Seattle Agreement of Memorandum of Understanding Relating to Excess Capacity of High Speed Fiber Optic Communication SystemMemorandum of Understanding
Between the City of Edmonds and City of Seattle
Relating to
Excess Capacity of High Speed Fiber Optic
Communication System
This Memorandum of Understanding (the "Agreement"), dated as of
ZZ a,�Zs\k� , is entered into by The City of Seattle, acting by and through its
Department of Information Technology ("Seattle"), and The City of Edmonds, acting by
and through its Department of Information Services ("Edmonds"). Seattle and Edmonds
are individually referred to as "Party" or collectively as "Parties".
WHEREAS, Edmonds filed the declaratory judgment action In re Limited Tax
General Obligation Bonds of'the City of Edmonds, Snohomish County Superior Court
Cause No. 08-2-00023-9, seeking a decision declaring Edmonds had the authority to offer
the use of excess capacity on its high speed fiber optic communication system to private
individuals and non -governmental businesses and organizations; and
WHEREAS, on October 22, 2009, the Honorable Larry E. McKeeman granted
Edmonds summary judgment order declaring that the use of excess capacity on Edmonds
high speed fiber optic communication system by private individuals and non-
governmental businesses and organizations is a lawful public purpose under Edmonds
general home rule powers as a code city and under the express statutory authority to
engage in economic development programs under Revised Code of Washington
35.21.703, and declaring valid in all respects the limited -general obligation bonds
intended to be used to enhance Edmonds high speed fiber optic communication system
("Summary Judgment Order"); and
WHEREAS, the Summary Judgment Order is a valuable judicial decision for
other home rule and code cities in the State of Washington but is not binding judicial
precedent; and
WHEREAS, an appeal of the Summary Judgment Order with a subsequent
Washington Court of Appeals, Division 1 decision may create binding precedent for other
home rule and code cities in the State of Washington; and
WHEREAS, Seattle would prefer a valid and binding judicial precedent declaring
that home rule and code cities in the State of Washington have the necessary authority to
offer excess capacity from their high speed fiber optic communication system for use by
private individuals and non -governmental businesses and organizations; and
MOU Between Edmonds and Seattle 061010 (2).doc 1
WHEREAS, Seattle and Edmonds have agreed that an appeal of the Summary
Judgment Order is a cost efficient and convenient process for home rule and code cities
in Washington to obtain a judicial opinion authorizing the same.
NOW THEREFORE, Seattle and Edmonds agree as follows:
SECTION 1. Appeal of the Summary Judgment Order
A. Edmonds agrees to direct the designated public representative Rowena B.
Rohrbach ("Appellant") to appeal the Summary Judgment Order in a timely and
diligent manner ( "Appeal"). Edmonds shall support this action, including
rigorously defending the Appeal, and taking all necessary and convenient steps
toward obtaining a published decision from the Washington Court of Appeals that
affirms the trial court's ruling in the Summary Judgment Order.
B. Edmonds agrees to provide Seattle with timely, routine updates, information and
materials relating to the appeal, including advance notice of any key dates,
including filing deadlines and hearing dates. Edmonds shall direct its counsel to
provide the same to Seattle, if requested.
C. Edmonds agrees to pursue a motion to publish in the event that the Washington
Court of Appeals makes a favorable decision for home rule and code cities, but
decides this case in an unpublished decision.
SECTION 2. Seattle's limited reimbursement of certain Anneal costs.
A. Seattle understands and agrees that Edmonds is under no obligation or need to
appeal the Summary Judgment Order.
B. As consideration for Edmonds pursuing the Appeal, Seattle agrees to pay for
attorneys' fees and costs relating to defending the Summary Judgment Order on
appeal, up to a total amount of $50,000.00. Seattle acknowledges that Edmonds
has retained Will Patton of Foster Pepper PLLC as its counsel to defend to the
Appeal. Edmonds shall send itemized invoices to Seattle no more often than
monthly seeking payment for the relevant fees and costs to be paid by the Seattle.
Seattle will make payment within 30 days of receipt of the invoice.
SECTION 3. Edmonds to pa f�ppellant's Appeal costs.
Edmonds acknowledges that it bears the sole responsibility for all costs related to
the Appeal, and Seattle's commitment only applies to attorneys' fees and costs
relating to defending the Summary Judgment Order on Appeal. In no event shall
Seattle be responsible for any costs relating to the Appellant's arguments, costs
and attorneys' fees.
MOU Between Edmonds and Seattle 061010 (2).doc
SF,CTION 4. MISCELLANEOUS
A. Neither Party shall assign, encumber, dispose of or otherwise transfer this
Agreement or any right, interest or benefit under this Agreement without the prior
written consent of the other, which consent shall not be unreasonably denied,
delayed or withheld.
B. Unless otherwise provided elsewhere in this Agreement, any notice or other
communication related to this Agreement, shall be in writing and shall be deemed
to have been received if delivered in person, First Class United States Postal
Service mail, by facsimile or sent by acknowledged delivery to the following
addresses, as may be amended by the Parties by providing notice of such updated
addresses in accordance with this paragraph B:
If to Edmonds:
Mr. Carl Nelson
Chief Information Officer
First Floor City Hall
121 Fifth Avenue North
Edmonds, WA 98020
Telephone: 425-771-0219
Facsimile: 425-771-0265
Email: carin a.ci.edmonds.wa.us
If to Seattle:
Mr. William M. Schrier
Chief Technology Officer
Seattle Municipal Tower
PO Box 94709
Seattle, WA 98124-4709
Telephone: 206-684-0633
Facsimile: 206-684-0911
Email: bill.schrier(aseattle.gov
and to:
Ms. Rebecca Keith
Assistant City Attorney
PO 94769
Seattle, WA 98124-4769
Telephone: 206-684-8239
Facsimile: 206-684-8284
Email: Rebecca. keith(a),seattle.gov
C. This Agreement shall be governed by the laws of the state of Washington without
reference to its choice of law principles to the contrary. Both parties agree to the
exclusive venue for any dispute arising out of this Agreement to be the Superior
Court of King County Washington.
D. This Agreement may be amended or modified only by a writing signed by both
Parties.
E. Any failure or delay in the exercise of any right or remedy available to a Party
hereunder shall not be construed as a waiver or relinquishment of such right or
remedy.
MOU Between Edmonds and Seattle 061010 (2).doc 3
F. Any rule or principle of contractual construction that would otherwise require any
aspect of this Agreement to be interpreted against the Party primarily responsible
for its drafting will not be employed in the interpretation of this Agreement.
G. Neither Party shall be liable for any indirect, incidental, special, exemplary,
punitive, or consequential or pure financial damages arising in connection with
this Agreement, including without limitation, lost profits, even if such Party has
been advised of the possibility of such damages or such damages are otherwise
foreseeable.
H. This Agreement sets forth the entire agreement, and supersedes any and all prior
and contemporaneous agreements and understandings, written or oral, of the
Parties regarding the subject matter hereof.
THE CITY OF SEATTLE, CITY OF EDMONDS
DEPARTMENT OF INFORMATION
TECHNOLOGY
By'
Its:ti,
Date:
Sc" ., BERNHEIM, MAYOR PRO TEM
07-/3 -/0
DATE
ATTEST/AUTfIF,NTICATED:
NDRA S. CHASE, CITY CLERK
APPROVED 5 " O FORM:
W. SCOTT SNYDER, CITY WORNEY
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