HomeMy WebLinkAboutResolution 01-29 05/07/2001
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RESOLUTION #01- 29
APPROVING AND AUTHORIZING
AN INTERGOVERNMENTAL AGREEMENT
FOR THE CONTROL AND OPERATION OF A FIBER OPTIC SYSTEM
WHEREAS, the City of Eugene has acquired, from Williams Communications, Inc.,
rights to use 96 strands certain fiber optic cable installed between points in Eugene and Spring-
field ("the Cable"); and
WHEREAS, representatives of the City of Eugene, the Lane Council of Governments,
the City of Springfield, Lane County, the State of Oregon acting by and through the Oregon State
Board of Higher Education on behalf of the University of Oregon, Lane Transit District, and the
Springfield Utility Board ("the Parties") have negotiated with respect to control of and use of 24
strands ofthe Cable between and access point in Charnelton Street in Eugene and an access point
in the vicinity of 17th Street in Springfield; and
WHEREAS, the Parties have further negotiated with respect to an 'additional 72 strands
of the cable between an access point in the vicinity of Riverfront Research Park in Eugene and an
access point in the vicinity of 17th Street in Eugene; and
WHEREAS, the parties have agreed that all of the foregoing strands of the Cable ("the
Intergovernmental Cable") shall be jointly operated and controlled by the parties, and the City of
Eugene has prepared a standard form of Irrevocable right of Use to the parties, other than the City
of Eugene, covering the Intergovernmental Cable; and
WHEREAS, the City of Eugene has agreed to grant access to governmental traffic
carried on the Intergovernmental Cable to certain of its facilities which connect the access point
in the vicinity ofChamelton Street to facilities of the Regional Information System; and
WHEREAS, the parties have reduced their agreement with respect to the joint operation
and control of the Intergovernmental Cable to writing in the form of an agreement ("the
Intergovernmental Agreement"); and
WHEREAS, the City Manager has submitted the Intergovernmental Agreement to the
council for its review and approval in the form of a draft agreement, (the "Draft Agreement"), a
copy whereof, marked Exhibit A, is attached hereto and incorporated by reference herein,
accompanied by certain material reviewing and commenting upon the Draft Agreement, and has
recommended that the Intergovernmental Agreement be approved; and
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WHEREAS, the Council has reviewed the terms of the Intergovernmental Agreement
and is fully informed as to the contents thereof, and has determined that it is in the public interest
to enter into the Intergovernmental Agreement;
NOW THEREFORE, BE IT RESOLVED, that the common Council of the City of Springfield
finds and determines that it is in the public interest to enter into the Intergovernmental Agree-
ment and the Intergovernmental Agreement is hereby approved; and
BE IT FURTHER RESOLVED, that the City Manager is hereby authorized and directed to
execute the Intergovernmental Agreement substantially in the form ofthe Draft Agreement, with
such changes or amendments thereto as he shall determine to be necessary to effectuate the
direction of the Council and give effect to the terms of the Agreement, such determination to be
evidenced by his execution of the Intergovernmental Agreement.
Adopted by the Common Council of the City of Springfield, Oregon, this 7 t h day
of May ,2001.
Adopted by a vote of ~ for and ~ ag~ ~
ATTEST:
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City Recorder
REVIEWED & APPROVED
A~ FORM
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DATE: 'Zc::c
OFFICE OF CITY ATTORNEY
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rnTERGOVERNMENTALAGREEMENT
FOR THE CONTROL AND OPERATION OF A FIBER OPTIC SYSTEM
AN AGREEMENT between and among
The City of Eugene, the City of Springfield; the Lane Council of Governments; Lane
County; Lane Transit District; Springfield Utility Board and the State of Oregon acting by
and through the State Board of Higher Education on behalf of the University of Oregon.
RECITALS
WHEREAS,ORS 190.010 provides that units of state and local government may enter into
agreements for the performance of any or all functions and activities that a party to the
agreements, its officers or agents, have authority to perform, and
WHEREAS the parties to this agreement have an opportunity to acquire the right to use fiber
optic .cable that will inure to the benefit of all the parties, and this opportunity can be best
realized through joint action, and
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WHEREAS, the parties have joined together in part because of a recognition that each
member of the group can contribute different capacities, capabilities and needs to the group.
The group places a value on the different resources that each member might contribute to the
ongoing benefit of the group. The resources in question include, but are not limited to,
expertise in creating and operating networks, expertise in the installation of fiber optic
systems, access to other fiber optic systems, access to resources of personnel or money, and
other resources. The group recognizes that each member has made a contribution to gain
access to the fiber, and that this counts as a sufficient contribution to be an equal participant
in the future management of the fiber system. The members recognize that the success of the
operation of the group depends on the contributions of these different resources..
AGREEMENT
Now therefore it is agreed:
Section 1.
DEFrnITIONS
For purposes of this Agreement, the following terms shall have the following meaning,
unless the context and use clearly indicates a different meaning.
"Controlling Group" is a descriptive term that collectively includes Lane County, the Lane
Council of Governments (LCOG), Lane Transit District, the Springfield Utility Board (SUB),
the State of Oregon acting by and through the State Board of Higher Education on behalf of
the University of Oregon ( hereafter, "the University of Oregon") and the City of Springfield.
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Intergovernmental Agreement for Fiber Acquisition
Page 1
"Eugene 96" That portion of the optical fiber discussed in this Agreement that extends from
the origin/end at Greenhill Road to the splice point at Charnelton Street.
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"Eugene 72" The 72 fibers retained under sole control of the City of Eugene as a portion of
the optical fiber discussed in this Agreement that extends from Charnelton Street to Agate
Street.
"Fiber System" The system of optical fibers, handholes and associated equipment
installed in the railroad track right of way of the Union Pacific Railroad by Williams
Communication, Inc. at the direction of and at the request of the City of Eugene.
"Fiber System Rights" A reference to the right to connect to, use, and control the use
of optical fiber, and also the right to have access to and share in the control of the handholes
wherein the optical fiber is partially contained. Any transfer of rights to use and control
optical fiber held by or transferred to the City of Eugene under an IRU from Williams
Communications Inc., any portion of which is transferred to the other governmental entities
that have joined in this Agreement, shall constitute a transfer of all the rights and related
obligations held by the City of Eugene to that specified number of optical fiber, and related
rights concerning access to handholes and related facilities so as to allow the use
contemplated by the parties to this Agreement.
"Group's 24" That portion of the optical fiber discussed in this Agreement, consisting of 24
fibers extending from Charnelton to Agate Street, control of which is transferred from the
City of Eugene to the Controlling Group.
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"Group's 96" That portion of the optical fiber discussed in this Agreement, consisting of 96
fibers extending from Agate Street to Seventeenth Street in Springfield, control of which is
transferred from the City of Eugene to the Controlling Group.
"Handhole" is a constructed box or container, placed in the ground which provides a
physical access point to optical fiber cables passing through the handhole.
"IRU" is a contractual relationship between a grantee and a grantor of an indefeasible right
of use of optical fiber.
"Optical fiber" Fibers and the surrounding protective cover used for the purpose of
transmitting optical signals conveying information.
"Street" describes either an actual crossing point of a public right of way and the
railroad, or the area along the railroad right-of-way where the identified street would cross
the railroad were the street extended in the same direction from the end of the street closest to
the railroad, across the railroad. The named streets (Seventeenth Street, Agate Street, etc.)
are references to the identified streets as shown on the official maps of the Cities of Eugene
and Springfield.
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Intergovernmental Agreement for Fiber Acquisition
Page 2
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Section 2
METHOD OF ACQUISITION
A.
Through the efforts of the City of Eugene and others, the City of Eugene is acquiring
an IRU from Williams Communications, Inc., for a fiber optic system in the Eugene-
Springfield area. The physical location of the fiber optic system is within the Union
Pacific railroad right-of-way in Eugene and Springfield, running from Greenhill Road
in the west to Seventeenth Street in the east. The terms of the acquisition are set forth
in the "Interim Agreement" attached as Exhibit A.
B. An IRU between Williams Communications, Inc., and the City of Eugene provides
the City of Eugene the right to use and allocate the use of 96 optical fibers along the
route from Greenhill Road in Eugene to Seventeenth Street in Springfield. The IRU
is attached as Exhibit B. The City of Eugene does not anticipate that it will require
the use of the entire 96 fibers in the region from the intersection of Charnelton Street
and the railroad line east to Seventeenth Street. The City of Eugene has determined
that it will have an excess of 24 fibers out of the 96 acquired in the area between
Charnelton and Seventeenth Street, and an excess of an additional 72 fibers from
Agate Street to Seventeenth Street (totaling the entire 96 fibers in that distance from
Agate Street to Seventeenth Street).
c.
The City of Eugene agrees to, and hereby does transfer the right to use the excess
portion of the fibers acquired (the Group 24 and the Group 72) from Williams to the
other parties to this Agreement; the University of Oregon, Lane County, the Lane
Transit District, the City of Springfield, the Springfield Utility Board and the Lane
Council of Governments (the Controlling Group), collectively, for the purpose of
allowing use of the fiber by the Controlling Group.
D. The University of Oregon, Lane County, the Lane Transit District, the City of
Springfield, the Springfield Utility Board and the Lane Council of Governments (the
Controlling Group) have agreed upon the importance of acquisition of the opportunity
for controlling and using the fiber system that the City of Eugene is making available.
E. Any and all rights to control and use the excess fiber acquired by the Controlling
Group shall be shared equally amongst the members of the Controlling Group in the
manner set forth in this Agreement.
Section 3
A.
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PAYMENT
The terms of the Agreement pursuant to which the City of Eugene is acquiring the
fiber (Interim Agreement) specify that the City of Eugene shall be required to pay the
actual cost of the fiber system, which shall be no more than $245,830.00 for the 96
optical fibers for the eleven (11) miles of fiber and the fiber system associated with
the fibers. The estimated distribution of that cost is as follows:
96 count fiber @ $2.066/ft $119,993.28
1.5" interduct @ $0.27/ft 15,681.60
install interduct @ $0.75/ft 43,560.00
pull fiber @ $0.75/ft 43,560.00
Intergovernmental Agreement for Fiber Acquisition
Page 3
cost per strand per mile
7 handholes @ $298 each
Install handholes @ $850
Total
$225.18
2,086.00
5,950.00
$245,830
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B. The terms of the agreement pursuant to which the City of Eugene is acquiring the
fiber specify that the City of Eugene shall pay a maintenance charge of $30.00 per
mile per month, for a charge of $3960.00 per year for the 11 miles.
C. The distances along the route that the City of Eugene has agreed to share some of its
acquired fiber system with the Controlling Group are established as being 1.5 mile
between the Charnelton handhole and the Agate handhole, and 3.25 miles between
the Agate handhole and the end point of the fiber system at the Seventeenth Street
handhole. These are approximations of the actual distances, reflecting a proportional
distribution of the eleven mile length of optical fiber being acquired.
D.
The City of Eugene agrees to pass along a share of the actual cost of acquisition on a
proportional basis to the Controlling Group, itemized as follows:
Installed cost of 24 fibers from Charnelton to Agate (1.5 miles) $ 8,106.48
Installed cost of 96 fibers from Agate to Seventeenth (3.25 miles) 70,256.16
2 handholes @ $298 + $850 installation 2,296.00
% share of 2 handholes and installation 574.00
Therefore, the proportional cost of acquiring the right of use of the fiber system from
the City of Eugene for each member of the Controlling Group is calculated not to
exceed $13,539. The obligation to pay these amounts to the City of Eugene shall be a
joint and several obligation on the part of the Controlling Group.
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E. Maintenance Cost and Allocation
The terms of the agreement pursuant to which the City of Eugene is acquiring the
fiber specify that the City of Eugene shall pay a maintenance charge of $30 per mile
per month, or $3960 per year for the 11 miles. The City has agreed to share the
maintenance cost charged by Williams proportionately with the Controlling Group,
which results in a share of the maintenance cost equal to $1307 per year, or $218 per
agency per year.
F. The agreement pursuant to which the City of Eugene is acquiring the right to use the
fiber system provides that the City of Eugene will be billed and will pay for the cost
of the fiber by the time the fiber is available for use. The parties have agreed that
LCOG shall be the fiscal agent for overseeing payments to the City of Eugene for the
costs outlined above. The City will notify LCOG of the amount owed, and LCOG
will in turn bill, collect and forward to the City the appropriate amounts. All invoices
under this agreement are to be paid net within 30 days.
G.
The annual maintenance costs shall be handled in the same manner as the initial
acquisition payments.
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Intergovernmental Agreement for Fiber Acquisition
Page 4
H.
Allocation of Additional Costs
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In the course of preparing to make use of the fiber, the parties have incurred
additional costs. These costs are allocated among the Controlling Group members by
the number of interconnection points. These costs include:
1. Engineering ,Splicing, Permit Costs -- Planning, coordination, supervision, testing
and documentation engineering services have been purchased by LCOG to
implement this system. The total cost is fixed at $23,450. The Springfield Utility
Board paid for a 1 ih Street railroad permit, at $1600. These costs are to be split
evenly among the members of the Controlling Group.
2. Interconnection facilities - The parties have divided responsibility for
construction of the interconnection facilities. The responsibility and the costs of
work on these facilities is allocated as follows
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Charnelton St.- City of Eugene. The City of Eugene is installing an
interconnection duct between the Williams vault on Charnelton and the City's
vault on Charnelton, with stub outs adjacent to EWEB's vault, at an approximate
cost of $17,500 including fiber installation and splicing. Of this cost, 25%, or
$4,375, is to be paid by the Controlling Group. The City of Eugene has a fiber
optic cable from the City vault to RIS. The City of Eugene will carry traffic from
the Williams vault on Charnelton to RIS through use of a lighted solution,
carrying packets through separate frequencies on a common physical facility.
Additional fiber capacity can be installed by the Controlling Group subject to
limitations imposed by EWEB, the owner of the primary conduit facility. A
larger than standard vault was installed by the City of Eugene at the request of the
Controlling Group, at a cost of $6,500. This vault allows room to house splice
cases for connections to fiber facilities other than those owned by the City of
Eugene.
Onyx and Agate St.- University of Oregon. The University is providing
extensions to the U of 0 telecom facility locations. The University controls use
of the fiber, and use of the facilities are at the discretion of the University. The
University does not wish for compensation from the Controlling Group.
17th St.- SUB. The interconnection at 17th St. is available for connections. SUB
is providing interconnection services from this point to locations in Springfield,
under terms specified by SUB. SUB will collect compensation from system
users.
3. Table of costs and apportionment of costs.
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The total costs and expenditures for development of a usable system connected to
the fiber optic system is summarized in the following table: This table, rather
than the limited recitation set forth above represents the total apportionment of
costs for acquisition of the fiber and the identified connections to the fiber.
Intergovernmental Agreement for Fiber Acquisition
Page 5
Agency Williams Charnelton Engineering/p Total One Maintenance
Installation interconnection ermits/splice Time (Annual)
cases Costs
City of Eugene $164,597 $13,125 $15,243 $192,965 $2,652
City of Springfield $13,539 $2,175 $1,968 $17,682 $218
Lane Council of $13,539 $2,175 $1,968 $17,682 $218
Governments
Lane County $13,539 $2,175 $1,968 $17,682 $218
Lane Transit $13,539 $2,175 $1,968 $17,682 $218
District
Springfield Utility $13,539 $2,175 $1,968 $17,682 $218
Board
University of $13,539 $0 $1,968 $15,507 $218
Oregon
Total $245,830 $24,000 $27,050 $296,882 $3,960
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These amounts represent initial obligations, and do not reflect payments already made.
These payments can be deducted from the amounts shown here.
Section 4
USE OF ACQUIRED FIBER
A.
All terms and conditions in this Agreement are subject to the original agreements
between the City of Eugene and Williams, set forth in Exhibits A and B, and nothing
in this Agreement is intended to or should be interpreted as being contrary to the
agreements between the City of Eugene and Williams.
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B. For the purpose of apportioning use, the fiber will be divided into 24 fibers extending
from the Charnelton handhole to the Seventeenth Street handhole, and the 72 fibers
extending from the Agate handhole to the Seventeenth Street handhole. The fibers
acquired are a joint asset, to be held and ultimately controlled by the Controlling
Group. Allocation of use to any individual member is made within the context of
regarding the fiber as a joint asset.
The 24 Fiber Segment
C. Until such time as the Controlling Group determines differently, including the
specific concurrence of the member or members of the group controlling any fiber
that might be reallocated, the Group 24 fiber shall be divided equally among the
members of the Controlling Group, with each member gaining the primary right to
use and allocate any other use of four fibers along the entire route from Charnelton to
Seventeenth Street.
D.
Nothing in the allocation of four fibers to each member of the Controlling Group
prevents any member of the group from sharing or transferring for any period of time
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Intergovernmental Agreement for Fiber Acquisition
Page 6
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the use of some or all of the four fibers, for some or all of the total length of the
fibers, to any other member of the Controlling Group. Any arrangement made
among individual members of the group for the permanent or temporary use of a
portion of the primary member's allocated fiber as an individual matter among those
members shall not affect the allocati,on or right of use established in subsection C.
Such arrangements may be made among individual members of the Controlling
Group at their sole discretion. Notice of such a reallocation shall be given to other
members of the Controlling Group.
E.
Subject to the terms of this paragraph, any member of the group may make some or
all of the four fibers allocated to that member available for use by any other entity,
not a party to this Agreement. This may involve the exclusive use of some or all of
the four fibers allocated to the transferring member of the Controlling Group. Prior to
any such arrangement, the member of the Controlling Group that wishes to make such
a provision for shared use will provide notice and an opportunity for consultation
with the other members of the Controlling Group. If all of the other members of the
Controlling Group are of the opinion that the proposed shared use will be contrary to
the provisions of this Agreement, or of the terms of the agreements with Williams, the
members shall give notice of their concerns to the member proposing the shared use.
Thereafter, all the members of the Controlling Group will work together to fashion an
agreement for the proposed sharing of use that will conform to the provisions of this
Agreement. Such an arrangement will amount to a withdrawal of the allocated fiber
from the plans of the Controlling Group, and will mean that the fibers that are
withdrawn will not be automatically eligible for any of the connections or integration
of use that other members of the Controlling Group may develop. However, since the
other members of the Controlling Group have the potential to receive profits from
such use by another entity, the Controlling Group agrees, if requested, to consider the
possible use of such connections and integration since it may be in the best interests
of the Controlling Group to allow such uses.
F.
Any connection or use of any of the fibers or interconnection points that might be
granted to any entity using these withdrawn fiber shall not be a part of this
Agreement, but shall be separately negotiated entirely at the discretion of the member
of the Controlling Group that may choose to allow such use. The member of the
Controlling Group that chooses to withdraw some or all of its allocated fibers and
make them available to an entity other than members of the Controlling Group will
indemnify and hold harmless other members of the Controlling Group from any and
all claims or costs that mat arise as a result of the transfer.
Any net income generated as a result of a decision by a member of the Controlling
Group to withdraw some of the allocated fiber from the uses described in this
Agreement shall be shared among the Controlling Group. The member of the
Controlling Group that withdraws some or all of its initial fiber allocation shall pay
the other five members of the Controlling Group one half of the net income derived
from the lease of the use of the withdrawn fibers. Net income, for the purposes of
this Agreement, is revenues charged for the use of this fiber by another entity not in
the Controlling Group, less the costs incurred by the member withdrawing the fiber,
Intergovernmental Agreement for Fiber Acquisition
Page 7
that are necessary to provide use of the withdrawn fiber to the entity not in the
Controlling Group. These costs do not include the costs of original acquisition of the
fiber incurred by the withdrawing entity.
G. The Lane Council of Governments, the University of Oregon and the City of
Springfield, with the concurrence of the other members of the group, agree to
contribute two strands each from the four strands obtained by each through this
Agreement (for a total of six strands) to the development and operation of a public
agency network. This network will allow and provide connectivity along the route of
the fiber for members of the Controlling Group and the City of Eugene to a
communications network to be established by the contributing members of the
Controlling Group and other public agencies in the area. The original scope of the
network may be to use the fiber along the railroad to connect with equipment installed
by the City of Eugene or any other member of the Controlling Group at a facility
owned or operated by the City of Eugene or another member of the Controlling
Group. The network may be expanded at any time to connect with other facilities
(buildings or fiber optic cable or electronics for the transmission of signals) or other
public agency networks in the area. Opening this portion of the Group 24 fibers to
other, governmental users is consistent with the purposes of this Agreement, and the
allocation of a portion of the Group 24 fibers for this purpose will not need further
consent or authorization by the Controlling Group.
H.
While the parties agree to operate by consensus, the parties delegate to LCOG certain
day-to-day responsibilities where such delegation is appropriate to facilitate use of the
fiber. Such delegated responsibilities include serving as fiscal agent, maintaining
records concerning allocation, making initial provisioning and allocation plans or
implementing the provisioning and allocation plans made by the parties, overseeing
the physical operations to establish and maintain connectivity or actually causing
such physical operations to be accomplished, and such other operations as a party
may wish to delegate to facilitate the development of a public agency network.
Where operating within its delegated duties and where LCOG determines that such
actions are appropriate to the fulfillment of the purposes of the Agreement, LCOG
may act without consulting other members of the group and the City of Eugene.
Notwithstanding the prior authorization, LCOG will not terminate, cut, splice or
otherwise affect fiber connecting any member of the Controlling Group to the fiber
backbone in the railroad line without providing notice to and consulting with the
person or persons designated by the member of the Controlling Group and the City of
Eugene to receive such notice. LCOG will keep records of its activities, and will
provide notice of its activities when and where such advice is appropriate or is
requested. Nothing in this delegation of authority reduces or limits the ability of
another party to this Agreement from tatcing any action concerning the use or
allocation of that party's property, including leased premises or equipment.
I.
The parties acknowledge that establishing and operating the network described here
will involve costs. The parties acknowledge that LCOG is, by this Agreement,
authorized to perform certain actions that will incur costs. Nothing in this Agreement
authorizes or directs LCOG to incur any costs on behalf of any other party.
Intergovernmental Agreement for Fiber Acquisition
Page 8
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Section 5
A.
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Agreements covering LCOG costs will be the subject of separate individual or joint
Agreements, possibly including existing agreements for services by LCOG.
The 72 Fiber Segment
J. Of the remaining 72 fiber strands controlled by the Controlling Group, running from
Agate Street to Seventeenth Street, twelve strands will be reserved for use to assist in
connecting the twelve optical fibers under the control of the Regional Fiber
Consortium, which fiber connects Coburg, Springfield and other cities south to
Klamath Falls and Merrill along the route of the fiber installed by Pacific Fiber Link
(later known as Worldwide Fiber, Inc. and then 360 Networks). Twelve additional
strands of the 72 are reserved for use by the Springfield Utility Board (SUB),
including a connection between SUB and EWEB through this fiber if SUB and
EWEB agree to this connection. In light of the contribution of fibers for a network
available to all, the City of Springfield, the University of Oregon or Lane Council of
Governments may each elect to make use of up to six of the otherwise unallocated
fibers after providing notice to the Controlling Group of the decision to exercise this
option.
K.
The remaining fibers in the group of 72 fibers will be reserved for later allocation by
the Controlling Group as demand arises. Any member of the Controlling Group may
make temporary use of any of the otherwise un allocated fibers upon notice to the
other members of the group. Such temporary use may last until such time as all the
other members of the group decides on an alternative allocation of the fiber.. The
temporary use will not create any vested rights of use for the using member. The
specific consent of the using member is not mandatory prior to reallocation of these
fibers by the membership of the Controlling Group. The unallocated fibers for
temporary use shall not be made available for use by any entity other than the
members of the Controlling Group without the consent of the Controlling Group.
Any agreement allowing other than members of the Controlling Group the use of any
of the unallocated portion of the group 72 fibers shall be subject to the same review
process described in Section 4E for transfer of the Group 24 fibers. Except as
otherwise agreed by the members of the Controlling Group at the time the right of use
of the other fibers discussed in this paragraph is created, any right to use any of these
fibers shall not be anything more than a temporary right, subject to reallocation at any
time by a decision of the other members of the Controlling Group.
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MANAGEMENT
It is the desire and expectation of the Controlling Group that all decisions of the
group will be taken on a consensus basis. In the event that this does not occur with
any particular decision, the group will operate by majority vote of the members
present, except for those decisions mentioned in this Agreement where a different
type of consent is described(i.e. assumption of obligations, reallocation of assigned
fiber).
Intergovernmental Agreement for Fiber Acquisition
Page 9
B.
Each member of the Controlling Group will select a representative to attend any
meetings of the group. No meeting of the group shall be held except when all of the
representatives have received notice of the meeting. Notice may be provided by mail,
voice, fax or electronic mail. Each selected representative, or designated alternative,
shall be entitled to one vote in any group decision, should a vote be necessary. A
quorum of the group necessary for decisions shall consist of no less than four
members. In the event of a tied vote, the proposed choice shall be considered to have
failed to obtain a majority of the voting members.
C. The network to be established, as discussed in this Agreement is solely for the
transmission of data and other forms of information, including private voice switched
service, but not including public switched traffic or other information subjecting the
network to regulation under state or federal law as a telecommunications utility or
local exchange carrier. The parties to this Agreement undertake to exclude the
transmission by or allocation of any such information to this network. This limitation
will remain in effect unless and until alternative arrangements are made concerning
the management by an appropriately licensed entity.
Section 6.
TERM AND TERMINATION
The duration of this Agreement shall be 20 years or such time as the agreements between the
City of Eugene and Williams, set forth in Exhibits A and B, giving rise to the right to use the
fiber remains in effect. This Agreement shall automatically renew if the Controlling Group
retains control of the fiber system. Any member of the Controlling Group may terminate its
participation in the Agreement upon 90 days written notice of withdrawal to the other
members. Any fiber, or right of use of fiber, as well as other rights associated with the fiber,
as set forth in this Agreement, shall, upon completion of the withdrawal, be transferred to and
retained by the remaining members of the Controlling Group. Upon withdrawal, the
withdrawing member shall no longer be responsible for the continuing maintenance costs due
after that member's withdrawal, or any other costs that might be incurred by the remaining
members. A decision to reimburse the withdrawing member for any cost incurred, including
the cost of initial purchase of the fiber, may be made by the unanimous consent of the
remaining members. Any equipment or optical fiber provided by the withdrawing member to
facilitate a connection between a fiber network developed pursuant to this Agreement may,
if the withdrawing member stipulates, be withdrawn along with the withdrawing member.
But the right, privilege or permission to have fiber and equipment in such locations will
remain with or be transferred to the remaining members of the Controlling Group to the
extent possible. Where the fiber or equipment in question is located on property under the
ownership or control of the withdrawing member and will contribute to or assist in
maintaining the usefulness of a fiber system for the remaining members, the withdrawing
member shall provide for the remaining members to continue to use the additional fiber or
equipment unless the withdrawing member determines, in good faith, that such use is not
permissible. The withdrawing member may impose reasonable charges for the continued use
. of the fiber or equipment. In the event that all members of the Controlling Group withdraw,
or in the event that all members fail to meet the obligation of payment of the required sums to
the City of Eugene, which failure is not cured within a reasonable amount of time after notice
Intergovernmental Agreement for Fiber Acquisition
Page 10
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of failure from the City of Eugene, the control of all the fibers shall revert to the City of
Eugene.
Section 7.
B.
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(c)
Section 8.
DISPUTE RESOLUTION
A.
In the event of a dispute or disagreement regarding the performance, terms or
conditions of this Agreement, unless otherwise provided, the Party or Parties
who have determined that a dispute exists shall notify the party with whom
there is a dispute regarding the nature of the dispute. Such notice need not be
in writing. Pending resolution of a disputed matter, the Parties who have a
dispute shall continue performance of their respective obligations hereunder.
Any controversy between the Parties rising out of this Agreement or breach
thereof, or out of performance under this Agreement, is subject to the mediation
process described below.
A meeting will be held promptly between the Parties with a dispute to attempt
in good faith to negotiate a resolution of the dispute. The meeting will be
attended by individuals with decision-making authority regarding the dispute.
If either party feels it would be appropriate, other members of the Controlling
group may be invited to this meeting. If within thirty (30) calendar days after
such meeting the Parties have not succeeded in resolving the dispute, either
Party may within thirty (30) calendar days thereafter, serve written notice to the
other Party and, submit the dispute to a mutually acceptable third-party
mediator who is acquainted with dispute resolution methods.
The costs of mediation, including any mediator's fees, shall be borne equally by
the Parties to the dispute. Each Party's other costs and expenses will be borne
by the Party incurring them.
INDEMNITY
To the extent permitted by Oregon law, ORS 30.260 through 30.300, and the Oregon
Constitution, Article XI, Section 7, each ofthe parties agrees to indemnify and hold any other
party, its officers, agents, and employees, harmless from and against any and all claims,
actions liabilities, costs, including attorney fees and other costs of defense, arising out of or
in any way related to any act or failure to act by the indemnifying party and the indemnifying
party's employees, agents, officers and contractors in connection with this Agreement. In the
event such action or claim is brought against another party to this agreement, the
indemnifying party shall, upon the indemnifiable party's tender, defend the same at the
indemnifying party's sole cost and expense, promptly satisfy any judgment adverse to the
indemnifiable party or to the indemnifiable party and the indemnifyng party, jointly, and
reimburse the indemnifiable party for any loss, cost damage, or expense, including attorney
fees suffered or incurred by the indemnifiable party.
.
Each party agrees to promptly provide any other party with notice of any claim that may
result in an indemnification obligation hereunder. No settlement or compromise of any claim
Intergovernmental Agreement for Fiber Acquisition
Page 11
., , .
by the indemnifing party shall occur without the consent of the indemnified party, which
consent shall not be unreasonably withheld or delayed.
.
Each party expressly recognizes and agrees that its obligation to indemnify, defend, protect
and save another harmless does not affect the obligation to continue performance of its other
obligations, if any, hereunder. The obligations to indemnify and hold harmless other
members of the Controlling Group shall survive the expiration or termination of this
Agreement.
To the extent any party is required under the terms and provisions of any related agreement
to indemnify another entity because of such agreement, from and against any and all claims,
suits, judgments, liabilities, losses and expenses arising out of service interruption, cessation,
unreliability of or damage to the fiber optic system, regardless of whether such claims, suits,
judgments, liabilities, losses or expenses arise from the sole or partial negligence, willful
misconduct or other action or inaction of such party or provider and its employees, servants,
agents, contractors, subcontractors or other Persons using the property covered by this
Agreement, each party hereby releases such other party, grantor or provider from, and hereby
waives all such claims, suits, judgments, liabilities, losses and expenses arising out of service
interruption, cessation, unreliability of or damage to the fiber optic system. This waiver of
claims shall extend to and include any third party using any portion of the fiber optic system
or services described in the Agreement, and no party shall allow such third party use without
informing that third party of the binding effect of this waiver and obtaining a similar waiver
of claims against all parties to this Agreement.
.
Section 9.
LIMITATION OF LIABILITY
Notwithstanding any provision of this Agreement to the contrary, no party to this Agreement
shall be liable to any other party to this Agreement for any special, incidental, indirect,
punitive or consequential damages, or damages for lost revenue or lost profits, whether
foreseeable or not, arising out of, or in connection with such party's failure to perform its
respective obligations hereunder, including, but not limited to, loss of profits or revenue
(whether arising out of transmission interruptions or problems, any interruption or
degradation of service or otherwise), or claims of customers, whether occasioned by any
construction, reconstruction, relocation, repair or maintenance performed by, or failed to be
performed by, the other party or any other cause whatsoever, including breach of contract,
breach of warranty, negligence, or strict liability, all claims for which damages are hereby
specifically waived. Except for the limitations on actions contained in the applicable
provisions of the Oregon Tort Claims Act, nothing contained herein shall operate as a
limitation on the right of a party hereto to bring an action for damages against any third party,
not a signatory to this Agreement, including claims for indirect, special or consequential
damages, based on any acts or omissions of such third party.
Section 10. FORCE MAJEURE
Except as may be otherwise specifically provided in this Agreement, no party shall be in
default under this Agreement if and to the extent that any failure or delay in such party's
.
Intergovernmental Agreement for Fiber Acquisition
Page 12
'!' . ! ,-
.
performance of one or more of its obligations hereunder is caused by any of the following
conditions, and such party's performance of such obligation or obligations shall be excused
and extended for and during the period of any such delay: act of God; fire; flood; fiber, cable,
conduit or other material failures, shortages or unavailability or other delay in delivery not
resulting from the responsible party's failure to timely place orders therefore; lack of or delay
in transportation; government codes, ordinances, laws, rules, regulations or restrictions; war
or civil disorder; failure of a third party to recognize an obligation of this Agreement (such as
a failure to fulfill an obligation to provide or maintain a part of the network); any other cause
beyond the reasonable control of such party. (each a "Force Majeure Event"). The party
claiming relief under this Section shall notify the other in writing of the existence of the
event relied on and the cessation or termination of said event.
Section 11. WARRANTY
NEITHER THE CITY OF EUGENE NOR ANY OTHER PARTY TO THIS AGREEMENT
MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
FillERS DISCUSSED IN THIS AGREEMENT, INCLUDING ANY WARRANTY OF
MERCHANTABILTY OR FITNESS FOR PARTICULAR PURPOSE, AND ALL SUCH
WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
Section 12. EFFECTIVE DATE
.
This Agreement shall become effective when signed by an authorized representative of each
of the members of the Controlling Group.
SIGNED:
Jurisdiction
Jurisdiction
Signature (Title)
Signature (Title)
Date
Date.
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
Date Date
Jurisdiction Jud~diction
. Signature (Title) Signature (Title)
Date Date
Intergovernmental Agreement for Fiber Acquisition Page 13
.-
,~. , . ...
.
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
Date Date
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
Date Date
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
Date Date
Jurisdiction Jurisdiction .
Signature (Title) Signature (Title)
Date Date
REVIEWED BY
CITY OF SPRINGFIELD
7R MANAGEMENT
L1~2 L{ -0 J
DATE
REVIEWED & APPROVED
~ FORM .
~\-\-....) ~vH
DATE: 'i \ ~ 200 \
OFFICE OF CITY ATTORNEY
.!
Intergovernmental Agreement for Fiber Acquisition
Page 14