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HomeMy WebLinkAboutRes-2022-078BOARD OF COUNTY COMMISSIONERS COTINTY OF KITTITAS STATE OF WASHINGTON RESOLUTION No. aoh\- 0-k7 Authorizing the Execution of an Interlocal Agreement with Petrichor. WHEREAS: Currently significant funding and assistance is available to enhance broadband internet service in the United States as an aspect of infrastructure enhancement; and WHEREAS: Kittitas County desire to enhance the County's broadband infrastructure as a piece of economic development; and WHEREAS: Kittitas County requires assistance in the effort to develop, manage, and maintain such broadband internet infrastructure; and WHEREAS: Petrichor has the needed expertise to assist the County in such endeavor. NOW' THEREFORE BE IT RESOLVED: The Board of County Commissioners, after due consideration, does hereby authorize the execution ofthe attached Interlocal Agreement with Petrichor for the provision of assistance in enhancing the County's broadband internet infrastructure. DATED this ffi of Wrt,ttl/t- 2022,atEllensburg, washington. BOARD OF COLINTY COMMISSIONERS KITTITAS , WASHINGTON Chairman l,,lilllli Board- Julie Kjorsvik Cory Wright, Vice-Chairman n Deputy Clerk of the Board- Mandy Buchholz trWL Commissioner INTERLOCAL AGREEMENT EOR TELECOMMT'NICAIION SERVICES THrs TNTERLOCAL AGREEMENT ("this AGREEMENT") entered into by PETRICHOR BROADBAND, LLC, a Washington interfocal limited 1j-ability company permitted by RCW 39.34.030, (hereinafter *pETRrcHoR-), and KITTITAS COUNTY (herei_nafter the *COUNTY,,) . RECITAI.S WHEREAS, PETRICHOR is a Vrlashington interlocal limited liability company consisting of the following ports as members: port of Bellingham, Port of Kalama, Port of pasco, port of Ridgefield, port of Skagit County, and Port of Whj-tman County; and WHEREAS, the Port of whitman county j-s the named Manager for PETRICHORi and WHEREAS, PETRICHOR contracts with public and private entities for the planning, development and operation of locar and regional telecommunication facilit,ies; and WHEREAS' the COUNTY has a plan for a fiber optic telecommunication net.work, which is the subject. matter of this agreement. (herein the "Kitt.itas Network") ; WHEREAS, t.he couNTY plans to construct, own and operat.e tel-ecommunicat.ion inf rastructure ("the Facilities" ) f or 1he Kit.t.itas Net,work, within and without its district for its own use and to provide whol-esale tel-ecommunication services within Kittitas County (the "Prolect"); and WHEREAS' thj-s Agreement provides for certain services t.o be provided by PETRICHOR to the COUNTY in exchange for fees as set forth below and the mutual- benefits to be derived. INTERLOCAL COOPERATION AGREEMENT FOR TELECOMMUNICATION SERVICES (KITTITAS COUNTY) _L_ NOW, 1. THEREFORE, TT IS HEREBY AGREED AS FOLLOWS: MANAGEMENT SERVICES: a. Petrichor shal-l provide the f ollowing services for t,he Project (collectively, the "services',) : (1) Desi-gn process overview and recommendations,. (2) Assistance with permitting, pole contact agreements, and franchJ_se acquisition; (3) Invitation to bid documents and bid process management; (4) Review and oversight of the design and construction of the Facilities; (5) Mapping of the Project as-buil_t plans; (6) Guidance and advice regarding publj_c outreach, as needed; (1) An annuaf average of nine (9) on-site meetings or visits by PETRTCHOR managers; and b. Project Expenses. All project expenses shall be paid by the COUNTY. AlI reasonabl-e travel- expenses incurred by Petrichor related to its Project Services will- be reimbursed by the COUNTY. 2. FEES. a. Compensation. The COUNTY will pay PETRICHOR three percent (3%) (the "Fee") of the Public works Board Grant (the "Grant") the couNTy received for the Project in exchange for the Services set forth herein in two (2) equal payments of $50.084.I9. Petrichor shall invoice the INTERLOCAL COOPERAT]ON AGREEMENT FOR TELECOMMUNICATION SERVICES (KITTITAS COUNTY) -2_ COUNTY 1n November Petrichor's invoices, days. 2022 and November 2023 and,upon receipt. of within thirty (30)the COUNTY shafl make payment b. No Benefits. The COUNTy wilf not provide any employee benefits to Petrichor, Petrichor's employees or any independent cont.ractor retained by Petrichor. Petrichor wil-l- be so1ely responsible for obtaining Petrichor's own benefits, including but not fimited to insurance, medical reimbursement, and retirement p1ans, and shal_l maintain all- workers' compensatj-on j-nsurance required under applicable l-aw with respect to the act j-vit.ies of its employees hereunder. 3. TERM. a. Term of Agreement The term of this Agreement shafl_ begin March r, 2022 and terminat,e upon completion of the services to be provided, but no later than the 31st day of December 2024 (the ..Term,,), unless terminated earlier pursuant to the terms of this Agreement. b. Termination: i. For Non-Performance.This Agreement may be terminat.ed by either party for non-performance by the other party upon sixty (60) days written notice to the non-performing party. The non-performing party shall- have the opportunity to cure the non-performance wit.hin that sixty (60) day period. rf this Agreement j-s terminated for non- performance. then within thirty (30) days after termj-nation the couNTy shall pay Petrichor a pro-rated amount of the Fee based on the number of months the Agreement was in effect compared to the Term. The same INTERLOCAL COOPERATION AGREEMENT FOR TELECOMMUN]CATION SERVICES (KITTITAS COUNTY) -3- being the month in which the not.ice of non-performance was given shall be deemed to be the mont.h in which the Agreement was terminated. For the purposes of illustration, if this Agreement is terminated in the sixth month of a 24-month term (i.e. t,he AgreemenL was in effect for 252 of the Term), the COUNTY shall pay Petrichor according to the following formula (Total Grant Amount X Fee Percentage) X (252) : Termj-nation Fee. ii. Without Cause This Agreement may be terminated by either part.y, without cause, by the terminating party giving sixty (60) days written notice to the other party. wit.hin thirt.y (30) days after termination the COUNTY shall pay PETRICHOR a termj-nation fee cafcul-ated by the same formula as used i-n Subsection (i) above. 4. OWNERSHIP.Pet.richor shafl acquire no ownership or property interest in t.he real propert.y associated wit.h the Project or the tangible property associated with the Project, including the Project lines or facilities. q,REPRESENTATION,WARRANTIES, AND COVENANTS. Petrichor represents, warrants, and covenants to COUNTY as follows: (a) Petrichor has complied with all applicable laws, rules and regulations in entering into this Agreement and completing its Services, including its statutory obligations under RCW 39.34. 6. MUTUAL INDEMNIFICATION To the extent permit.t.ed by law, each party hereby agrees to indemnify the other, their respective managers, members, officers, commissioners and employees from and against, and assume liability for any injury, loss, damage to, or claim by any third INTERLOCAL COOPERAT]ON AGREEMENT FOR TELECOMMUNICATION SERVICES (K]TTITAS COUNTY) -4- part.y for personal injury or damage to tangible property (collect.ively the "Claims") to the extent and in proportion that Claims arise from the negligent, grossly negligent or willful act. of the indemnifyj-ng party, its officers, employees. servants, affiliates, aqent.s or contractors but not from any Claim arising from another l-icensee. 6.7 LIMITED WAIVER OF IMMUNITY UNDER WASHINGTON STATE INDUSTRfAL INSRUANCE ACT, TTTLE 51 RCW AND OTHER SIMILAR INDUSTRIAI INSRUANCE SCHEMES. FoT purposes of the foregoing indemniflcation provision, and only to the extent of cl-aims against a party by an employee of t.he other party, each party specifically waives any j-mmunity it may be granted under the Washington State Industrial- Insurance Act, Tit.le 51 RCW' The United States Longshore and Harbor Workers compensatj-on Act, 33 usc s901-950 r or any ot.her simil-ar workers' compensation schemes. The indemnification obligation under this Agreement shall- not be limited in any way by any rimitation on the amount or type of damages, compensation or benefits payable to or for any third party under workers' compensat.ion acLs, disability benefit acts, or other employee benefit acts. The foregoing provision was specifically negotiated and agreed upon by the partles hereto. 1. LIMITATION ON DAMAGES Notwithstanding any provisions of this Agreement to the contrary, neither party shal-l- be l-iabl-e to the other party or any third part.y for any special, incidental, indirect, puni-tive, or consequential costs, liabilities, ox damages, whether foreseeable or not, arising out of, or in connection with, such partyt s INTERLOCAL COOPERATION AGREEMENT FOR TELECOMMUNICAT]ON SERV]CES (KTTTTTAS COUNTY) -5- performance of its obligations under this Agreement. rn part consideration for PETRfcHoR's performance under this Agreement, the damages for breach of this Agreement by PETRICHOR shal-f be limited to the total Fee (exclusive of payments to subcontractors or subconsultants) paid by the COUNTY to PETRICHOR. It is understood that t,his represents the al-focation of economic loss for breach of this Agreement and j-s not merely a recitaf but a negotiated part of the economics of this Agreement. 8. NEUTRAL AUTHORSHTP Each of the provisions of this Agreement has been reviewed and negotiated and represents the combj-ned. work product of alf parties hereto. No presumption or other rufes of const.ruction which would interpret the provisions of this Agreement in favor of or against. the party preparing the same shall be applicable in connectlon with the construction or interpretation of any of the provisions of t,his Agreement. 9. ATTORNEY FEES. The prevailing party in any action concerning this Agreement shafl be awarded their reasonable attorney fees and costs. 10. GOVERNTNG LAW, JUSIDICTION , AND VENUE This Agreement, and the right of the parties hereto, shall be governed by and construed in accordance with the l-aws of the State of Washington, and the parties agree that in any such action, jurisdiction and venue shall lie solely and exclusively in Whitman County, Washington and not in the federal court.s of any jurisdiction. INTERLOCAL COOPERATION AGREEMENT FOR TELECOMMUN]CATION SERVICES (KITT]TAS COUNTY) _6_ 11. TTME OF PERFORMANCE. Time is specj-fically decl-ared to be of t.he essence of this Agreement and of al-l acts required to be done and performed by ]-2. NO the parties hereto. THIRD-PARTY BENEFICIARIES. There are no t.hird-party beneficiaries to t,his Agreement. 13. COUNTERPARTS AND AUTHORITY This Agreement may be signed in counterparts, Each person signing below represents and warrants that they have complete authority to execut.e this Agreement. I4 ASSIGNMENT. This Agreement cannot be assigned, transferred or any portion subcontracted by either Party hereto without the prior written consent of the other Party, which shal-l- not unreasonably be withheld. 15. WAIVER. The consent by COUNTY or PETRICHOR to any act by the other shafl- not be deemed to imply consent or to constitute the waiver of a breach of any provision hereof or continuing waiver of any subsequent breach of the same or any ot.her provision, nor shall any custom or practice which may arise between the parties in the administrat.ion of any parL of the provisions hereof be construed to waive or lessen the right of a Party to insist upon the performance by the other Party in strict accordance with the provisions hereof. 15. NOTICES.Except as may ot.herwise be provided herein, any notices' except servj-ce of process and notice of emergency whj-ch may be given personally, t.elephonically, by e-mail- or facsimile, shall be effective if personally served upon the other party or if mail-ed by INTERLOCAL COOPERAT]ON AGREEMENT FOR TELECOMMUNICATION SERVICES (KITTITAS COUNTY) _1_ registered or certified maj-l, return recei-pt. request.ed, to the following addresses: If to COUNTY: Klttitas County Auditor 205 West, 5th Avenue, Suite 105 Ellensburg, WA 98926 ff to Petrichor: Kara Riebold Port of lrilhitman County 302 North Mil_l Street Colfax, WA 99111 Notices mail-ed shalf be deemed given on the date of mailing. The parties shall notify each other in writing of any change of address. L] . NO THIRD-PARTY RIGHTS. This Agreement shall not be construed t.o create rights in or grant remedj-es to any third Party as a beneficiary of this Agreement. 18. TAXES. Each Party shall be responsible for its own federal, state and local t.axesf assessments, fees, surcharges and other financial- impositions, if any. 19. RELATIONSHIP OF THE PARTIES This Agreement shal-l not be interpreted or construed to create an association, joint venture or partnership between the Parties, or to impose any partnership obligations or liability upon either Party. No agent, employee or representative of the COUNTY shall be deemed to be an agent, employee, or representat.ive of PETRTcHoR for any purpose. No agent, employee, or representative for TNTERLOCAL COOPERATION AGREEMENT FOR TELECOMMUNICATION SERVICES (KITT]TAS COUNTY) -8- PETRICHOR shalf be deemed to be an agent, employee or representative of the COUNTY for any purpose. 20. FILING. This Agreement shaff be fil-ed with the County Auditor otr alternatively, fist,ed by subject in the Parties' respective websites or other el-ectronically retrievable public source. 27. AMENDMENT. No amendment or modification of this Agreement or condition hereof shall be valid or effective unfess in writ.ing and execut,ed by COUNTY and Petrichor. 22. ENTIRE AGREEMENT. The enti-re agreement between the parties hereto is contained in this Agreement (including the predicate clauses), and this Agreement supersedes al-f their previous understandings and agreements, written and oraf, with respect Lo this transaction. This Agreement may be amended only by written inst.rument executed by t.he parties af t.er the date hereof . IN WITNESS WHEREOF, the parties enter into this Agreement the l"t day of March, 2022, and the undersigned represent that he or she is authorized to sign this Agreement. PETRICHOR BROADBAND, Washington interfocal liability company: A, LLC, a limited KITTITAS COUNTY B By P of tman ty, Manager Its:ard of County commissioners r_J/WVCll 15, gAaa- INTERLOCAL COOPERAT]ON AGREEMENT FOR TELECOMMUN]CATION SERVICES (KITTITAS COUNTY) _9-