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MASTER OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY THIS MASTER OPTICAL FIBER AND FACILITIES AGREEMENT BETWEEN the PORT OF WHITMAN COUNTY, a municipal corporation of the State of Washington, (herein "Port"), and the CITY OF MOSCOW, IDAHO, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho 83843, (herein "City"),. RECITALS: WHEREAS, the Port owns and maintains an optical fiber system and facilities within and without the Port district for the purposes of providing wholesale telecommunication services within the district (hereinafter the "System"); and WHEREAS, City is authorized to provide telecommunication services to the general public and internet service providers, and will not be the end user of the Port optical fiber and facilities leased to it; NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereto do hereby covenant and agree as follows: 1. OVERVIEW: This Agreement states the general terms, covenants and conditions by which the Port will lease to City optic fiber and facilities and provide services, identified and detailed in the associated Service Order Summary. This Agreement is intended to cover any and all facilities and services to be provided by the Port to City. City may use Port fiber and facilities only for authorized and lawful purposes. 2. PAYMENT AND USE (SERVICE ORDER SUMMARY): City covenants and agrees to accept and pay for, and the Port agrees to provide the facilities and fiber and services specified in each Service Order Summary, for the term specified therein. City's use of the System shall include the sale of telecommunication services within the Port district. The Port reserves the right to limit the manner in which any portion of its System and facilities is used to protect the technical integrity of the System. 3. FIBER SYSTEM SPECIFICATIONS: 3.1 Optical Fiber Specifications: Optical fiber within the System will meet the specifications set forth below and measurable by optical time domain reflectometer ("OTDR"): Parameter Maximum attenuation, Maximum attenuation, Cladding diameter OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) Specifications 1310nm (Al) 1550nm (A2) 125 + -3 Units .50 dB/km .40 db/km nm PAGE l OF9 ---PAGE BREAK--- Cutoff Wavelength Zero dispersion wavelength Maximum dispersion 1250 + -100 1310 + -12 (1285-1330nm) Reference: EIA RS-455 test method nm nm 3.5 ps/nm km 3.2 City shall have the right, at its expense, to test the leased fiber any time three days prior to the commencement of use, for compliance with the technical specifications set forth above. Upon completion of testing, City shall either send an acceptance notice to the Port acknowledging the acceptance of the Leased Fibers as tested, or notify the Port that the Leased Fibers do not comply with the technical specifications. By sending an acceptance notice, City acknowledges that the Leased Fibers listed in the notice comply with the applicable technical specifications. If City fails to provide any notice within the three days provided, then City shall be deemed to have accepted the fibers. 3.3 In the event the result of any test performed in accordance with Section 3.2 herein above shows that the fiber(s) are not operating in accordance with the technical specifications, the Port shall take action that is reasonable to bring the fiber(s) into compliance and shall notify City when the Port believes that the fiber(s) comply with the technical specifications. City shall have ten (10) days following such notice to retest the fiber(s) and again notify the Port that the fiber(s) are accepted or do not comply in accordance with the procedures set forth in section 3.2. If following said notice, the Port is unable or chooses not to bring the fiber(s) into compliance, this Agreement shall then terminate as to such fiber(s). 3.4 In no event shall the unavailability, incompatibility, delay in installation, or other impairment of any of City's interconnection facilities, including City's suppliers a local access telephone service provider) be used as a basis for rejecting any fiber(s). 4. FIBER SYSTEM MAINTENANCE: 4.1 All maintenance and repair to the Leased Fiber and system facilities (other than equipment or facilities installed by City), but not limited to, conduit, inner-duct, poles and equipment, shall be the responsibility of the Port; provided the Port shall retain the right to subcontract for maintenance and repair. Maintenance shall be performed in accordance with standard industry practices. 4.2 For routine and scheduled work affecting service on the System, the Port will make reasonable efforts to schedule maintenance that will result in as little disruption of service as reasonably possible, during off-peak hours, and at such times and dates that will provide City with ten ( 10) business days' notice. The Port will provide notice to City by the method provided in the most recent Service Order Summary, or by the method requested by City in writing superseding the method provided in the most recent Service Order Summary. 4.3 Emergency work arising from unscheduled disruption of service or from the eminent threat of disruption of service may be conducted at any time without prior notice. OPTICAL FIBER AND F ACILIT!ES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) PAGE 20F9 ---PAGE BREAK--- 4.4 In the event of unscheduled disruption of service or emergency, City may utilize the emergency contact information to be provided to City by the Port. The Port's contact information may be revised and updated from time-to-time by notice in writing to City by letter, facsimile, or electronic transmission. 4.5 Each Party shall maintain the capability to accept process and dispatch personnel on trouble reports, without delay, after the performance of appropriate tests and attempts to isolate the trouble remotely. If testing and remote trouble isolation procedures are ineffective, each Party will assist the other in efforts to isolate the trouble. If the trouble is isolated to a Party's facilities, equipment or switching equipment, such Party shall take all necessary steps to clear the trouble and restore the services as quickly as possible. 5. TERM: 5.1 Initial Term: The initial term for this Agreement will commence with the execution of this Agreement, and terminate as to the fiber and facilities and on the dates specified in each Service Order Summary, unless automatically renewed as hereinafter set forth; provided, in the event, a Service Order Summary has not been signed and delivered to the Port within ninety (90) days from the execution hereof, this Agreement shall automatically terminate. 5.2 Renewal: This Agreement shall automatically renew for successive terms of one ( 1) year each as to the fiber and facilities specified in each Service Order Summary, unless terminated earlier by notice in writing, delivered by either Party to the other thirty (30) days prior to the end of the term specified, including any renewal term. 5.3 The same terms, covenants and conditions as specified in this Agreement shall apply to all renewal terms, unless otherwise specifically modified by the parties in writing. Upon termination of this Agreement for any reason, City's rights for use of the Port's fiber and facilities, and the obligation of the Port to provide services to City, shall cease. 6. FEES AND PAYMENT TERMS: 6.1 All applicable fees and charges, including, without limitation, power usage fees, rack fees, early disconnect charges, and other non-recurring charges, shall be based on and commenced as specified in each Service Order Summary. 6.2 Invoicing: The Port shall bill City in advance, for all fees and charges, provided power charges shall be added to each invoice as usage occurs. All amounts shall be due within thirty (30) days of invoice. 6.3 Fee Adjustment: Rates, fees and charges may be adjusted or modified from time-to- time as specified in each Service Order Summary. 6.4 Taxes: In addition to all of the charges, City shall pay all applicable taxes, franchise, license and permit fees (hereinafter collectively referred to as "Taxes") (if any) assessed against it for the conduct of its business as a telecommunications service provider arising out of the use of the Leased Fibers during the Term of this Agreement. OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) PAGE 3 OF9 ---PAGE BREAK--- City shall pay all applicable leasehold excise taxes or taxes imposed in lieu of leasehold excise tax, if any. In the event the Port is any way prohibited by law from requiring City to pay any such tax, and by reason thereof the Port does pay any such tax, then, and in that event, the Port shall be entitled to increase without regard to the limit on any Index increases allowed hereunder, the amount of the rate payable by City to the Port by the amount of any tax so paid and by the amount of any increased tax required to be paid because of any increase in the rate which may arise pursuant to this paragraph. 6.5 Past Due Amounts: All past due amounts due pursuant to the provisions of this Agreement shall bear interest at the rate of twelve percent (12%) per annum. 7. LIMITATION OF LIABILITY: Each Party undertakes and agrees to be responsible for the actions of its employees and hold harmless the other Party and all of its officers and employees, for the acts of its own employees. Except to the extent each Party has agreed to hold harmless the other for its acts or failure to act as specified herein, neither Party shall be liable for any indirect, special, punitive or consequential damages arising under this Agreement or from any breach or partial breach of the provisions of this Agreement or arising out of any act or omission hereto, its employees, servants, contractors and/or agent. 8. FORCE MAJEURE: Neither Party shall be liable to the other for any failure of performance under this Agreement due to causes beyond its control (except for the fulfillment of payment obligations as set forth herein), including, but not limited to, acts of God, fire, flood, earthquake or other catastrophes; material or facility shortages or unavailability not resulting from such Party's failure to timely place orders therefore; lack of transportation; the imposition of any governmental codes, ordinances, laws, rules, regulations or restrictions; national emergencies; insurrections; riots, wars; or third party strikes, lockouts, work stoppages or other labor difficulties (collectively, "Force Majeure Events"). City shall not pay for services not rendered during a Force Majeure Event. 9. EVENTS OF TERMINATION 9.1 Condemnation: If at any time during the Term of this Agreement, all or any significant portion of the System shall be taken for any public or quasi-public purpose by any lawful power or authority by the exercise of the right of condemnation or eminent domain, either Party may elect to terminate this Agreement upon giving the other Party sixty (60) days' prior written notice. In the event this Agreement is terminated in accordance with this section, both Parties shall be entitled to participate in any condemnation proceedings to seek to obtain compensation via separate awards for the economic value of their respective interest in the System. 9.2 Damage or Destruction of System: If at any time during the Term of this Agreement, all or any significant portion of the System shall be damaged or destroyed beyond feasible repair, both Parties shall be entitled to seek to recover the economic value of their respective interest in the System under any insurance policy carried by either Party or any third Party; or seek recovery from any third party which may be legally responsible for causing such damage or destruction. OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) PAGE40F9 ---PAGE BREAK--- 9.3 Catastrophic Outage: If at any time during the Term of this Agreement the ability of the Leased Fibers to transmit telephone, telecommunications and video services shall be interrupted or degraded below a minimum of .25 DBM (Decibels per Millivolt) attenuation per splice as established by OTDR (Optical Time Domain Reflectometer) in the case of a Force Majeure Event, for thirty (30) consecutive days; or in the case of a non-Force Majeure Event, for five consecutive days, then either Party may elect to terminate this Agreement without liability upon giving thirty (30) days' written notice to the other Party. 9 .4 Default: Either Party may terminate this Agreement upon the failure of the other Party to cure an Event of Default before the expiration of the applicable cure period, if any, as required in Section 16. In the event either Party fails to cure an Event of Default within the applicable cure period, the aggrieved Party may pursue any legal or equitable remedy available to it under applicable law. 10. ASSIGNMENT: No assignment hereof or sublease, assignment or licensing (hereinafter collectively referred to as a "Transfer") of any rights or obligations hereunder shall be valid for any purpose without the prior written consent of the Port of which consent shall not be unreasonably withheld; provided, nothing herein shall prohibit City from selling or offering telecommunication services over the Leased Fibers to customers in the ordinary course of business. 11. W AIYER OF TERMS OR CONSENT TO BREACH: No term or provision of this Agreement shall be waived and no breach excused, unless such waiver or consent shall be in writing and signed by a duly authorized officer of the Party claimed to have waived or consented to such breach. Any consent by either Party to, or waiver of, a breach by the other Party shall not constitute a waiver of or consent to any subsequent or different breach. If either Party shall fail to enforce a breach of this Agreement by the other Party, such failure to enforce shall not be considered consent to or a waiver of said breach or any subsequent breach for any purpose whatsoever. 12. FREEDOM OF ACTON: Nothing in this Agreement shall restrict the Port in the conduct of its business, and the Port may use the remainder of the System, without limitation, for any purpose whatsoever; provided, no such use unreasonably interferes with the use of the Leased Fibers by City as granted. 13. COMPLIANCE WITH LAW: Each Party agrees that it will perform its respective rights and obligations hereunder in accordance with all applicable local, state and federal laws, rules and regulations. 14. RELOCATION OF THE FACILITIES: City recognizes that, from time to time, the Port may elect or be required to relocate the System or a portion thereof. The Port shall be solely responsible for all costs incurred in relocating the System and shall use reasonable efforts to do so in a manner that will not cause any material OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) PAGE 5 OF9 ---PAGE BREAK--- interruption in City's use thereof. The Port agrees to give City at least three weeks prior written notice of any elected relocation. City shall have no claims for direct damages against Port for disruption of service arising out of relocation. The Port shall deliver to City updated drawings with respect to the relocated Fibers, including Route Miles specified in the drawings, within ninety (90) days following the completion of such relocation. Relocation pursuant to this section shall not affect the Term of the lease of the fiber and facilities affected by such relocation, provided City may elect to terminate this Agreement as to the fiber and facilities affected, by notice in writing provided to the Port no later than ten (10) days following the receipt by the City of the notice from the Port regarding the planned relocation. 15. DEFAULT: If City fails to make a timely payment of the Agreement Fees or any other amount it is obligated to pay, including interest due on all past due amounts, within thirty (30) days after written notice from the Port; or if either Party ("Defaulting Party") fails to perform a nonmonetary obligation and such failure shall continue for a period of thirty (30) days after the other Party shall have delivered written notice of such failure, (unless in the case of nonmonetary default such failure cannot be reasonably cured within such thirty (30) day period, and the Defaulting Party is diligently pursuing such cure), then the Defaulting Party shall be in default hereunder and the other Party at its sole option may terminate this Agreement upon written notice, in which event the other Party shall have no further duties or obligations hereunder; or pursue all legal remedies it may have relating to such default. 16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY: The relationship between City and the Port shall not be that of partners or agents for one another and nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture or agency agreement between the Parties hereto. 17. NO THIRD-PARTY BENEFICIARIES: This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and shall not be construed as granting rights to any person or entity, other than the Parties, including, but not limited to, any customer of City, or imposing on either Party obligations to any person or entity other than a Party. 18. SEVERABILITY: In the event any term, covenant or condition of this Agreement, or the application of such term, covenant or condition, shall be held invalid as to any person or circumstances by any court having jurisdiction, all other terms, covenants and conditions of this Agreement and their application shall not be affected thereby, but shall remain in force and effect unless a court holds that the invalid term, covenant or condition is not separable from all other terms, covenants and conditions of this Agreement. OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) PAGE 60F 9 ---PAGE BREAK--- 19. GOVERNING LAWNENUE: This Agreement shall be interpreted in accordance with the laws of the State of Washington and venue for any action brought hereunder shall be in Whitman County, Washington. 20. USE OF THE SYSTEM: City shall have exclusive control over its provisioning of telephone, telecommunications, or other services including, without limitation, sales and marketing, electronics maintenance and monitoring, and billing and collection. City hereby certifies that it will not be the "end user" of the fiber and facilities leased hereby, but is in the business of providing telecommunication services and that it is authorized to provide telecommunication services within the territory covered by the Service Order Summary and that such services can be provided on fiber optic cable systems such as that owned by the Port. 21. PLURALS: In construction of this Agreement, words used in the singular shall include the plural and the plural the singular, and or is used in the inclusive sense, in all cases where such meanings would be appropriate. 22. COUNTERPARTS: This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one ( 1) and the same instrument, and any of the Parties hereto may execute this Agreement by signing any such counterparts. 23. TITLE: City agrees that all right, title, and interest in the System provided by the Port hereunder shall at all times remain exclusively with the Port. 24. ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement between City and the Port with respect to the subject matter hereof; all prior agreements, representations, statements, negotiations and undertaking are hereby superseded. 25. PUBLIC RECORDS AND CONFIDENTIALITY: 25.1 City acknowledges that information submitted to the Port is subject to the Washington Public Records Act (RCW 42.56.001 et seq.) and is open to public inspection to the extent required by the law. 25.2 City may identify information that City believes is non-disclosable by the Port, including, but not limited to, trade secrets and financial information, submitted to the Port as confidential. City shall prominently mark any information for which it claims confidentiality with the mark "Confidential," prior to submitting such information to the Port. The Port shall treat any information so marked as confidential except as provided below. OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) PAGE 70F9 ---PAGE BREAK--- 25 .3 If the Port receives a request for disclosure of confidential information so marked, or otherwise intends to disclose said information, the Port shall provide City with written notice of the request or intent, including a copy of the request or other basis for the intent to disclose. City shall have five ( 5) working days within which to provide a written response to the Port, by statutory or other legal authority identifying the information it claims as exempt, and specify by citation to the statutory or other legal authority which is the basis for the claimed exemption. The Port shall retain the right to determine whether it is required to release or disclose the confidential information under applicable law. If, after considering City's written response, the Port determines that it is required to release or disclose all or some portion of the information, the Port shall provide City written notice to that effect a minimum of five ( 5) business days prior to releasing or disclosing the information; thereafter the Port may release or disclose said information unless prohibited by court order. City agrees that the Port shall not be liable for any loss or damage from disclosure of information arising out of a good faith effort to comply with the Public Records Act (RCW 42.56.060) and agrees nothing herein shall be considered a waiver of the Port's immunity thereunder. 26. NO PERSONAL LIABILITY: Each action or claim against any Party arising under or relating to this Agreement shall be made only against such Party as a corporation, and any liability relating thereto shall be enforceable only against the corporate assets of such Party. 27. NOTICES: Any written notice under this Agreement shall be deemed properly given if sent by registered or certified mail, postage prepared, or by nationally recognized overnight delivery service or by facsimile to the address specified below, unless otherwise provided for in this Agreement, (notice relating to service and operation shall be governed as provided in section 4, herein): If to City: City of Moscow, Idaho Jesse Flowers, IS Director P 0 Box 9203 Moscow, ID 83843 (208) 883-7121 Facsimile: (208) 883-7093 If to the Port: Port of Whitman County 302 N. Mill Street Colfax, WA 99111 (509) 397-3791 Facsimile: (509) 397-4758 OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) PAGE 80F9 ---PAGE BREAK--- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized representatives as of the day and year first above written. Port of Whitman Port of Whitman County, Washington e Director ATTEST: NovernW I 4-12l>llP OPTICAL FIBER AND FACILITIES AGREEMENT PORT OF WHITMAN COUNTY AND CITY (2016) City of Moscow City of Moscow, Idaho PAGE 90F9