AGREEMENT BETWEEN THE OREGON FISHERMEN'S
CABLE COMMITTEE, INC., AND TYCOM NETWORKS (US) INC.
This Agreement is entered into on the date
noted below between and among: The Oregon Fishermen's Cable
Committee, Inc. ("Oregon Committee"), an Oregon
non-profit corporation with a business address at 2001 Marine
Drive, Suite 112, Astoria, Oregon 97103, and TyCom Networks
(US) Inc. (TyCom US) with a business address at Patriots
Plaza, 60 Columbia Road, Morristown, New Jersey 07960. The
Oregon Committee and TyCom US are at times referred to collectively
as the "Parties".
The Oregon Committee is constituted of representatives
of both the Oregon commercial fishing industry and the telecommunications
industry. The fishing representatives are from the areas
near and the waters off of Astoria/Columbia River, Garibaldi,
Newport/Yaquina Bay, Charleston/Coos Bay and Brookings/Harbor
in the State of Oregon. The current telecommunications representatives
are from WCI Cable, Inc. and MFS Globenet, Inc. TyCom US
intends to install submarine fiber optic cables from Tillamook
County, Oregon seaward through commercial fishing grounds
in the waters off of the State of Oregon. TyCom US agrees
to adhere to the terms and conditions of the Oregon Accord
(established on July 9, 1998 between Certain Oregon Commercial
Fishing Interests and WCI Cable, Inc.) as modified and amended
to date by this Agreement as amended by the Oregon Committee.
Among the other Goals set forth below, the Oregon Accord
seeks to minimize risks to, interference with, and/or interruption
of commercial fishing activities and of submarine fiber
optic cable operations.
GOALS
The Parties to this Agreement endorse and
encourage the pursuit and fulfillment of the Goals set forth
in the original Oregon Accord. The Goals originally stated
in the Oregon Accord are:
To continue communication, coordination and
cooperation between members of the Oregon commercial fishing
and fiber optic cable industries so that they can amiably
discuss and resolve concerns;
To encourage the employment of commercially
reasonable cable installation and maintenance techniques
to minimize interference with and/or interruption of commercial
fishing activities;
To sponsor a 24 hour toll free telephone hot
line staffed by an individual who has authority to approve
the cutting of fishing gear which is possibly snagged on
[the] fiber optic cable and to reimburse the fishermen for
the cost of the cut gear;
To establish a Fund to compensate commercial
fishermen for the replacement of cable-related fishing gear
losses and to fund the Committee and Committee activities;
To form a Committee constituted of Oregon
commercial fishermen and [the] fiber optic cable representatives
who oversee the Fund and administer the Committee's related
activities;
To release participating commercial fishermen
from liability for damage to [the] fiber optic cable system;
and
To create, support and promote the establishment
of a buried telecommunications submarine cable corridor
from Nedonna Beach, Oregon offshore through fishing grounds
for future submarine cables.
SHARED UNDERSTANDINGS
The Oregon Accord was the first effort by
representatives of the commercial fishing and telecommunications
industries to discuss, describe, and delineate their shared
use of a community resource - the ocean. The Oregon Accord
and this Agreement are a refinement of the rights and duties
set forth in and under international and national law. These
Agreements are private compacts between and among individuals
and entities. These Agreements are not intended to nor do
they create any rights in third parties other than the individual
Participating Fisherman who executes the "Individual
Fisherman's Agreement And Mutual Release", a copy of
which is attached to this Agreement. These Agreements are
intended to be implemented with a minimum of government
involvement and interference. These Agreements are not intended
to be and should not be interpreted or enforced by an agency
or court except as set forth in the Dispute Resolution section
of the Agreements. These Agreements perforce are not intended
to be disclosed in any administrative or judicial proceeding
except as otherwise required by law.
The Parties acknowledge and agree that this Agreement covers
only the TyCom fiber optic cables running from the shoreside
of Tillamook County, Oregon seaward to a water depth of
2000 meters. The Parties also acknowledge and agree that
because the fiber optic cables are intended to remain buried
all current fishing activities undertaken by Class A limited
entry groundfish permit holders with trawl endorsement,
Washington, Oregon and California pink shrimp permit holders,
and participants in the prawn trawl fisheries may continue
in the area of the TyCom cables. The Parties also acknowledge
and agree that this Agreement is limited to the traditional
fisheries and current gear and technology in the fishing
industry. This Agreement expressly does not cover or protect
the fishermen who utilize clam dredges, scallop dredges,
and/or any other sub-benthic technology.
24 HOUR TELEPHONE HOTLINE;
PROVISION OF REPLACEMENT GEAR
TyCom US shall provide and maintain, either
individually or in collaboration with other cable companies,
a 24 hour toll free telephone hot line for fishermen to
call who believe they have snagged their gear on the TyCom
fiber optic cables from shore side of Tillamook County,
Oregon seaward to a water depth of 2000 meters. There shall
be one TyCom US person or a designee on duty at all times
who has authority (1) to make a decision and (2) the background
and experience to make the most prudent decision under the
circumstances. The individual shall have the authority to
make a quick decision to cut the snagged fishing gear based
on limited information if a failure to cut the gear could
jeopardize lives or property including the TyCom fiber optic
cables. The individual shall have the authority immediately
to approve cutting the gear and perforce is authorizing
the provision of replacement gear to the Participating Fisherman
from suppliers approved by the Oregon Committee. This authorization
to the approved suppliers to provide replacement gear to
the Participating Fisherman is intended to avoid any delay
in providing the replacement gear.
FUNDS
[This Section not available online]
RESOLUTION OF CLAIMS
The Oregon Committee has established a claims
review procedure. A Participating Fisherman shall submit
a written claim for compensation pursuant to the claims
review procedure and on approved forms including the "Sacrificed
Gear Claim Form And Release And Settlement" within
the time set by the Oregon Committee. The Oregon Committee
shall review and then approve or deny a claim in accordance
with its claims review procedure. As part of its review,
the Oregon Committee may review an inspection of the cables
by an underwater remote operated vehicle ("ROV").
If the Oregon Committee approves a claim, the Oregon Committee
waives any right to collect from the claimant for the replacement
gear it previously caused to be provided to the Participating
Fisherman. In addition, the Oregon Committee shall pay from
the Fund an amount equal to fifty percent (50%) of the value
of the replacement gear to the Participating Fisherman.
This sum represents liquidated damages in settlement and
satisfaction of any and all claims or possible claims for
loss of business, lost profits or any other damages incurred
by the Participating Fisherman. The current "Individual
Fisherman's Agreement And Mutual Release" and the "Sacrificed
Gear Claim Form And Release And Settlement" that accompany
the Oregon Accord shall be modified to reflect this amendment.
If the Oregon Committee denies a claim because of fraud,
misrepresentation or failure to follow the required procedures,
the authorization to the approved suppliers for the sacrificed
gear is treated as a bridge loan to the fisherman that must
be repaid by the fisherman.
THE OREGON COMMITTEE
The size, structure and membership of the
Oregon Committee are set forth in the Oregon Accord as amended
by the Oregon Committee. Upon execution of this Agreement,
the Committee membership and voting membership of the Oregon
Committee shall be modified to include one TyCom US voting
Committee member.
RELEASE OF LIABILITY
TyCom US agrees to release claims against
vessel owners and operators and refrain from taking any
administrative, legal or other action to sanction and/or
recover damages against vessel owners and operators who
honor the Operating Procedures ("Procedures to Follow
While Operating Near Submarine Fiber Optic Cables")
(attached) and other procedures adopted by the Oregon Committee.
TyCom US further agrees to encourage all administrative,
legal and other authorities to refrain from taking action
against fishermen who honor the Operating Procedures and
other procedures adopted by the Oregon Committee. The specific
terms and conditions of the releases are set forth in the
"Individual Fisherman's Agreement And Mutual Release"
and the "Sacrificed Gear Claim Form And Release And
Settlement" that accompany the Oregon Accord and are
attached to this Agreement.
TYCOM US ACTIVITIES
Support of OFCC Representatives
TyCom US agrees that two Oregon Committee
fishermen representatives shall be allowed on board cable
survey, installation and maintenance vessels out to a water
depth of 2000 meters. The Oregon Committee fishermen representatives
shall have access to observe all operations including access
to instruments on board vessels whenever space and working
conditions reasonably allow. TyCom US shall pay all of the
representatives' approved expenses in the course of their
observing such operations. [Sentence removed from online
document.]
CABLE BURIAL
TyCom US shall install the fiber optic cables
at a depth of one meter or more beneath the seabed seaward
from shore to a water depth of 1500 meters or to another
point agreed by OFCC and TyCom, not to exceed 2000 m water
depth. The fiber optic cables may be buried at less than
one meter in hard ground. In addition, where soft bottom
is encountered, the fiber optic cables may be buried deeper
than one meter. In all instances, current technology will
be utilized in the cable burial process including the use
of an ROV for post-lay burial, where required, and ROV inspection
immediately following installation to a water depth of 2000
meters. The cables shall be armored in such a way as to
allow burial to 2,000 m water depth, in case post-lay burial
to this depth should become necessary in the future. If
TyCom US cannot bury the cables at one meter or greater
in the surf zone, TyCom US shall utilize other technology
such as a submerged trencher or articulated pipe armoring
to protect the cables against storm erosion and sediment
drift.
If commercial fishing grounds expand to deeper
waters near the cable, then post-installation burial to
depths of 2000m can be required by a vote of the Committee.
It is understood that the Committee will allow a reasonable
time to mobilize the required vessels and equipment.
Miscellaneous Activities
TyCom US shall undertake stringent debris
control efforts during installation and burial of the cable.
Concurrent with burial of the cable, TyCom US shall undertake
an ROV inspection of the cable out to a water depth of 1500
meters, or employ other acceptable technology to verify
cable burial along the cable route.
All ROV inspections resulting from this Agreement
shall follow protocols to be agreed to by TyCom and OFCC.
PATROL VESSELS
TyCom US shall pay for patrol boats to be
nominated by the Oregon Committee during the cable landing,
laying and burial, and any post-lay inspection and burial
operation out to a maximum water depth of 2000 meters. The
Oregon Committee shall only nominate patrol boats that offer
reasonable rates for their services.
AS-BUILT COORDINATES AND CHARTS
TyCom US shall provide to the Oregon Committee
Differential Global Positioning System ("DGPS")
coordinates recorded from the high-water mark (or first
plow-down) to a water depth of 2000 meters and Loran C coordinates
in both 5990 and 9940 chains that coincide with each of
these DGPS coordinate recordings. As soon after installation
as reasonably practicable, TyCom US shall provide OFCC with
a complete set of installation charts of the cables from
shore to 2000 m water depth. The Oregon Committee or its
representatives on the cableship shall gather Loran C coordinates
along the cable route.
Maintenance Activities
TyCom US shall conduct ROV burial verification
at least every five years and after any major geological
or environmental event as determined by the Oregon Committee.
If required, TyCom US shall pay committee-approved gear
compensation associated with these or other maintenance
activities.
REVIEW BY LEGAL COUNSEL
The Parties acknowledge and agree that they
have had this Agreement reviewed by legal counsel or were
afforded an opportunity to have this Agreement reviewed
by legal counsel. TyCom US shall be responsible for the
cost of legal counsel for the Oregon Committee until the
Final Agreement is executed by both parties.
DISPUTE RESOLUTION
In the event of a dispute between or among
the Parties to this Agreement involving the terms and conditions
of this Agreement, the Parties shall (1) discuss the problem
between themselves and attempt a resolution. If the dispute
is not thereby resolved within seven (7) days, the Parties
shall (2) mediate the problem in Portland, Oregon or in
another mutually agreed location. If the dispute is not
thereby resolved within thirty (30) days, the Parties shall
(3) engage in binding arbitration in Portland, Oregon or
in another mutually agreed location according to the rules
and provisions of the American Arbitration Association.
In the event of a dispute between or among
the Parties to this Agreement on a technical issue, the
Parties shall discuss the problem between themselves and
diligently attempt to reach a resolution. If the dispute
is not thereby resolved in a timely manner, the Parties
shall employ an independent engineer to review the issue
and render an opinion that shall be binding. The engineer
shall be hired from a mutually agreeable independent engineering
firm with expertise in undersea cable systems and paid by
TyCom US.
Notwithstanding any other provision of this
agreement, so long as TyCom US is in compliance with the
terms and conditions of this Agreement, the parties to this
Agreement shall not hold TyCom US, its affiliates, subsidiaries
or any of its directors, officers, employees or agents liable
for any consequential, incidental, indirect, reliance or
special (including punitive) damages. So long as TyCom US
is in compliance with this Agreement, the parties to this
Agreement will hold TyCom US' maximum aggregate liability,
whether in tort, contract or otherwise, as set forth in
the paragraphs above on fund, resolution of claims, and
dispute resolution.
SUPPORT FOR TYCOM US CABLE PROJECT
The fishing industry members of the Oregon
Committee express their support to Governmental Agencies
in connection with the permitting, installation, operation
and maintenance of the two TyCom US cables that are the
subject of this agreement. These members shall also support
for subsequent cables that may be proposed by TyCom US,
provided that these subsequent cables are covered by the
provisions of this Agreement or a similar agreement.
CONFIDENTIALITY
All data concerning cable installation and
engineering shall be considered confidential and released
outside the OFCC only by written consent of TyCom US.
AGREEMENT OPEN TO NEW MEMBERS
Additional cables and cable companies may
be added to this Agreement by majority vote of the Oregon
Committee. If additional companies join, the administrative
and other costs of the Committee will be shared among the
cable company committee members and such cable companies
must agree to the substantive terms and provisions of this
Agreement.
This Agreement is solely for the benefit of
the Parties and their respective successors and permitted
assigns, and this Agreement shall not otherwise be deemed
to confer upon or give to any other third-party any remedy,
claim, liability, reimbursement, cause of action or other
right.
This Agreement may be signed in any number
of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto
were upon the same instrument.
This Agreement shall be construed and governed
in accordance with the laws of the State of Oregon, United
States, excluding its conflicts of law provisions.
Notices. Any notices, consent, approval, or
other communication pursuant to this Agreement shall be
in writing, in the English language, and shall be deemed
to be duly given or served on a Party if sent to the Party
at the address stipulated below and if sent by any one of
the following means only:
Sent by hand: Such communication shall be
deemed to have been received on the day of delivery provided
receipt of delivery is obtained.
Sent by facsimile: Such communication shall
be deemed to have been received, under normal service conditions,
twenty-four (24) hours following the time of dispatch or
on confirmation by the receiving Party, whichever is earlier.
Sent by registered or certified mail: Such
communication shall be deemed to have been received, under
normal service conditions, on the day it was received or
on the tenth day after it was dispatched, whichever is earlier.
For purposes of this Article, the names, addresses
and fax numbers of the Parties are as detailed below. Any
change to the name, address, and facsimile numbers may be
made at any time by giving thirty (30) days prior written
notice.
TyCom Networks (US) Inc.
Patriot's Plaza
Columbia Road
Building A
Morristown, New Jersey
Attn: Steve Drew
Fax: 973-656-8247
The Oregon Fishermen's Cable Committee, Inc.
2001 Marine Drive, Suite 112,
Astoria, Oregon 97103
Fax: 503 325 7012
This Agreement shall be binding on the Parties
and their respective successors and assigns.
If any of the provisions of this Agreement
shall be invalid or unenforceable, such invalidity or unenforceability
shall not invalidate or render unenforceable the entire
Agreement, but rather the entire Agreement shall be construed
as if not containing the particular invalid or unenforceable
provision or provisions and the rights and obligations of
the Parties shall be construed and enforced accordingly.
A waiver of any of the terms and conditions
of this Agreement, or the failure of either Party strictly
to enforce any such term or condition, on one or more occasions
shall not be construed as a waiver of the same or of any
other term or condition of this Agreement on any other occasion.
This Agreement supersedes all prior oral or
written understanding between the Parties and constitutes
the entire agreement with respect to the subject matter
herein. Such terms and conditions shall not be modified
or amended except by a writing signed by authorized representatives
of all Parties.
