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HomeMy WebLinkAboutResolution 01-46 06/18/2001 . . . . ., RESOLUTION #Ol':,~ APPROVING AND AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT ESTABLISHING A PUBLIC AGENCY NETWORK i WHEREAS, representatives of the City of Eugene, the Lane Councilor 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 of fiber optic cable between an access point in Charnelton Street in Eugfne and an access point in the vicinity of 17th Street in Springfield (the "Springfield-Eugene Cable"); and I WHEREAS, the City and other agencies, including those listed above ~d, in addition, Lane County School District 4J and the Eugene Water and Electric Board, have/negotiated with respect to establishing a Public Agency Network (the "Network" or "PAN") to facilitate the movement of intergovernmental traffic among themselves; and I , I WHEREAS, the participating agencies have agreed that they will dedicate certain assets I to support the purposes of the Network; and I WHEREAS, the assets to be dedicated to the purposes of the Network on the part of the I City of Springfield consist of its interest in four strands of the Eugene-Springfield Cable and the I right to use four strands of fiber optic cable presently installed between City Hall and the Maintenance Shop; and I I I WHEREAS, the parties have reduced their agreement with respect to the joint operation I and management of the Public Agency Network to writing in the form of an agreement ("the i Intergovernmental Agreement"); and I I 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 referedce herein, accompanied by certain material reviewing and commenting upon the Draft Agreement, and has recommended that the Intergovernmental Agreement be approved; and . Attachment A, Page 1 of 2 . . . NOW THEREFORE, BE IT RESOLVED, that the common Council of the Gity of Springfield finds and determines that it is in the public interest to enter into the Intergove~ental Agree- ment and the Intergovernmental Agreement is hereby approved; and I BE IT FURTHER RESOLVED, that the City Manager is hereby authorized ahd directed to execute the Intergovernmental Agreement substantially in the form of the Draft IAgreement, with I 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 ofthe Agreement, such det6rmination to be evidenced by his execution of the Intergovernmental Agreement. I of I Adopted by the Common Council of the City of Springfield, Oregon, thiis I June , 2001. i I 18th Adopted by a vote of ~ for and ~ agains ATTEST: ~~ REVIEWED & APPROVED A~~M ') ~ v\, DATE:~ \7, \'20,) \ OFFICE OF CITY ATTORNEY Attachment A, Page 2 of 2 day C"' . , . INTERGOVERNMENTAL AGREEMENT EST ABLISHING A PUBLIC AGENCY NETWORK . Between and Among Eugene Water & Electric Board (EWEB), the City of Eugene, Springfield Jtility Board (SUB), the City of Springfield, Lane County, Lane Council of Government~, Lane Transit District, Eugene School District 4J, the State of Oregon acting by a~d through the State Board of Higher Education on behalf of the University of Oregon, Labe Educational Service District, Lane Community College, I all governments subject to the provisions of Oregon law. I I RECITALS I I I WHEREAS,ORS 190.010 provides that units of government may enter into agreements for the performance of any or all functions and activities that a party to the ~greements, its officers or agents, have authority to perform, I I I WHEREAS the parties to this agreement have certain fiber optic transmiss~on and transport facilities, as well as rights of use of certain fiber optic transmission and, transport facilities and .da~a communications needs and th~ opportunity to P1ool.those resources and needs WIll Inure to the benefit of all the partIes, and agree that thIS opportunity can be best realized through joint action, i WHEREAS the purpose of this agreement is to establish a Public Agency tetwork ("the Network") for telecommunications purposes, where such a Network will be used by the participating agencies to communicate between their own locations and with each other. The Network will manage components, including fiber optic cable, conduit, electronic equipment and other necessary equipment for transportation of informatio~ signals, the installation and maintenance of fiber and other network equipment, and th~ technical and administrative functions necessary to maintain and operate the Network, arid I I I . WHEREAS the Network envisioned by this agreement is intended to be a flexible system I serving the purpose of improving communications by using the technologieal components that will, at any given time, best accomplish the purpose of improved communications. The parties to this agreement expect that over time the particular components of the Network may change as needs and capacities of the tecllnology and I the users change. , I I The signatories to this agreement desire to establish a Network and agree to the terms and conditions necessary to establish such a Network, including the need to have one Member serve as the Executive Authority, and further agree that EWEB is the Member most I qualified to assume the responsibilities of the initial Executive Authority. lThis agreement serves as an agreement by each Member to allow EWEB to se~e as the Executive Authority and to provide such services and perform such responsibilities as herein set forth, and an agreement by EWEB to undertake such activities. : 06/04/01 Page 1 of 14 Exhibit A , . Now therefore the parties agree as follows: . A. The Network 1. The Network shall consist of the use: (1) of several routes of fiber optic cable connecting demarcation points at offices and other locations ofthe Members and (2) equipment attached to the Network fiber optic cable. The Network is defined as the system composed of the transport media, currently consisting of, but not limited to, fiber optic cables connecting transmission equipment and the transmission equipment, currently consisting of, but not limited to, multiplexing devices, including interface cards, designated for use by Public Agency Network members to 'carry traffic. 2. The Network will be developed through the voluntary contributions of the use of fiber optic cable and equipment owned by members. It is a principle of the Network that members will be credited for their contributions of fiber, equipment and services, and will pay for their use of the Network. It is not necessary or expected that all members make a contribution of fiber optic cable or equipment to be a member or to use the Network. B. Membership 1. The signatories of this agreement shall be the original members of the Public Agency Network Advisory Committee (the "Committee"). Each member shall be entitled to the same voting rights and general membership rights and responsibilities as every other member. . 2. Additional units of government may become members of the Committee when that government's request for membership is received by the Committee and approved by then current membership. Upon approval and execution ofa counterpart copy of the then current version of this agreement, such Member shall have the same general membership rights and responsibilities as every other member. 3. Only Members ofthe Committee may use the Network. Use of the Network is defined as connecting one or more demarcation points to the Member's owned network or equipment outside the Network, and thereafter sending transmissions along some part of the Network. . 4. I Obligations of Membership. In addition to the specific rights and obligations discussed elsewhere in this Agreement, while a Member, each Member shall: a. designate a representative on the Committee. In case of a vacancy, the Member shall designate a replacement representative within thirty (30) days of the vacancy occurring. A member may designate one or more persons as alternates, to represent the Member in the absence of the regular designated representative. All such designations shall be . 06/04/01 Page 2 of 14 Exhibit A . . . 5. 6. 06/04/01 b. communicated in writing to the Executive Authority of the ietwork. Pay any invoice and meet other obligations related to payment for services received as a result of membership, to the extent permitted ~y law. Observe the established provisioning schedules for any equibment or' facilities connected to the Network. i c. I Privileges of Membership. In addition to the specific rights and priyileges discussed elsewhere in this Agreement, while a Member, each Member may: a. use the Network for any lawful communication purposes co~sistent with the design and operation ofthe Network; i , I receive compensation for services and equipment provided to facilitate the operation of the Network which may, at the Member's electibn, be provided in the form of a mutually agreeable discount in rat~s charged the Member or be received through the payment of one or morel invoices sent to other Members, where those invoices reflect costs previo~sly agreed to by the invoiced Member(s), or by a combination of discounts and invoices; and ! I I I ! Termination of Membership. I a. Any Member may terminate its participation in the Network upon 180 days written notice of withdrawal to the other members. T~e withdrawing Member shall use its best efforts to provide to the Network or allow the I continuing use by the Network of any fiber, or right of use Qf fiber, and any equipment provided by the withdrawing member to support the operation of the Network and to facilitate Network traffic oyer any portion of the withdrawing Member's system that had been designated to Network purposes, or a reasonable alternative, upon such terms and ~onditions as the withdrawing member shall require, at non-discriminatorlf rates. The withdrawing Member shall not unreasonably refuse to agree on terms for the continuing use. Upon withdrawal, the withdrawing merhber shall no longer be responsible for any costs that might thereafter be ~ncurred by or for the remaining members. The withdrawing Member shal~ remain responsible for any costs previously incurred to the extent permitted by I law. b. c. exercise the rights of Membership on the Committee. b. I Failure to abide by the terms and conditions of this agreemdnt may result in termination of membership as provided in the default cla$se. I I Page 3 of 14 Exhibit A C. Governance 1. The Organizational structure and provisions concerning operation of the . Network are provided for in this agreement, which sets forth general principles concerning structure, purpose, operations and similar matters. 2. The Committee shall develop appropriate documents which shall describe with particularity the configuration of the network, including services to support the operation ofthe Network; and set forth the formula for the calculation of rates for services; 3. Operational management and provisioning of the network will be coordinated and supervised by the Committee. The Committee may request that other agency departments or entities, such as the Regional Information System ("RIS"), designate representatives to assist the Committee. Such representatives shall be ex-officio Members ofthe Committee, not entitled to a vote, and not considered for purposes of a quorum. The Committee is authorized to approve policy and operating agreements for adoption by the Executive Authority. 4. The operational responsibility of the Committee includes, but is not limited to: provisioning the Network; development of necessary documents; development of work plans; establishment of subscriber rates and other fees and charges and the allocation of expenditures and revenues among the members as . appropriate; and all other activities necessary or convenient to the efficient operation ofthe Network. D. The Public Agency Network Advisory Committee 1. Each Member of the Network shall be entitled to one vote on the Committee. 2. Except as otherwise specified in this section, a quorum of the Committee shall be two thirds of the voting membership. The Committee may issue a written quorum call to the members to ensure sufficient members are present. 3. The Committee may create permanent or temporary subcommittees to facilitate discussion and decision making. The subcommittees may report and recommend to the Committee. 4. A committee meeting may be called at any time by the Chair, or by the call of any three Members of the Committee. The Committee shall meet not less than annually. Notice of the time and place of the meeting shall be sent by electronic mail or by regular mail (written notice) to the designated Member representative at least seven days in advance of the meeting. . 06/04/01 Page 4 of 14 Exhibit A E. I 5. The Committee will strive for consensus on all issues. In the ev~nt that consensus cannot be reached, a 2/3 affirmative vote of the voting membership shall constitute a binding decision. I 6. So that the Committee may conduct its business in an orderly fa~hion, it is important that meetings be well attended so that decisions may Be made. In the event an issue cannot be decided by consensus and a decisiqn must be made, written notification of an impending vote shall be deliver~d to the Members indicating the need for full attendance (quorum call), ~d, in addition to stating the time and place of the meeting, shall state ~he subject of the meeting. Should an insufficient number of Members to achieve a quorum attend the meeting, a second written quorum notice can be issuea, such written meeting notice, in addition to notice of the time place of the me~ting, to also state the subject of the meeting. At the second such meeting, a 2/3 vote of the voting Members present shall be sufficient to reach a decision. Ih this event, a 2/3 vote of the members present is sufficient to designate those ~embers having failed twice to respond to the quorum call as non-voting members. A I Member may request to be placed in non-voting status at any time. Non- I voting Members may petition to return to voting status. Such petitions shall be considered at a regularly scheduled meeting and may be grarited by a majority vote ofthe voting Members. ' I I 7. At its first meeting of each calendar year, the Committee shall elect a Chair I and Vice Chair of the Committee. The Chair shall preside over Ithe Committee deliberations and have such other duties and responsibilities, as the Committee shall from time to time determine. In the absenbe or disability of the Chair, the Vice Chair shall assume the duties ofthe Chait. The role of presiding shall not limit a Member's right to vote. I I 8. The Committee may from time to time authorize a member to a~d or subtract resources to the Network. Such actions shall be consistent withithe provisioning plan then in effect. When any change to the resources of the Network is implemented, the impact of such changes on rates shall be reflected in the Network rate structure. I I Executive Authority's responsibilities I I 1. In addition to its responsibilities and privileges as a Membet of the I Committee, EWEB agrees to serve as the Executive Authority and fiscal agent for the Committee. I 2. The Executive Authority for the Committee, shall i a. Adopt the annual budget approved by the Committe~ and include the Committee budget as a part of the annual budget! of the Executive Authority, subject to the discretion of the ~oard of the . . . 06/04/01 Page 5 of 14 Exhibit A Executive Authority; b. Take necessary steps in accordance with this Agreement to continue the operations of the Network and require it to remain self supporting; . c. Act in accordance with policy recommendations or statements of the Committee; d.' If appropriate, enter into contracts for services to facilitate the operation of the Network and to assure fulfillment of its duties; e. Resolve disputes referred to the Executive Authority by the Committee. 3.' As fiscal agent for the Committee, the Executive Authority shall: a. Collect and disburse funds as indicated in the Committee Budget and credit the Network accounts with monies received and expended; b. Provide the Committee with at least annual reports on the financial status of the Network accounts. 4. The Executive Authority may resign as Executive Authority by providing the Committee with written notification of intent to resign at least 180 days in advance. In this event, the Committee shall choose a new Executive Authority. . F. Provisioning 1. The essential component of the Network is a uniform communications system, allowing the participants to share a system, providing for secure communication when necessary and shared access to information as appropriate. General operational and provisioning decisions for the Network shall be made by the Committee; provided, however, that individual agencies or groups of agencies shall be responsible for provisioning beyond Network Demarcation Points. 2. The Network requires a single system of data transmission. The Committee will adopt, in writing, and may from time to time modify, a uniform system for provisioning the Network, including technical standards for equipment and fiber, security provisions, access provisions and the system's design (Network Provisioning Plan). . 06/04/01 Page 6 of 14 Exhibit A . . 3. I I I I The Committee shall develop and maintain as a part of the l'fetwork Provisioning Plan a written description of the network inc1ucting at least the following: I a. A written and/or graphic depiction of the Network, inc1ttding location of major equipment and route of network fiber, and num;ber of strands of Network fiber on each segment ofthe Network's rou~e; I b. A written and/or graphic depiction ofthe Network's de~arcation points, clearly describing the Network's boundaries; I I I c. A description of each non-Network attachment to the N~twork; I I d. A description of ownership, maintenance agreements, c0ntact information and other information necessary for mainteJance, repair I and security for each segment of the Network; I ! e. A technical description of capacity and usage by agency! on each segment ofthe Network; I 4. f. An indication of any priority traffic or routes, as well as!redundant routes, to allow for priority repair and/or special security and service considerations; i I g. Any other information deemed necessary and useful to the Committee. I . I I The Network Provisioning Plan shall include descriptions ahd the anticipated timing of additions to the Network and changes !in use of the Network by Members. Modifications to the Network shall bnly be made after approval by the Committee and in compliance with th~ Network Provisioning Plan then in effect. Inclusion of a specific modification in I the approved Network Provisioning Plan shall constitute Cqmmittee approval for the identified modification to be made in the rrtanner and at the time specified in the Network Provisioning Plan. i I 5. For purposes of this Agreement, the Network Demarcation Points shall be defined as those points where traffic from one Member, or ~ group of Members less than all members, is transferred to physical facilities which I are available to transport traffic of all Members. Except as ;otherwise designated in the Network Provisioning Plan, Network Demarcation points will be located within Network equipment. I I I I G. Resource acquisition . 06/04/01 1. I Except as otherwise approved in advance by the Committe~, the Executive Authority will act for the Committee in procuringlprovidin$ any necessary I I I I Page 7 of 14 Exhibit A resources to develop and operate the Network in addition to those Network components allocated for Network use by members. . 2. The Committee shall set standards for network reliability and maintenance of Network facilities. Such standards shall be in writing and may be modified from time to time by the Committee. 3. Parties providing resources to the Network, including fiber, retain ownership of those assets. H. Operations and Maintenance 1. The Executive Authority will operate the Network under the guidance and general direction of the Committee. 2. The Committee shall establish written service level standards including, but not limited to, the following: a. Reliability standards; b. Repair and service reestablishment priorities; c. Any necessary site access and equipment housing agreements and standards; d. Network security including, data security, physical security standards for equipment and fiber; . e. Disaster plans and agreements. 3. The Executive Authority will act for the Committee in procuring and/or providing necessary maintenance services for the Network. I. Rate Setting and Billing 1. The Committee will adopt, and may, from time to time, modify, a written rate-setting methodology designed to fully recover costs of operations and capital investment from usage of the Network. Rates for service will be fixed to recognize credits for contribution to network, charges for resources, equipment, maintenance, operational management, and debt service. The Network will operate in the interest of the agencies on a non- profit basis. Rates will be derived to recapture the fully amortized value of the capital assets and service costs allocated to the Network, as described below. The rate setting formula shall be recalculated as appropriate, but at least annually. At a minimum, the rate setting formula shall include the following: . 06/04/01 Page 8 of 14 Exhibit A . I 1 d. The amortization interest rate and time intervals used in :the calculation of costs are selected to recover the cost of debt service artd to accumulate a replacement reserve fund. The interest rat~ is set to the 30 year treasury rate plus 2 per cent, and will be adjusted annually based on the rate in effect at the end of December. I The Committee may adjust the Rate Formula as deemed appropriate to make certain that rates allow cost recovery. The Total Length of Network Fiber (TF) shall bel the number of strand-pair miles connecting the multiplexing devices. i A lambda is defined as one data channel on a fiber strand-pair. For examp~e, if the multiplexing equipment allows each strand-pair to carry 32 data channels, one lambda is I equal to 1/32 of a strand-pair. A lambda in use shall be defined as a lambda which is provisioned to carry traffic during any portion of a month other than for network testing I or maintenance purposes. I I The Fixed Cost of Equipment (CE) shall be the cost necessary to recover the value ofthe I shared equipment, such as multiplexing chassis, management cards, etc. fu~ly amortized over a five year period (60 months). i I j I The monthly cost per circuit shall be determined by the Fixed Capital (CF); cost of the entire Network, plus the Variable Capital (CV) cost for the individual agedcy, plus the Fixed O&M (MF) charge for the entire network, plus the Variable O&M (MV) charge for , I the agency. : I I I a. Value of the fiber is established at $80 per strand-pair rn:ile per month. Current ,multiplexing design supports 32 derived fiber cifcuits from each fiber strand-pair. The value of fiber shall be only tlie value of fiber dedicated to Network services. The costs of any lateral extension outside the demarcation points shall be allocated to age~cies using the laterals, but the value thereof shall not be included in thej Network charges unless and until the Network Provisioning Plan is amended to include a new portion of the Network. I I I I b. Value of necessary network hardware and software shalllbe based on the total value of transmission and transport equipment and associated software for operation of this equipment, contributed to ~he Network. Values used for each annual rate calculation shall be based on the original 'cost of acquisition and installation of the equipJent in place to be used during that year, as shown on the contributing Member's accounts. I I c. Operations and maintenance costs and engineering and design costs shall be based on the services provided by a Member in ponformity with the Service Plan. . . 06/04/01 Page 9 of 14 Exhibit A .r . r CF = ((TF X $80) + (CE / 60))/n, where n is equal to 12, or the number of lambdas in use, whichever is greater. . The Variable Capital (CV) is the monthly cost necessary to recover the value of the agency specific network hardware (CA) on a given circuit, such as interface cards, fully amortized over 5 years. If an agency purchases necessary equipment outright, CA:;:: O. CV = CAt 60. The Fixed O&M shall be the monthly cost of operations, maintenance and administration (OM) ofthe entire network, less the Variable O&M. This shall include normal costs for administration, acquisition, billing, security, and disaster recovery. MF = OM / n, where n is equal to 12, or the number oflambdas in use,. whichever is greater. The Variable O&M (MV) shall be the monthly cost of maintenance services on agency- specific circuit equipment, such as interface cards. Such maintenance shall be provided centrally, i.e., agencies may not individually provide maintenance for agency-specific equipment in the Network. This does not preclude the Executive Authority from providing maintenance to the network or contracting with another agency to provide maintenance to the network. The Monthly Cost for an Individual Agency Circuit (CC) is calculated as follows: . CC = CF + CV + MF + MV 2. A Member incurring any ofthe annual costs listed here or afterwards added by the Committee, or otherwise contributing services, equipment, fiber or other costs pursuant to this Agreement or related agreements made as a result of this agreement may recover those costs in one or both of the following means: (1) by applying the costs as a credit toward services received from the Network (in the form of circuits used), or (2) by payment from funds accumulated by invoices to other Members for services provided on the Network. The Member shall make an election at the beginning of each year, and shall notify other members of its election. The payments or credits received shall be calculated in the same manner and according to the formula set forth in this section. 3. the Executive Authority will provide the necessary billing services on behalf of the Committee to operate the Network. This service shall be a part of the administrative costs for which the Executive Authority is entitled to compensation. . 06/04/01 Page 10 of 14 Exhibit A J. . . . 06/04/01 Default 1. Events of Default If any Party is in breach or default (Defaulting Party), under this Agreement, any other Party (Nondefaulting Party) may notify in writing to the Defaulting Party that it is in breach or default, such notice to 1?e effective upon its receipt by the Defaulting Party. Copies of the notice sh~ll be senUo all Members at the same time. The following events shall constitute jbreach or default under this Agreement: ' a. failure to make any payment when due hereunder; I b. failure to perform in any material respect any obligati~ns required to be observed or performed hereunder; I I c. willful and material interference by one Party to another Party's . I operatIons. i I i I I I I a. Defaulting Party's Right to Cure. The Defaulting Party shall have the right to cure any breach or default under this Agreerhent within I thirty (30) calendar days after the receipt by the Defaulting P~y of notification of such breach or default. In the event that any breach or I default is of a nature such that it may not reasonably be cured within thirty (30) calendar days, the Defaulting Party shall have the right t~ provide the Nondefaulting Party with a plan for the appropriate actions to cure such I breach or default. Within the thirty (30) calendar day period; the Defaulting Party must commence diligently pursuing appropriate action junder the plan to cure the breach or default, in which event the Defaulting P'arty shall have a longer period oftimeto cure the breach or default so long is the Defaulting Party shall continue to be diligently pursuing apptopriate action during such period; provided, however, that in no event shalll such time period exceed 120 days from the date of receipt of notificatidn ofthe breach or default. 2 Remedies I , b Nondefaulting Party's Remedies. After the time kllowed the Defaulting Party to cure any breach or default has expired, tHen the Committee shall have the right to terminate the Defaulting Party's Membership. The Committee or any Nondefaulting Party m~y elect to cure any breach or default ofthe Defaulting Party to preserve the Nondefaulting Party's rights that may be prejudiced as a result of such breath or default; I and exercise and pursue all other rights and remedies availab:le to it under applicable law. I c. Except as otherwise provided in this Agreement, any:right or remedy afforded to any Party under any provision of this Agreement on account of breach or default by another is in addition to, and :not in lieu of, Page 11 of 14 Exhibit A . r all rights or remedies afforded any party under any other provision of this Agreement, by law or otherwise on account of the breach or default. K. INDEMNITY Each of the members agrees to defend, indemnify and save the others harmless from any claim, liability or damage, including attorney fees, resulting from any error, omission or act of negligence on the part ofthe indemnifying party, its officers or employees, affiliates, agents, contractors, licensees, invitees and vendors in the performance of its responsibilities under this agreement. The members' indemnity and hold harmless obligations are subject to the limitations of the Oregon Tort Claims Act and the Oregon Constitution, as applicable. Each party each expressly recognizes and agrees that its obligation to indemnify, defend, protect and save another harmless is not a material obligation to the continuing performance of its other obligations, if any, hereunder. In the event that a party shall fail for any reason to so indemnify, defend, protect and save the other harmless, the injured party hereby expressly recognizes that its sole remedy in such event shall be the right to bring legal proceedings against the other party for its damages as a result of the other party's said failure to indemnify, defend, protect and save harmless. These obligations shall survive the expiration or termination of this Agreement. In providing the services specified in this agreement (and any associated services) all the members are public bodies and maintain their public body status as specified inORS 30.260. All the members understand and acknowledge that all members retain all immunities and privileges granted them by the Oregon Tort Claims Act (ORS 30.260 through 30.295) and any and all other statutory rights granted as a result of their status as local public bodies. L. LIMITATION OF LIABILITY Notwithstanding any provision ofthis Agreement to the contrary, no party shall be liable to any other party 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 or transport 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 06/04/01 Page 12 of 14 Exhibit A . . . . . . . . . " ", . I party, including claims for indirect, special or consequential damages, based on any acts I or omissions of such third party. I M. Notice Except where specified otherwise, the terms 'written communications', 'written notification' and 'notice' shall include notification by electronic mail. N. Additional Agreements This Agreement constitutes the sole and complete agreement among the members. o. Amendment Process This Agreement may be amended only by written agreement among all MelTIbers. amendment shall be executed by a person authorized to bind the Party to th~ commitments represented in the amendment. I I I Any P. Partial Invalidity If any term or provision of this Agreement or the application to any person br circumstance shall, to any extent, be invalid or unenforceable, the remaind~r of this Agreement shall not be affected thereby, and each such term and provision lof this Agreement shall be valid and be enforced to the fullest extent permitted byilaw. I I I I No waiver of any breach of any covenant or provision contained here shall :be deemed a waiver of any preceding or succeeding breach thereof, or of any other covehant or provision here contained. No extension oftime for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act. I I I I I I This Agreement may executed in counterparts, all of which taken together $hall constitute one instrument. This agreement will become effective for the executing m~mbers upon the date of execution by the fifth member to execute this agreement, proviqed that one of the five members is EWEB. The agreement shall become effective for additional members upon the date of their execution of the agreement. j I I I I ! , , I I I Q. Waivers R. Effective Date 06/04/01 Page 13 of 14 ... .."'- '"' . IN WITNESS WHEREOF the parties have signed this agreement as ofthe dflte first above written, FOR CITY OF SPRINGFIELD: By: Title: LCOG: L.-IA TTORNEYlAPPS\TELECOM\FIBER\PANIPAN-fGA-FfNAL +.DOC Last Saved.' June 4,2001 REVIEWED BY cln OF SPRINGFIELD ,1 ~I NAGEMENT. , . ,.. 'J (.,'6--0\ DATE ; ,~ / i ~ ' >..( ',' t'SO FOFii\ff ___._~_..,2",~.y.,~,,_. r'" i, T r.:. r _' \ \ '1.. \'2 cp \ ~".,' 1'0'" ~ ~_. _~........ ,~",,_~...,L~":~~;"'''''''''''T'''''='''\o=><''''''''''OY'~<'-- OFFICE OFD,TTOHN 06/04/01 Page 14 of 14 . . .