HomeMy WebLinkAbout16- Dark Fiber Lease Agreement DARK FIBER LEASE AGREEMENT
THIS DARK FIBER LEASE AGREEMENT ("Agreement") is made on
Il Ll., 27, 2016 (the "Effective Date"), by and between the City of Bozeman, a self
gover 4g municipal corporation organized and existing under its Charter and laws of the State
of Mo ana with its principal offices located at 121 North Rouse, Bozeman, MT ("City" or
"Lessee") and Bozeman Fiber, a Montana non-profit corporation with its principal offices
located at 2000 Commerce Way, Bozeman,MT("BFI" or"Lessor"). City and BFI are at times
collectively referred to hereinafter as the"Parties"or individually as"Party."
RECITALS
1. Bozeman Fiber (BFI), in accordance with the Bozeman Fiber Master Plan and
Feasibility Study, is developing a community fiber optic network, in which BFI
will be able to make available unactivated ("dark") fiber optic network strands for
the use and benefit of others.
2. The City desires to obtain dark fiber connectivity to certain City locations.
3. The City desires to facilitate dark fiber connectivity to initial locations of
Bozeman School District #7, and the City possesses authority to procure dark
fiber connectivity on the School District's behalf.
4. BFI desires to provide dark fiber connectivity to initial City and School locations,
and other locations as may be mutually agreed by the Parties.
5. The Parties executed a Memorandum of Understanding on or about August 24,
2015, outlining the substance of the Agreement that follows.
NOW, THEREFORE, in consideration of mutual promises stated in this Agreement, the
sufficiency of which is acknowledged by the Parties,the Parties agree as stated below.
1. TABLE OF EXHIBITS MADE PART OF THIS AGREEMENT
Exhibit A: Initial City and School Locations
Exhibit B: Description of Leased Fiber
Exhibit C: Acknowledgement of Acceptance of Leased Fiber
Exhibit D: Grant of Authority from Schools to City to Enter Into Fiber Lease
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2. DEFINITIONS
2.1. "Affiliates" means any person, firm, corporation, partnership, association,
trust or other person or entity that controls, is controlled by or is under common
control of the subject party.
2.2. "Agreement" means this Dark Fiber Lease Agreement, all Exhibits and
Attachments thereto, any Addenda to which the Parties may agree from time to
time, and any other provisions incorporated by reference.
2.3. "Cable" shall mean a bundle of fiber optic filaments or strands, installed and
owned by Lessor, meeting or exceeding SMF 28 or any other applicable industry
standard. A Cable is composed of several dark fiber filaments or strands.
2.4. "City Location(s)" mean those Locations owned or controlled by City.
2.5. "Acceptance Date" means that date on which installation of all or a portion of
Leased Fiber is complete and City or Schools have accepted same or the Lease is
deemed accepted as to such Leased Fiber pursuant to this Agreement.
2.6. "Effective Date"means that date upon which this Agreement is executed by both
Parties.
2.7. "Engineering Study" means BFI's technical evaluation and study of tasks, labor,
materials, cost and other matters relating to deployment of the Network.
2.8. "Fiber Lease" means the leasehold interest in specified unactivated fiber optic
strands within the Network, granted to City under this Agreement.
2.9. "Leased Fiber" means the dark optical fiber strands ("dark" as such term is
commonly understood in the telecommunications industry, e.g., without
electronics or optronics so that it is not "lit" or activated) on a route in the
Network in which City has been granted a Fiber Lease pursuant to this
Agreement.
2.10. "Location" means a specifically identified City or School site to be connected
with Leased Fiber under this Agreement, at which the City or School may attach
its own facilities.
2.11. "Maintenance" means work that must be performed upon or to Leased Fiber or
the Network to ensure the continuity of an acceptable signal transmitted through
the Leased Fiber (in conformance with the manufacturer's specifications), or to
ensure the safety and reliability of Leased Fiber or the Network. Unless
otherwise agreed in writing, Maintenance shall not include any work associated
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with either non-Network equipment owned by an entity other than BFI, or
equipment that sends, receives, interprets or modifies a signal or signal data.
2.12. "Network" means a fiber optic communication system including strands of fiber
optic cable, hardware, equipment, and access locations and rights related thereto,
without limitation, owned and/or controlled by BFI.
2.13. "Schools"means Bozeman School District Number 7.
2.14. "School Locations" means Locations owned or controlled by Bozeman School
District Number 7.
3. TERM.
3.1. Initial Term.
This Agreement shall be in full force and effective as of the date that both Parties
have executed it(the Effective Date), and unless sooner terminated in accordance
with its terms, shall remain in effect for an initial term of ten(10) years.
3.2. Renewal.
The City shall have the right to renewal for an additional ten(10) year term by
providing notice of such intent no less than six(6)months prior to the expiration
date of the Term. The lease fee for the renewal term shall be negotiated by the
parties, consistent with then market rates, but in no event greater than ten percent
(10%) greater than the lease fee set forth in Section 4.3.1. The Parties will
commence discussions for additional renewal of this Agreement no later than the P,
9th anniversary of any renewal term, or as soon as practicable thereafter. Any
renewal shall be in writing, and executed by the Parties. Notwithstanding the
foregoing,the parties may enter into any renewal containing such modifications
as the Parties may agree.
4. DARK FIBER LEASE. E,
4.1. Fiber Lease.
As of the Acceptance Date (set forth in Section 4.5) and under the terms and
conditions of this Agreement, BFI grants a lease to City, for the use and benefit
of the City and Schools, of the Leased Fiber, namely, the designated number of
dark fiber optic strands to City and School Locations, in accordance with the
initial route (as may be amended by BFI in its reasonable discretion, so long as
there is no degradation in service or material increase in cost to the City or
Schools) described in Exhibits A and B. Subject to the terms and conditions of
this Agreement, City and Schools shall have the right to use, and the right to
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attach equipment to,the Leased Fiber at Locations. In no event shall any term or
condition of this Agreement be construed to include any obligation of BFI to
provide any equipment space, licenses, rights of way, or other consents for any
attachments to or other uses of the Leased Fiber, in that equipment space and
such usage rights are outside the scope of rights granted to City in the Leased
Fiber and this Agreement. The Parties agree and understand that this Agreement
does not involve the provision of Internet access service, telecommunication
service, or any other transmission of data or signals by BFI.
4.2. Scope.
The Fiber Lease granted to City includes an exclusive, undivided interest in the
Leased Fiber. City shall not acquire any interest in the Network by virtue of this
Agreement except the limited, exclusive right to use the Leased Fiber pursuant to
this Agreement, nor in any proceeds from the disposition of any or all portions
of the Network. Nothing in this Agreement grants to City or Schools an
exclusive right to use that conduit in which Network fibers are located, as BFI
maintains exclusive rights to use said conduit in its sole discretion, subject to any
nonexclusive right in said conduit as may be necessary for City and Schools to use
the Leased Fiber.
4.3. Lease Fee.
4.3.1. City shall be assessed and shall pay annually to BFI a lease fee for use of
Leased Fiber, in the amount of$556.00 per month, per City and School
Location to which BFI has provided access to Leased Fiber under this
Agreement. The annual Lease fee shall be payable upon the Acceptance
Date described in Section 4.5.
4.3.2. Market Adjustment. After five (5) years of service under the original
Lease pricing, the Parties may engage in negotiations on Lease price with
regard to the respective interests of the Parties. If the City identifies an
identical dark fiber service that is available in the Bozeman market at a
lower price point, and both Parties find that dark fiber offering to be a
technically like product, City shall receive a discount on the remaining
five (5) years of the Agreement for a price matching the competing
service's price, provided that the total discounted price may not be more
than ten (10)percent less than the original Lease price.
4.4. Installation.
BFI or BFI's contractors, subcontractors, or other designees shall provide all
labor, materials, and equipment required to install and test the Leased Fiber. BFI
may charge a one-time, per-site Connection Charge, as described in Section 6.5.
The Parties shall mutually agree to a schedule for all work contemplated by this
Agreement.
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4.5. Fiber Acceptance Procedures.
BFI shall be responsible for the testing of the Leased Fiber,which testing will be
performed with industry accepted equipment, and BFI shall provide City a report
of such test results. Upon completion and receipt of the test results, City shall
have fifteen (15) working days to give BFI written notice of acceptance or to
reject the test results and specify parts not in accordance with industry standards.
(A sample Acknowledgement of Acceptance of Leased Fiber is provided as
Exhibit C.) Failure of City to review and either accept or reject the test results
within said fifteen (15) working days shall operate as constructive acceptance of
the test results for purposes of acceptance in this Agreement. If within said
fifteen (15)working days City gives BFI written notice of rejection of any of the
Leased Fiber due to nonconformity with industry standards, BFI shall have
forty-five (45) days after receiving said notice to remedy all defects or failures to
conform the Leased Fiber to industry standards. If BFI fails to remedy all such
defects or failures within forty-five (45) days after receiving notice from City of
rejection, then the foregoing procedure shall repeat until acceptance or deemed
acceptance of the Leased Fiber. The acceptance or deemed acceptance of the
Leased Fiber shall be the "Acceptance Date."
4.6. Configuration and Access to Leased Fiber; Splicing
BFI shall have full and complete control for determining any routing
configurations of, access to, and splicing on the Network (including the Leased
Fiber); the location and configurations of all lateral spurs, manholes, handholes,
and other access points; and all uses of the Network by BFI, City, Schools, and
third parties. Except as otherwise required by law, nothing herein grants the City
or Schools the right to own, control, maintain, repair, modify, and relocate the
Network (including the Leased Fiber); to physically access to the Network
(including the Leased Fiber and BFI's manholes, handholes, and other access
points); to encumber the Network in any manner; and, except as expressly stated
in this Agreement, to use the Network. Notwithstanding the foregoing, City
shall have the right to connect City's communications equipment as authorized
by BFI in its reasonable discretion with the endpoints of Leased Fiber. City may
obtain access at points along the Leased Fiber only upon prior written approval
by BFI in BFI's reasonable discretion.
4.7. Replacement,Relocation and Condemnation.
4.7.1. BFI from time to time may replace, relocate or otherwise change or
substitute any Leased Fiber(s), access point(s) and route(s),provided that
no such voluntary change may reduce the number of Leased Fibers in the
subject route(s) or result in City's or School's inability to use, as
permitted by this Agreement, the Leased Fibers in the subject route(s)
other than from midnight to 6:00 a.m. local time. The cost of any
relocation or removal may be equitably apportioned among all then-
current lessees and owners of that portion of the Network directly
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affected by such relocation, and City agrees to pay such costs as invoiced
by BFI. Such equitable apportionment shall be made according to the
number of fiber strand(s) leased or owned, unless BFI in its discretion
determines that an alternative means of apportionment would produce a
more equitable result. In the event such removal or relocation becomes
necessary, BFI shall take all commercially reasonable efforts to
minimize the impact on City and Schools. Any relocation undertaken as
a result of a BFI decision or a City public works related project requiring
such relocation shall be completed without cost to the City. To the
extent that there is finding from the City or any other party to cover the
cost of such relocation that is made available to other users of the rights
of way, BFI shall be entitled to share in any relocation funds made
available.
4.7.2. If any portion of the Network and/or rights necessary to provide the
Leased Fiber become the subject of a condemnation proceeding which is
not dismissed within one hundred eighty (180) days after the date of
filing of such proceeding and which reasonably could be expected to
result in a taking of a portion of the Network containing the Leased
Fibers by any governmental agency or other party having the power of
eminent domain,BFI may terminate the Fiber Lease.
4.8. Use of Leased Fiber.
4.8.1. City, at its sole expense, may use the Leased Fiber, and shall cause
Schools to use the Leased Fiber, only (a) for lawful purposes and in
compliance with all applicable federal, state and local laws, codes, rules
and regulations (collectively, "Laws"), industry operations and safety
standards and all applicable franchises, rights of way, leases, licenses,
contracts and other obligations to third parties with respect to the
Network; and (b) in a manner that will not interfere with or interrupt any
of the Network or its use by BFI or other users.
4.8.2. City, at its sole expense, will obtain all Authorizations required for its
and its lessees', licensees', invitees', permittees' and users' business use
of, and attachment to, the Leased Fiber, and all approvals for access into
all City Locations, School Locations, POPs and colocation facilities, for
the purpose of equipment installation, City's periodic maintenance and
services related thereto, and for the use thereof and of any building
entrances, power, riser conduit, fiber optical strands or other building
facilities at all such City and School Locations, POPs and colocation
facilities.
4.8.3. City shall cause other users of Leased Fiber, including but not limited to
Schools,to agree to be bound by the provisions of this Section.
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4.9. Removal of Equipment Upon Termination.
City will remove from any property owned, leased or licensed by BFI all City
and School property, equipment and other materials used in connection with
the Leased Fiber within sixty (60) days from expiration, termination or
rescission of any Term. Upon any substitution of any Leased Fiber or access
point, City will remove from any substituted property all City or School
property, equipment and other materials used in connection with the Leased
Fiber. City will complete such removal in a manner that does not interfere with
or damage the Network. If City fails to remove property within sixty (60) days
from expiration, termination or rescission of any Term, BFI may, upon thirty
(30) days prior written notice to City, deem such property to be abandoned, and
BFI will make such disposition of the property as it deems necessary or
advisable at City's sole expense, with all proceeds delivered to City less
reasonable expenses. BFI shall have the right to access City or School Locations
for a reasonable time following any termination of this Agreement for the
purpose of accessing and, in BFI's sole discretion, removing, BFI property from
such Locations.
4.10. Abandonment.
In the event that BFI intends to abandon all or any part of the Network, Leased
Fibers or access points (collectively, Network Facilities), BFI shall submit for
the City's and Schools' approval a complete description of the Network
Facilities and the date on which BFI intends to abandon the Network Facilities.
Such notice shall be given no less than ninety (90) days prior to the intended
date of abandonment. BFI will cooperate reasonably with City to take such
action as is required to allow City and/or Schools to use and maintain any
abandoned Network Facilities, or to provide City with an acceptable alternative
as to the abandoned Network Facilities. If BFI abandons any Network
Facilities, the City may, at its discretion, provide notice to BFI that it will
assume ownership of all or any part of the abandoned Network Facilities. Upon
thirty (30) days notice, the City will assume ownership of such abandoned
Network Facilities.
5. MAINTENANCE.
5.1. Generally.
BFI or its contractor, subcontractor, or other designee shall perform
Maintenance of the Leased Fiber connecting City Locations in material
accordance with BFI's then current maintenance procedures. Maintenance shall
be undertaken at BFI's sole expense, with the exception of relocation expenses I
described in Section 4.7 or as otherwise stated in this Agreement. When
conducting Maintenance on the Network, BFI shall exercise reasonable care to
prevent interruption of City's or School's services or interference with the
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Leased Fiber. BFI shall not,however,be liable to City for any interruption to its
services or interference with the operation of the system, unless such
interruption and/or interference arises from the negligence or willful misconduct
of BFI or its employees, agents, or representatives. To the extent any
Maintenance of the Leased Fiber or any of the Network relates to (a) work
necessitated by City's or School's negligence or willful misconduct, or (b)
City's or School's elective maintenance or repair requests, City shall pay and
reimburse BFI for one hundred percent (100%) of all reasonable costs, fees, and
expenses incurred by BFI in connection therewith, notwithstanding any
provision or implication to the contrary.
5.2. Routine and Emergency Maintenance.
Routine maintenance requiring or causing signal interruption shall be
coordinated between the Parties, and shall be provided in accordance with BFI's
then-current Network maintenance procedures. BFI shall perform emergency
Maintenance and restoration of service as soon as reasonably possible after BFI
learns or is notified by City or Schools that a problem exists.
5.3. Maintenance Relating to School Locations.
Maintenance obligations concerning Leased Fiber connecting School Locations
may be further addressed in a separate agreement between the Schools and BFI.
BFI agrees to provide first-level technical support to Schools as may be
described in such separate agreement.
6. CONNECTIONS TO LOCATIONS
6.1. Initial Locations.
Each site shown on Exhibit A ("Initial Locations") will receive a pair of dark
fiber strands within the Network, in a ring configuration as described in Exhibit
B. For sites that are on laterals off of the main BFI network rings, BFI will
establish a collapsed ring utilizing two pair in each required lateral.
6.2. Additional Locations.
The Parties may mutually agree in writing that other City and School Locations
in addition to the Initial Locations shall be made part of this Agreement
("Additional Locations"). Unless stated otherwise, Additional Locations shall
receive access to Leased Fiber as described in this Section 6.0.
6.3. Premises Entries and Demarcation Points.
6.3.1. City or Schools may request the location of premises entries and
demarcation points for Leased Fiber at locations on and/or within
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buildings owned or controlled by City or Schools. The requested
location must be described with specificity, and must be approved by
BFI, which approval shall not be unreasonably withheld. Premises
entries and demarcation points must be situated at a location suited for
utility fiber assets. Demarcation points must be within fifty (50) feet of
the building penetration, unless rigid conduit with a pull rope is present
from the premises entry to the demarcation point and made available to
BFI. In the event rigid conduit with a pull rope is not available, City
may request that BFI provide it, at City's expense.
6.3.2. At a single City or School Location with multiple buildings, City or
School may, at its discretion, establish a premises entry at a single
building, establishing a demarcation point at a mutually agreed location
within such building. In such case service to other buildings on the
parcel emanating from this demarcation point shall be at the sole expense
and responsibility of City or School, as applicable.
6.3.3. BFI will extend fiber optic cables into buildings owned or controlled by
City or School using City or School's existing conduit structures, only if
a clear proven path with a functioning pull-rope is present over the full
path. Any requirements for new conduit or other construction necessary
to reach the demarcation point within the premises shall be the
responsibility of the City or School, but BFI will retain ownership of all
fiber optic cables which remain on BFI's side of the demarcation point.
6.3.4. In the course of its deployment of fiber optic cables serving City and
Schools, BFI reserves the right to install additional fibers and associated
infrastructure beyond that required for provision of the Leased Fiber.
6.4. Access by BFI.
On reasonable request to, notice to and consent of City or Schools as to a
mutually acceptable time, BFI shall be permitted reasonable access to the
Network and/or Leased Fiber on the property of, and within a building owned or
controlled by, such City or Schools for the purpose of installation and testing of
Leased Fiber and in connection with Maintenance or an outage of the Network.
BFI personnel and its agents shall, while on the premises of City or Schools,
comply with all industry standard rules and regulations, and other regulations
communicated to BFI by City or Schools including security requirements and,
where required by government regulations as disclosed by City or Schools,
receipt of satisfactory governmental clearances.
6.5. Connection Charge.
City shall pay to BFI a one-time Connection Charge of up to $2,500.00 per initial
City and School Location described in Exhibit A, payable upon the Acceptance
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Date. Connection Charges for potential Additional Locations shall be negotiated
by the Parties.
7. CONTINGENCIES.
7.1. Timely Completion.
BFI shall provide access to dark fiber at initial City and School Locations (as set
forth in Exhibit A) no later than June 27, 2016. For purposes of this Section,
"provide access"means the Acceptance Date pursuant to 4.5. City shall have the
right to terminate the Fiber Lease as to a particular Location without penalty if
this contingency is not met. Notwithstanding the foregoing, a failure to meet
this contingency shall not be deemed a material breach of this Agreement, and
City shall have no right in such case to pursue remedies for default described in
Section 8.2.
7.2. Written Assurances.
BFI shall provide the City written assurances acceptable to City by March 1,
2016 that BFI will be able to deliver access to dark fiber for the fees allowed by
this Agreement by June 27, 2016. After March 1, 2016, BFI shall provide such
further written assurances of satisfactory progress toward the June 27, 2016
delivery date that City may reasonably request from time to time.
7.3. City Appropriation of Funds.
City shall undertake all reasonable steps to seek budget appropriations, to the
extent permitted by law, in each fiscal year during the term of the Lease to meet
its payment obligations under the Lease. Notwithstanding the foregoing, Lease
payment in future fiscal years is contingent on the appropriation of funds by the
City Commission. In the event that no funds or insufficient funds are
appropriated by the City Commission for the next fiscal year for payments due
under the Lease, the Lease will terminate on the last day of the fiscal year for
which appropriations were received.
8. DEFAULT AND REMEDIES.
8.1. Events of Default.
Each of the following events shall be considered events of default, the
occurrence of which shall give the other Party the right to pursue remedies, to
the extent described below, following written notice after the expiration of
any stated cure periods:
8.1.1. The breach of any material provision of this Agreement that cannot be
cured or, if such breach is of the type that can be cured but remains
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uncured thirty (30) days after the breaching Party receives written
notice of such breach from the other Party (or, if the breach reasonably
requires more than thirty (30) days to cure, the time to cure is extended
as commercially reasonably required, provided the breaching Party is
diligently pursuing cure of the breach);
8.1.2. A Party applies for or consents to the appointment of a receiver, trustee
or similar officer for it or any substantial part of its property or assets, or
any such appointment is made without such application or consent by
such Party and remains undischarged for sixty(60) days; or
8.1.3. A Party files a petition in bankruptcy or makes a general assignment
for the benefit of creditors.
8.2. Remedies in the Event of Default by City.
8.2.1. In the event of a default by City, BFI may (i) recover damages caused by
such breach, to the extent permitted by law, or (ii) obtain the equitable
remedy of specific performance.
8.2.2. In addition to all other rights and remedies, BFI may take action to
correct City's breach that adversely impacts operation or use of the
Network in any way, and recover from City BFI's reasonable costs and
expenses incurred thereby (payable within thirty (30) days of City's
receipt of an invoice for said costs and expenses). If BFI seeks
enforcement of its remedies through an attorney or some other legal
procedure or action, BFI is entitled to collect from City reasonable
attorneys' fees (including those related to mitigation of damages) and
expenses incurred (payable within thirty (30) days of City's receipt of an
invoice for said costs and expenses).
8.3. Remedies in the Event Default by BFI.
In the event of a default by BFI, City, in its sole discretion, may (i) recover
damages caused by such breach, to the extent permitted by law, or (ii) obtain the
equitable remedy of specific performance. If City seeks enforcement of its
remedies through an attorney or some other legal procedure or action, City is
entitled to collect from BFI reasonable attorneys' fees (including those related to
mitigation of damages and including salary and costs of City Attorney) and
expenses incurred (payable within thirty (30) days of City's receipt of an invoice
for said costs and expenses).
9. MISCELLANEOUS PROVISIONS.
9.1. City's Right of First Refusal.
In the event that BFI engages in any action to sell the Network, City shall have a
right of first refusal to purchase the Network assets at fair market value pursuant
to an independent appraisal.
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9.2. Intellectual Property.
This Agreement does not grant any right, title, license or interest under any
copyrights, inventions, patents, trademarks, trade names, service marks or other
intellectual property now or hereafter owned or controlled by BFI or City.
9.3. Limitation of Liability and Indemnification.
9.3.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES; AND WHETHER
BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER TORT OR
LEGAL THEORY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, REGARDLESS OF WHETHER ANY PARTY HAD
BEEN ADVISED OF OR COULD HAVE FORESEEN THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING
ANYTHING TO THE CONTRARY, IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY(IES)
FOR ANY CLAIMS, DAMAGE, LOSS, COST OR EXPENSE
ARISING FROM, OR HAVE RESPONSIBILITY FOR (a) ANY
INFORMATION PASSING THROUGH THE NETWORK, OUTAGE,
INCORRECT OR DEFECTIVE OR UNAUTHORIZED
TRANSMISSION OR ANY CONSEQUENCES OF ANY OF THE
FOREGOING, OR (b) ANY UNAUTHORIZED ACT, OMISSION,
EQUIPMENT OR SERVICES OF ANY THIRD PARTY.
9.3.2. Except as otherwise provided herein, each party agrees to be responsible
to the other party for damages, including reasonable attorneys' fees,
incurred by the non-defaulting party and arising from the willful
misconduct or negligent acts or omissions of party or its agents,
employees or contractors, causing such damage, except to the extent
attributable to or caused by the negligence or willful misconduct of other
party, its agents, employees or contractors. Neither party shall be
responsible to indemnify or hold the other party harmless from any
claims, demands or actions brought by third parties.
9.3.3. Each action and claim against BFI arising under or relating to this
Agreement shall be made only against BFI as a corporation, and any
liability relating thereto shall be enforceable only against BFI's corporate
assets. City shall not seek to pierce the corporate veil or otherwise seek
to impose any liability relating to, or arising from, this Agreement against
any BFI employee, manager, officer, or director. Each of such persons is
an intended beneficiary of the mutual promises set forth in this Section.
Each action and claim against City arising under or relating to this
Agreement shall be made only against City as a municipal corporation,
and any liability relating thereto shall be enforceable only against City's
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assets. BFI shall not seek to impose any liability relating to, or arising
from, this Agreement against any City employee, manager, officer, or
director. Each of such persons is an intended beneficiary of the mutual
promises set forth in this Section.
9.4. No Warranties.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, BFI
MAKES NO WARRANTIES AND EXCLUDES AND DISCLAIMS ALL
WARRANTIES, EXPRESS AND IMPLIED AND STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE NETWORK, LEASED FIBER, ANY
EQUIPMENT, CONSTRUCTION, INSTALLATION, MAINTENANCE,
REPAIR AND ANY OTHER SERVICE(S), ITEM(S) OR ASSET(S)
PROVIDED BY OR ON BEHALF OF BFI.
9.5. Taxes and Impositions.
9.5.1. To the extent that BFI incurs or is required or permitted to collect from
City any charges that result from the application, enforcement or
interpretation of existing, new or revised laws, actions taken by
governmental or quasi-governmental regulatory authorities, or judicial
acts or decisions that directly or indirectly impose costs on BFI
(including, without limitation,those arising out of local, state, federal and
foreign agency, governmental and quasi-governmental actions, programs
or requirements relating to the Network, Leased Fiber, franchises,
permits, access and compensation) in connection with BFI furnishing any
Leased Fiber, or having governmental approvals and/or rights of way
applicable thereto, BFI may collect from City either a pro rata share of
any said charges or, if greater, the portion thereof that arises out of this
Agreement, the Leased Fiber or City's use thereof.
9.5.2. City will calculate and remit any and all fees and assessments, including,
without limitation, franchise fees, license fees, right-of-way fees, taxes
and any other assessment against City for City's use of the Leased Fiber
(collectively, "Assessments") with respect to licensing, leasing,
providing service to end-users or to the extent City is required to
calculate or pay Assessments. Assessments may be made by any third
party, and BFI will not direct or notify City to pay any Assessments and
shall not be directly or indirectly responsible for City's calculating or
remitting Assessments.
9.6. Assignment.
The Parties may not assign or otherwise transfer the Lease or its rights or
obligations to another party, either in whole or in part, without the other Party's
consent, such consent not to be unreasonably withheld.
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9.7. Notices.
9.7.1. Operational Notices and Routine Maintenance
For operational notices and Maintenance matters:
To Bozeman Fiber:
Bozeman Fiber
2000 Commerce Way
Bozeman, MT 59715
Sid Boswell, Network Operator
540-951-4400 (Wide Open Networks)
sboswell@wideopennetworks.us
To City of Bozeman:
City of Bozeman
20 East Olive St.
Bozeman, MT 59715
Scott McMahan, IT Manager
406-582-2277
smcmahan@bozeman.net
9.7.2. Contractual Notices
My
otices
deemnd sufficientlyed to be given by the terms of this Agreement
address, currently eingen when in writing and deliveretshall be
To Bozemanapplicable
Fiber:
Bozeman Fiber
Anthony Cochenour, Board President
2000 Commerce Way
Bozeman,MT 59715
acochenour@hopliteindustries.com
To City of Bozeman:
City of Bozeman
P.O.Box 1230
Bozeman, MT 59715-1230
Scott McMahan, IT Manager
smcmahan@bozeman.net
Page 14
9.7.3. Notices under Section 8 (Default and Remedies) will be sent by certified
U.S. Postal Service, return receipt requested, or by commercial overnight
delivery service, or by facsimile, and will be deemed delivered, if sent
by U.S. Postal Service, five (5) days after deposit, or if sent by facsimile,
on the first business day after verification of facsimile transmission, or if
sent by commercial overnight delivery service, one (1) business day after
deposit therewith.
9.7.4. A Party's notice address may be changed by said Party on notice to the
other Party.
9.8. Force Majeure.
Neither Party will be in breach of this Agreement resulting from delay or
prevention of performance of such Party which is caused by an act or event
beyond the reasonable control of such Party ("Force Majeure"). Force Majeure
includes, for example, an action or requirement or request by governmental
authority (including, without limitation, moratorium on any activities related to
this Agreement), third-party labor dispute or other inaction or demand, flood,
hurricane, earthquake, fire, lightning, epidemic, reasonably unanticipated
regulatory changes, war, riot, civil disturbance, vandalism, failures of materials
or availability of materials, power or transmission link failures, radiation and
hazardous substances, and extreme temperature. The Party claiming
applicability of Force Majeure will notify the other Party promptly thereof.
Such notice will specify the anticipated length of delay, the cause of the delay
and a timetable by which any remedial measures will be implemented.
9.9. Confidentiality.
9.9.1. In General
If either Party provides or has provided confidential or proprietary
information ("Confidential Information") designated as such to the other
Party, the receiving Party shall hold such information in confidence and
shall afford it the same care and protection that it affords to its own
confidential and proprietary information (which in any case shall be not
less than reasonable care) to avoid disclosure to or unauthorized use by
any third party, except as otherwise provided below. This Agreement
and its terms shall not be deemed the Confidential Information of both
Parties. All Confidential Information, unless otherwise specified in
writing, shall remain the property of the disclosing Party and shall be
used by the receiving Party only for the intended purposes set forth in this
Agreement. Except as otherwise required by law, after the receiving
Party's need for Confidential Inforruation has expired, or upon the
Page 15
reasonable request of the disclosing Party, or promptly following the
termination or expiration of this Agreement, the receiving Party shall
destroy or return to the disclosing Party all Confidential Information,
including all copies of such information, and all notes, summaries, or
other writings reflecting Confidential Information. The receiving Party
shall not reproduce Confidential Information, except to the extent
reasonably necessary to perform under this Agreement, or as otherwise
may be permitted in writing by the disclosing Party.
9.9.2. Exceptions
The foregoing provisions of this section shall not apply to (i) any required
disclosures to any government authority, (ii) disclosures required under
applicable state or local government open records laws, (iii) any
Confidential Information or any provisions of this Agreement which
becomes publicly available, other than through the Party claiming this
exception, or is required to be disclosed by law, (iv) Confidential
Information that is independently developed by the receiving Party
without breach of any obligation of confidentiality; (v) Confidential
Information that becomes available to the Party claiming this exception
without restriction from an unrelated third party, or becomes relevant to
the settlement of any dispute or enforcement or defense of either Party's
rights under this Agreement, provided that appropriate protective
measures shall be taken to preserve the confidentiality of such
Confidential Information to the extent permissible in accordance with
such settlement or enforcement process; (vi) disclosures of this
Agreement to any proposed permitted assignee provided that each such
proposed assignee agrees to be bound by confidentiality obligations no
less stringent than those set forth herein; or (vii) disclosures by either
Party of the physical route of the Network and/or Leased Fiber for
marketing and sales-related purposes.
9.10. Survival.
Indemnification obligations, limitation of liability, provisions which by their
terms survive and accrued obligations to pay or reimburse fees, costs, expenses
or other sums in connection with this Agreement will survive the expiration,
termination and rescission of this Agreement and continue in full force and effect
for the greater of (a) three (3) years after said expiration, termination and/or
rescission, or(b)the period of the statute of limitations applicable thereto.
9.11. No Press Release.
Neither Party shall issue or make a public announcement or media or press
release regarding this Agreement, or grant any interview regarding this
Agreement,without the written consent of the other Party.
Page 16
9.12. Payments.
City shall remit payment within thirty (30) days of receipt of any monthly
invoice. If a portion of any invoice is disputed, the undisputed amount shall be
payable when due. Upon resolution of any billing dispute and determination of
the correct amount that is due, the remainder, if any, shall become due and
payable within thirty (30) days. If within a reasonable period of time not to
exceed sixty (60) days from the date of the disputed invoice, the Parties cannot
determine or agree upon the correct amount of the disputed charge, either Party
may exercise all remedies available at law or equity.
9.13. Insurance.
The Parties shall each maintain liability insurance, including liability for bodily
injury and property damage, written by a company licensed to do business in
Montana, covering its liabilities and obligations pursuant to this Agreement with
combined single limits of at least $1,000,000 per occurrence and $2,000,000
aggregate. City's liability policy shall name BFI as an additional insured and
BFI's liability policy shall name the City as an additional insured. The Parties
also shall maintain Workers' Compensation insurance to meet the requirements
of the Workers' Compensation Laws of Montana where applicable,provided that
such coverage shall be at least $500,000 per accident; and comprehensive
automobile liability insurance covering the ownership, operation and 1
maintenance of all owned, non-owned and hired motor vehicles used in F
connection with this Agreement, with limits of at least $1,000,000 per
occurrence for bodily injury and property damage. Certificate(s) of insurance
evidencing such insurance coverage of each Party shall be provided to the other
Party annually. Said insurance policies shall be obtained and maintained with
companies rated "A" or better by Best's Key Rating Guide. The limits set forth
above are minimum limits and will not be construed to limit liability. Each Party
shall immediately inform the other Party of termination or non-renewal of any
required insurance coverage for any reason.
9.14. Compliance with Third Party Provisions. F
If any asset is not owned by BFI but instead is leased, licensed or otherwise used
by BFI pursuant to an agreement with one or more third parties (each a "Third
Party Agreement"), City is bound by and subject to each term and condition of
such agreement(s) which is of the type which "flows through" to City or which
City's compliance is needed as to City as a sublessee, sublicensee or similar
interest holder, as applicable, notwithstanding any provision to the contrary in
this Agreement, provided that a copy of each such agreement has been provided
to the City. By way of example, if under any Third Party Agreement the term
as to any Leased Fiber terminates, timeframes are specified, any third party has
approval and/or performance rights, then, respectively, as to the Fiber Lease F
Page 17
1
under this Agreement applicable to the Third Party Agreement, said Fiber Lease
shall terminate, timeframes specified in this Agreement shall be reduced or
extended if needed to enable compliance with such Third Party Agreement, and
applicable third parties shall have their approval and performance rights (e.g.,
use being subject to any agreement by which the third party is bound; relocation
rights). Additionally, the provisions benefiting BFI under this Agreement shall
be construed to also benefit the entity(ies) as may be applicable in Third Party
Agreements as applicable; by way of example, the covenant that no intellectual
property rights are included shall extend to third parties under Third Party
Agreements, if applicable under the applicable Third Party Agreement. City will
cooperate with BFI and said third parties in said compliance, including, without
limitation, City will not knowingly cause any default under the Third Party
Agreements. If BFI's usage rights under any Third Party Agreement terminates
and if BFI relocates the portion of the Network so terminated, the provisions in
this Agreement applicable to involuntary relocation shall apply.
9.15. Nondiscrimination.
BFI agrees that all hiring by BFI of persons performing under the Lease will be
on the basis of merit and qualifications. BFI will have a policy to provide equal
employment opportunity in accordance with all applicable state and federal anti-
discrimination laws, regulations, and contracts. BFI will not refuse employment
to a person, bar a person from employment, or discriminate against a person in
compensation or in a term, condition, or privilege of employment because of
race, color, religion, creed, political ideas, sex, age, marital status, national
origin, actual or perceived sexual orientation, gender identity, physical or mental
disability, except when the reasonable demands of the position require an age,
physical or mental disability, marital status or sex distinction. BFI will be subject
to and comply with Title VI of the Civil Rights Act of 1965; Section 140, Title 2,
United States Code, and all regulations promulgated thereunder. BFI will require
these nondiscrimination terms of its subcontractors providing services under the
Lease.
9.16. Other Provisions.
9.16.1. The headings of the Sections are strictly for convenience and will not
be construed as amplifying or limiting any of the terms, provisions or
conditions of the Sections.
9.16.2. If any provision of this Agreement is held invalid, illegal or
unenforceable, in whole or in part, neither the validity of the remaining
part of such provision nor the validity of the remaining provisions of
this Agreement will be in any way affected thereby and shall be
construed so as to give effect to the intent of the Parties to the extent
permissible.
Page 18
9.16.3.Except as otherwise provided in this Agreement, this Agreement may be
amended only by a written instrument signed and delivered by both
Parties.
9.16.4.No failure or delay in exercising any right, power or privilege under
this Agreement will operate as a waiver, except as expressly provided in
this Agreement. No course of dealing between the Parties shall operate
as a waiver of any of the rights under this Agreement, or provided by
Laws or equity.
9.16.5. This Agreement may be executed in multiple counterparts, each of
which will constitute one and the same instrument.
9.16.6.A signed copy of this Agreement delivered by email, facsimile or other
means of electronic transmission shall be deemed to have the same legal
effect as delivery of an original signed copy of this Agreement; and an
electronically stored copy (i.e., PDF)thereof shall serve the same purpose
as an original document.
9.16.7. This Agreement and the rights and obligations of the Parties shall be
governed by, and construed and enforced in accordance with, the laws
of the State of Montana without regard to Montana's conflict of law
principles. Any dispute arising out of this Agreement shall be filed in a
court of competent jurisdiction in Gallatin County, Montana.
9.16.8.Each Party represents to the other Party that (a) it is duly organized,
validly existing and in good standing under the laws of the state of its
organization, and is authorized to do business in Montana, (b) it has all
requisite power and authority to enter into and perform its obligations
under this Agreement, (c) the person(s) signing this Agreement on its
behalf has/have full power and authority to sign on its behalf and to bind f
it thereto, and (d) this Agreement, when executed, will become the
legal, valid and binding obligation of such Party.
9.16.9. This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof and supersedes any and all prior
negotiations, understandings and agreements with respect hereto,whether
oral or written, including but not limited to the Memorandum of
Understanding executed by the Parties on or about August 24,2015.
9.16.10. Each Party will take such further action and execute and deliver
such additional agreements and instruments to the extent necessary to
consummate this Agreement and the transactions contemplated by this
Agreement.
ii
Page 19
9.16.11. This Agreement is not intended to create nor shall it be construed
to create any partnership, joint venture, or employment relationship
between BFI and City for any purpose, action or transaction, and no Party
shall be liable for the payment or performance of any debts, obligations,
or liabilities of the other Party, unless expressly assumed in writing.
Each Party covenants that it shall not act in a manner which may be
construed to be inconsistent with the foregoing nor otherwise act, or
purport to act on behalf of, the other Party except as may be expressly
authorized in writing by the other Party.
9.16.12. Each party warrants and represents to the other party for its
reliance that it's entering into, performing and the City's receiving and
using Leased Fiber under this Agreement does not and will not violate,
breach, interfere with or terminate any agreement(s) to which City or BFI
is a party.
***
CITY OF BOZEMAN: BOZEM&N FIBER:
BYCrWBr
Print Name:Cni+S J+. ,J Ko h K Print Name: P
,^i` C=. . ,. , t
Title: C,;T1 0„,4 Title:Title: fir :(/`(;
1
Date: Z ` Z "" 1 Date: (' , / / l`c r'f(r
Page 20
EXHIBIT A
INITIAL CITY AND SCHOOL LOCATIONS
City of Bozeman
1. City Hall 121 N. Rouse Ave
2. Professional Building 20 East Olive St
3. Bozeman Public Library 626 East Main St
4. Law and Justice Center (City) 615 S. 16th Ave (Collapsed Ring)
5. Bridger Park Garage, 26 East Mendenhall Street
6. Fire 3 and 911 1705 Vaquero Pkwy (Collapsed Ring)
Bozeman Public Schools
1. Bozeman High School 205 North 11th Ave
2. Chief Joseph Middle School 4255 Kimberwicke (Collapsed Ring)
3. Sacajawea Middle School 3525 South 3rd Ave. (Collapsed Ring)
4. Emily Dickinson Elementary School 2435 Annie Street
5. Hawthorne Elementary School 114 North Rouse
6. Hyalite Elementary School 3600 West Babcock
7. Irving Elementary School 611 South 8th
8. Longfellow Elementary School 516 South Tracy
9. Meadowlark Elementary School 4415 Durston Road
10.Morning Star Elementary School 830 Arnold Street (Collapsed Ring)
11.Whittier Elementary School 511 North 5th
12.Willson Building 404 West Main Street
li
li
ii
EXHIBIT B
DESCRIPTION OF FIBER NETWORK
Bozeman Fiber(BFI)will provide the City of Bozeman with access to two dark fiber strands connecting
school locations according to the diagrams and written descriptions below. The dark fibers will be
consecutive strands in a single buffer tube.Fiber strands will be single mode, low water peak fibers
manufactured by a major U.S.brand. Unless otherwise agreed by the parties,fiber strands will be terminated
in a wall mounted patch panel installed adjacent to the building entry in each location.Along certain points
in the route and in each drop the fiber will be provided in a collapsed ring where strands can be used to
create a ring network architecture,however the strands will be in the same physical cable.
Chief Joseph Middle School
Whittier
BridgerAlc HS
Emily Dickinson ES • •
Bozeman HS .
Hawthorne
•
Meadowlark E
•
Irving Longfellow
*Hyalite ES
Morning Star ES
•
Sacajawea
Diagram 1:Bozeman Public Schools Dark Fiber Ring
Routes in the attached mapping are subject to changes during construction.
Ring 1-Bozeman Schools: Fiber connections will be provided between locations as follows:
- Two fiber strands will be provided from the termination points at Bozeman High School to Bridger
Alternative High School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Bridger Alternative High School to
Emily Dickenson Elementary School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Emily Dickenson Elementary School to
Chief Joseph Middle School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Chief Joseph Middle School to
Meadowlark Elementary School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Meadowlark Elementary School to
Hyalite Elementary School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Hyalite Elementary School to the Irving
Elementary School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Irving Elementary School to Sacajawea
Middle School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Sacajawea Middle School to Morning
Star Elementary School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Morning Star Elementary School to
Longfellow Elementary School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Longfellow Elementary School to
Hawthorne Elementary School along routes shown in the map.
Two fiber strands will be provided from the termination points at Hawthorne Elementary School to
Whittier Elementary School along routes shown in the map.
- Two fiber strands will be provided from the termination points at Whittier Elementary School to
Bozeman High School along routes shown in the map.
Fire 3 and 911
•
City Hall
•
Bridger Park Garage_ Public Library
•
•
Justice Center • Professional Building
It
Diagram 2:Bozeman City Buildings Dark Fiber Ring
Ring 2-Bozeman City Buildings: Fiber connections will be provided between locations as follows:
- Two fiber strands will be provided from the termination points at Bozeman City Hall to the Bozeman
Public Library along routes shown in the map.
- Two fiber strands will be provided from the termination points at the Bozeman Public Library to
Professional Building along routes shown in the map.
- Two fiber strands will be provided from the termination points at Professional Building to Justice Center
along routes shown in the map.
- Two fiber strands will be provided from the termination points at Justice Center to Fire 3 and 911 along
routes shown in the map.
- Two fiber strands will be provided from the termination points at Fire 3 and 911 to Bridger Park Garage
along routes shown in the map.
- Two fiber strands will be provided from the termination points at Bridger Park Garage to City Hall along
routes shown in the map.
Network Map
The network map demonstrating proposed routes and connections to initial sites is for illustrative purposes
only. Routes are subject to change in the discretion of BFI, consistent with the Agreement.
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EXHIBIT C
ACKNOWLEDGMENT OF ACCEPTANCE
The Parties acknowledge and agree that the fiber optic strands serving <<Location>>,
pursuant to that Agreement between the undersigned Parties dated , 201 (the
"Agreement"), have been accepted or deemed accepted by City as of the date provided below. This
acceptance date is the agreed Acceptance Date of said Leased Fibers pursuant to Section 4.5 of the
Agreement. This Acknowledgment of Acceptance is incorporated by reference into the Agreement
on the terms and conditions of the Agreement. The terms and conditions of the Agreement remain
in full force and effect except as may have been previously modified or amended in any writing(s)
signed by the Parties.
Acceptance Date of Leased Fibers: ,201_
In witness whereof,the Parties have signed this Acknowledgment of Acceptance.
Bozeman Fiber: City of Bozeman:
By: By:
Name: Name:
Title: Title:
EXHIBIT D
GRANT OF AUTHORITY FROM BOZEMAN SCHOOL DISTRICT#7 TO
CITY TO ENTER INTO FIBER LEASE
f4{
After recording return to:
Bozeman City Clerk
PO Box 121
Bozeman,MT 59771
INTERLOCAL AGREEMENT
CITY OF BOZEMAN—BOZEMAN SCHOOL DISTRICT#7
THIS AGREEMENT is made and entered into this 24th day of August, 2015,between the
City of Bozeman, a Municipal Corporation of the state of Montana, with principal offices at P.O.
Box 1230,Bozeman, Montana, 59771-1230 (hereinafter referred to as"the City"), and Bozeman
School District#7, a Political Subdivision of the State of Montana, with principal offices at 404
West Main Street, Bozeman MT 59715 (hereinafter referred to as"the Schools"and together
with the City"the Parties"),
WHEREAS,the City and the Schools are separate legal entities that have individual
rights and duties as outlined in Montana Code Annotated; and
WHEREAS, the City and the Schools currently independently contract for the provision
of local transport lit fiber optic services; and
WHEREAS, the City and the Schools support the creation of an open-access community
fiber optic network to support public sector telecommunications needs,bridge service gaps, and
provide access to advanced telecommunications capabilities to enable the private sector to use
shared infrastructure to better deliver broadband services; and
WHEREAS,the City and the Schools believe that leveraging their existing local transport
expenditures by aggregating demand for access to dark fiber from an open access community
fiber optic network will enable the City and the Schools to procure significantly improved
services at an overall cost that is substantially similar to current overall expenditures; and
WHEREAS,the City and the Schools believe that stable, long-term access to dark fiber
assets is important for the provision of critical public services, including, but not limited to
public safety communications and applications; and
WHEREAS,the City and the Schools desire to cooperate for the purpose of aggregating
demand for and procuring stable, long-term access to dark fiber for City and Schools use through
the leasing of, or acquiring indefeasible rights to use (IRU) such dark fiber; and
WHEREAS,the Schools are authorized to delegate purchasing authority to the City; and
WHEREAS,the City and the Schools have the authority to enter into this agreement for
the administrative activities described herein pursuant to Sections 7-11-101 through 7-11-108,
MCA.
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NOW,THEREFORE,the City and the Schools agree as follows:
PURPOSE OF INTERLOCAL AGREEMENT. The purpose of this Interlocal
Agreement is to establish an administrative process by which the City and the
Schools cooperate for the purpose of aggregating demand to lease dark fiber or
acquiring indefeasible rights to use(IRU) dark fiber.
IL PROCUREMENT OF SERVICES
a. The Schools delegate to the City the authority to act on behalf of the
Schools to negotiate and enter into contracts for leasing dark fiber, or
acquiring indefeasible rights to use (IRU) dark fiber. Acquiring low-cost
options for stable, long-term access to dark fiber facilities shall be a major
focus of these negotiations.
b. The City shall periodically consult, on a reasonably frequent basis, with
authorized representatives of the Schools' technical and administrative
staffs to inform them of ongoing negotiations and discuss the needs of the
City and the Schools. For purposes of this Agreement, the Schools'
authorized representatives are: Steve Johnson, Deputy Superintendent of
Operations, and Brad Somers, Technology Services Supervisor.
c. The negotiated price per month, per location served under this
contract ("Monthly Access Fees") may not exceed $556, without a
Resolution of Approval by the Schools. The Schools will not pay the
City for fees other than the Monthly Access Fees and initial connection
fees as applicable. In the event the City receives any discounts on
Monthly Access Fees from the provider,those discounts will be passed on
to the Schools on a per location basis.
d. The physical locations to be reached by fiber optic facilities under this
Agreement are listed in Exhibit A, attached hereto and incorporated herein
by this reference. Initial connection fees for each location served by this
network may not exceed $2,500 per location without a Resolution of
Approval by the Schools. The parties' Authorized Representatives may
by mutual agreement in writing amend Exhibit A from time to time to add
new locations during the term of this Agreement. Each Schools site
shown on Exhibit A will receive a pair of fiber strands in a ring
configuration. For sites that are on laterals off of the main network rings,
a collapsed ring will be established utilizing two pair in each required
lateral.
e. It is the intent of the parties, that subject to the conditions and limitations
contained herein,the City may enter into agreements for the benefit of the
Parties to provide the described telecommunications services and obtain
access to dark fiber through lease agreements or IRUs, and in doing so,
legally bind the Schools to pay money to the City for the services procured
under such agreements, provided such agreements are consistent with the
terms herein.
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f. The Parties do not intend the City to procure fiber maintenance services
for the Schools or to be subject to maintenance obligations on behalf of
the Schools. It is the intent of the Parties that maintenance agreements
will be separately entered into with the selected provider of the dark fiber
lease or IRU and that such agreement will include any applicable
maintenance fees.
g. The City and the Schools may enter into a separate agreement(s) to
implement any lease or IRU obtained pursuant to this Agreement as
applicable.
h. The Schools agrees to pay fees directly to the City during the term of this
Agreement upon receipt of an invoice provided by the City. Fees may be
paid up-front for the entire ten (10) year term, or fees may be invoiced by
the City on an annual basis with payment for the following year payable in
advance.
III. DURATION. The term of this Agreement will be for ten (10) years, unless
earlier terminated in accordance with the terms of this Agreement.
IV. TERMINATION. This Agreement may be terminated (a) upon mutual consent
of the parties, and (b) upon breach of this Agreement by either Party, thirty (30)
days after notice of the breach by the non-breaching Party, if the breach is not
cured by the effective date of termination. If the breach cannot reasonably be
completed within thirty days, this Agreement will not terminate if the breaching
party commences the cure and with reasonable diligence pursues the cure to
completion. Notwithstanding the foregoing, the City may terminate this
Agreement thirty (30) days after written notice to the Schools if the City does not
receive written assurances from the provider by March 1, 2016 that the provider
will be able to deliver access to dark fiber for the fees permitted in Section II of
this Agreement by July 1, 2016, or if the City does not receive further written
assurances from the provider after March 1, 2016 of satisfactory progress toward
the July 1, 2016 delivery date. Upon termination of this Agreement for any
reason, any property interest acquired by the City in performance of this
Agreement shall be disposed of by mutual agreement of the Parties.
V. SEPARATE LEGAL ENTITY/ADMINISTRATION. There shall be no
separate legal entity created as a consequence of this Agreement. Administration
of this Agreement shall be the responsibility of the Bozeman City Manager, or
their designee, and the Superintendent of the Bozeman School District #7, or their
designee.
VI. NON-WAIVER. Waiver by any party of strict performance or any provision of
this Agreement shall not be a waiver of or prejudice the party's rights to require
strict performance of the same provision in the future or of any other provisions.
VII. LIMITATION OF LIABILITY. The Schools agrees that City shall have no
liability for any error or omission or negligence on the part of the provider for
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provider's failure to perform under a dark fiber lease or IRU obtained pursuant to
this Agreement.
VIII. TIME OF ESSENCE. It is mutually agreed that time is of the essence in the
performance of all covenants and conditions to be kept and performed under the
terms of this Agreement.
IX. HEADINGS. The section headings contained herein are for convenience and
reference and are not intended to define or limit the scope of any provision of this
Agreement.
X. NOTICES. All notices required under this Agreement shall be deemed properly
served if delivered in writing, personally or sent by certified or registered mail to
the last address previously furnished by the parties hereto. A copy of all notices
will be sent to the legal counsel for each Party. Until hereafter changed by the
parties by notice in writing, notices shall be sent to the City Manager, City of
Bozeman, PO Box 1230, Bozeman, Montana 59771-1230 and to the
Superintendent, Bozeman School District#7, at 404 West Main Street, Bozeman
MT 59715. The date of mailing shall be deemed the date of such notice and
service thereof.
XL ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties. No alterations,modifications, or additions to this Agreement
shall be binding unless reduced to writing and signed by the parties to be charged
herewith. No covenant, term or addition to this Agreement shall be deemed
waived by either party unless such waiver shall be reduced to writing and signed
by the Parties.
XII. AMENDMENTS. The terms and conditions of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the
Parties. No oral modification shall be enforceable.
XIII. SEVERABILITY. The provisions of this Agreement shall be deemed
independent and severable, and the invalidity, partial invalidity, or
unenforceability of any one provision or portion thereof shall not affect the
validity or enforceability of any other provision herein.
XIV. EFFECTIVE DATE. This Agreement shall be effective after approval by the
Parties' respective governing bodies. It is the intent that said Agreement shall be
effective on the date stated in the first paragraph of this Agreement.
XV. NONDISCRIMINATION. The Parties will not discriminate in the performance
of this Agreement on the basis of race, color, religion, creed, sex, age, marital
status,national origin, or because of actual or perceived sexual orientation, gender
identity or disability.
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XVI. RECORDATION. This Agreement shall be filed with the Gallatin County Cleric
and Recorder and Montana Secretary of State as required by Section 7-11-107,
MCA with all costs to be shared equally by the parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first above written.
****END OF AGREEMENT EXCEPT FOR SIGNATURE PAGE****
CITY OF BOZEMAN BOZEMAN SCHOOL DISTRICT#7
BOARD OF TRUSTEES
By Its: City Manager By Its: Chair/ al
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Approved a to form:
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City homey
ATOS' :
Mike Waterman,District Court Clerk
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EXHIBIT A
Initial Schools Sites
Bozeman Public Schools
1. Bozeman High School 205 North 11th Ave
2. Chief Joseph Middle School 4255 Kimberwicke (Collapsed Ring)
3. Sacajawea Middle School 3525 South 3rd Ave. (Collapsed Ring)
4. Emily Dickinson Elementary School 2435 Annie Street
5. Hawthorne Elementary School 114 North Rouse
6. Hyalite Elementary School 3600 West Babcock
7. Irving Elementary School 611 South 8th
8. Longfellow Elementary School 516 South Tracy
9. Meadowlark Elementary School 4415 Durston Road
10.Morning Star Elementary School 830 Arnold Street (Collapsed Ring)
11.Whittier Elementary School 511 North 5th
12.Willson Building 404 West Main Street
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II
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