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HomeMy WebLinkAboutResolution 01-29 05/07/2001 . . . 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 . . . 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: ~~ City Recorder REVIEWED & APPROVED A~ FORM ~~\~ DATE: 'Zc::c OFFICE OF CITY ATTORNEY . 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 . 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. . 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. . "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. . "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. . Intergovernmental Agreement for Fiber Acquisition Page 2 . . 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. . 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 . 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. . 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. . Intergovernmental Agreement for Fiber Acquisition Page 4 H. Allocation of Additional Costs . 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 . 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. . 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 . 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. . 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 . Intergovernmental Agreement for Fiber Acquisition Page 6 . . . 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 . . . . . Section 5 A. . 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. ,(!) 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 . . . . of failure from the City of Eugene, the control of all the fibers shall revert to the City of Eugene. Section 7. B. . (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