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Home My WebLink About2006-117 Agrmt - Hunter Communications AFN/HUNTER POLE CONTACT OWNER OF RECORD AGREEMENT Contract dated this 24 tho day of July 2006 between the City of Ashland, by and through its Ashland Fiber Network Division (AFN) and Hunter Construction, Inc., an Oregon corporation dba Hunter Communications (Hunter). Recitals: A. AFN and Hunter under agreement dated September 5, 2000, jointly constructed approximately 13 miles of a fiber optic cable with 48 single-mode strands of fibers and all related equipment and facilities to connect AFN fiber optic system within the City of Ashland to a point of presence on Owest nationwide network (Athe Owest POP@) in Medford, Oregon (Athe link@). B. Pursuant to the terms of the September 5, 2000, agreement, each party owned the rights to 24 of the single-mode strands of fiber installed. C. AFN entered into a pole contact agreement with PacifiCorp, formally Pacific Power and Light, Inc. (PP&L), allowing the connection of the fiber optic line to the PacifiCorp poles. Ashland is designated owner of record for the 48 strand fiber line with PacifiCorp. D. Hunter has been using its 24 strands of fiber to provide access to internet service to customers in Talent, Phoenix and Medford. E. PacifiCorp has given Hunter notice that since it is not owner of record of the fiber line, it cannot have attachments to the line on PacifiCorp poles. F. Hunter has requested AFN to transfer ownership of record of the fiber line to Hunter with PacifiCorp I G. AFN is amenable to transfer ownership of record under the following terms and conditions. AFN and Hunter agree: 1. All other terms of the oriGinal contract shall remain in effect and obliGations supported by both parties. 2. Temporary transfer of ownership of record. AFN shall file the necessary paperwork with PacifiCorp to transfer ownership of record of the pole contact agreement to Hunter for an initial term of five years. If AFN does not provide notice to Hunter at least fifteen days prior to the expiration of the initial term or any subsequent renewal thereof of intent to terminate this agreement, the agreement shall renew for subsequent five-year terms. 3. Reconveyance. Hunter agrees to execute all of the necessary, undated papers to return 'owner of record' to AFN. AFN will retain these executed, undated papers and may present them to PacifiCorp either upon termination of this agreement or upon default of this agreement as set forth in paragraph 8, below. 4. Compliance with PacifiCorp reauirements. Hunter shall be responsible for all costs and labor and materials to comply with all PacifiCorp rules, regulations or other requirements relating to the pole attachment and any future attachments made to the fiber line by Hunter. In the event Hunter receives notice from PacifiCorp that any or all of the attachments do not comply, Hunter shall immediately provide AFN a copy of the notice by faxing a copy of the notice to AFN at (541) 488-5320 and to the Ashland legal department at (541) 552-2092, and shall take all necessary, reasonable steps to timely correct the deficiencies at Hunter's labor and expense. AFN will continue to provide, at its cost, the materials necessary for maintaining the 48 strand link line. 5. . Payment of Obliaations. Hunter shall promptly make payments to all persons supplying labor, equipment, supplies, or materials for the work when they become due under any subcontract or material contract entered into by Hunter for work on the fiber line. Hunter shall be responsible for any lien or claim filed against AFN related to the work. 6. Failure to make payment of any claim when due may necessitate AFN paying such claim to the person furnishing the work and charging the amount against Hunter. Such payment shall not relieve Hunter or Hunter's surety from Hunter's obligation for any unpaid claims. AFN shall not make payment in the face of a legitimate dispute between Hunter and a subcontractor or material supplier. 7. AFN Connections to Fiber. In the event that AFN needs to make a connection to the fiber which requires PacifiCorp approval, AFN will provide all necessary information to Hunter for the connection. Hunter agrees to file the connection request with PacifiCorp in Hunter's name within 14 calendar days of the date AFN submits the written request to Hunter. 8. Notices. All notices, requests and communications required or permitted under this contract shall be in writing and shall be sufficiently given and deemed to have been received upon personal delivery by messenger, overnight courier, electronic mail or telecopier, or, if mailed, upon the first to occur of actual receipt or two work days after being placed in the United States mail, postage prepaid. Any notices requiring a response of a legal nature shall be made via registered or certified mail, with return receipt requested. The following contact address shall be used for these notices: AFN Attn: Joe Franell, Director 90 North Mountain Avenue Ashland, Oregon 97520 Phone: (541) 552-2314 Fax: (541) 488-5320 Email: franellj@ashland.or.us Hunter Construction, Inc. dba Hunter Communications Attn: Richard W. Ryan 801 Enterprise Drive Central Point, Oregon 97 Phone: (541) 772-9282 Fax: (541) 772-4805 Email: rryan@coreds.net 9. Contract Amendments. No change, amendment or modification of this contract shall be valid or binding upon the parties hereto, unless such change, amendment or modification shall be in writing and duly executed by both parties. No verbal agreement or conversation with any officer, agent, or employee of AFN, either before or after execution of the contract, shall affect or modify any of the terms or obligations contained in the contract. 10. Default by Contractor. AFN may, without prejudice to any other right or remedy and after giving Hunter seven days written notice, terminate this agreement with Hunter if Hunter should: a) Be adjudged bankrupt; b) Make a general assignment for the benefit of Hunter' creditors; c) Have a receiver appointed on account of Hunter' insolvency; d) Fail to make timely corrections to any notice of default or deficiency issued by PacifiCorp relating to the pole contact agreement. f) Upon expiration of a 15 day cure period, disregard laws, ordinances, or the instructions of AFN; or g) Upon expiration of a 15 day cure period, be guilty of a material violation of any provision of the contract. AFN will take possession of the fiber line and all appurtenances, materials, tools, and appliances necessary to continue operation of said line. AFN may immediately file the reconveyance papers executed by Hunter and held by AFN. Any labor, costs or materials necessary for AFN to cure a notice of default from PacifiCorp issued during the time and related to Hunter's ownership of record shall be considered an obligation of Hunter immediately owing to the City of Ashland and if not paid within 30 days of the date Ashland provides notice thereof to Hunter, may be collected by Ashland in any manner provided in law or equity. Termination of any or all of the contract shall not relieve Hunter of the responsibilities for any just claims arising out of the work performed. Hunter Construction, Inc. dba Hunter Communications City of Ashland, by and through its Department of Electric Utilities, Ashland Fiber Network Division By: ~ .;i~...~~ / {z {./ < Title: 4-0M/AI ~/Cl!S /fi#4IfI4! IJIAt~~ Content review ~ on ~ .g~ Legal review by ~ on 11-? ^(-Y: Information Technology Department 90 North Mountain Avenue Ashland, Oregon 97520 (800) 735-2900 City of Ashland Memo To: Mike Franell- City Attorney, Lee Tuneberg - Finance/Administration Director From: Joseph Franell -Information Technology Director cc: Martha Bennett - City Administrator Date: 7/28/2006 Re: Contract Review for Hunter Communications Pole Attachment Agreement Attached is the contract negotiated and written in coordination with the City Attorney, Richard Ryan of Hunter Communications, and myself. This contract does not change physical ownership but merely gives Hunter Communications the ability to legally attach to the fiber they own on the fiber run between Ashland and the Qwest central office in Medford. Since PacificCorp, the pole owner, only recognizes one "owner of record", Hunter Communications has been unable to gain permission to legally attach to the fiber in question. Please expedite the review and signing of this document. Thanks, Joe Legal Administration ., T __.:--c=:.o_.~.......,..,..--.,. i~:', fi.... ; ~,(:-:::,. Il' :....?' U'~ ~\fl f i i, \ r ie" . '-J/ 1.:- . ~ ". ~.I t..,,~ ,:;;/ _:O.J i: IJ f" fi.../ i r it\ 1 JUl 2 8 2006 It ,q Ll L\i