HomeMy WebLinkAbout144-22 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 144-22
File Number: 2022-0514
CONDUIT OCCUPANCY AND FIBER SWAP AGREEMENT WITH OZARKSGO, LLC:
A RESOLUTION TO APPROVE A CONDUIT OCCUPANCY AND FIBER SWAP
AGREEMENT WITH OZARKSGO, LLC TO ALLOW OZARKSGO TO UTILIZE THE CITY'S
FIBER CONDUIT TO INSTALL FIBER OPTIC CABLE IN EXCHANGE FOR PROVIDING
TEN DEDICATED FIBER OPTIC STRANDS FOR CITY USE
WHEREAS, staff recommends approval of an agreement with OzarksGo, LLC to allow the City to
leverage its fiber conduit investment to obtain dedicated fiber optic cable for City use, at no additional
cost, which will increase the network speed and resiliency of City facilities; and
WHEREAS, the agreement provides for ten strands of OzarksGo fiber optic cable to be dedicated
for City use as consideration for OzarksGo's use of the City's conduit for its fiber network.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to execute the Conduit Occupancy and Fiber Swap Agreement attached to this Resolution with
OzarksGo, LLC to allow OzarksGo to utilize the City's fiber conduit to install fiber optic cable in
exchange for providing ten dedicated fiber optic strands for City use.
PASSED and APPROVED on 6/21/2022
Page 1 Printed on 6122122
Resolution: 144-22
File Number: 2022-0514
Attest:
ti�%LER K
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Kara Paxton, City Clerk Treasurer �f��CCf
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Page 2 Printed on 6122122
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2022-0514
Agenda Date: 6/21/2022 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Resolution
Agenda Number: A.8
CONDUIT OCCUPANCY AND FIBER SWAP AGREEMENT WITH OZARKSGO, LLC:
A RESOLUTION TO APPROVE A CONDUIT OCCUPANCY AND FIBER SWAP AGREEMENT
WITH OZARKSGO, LLC TO ALLOW OZARKSGO TO UTILIZE THE CITY'S FIBER CONDUIT TO
INSTALL FIBER OPTIC CABLE IN EXCHANGE FOR PROVIDING TEN DEDICATED FIBER
OPTIC STRANDS FOR CITY USE
WHEREAS, staff recommends approval of an agreement with OzarksGo, LLC to allow the City to leverage
its fiber conduit investment to obtain dedicated fiber optic cable for City use, at no additional cost, which will
increase the network speed and resiliency of City facilities; and
WHEREAS, the agreement provides for ten strands of OzarksGo fiber optic cable to be dedicated for City
use as consideration for OzarksGo's use of the City's conduit for its fiber network.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to
execute the Conduit Occupancy and Fiber Swap Agreement attached to this Resolution with OzarksGo, LLC
to allow OzarksGo to utilize the City's fiber conduit to install fiber optic cable in exchange for providing ten
dedicated fiber optic strands for City use.
City of Fayetteville, Arkansas Page 1 Printed on 612212022
Keith Macedo
Submitted By
City of Fayetteville Staff Review Form
2022-0514
Legistar File ID
6/21/2022
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
6/1/2022 INFORMATION TECHNOLOGY (170)
Submitted Date Division / Department
Action Recommendation:
Staff recommends approval of a conduit occupancy and fiber swap agreement with OzarksGO, LLC.
Budget Impact:
Account Number
Fund
Project Number
Project Title
Budgeted Item? No
Current Budget
$ -
Funds Obligated
$ -
Current Balance
Does item have a cost? No
Item Cost
$ -
Budget Adjustment Attached? No
Budget Adjustment
$ -
Remaining Budget
Purchase Order Number:
Change Order Number:
Original Contract Number:
Comments:
V20210527
Previous Ordinance or Resolution #
Approval Date:
—� CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF JUNE 21, 2022
TO: Mayor and City Council
THRU: Susan Norton, Chief of Staff
FROM: Keith Macedo, IT Director
DATE: June 1, 2022
CITY COUNCIL MEMO
SUBJECT: Staff recommends approval of a conduit occupancy and fiber swap agreement
with OzarksGO, LLC.
RECOMMENDATION:
Staff recommends approval of a conduit occupancy and fiber swap agreement with OzarksGO,
LLC.
BACKGROUND:
Fiber optic cabling is the preferred method to support the City's current and future technology
needs to connect city facilities and critical infrastructure. Over the last several years City staff
has installed empty fiber conduits in conjunction with City infrastructure projects such as trails,
sidewalks, street improvements, and parks. The intent of the conduit was a "dig once" concept
where the city leveraged existing projects to proactively install conduits for future technology
needs. To date the city has focused on installing empty conduits and not the associated fiber
optic cable due to cost of fiber and the associated maintenance of fiber. The city developed a
fiber conduit concept map in 2019 that staff references to prioritize fiber conduit projects with the
long-term goal to serve major city facilities, trails, parks, traffic signal, and water/ wastewater
locations. This fiber concept map is the guiding document that helps staff decide if placing
conduit in a specific city project provides an adequate return on investment.
DISCUSSION:
City Information Technology (IT) staff worked with the City Attorney's Office and OzarksGO to
develop the attached agreement that allows OzarksGO to utilize City fiber conduit to install
OzarksGO fiber optic cable. The agreement provides the City ten (10) strands of OzarksGo fiber
optic cable as a swap for the use of City conduit. The swap allows the City to leverage the fiber
conduit investment to obtain fiber optic cable, at no additional cost, to increase the network
speed and resiliency of city facilities via fiber optic cable.
BUDGET/STAFF IMPACT:
There is no direct cost to the attached agreement. Fiber and conduit swaps will be tracked via
the attached service order document, by both City IT staff and OzarksGO staff, to track
equitable sharing of conduit and fiber optic cable. OzarksGO is responsible for the maintenance,
line locates, and repair of the fiber optic cable which is a cost avoidance over a city staff
managed fiber optic cable network.
Attachments: Staff Review Form, OzarksGO agreement
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
CONDUIT OCCUPANCY
AND FIBER SWAP AGREEMENT
This Conduit Occupancy and Fiber Swap Agreement (this "Agreement") is made and
entered into as off I,, V ZZ (the "Effective Date") by and between OzarksGo, LLC and
City of Fayetteville. OzarksGo, LLC and City of Fayetteville may be referred to herein as a
"Party" or together as the "Parties."
Recitals
A. OzarksGo, LLC owns rights in, has constructed or is planning to construct, operate and
maintain a fiber optic communications system (the "OzarksGo, LLC System");
B. City of Fayetteville owns rights in, has constructed or is planning to construct, operate
and maintain a fiber optic communications system (the "City of Fayetteville Conduit
System");
C. OzarksGo, LLC wishes to exchange the use of dark fiber ("OzarksGo, LLC Fiber")
within the OzarksGo, LLC System for the use of conduit within the City of Fayetteville Conduit
Route;
D. City of Fayetteville wishes to exchange the use of conduit within the City of
Fayetteville Conduit Route for the use of dark fiber within the OzarksGo, LLC System;
E. Each defined term shall have the meaning ascribed where such term is first used or,
if no meaning is so set forth, the meaning assigned to such term in the Defined Terms
section.
Accordingly, in consideration of the mutual promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows: Article 1. Grants of Leases
1.1 Lease to City of Fayetteville. OzarksGo, LLC hereby leases to City of Fayetteville
and City of Fayetteville hereby leases from OzarksGo, LLC:
(a) The number of dark fibers in the OzarksGo, LLC System specified in the "City
of Fayetteville Fiber Lease Orders" which are attached hereto and incorporated by this
reference. Any OzarksGo, LLC Fiber Service Order are attached herein and incorporated
herein by this reference.
CONDurr OCCUPANCY
AND FIBER SWAP AGREEMENT
This Conduit Occupancy and Fiber Swap Agreement (this "Agreement") is made and
entered into as of (the "Effective Date") by and between OzarksGo, LLC and
City of Fayetteville. OzarksGo, LLC and City of Fayetteville may be referred to herein as a
"Party" or together as the "Parties"
Recitals
A. OzarksGo, LLC owns rights in, has constructed or is planning to construct, operate and
maintain a fiber optic communications system (the "OzarksGo, LLC System");
B . City of Fayetteville owns rights in, has constructed or is planning to construct, operate
and maintain a fiber optic communications system (the "City of Fayetteville Conduit
System");
C. OzarksGo, LLC wishes to exchange the use of dark fiber ("OzarksGo, LLC Fiber")
within the OzarksGo, LLC System for the use of conduit within the City of Fayetteville Conduit
Route;
D. City of Fayetteville wishes to exchange the use of conduit within the City of
Fayetteville Conduit Route for the use of dark fiber within the OzarksGo, LLC System;
E. Each defined term shall have the meaning ascribed where such term is first used or,
if no meaning is so set forth, the meaning assigned to such term in the Defined Terms
section.
Accordingly, in consideration of the mutual promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows: Article 1. Grants of Leases
1.1 Lease to City of Fayetteville. OzarksGo, LLC hereby leases to City of Fayetteville
and City of Fayetteville hereby leases from OzarksGo, LLC:
(a) The number of dark fibers in the OzarksGo, LLC System specified in the "City
of Fayetteville Fiber Lease Orders" which are attached hereto and incorporated by this
reference. Any OzarksGo, LLC Fiber Service Order are attached herein and incorporated
herein by this reference.
(b) The OzarksGo, LLC Fibers will be specifically identified by OzarksGo, LLC.
(c) City of Fayetteville agrees as Lessee of OzarksGo, LLC Fibers, City of Fayetteville
shall be subject to all of the provisions of this Agreement.
1.2 Lease to OzarksGo, LLC. City of Fayetteville hereby leases to OzarksGo, LLC,
and OzarksGo, LLC hereby leases from City of Fayetteville:
(a) Space in the City of Fayetteville Conduit System.
(b) The City of Fayetteville Conduit System will be specifically identified by City of
Fayetteville.
(c) City of Fayetteville grants OzarksGo, LLC permission, on the terms and conditions
stated herein to install and maintain communication cables and related equipment
within the conduit system described herein.
1.3 Defined Terms. In reference to the fiber lease, OzarksGo, LLC is sometimes referred to
as Fiber Lessor, City of Fayetteville is sometimes referred to as Fiber Lessee. In reference to the
conduit lease, City of Fayetteville is sometimes referred to as Conduit Lessor, OzarksGo, LLC
is sometimes referred to as Conduit Lessee. The "Lessor Fibers" shall mean the dark fibers
owned by OzarksGo, LLC. The City of Fayetteville Conduit System is sometimes referred
individually to as a "Lessor Conduit System" Fiber Lessee and Conduit Lessee may be
referred to collectively as "Lessees," whereas Conduit Lessor and Fiber Lessor may be referred
to collectively as "Lessors."
1.4 Conditions. Each lease is granted on the terms and subject to the covenants and
conditions set forth in this Agreement. The Lessees' right to use shall be exclusive to the rights
being leased to it. Each lease does not include the right of the Lessees to own, control, maintain,
modify or revise the fibers or conduit, the right to encumber in any manner, or other use of the
Lessors' property except as expressly set forth herein.
1.5 Control of Network. The Fiber Lessee shall have full and complete control and
responsibility for determining any network and service configuration or designs, routing
configurations, regrooming, rearrangement or consolidation of channels or circuits and all
related functions with regard to the use of the Lessor's Fibers.
1.6 No Electronics. Each Lessee acknowledges and agrees that Lessor is not supplying
nor is Lessor obligated to supply to Lessee any optronics or electronics or optical or electrical
equipment or other facilities, including without limitation, generators, batteries, air
conditioners, fire protection and monitoring and testing equipment, all of which are the sole
responsibility of Lessee; nor is Lessor responsible for performing any work other than as
specified in this Agreement.
1.7 Network Access.
(a) The OzarksGo, LLC Fibers will be terminated at the points identified by OzarksGo,
LLC. OzarksGo, LLC will electronically provide route maps to the City of Fayetteville.
(b) The City of Fayetteville Conduit System will be constructed at points identified by City
of Fayetteville. City of Fayetteville will electronically provide route maps to OzarksGo, LLC-
(c) All connections to the OzarksGo, LLC fiber shall be performed by OzarksGo, LLC, in
accordance with its applicable specifications and operating procedures. OzarksGo, LLC shall
not charge City of Fayetteville for the cost of the initial connections at the demarcation points
described in the route map, available to City of Fayetteville upon their written request. It is the
responsibility of OzarksGo, LLC to obtain all governmental and other approvals and consents
necessary for the delivery of the cable and use of the Lessor Fibers.
(d) The City of Fayetteville shall be responsible for obtaining all building access and other
rights and rights of way necessary for the construction and maintenance of the City of
Fayetteville Conduit System.
(e) Each Lessee shall pay the Lessor's agreed upon cost for each additional access. For
other services performed by a Lessor, Lessee agrees to pay the agreed upon Costs incurred
by Lessor.
Article 2. Consideration
2.1 Exchange. The consideration to City of Fayetteville for lease of the City of Fayetteville
Conduit System is the lease of ten (10) strands of OzarksGo, LLC Fibers. The consideration to
OzarksGo, LLC for the lease of OzarksGo, LLC Fibers is the lease of the City of Fayetteville
Conduit System.
2.2 Connectivity. OzarksGo, LLC shall perform all necessary fiber splicing, and fiber
testing, for fiber connection to OzarksGo, LLC fiber. City of Fayetteville shall install hand
holes, however OzarksGo, LLC may install additional hand holes at their discretion.
2.3 Other Charges. Each Lessee shall pay directly or reimburse Lessor for all other
undisputed sums, costs, fees and expenses which are expressly provided to be paid by
Lessee under this Agreement.
2A Invoicing. Each Lessor will send Lessee invoices for payments of all sums, costs, fees
and expenses owed by Lessee to Lessor hereunder and Lessee shall pay such undisputed
invoiced amounts within sixty (60) days after receipt of such invoice by Lessee.
Article 3. Payment and Term
3.1 Commencement. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall terminate on January 1, 2042.
3.2 Expiration of Term. Upon the termination of this Agreement, the City of Fayetteville
shall remain the owner of its Conduit System but shall provide OzarksGo, LLC the right
to remain in its Conduit System to provide communication services. OzarksGo, LLC shall
remain the owner of the OzarksGo Fibers. Each lease shall terminate and all rights of
Lessee, or any part thereof, shall cease. All rights therein shall revert to Lessor without
reimbursement of any costs, fees, expenses or other amounts previously paid with respect
thereto. From and after such time Lessee shall have no further rights or obligations
hereunder with respect thereto unless such rights or obligations are specifically provided
herein to survive the Term.
3.3 Term Renewal. Within 180 days of the expiration of the Term, the parties shall have the
option to renew this Agreement for the same term length, upon written agreement on
mutually agreeable terms and conditions.
3.4 Title. It is understood and agreed that each Lessor shall maintain legal title to or rights
in the Lessor property, and nothing contained herein shall be interpreted to give or
convey to Lessee any property right, such as fiber strains and/or conduit, title or interest
in such property, which will at all times be and remain Lessor's personal property
notwithstanding that it may be or become attached to or embedded in realty.
Article 4. Delivery and Acceptance
4.1 Acceptance Testing. OzarksGo, LLC has tested, or at the time of installation shall test
all Fibers to verify that the Fibers have been installed and are operating in accordance with the
Dark Fiber Splicing Specifications described in Exhibit 1. Acceptance Testing &
Specifications. When OzarksGo, LLC has determined that the results of the Fiber Testing show
that the Fibers have been installed and are operating in conformity with the Specifications,
OzarksGo, LLC shall promptly provide City of Fayetteville with a notice of completion (the
"Completion Notice") together with a copy of the test results.
4.2 Acceptance. Within thirty (30) days following receipt of Within thirty (30) days
following receipt of a Completion Notice, City of Fayetteville shall provide OzarksGo, LLC
with a written notice accepting or rejecting the OzarksGo, LLC Fibers, and specifying in
reasonable detail, if rejected, the defect or failure in the OzarksGo, LLC fiber. If City of
Fayetteville fails to notify OzarksGo, LLC of its acceptance or rejection of the Completion
Notice within thirty (30) days following receipt of the same, City of Fayetteville shall be
deemed to have accepted such Lessor Fibers. The date of such notice of acceptance or deemed
acceptance of the Lessor Fibers shall be the "Acceptance Date"
4.3 Completion. In the event of any good faith rejection by Lessee, Lessor shall take such
action as reasonably necessary, and as expeditiously as practicable, to correct or cure such
defect or failure in accordance with the Specifications, and the notification and acceptance
procedure shall be repeated until the project is within the Specifications. The foregoing
notwithstanding, if Fiber Lessee uses the OzarksGo Fibers other than for testing prior to
acceptance, such use shall constitute acceptance of the OzarksGo Fibers and the first date of
such use shall be the Acceptance Date; provided, however, that no acceptance or deemed
acceptance shall constitute a waiver of Lessor's obligations of maintenance and repair of the
OzarksGo Fibers.
Article 5. Maintenance
5.1 OzarksGo Duties. OzarksGo will be responsible for the technical operation,
maintenance and repair of its OzarksGo Fibers so as to assure continuing conformity of the
applicable system and specifications, including any maintenance as it deems reasonably
necessary for the normal operation of the applicable system, during the Term of this
Agreement. Maintenance shall be performed in accordance with the maintenance specifications
set forth in Exhibit 2. Maintenance Specifications and Procedures that is attached hereto
and incorporated herein by this reference. OzarksGo, LLC, at its sole discretion, may provide
these services with its own personnel or select a qualified subcontractor.
5.2 City of Fayetteville Duties. City of Fayetteville will be responsible for the
construction of the City of Fayetteville Conduit System described herein. City of Fayetteville
represents, warrants, and covenants that the project described herein will be performed in a
professional, competent, diligent, and workmanlike manner by knowledgeable, trained, and
qualified personnel and in accordance with the terms of this Agreement. City of Fayetteville,
may provide these services with its own personnel or select a qualified subcontractor.
5.3 OzarksGo Inspection Rights. OzarksGo, LLC may conduct periodic inspections of
the conduit construction and maintenance to ensure compliance with required standards and
Specifications. OzarksGo, LLC requires a post -construction inspection and may require
random or scheduled inspections upon notice to City of Fayetteville. OzarksGo, LLC shall
be solely responsible for paying the costs of such inspections.
5.4 Interruption.
(a) If during the Term the use of either the City of Fayetteville Conduit System or
OzarksGo, LLC Fibers is interrupted for any reason, including without limitation an
interruption caused by or related to matters concerning the Underlying Rights, defined below,
(other than the rights described in Section 6.3) the Lessor shall exercise all reasonable efforts
to restore the use of the property as quickly as practicable following notice of the interruption.
If the interruption is a network interruption of OzarksGo Fibers other than an Excused
Interruption, OzarksGo shall, to the extent available, make available to the City of Fayetteville
alternate fibers or network systems with capacity at least equal to the capacity of the OzarksGo
Fibers whose use has been interrupted.
(b) If Lessor or its designee is unable or unwilling to provide to Lessee the maintenance
services as defined in this Agreement, then Lessor shall allow Lessee to assume responsibility
for maintenance service as Lessor's designee, provided that Lessee performs such maintenance
services under substantially similar standards as provided herein. In such an event, Lessor
agrees to promptly provide to Lessee all necessary information relating to any other parties and
any other information that Lessee may require to perform such maintenance services.
5.5 Cost of Maintenance and Repairs. The cost of maintenance and repairs described in this
section will be covered by the City of Fayetteville through a maintenance fee, if applicable,
provided in Exhibit 1.
5.6 Maintenance or Other Work Within Public Rights of Way. Ozarks Go, LLC shall comply
with all City of Fayetteville ordinances and regulations regarding utility work within public
rights of way. This shall include obtaining all necessary permits through the Public Works
Department, Engineering Division, or any other department, divisions, or agency of the City.
If the work is covered by an existing franchise agreement, a permit may not be necessary.
Article 6. Permits; Underlying Rights; Relocation
6.1 Lessor Rights of Way. Each Lessor has obtained certain rights of way and building
access rights for construction and operation of their obligations herein (the "Underlying
Rights"). This Agreement is subject to the terms and limitations of the Underlying Rights, and
subject to the terms under which the right of way and other property interests are owned or
held by the grantor of the Underlying Rights, including, but not limited to, covenants,
conditions, restrictions, easements, reversionary interests, bonds, mortgages and indentures,
and other matters, whether or not of record, and to the rights of tenants and licensees in
possession. Nothing herein shall be construed as to be a representation, warranty or covenant
of Lessor's right, title or interest with respect to the right of ways or the Underlying Rights, all
of which are disclaimed.
6.2 Lessee's Obligations. Each Lessee agrees to use the Lessor property only for lawful
purposes in a manner consistent with the Underlying Rights, and that its rights shall in all
respects be subject to the terms and conditions of the Underlying Rights. Each Lessee agrees
not to cause or allow to be caused any default under the Underlying Rights.
6.3 Relocations. The Parties hereto understand that any relocation not agreed upon by both
Parties could disrupt the services provided. Lessor must notify Lessee of any changes or
relocation, Lessor must determine in good faith the extent of, the time of, and the methods to
be used for any relocation; provided that: (a) any such relocation shall be constructed and leased
fiber shall be tested in accordance with the specifications set forth in Exhibit 1. Acceptance
Testing & Specifications; and (b) if the relocation is recommended or required, Lessor
assumes all relocation costs.
Article 7. City of
Fayetteville's
Use of the Fibers
7.1 Underlying Rights. The requirements, restrictions, and/or limitations on Fiber Lessee's
right to use the Lessor Fibers, and safety, operational and other rules and regulations imposed
in connection with the Underlying Rights are referred to collectively as the "Underlying Rights
Requirements."
71 Compliance. City of Fayetteville represents, warrants, and covenants that it will use the
Lessor Fibers in compliance with and subject to the Underlying Rights Requirements and all
applicable government codes, ordinances, laws, rules and regulations.
7.3 Non -Interference. City of Fayetteville shall not use the Lessor Fibers in a way that
interferes in any way with or adversely affects the use of the fibers or cable of any other person
using OzarksGo Fibers. The Parties acknowledge that the City of Fayetteville Conduit may
include other participants, and other owners and users of telecommunication systems.
7A Purposes. Subject to the provisions specified above and in Article 6, City of
Fayetteville may use the Lessor Fibers for any lawful purpose.
Article 8. Limitation of Liability and Indemnification
8.1 Waiver of Certain Damages. Notwithstanding any provision of this Agreement to the
contrary, neither Party shall be liable to the other Party for any special accidental, indirect,
punitive or consequential costs, liabilities or damages suffered by the other Party, whether
foreseeable or not, arising out of, or in connection with, such Parry's performance of its
obligations under this Agreement.
(a)
Article 9. Insurance
9.1 Insurance Required. Each Party shall procure and maintain in force, at its own expense such
insurance as required by Arkansas law or as the party deems necessary to insure its own property.
Each Party shall be listed as an additional insured on all applicable insurance policies maintained
by the other Party and such other Party's contractors and subcontractors..
9.2 Pursuit of Claim. If coverage is denied or reimbursement of a properly presented claim is
disputed by either Party for the insurance provided above, the Party carrying such coverage
shall make good -faith efforts to pursue such claim with its insurer.
9.3 Waiver. City of Fayetteville and OzarksGo, LLC hereby mutually waive their respective
rights of recovery against each other and the officers, elected or appointed officials, directors,
shareholders, partners, joint ventures, employees, agents, customers, invitees, or business
visitors of either Party, for any loss arising from any cause covered or that could be covered by
fire, extended coverage, All Risks, or other insurance required to be carried under this
Agreement or now or hereafter existing for the benefit of the respective Parry. City of
Fayetteville and OzarksGo, LLC will cause from time to time their respective insurers to issue
appropriate waiver of subrogation rights endorsements to all property insurance policies carried
in connection with their respective property.
Article 10. Notices
All notices and other communications required or permitted under this Agreement shall be
in writing and shall be given by United States first class mail, postage prepaid, registered or
certified, return receipt requested, or by hand delivery (including by means of a professional
messenger service or overnight mail) addressed as follows:
All notices and other communications shall be given to City of
Fayetteville at: Mayor's Office via mail to 113 W.
Mountain St., Fayetteville, AR 72701; and email at
mayor@fayetteville-ar.gov
All notices and other communications shall be given to OzarksGo, LLC at: Steve Bandy via
email at sbandy@ozarksgo.net
In addition, Lessor may give Lessee notice of the availability or interruption of the services, or
a planned maintenance or construction, by electronic delivery at all of the following Internet
addresses:
Electronic Notice address for City of Fayetteville:
ithelpdesk@fayetteville-ar.gov
Electronic Notice address for OzarksGo, LLC:
noc@ozarksgo.net
In the case of an emergency, either Party may notify the other Party either through the
Internet addresses set forth above, or at the following telephone numbers:
Telephone Number City of
Fayetteville: City of
Fayetteville Information
Technology Department
479-575-8367
Telephone Number OzarksGo,
LLC: NOC: (479)300-1001
Any such notice or other communication shall be deemed to be effective when actually
received or refused. Either Party may by similar notice change the address to which future
notices or other communications shall be sent.
Article 11. Default
11.1 Defined. A default shall be deemed to have occurred under this Agreement if:
(a) By Lessee, if Lessee uses the leased property in any manner that is prohibited
by this Agreement and Lessee fails to cease such use within ten (10) days of receipt of
notice from Lessor; or
(b) By either Party in the case of a failure to pay any undisputed amount when due
and payable under this Agreement, if the Party fails to pay such undisputed amount
within ten (10) days of receipt of notice from the other Party specifying such failure and
requiring payment of such undisputed amount; or In the case of any other material breach
of this Agreement, a Party fails to cure such breach within thirty (30) days after notice
specifying such breach; provided that if the breach is of a nature that it cannot be cured
within thirty (30) days, a default shall not have occurred so long as the breaching Party
has commenced to cure within said time period and thereafter diligently pursue such cure
to completion.
11.2 No Waiver. A waiver by either Party at any time of any of its rights as to anything
herein contained shall not be deemed to be a waiver of any breach of covenant or other matter
subsequently occurring.
11.3 Breach. The Parties agree that neither shall proceed against the other for breach or
default under this Agreement before the offending Party has had notice of and a reasonable
time and opportunity to respond to and cure any breach or default. For purposes of this
Agreement, a reasonable time to cure any breach or default shall be deemed to be thirty (30)
days after notice, unless for safety, or legal reasons fewer than thirty (30) days are required.
Article 12. Termination
12.1 Upon termination of this Agreement, the permissions granted to each Party under the
lease provisions are immediately relinquished. Each Party shall work with the other to
promptly remove any of Lessee's electronics, equipment, and other Lessee property at its
sole cost and under Lessor's supervision. Termination of this Agreement shall not affect the
rights or obligations of either Party that have arisen before the date of termination or
expiration.
Article 13. Assignment and Fiber Transfers
13.1 Restrictions. Lessee may not transfer or assign all or any part of its interest in this
Agreement nor may Lessee sell, assign, lease, or grant an indefeasible right of use with respect
to, exchange, encumber, or otherwise in any manner transfer or make available as dark fiber in
any manner to any third party, the Lessor Fibers, in whole or in part, or delegate any duties,
burdens, or obligations arising hereunder, without the consent of Lessor, which consentmay not
be unreasonably withheld.
13.2 Breach. A transfer or assignment or other use of the Lessor Fibers in violation of this
Article shall constitute a material breach of this Agreement. Article 14. Representations,
Warranties and Acknowledgements
13.3 Warranties. Each Party represents and warrants to the other Party that:
(a) It has the full right and authority to enter into, execute, deliver and perform
its obligations under this Agreement; and
(b) This Agreement constitutes a legal, valid and binding obligation enforceable
against such Party in accordance with its terms, subject to bankruptcy, insolvency,
creditors' rights and general equitable principles.
Article 14. Disclaimer
14.1 DISCLAIMER. Each party as lessor makes no warranty, express or implied, with
respect to the lessor fibers, including any warranty of merchantability or fitness for a particular
purpose, and all such warranties are hereby expressly disclaimed.
Article 15. Force Majeure
Neither Party shall be liable to the other Party, and each Party's performance under this
Agreement shall be excused, if and to the extent that any failure or delay in such Party's
performance of one or more of its obligations hereunder is caused by any of the following
conditions, and such Party's performance of such obligations shall be excused and extended for
and during the period of any such delay: act of God; fire, flood, shortages or unavailability or
other delay in material delivery not resulting from the responsible Parry's failure to timely place
orders therefor; lack of or delay in transportation; government codes, ordinances, laws, rules,
regulations or restrictions; war or civil disorder; strikes or other labor disputes; failure of a third
party to grant or recognize an Underlying Right; inability of a Party to obtain rights of way,
easements, building access or other rights from private property owners; inability of Lessor to
obtain access to the lessor system; or any other cause beyond the reasonable control of such
Party (each a "Force Majeure Event"). The Party claiming relief under this Article shall notify
the other in writing of the existence of the event relied on and the cessation or termination of
said event, and the Party claiming relief shall exercise reasonable commercial efforts to
minimize the time of any such delay.
Article 16. General
16.1 Binding Effect. The failure of either Party hereto to enforce any of the provisions of
this Agreement, or the waiver thereof in any instance shall not be construed as a general
waiver or relinquishment on its part of any such provision, but the same shall nevertheless be
and remain in full force and effect.
16.2 Impositions. OzarksGo, LLC shall be responsible for and shall timely pay any and
all Impositions with respect to the construction or operation of the OzarksGo, LLC fiber
systems.
163 Public Records.
(a) Nothing herein shall be construed as granting any right or license under
any copyrights, inventions, or patents, or enhancements thereto, now or hereafter
owned or controlled by Lessor or Lessee.
(b) Neither Party shall, without first obtaining written consent of the
other Party, use any trademark or trade name of the other Parry in any
promotional activity or otherwise.
(c) The provisions of this Section shall survive expiration or other termination
of this Agreement.
(d) This Agreement and any records related to this Agreement are subject to
disclosure under the Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-
141, et seq.
16.4 Attorneys' Fees. If either Party brings any legal action or proceeding against the other
to enforce or interpret this Agreement, or otherwise arising out of this Agreement, the
prevailing Party in such action or proceeding shall be entitled to recover from the other Party
its reasonable costs and expenses of suit and enforcing the judgment awarded to it, including
reasonable attorneys' fees, in addition to any other relief or award to which it may be entitled.
16.5 Rules of Construction. The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement or as amplifying or
limiting any of its content. Words in this Agreement which import the singular connotation shall
be interpreted as plural, and words which import the plural connotation shall be interpreted as
singular, as the identity of the parties or objects referred to may require.
(a) Unless expressly defined herein, words having well known technical or trade
meanings shall be so construed. All listing of items shall not be taken to be exclusive,
but shall include other items, whether similar or dissimilar to those listed, as the context
reasonably requires.
(b) Except as set forth to the contrary herein, any right or remedy of City of
Fayetteville or OzarksGo, LLC shall be cumulative and without prejudice to any
other right or remedy,whether contained herein or not.
(c) Nothing in this Agreement is intended to provide any legal rights to anyone not
a Party of this Agreement.
(d) This Agreement has been fully negotiated between and jointly drafted by the
Parties. All actions, activities, consents, approvals and other undertakings of the Parties in
this Agreement shall be performed in a reasonable and timely manner, it being expressly
acknowledged and understood that time is of the essence in the performance of
obligations required to be performed by a date expressly specified herein. Except as
specifically set forth herein, for the purpose of this Agreement the standards and practices
of performance within the telecommunications industry in the relevant market shall be
the measure of a Party's performance.
16.6 Entire Agreement. This Agreement constitutes the entire and final agreement and
understanding between the Parties with respect to the subject matter hereof and supersedes all
prior agreements relating to the subject matter hereof, which are of no further force or effect.
The Exhibits referred to herein are integral parts hereof and are hereby made a part of this
Agreement. To the extent that any of the provisions of any Exhibit hereto are inconsistent with
the express terms of this Agreement, the terms of this Agreement shall control. This Agreement
may only be modified or supplemented by an instrument in writing executed by each Party and
delivered to the Party relying on the writing.
163 No Personal Liability. Each action or claim against any Party arising under or relating
to this Agreement shall be made only against such Party as a corporation or municipal entity,
and any liability relating thereto shall be enforceable only against the corporation or
municipality. No Party shall seekto pierce the corporate veil or otherwise seek to impose any
liability relating to, or arising from, this Agreement against any shareholder, employee, elected
or appointed official, officer or director of the other Party. Each of such persons is an intended
beneficiary of the mutual promises set forth in this Article and shall be entitled to enforce the
obligations of this Article.
16.8 Relationship of the Parties. The relationship between City of Fayetteville and
OzarksGo, LLC shall not be that of partners, agents, or joint ventures for one another, and
nothing contained in this Agreement shall be deemed to constitute a partnership or agency
agreement between them for any purposes, including, but not limited to federal income tax
purposes. City of Fayetteville and OzarksGo, LLC, in performing any of their obligations
hereunder, shall be independent contractors or independent parties and shall discharge their
contractual obligations at their own risk subject, however, to the terms and conditions hereof.
163 Severability. If any term, covenant or condition contained herein is, to any extent, held
invalid or unenforceable in any respect under the laws governing this Agreement, the
remainder of this Agreement shall not be affected thereby, and each term, covenant or
condition of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
[signature page follows]
In confirmation of their consent and agreement to the terms and conditions contained
in this Agreement and intending to be legally bound hereby, the Parties have executed this
Agreement as of the date written below.
OzarksGo, LLC: Cit;fFayette
Steven Bandy, General Manager Lioneld J d , Mayor
Dated
� 4) . - — Dated: �'Z �x Y �Rt{,gs!�er�
•��•' GAT 01c•G�.
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Attest: ' FAYETi-EVILLE;
Kara Paxton, City Clerk Trc7*, - C, ;
Exhibit 1
Acceptance Testing and Specifications
1. GENERAL
a. OzarksGo will perform all tests, provide documentation, and meet the standards
identified in this exhibit at its own cost.
2. TESTING
a. OzarksGo will test the Dark Fiber both with: (i) a calibrated light source and power
meter, and (ii) a recently calibrated OTDR.
b. Each fiber will be traced using a 2 km launch reel at the front end of the path so that
the events near the source can be seen. Traces shall be taken at 1550 nm and 1310
nm unless different wavelengths are requested. The OTDR will be set to use the
shortest pulse width that gives the cleanest trace from end to end. For bi-directional
traces, the OTDR settings must be identical on both sides of the Dark Fiber being
tested.
c. Each fiber will be tested bi-directionally at the requested wavelengths, if not specified
wavelengths 1550 nm and 1310 nm will be used. The OTDR settings shall be
identical for bi-directional testing.
3. FIBER STANDARDS
a. The Dark Fiber will comply with the manufacturer's fiber specifications.
b. The majority of OzarksGo's fiber optic cable is loose tube single armor or ribbon
single armor ITU-T G.652D (reduced water peak) single -mode fiber optic cable
<0.25 dB/km @ 1550nm.
c. Standards Compliance: Telcordia GE-20-CORE
RDUP PE-90 Designation MLT
ICEA S-87-640-2011
RoHS-compliant
d. Field Splice Standards: OzarksGo will use the following criteria for splicing:
i. All splices will be fusion splices achieved using a modern fusion splicer.
ii. Average Bi-directional Loss shall be <_ 0.1 dB per splice.
e. The aforementioned standards are objectives, and not the basis for acceptance. The
acceptance standard for each fiber per span shall be calculated as follows:
Span Loss <= a * span distance in km + b * 0.15db/splice + c* (0.5dB/connector)
Where:
a = 0.28 db/km @ 1550nm
b = number of splices for span
c = number of connectors per span
4. INNER DUCT ACCEPTANCE TESTING
Each innerduct has an operable mule tape and extends far enough into each hand hole or
junction box. Inner duct butt splices should be joined with a coupling system that is approved by
the inner duct manufacturer and installed according to manufacturer specifications
Exhibit 2
Maintenance Specifications
Route Maintenance:
Route work is defined as work to address potential hazards or requirements associated with the
identification of construction deficiencies across the network. This work WILL NOT be service
impacting. This work can be scheduled to resolve the network issue, unless a safety issue can or
will put community person(s)) or the network in harm. Routine Maintenance includes:
Corrective maintenance activities
Safety issues
OzarksGo, LLC shall perform periodic routine maintenance and repair checks at their reasonable
discretion. OzarksGo, LLC shall provide the City of Fayetteville with five (5) days notice of any
routine maintenance that will disrupt the City of Fayetteville's use.
Emergency Maintenance:
Emergency work is defined as work performed (restoration) as a result of an accident or damage
to facilities that resulted in a customer(s) out of service situation. Break/Fix situation.
Emergency Maintenance includes:
Service Outages
Damages resulting in a hazard to the network or community (person(s)).
OzarksGo, LLC or its designee shall promptly respond to any failure, interruption or impairment
in the operation of the fiber within two (2) hours after receiving a report of any such failure,
interruption or impairment. Such response shall consist of engagement of the on-duty/on-call staff
and notification. OzarksGo, LLC shall use its reasonable efforts to perform maintenance and repair
to correct any failure, interruption or impairment within eight (8) hours, when reasonably possible.
City of Fayetteville may assist with emergency maintenance if approved by OzarksGo, LLC.
Maintenance Fee:
OzarksGo, LLC and the City of Fayetteville may mutually agree upon cost for maintenance
under this Agreement. There shall be no annual maintenance fee.
Service Orders
Requested Service Date:
Service Type:
Term:
Description of Cable Segments: City of Fayetteville Fibers
Order No.:
Billing Phone:
ROUTE NAME Fiber Count Mileage
OzarksGo, LLC
Signed:
Name:
Date:
City of Fayetteville:
Signed:
Name:
Date: