City Auditor - City Recorder - Council Ordinance - 180676 PSU Integrated Regional Network Enterprise contract

This Agreement is between the City of Portland (City), and the State of Oregon acting by and through the State Board of Higher Education on behalf of Portland State University (PSU), and is entered into under the authority granted by Oregon Revised Statutes 190.110 and 283.110.

This Agreement may refer to the City and PSU individually as a Party, or collectively as the Parties.

2.1 The City’s Project Manager for this Agreement shall be the City’s Manager of Communications Operations and Engineering. The City Project Manager may appoint additional project managers.

2.2 The PSU Project Manager shall be the Manager of Network Services within PSU’s Office of Information Technologies Department, Networking and Telecommunications Division. The PSU Partner’s Project Manager may appoint additional project managers.

The Parties agree Attachments may be added to or deleted from this Agreement, without formal Amendment, from time to time if in writing, signed by both Parties’ authorized representatives. Attachments conforming to this section shall be effective upon the date last signed.

4.1 The Purpose of this Agreement is to provide PSU access to and use of specific City owned “dark” fiber optic cable facilities, as further described herein. The City shall only provide to PSU physical facilities, and services necessary to maintain the physical integrity of such, and will not be electronically activating or controlling in any way the transmission of information over the facilities.

4.2 PSU understands and agrees that the dark fiber provided under this Agreement is for the use by and for PSU exclusively, for educational and research purposes only. PSU shall not resell, barter or share the fiber capacity to or with any other individual, organization, or municipality.

5.1 This Agreement is effective with the date of last signature below and shall remain in effect, unless otherwise terminated, renewed or extended in accordance with other provisions herein, through June 30, 2010. Obligations under this Agreement may be incurred beginning July 1, 2005.

5.2 If mutually agreeable to the Parties, this Agreement may be extended or renewed for additional periods not to exceed an aggregate of ten (10) years, such periods to be determined at time of extension or renewal. Either Party may request extension or renewal; however, the request for extension or renewal shall be in writing and provided to the other Party at least ninety (90) days prior to expiration of the term to be extended or renewed. Any mutually agreeable extension or renewal of this Agreement shall be by written amendment or execution of a new Agreement, signed by authorized representatives of the Parties.

5.3 Extension or renewal shall be conditioned upon: (1) availability of cabling facilities and fibers; and (2) the Parties reaching agreement on terms. At least ninety (90) days prior to expiration of the term of this Agreement, the Parties shall commence negotiations if they desire to continue Leasing facilities under mutually acceptable terms and conditions. However, nothing binds or requires the City to continue to supply such cabling facilities, or PSU to continue to lease such after termination of this Agreement.

6.3 PSU shall lease from the City, two (2) strands of single mode, fiber optic cable, which shall be unlit (dark) fiber, hereafter referred to as Fiber. Such Fiber shall be provided from Room 00-11 of that Building known to the City as the “Development Services Building”, located at 1900 SW 4^th Ave, Portland, OR to Room T-250 in that Building known to the City as “The Pittock Block”, located at 921 SW Washington, Portland, OR. The City shall provide PSU access to and use of the Fiber. PSU shall not have access to, or otherwise utilize, any equipment owned or controlled by the City and used to electronically activate fiber optic facilities and transmit information.

6.4 The Fiber shall be provided by the City and installed in appropriate equipment racks in the respective meet-me locations, and clearly be labeled to allow for easy identification, connection and use by PSU at above referenced location(s).

6.5 The City shall provide all conduit, innerduct and other pathway materials necessary to ensure the protection and physical integrity of the Fiber between the Development Services Building and The Pittock Block.

7.1 Annual consideration for these services, unless increased as provided herein, shall be $1000.00/month, or $12,000 per annual period, plus regulatory and franchise fees of $1,260.00, for an annual total of $13,260.00. In lieu of monthly reoccurring lease payments, PSU shall prepay for annual services in a lump sum of $13,260.00, Payment shall be made within sixty (60) days of the effective date of this Agreement.

7.2 PSU shall pay actual installation and connection costs for any meet-me extension that may be required for the City to provide the Fiber to the Meet-me location(s) should they move from the specified location and patch panels.

7.3 All payments due shall be made to City within sixty (60) days of the effective date of this Agreement.

7.4 If PSU disputes charges and does not pay such charges by the payment due date, such charges shall be subject to late payment charges permissible under Oregon law, unless the dispute is resolved in favor of PSU. If the disputed charges have been withheld and the dispute is resolved in favor of the City, PSU shall pay the disputed amount and applicable late payment charges, as provided in Section 7 within fifteen (15) days following the resolution of the dispute. If the disputed charges have been withheld by PSU and the dispute is resolved in favor of PSU, the City shall credit PSU within fifteen (15) days for the amount of the disputed charges and any late charges already paid.

7.5 Interest shall be charged to late accounts as provided by Portland City Code and permissible under Oregon law. Failure to pay charges when due may also result in termination of this Agreement. The late payment charge calculated on the disputed amounts shall be at the same rate as but in addition to the interest rate described in the Portland City Code. In no event, however, shall any late payment charges be assessed on any previously assessed late payment charges.

7.6 The City shall not be responsible for sending an invoice to PSU for any services herein except where the exact costs are unknown. Execution of this agreement shall constitute the beginning of all sixty (60) day payment requirements herein.

8.1 A Network Facilities Manager appointed by the City and a Network Facilities Manager appointed by PSU shall jointly manage discrete areas associated the use of the Fiber. The Network Facilities Manager for the City shall be the Manager of Communications Operations and Engineering for the Bureau of Technology Services/ComNet or their designee and shall be responsible for activities relating to providing PSU with access to the Fiber and with maintaining the physical integrity of the Fiber during the term of this Agreement. The Network Facilities Manager for PSU shall be the Director of Networking and Telecommunications Services, PSU Office of Information Technologies, or their designee, and shall be responsible for any equipment used by PSU to electronically activate the Fiber and transmit information

8.2 If either Party changes Fiber management responsibility, the Party shall provide the other with prior written notification of such changes. Such prior notification shall occur at least thirty (30) days if possible. If thirty (30) days advance notice is not possible or practical, the prior notice must occur not later than one (1) working week before the change is to be effective.

9.1 This is a lease agreement only, The City shall retain asset ownership and physical control of the Fiber. PSU shall have exclusive ownership and control over the electronic facilities and equipment used to activate the Fiber and transmit information for PSU purposes.

9.2 If, prior to the expiration of the term of Agreement, the City sells or otherwise transfers ownership of the Fiber to a third party(ies), or ownership of the Fiber changes in any way, the City shall provide PSU with at least one hundred and eighty (180) days prior written notice of such. Once PSU has received such advanced notice, PSU has the following options:

9.2.1 Terminate the Agreement immediately with no penalty to PSU. Should PSU exercise this option, the City agrees to reimburse PSU for the Fiber lease costs associated with the remaining term of the contract based on the monthly rate in provision 7.1.

9.2.2 If there are fewer than one hundred and eighty (180) days remaining, PSU may continue to access and use the Fiber through the remainder of the term of the Agreement. Should PSU choose this option, all provisions of the Agreement shall continue to apply.

9.2.3 Should the transfer in ownership by the City include a transfer of this Agreement in its entirety to a third party(ies), PSU may continue to honor the terms and conditions of the Agreement or may choose to terminate the Agreement such without penalty to PSU. Should PSU terminate the Agreement, the City agrees to reimburse PSU for the remaining term of the contract based on the monthly rate in provision 7.1.

9.2.4 In the event of transfer of ownership of the Fibers by the City, the City shall require the new owner to comply with the provisions of this Agreement.

10.1 The City is responsible for maintaining the physical integrity of the Fiber and shall make every effort to ensure the integrity of the Fiber during the term of this Agreement.

10.2 At least two (2) weeks prior to the effective date of the Agreement and prior to any payments by PSU to the City for Fiber, the City and PSU shall test the Fiber facilities from the meet-me location(s) to determine if the Fiber will meet PSU’s requirements. The City agrees to work with PSU and provide technical assistance and site coordination as needed to facilitate this acceptance testing. If such acceptance testing results in satisfactory performance for PSU network connection and transmission purposes, PSU will notify the City of such acceptance and the Agreement will become affective if fully executed through the Parties. If the Fiber fails the acceptance testing, the City agrees to either repair the Fiber facilities tested or provide other fiber strands for connection and testing by PSU. Both Parties agree to make every effort to produce actable test results so the Agreement may become effective. If the Fiber is already operational, its satisfactory performance may be sufficient for Acceptance if agreed to by both Parties.

10.3 Not withstanding Force Majeure provisions, should the Fiber be damaged or made unusable in any way during the term of the Agreement, the City shall make every effort to affect repairs from the verbal, written, facsimile or e-mail notification to the City Network Facility Manager by the PSU Network Facility Manager that the Fiber requires troubleshooting or repair, the City Facility Manager shall have tested the Fiber and reported back to PSU when the Fiber can be repaired. The City shall make every effort to make the repairs within forty eight (48) hours of verification by the City Network Facility Manager that the Fiber is damaged. If the City cannot make the necessary repairs with a time period acceptable to both parties, the City agrees to make every effort to provide PSU with replacement Fiber strands necessary to reestablish the integrity of PSU’s Connection between the meet-me location(s) provided that such additional replacement Fiber strands are available.

10.4 At any time during the term of this Agreement, PSU may approach the City to provide additional fibers on a diverse fiber route to be made available to PSU as a route redundant fail safe alternative between the meet-me location(s). If the City has fiber pairs available for use by PSU for this diverse route purpose, the Parties may amend this Agreement to incorporate this diverse route fiber facility and cover the lease of these additional Fibers at the rate agreed upon by the parties at that time. At the time that such an amendment is executed, payment owed for the additional Fibers shall be calculated by the City and verified and approved by PSU. Upon verification the additional payment due shall be paid in one lump sum to the City, after acceptance testing has been completed as described in provision 10.2, and within sixty (60) days of the effective amendment.

11.1 The City is responsible for maintaining the Fiber during the term of the Agreement. PSU is responsible for the operations and maintenance of any network transmissions and routing equipment installed at the PSU Connection ends in the respective meet-me location(s).

11.2 In the event of any transmission problem, the City and PSU agree to make every reasonable effort to properly troubleshoot their equipment and facilities at the end points to isolate the problem, and to participate in joint testing at any reasonable time requested by the other Party.

11.3 Should any transmission problem between PSU sites arise during the term of this agreement, PSU agrees to make every effort to properly troubleshoot its equipment at the end points and isolate the problem.

11.4 Should PSU determine that the problem might reside with the Fiber, PSU shall report the trouble to the City’s Network Facilities Manager. A report may be made in writing, by e-mal, by fax or by telephone, but must be followed with a written trouble report within forty eight (48) hours for records purposes.

11.5 PSU will work with the City to resolve the problem. The City’s repair response will be in accordance with Provision 10.

Both Parties will have access to the meet-me location(s). The access shall be in accordance with PSU policies and procedures and PSU is responsible for providing such to City’s Network Facilities Manager upon execution of this Agreement. Each Party shall make its own arrangements with the Pittock Block building manager for access to the meet-me locations in Pittock.

The provisions of this Agreement shall not be, altered, modified, supplemented or otherwise amended, in any manner whatsoever, except by written mutual agreement signed by authorized representatives of the Parties.

14.1 This Agreement may be terminated by mutual consent of the Parties and shall not result in any penalty to either Party. Termination by mutual consent shall be in written form stating the effective date of termination. Either Party may terminate this Agreement upon giving written notice of termination to the other Party not less than six (6) months prior to the termination date which shall be set forth in the notice.

14.2 Either Party may terminate this Agreement in the event that the other Party fails to comply with all applicable federal, state (specifically Oregon Public Utility Commission) and local laws and regulations. In the event that either Party wishes to terminate under this provision, written notice to cure shall be given to the other Party at least ninety days (90) in advance to allow time for the Parties to comply with the applicable regulations, statutes or laws. In the event that either Party has failed to comply with the applicable regulations, statutes, or laws by the end of the ninety (90) day notification periods, the non-breaching Party may terminate this Agreement immediately and no additional advance notice shall be required.

14.3 Except as otherwise provided by this section either Party may terminate this Agreement in the event of a breach of the Agreement by the other. Prior to such termination, however, the Party seeking termination shall give the other Party written notice of the breach and of the Party’s intent to terminate. If the breaching Party has not entirely cured the breach, or offered a plan to cure, within fifteen (15) days of the notice, then the Party giving the notice may terminate this Agreement at any time thereafter by giving a written notice of termination.

Subject to the conditions and limitations of the Oregon Constitution, Article XI, section 9, and the Oregon Tort Claims Act, ORS 30.260 through 30.300, the City shall indemnify, defend and hold harmless PSU and PSU officers, agents and employees against all claims, demands, actions and suits (including all attorney’s fees and costs) brought against any of them arising from the City’s work under this Agreement. Subject to the conditions and limitations of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300, PSU shall indemnify, defend and hold harmless the City and the City’s officers, agents and employees against all claims, demands, actions and suits (including all attorney’s fees and costs) brought against any of them arising from PSU’s work under this Agreement.

PSU and the City shall each be responsible for providing workers compensation insurance as required by law. The parties shall not be required to provide or show proof of insurance coverage.

The Parties shall maintain all records pertaining to this Agreement according to Oregon Public Records Laws. Upon reasonable written notice, each Party shall have access to the books, documents and other records of the other Party, which are related to this Agreement, for the purpose of examination, copying, and audit.

In connection with each Party’s activities under this Agreement, PSU and the City shall comply with all applicable federal, state and local laws and regulations.

This Agreement shall be construed according to the laws of the State of Oregon. Any litigation between the City and PSU arising under this Agreement or out of work performed under this Agreement shall occur, if in the state courts, in the Multnomah County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon.

Any notice provided for under this Agreement shall be sufficient if in writing and delivered personally to the following addressee or deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such other address as the receiving Party hereafter shall specify in writing.

If any provision of this Agreement is declared by a court of law to be illegal or in conflict with any law, the validity of the remaining terms, conditions and provisions shall not be affected; and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular provision held to be illegal or invalid.

This Agreement consists of this Agreement and any Attachments added from time to time pursuant to Section 3, above. There are no other contract documents unless specifically referenced or incorporated in this Agreement, or added or deleted by written amendment to this Agreement. This Agreement contains the entire agreement between the Parties and supercedes all prior written or oral discussions or agreements.

The Parties shall not subcontract or assign any part of this Agreement without the prior written consent of the other Party. Prior notice of at least 120 days is required and the Parties shall not be obligated to approve of or otherwise agree with any proposed assignment or subcontracting arrangement. In the event an assignment or subcontracting arrangement is approved, the Party assigning or subcontracting shall remain obligated for full performance of its obligation under this Agreement, and the other Party shall incur no obligation other than its obligations under this Agreement. Any approved assignee or subcontractor shall be required to agree to fulfill all the assigned or subcontracted obligations of the assigning or subcontracting Party.

24.1 The City or PSU shall breach this Agreement if it fails to perform any substantial obligation under this Agreement, except as provided in subsection 24.2.

24.2 The Parties shall not have breached this Agreement by failure to perform a substantial obligation under this Agreement if the failure to perform arises out of causes beyond their control and without their fault or neglect, including without limitation: fire; flood; epidemic; volcanic eruption; quarantine restrictions; strike; freight embargo; unusually severe weather; riot; acts of God, sovereign or public enemy; or war. In the event delay or default arising from these causes reasonably prevents successful performance of this Agreement, the Parties may terminate this Agreement, without penalty, upon written agreement, or the Parties may make mutually acceptable revisions to this Agreement to allow it to continue as modified.

The Parties shall not be deemed to have waived any breach of this Agreement by the other Party except by an express waiver in writing. An express written waiver as to one breach shall not be deemed a waiver of any other breach not expressly identified, even though the other breach is of the same nature as that waived.

The Parties shall each be responsible for any of their own federal, state and local taxes applicable to payments under this Agreement. The Parties, and their employees and subcontractors agree that their employees and subcontractors are not employees of the other Party and that their employees and subcontractors are not eligible for any benefits from the other Party, including without limitation, federal social security, health benefits, workers’ compensation, unemployment compensation and retirement benefits.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.

CITY OF PORTLAND:

APPROVED AS TO FORM:

By:

Deputy City Attorney

Date:

PORTLAND STATE UNIVERSITY:

APPROVED AS TO FORM:

By:

Timothy R. Johnston

Title: Contracts Officer

Date:

CITY OF PORTLAND, by and through its Elected Officials:

By:

Mayor Tom Potter

Date:

By:

City Auditor

Date:

By:

Title:

Date: