless, to the extent permitted by law, in the event
C.P.I. is not capable of performing its obligations under this Agreement or the Agreement is terminated or
otherwise expires or is not renewed, the City shall have the right of first refusal to acquire the I -Net node
equipment, customer premises equipment, and site drops owned by C.P.I., in the event it is to be sold,
transferred, liquidated, or assigned, at fair market value less the City's aggregate payment of non recurring
base service charges for a period of sixty (60) days following the date of termination, expiration or non
renewal of the Agreement.
5.10 I -Net Node Equipment Lien
If C.P I obtains financing to fulfill its obligations to purchase I -Net node equipment under this
Agreement, the City reserves the right to file an equipment lien in the amount of $140,000.00 to secure its
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payment of the non recurring base service charge for I -Net node equipment specified in Section 4.1 of this
Agreement.
5.11 Other Remedies
The remedies provided for m this section are not exclusive. The City shall also be entitled to
pursue all other legally available remedies for breach or violation of this Agreement.
5.12 Force Majeure
The term "Force Majeure" shall mean delays due to Northland's failure to comply with Section 1.6
of the WAN Use Agreement on or before October 28, 2002, acts of God, war, civil disturbances, fire,
unavoidable casualty, construction delays due to weather, failure of supplier(s), or other similar causes
beyond the control of C.P.I. The time within which C P I. shall be required to perform any act under this
Agreement shall be extended by a period of time equal to the number of days performance is delayed due
to a Force Majeure. C P.I. shall not be subject to any penalty hereunder because of acts or failure to act due
to Force Majeure.
5.13 Severability
Whenever possible, each provision of this Agreement will be interpreted to be effective and valid
under applicable law. If any provision is found to be invalid, illegal or unenforceable, then such provision
or portion thereof will be modified to the extent necessary to render it legal, valid and enforceable and have
the intent and economic effect as close as possible to the invalid, illegal and unenforceable provision. If it is
not possible to modify the provision to render it legal, valid and enforceable, then the provision will be
severed from the rest of this Agreement and ignored. The invalidity, illegality or unenforceability of any
provision will not affect the validity, legality or enforceability of any other provision of this Agreement,
which will remain vand and binding.
5.14 Entire Agreement
This Agreement and its Exhibit(s) represent the entire agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior oral negotiations and agreements.
5.15 Attorney's Fees.
If any suit or other action is instituted in connection with any controversy arising under this
Agreement, the prevailing party shall be entitled to recover all of its costs and expenses including such sum
as the Court may judge reasonable for attorney's fees, including fees upon appeal of any judgment or ruling
5.16 Reopeners.
It is the intent of both parties that each party shall enjoy all rights and be subject to all obligations of
this Agreement for the entire term of this Agreement and, to the extent any provisions have continuing
effect, after its expiration. However, both parties recognize that the technology of telecommunications
services is in a state of flux. The occurrence of any of the following shall be grounds for the City or C.P.I. to
reopen this Agreement as further provided in this Section.
(1) Any proposed or actual use of the I -Net and /or charges by C.P.I. or the City that are not
expressly provided for in this Agreement that may or may not invalidate or substantially
negate or expand the effect of any material provision of this Agreement.
(2) Any proposed I -Net node equipment and or customer premises equipment substitutions
that will result in an increase or decrease in C P.I.'s cost of more than five percent (5
(3) Any proposed I -Net node equipment and /or customer premises equipment upgrade to
match current technology m accordance with Section 2.4, when C.P.I. asserts that the
proposed upgrade or implementation is not technically or commercially feasible.
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(4) Any proposed subcontract by C.P.I. that will result in an increase or decrease in C.P.I.'s
cost of more than five percent (5 to provide I -Net operation, maintenance and
management services to the City.
(5) Any other matter pertaining to this Agreement.
The City or C.P.I. shall make a determination that grounds exist to implement the reopener
provisions of this Section and shall formally notify the other party m writing and in reasonable detail of
that determination, the grounds for it, and the proposed amendment deemed necessary to address the
event giving rise to the reopener. Within thirty (30) days of the receipt of the proposed amendment, the
City or C.P.I. shall either provide written notice to the other party to reject the proposed amendment or the
City and C.P.I. shall agree to proceed with negotiation of an amendment to this Agreement. Any
amendment to this Agreement shall be mutually agreed upon in writing.
AGREED TO BETWEEN THE PARTIES on the last date written below.
CITY PROVISIONIN INC.
By: Date
CITY OF PORT ANGELES
9
ATTEST:
6Q
City Clerk
EXHIBITS
6.1 Fiber Optic WAN Use Agreement
6 2 I -Net Services Expedited Schedule
6.3 City Site Locations and Service Requirements
6.4 Service Levels
6.5 Service Charges
6.6 Interlocal Agreement for Acquisition of I -Net Services
Date
APPROVED AS TO FORM:
FIBER OPTIC WAN USE AGREEMENT
This Fiber Optic Wide Area Network or WAN Use Agreement "Agreement is made
L.
this day of 2002, by and between NORTHLAND CABLE TELEVISION,
INC., a Washington c rporation "Northland and the CITY OF PORT ANGELES, a
municipality governed under the laws of the State of Washington "City").
Background
1. The United States Congress enacted the Telecommunications Act of 1996 to
promote competition and reduce regulation in order to secure lower prices and higher quality
services for American telecommunications consumers and to encourage the rapid deployment of
new telecommunications technologies.
2. The Washington State Legislature enacted Chapter 35.99 RCW to encourage the
use of City rights -of -way by telecommunications and cable television service providers and also
enacted RCW 35.21.703 to authorize cities to engage in economic development programs.
3. This agreement has been negotiated by the City of Port Angeles in order to secure
lower prices for and higher quality of telecommunications services, specifically in the form of
access to high speed fiber optic or broadband services, through the use of City rights -of -way, and
in order to promote economic development.
4. Northland is the cable television operator serving the City of Port Angeles,
Clallam County, Washington, and nearby areas. The City desires to acquire an exclusive right to
activate and use a certain portion of the dark fiber optic filaments (which have been or will be
constructed by Northland) to establish a fiber optic wide area network (the portion of such dark
fiber optic filaments set aside for the exclusive use of the City being the "Fiber Link for use in
providing telecommunications services to public institutions and businesses but not to the
general public.
5. Northland's construction of the Fiber Link is part of an approximately $2,700,000
fiber optic and system upgrade project being constructed by Northland for its own commercial
purposes as part of its cable system.
6. The City is desirous of expediting I -Net Services for its own use as well as for
other public institutions and businesses in Port Angeles in advance of the scheduled deadline in
Cable Television Franchise Ordinance No. 3116 "Franchise of February 27, 2004, at which
time a dark fiber institutional network "I- Net for use by the City and service providers will be
completed by Northland.
7. The expedited I -Net services provided under this WAN Use Agreement will
provide the City with the exclusive right to activate and use a certain portion of the dark fiber
optic filaments, which includes use of two existing dark fiber optic filaments that are within
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Northland's cable sheath and partial use of the space within six nodes for electronic equipment to
activate the network.
8. The City is acquiring the WAN use rights under this Agreement at or below fair
market rates (approximately $19,000 per month for the Initial Term, which expires in April of
2004, or a not to exceed total amount of $336,000).
9. Contributing to the lower rate that the City is paying for the WAN use rights
under this Agreement is the fact that Northland's cable television business allows it to recover
the cost it is paying the City for the use of City rights of way pursuant to the Franchise.
10. The WAN use rights that the City is acquiring under this Agreement will be
followed by the acquisition of the right to use a more extensive institutional network during the
extended Franchise term, which network will be constructed by Northland as a condition of
Cable Television Franchise Ordinance No. 3116, for which Northland will receive additional
compensation (approximately $105,000) and an extended Franchise term.
11. The City has negotiated an Institutional Network Services Agreement with
Capacity Provisioning, Inc. (C.P.I.), which the City intends to enter into following the execution
of this WAN Use Agreement with Northland. Under the terms of the Institutional Network
Services Agreement, the City will assign its WAN Use rights to C.P.I., and C.P.I. will provide
Institutional Network Services consisting of wide area networking, broadband Internet access, voice over
Internet protocol, local area network and other broadband telecommunications services, and necessary
infrastructure and equipment, for non commercial use by the City.
Agreements
Northland and the City hereby agree as follows:
1. Design and Construction of the Fiber Link.
1.1 Northland shall construct a node -to -node wide area network using dark
fiber optic transmission filaments to connect the nodes identified in Exhibits A and C. Northland
shall have no responsibility to construct any portion of the Fiber Link from the nodes to any
public institutions or businesses. Northland shall have no responsibility to activate any of the
dark fibers constituting the Fiber Link.
1.2 Design and Performance Characteristics. Design services for the Fiber
Link have been and shall be performed by Northland and by qualified engineers and other
professionals selected by Northland in its sole and absolute discretion. The specific design,
including but not limited to the specific dark fibers designated for the City's exclusive use, and
performance characteristics of the Fiber Link are set forth in Exhibits A and C. The drawings,
designs, blueprints and other documents annexed to this Agreement or otherwise provided or
furnished to the City in connection with the subject matter of this Agreement are copyrighted
materials containing proprietary and confidential material owned by Northland and shall not
become the property of nor be used or disclosed by the City or any person or entity employed by
Page 2
or affiliated with the City, whether or not the Fiber Link is completed, except with the prior
written consent of Northland, which consent may not be withheld when, but solely to the extent,
Legally required to be disclosed pursuant to Chapter 42.17 RCW. Submission or distribution of
the drawings, designs, blueprints, specifications and other documents annexed to this Agreement
or otherwise furnished to the City in connection with the subject matter of this Agreement to
meet regulatory requirements or for other purposes necessary or convenient to the construction of
the Fiber Link shall not be construed as publication, disclosure or use in derogation of
Northland's common law copyright or other reserved rights.
1.3 Construction Activities. The construction of the Fiber Link and nodes
shall be performed by Northland and /or by qualified construction contractors and suppliers
selected by Northland in its sole and absolute discretion; provided, however, Northland shall
have no responsibility to perform or have performed any construction- related activities from the
nodes to buildings or within the buildings or any appurtenances thereto. The City shall be
responsible for all construction- related activities from the nodes to buildings and within the
buildings or any appurtenances thereto, including but not limited to the installation of any
conduit described in Exhibit A. Construction specifications not otherwise set forth in Exhibit A
shall be governed by the requirements set forth in either the latest edition of the National Electric
Safety Code or the local electrical regulations, whichever is more stringent.
1.4 Construction Permits and Other Authorizations. Commencing on the
mutual execution of this Agreement, Northland shall use its commercially reasonable efforts to
obtain all necessary permits, licenses or similar grants of authority to construct the Fiber Link
and nodes. Northland shall submit plans and specifications on or before the effective date of this
Agreement for City approval in accordance with Cable Television Franchise Ordinance No. 3116
"Franchise The City shall cooperate and use its commercially reasonable efforts to assist
Northland in filing the appropriate documentation required to obtain any permits, licenses or
similar grants of authority needed to construct the Fiber Link and nodes.
-1.5 Completion of Construction.- Northland shall use its commercially
reasonable efforts to complete the construction of the Fiber Link and nodes on or before October
21, 2002, after obtaining all necessary permits, licenses or similar grants of authority to construct
the Fiber Link and nodes. The City shall promptly conduct a final inspection to verify
completion of construction.
1.6 Testing and Acceptance of Completed Fiber Link and Nodes. Upon
Northland's completion of the construction of the Fiber Link and nodes, within seven (7) days
Northland shall in accordance with the testing procedures set forth in Exhibit B, test or have
tested the Fiber Link and nodes to demonstrate that the Fiber Link performs in accordance with
the specifications set forth in Exhibit B or as otherwise agreed by the parties. Upon City
verification of completion of construction and testing by Northland, the City will issue formal
written acceptance of the Fiber Link and nodes, which acceptance shall not be unreasonably
withheld or delayed, and make payment in accordance with Subsection 3.1(2).
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1.7 City Exercise of Institutional Network Fiber Option. In accordance with
Subsection 8.1.2.(1) of the Franchise, the City exercises its option to include a minimum of 24
single -mode fibers in the institutional network backbone.
1.8 Use of Fiber. The City or its assigned entity may use the Fiber Link and
nodes for non- commercial and commercial purposes other than Cable Services as defined by the
Franchise provided that any commercial use shall be limited to businesses and shall not be
available to the general public.
1.9 Obligations under Franchise. By entering into this Agreement, Northland
will not fully satisfy Section 4.2 Term and Section 8 Institutional Network of the Franchise
and will not obtain a Franchise term of fifteen (15) years until such Franchise requirements are
fully satisfied.
1.10 Node Quantity and Locations. The Node enclosure quantities and
locations specified under this Agreement have been agreed by the parties to be acceptable
substitutes to the Node enclosure quantities and locations specified in Section 8 and Exhibits B
and C of the Franchise.
1.11 Node Space. The City has a right to use space within each node enclosure
equivalent to a maximum of fifty one (51) rack -units through May 31, 2017 at no additional or
continuing cost to the City.
1.12 I -Net Cost. The manner in which the City pays Northland to construct and
interconnect the Fiber Link and nodes under Section 3.1(1 -2) of this Agreement has been agreed
upon by the parties to be an acceptable substitute to Subsection 8.1 1.2(1 -2) I -Net Cost of the
Franchise.
2. Grant of License. Northland hereby grants the City an exclusive, assignable
license to use the Fiber Link and nodes, as identified in Exhibits A and C, during the Initial Term
and the Extended Term, if any, of this Agreement. Nothing herein shall be deemed or construed
to prevent Northland from entering into similar agreements with other parties with respect to the
use of fiber optic filaments and nodes or other distribution facilities that are not the subject of
this Agreement. The City may assign, or otherwise allow use of the License under this
Agreement to Capacity Provisioning, Inc. or to any other person or entity provided that such
person or entity agrees to be bound by the terms hereof and that no assignment or grant of any
rights to any third party by the City hereunder shall release the City from any of its duties or
obligations under this Agreement. In the event that the City assigns or otherwise allows use of
the License under this Agreement, the City's assigned entity may, if so designated by the City,
serve as a single point -of- contact to Northland for all activities relating to this Agreement.
3. Compensation. As partial consideration for Northland's performance and the
City's WAN use rights hereunder, the City shall make the following payments to Northland.
Page 4
3.1 Institutional Network Payment. As provided in Subsection 1.6, the City
shall reimburse to Northland costs not to exceed $208,000.00 to construct and interconnect the
Fiber Link and nodes in exchange for the City's right of use under this Agreement and in
addition, the City will pay Northland a project management fee not to exceed $37,000.00 or 20%
of cost. The total payment of $245,000.00 shall be deducted from the City's cost of the
Institutional Network as specified in Subsection 8.11 of the Franchise. Furthermore, as added
incentive to accelerate the completion of this phase of the Institutional Network the City agrees
to pay Northland an additional project management fee of $55,000.00.
In addition, the City has established a contingency for expenses that are approved by the City in
an amount not to exceed ten percent (10 of the total Fiber Link and node costs. Any payment
for contingent expenses shall be deducted from the City's cost of the Institutional Network as
specified in Subsection 8 11 of the Franchise.
The City's cost to construct and interconnect the Fiber Link and nodes shall be verified by the
City and payments shall be made by the City after the City approves Northland's plans and
specifications in accordance with Section 1.4 within fourteen (14) days of Grantee's request for
payment as follows:
(1) Payments including reimbursements of costs and pro rata project management fees upon
City receipt of Grantee's request for payment containing all appropriate and complete
invoices.
(2) Final payment representing payment of the $55,000 additional project management fee
following formal City acceptance of the "Initial Proof of Performance" described in
subsection 1.6 herein, upon City's receipt of Grantee's request for payment containing all
appropriate and complete invoices and City's receipt of acceptable proof that Northland
has paid all project costs for labor and supplies and all state taxes imposed pursuant to
Title 82 RCW.
In the event Northland fails to complete the Fiber Link and nodes as specified in Subsection 1.6,
Northland shall refund to the City all payments made to Northland by the City pursuant to this
Subsection 3.1.
3.2 Monthly Payments. Commencing with the acceptance of the Initial Proof
of Performance as set forth in Subsection 1.6 and Exhibit B herein, the City shall prepay to
Northland a prorated amount of one thousand four hundred dollars ($1,400.00) (equal to seven
hundred dollars and no cents ($700.00), for each terminated fiber, with a total of two (2) total
fibers to be provided), if any for the first month, and the full amount of one thousand four
hundred dollars (1,400.00) per month, through December 31, 2002. Commencing January 1,
2003 through December 31, 2003 the City shall pay to Northland the monthly sum of nineteen
hundred dollars ($1,900.00) (equal to nine hundred and fifty Dollars ($950.00) for each
terminated fiber, with a total of two (2) total fibers to be provided). Commencing January 1,
2004 through the last month of the Initial Term of this Agreement, the City shall pay to
Northland the monthly sum of two thousand four hundred dollars ($2,400.00) (equal to one
Page 5
thousand two hundred dollars ($1,200.00) for each terminated fiber, with a total of two (2) total
fibers to be provided).
Commencing with the commencement of the Extended Term (defined below), if any, and
continuing each month during the Extended Term, if any, the City shall pay to Northland the
monthly sum equal to the amount negotiated by the parties.
Except for the institutional network payment and the 2002 monthly payments, which shall be paid
by the City as specified in Subsection 3.1 and 3.2 respectively, the City shall pay to Northland the
above stated amount, in advance, on or before the fifteenth (15th) day of each month during the
Initial Term and the Extended Term, if any, of this Agreement. The City shall mail or otherwise
deliver its monthly payments to Northland at the address specified in Section 26 or to such other
address as Northland may specify in writing. Any amounts not paid as set forth above shall be
subject to a late payment charge of ten percent (10 of the amount then owing. Charges for
electrical power consumption shall be in accordance with Section 12.
The City's payment of monthly payments shall be contingent on Northland's performance of its
obligations under this Agreement.
3.3 Excess Costs and Fees. The monthly payments described in Section 3.2
do not include any sales taxes, use taxes, rental taxes, gross receipt taxes, federal, state or local
regulatory assessment fees, federal, state or local excise taxes, or any other taxes, fees,
assessments, charges or levies which may be imposed by federal, state or local governments, or
agencies thereof, with respect to this Agreement or the subject matter thereof (collectively, the
"Taxes In the event that Northland, as a direct or indirect consequence of the exclusive use of
the Fiber Link granted to the City as contemplated by this Agreement, incurs (i) Taxes, or (ii) any
costs, fees or expenses associated with utility pole attachment or utility conduit use, which are in
excess of the charges paid by Northland prior to the date of this Agreement and which are
attributable to the Fiber Link or any services provided thereon, or, in the event that future
legislative and /or .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 the Franchise,
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 "Initial Term provided, however, the City
may, on or before February 1, 2004 request an extension to this Agreement. Upon Northland's
approval of the City's extension request (the "Extended Term the parties will be bound to the
same terms and conditions as set forth herein (other than the pricing which may be negotiated by
the parties subject to the terms hereof).
Upon completion of the institutional network in accordance with the Franchise, on or before
February 27, 2004, Northland shall provide the City or to any other person or entity assigned by
Page 6
the City the first right of refusal to use two (2) of Northland's reserve fibers, which are not otherwise
subject to the City's or its assignee's exclusive use, pursuant to the Franchise and this Agreement, for
commercial purposes other than Cable Services. In the event that Northland fails to complete the
institutional network in accordance with the Franchise by February 27, 2004, at the option of the
City or its assignee, which shall be provided to Northland in writing no later than February 27,
2004 and annually thereafter through May 31, 2017, Northland shall continue to be bound to the
same terms and conditions as set forth herein at no additional or continuing cost to the City until
Northland has completed the institutional network in accordance with the Franchise.
To the extent the Fiber Link and Node infrastructure provided under this Agreement is still in use
and needed by the City beyond the date on which Northland has completed the institutional
network in accordance with the Franchise, continued use of the Fiber Link and Node
infrastructure under the same terms and conditions as set forth herein (subject to pricing which
shall be negotiated by the parties subject to the terms hereof) shall be allowed.
5. Representations and Warranties. The following representations, warranties and
covenants are material inducements for the parties to enter into this Agreement.
5.1 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 the Franchise.
5.2. None of the facilities of the City or its users or anyone acting on its behalf
or pursuant to its authority shall interfere with the operational integrity of Northland's television
cable system.
5.3 Northland is a corporation in good standing and has the corporate power
and authority to enter into and perform this Agreement. Northland shall maintain the Fiber Link
and nodes, which shall be fully 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 Franchise.
5.6 Northland shall warrant the Fiber Link and nodes for a period of one year
following formal City acceptance and be responsible to promptly correct, at its own expense, all
defects and errors in materials and /or construction that may arise during the warranty period.
6. Indemnification.
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6.1 In addition to its indemnification obligations found elsewhere in this
Agreement, the City and its assigned entity, if any, shall jointly and severally, defend, indemnify,
protect and hold Northland and its officers, directors and employees harmless from and against any
and all claims, demands, actions, judgments, costs (including without limitation reasonable
attorneys' and experts' fees), losses, expenses and liabilities of every kind or nature whatsoever
which may arise in connection with or result, directly or indirectly, from (i) the City's or its
assignee's use of the Fiber Link, (ii) the management or conduct of the City's or its assignee's
activities, or (iii) any breach of or default in the terms, conditions, restrictions, representations,
warranties or covenants agreed to or made by the City contained in this Agreement.
6.2 Northland shall defend, indemnify, protect and hold the City, its successors,
assigns, officers, employees and elected officials harmless from and against any and all claims,
demands, actions, judgments, costs (including without limitation reasonable attorneys' and experts'
fees), losses, expenses and liabilities of every kind or nature whatsoever which may arise in
connection with or result, directly or indirectly, from (i) the construction of the Fiber Link and
nodes as provided in this Agreement or (ii) any breach of or default in the terms, conditions,
restrictions, representations, warranties or covenants agreed to or made by Northland contained in
this Agreement.
7. Node Access.
7.1 Northland shall provide to the City or its assigned entity access to the
nodes for the purpose of connecting site drops, testing and inspection. The City or its assigned
entity shall comply with Northland's node access policies and procedures.
7.2 The City or its assigned entity shall provide to Northland reasonable
access to any 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 rights
granted hereunder to the City, all of the fiber optic filaments and nodes in Northland's cable
system, including without limitation that portion that constitutes the Fiber Link, shall be owned
by Northland and shall not be merged or otherwise annexed to any real or personal property
connected thereto. The City or its assigned entity shall have no right to pledge, mortgage or
otherwise permit a security interest or lien to attach to the Fiber Link or any part of Northland's
cable television system. The City or its assigned entity shall indemnify, defend, and hold
Northland harmless from and against any and all claims, demands and costs (including
reasonable attorney fees) liabilities, causes of action or judgments arising out of or in any way
related to any security interest, lien, encumbrance or legal process against the Fiber Link arising
from any action or omission of the City or its assigned entity or asserted by any creditor of the
City, or otherwise arising out of the use granted to the City or its assigned entity. Each party shall
be responsible for all property taxes imposed on its property.
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9. Insurance. Northland and the City or its assignee agree that they will obtain and
maintain sufficient insurance coverage, or self insurance, to adequately protect their respective
interest in the Fiber Link.
10. Early Termination of this Agreement.
10.1 Northland and the City or its assignee reserve the right to terminate this
Agreement at any time upon breach by the other party of a material term or condition of this
Agreement; provided that the non breaching party has first given 60 days written notice
specifying in reasonable detail the alleged breach or failure of compliance and demanding the
cure of the breach. If said breach or failure to comply cannot reasonably be cured in 60 days, and
the breaching party shall proceed promptly to cure the same with due diligence, the time for
curing such failure to comply shall be extended for such period of time as may be reasonably
necessary to complete such cure.
10.2 Without limiting the foregoing, Northland may terminate this Agreement
at any time on 60 days prior written notice to the City or its assignee if any of the following
events have occurred:
10.2.1 Northland's pole attachment and /or conduit use rights are
terminated or expire and are not renewed, or become subject to conditions or restrictions such
that continuation of this Agreement or the City's or its assignee's continued use of the Fiber Link
and nodes as provided herein would be in violation of such conditions or restrictions.
10.2.2 Northland's franchise to provide cable television service or any
easements, rights -of -way or other similar authorizations are terminated or expire and are not
renewed, or become subject to conditions or restrictions such that continuation of this Agreement
or the City's or its assignee's continued use of the Fiber Link and nodes would be in violation of
such conditions or restrictions.
10.2.3 The City or its assigned entity uses the Fiber Link in violation of
Cable Television Ordinance No. 3116, any applicable federal, state or local law, statute,
regulation, ordinance, code or other legal requirement.
10.2.4 The City or its assigned entity uses the Fiber Link in violation of
any applicable final order of any court or regulatory authority of competent jurisdiction.
10.2.5 Nothing in Subsections 10.2.3 or 10.2.4 shall be deemed to prevent
the City from appealing the validity of any such legal requirement or order. If appeals procedures
permit, the City or its assignee shall have the right to seek a stay in the enforcement of the legal
requirement or order and to continue to use the Fiber Link during the appeals process.
10.3 Without limiting the foregoing, the City or its assignee may terminate this
Agreement after December 31, 2002 upon 60 days prior written notice to Northland if any of the
following events have occurred:
Page 9
Link and nodes.
10.3.1 The City or its assigned entity discontinues the use of the Fiber
10.3.2 The City's assigned entity discontinues performance of its
contractural obligations to the City.
10.4 In the event of termination of this Agreement in accordance with this
Section 10 after completion of construction in accordance with Subsection 1.5 or expiration of
this Agreement, the monthly fee specified at Subsection 3.2 shall terminate, but no portion of the
Institutional Network Payment or monthly payments specified at Section 3 shall be refunded
except as specified in Subsection 3.1.
11. Limitation 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 be solely responsible for paying all electrical
power consumption charges, if any, at each node location where the City or its assignee is the
only party that has active network equipment. The City shall also be responsible for paying all
electrical power consumption charges, if any, at each node location that is used by the City or its
assignee and /or other service providers. The City reserves the right to charge its assignee and /or
other service providers, on a pro rata basis to be determined by the City, for electrical power
consumption at each node location that has active network equipment in use by its assignee
and /or other service providers. Northland shall provide the City a copy of each fiber optic wide
Page 10
area network use agreements it executes with other parties that will have active network
equipment within a node enclosure provided under this Agreement.
13. Maintenance and Repair of the Fiber Link. Subject only to Force Majeure Events,
Northland will perform maintenance and repair of the Fiber Link in accordance with the
standards set forth in Exhibit A, or as otherwise mutually agreed in writing, throughout the Initial
Term and the Extended Term, if any, of this Agreement; provided, however, the City shall
promptly remit payment to Northland, within 30 days of Northland's billing therefore, at
Northland's then existing applicable rates for materials (including, among other things, fiber and
fiber splices) and labor (including any applicable overtime), for maintenance or repair resulting
from the City's, its assigned entity's, its employees', and agents' negligence or intentional
misconduct or repair resulting from any Catastrophic Break. As used herein, a "Catastrophic
Break" shall be any cut in the Fiber Link, however caused or severe, resulting in a disruption of
service within the Fiber Link. The City shall provide written notice to Northland of any
operational problems with the Fiber Link and will cooperate with Northland to effect any needed
repairs.
14. Force Majeure. No party to this Agreement shall be considered in default in the
performance of any of its obligations hereunder to the extent that the performance of such
obligations, except the payment of money, is prevented or delayed by any cause beyond the
reasonable control of the affected party, including, but not limited to, acts of God, acts 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 "Force Majeure Event Each party to this
Agreement shall give notice promptly to the other of the nature and extent of any event of Force
Majeure Event claimed to delay or prevent its performance under this Agreement.
15. Severability. The invalidity under applicable law of any provision of this Agreement
shall not affect the validity of any other provision of this Agreement, and in the event that any
provision hereof is determined to be invalid or otherwise illegal, this Agreement shall remain
effective and shall be construed in accordance with its terms as if the invalid or illegal provision
were not contained herein.
16. Waiver. No modification, amendment or waiver of or with respect to any provision of
this Agreement, nor consent by either party to the breach of or departure from any of the terms and
conditions hereof, shall in any event be effective or binding against such party unless it shall be in
writing and signed by such party, and then such waiver or consent shall be effective only in the
specific instance and for the particular purpose for which given. Neither any failure nor delay by
either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise thereof preclude any future or further exercise thereof or the
exercise of any other right, power or privilege.
Page 11
17. Captions and Headings. The captions and headings are inserted in this Agreement
for convenience only and shall in no event be deemed to define, limit, or describe the scope or
intent of this Agreement, or of any provision hereof, nor in any way affect the interpretation of this
Agreement.
18. No Inference Against Author. No provision of this Agreement shall be interpreted
against any party because such party or its legal representative drafted such provision.
19. Legal Expenses. If any proceeding is brought by either party to enforce or interpret
any term or provision of this Agreement, the substantially prevailing party in such proceeding shall
be entitled to recover, in addition to all other relief as set forth in this Agreement, such party's
reasonable attorneys' and experts' fees and expenses.
20. Exhibits. Each of the Exhibits listed below shall be incorporated into and shall for
all purposes be deemed a part of this Agreement:
Exhibit A
Exhibit B
Exhibit C
Design and Performance Characteristics
Testing Procedure
Node Location Map
Any of such Exhibits may be later amended or revised by the mutual consent of the parties and such
Exhibit, as so amended or revised, shall be incorporated into and shall for all purposes be deemed a
part of this Agreement.
21. Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one instrument.
22. Survival of Representations and Obligations. Sections 3.1, 6, and 11 shall survive
termination or expiration of this Agreement, together_with_.any accrued but unpaid payment
obligations which arose prior to such termination or expiration.
23. Further Assurances. At any time and from time to time, upon the request of one
party, the other party shall execute, deliver and acknowledge or cause to be executed, delivered and
acknowledged, such further agreements, documents, and instruments and to do such other acts and
things as the requesting party may reasonably request in order to fully effect the intent of this
Agreement.
24. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior or contemporaneous
written or oral agreements and representations between the parties with respect thereto.
25. Relationship of the Parties. Nothing herein shall be deemed or construed to create
or constitute a partnership, joint venture or agency relationship between the parties, and neither
Page 12
party is authorized to hold itself out or to act toward third parties or the public in any manner that
would indicate the existence of any such relationship with the other.
26. Assignment. This Agreement, license, and the rights and obligations of the City
hereunder may be assigned to Capacity Provisioning, Inc. or to any other person or entity provided,
however, that prior to any such assignment by the City, the City shall provide Northland with a
copy of the agreement, executed by the City and the potential assignee, whereby the potential
assignee agrees to assume all of the obligations of the City herein, as of the date of such
assignment. Northland shall have the right to assign and delegate this Agreement and its rights and
obligations hereunder, in whole or in part, from time to time for any purpose; provided, however,
that prior to any sale by Northland of the Fiber Link and nodes, Northland shall provide the City
with a copy of the agreement, executed by Northland and the potential buyer of the Fiber Link and
nodes, whereby Northland agrees to assign all of its rights herein and such potential buyer of the
Fiber Link and nodes agrees to assume all of the obligations herein, as of closing date of any such
sale.
27. Notices. All notices required to be in writing hereunder shall be deemed given
when personally delivered, or if mailed by certified or registered mail, three (3) days following
deposit in the United States mail, postage prepaid, or if via telecopy or facsimile, when received,
or if sent by courier service providing evidence of delivery, when actually delivered by such
service, and sent to the following:
If to the City:
If to Northland:
with a copy to:
City of Port Angeles
P.O Box 1150
Port Angeles, WA
Glenn Cutler, P.E.
Phone: (360) 417 -4800
Facsimile: (360) 417 -4709
Northland Cable Television, Inc.
_1201 Third Avenue, Suite 3600
Seattle, WA 98101
Attention: Legal Department
Phone: (206) 621 -1351
Facsimile: (206) 623 -9015
Northland Cable Television
725 East First Street
Port Angeles, WA 98362
Attn.: System Manager
Phone: (360) 452 -8466
Fax: (360) 457 -5901
Either party may change its designated address for notification by sending notice of such
change in the manner provided above.
Page 13
IN WITNESS WHEREOF, the authorized representatives of the parties have executed
this Agreement as of the date first set forth above.
THE CITY
CITY OF PORT ANGELES
By ;7�
Its /////-1/0/"‹
NORTHLAND
NORTHLAND CABLE TELEVISION, INC.
By 61 ale --k
Richard I. Clark, Executive Vice President 1I((
Page 14
EXHIBIT A
This is Exhibit A to that certain Fiber Optic WAN Use Agreement made on the
day of 2002 (the "Agreement by and between NORTHLAND CABLE
TELEVISION, INC., a Washington corporation (herein "Northland and the CITY OF PORT
ANGELES, a municipality governed under the laws of the State of Washington (herein, the
"City").
Design and Performance Characteristics
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 Franchise. The City shall grant right -of -way easements to
Northland to construct nodes on City property. Northland shall be responsible for obtaining
all other required easements, if any, to construct nodes on private property.
Two (2) single mode dark fibers originating at the Clallam County Public Utility
District interconnection, to the Washington Street Substation node, identified in
Exhibit C;
Two (2) single mode dark fibers originating at the Clallam County Public Utility
District splice case, to a splice case located at 3rd Street and Golf Course Road,
identified in Exhibit C;
Two (2) single mode dark fibers originating at the Washington Street Substation
node, to the William Shore Memorial Pool node, identified in Exhibit C;
Two (2) single mode dark fibers originating at the William Shore Memorial Pool
node, to the Valley Substation node, identified in Exhibit C;
Two (2) single mode dark fibers originating at the Washington Street Substation
node, to the Laurel Substation node, identified in Exhibit C;
Two (2) single mode dark fibers originating at the Laurel Substation node, to the Corp
Yard node, identified in Exhibit C;
Two (2) single mode dark fibers originating at the Corp Yard node, to the 16 and I
Street node, identified in Exhibit C;
2. The demarcation points will be each node, unless an alternate demarcation point is mutually
agreed to in advance of construction. Unless a different connector type is agreed to in
advance, each fiber filament will terminate in a bulkhead cabinet using a SC /APC type
connector.
3. Optical Fiber Description The fiber optic filaments per manufacturer's specification will be
matched clad type with a typical field mode diameter of 8.8 9.6 µm at a wavelength of 1310
nm and 10.5 1.0 p..m at a wavelength of 1550 nm. The maximum attenuation of the fiber
cable will be 0.35 dB /km at 1310 nm and 0.25 dB /km at 1550 nm.
Page 15
4. System Design A design of the Fiber Link system will be provided to the City and its
assignee prior to construction. Included in the package will be proposed route drawings,
cable storage locations, splice point locations and fiber splice matrix. Additionally, for each
of the fiber paths calculated lengths fibers and path losses at 1310 and 1550 nm wavelengths
will be illustrated.
5. System Construction The Fiber Link construction will follow good construction and
engineering practices as generally described in the Aerial Cable Placement and Buried and
Underground Cable Placement sections of the Society of Cable Telecommunications
Engineers (SCTE) "Recommended Practices for Optical Fiber Construction and Testing"
handbook.
Page 16
EXHIBIT B
This is Exhibit B to that certain Fiber Optic WAN Use Agreement made on the day of
2002 (the "Agreement by and between NORTHLAND CABLE TELEVISION,
INC., a Washington corporation (herein "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 of 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.
Page 17
Exhibit C Northland Fiber Upgrade Plan and Node Areas
Library Node
included in Cable
Television
Franchise
Ordinance No.
3116 relocated to
Laurel Substation
Olt
r.
j
Pump Station #7
I -Net Node
included in
Cable Television
Franchise
Ordinance No.
3116 relocated to
16 and I
Port of Port
Angeles Node
included in Cable
Television
Franchise
Ordinance No.
3116 relocated to
Valley Substation
City Hall Node
included in Cable
Television
Franchise
Ordinance No.
3116 relocated to
William Shore
Memorial Pool
PUD
interconnection
using splice case
EXHIBIT 6.2
I -NET SERVICES EXPEDITED SCHEDULE
SITE DROP CONSTRUCTION
Site plans for City approval and permitting due 8/30/02
City revisions or approval 9/3/02
If revisions required, date due 9/6/02
Revisions approved by City 9/11/02
Construction complete 11/11/02
I -NET NODE EQUIPMENT AND CUSTOMER PREMISES EQUIPMENT
Equipment installed 11/25/02
Network testing 12/9/02
Services available 12/23/02
LAN SERVICES
LAN plans and specifications for City approval 11/29/02
City revisions or approval 12/6/02
If revisions required, date due 12/11/02
Revisions approved by City 12/16/02
LAN installation complete 1/3/03
page 18
City Municipal Facilities
Site Description
Service Requirement
Data, Mbps
Service Requirement
Data, Mbps
5
100 1000
8
Node City Hall 321 E 5th Street
41 Albert Substation
1
8
PA Police Department
43 Washington Substation 224 5 Washington St
1
8
Dispatch 911
45 Valley Substation 206 S Valley St
1
166
Vern Burton Community Center
47 F Street Substation 1604 S F St
1
10
Fire Station 102 E 5th St
1
69
Senior Center 328 E 7th St
1
72
Carnegie Library 205 S Lincoln St
1
73
Fine Arts Center 1203 E Laundsen
1
75
William Shore Pool 225 E 5th St
1
86
Parks Maintenance 16th St F St
1
87
Cemetery-Office 3127 W 18th St
1
55
Node Corp Yard 1703 S B St
1
57
Wastewater Treatment Plant 1509 Columbia
1
56
Light Ops 240 W Front
1
54
Landfill 3501 W 18th
1
29
Pump Station #1 5th St N St
1
30
Node Pump Station #7 W 19th St
1
31
Pump Station #10 1829.5 W 12thst
1
32
Pump Station #3 Manne Hill
1
33
Pump Station #8 H St 14th
1
34
Pump Station #4 313 Marine Drive
1
35
Pump Station #2 1/2 Alley Cherry
1
36
Pump Station #5 219 E 2nd St
1
37
Pump Station #9 Del Guzzi Dr.
1
38
Pump Station #6 933 Church St
1
City Municipal Facilities
Site Description
Service Requirement
Data, Mbps
5 100 1000
39 Peabody Substation 2803 5 Peabody
1
40 Race Substation
1
41 Albert Substation
1
42 Laurel Substation 110 E 14th St
1
43 Washington Substation 224 5 Washington St
1
44 College Substation 1306 E Park St
1
45 Valley Substation 206 S Valley St
1
46 A Street Substation 1616 A St
1
47 F Street Substation 1604 S F St
1
48 I Street Substation 1538 W 7th St
1
EXHIBIT 6.3
CITY SITE LOCATIONS AND SERVICE REQUIREMENTS
1. CITY SITE LOCATIONS AND SERVICE REQUIREMENTS
2. CITY SITE LOCATIONS AND SERVICES COVERED BY THIS AGREEMENT
page 19
EXHIBIT 6.4
SERVICE LEVELS
1. Network Equipment
All network equipment shall be standards compliant, non proprietary technology, able to support
standards based interface types such as Ethernet /IP, ATM, and SONET. The equipment shall be scalable to
meet future network expansion needs. The equipment shall be interoperable with other standards based
Ethernet networks, specifically that of the Clallam County PUD No. 1 (District), and /or Northland, and /or
Qwest. The network shall be capable of enabling cooperative use by related networks
2. System Availability
C.P.I. shall provide demand maintenance twenty -four hours a day, seven days a week and shall
maintain the site drops from the nodes to the points of demarcation at all times. In emergency conditions,
such as a natural emergency resulting from a windstorm, C P.I. will perform emergency repair work on the
fiber and field equipment. During an emergency, all fibers and field equipment at a given damage location
shall be repaired concurrently without preference to function During normal operating conditions,
customer circuits will be up and operating satisfactorily at least 99.9 as measured over each billing
period, not including scheduled maintenance time, provided, however, that this requirement does not
apply to routine maintenance outages that are scheduled in advance by C.P.I. and approved by the City
Durmg normal operation conditions, C.P.T. shall respond to all outage reports within two hours and make
necessary repairs to the extent feasible to restore service within four hours of notification Monday through
Sunday, 6 a.m. to 10 p.m Under normal operating conditions, C.P.I shall respond to degradation reports
within twenty -four hours
3. Reliability
Recovery due to a logical network break in the I -Net backbone under a ring configuration should
not be greater than 12 microseconds under worst case conditions, with detection and rerouting typically
occurring in approximately 300 microseconds.
Recovery due to a physical network break or a node enclosure power, battery backup, heat or air
conditioning failure shall be coordinated with Northland, which is required by Subsection 8 7.1 of its Cable
Television Franchise Ordinance No. 3116 to restore City I -Net breaks within four (4) hours of outage
notification. The City and /or Northland shall maintain a spare battery backup, heat and air conditioning
unit in the event of a failure.
4. Network Security
C P.I. shall provide protection against denial of service attacks with wire -speed extended access
control lists, secure shell, secure copy, simple network management protocol version 3, and authentication
with AAA, RADIUS or TACACS C.P.I. shall provide a dynamic virtual Local area network (VLAN) that
permits simplified network address administration with logical assignment of users to virtual communities
based on port, protocol, or subnet that minimizes broadcast traffic and ensures network security. C.P.I.
shall also provide private VLANs that allow increased I P. addressing flexibility by portioning port -based
VLANs for security while sharing a common router port. The VLAN shall allow C.P.I. to segment users
requiring access to sensitive information into separate VLANs from the rest of the general user community
regardless of physical location. Upon written City request, C.P.I. shall assist the City at a charge consistent
with Exhibit 6.5 Schedule 1.C. to determine compatibility of any virtual private network (VPN) hardware
and software, including but not limited to firewalls, Internet security devices, encryption equipment and
software, VPN servers, and VPN software, that may be provided by the City at the cost of the City.
page 20
0
5. Network Latency
The I -Net network latency will average no greater than 3 milliseconds between directly connected switches
at Layer 2 only, during standard operating conditions. Average end -to -end latency will not exceed 50
milliseconds during normal operating conditions
6. Packet Loss
Packet Loss across the I -Net backbone shall average 0 3% or less. If Packet Loss average across the
I -Net backbone exceeds 0.3% during a calendar month, C P.I. shall immediately take action to comply with
this requirement. This provision will take effect the first full calendar month after City's first use of the I-
Net backbone.
7. Monitoring and Network Optimization
C.P.I. will periodically monitor and optimize the I -Net backbone Monitoring shall be done
between the furthest nodes using software and hardware components capable of accurately measuring
traffic and responses at such nodes. The City acknowledges that such measurements may not measure the
exact path traversed by the City's packets and that such measurements constitute measurements across the
I -Net backbone but not other networks to which the City may connect. C.P.I. shall provide the City with an
initial baseline monitoring report upon completion of its network and annual reports thereafter upon
request by the City
8. Problem Reporting and Escalation Procedure
a. The City shall first troubleshoot network problems to determine that the problem is a C.P.I.
network problem prior to contacting the C P.I Network Operations Center (NOC).
b. A work order (trouble ticket) will be created based on the trouble call, and the C.P.I.
troubleshooting process and time clock will begin
c. C.P.I. will provide a problem reporting and escalation procedure to the City and will
provide the City with progress and status information on trouble calls The City should receive an initial
callback regarding the status of the problem within thirty (30) minutes of the initial trouble report
d. C.P.I will attempt to resolve most problems within 1 hour of the problem report initially
being logged and a trouble ticket being generated. The NOC will notify the City regarding the status of the
reported problem and the estimated time to repair completion.
e If, after 1 additional hour, the problem has not been resolved (within the parameters of the
C.P.I. escalation procedure), the City may contact C.P.I. to escalate the problem priority. At this point,
C.P I will assess the situation, escalate the trouble ticket's priority as necessary, and provide a best estimate
of time to complete the repair
f. If a C.P.I. technician is required to visit a City site to repair or troubleshoot a problem, the
City may be charged for this service. There will be no charge if the problem necessitating the visit is due to
a failure of C.P I.'s equipment or network that was not the result of City activity or is caused by C.P.I. In all
other situations, the City will be charged for repair or troubleshoot visits to City sites. The charge for this
service will be in accordance with Exhibit 6.5 Schedule 1.C., including travel time, with a minimum 1 hour
charge. This charge will be added to the monthly invoice.
9. New Service
For sites already receiving C.P.I. service, C.P.I. will add new services requiring only a software
change within ten (10) days from the receipt of a written request for the additional service from the City
and C.P.I engineering approval of the change. Services requiring hardware changes will be scheduled with
the City
For locations not receiving C.P.I. service, C.P.I. will add service to a new site where minimal
facilities engineering and provisioning tasks are required within thirty (30) days from receipt of a written
page 21
request for the service from the City. When more than minimal facilities engineering and provisioning tasks
are required, the installation of service will be scheduled with the City.
10. Changes
All requests for additions or changes to City sites shall be m writing A connectivity change request
form will be available from C P.I. and on -line at the C.P I. web site as well The change request will be
evaluated to assess engineering issues and to determine whether the change is a no -cost change or is an
additional cost item under this Agreement. If it is an additional cost item, it shall be approved in writing by
the City, and the cost will be added to the invoice to the City C.P I. will provision new service within ten
(10) days of receipt of a signed change request order and C.P.I. engineering approval of the change.
11. I -Net Node Equipment Vendor Technical Support
C.P.I shall obtain and maintain through the term of the Agreement, and any extensions thereof, the
support services of its I -Net node equipment vendor at a minimum level of 7x24 technical support
availabihty and 24 hour parts replacement response time.
page 22
EXHIBIT 6.5
SERVICE CHARGES
1. C.P.I. BASE CHARGES'
2. REGULAR COMMERCIAL SERVICE CHARGES WITHIN THE CITY'
A. C.P.I maximum charge per Ethernet port per site location per
month including standard overhead facility site drop
B. C P.I non- recurrmg connection charge
C C.P.I VoIP services charge (charge to be provided upon request)
Wide Area Networking
(Within the City)
Data Mbps 100
$220.00
$600 00
1 Utility Taxes not included.
Wide Area Networking
(Within the City)
Data Mbps 100
$345.00
A. C P I. base charge per Ethernet port per facility per month
including site drops during Initial Term for Exhibit 6.3 schedule 1
sites
_ciy
B C.P.I. non recurring connection base charge
$600.00
C. C P I Local Area Network services charge
$80.00 per hour
D. C.P I. VoIP services charge per month per desk phone (charge to
be provided upon request)
E Additional C.P.I. base charge per month for broadband Internet
access (charges to be provided by October 15, 2002)
Data
Mbps =1
Data
Mbps 2
Data
Mbps 3
EXHIBIT 6.5
SERVICE CHARGES
1. C.P.I. BASE CHARGES'
2. REGULAR COMMERCIAL SERVICE CHARGES WITHIN THE CITY'
A. C.P.I maximum charge per Ethernet port per site location per
month including standard overhead facility site drop
B. C P.I non- recurrmg connection charge
C C.P.I VoIP services charge (charge to be provided upon request)
Wide Area Networking
(Within the City)
Data Mbps 100
$220.00
$600 00
1 Utility Taxes not included.
w
EXHIBIT 6.5
SERVICE CHARGES
3. WIDE AREA NETWORKING SERVICE ADDITIONAL CHARGES
A. Additional charge per Ethernet port per month, including
standard overhead facility site drops charge within the Clallam
County service area (charge to be provided January 15, 2003)
B. Additional charge per Ethernet port per month, excluding
standard overhead facility site drop charge within Clallam County
service area (charge to be provided January 15, 2003)
1 Utility Taxes not included.
Wide Area Networking
(Within the City and Clallam
County service areas)
Data Mbps =100
4
EXHIBIT 6.6
INTERLOCAL AGREEMENT FOR ACQUISITION OF INSTITUTIONAL NETWORK SERVICES
Pursuant to Chapter 39 34 of the Revised Code of Washington and other provisions of the law,
hereinafter called OTHER PARTY, and the CITY OF PORT ANGELES, a non
charter code City of the State of Washington, hereinafter called CITY, hereby agree to cooperatively obtain
services according to the following terms and conditions:
1. The City has negotiated an institutional network services agreement with Capacity Provisioning,
Inc (VENDOR) for the purchase of telecommunications services, which is attached hereto as
Exhibit A, and agrees to extend the privileges of said negotiation to the OTHER PARTY to the
extent permitted by law and agreed upon by the CITY, the OTHER PARTY, and the VENDOR
2. This Agreement is limited to services under the City's inshtutional network services agreement
with the VENDOR.
3. The OTHER PARTY accepts responsibility for compliance with all laws and any additional or
varying laws and regulations governmg its acquisition of services. Acquisition of services by the
OTHER PARTY shall be effected by a purchase order directed to the VENDOR.
4. The CITY accepts no responsibility for the performance of any purchasing contract by the
VENDOR and accepts no responsibility for payment of services by the OTHER PARTY to the
VENDOR.
5. Either the CITY or the OTHER PARTY may contract independently for the acquisition of services,
with or without notice to each other.
6. This Agreement is for services necessary for the operation of the CITY and the OTHER PARTY.
7. This Agreement shall remain in force until canceled by the CITY or the OTHER PARTY, which
cancellation may be effected with or without notice to each other.
CITY OF PORT ANGELES, WA WA
Authorized Name Authorized Name
Title Title
Date Date
page 25