HomeMy WebLinkAboutWave Business Solutions, LLCINTERIM ASSET SWAP AGREEMENT
This INTERIM ASSET SWAP AGREEMENT (the "Agreement") is entered into as of this _
day of December, 2016 (the "Effective Date"), by and between WAVE BUSINESS SOLUTIONS, LLC,
a Washington limited liability company, on behalf of itself and its Affiliates (collectively, "Wave"), and
the CITY OF AUBURN, a Washington municipal corporation (the "City"). Each of Wave and the City
may be referred to in this Agreement as a "Party," and collectively as the "Parties." With respect to
either Party, the term "Affiliate" shall mean any person who directly or indirectly controls, is controlled
by, or is under common control with that Party.
RECITALS
A. Each of the Parties owns, operates, or otherwise has rights in and to a communication
system involving communications conduit and/or fiber optic cable as well as related infrastructure and
equipment.
B. Wave owns certain dark fiber optic strands that the City would like to use (the "Dark
Fibers").
C. The City owns certain communications conduit that Wave would like to use (the
"Conduit"). The Conduit is not currently in use by the City for its current operations.
D. While the Parties anticipate finalizing a larger asset swap agreement within the next year,
each Party has an immediate need for the assets being swapped pursuant to this Agreement. Accordingly,
the parties are entering into this Agreement on an interim basis with the understanding that this
Agreement will be replaced and superseded by a more comprehensive asset swap agreement to be signed
in the future.
E. The Parties now desire to swap the right to use the Dark Fibers for the right to use the
Conduit, as more fully described and pursuant to the terms and conditions set forth in this Agreement.
Because the value of the rights being swapped pursuant to this Agreement are substantially of equal
value, there is no monetary component to this Agreement.
F. Nothing in this Agreement is intended to impact, alter or otherwise amend in any manner
the provisions of Franchise Agreement No. 14-51, granted by City of Auburn Ordinance No. 6555 on
March 16, 2015, to Wave's Affiliate Astound Broadband, LLC.
AGREEMENT
Now, therefore, 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: DARK FIBERS PROVIDED BY WAVE
1.1 Description of Dark Fibers. As used in this Agreement, the term "Dark Fibers" shall
mean the following six (6) segments of dark fiber (each, a "Segment," and, together, the "Segments"),
that connect the end points specified below (each, an "End Point"), at a loss budget not to exceed the
..maximum loss budget specified below:
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Wave Business Solutions, LLC / City of Auburn 12/14/2016
Segment
A Location
Z Location
Description
and Number of
Maximum
Identifier
End Point
End Point
Fibers
Loss Budget
Segment 1
Underground vault at:
Underground vault at:
twenty-four
Intersection of:
Intersection of:
(24) strands of
7 dB @
SE 320ti' Street & 104`''
Lea Hill Road SE & 105`'
single mode
1550 nm
Avenue SE
PI SE
dark fiber
Segment 2
Underground vault at:
Aerial splice enclosure at:
twenty-four
Intersection of:
Intersection of:
(24) strands of
7 dB @
Lea Hill Road SE & 105`' PI
SE 312t' St & 124`''
single mode
1550 nm
SE
Avenue SE
dark fiber
Segment 3
Aerial splice enclosure at:
Underground vault at:
twenty-four
Intersection of:
124`'' Avenue SE &
(24) strands of
7 dB @
SE 312`'' St & 124`h Avenue
Pedestrian Traffic Signal
single mode
1550 nm
SE
@ Lea Hill Elementary
dark fiber
School
Segment 4
Underground vault at:
Underground vault at:
twenty-four
124''' Avenue SE &
Intersection of:
(24) strands of
7 dB @
Pedestrian Traffic Signal @
SE 304`h St & 124`''
single mode
1550 nm
Lea Hill Elementary School
Avenue SE
dark fiber
Segment 5
Underground vault at:
Aerial splice enclosure at:
twenty-four
Intersection of:
124`h Avenue SE &
(24) strands of
7 dB @
�, �,
SE 304 St & 124 Avenue
Pedestrian Traffic Signal
single mode
1550 nm
SE
@ Mountainview High
dark fiber
School
Segment 6
Aerial splice enclosure at:
Underground vault at:
twenty-four
124`h Avenue SE &
Intersection of:
(24) strands of
7 dB @
Pedestrian Traffic Signal @
SE 280 St & 124`h
single mode
1550 nm
Mountainview High School
Avenue SE
dark fiber
The City shall have the right to access the Dark Fibers at the End Points for each Segment specified
above.
1.2 Illustrative Map. A map depicting the approximate location and route of the Dark Fibers
is depicted on Exhibit A to this Agreement. The route depicted on Exhibit A is for illustrative purposes
only, for the convenience of the Parties. Notwithstanding the depiction on Exhibit A, Wave shall at all
times have full and complete control and responsibility for determining the routing of the Dark Fibers,
which may be changed at any time in Wave's reasonable discretion, so long as: (i) the Dark Fibers
remain available for use by the City; (ii) the End Points of the Dark Fibers are located and accessible by
the City at the locations described in the table above, and (iii) the maximum loss budget for the Dark
Fibers does not exceed the maximum loss budget set forth in the table above.
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Wave Business Solutions, LLC / City of Auburn 12/14/2016
1.3 Delivery Timeline. As of the Effective Date of this Agreement, the City has not yet
completed construction of the infrastructure the City needs in order to accept and use any of the
Segments. As the City completes such infrastructure, the City shall deliver written notice to Wave
specifying which Segment(s) the City is then ready to accept from Wave. The City's notice shall include
the technical information necessary in order for Wave to perform the hand off of the Dark Fiber at the
End Points at issue. Within ten (10) days of receiving written notice from the City that the City is ready
to accept a particular Segment, Wave shall deliver the Segment to the City at the applicable End Points
and perform the testing described in Section 1.4 below.
1.4 Joint Testing. When Wave delivers a Segment to the City, Wave shall test the Dark
Fibers comprising the Segment to verify that they are performing correctly. The City shall have the right
to be present for such testing (the "Joint Testing"). Wave shall provide the City with at least three (3)
business days' advance notice of the date and time on which Wave intends to perform the Joint Testing of
the Dark Fibers in any Segment (the "Joint Testing Notice"). If the City informs Wave within said time
period that the City desires to participate in the Joint Testing, the Parties shall agree on a mutually
convenient date and time for same. If the City fails to timely respond to Wave's Joint Testing Notice, the
City shall be deemed to have elected not to participate in Joint Testing of the Dark Fibers in the Segment
at issue and Wave may proceed with testing those Dark Fibers by itself.
1.5 Grant of License. Beginning on the delivery date of each Segment and continuing
through the Term of this Agreement, Wave grants to the City, and the City accepts from Wave, an
exclusive license to use the Dark Fibers contained in the Segment for the permitted use described in
Section 1.6 below, by accessing same at the End Points specified in Section 1.1 above. The City is not
permitted to access the Dark Fibers at any location other than the End Points. The license does not
include any right on the part of the City to: (i) own, control, possess, encumber, repair or maintain, or
cause or permit any lien to attach to the Dark Fibers, any Wave Equipment, or any other property of
Wave; or (ii) use or access any of the other fiber optic strands that may be in the same cable bundle as the
Dark Fibers.
1.6 Permitted Use. Except for the restrictions set forth in this Section 1.6, the City may use
the Dark Fibers for any lawful purpose. The City shall not grant to any non-governmental third party the
right to use any of the Dark Fibers, regardless of whether such grant were to take the form of a license,
sublicense, lease, sublease, indefeasible right of use, or any other form. Nor shall the City use the Dark
Fibers for commercial purposes that are competitive with Wave's business (e.g., use the Dark Fibers to
sell Internet access services, point-to-point data transport services, VoIP services, etc., to third parties
within Wave's service area).
1.7 Maintenance and Repair. Wave shall be responsible for the maintenance and repair of
the Dark Fibers as described on Exhibit B, provided, that if any maintenance or repair is required due to
fault of City, then City shall either perform the work itself consistent with the remainder of this
Section 1.7, or else reimburse Wave for the costs of performing the maintenance or repair work.
1.8 Relocation. Should Wave decide to relocate the Dark Fibers during the Term of this
Agreement, Wave shall do so in a manner that minimizes the interference to the City's use of the Dark
Fibers. All costs of relocating the Dark Fibers shall be borne by Wave. The City shall bear its costs
incurred in relocating its facilities connected to the Dark Fibers.
1.9 Performance. Once the Dark Fibers have been delivered to the City, Wave shall use
commercially reasonable efforts in keeping with normal industry standards to ensure that the Dark Fibers
are available to the City twenty-four (24) hours per day, seven (7) days per week, consistent with
Exhibit B. The City understands it is possible that the Dark Fibers may be unavailable from time to time
INTERIM ASSET SWAP AGREEMENT pg. 3
Wave Business Solutions, LLC / City of Auburn 12/14/2016
b
either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond
Wave's reasonable control. Temporary service interruptions for such reasons, as well as all service
interruptions caused by the City, or by Force Majeure Events (as that term is defined in Section 7 below),
will not constitute failures by Wave to perform its obligations under this Agreement.
ARTICLE 2: CONDUIT PROVIDED BY CITY
2.1 Description of Conduit. As used in this Agreement, the term "Conduit" shall mean the
following communications conduit, that connects the end points specified below (each, an "End Point"):
A Location
End Point
Z Location
End Point
Description of
Conduit
Approximate
Distance
Intersection of:
Intersection of:
suitable for
Dogwood Street SE
Hemlock Street SE
accommodating a
&
&
standard fiber optic
1,447 feet
Auburn Way S. (aka Hwy 164)
Auburn Way S. (aka Hwy 164)
cable containing at
Auburn, WA 98002
Auburn, WA 98092
least 144 strand
count
Except in the event of repairs, as described in Section 2.6 below, Wave shall have the right to access the
Conduit at the End Points specified above and at each City vault that Wave cable passes through.
2.2 Illustrative Map. A map depicting the approximate location and route of the Conduit is
depicted on Exhibit C to this Agreement.
2.3 Delivery Timeline. The City shall deliver the Conduit to the Wave within ten (10)
business days from the Effective Date of this Agreement.
2.4 Grant of License. Beginning on the delivery date of the Conduit and continuing through
the Term of this Agreement, the City grants to Wave, and Wave accepts from the City, a non-exclusive
license to use the Conduit for the permitted use described in Section 2.5 below, by accessing same at the
End Points specified in Section 2.1 above. Except in the event of maintenance, as described in
Section 2.6 below, Wave is not permitted to access the Conduit at any location other than the End Points
and existing City vaults that Wave cable passes through. The license does not include any right on the
part of Wave to: (i) own, control, possess, encumber, repair or maintain, or cause or permit any lien to
attach to the Conduit, any City Equipment, or any other property of the City; or (ii) use or access any of
the other innerducts or communications infrastructure that may be installed the same location as the
Conduit. While Wave's license to use the Conduit is non-exclusive, and thus use of the Conduit may be
shared with other parties, Wave shall at all times have the right to use at least enough space within the
Conduit to accommodate one (1) 288 count fiber optic cable.
2.5 Permitted Use. Wave may use the Conduit for any lawful purpose.
2.6 Maintenance and Repair. The City shall be responsible for the maintenance and repair of
the Conduit; provided, that if any maintenance or repair is required due to fault of Wave, then Wave shall
either perform the work in accordance with all city code and permitting requirements consistent with the
remainder of this Section 2.6, or else reimburse the City for the costs of performing the maintenance or
repair work. In the event that all or any portion of the Conduit becomes damaged, Wave shall have the
right, but not the obligation, to repair same. Should Wave elect to repair all or any portion of the Conduit
pursuant to this Section 2.6, the cost of such repairs shall be borne by Wave; except to the extent that the
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Wave Business Solutions, LLC / City of Auburn 12/14/2016
repair is necessitated due to the gross negligence or willful misconduct of the City, in which case the City
shall reimburse Wave the reasonable costs incurred by Wave in performing the repairs.
2.7 Relocation. Should the City decide to relocate the Conduit during the Term of this
Agreement, the City shall do so in a manner that minimizes the interference to Wave's use of the Conduit.
All costs of relocating the Conduit shall be borne by the City. Wave shall bear its costs incurred in
relocating its facilities installed within the Conduit.
ARTICLE 3: EQUIPMENT
3.1 Definition of Equipment. "Equipment" means network components including, but not
limited to, any gateway or edge electronic device, antenna, node, concentrator, bridge, receiver,
transmitter, transceiver, router, switch, hub or communications lines/cables, and software.
3.2 Wave Equipment. Any Equipment provided by Wave in connection with the provision of
the Dark Fiber to the City or the use of the Conduit by Wave shall be referred to as the "Wave
Equipment." Throughout the Term of this Agreement, the Wave Equipment shall remain the property of
Wave and Wave shall be responsible for all maintenance and repair of the Wave Equipment. Neither the
City nor any third party acting under the City's authority will relocate, modify, tamper with, attempt to
repair or otherwise interfere with the Wave Equipment. Any unauthorized connection or other tampering
with the Wave Equipment, the Dark Fibers, the fiber optic cable bundle of which the Dark Fibers are a
part, or any other portion of Wave's network system or its components by the City will constitute a
breach of this Agreement.
3.3 Cily Equipment. Any Equipment provided by the City in connection with receiving and
using the Dark Fiber or providing the Conduit and vaults to Wave shall be referred to as the "City
Equipment." Throughout the Term of this Agreement, the City Equipment shall remain the property of
the City and the City shall be responsible for all maintenance and repair of the City Equipment. Neither
Wave nor any third party acting under Wave's authority will relocate, modify, tamper with, attempt to
repair or otherwise interfere with the City Equipment. Any unauthorized connection or other tampering
with the City Equipment, the Conduit, or any other portion of the City's network system or its
components by Wave will constitute a breach of this Agreement.
ARTICLE 4: TERM OF AGREEMENT
The term of this Agreement (the "Term") shall commence on the Effective Date set forth in the
preamble and shall continue until the earlier to occur of the following (the "Expiration Date"): (i) the
date on which a new, more comprehensive asset swap agreement that replaces this Agreement is fully
executed by the Parties; or (ii) the first (V) anniversary of the Effective Date; or (iii) an extension to this
agreement is made that is fully executed by the parties..
ARTICLE 5: DEFAULT
5.1 Definition. A "Default" shall be deemed to have occurred under this Agreement under
the following circumstances:
(a) in the case of a failure to pay any amount when due under this Agreement, a Party fails to
pay such amount within fifteen (15) days after written notice from the other Party
specifying such breach; or
(b) in the case of any other material breach of this Agreement, a Party fails to cure such
breach within thirty (30) days after written notice from the other Party specifying such
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Wave Business Solutions, LLC / City of Auburn 12/14/2016
breach, provided that if the breach is of a nature that cannot be cured within said thirty
(30) day time period, a Default shall not have occurred so long as the breaching Party has
commenced cure within said thirty (30) day time period and thereafter diligently pursues
cure to completion.
5.2 Remedies. In the event of any Default hereunder, the non -Defaulting Party may do any
one or more of the following: (i) take such actions as it deems reasonably necessary to correct the
Default; (ii) pursue any other remedies available to it under this Agreement; and/or (iii) initiate the
dispute resolution process contained in Article 12. The Parties intend for a Party's good faith
participation in the dispute resolution process described in Article 12 to constitute a necessary pre-
requisite to the commencement by such Party of any legal action regarding this Agreement.
5.3 No Waiver. A waiver by either Party at any time of any of its rights regarding a
particular breach or Default of the other Party under this Agreement shall not be deemed a permanent
waiver of such rights, nor shall any such waiver be deemed a waiver of any subsequent breach or Default.
ARTICLE 6: ASSIGNMENT
Neither Party shall assign its rights under this Agreement without the prior written consent of the
other Party, which will not be unreasonably withheld, delayed or conditioned; provided, however, that
Wave may, without obtaining the City's consent, assign its interest in and to this Agreement to: (i) any
entity acquiring Wave, whether through merger or through purchase of substantially all the assets of
Wave; or (ii) an Affiliate of Wave.
ARTICLE 7: FORCE MAJEURE
Neither Party shall be liable for any failure of performance under this Agreement due to causes
beyond such Party's reasonable control including, but not limited to, acts of God, fire, explosion,
vandalism, cable cut, flood, storm, or other similar natural disaster, terrorist acts, insurrection, riot,
national emergency, war or other catastrophe, inability to obtain equipment, material or other supplies due
to strike, lockout or work stoppage, or any law, order, regulation, direction, action or request of any civil
or military governmental authority (each, a "Force Majeure Event").
ARTICLE 8: CONFIDENTIALITY; PUBLIC DISCLOSURE LAWS
8.1 Confidentiality. "Confidential Information" means the specific terms of this
Agreement and any information, data or other materials provided by one Party to the other Party under or
in connection with this Agreement that is (i) clearly and conspicuously marked as "confidential" or with a
similar designation; (ii) identified by the disclosing Party as confidential or proprietary before, during or
promptly after presentation or communication; or (iii) disclosed in a manner which the disclosing Party
reasonably communicated, or the receiving Party should reasonably have understood under the
circumstances, that the disclosure should be treated as confidential, whether or not the specific
designation "confidential" or any similar designation is used. Information shall not be deemed
Confidential Information if (a) it is independently developed by or for the receiving Party, (b) it is
lawfully received by the receiving Party free of any obligation to keep it confidential, (c) it becomes
generally available to the public other than by breach of this Agreement, or (d) it was known to the
receiving Party prior to the disclosing Party's disclosure of same. To the extent permitted by law, the
receiving Party, including its officers, directors, employees, partners, affiliates, agents and
representatives, shall hold all Confidential Information of the disclosing Party in confidence.
8.2 Public Records Act. Notwithstanding anything to the contrary contained elsewhere in
this Article 8, the Parties understand and acknowledge that the City is a governmental entity, and that
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Wave Business Solutions, LLC / City of Auburn 12/14/2016
Washington law limits the ability of the City to shield from public disclosure any information given to the
City. Accordingly, the Parties agree to work together to avoid disclosures to the City by Wave of
confidential information which would result in economic loss or damage to Wave if such information
were to be disclosed to third persons by the City pursuant to a request submitted under the Public Records
Act, chapter 42.56 RCW, or other similar public disclosure law. In the event that the City receives a
request pursuant to the Public Records Act (or other similar law) to disclose information identified by
Wave in writing as confidential, the City's sole obligations to Wave shall be: (i) to promptly notify
Wave; and (ii) to refrain from disclosing such records for a period of up to ten (10) business days to allow
Wave an opportunity to seek legal protection against disclosure from a court of competent jurisdiction.
The City will not be required to withhold requested records beyond the ten (10) business days unless it
may do so based on good faith reliance upon an exception to disclosure under the Public Records Act, or
unless the City is ordered to withhold disclosure by the order of a court having competent jurisdiction.
The City may, but shall not be required, to join in any legal proceedings relating to the requested
disclosure unless required to do so by the court. In the event that Wave initiates legal proceedings, or the
City initiates legal proceedings or withholds requested records at Wave's request, Wave shall indemnify
and hold the City harmless from and against all costs, attorneys' fees, expenses, liabilities, damages or
other liabilities the City may incur due to the legal proceedings initiated at and/or the City's withholding
of records at Wave's request. The City shall not be liable to Wave for any loss, cost or expense relating
to the disclosure of requested records if Wave fails to obtain legal protection against disclosure and the
City releases the records in good faith.
ARTICLE 9: INSURANCE
9.1 Required Insurance. Beginning on the Effective Date, and continuing through the
expiration of the Term, each Party shall procure and maintain in force, at its own expense, insurance
coverage in amounts that a reasonably prudent business person would maintain considering the
obligations of the Parties hereunder, but in no event less than coverage of the following types and limits:
(a) Workers' compensation as required by applicable law(s);
(b) Employer's liability with minimum limits of $1,000,000 each accident;
(c) Commercial General Liability including coverage for (i) premises/operations,
(ii) independent contractors, (iii) products/completed operations, (iv) personal
injury, (v) contractual liability, and (vi) explosion, collapse and underground
hazards, with combined single limit of not less than $1,000,000 each occurrence
or its equivalent;
(d) Automobile liability with minimum limits of $1,000,000 each accident; and
(e) Excess or Umbrella Liability, applicable to items (b), (c) and (d), with minimum
limits of $5,000,000, per occurrence.
9.2 Insurance Providers. Each Party shall maintain the required insurance coverage with
insurers licensed to conduct business in the applicable jurisdiction(s) and having an AM Best Rating of
A — NII, or equivalent from another recognized rating agency, and each Party shall, upon request,
provide the other Party with an insurance certificate confirming compliance with the requirements of this
Article.
In lieu of the insurance requirements as stated above in Section 9.2. City represents and warrants to Wave
that (a) City is a member of the Washington Cities Insurance Authority (WCIA), which is a self-insured
INTERIM ASSET SWAP AGREEMENT pg. 7
Wave Business Solutions, LLC / City of Auburn 12/14/2016
pool of 145 municipal corporations in the State of Washington, and (b) WCIA has at least $5,000,000 per
occurrence of liability coverage that is applicable in the event an accident occurs that is deemed attributed
to the negligence of a member.
9.3 Failure to Carry. In the event either Party fails to maintain the required insurance
coverage and, a claim is made or suffered, such Party shall defend, indemnify and hold harmless the other
Party from any and all claims for which the required insurance would have provided coverage.
ARTICLE 10: THIRD -PARTY INDEMNIFICATION
10.1 Third -Party Indemnification by Wave. Wave hereby agrees to indemnify, defend and
hold harmless the City, its elected officials, officers, managers, employees and agents (the "City
Indemnified Persons"), from and against any and all third -party claims, lawsuits, actions, damages, costs
or expenses suffered by the City Indemnified Persons due to or arising out of: (i) any injuries or damage
to persons or property to the extent the same are caused by the negligent acts or omissions of Wave in the
exercise of its rights or performance of its obligations under this Agreement; (ii) Wave's use of the
Conduit and End Points, or (iii) any breach by Wave of its obligations under this Agreement.
10.2 Third -Party Indemnification by the City. The City hereby agrees to indemnify, defend
and hold harmless Wave, its Affiliates, and their members, managers, officers, employees and agents (the
"Wave Indemnified Persons"), from and against any and all third -party claims, lawsuits, actions,
damages, costs or expenses suffered by the Wave Indemnified Persons due to or arising out of. (i) any
injuries or damage to persons or property to the extent the same are caused by the negligent acts or
omissions of the City in the exercise of its rights or performance of its obligations under this Agreement;
(ii) the City's use of the Dark Fiber; or (iii) any breach by the City of its obligations under this
Agreement.
10.3 Procedure. Should any third -party claim arise under this Article 9, the indemnified party
shall promptly notify the indemnifying party of same in writing, and shall take such action as may be
necessary to avoid default or other adverse consequences in connection with such claim. The
indemnifying party shall have the right to select counsel and to control the defense and settlement of such
claim; provided, however, that the indemnified party shall be entitled to participate in the defense of such
claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that
the indemnifying party shall not take any action in defense or settlement of the claim that would
negatively impact the indemnified party without the consent of the indemnified party. The indemnified
party shall reasonably cooperate with the indemnifying party in the defense of the third -party claim,
including making its files and personnel reasonably available to the indemnifying party, all at the cost and
expense of the indemnifying party.
ARTICLE 11: NO SPECIAL DAMAGES
EXCEPT FOR (i) EACH PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 8 ABOVE, (ii) EACH PARTY'S THIRD -PARTY INDEMNIFICATION OBLIGATIONS
UNDER SECTION 10 ABOVE, AND (iii) CLAIMS ARISING FROM A PARTY'S INTENTIONAL
MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES WHATSOEVER, ARISING OUT OF OR INCURRED IN CONNECTION WITH A
PARTY'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT,
INCLUDING, BY WAY OF EXAMPLE AND NOT BY WAY OF LIMITATION, LOST PROFITS,
LOST REVENUE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF
BUSINESS OPPORTUNITY, LOSS OF DATA OR COST OF PURCHASING REPLACEMENT
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Wave Business Solutions, LLC / City of Auburn 12/14/2016
SERVICES, EVEN IF THE OTHER PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH SPECIAL DAMAGES.
ARTICLE 12: DISPUTE RESOLUTION
12.1 Good Faith Negotiations. Except for actions seeking a temporary restraining order or
injunction, in the event any controversy, disagreement or dispute (each, a "Dispute") arises between
the Parties in connection with this Agreement, the Parties shall use good faith efforts to resolve the
Dispute through negotiation. In the event of a Dispute, either Party may give the other Party written
notice of the Dispute (each, a "Dispute Notice"). The Parties will meet and attempt to resolve the
Dispute within sixty (60) days of the date on which the Dispute Notice is delivered. All discussions
occurring and documents exchanged during negotiations under this Section are confidential and
inadmissible for any purpose in any legal proceeding involving the Parties; provided that evidence that is
otherwise admissible or discoverable shall not be rendered inadmissible or non -discoverable as a result of
its use in the negotiation process. If the Parties do not resolve the Dispute within the sixty (60) calendar
day period, either of the Parties may pursue any remedy available to it under this Agreement, at law or in
equity.
12.2 Governing Law. This Agreement and all matters arising out of this Agreement shall be
governed by the laws of the State of Washington. Each party waives, to the fullest extent permitted by
law, trial by jury of any disputes, claims or issues arising under the Agreement.
ARTICLE 13: REPRESENTATIONS OF THE PARTIES
Each Party represents and covenants to the other Party as follows: (i) the execution and delivery
of the Agreement and the performance of its obligations hereunder have been duly authorized; (ii) the
Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its
terms; (iii) it has the power and authority to grant the rights it purports to grant and perform the
obligations it undertakes to perform pursuant to this Agreement; (iv) to the best of its knowledge and
belief, it is in material compliance with all laws, rules and regulations and court and governmental orders
related to the operation of its business; and (v) it shall comply with all applicable laws and regulations
when exercising its rights and performing its obligations under the Agreement.
ARTICLE 14: NOTICES
Unless otherwise provided elsewhere in this Agreement, any notice to be given to either Party
under the Agreement will be in writing and directed to the addresses set forth below. Notices will be
deemed received (i) the next business day, when sent by reliable, commercial overnight courier;
(ii) three (3) business days after being sent by certified mail, postage prepaid and return receipt
requested; (iii) when actually received, if sent by email during the business hours of 9:00 a.m. to 5:00
p.m. (recipient's time). Notices received after 5:00 p.m. (recipient's time) will be effective the next
business day.
If to Provider:
Astound Broadband, LLC
401 Parkplace Center, Suite 500
Kirkland, WA 98033
ATTN: Steve Friedman
Email: stevef@wavebroadband.com
INTERIM ASSET SWAP AGREEMENT
Wave Business Solutions, LLC / City of Auburn
If to City:
City of Auburn
25 W Main St
Auburn, WA 98001
ATTN: Amber Price
Email: aprice@auburnwa.gov
Pg. 9
12/14/2016
With a Copy to:
WaveDivision Holdings, LLC
401 Parkplace Center, Suite 500
Kirkland, WA 98033
ATTN: Jim Penney
Email: jpenney@wavebroadband.com
With a Copy to:
City of Auburn
25 W Main St
Auburn, WA 98001
ATTN: Dani Daskam
Email: ddaskam@aubumwa.gov
Either Party may change its notice address by giving notice to the other party in accordance with this
Article.
ARTICLE 15: MISCELLANEOUS
15.1 Warranty of Authority. Each of the signatories hereto warrants and represents that he or
she has been duly authorized to execute this Agreement on behalf of the Party for whom he or she
purports to sign this Agreement, and that this Agreement is binding on such Party in accordance with its
terms.
15.2 Entire Agreement. This Agreement constitutes the entire agreement between the Parties
regarding the subject matter hereof, and supersedes any and all prior oral or written agreements between
the Parties regarding the subject matter contained herein. This Agreement may not be modified or
amended in any manner except by a written document signed by the Party against whom such
modification is sought to be enforced.
15.3 Interpretation. This Agreement and each of the terms and provisions of it are deemed to
have been explicitly negotiated by the Parties, and the language in all parts of this Agreement shall, in all
cases, be construed according to its fair meaning and not strictly for or against either of the Parties hereto.
The captions and headings in this Agreement are used only for convenience and are not intended to affect
the interpretation of the provisions of this Agreement. This Agreement shall be construed so that
wherever applicable the use of the singular number shall include the plural number, and vice versa, and
the use of any gender shall be applicable to all genders.
15.4 Severability. If any provision of this Agreement or the application thereof to any person
or circumstance shall, for any reason and to any extent, be found invalid or unenforceable, the remainder
of this Agreement and the application of that provision to other persons or circumstances shall not be
affected thereby, but shall instead continue in full force and effect, to the extent permitted by law.
15.5 No Waiver. A waiver by either Party at any time of any of its rights regarding a
particular breach or Default of one of the other Party under this Agreement shall not be deemed a
permanent waiver of such rights, nor shall any such waiver be deemed a waiver of any subsequent breach
or Default.
15.6 Survival. Those provisions of this Agreement that by their nature and import must
survive the expiration or earlier termination of this Agreement in order to be given their full force and
effect shall so survive.
15.7 No Third Party Beneficiaries. This Agreement is made and entered into for the sole
benefit of Wave and the City. No third party shall be deemed to have any rights under this Agreement;
there are no third party beneficiaries to this Agreement.
15.8 Legal Expenses. If any proceeding is brought by a Party to enforce or interpret any
term or provision of the Agreement, the substantially prevailing Party in such proceeding will be entitled
INTERIM ASSET SWAP AGREEMENT pg. 10
Wave Business Solutions, LLC / City of Auburn 12/14/2016
to recover, in addition to all other relief as set forth in the Agreement, that Party's reasonable attorneys'
and experts' fees and expenses.
15.9 Exhibits. The following Exhibits are attached to this Agreement and incorporated herein
by this reference:
EXHIBIT A - Map Showing Approximate Location of Dark Fiber
EXHIBIT B - Maintenance and Repair of Dark Fiber
EXHIBIT C - Map Showing Approximate Location of Conduit
15.10 Execution in Counterparts; Electronic Documents. This Agreement may be executed in
several counterparts, each of which shall constitute an original, and all of which shall constitute one
and the same instrument. Any executed documents sent to the other Parties in portable document
format (pdf) images via email will be considered the same as an original document.
IN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have duly executed this
Agreement as of the Effective Date set forth in the preamble above.
WAVE:
Wave Business Solutions, a Washington
limited liability company
By K4— 411�_
U6Name: a9-,
Title:
CITY:
City of Auburn, a Washington municipal
corporation
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Title-
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INTERIM ASSET SWAP AGREEMENT
Wave Business Solutions, LLC / City of Auburn
pg. 11
12/14/2016
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EXHIBIT B
Maintenance and Repair of Dark Fiber
1. ROUTINE MAINTENANCE
Routine maintenance and repair of the Dark Fibers shall be performed by or under the direction of
Wave, at Wave's reasonable discretion or at the City's reasonable request. Routine maintenance for
each Segment of the Dark Fibers shall commence upon the delivery date for such Segment. All common
systems within facilities along the cable for the Dark Fibers shall be maintained in accordance with
manufacturer's specifications, to include battery plants, generators, and HVAC units. Wave shall
perform appropriate and routine testing on the cable in which the Dark Fibers are located in accordance
with Wave's then current preventative maintenance procedures, which shall not substantially deviate
from standard industry practice. By way of example only, routine maintenance may include the
following types of activities:
(a) Patrol of Dark Fibers route on a regularly scheduled basis, which will be weekly
unless hyrail access is necessary, in which case, it will be quarterly;
(b) Maintenance of a "Call -Before -You -Dig" program and all required and related
cable locates;
(c) Maintenance of sign posts along the Dark Fibers route right-of-way with the
number of the local "Call -Before -You -Dig" organization;
(d) Assignment of fiber maintenance employees to locations along the Dark Fibers
route at intervals dependent upon terrain, accessibility, locate ticket volume,
etc. Wave shall decide the staffing of fiber maintenance employees for the
Dark Fibers; and
(e) Wave shall have qualified representatives on site any time Wave has
reasonable advance knowledge that another person or entity is engaging in
construction activities or otherwise excavating within five (5) feet of the Dark
Fibers.
2. EMERGENCY MAINTENANCE
"Emergency Maintenance" means Wave's efforts to correct conditions on the Wave network that are
likely to cause a material disruption to or outage in services provided by Wave and which require
immediate action. Emergency Maintenance may degrade the quality of the services provided to the
City, including possible outages. Wave may undertake Emergency Maintenance at any time Wave
deems necessary and will provide the City with notice of such Emergency Maintenance as soon as
commercially practicable under the circumstances. Emergency Maintenance and repair of the Dark
Fibers shall be performed by or under the direction of Wave. Wave's obligation to perform any
necessary Emergency Maintenance with respect to a particular Segment shall commence upon the
delivery date for such Segment. Emergency Maintenance may be commenced in response to any of the
following: (i) an alarm identification by Wave's NOC; (ii) notification by the City; or (iii) notification by
any third party of any failure, interruption or impairment in the operation of the cable in which the Dark
Exhibit B to INTERIM ASSET SWAP AGREEMENT pg. 13
Wave Business Solutions, LLC / City of Auburn 12/14/2016
Fibers are located, or any event imminently likely to cause the failure, interruption or impairment in the
operation of the Dark Fibers.
The City shall immediately report the need for Emergency Maintenance to Wave in accordance with
procedures promulgated by Wave from time to time. Wave will log the time of the City's report, verify
the problem and dispatch personnel immediately to take corrective action. Wave shall communicate
with the City during Emergency Maintenance in order to provide regular status updates during the
restoration process.
3. NETWORK OPERATIONS CENTER
"WAVE'S Network Operations Center" or "WAVE'S NOC" means WAVE'S network operations center
which is staffed 24x7x365 and can be reached at: 888-317-0488. Wave shall operate and maintain the
Wave NOC, capable of receiving alarms twenty-four (24) hours a day, seven (7) days a week. Wave's
maintenance employees shall be available for dispatch twenty-four (24) hours a day, seven (7) days a
week. Wave shall have its first maintenance employee at the site requiring Emergency Maintenance
activity within four (4) hours after the time Wave becomes aware of an event requiring Emergency
Maintenance, unless delayed by circumstances beyond the reasonable control of Wave. Wave shall
maintain a toll-free telephone number to contact personnel at the NOC. Wave's NOC personnel shall
dispatch maintenance and repair personnel to handle and repair problems detected in the Dark Fibers.
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Exhibit B to INTERIM ASSET SWAP AGREEMENT pg. 14
Wave Business Solutions, LLC / City of Auburn 12/14/2016
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