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HomeMy WebLinkAbout2016-030 TERM SHEET PROPOSED INDIAN RIVER COUNTY / CITY OF FELLSMERE DARK FIBER LICENSE AGREEMENT (Page 1) 1. Indian River County (IRC) proposes to enter into a license agreement with the City of Fellsmere, to lease IRC "dark" fiber (i.e. unused fiber optic communications cable capacity)for use by the City of Fellsmere. 2. The lease agreement will provide 2 dark fibers (2-fiber strand circuit of IRC fiber optic cable) between the City of Fellsmere - City Hall site, located at 22 South Orange Street, Fellsmere, Fla. 32948, and the new City of Fellsmere/ Indian River County- Welcome Center, located at 11200 CR-512, Fellsmere, Fla. 32948.The proposed dark fiber optic link between these two locations is currently estimated to be 3.2 miles in length. 3. Representing City of Fellsmere in this agreement is Mr. Jason Nunemaker, City Manager of the City of Fellsmere. Representing IRC is Mr. Manny Cabo, IRC Telecommunications Manager and Mr. Chris Mora, IRC Public Works Director. 4. The term of the agreement will be 5 years, with 3 automatic 5-year renewals (total agreement length = 20 years) unless either party gives 90 days (minimum) notice of non- renewal. License will commence when fiber optic testing is completed, and the new DFL ( Dark Fiber Link ) service is established by IRC. 5. The license payment amount to IRC will be $100.00 per fiber strand, per mile, per month. For the use of 2 dark fibers at a distance of 3.2 miles, the total monthly payment to IRC will be (100 x 2 x 3.2) = $640.00 per month. The fiber length of 3.2 miles is a preliminary estimate, and will be adjusted later to reflect actual OTDR mileage. City of Fellsmere should be aware that the actual measured mileage, and consequently the payment amount, may increase or decrease slightly, based on final OTDR test results. 6. City of Fellsmere (licensee) will be responsible for all fiber service installation and connection costs, including but not limited to,the installation of fiber cables from existing IRC fiber cables within the road right-of-way, into each City of Fellsmere property detailed in item #2 above. TERM SHEET PROPOSED INDIAN RIVER COUNTY / CITY OF FELLSMERE DARK FIBER LICENSE AGREEMENT (Page 2) 7. IRC will coordinate connection of the fiber service links between the City of Fellsmere properties listed in item #2 above. City of Fellsmere and/or assigned representatives will be responsible for connection to IRC fiber at each end of the IRC fiber service demarcation point. IRC will not be responsible for servicing, maintaining, or monitoring any customer equipment connected to IRC fiber. 8. All fiber cables and termination hardware upstream of the designated demarc points will remain the property and maintenance responsibility of IRC. 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'�,•"`; 000.1"" on O Endpoints Proposed Fellsmere Welcome Center Map Date.11/19/2015 —Existing Fiber Fiber Connectio ,,000 z,000 a,000 Feet UvmmV♦0 UOatmNl,Yumwecmm+it RffA YIP]P015_tU]FeYdYM LrsF_iMmn F4.�1015_UI]md te_,) LICENSE AGREEMENT BETWEEN INDIAN RIVER COUNTY, FLORIDA AND THE CITY OF FELLSMERE, FLORIDA FOR THE USE OF DARK FIBER OPTIC CABLE THIS LICENSE AGREEMENT is made this day of March, 2016 by and between INDIAN RIVER COUNTY, a political sub-division of the State of Florida, whose mailing address is 1801 27TH Street, Vero Beach, Florida 32960 (hereinafter"IRC" and as further defined in Article 2, below) and the CITY OF FELLSMERE, a political sub-division of the state of Florida, whose mailing address is 22 South Orange Street, Fellsmere, Florida 32948 (hereinafter "LICENSEE" and as further defined in Article 2, below). WITNESSETH: WHEREAS, IRC has constructed and may cause to be constructed, from time to time, a Fiber Optic System which will be employed to facilitate the availability of state-of- the-art telecommunications, and WHEREAS, pursuant to the Fiber Optic Cable System Maintenance Agreement with the Florida Department of Transportation and the Revised & Restated Joint Fiber Optics Project Interlocal Agreement, IRC is allowed to use a certain number of fibers for non-traffic, public purposes; and WHEREAS, IRC desires to make a portion of the Fiber Optic System available for use by LICENSEE under the terms and conditions set out in this Agreement; and NOW THEREFORE, IRC authorizes LICENSEE to use a portion of the Fiber Optic System in accordance with the Provisions hereof, and LICENSEE will use a portion of the Fiber Optic System in accordance with the Provisions hereof and all applicable Federal, State and local laws. In consideration of the mutual covenants contained herein and for other good and valuable consideration, the Parties agree as follows: ARTICLE 1 ADOPTION AND INCORPORATION OF RECITAL AND INCORPORATION OF EXHIBITS 1.1 Adoption & Incorporation Of Recital. The above recital is true and correct and by this reference is incorporated herein and made a part hereof. 1.2 Exhibits. The following attached Exhibits are hereby incorporated into and made a part of this Agreement: Exhibit "A" - Route Diagram Exhibit "B" - Fiber Specifications and Connection Details Exhibit "C" - Contact List and Outage Notice Form 1 Exhibit "D" - Sample Notice of Acceptance Exhibit "E" - Sample Notice of Termination Without Cause Exhibit "F" - Sample Notice of Termination With Cause Exhibit "G" - Sample LICENSEE's Notice of Termination Without Cause Exhibit "H" - Sample Notice of Disconnection ARTICLE 2 DEFINITIONS OF SPECIAL TERMS Definitions. When used herein with initial or complete capitalization whether in the singular or in the plural, the following terms shall have the following meanings: "Agreement" means this License Agreement between IRC and LICENSEE for the use of Dark Fiber. "Business Day" means any Day, except a Saturday, Sunday and any Day observed as a legal holiday by IRC. "Charge" means any assessment or fee other than the License Fee and a Tax. "IRC" means the government of INDIAN RIVER COUNTY, Vero Beach, Florida, whose mailing address is 1801 27TH Street, Vero Beach, Florida 32960. "Commencement Date" means the date on which this Agreement is approved by the IRC Board of County Commissioners, the date on which dark fibers are made available to LICENSEE. "CPI Adjustment" refers to the annual increase in the License Fee that may occur at the start of each and every year following the first (1St) year of the Agreement. The first yearly CPI Adjustment shall occur January 1 st after a full year of the Initial Term has elapsed. The "CPI Adjustment" shall be determined in accordance with the percentage change in index known at the time this Agreement is executed as the "United States Bureau of Labor Statistics Consumer Price Index (CPI) For All Urban Consumers" using the most recent October to October Reports by applying the following formula: (Current monthly License Fee) x (percentage increase as reported in the most recent CPI or if the CPI no longer is published, then as reported in its successor index) = the CPI Adjustment amount. "Dark Fiber" means a Fiber without the equipment necessary to transmit signal communications. "Day" means any calendar Day, unless a Business Day is specified. 2 "Demarcation Point" means a point at or about eighteen (18) inches outside of where IRC's connective device enter LICENSEE's Property, or any part thereof, or LICENSEE's Premises, or any part thereof, and it defines point where issues of ownership and maintenance begin and end for the Parties. The Demarcation Points are identified on Exhibit A as incorporated herein. "Early Termination Date" means the Day on which the termination of the Term hereof becomes effective due to a termination for cause or due to an early termination for convenience as described in Article 3 of this Agreement. "End Point" means the beginning or termination point for a Licensed Fibers Route. "Expiration Date" means the Day on which the Term hereof expires. "Extension Term" shall have the meaning set forth in Section 3.3 hereof. "Fiber" means an individual optical fiber contained within a Fiber Optic Cable. "Fiber Acceptance Date" means the Day on which the Licensed Fibers of a specified Licensed Fibers Route are accepted as operational and so indicated by LICENSEE's execution of the Notice of Acceptance, or are deemed accepted as operational (in accordance with Article 11) by LICENSEE in accordance with the Performance Specifications. "Fiber Optic Cable" means the packaging of one or more optical fibers into a larger cable for protection and convenience. "Fiber Notice" is the written notification from IRC to LICENSEE of the availability of the Licensed Fibers. "Fiber Notice Date" is the date that LICENSEE receives the Fiber Notice. "Fiber Optic System" is the Fiber Optic Cable, conduit, attachments, boxes, and related infrastructure owned, controlled or used by IRC and made available for licensing. "Fiber Span" is the distance of Fiber Optic Cable between splice housings or boxes. "Force Majeure" means the occurrence of any event that has, had or may have an adverse effect on the design, construction, installation, management, operation, testing, use or enjoyment of the 3 Telecommunications Infrastructure, LICENSEE's Property, or the Licensed Fibers, which event includes, but is not limited to, an Act of God, an irresistible superhuman cause, an act of a superior governmental authority, an act of a public enemy, a labor dispute or strike or a boycott which could not be reasonably contemplated by the Party affected thereby, a defect in manufactured equipment (including, but not limited to, Dark Fiber), fire, floods, hurricanes, tornadoes, earthquakes, or any other similar cause. "Hazardous Materials" means any substance or material which has been determined by any Agency, including IRC, to be capable of posing risk of injury to health, safety, and property, including petroleum and petroleum products and all of those materials and substances designated as hazardous or toxic by the United States Environmental Protection Agency, the Florida Water Quality Control Board, the United States Department of Labor, the Florida Department of Industrial Relations, the Florida Department of Health Services, the Florida Health and Welfare Agency in connection with the Safe Water and Toxic Enforcement Act of 1986, the United States Department of Transportation, the United States Department of Agriculture, the United States Consumer Product Safety Commission, the United States Department of Health and Human Services, the United States Food and Drug Administration or any other Agency now or hereafter authorized to regulate materials and substances in the environment. "Improvement" means any addition, alteration, betterment, construction or modification to the backbone, LICENSEE's Property, property or other physical structure which now or hereafter is constructed within the Public Rights-of-Way and used in connection with this Agreement. "Initial Term" means that period of time (more particularly described in Section 3.2, hereof) from the Commencement Date until the Initial Term's termination. "Junction" means a location where equipment is installed for the purpose of connecting communication transmission paths. "Junction Site" means the area within the Transmission Pathway at which a Junction is located. "Law" means any administrative or judicial act, decision, bill, certificate, charter, code, constitution, opinion, order, ordinance, policy, procedure, rate, regulation, resolution, rule, schedule, specification, statute, tariff, or other requirement of any district, local, municipal, county, joint powers, state, or federal agency, or any other Agency having joint or several jurisdiction over the Parties to this Agreement, in effect either at the Commencement Date or during the Term hereof, including, without limitation, any regulation or order of an official or quasi-official entity or body. 4 "License Fee" (in general) means the amount paid by LICENSEE to IRC for the license and privilege of using, directly, the Licensed Fibers and, indirectly, all other parts of the Telecommunications Infrastructure. The term "License Fee" is more particularly described in Article 5, below. "Licensed Fibers" means one (1) or more (the specific quantity is set forth in Article 4) single mode Dark Fiber, in linear configuration, comprising a part of the Telecommunications Infrastructure which is dedicated to the exclusive use of LICENSEE in accordance with the Provisions of this Agreement. "Licensed Fibers Route" means a defined path of Licensed Fibers which is identified by specific End Points. "Licensed Service Properties" means the private real properties occupied or used by IRC for the purpose of providing services to one or more of IRC's customers, and related services offered by IRC's water / wastewater utilities, the rights of occupancy or use of which were acquired by contract. "LICENSEE" means City of Fellsmere, with an address of 22 South Orange Street, Fellsmere, Florida 32948, its directors, officers, employees, agents and licensees and its successors and permitted assignees. "LICENSEE's Premises" means the real property and all Improvements and other appurtenances thereon owned or leased by LICENSEE, in existence either at the Commencement Date or during the Term hereof and not located within the Public Rights-of-Way and the Public Easements. "LICENSEE's Property" means and includes, without limitation, all amplifiers, antennas, boxes, cabinets, cables (including coaxial cables), circuits, conduits, conductors, converters, copper wires, decoders, demodulators, electronics, encoders, equipment, Fiber Optic Cable, generators, hubs, innerducts, lasers, manholes, microwave, modulators, nodes, patch panels, processors, receivers, Splice boxes, switches, terminals, traps, vaults, wires, wireless transmitters and receivers and other similar transmission equipment owned, leased or used by LICENSEE, in existence either at the Commencement Date or during the Term hereof and located within the Public Rights-of-Way. "Make Ready Work" is the work necessary in order to accommodate relocations, or the construction of new installations, of Fiber Optic Cable. "Notice of Acceptance" shall have the meaning set forth in Section 11.1 and Exhibit "D". 5 "Party" (collectively, "Parties") means IRC or LICENSEE (or both, when collectively referred to), and their directors, officers, employees, and duly authorized agents and representatives. "Performance Specifications"shall have the meaning set forth in EXHIBIT "B" "Person" means any individual, for profit corporation, nonprofit corporation, limited liability company, partnership, limited liability partnership, joint venture, business trust, sole proprietorship, or other form of business association. "Poles" mean those Poles, to which electric power transmission and distribution lines, or communications lines, or both, are attached. "Provision" means any agreement, circumstance, clause, condition, covenant, fact, objective, qualification, restriction, recital, reservation, representation, term, warranty, or other stipulation in this Agreement or in Law that defines or otherwise controls, establishes, or limits the performance required or permitted by any Party hereto. All Provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. "Public Rights-of-Way" means the areas owned, occupied or used by IRC and other governmental entities or agencies, for the purposes of transmitting and distributing electricity, water, sewer, storm drain, refuse or communications commodity and/or distribution service, and the means of public transportation, to the general public, including but not limited to, the public alleys, avenues, boulevards, courts, curbs, gutters, lanes, circles, drives, terraces, places, roads, sidewalks, sidewalk planter areas, streets, and ways, in existence either at the Commencement Date or at any time during the Term hereof. "Public Easements" means any strip of land for public or private utilities, drainage, sanitation, or other specified uses having limitations, the title to which land shall remain in the name of the property owner, subject to the right of use designated in the reservation of the servitude. "Route-Mile" means a unit of measurement of the length of Dark Fiber as set forth in Exhibit "A". For the purposes hereof, a linear mile of Dark Fiber is equal to one (1) Route-Mile of Dark Fiber, but this does not include any slack Fiber Optic Cable that may be incorporated into the design of the Telecommunications Infrastructure, or any part thereof. 6 "Sole Discretion" means, whenever a Provision rests in the "Sole Discretion" of an individual representing a Party to this Agreement, then that individual must base a decision upon factors as is deemed appropriate by that individual, and that individual shall not be required to state any reason for the decision. The other Party affected by the decision may not compel a contrary or different decision on any such matter, and notwithstanding any other Provision hereof, the individual exercising the "Sole Discretion" shall not be liable to the other Party for any effect of the decision. "Splice" means a point where two separate sections of Fiber Optic Cable are physically connected. "Tax" means any assessment, Charge, imposition, license, franchise fee or levy (including any utility users tax, telephone tax, or telecommunications tax) in effect either at the Commencement Date or during the Term hereof and imposed by any Agency, including IRC. "Telecommunications Carrier" means a Person who is lawfully authorized to provide telecommunications services. "Telecommunications Infrastructure" means the Poles, boxes, handholds, manholes, vaults, conduits, innerducts, surface location markers, cables (including coaxial cables, Drop Cables, Fiber Optic Cable and messenger cables), wires (including copper wire), circuits, conductors, Splice enclosures, patch panels, cabinets, converters, generators, amplifiers, receivers, switches, wireless transmitters and receivers, and all other equipment or facilities containing the Dark Fiber or to which the Dark Fiber is attached, owned, controlled or used by IRC, in existence either at the Commencement Date or during the Term hereof and located overhead or underground within the Public Rights-of-Way, the Public Easements and Licensed Service Properties. "Term" means the Initial Term or the Extension Term, or both, whichever may be applicable. "Transmission Pathway" means those areas of the Public Rights-of-Way, the Public Easements and the Licensed Service Properties in which the Telecommunications Infrastructure is located. ARTICLE 3 TERM AND TERMINATION 7 3.1 Commencement. This Agreement shall commence on the date on which this Agreement is approved by the IRC Board of County Commissioners, the date on which dark fibers are made available to LICENSEE. 3.2 Initial Term. This Agreement's Initial Term shall be five (5) years beginning on the Commencement Date, provided however the Initial Term may be terminated earlier in accordance with Sections 3.4, 3.5 and 3.6 and Article 19 below. 3.3 Extension Terms. This Agreement shall be automatically renewed for three (3) additional five (5) year terms, provided, however, any Extension Term may be terminated earlier in accordance with the Provisions set forth in this Article 3 and Article 19. 3.4 Termination By IRC For Convenience. This Agreement may be terminated for convenience by IRC, and termination hereof shall become effective ninety (90) days after the Day on which such notice of termination, in writing, is received via certified mail by LICENSEE, or on the expiration hereof, whichever date first occurs. In the event IRC terminates this Agreement for convenience, LICENSEE shall not be liable for the remainder of the License Fee for monthly installments due after the Early Termination Date (for convenience). If IRC terminates this Agreement for cause, LICENSEE shall be liable for the entire License Fee. 3.5 Termination By LICENSEE For Convenience. LICENSEE may terminate this Agreement without cause, upon providing IRC with ninety (90) Days' written notice and payment of the liquidated damages set forth below (if applicable). If LICENSEE terminates this Agreement without cause prior to the expiration of the fifth year of the Initial Term, LICENSEE shall pay to IRC, as liquidated damages, a lump sum payment equivalent to the sum of the License Fee installments which LICENSEE would have paid through the fifth year of the Initial Term, plus accrued interest on any past due installments minus License Fee installments already paid to IRC. 3.6 Termination For Cause. The Parties may terminate this Agreement for cause in accordance with the Provisions set forth in this Article 5 and Article 19. 3.7 Termination If IRC Classified As Telecommunications Company. By entering into this Agreement with LICENSEE, IRC does not intend to, and shall not, be classified as a telecommunications company, Telecommunications Carrier, telecommunications service or any other telecommunications entity, nor to come under the existing or future jurisdiction or regulation of any State or Federal regulatory agency as a telecommunications company, including, without limitation, the Federal Communications Commission (FCC) or the Florida Public Service Commission (FPSC). If, however, a proceeding is commended in which it is sought to classify IRC as a telecommunications company, LICENSEE and IRC shall cooperate with each other to determine whether and to what extent the Agreement can be amended to remove that classification. If the Agreement cannot be so amended or if there is no Agreement as to such amendment, then IRC may terminate this Agreement immediately upon agency or court order or approval of such termination, or at the Sole Discretion of IRC, after fifteen (15) Days' prior 8 written notice to LICENSEE (even if IRC has already terminated this Agreement for cause or convenience) and IRC may disconnect the Dark Fiber licensed to LICENSEE under this Agreement as provided in Section 3.9, below; provided, however, if IRC becomes certified by the FPSC as a telecommunications company, this Agreement shall remain in full force and effect. 3.8 Even If IRC Has Already Terminated For Convenience -- Can Still Terminate For Cause. Nothing in this Agreement shall be deemed or construed to prohibit the exercise of IRC's right to terminate for cause hereof at any time after IRC's right to terminate for convenience hereof has been exercised but has not yet become effective. In the event of a conflict between the effective date of a notice of termination for cause and the effective date of a notice of termination for convenience, this Agreement shall terminate on the earlier of the Early Termination Date or the Day on which the notice of termination for convenience becomes effective. 3.9 IRC's Right To Disconnect. In the event that IRC or LICENSEE terminates this Agreement for convenience or for cause, as set forth above, upon termination of this Agreement IRC shall have the right after five (5) Days' prior notice to LICENSEE to disconnect LICENSEE from the Licensed Fibers. IRC shall not be liable to LICENSEE for any direct or consequential damages suffered by LICENSEE resulting from IRC's disconnection of the Licensed Fibers. LICENSEE shall remove all of its property, if any, from the Public Rights-of-Way within thirty (30) Days of IRC's notice of disconnection. If LICENSEE fails to remove its property within thirty (30) Days LICENSEE's Property shall be deemed abandoned and IRC shall remove LICENSEE's Property as set forth in Article 10 below. ARTICLE 4 LICENSED FIBERS LICENSEE shall have the license and privilege of using directly Two (2) Licensed Fibers. IRC may license additional Fibers to LICENSEE at some time in the future depending upon availability and at fees to be determined (depending upon configuration, route, and current market conditions). ARTICLE 5 LICENSE FEE 5.1 License Fee -- General. LICENSEE shall pay to IRC in United States dollars, monthly and in advance (as set forth in Section 5.2, below) a License Fee for the license and privilege of using, directly, Two (2) Licensed Fibers, and LICENSEE acknowledges and agrees that IRC shall be entitled to receive License Fees which are based, in part, on the recovery of the allocable direct and indirect costs of IRC to design, construct, install and maintain, and the right to earn a return on IRC's capital investment in, the Fiber and all items acquired by IRC to make the Telecommunications Infrastructure available for usage purposes. 9 5.2 License Fee — Base Amount. Subject to the CPI Adjustment set forth in Section 5.5, below, the License Fee for the Dark Fiber licensed by LICENSEE, as shown on the Route Diagram in Exhibit "A", shall be $640.00 per month. After the first (1St) year of the Initial Term, the License Fee shall be adjusted annually as set forth in Section 5.5, below. LICENSEE shall pay the License Fee in monthly installments, in advance, on or before the last Day of the month preceding the month to which the License Fee installment applies (e.g., May's installment shall be due on or before April 30th). The first installment shall be due on the Fiber Acceptance Date. IRC shall notify LICENSEE of adjustments to the installment amount. Payments for partial months shall be prorated. Payments not made in full when due shall be deemed delinquent. The License Fee shall not be reduced due to a term's early termination, except as provided for in Article 3, above. 5.3 License Fee Must Be Paid Even If LICENSEE Disagrees With Calculation. If LICENSEE fails to pay the License Fee installment when due, IRC shall notify LICENSEE that LICENSEE has failed to pay the installment. If LICENSEE does not pay the past due installment within thirty (30) Days of the License Fee's due date as set forth in Section 5.2 above, IRC may immediately terminate this Agreement, disconnect affected fibers, and all amounts due for the remaining portion of the Term of this Agreement shall immediately become payable to IRC as fixed, agreed and liquidated damages, and not as a penalty or a forfeiture. 5.4 Administrative Charge For Late Payments. An administrative Charge of Fifty Dollars ($50.00) or such higher Charge as may be established by IRC by Law shall be due and payable by LICENSEE for the cost of processing and handling LICENSEE's failure to pay the License Fees in accordance with the Provisions of Section 5.2, above. 5.5 CPI Adjustment. The License Fee shall be subject to an annual adjustment in accordance with the percentage change in the index known at the time this Agreement is executed as The Consumer Price Index for All Urban Consumers for the United States (hereinafter the "Index"), published by the United States Department of Labor, Bureau of Labor Statistics, which is published most immediately preceding the date on which the Extension Term commences. This adjustment shall be referred to as the "CPI Adjustment." If the Index is discontinued or revised during the Term of this Agreement, such other United States government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index has not been discontinued or revised. The CPI Adjustment shall not exceed five percent (5%). In no event shall the License Fee be less than the License Fee for the previous year. 5.6 Taxes, Franchise Fees. LICENSEE will pay, when they become due, any and all Taxes - if applicable, assessments, and governmental Charges of any kind whatsoever lawfully levied or assessed and attributable to LICENSEE's use of the Telecommunications Infrastructure or any portion of them. In addition, LICENSEE shall pay, or as appropriate, reimburse IRC, without apportionment, any ad valorem Taxes, fees, assessments or other Charges which are assessed against IRC that arise from LICENSEE's use of the Telecommunications Infrastructure or any portion of it. 10 LICENSEE shall not be responsible for any Taxes, fees or Charges, or portions thereof which are not directly attributable to LICENSEE's use or proportionate use of the Telecommunications Infrastructure. IRC shall be responsible for or pay any Taxes, fees, or Charges attributable to its ownership of the Telecommunications Infrastructure, if any, when such Taxes, fees, or Charges are not based on or imposed by virtue of LICENSEE's use of any such facilities or its receipt of License Fees from LICENSEE under this Agreement. In the event that IRC becomes a taxable entity, in whole or in part, then LICENSEE shall not be liable for any income Taxes imposed on IRC as a result of profits derived by IRC. ARTICLE 6 SPECIAL PROVISIONS [THIS ARTICLE IS INTENTIONALLY LEFT BLANK.] ARTICLE 7 LICENSEE's USE AND LIMITATIONS ON USE 7.1 Right Of Ingress And Egress Over LICENSEE's Premises. LICENSEE grants to IRC, its officers, employees, agents and representatives the right of ingress and egress over LICENSEE's Premises to engage in all actions reasonably necessary to interconnect LICENSEE's Property and LICENSEE's Premises, if any, with the Telecommunications Infrastructure, or any part thereof, and to engage in all scheduled and nonscheduled alterations, maintenance and repair work on Telecommunications Infrastructure, or any part thereof. 7.2 LICENSEE Aqrees Not To Interfere With Telecommunications Infrastructure. Except as expressly authorized by applicable Laws or this Agreement, in the exercise and performance of its rights and obligations under this Agreement, LICENSEE covenants and agrees: 7.2.1. Obstruction And Interference With Telecommunications Infrastructure. LICENSEE shall not do or permit anything to be done, including but not limited to alterations, maintenance and repairs, to IRC's Telecommunications Infrastructure and particularly the Licensed Fibers, except as provided for in Section 8.6, below. 7.2.2 Obstruction And Interference With Public Rights-of-Way. LICENSEE shall not interfere in any manner with the existence and operation of any and all public and private rights-of-way, sanitary sewers, water mains, storm drains, gas mains, Poles, aerial and underground electric and telephone wires, electroliers, cable television, and other telecommunications, utility, and municipal property without the express written approval of the owner or owners of the affected property or properties; 11 7.2.3 Hazardous Materials. LICENSEE shall not do or permit anything to be done in, on or about the Telecommunications Infrastructure, LICENSEE's Property or LICENSEE's Premises, if any, nor bring or keep or permit to be brought or kept therein, any Hazardous Materials or anything which is prohibited by or will in any way conflict with any Laws now in force or which may hereafter be enacted or promulgated, or which is prohibited by a standard form of fire insurance policy, or which will cause a cancellation of any insurance policy covering the Licensed Fibers, LICENSEE's Property, or LICENSEE's Premises, if any, or any part thereof or any of their contents; 7.2.4 Obstruction And Interference With Others. LICENSEE shall not do or permit anything to be done within the Public Rights-of-Way or Public Easements or to permit that which will in any way obstruct or interfere with the rights of any Person located within the Public Rights-of-Way or Public Easements, or injure them, or use or allow the Public Rights-of-Way or Public Easements to be used for any improper or unlawful purpose; and 7.2.5 Legal Waste. LICENSEE shall not commit, cause, maintain or permit nor suffer, or allow to be committed, caused, maintained or permitted, any legal waste within the Public Rights-of-Way or Public Easements, nor any public or private nuisance, nor any other act or thing which may disturb the quiet enjoyment of any other Person lawfully using the Public Rights-of-Way or Public Easements. 7.3 LICENSEE Shall Comply With Applicable Laws. LICENSEE shall comply with applicable Laws in the exercise and performance of its rights and obligations under this Agreement and any other IRC permit issued to LICENSEE in connection with the location of LICENSEE's Property within the Public Rights-of-Way or Public Easements. LICENSEE shall obtain, as required, the approvals for the design, construction, installation and testing of LICENSEE's Property by IRC or county departments, boards or commissions, and secure an assessment of the impact that LICENSEE's Property may have upon the environment from a qualified licensed firm at the sole cost and expense of LICENSEE. ARTICLE 8 ALTERATIONS, MAINTENANCE AND REPAIRS 8.1 IRC's Duty To Maintain And Restore. IRC shall be responsible for the maintenance and restoration of the Fiber Optic System and shall pay all costs associated with the maintenance and restoration of that segment of Fiber Optic System owned by IRC, including the Licensed Fibers, unless such maintenance or restoration is performed due to LICENSEE's actions or inactions. Maintenance and restoration provided by IRC shall be limited to the IRC Fiber Optic System.and the IRC individual Fiber. IRC shall have no obligation to perform maintenance or restoration on any Fiber, electronics, or other 12 equipment owned or installed by LICENSEE, or on property outside of the Public Rights- of—Way. 8.2 Scheduled Maintenance And Repairs. IRC, at its sole cost and expense, may schedule and perform or cause to be performed scheduled alterations, maintenance and repairs on the Telecommunications Infrastructure, or any part thereof, including the Licensed Fibers, on dates determined by IRC. IRC shall identify the time, location, and nature of each alteration or maintenance and repair job to LICENSEE, in writing, delivered not less than twenty-four (24) hours prior to the scheduled time for performance thereof which reasonably presents a substantial risk of damage to LICENSEE's Property or creates a substantial likelihood of an unreasonable interruption of Telecommunications Services provided by means of the Licensed Fibers. LICENSEE Shall Furnish Name, Number, Etc., Of Contact. Within seven days of Commencement Date, and as a condition precedent to IRC's continuing obligation to notify LICENSEE of scheduled maintenance and repairs, LICENSEE shall furnish on a continuing basis to IRC the current name, title, telephone number, and personal communications device number (including facsimile transmission number, cellular telephone number ), if any, of any representative of LICENSEE who shall be kept informed of IRC's maintenance schedules on Exhibit "C". 8.3 Emergency Maintenance And Repairs. IRC, at its sole cost and expense, shall perform or cause to be performed all emergency and other non-scheduled alterations, maintenance and repairs on the Telecommunications Infrastructure, or any part thereof, including the Licensed Fibers, in accordance with the procedures set forth in Section 7.2, above, provided, however, if the nonscheduled alterations, maintenance and repairs, including the replacement of any part of the Telecommunications Infrastructure, are required to be performed due to the fault of LICENSEE, LICENSEE shall reimburse IRC, upon demand, for the costs of such nonscheduled alterations, maintenance and repairs incurred by IRC. The obligation of LICENSEE to reimburse IRC shall survive the termination of this Agreement. 8.4 Reporting Defective Performance Or Interruption. Defective performance or interruption of the Telecommunications Infrastructure may be identified either by IRC or LICENSEE. LICENSEE shall call IRC's trouble-reporting phone number, as set forth in Exhibit C, to report a problem. IRC shall have no duty to monitor the Telecommunications Infrastructure and shall bear no liability for any damages LICENSEE may suffer due to IRC's failure to monitor and recognize defects or interruptions to the Telecommunications Infrastructure, and report such defective performance of the Telecommunications Infrastructure to LICENSEE. 8.4.1 Upon LICENSEE's Notification Of Defective Performance IRC Shall Deploy Standby technical person. If LICENSEE reports the defective performance of the Telecommunications Infrastructure, or any part thereof, IRC's standby technical person will respond by troubleshooting and 13 evaluating the situation within twenty-four (24) hours of LICENSEE's report of defective performance to IRC's trouble-reporting number as set forth in Exhibit C. 8.4.2 IRC's Standby Technical Person Response. Depending on the nature of the trouble, IRC's standby technical person will take one (1) or more of the following steps: (a) Make all necessary'repairs; (b) Call one (1) or more of IRC's backup technical personnel, if any, to make repairs; or (c) Call IRC's repair contractor, if any, to make repairs. 8.4.3 Standby Technical Person To Report Estimated Time For Repairs. When possible, IRC's fiber technical person will inform IRC's Public Works Director, the estimated time required to make repairs 8.4.4 IRC Shall Keep LICENSEE Informed. To the extent practicable, IRC will inform LICENSEE the status of the situation and the estimated time required to complete repairs. In the event of any interruption of availability of the Licensed Fibers, IRC shall furnish immediate notice to LICENSEE, and shall specify in such notice the nature and cause of the interruption, the extent of the repairs required, and the estimated time to restore, as set forth in Exhibit C. 8.4.5 If Temporary Repairs Must Be Made, IRC Will Coordinate Permanent Repairs. If the initial repairs must be temporary in nature, IRC will coordinate with LICENSEE to schedule a time convenient to both Parties in which to make permanent repairs. 8.5 IRC Shall Inventory Parts For Emergency Repairs. IRC shall keep on its premises an inventory of parts, including, but not limited to, emergency restoration kits normally used by the telecommunications industry, to facilitate the emergency and non-scheduled alterations, maintenance and repairs of any damaged, failed or impaired part of the Telecommunications Infrastructure, or any part thereof, including the Licensed Fibers. IRC shall not be required to stock an inventory of parts for emergency and non-scheduled alterations, maintenance and repairs of any LICENSEE's Property. IRC shall not be liable for any damages LICENSEE may suffer due to IRC's failure to maintain on its premises an inventory of parts including, but not limited to, emergency restoration kits normally used by the telecommunications industry. 8.6 LICENSEE Shall Maintain LICENSEE's Property. LICENSEE, at its sole cost and expense, shall be responsible for maintaining LICENSEE's Property, and every part thereof, and the portion of the Telecommunications Infrastructure that is located within LICENSEE's premises, or any part thereof, and extending outwards therefrom to the Demarcation Point. Except as provided in this Section 8.6, LICENSEE shall have no right to alter, maintain or repair the Telecommunications Infrastructure, or any part thereof, or any IRC facility. 14 8.7 IRC Shall Retain Backup Contractors During the Term of this Agreement, IRC shall use reasonable efforts to obtain and retain one or more backup contractors to assist IRC in performing its obligations under the Provisions of this Article 8. IRC shall bear no liability for its failure to obtain and retain one or more backup contractors. ARTICLE 9 IRC's TELECOMMUNICATION INFRASTRUCTURE 9.1 Ownership. IRC has or has caused to be designed, constructed, installed, and tested, the Telecommunications Infrastructure consisting of Fiber Optic Cable and equipment. Parts of the Fiber Optic Cable are located underground IRC fiber conduits and other utility pipes owned, used or controlled by IRC. Other parts of the Fiber Optic Cable are located overhead on Poles. Legal title to IRC's Telecommunication Infrastructure shall be held by IRC. LICENSEE's right to use the Fiber subject to the conditions set forth in this Agreement is a right of use only and neither such use nor payment to IRC for such use shall create or vest in LICENSEE any easement, or any ownership right in IRC's Telecommunication Infrastructure. 9.2 IRC's Disclaimer Of Warranties. IRC MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS OR ASSURANCES: (1) WITH RESPECT TO THE DESIGN, CONSTRUCTION, DURABILITY OR SUITABILITY OF THE TELECOMMUNICATIONS INFRASTRUCTURE, OR ANY PART THEREOF, WHETHER EXPRESS OR IMPLIED, AND IRC SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (2) WITH RESPECT TO THE NATURE OR ACCURACY OF THE DESCRIPTION, LOCATION OR MEASUREMENT OF THE TELECOMMUNICATIONS INFRASTRUCTURE, OR ANY PART THEREOF, OR THE TELECOMMUNICATIONS PATHWAY, OR ANY PART THEREOF; (3) THAT IRC WILL INCREASE OR DECREASE THE QUANTITY OF DARK FIBER CONSTITUTING A PART OF THE TELECOMMUNICATIONS INFRASTRUCTURE AT ANY TIME DURING THE TERM HEREOF; (4) THAT IRC WILL OBTAIN THE LEGAL RIGHT TO LOCATE, MAINTAIN OR USE THE TELECOMMUNICATIONS INFRASTRUCTURE, OR ANY PART THEREOF, IN PUBLIC RIGHTS-OF-WAY BY MEANS OF A LICENSE AGREEMENT, AN EASEMENT AGREEMENT OR OTHER WRITTEN INSTRUMENT; OR (5) IRC WILL OBTAIN THE LEGAL RIGHT TO LOCATE, MAINTAIN OR USE THE TELECOMMUNICATIONS INFRASTRUCTURE, OR ANY PART THEREOF, IN THE RAILROAD RIGHT-OF-WAY, CURRENTLY OWNED BY THE FLORIDA EAST COAST RAILROAD, BY MEANS OF A LICENSE AGREEMENT, AN EASEMENT AGREEMENT, OR OTHER WRITTEN INSTRUMENT. 9.3 IRC's Warranties And Representations As To Fiber Specifications. IRC warrants and agrees that the Licensed Fibers shall be in conformity with and shall comply with all the requirements of this Agreement. IRC further warrants and agrees that the Licensed Fibers shall meet or exceed the specifications outlined in Exhibit B, Fiber Specifications and Connection Details. Except as provided above, IRC makes no warranty or guarantee as to the suitability of the Licensed Fibers for LICENSEE's particular use. 15 9.4 IRC May Modify Or Relocate Telecommunications Infrastructure. IRC, at its sole cost and expense, may, upon thirty (30) Days notice to LICENSEE or, in the event of an emergency, upon reasonable verbal notice, confirmed by IRC in writing to LICENSEE via facsimile transmission or hand delivery.- 9.4.1 elivery:9.4.1 Relocate IRC's Telecommunications Infrastructure. Relocate or cause to be relocated, permanently or temporarily, the Telecommunications Infrastructure, or any part thereof, to one or more alternate locations within the Public Rights-of-Way, Public Easements, and Licensed Service Properties, and within the time required by IRC's permitting regulations after the receipt of such notice, LICENSEE shall take all reasonably necessary action to fully cooperate with IRC to effect any such relocation as provided herein; 9.4.2 Remove Or Add Dark Fiber. Remove or add Dark Fiber that are or will be made a part of the Telecommunications Infrastructure; 9.4.3 Construct And Install Upgraded And New Telecommunications Infrastructure. Construct and install or cause to be constructed and installed upgraded and new Telecommunications Infrastructure, including, but not limited to, IRC conduits and Fiber Optic Cable, regardless of whether such facilities are desirable or made necessary to interconnect the Parties' facilities or to provide the route configurations desired by LICENSEE, provided, however, that IRC shall use reasonable efforts to ensure any such upgraded or new facilities and the construction or installation thereof does not directly and substantially interfere with LICENSEE's prior use of the Licensed Fibers; and 9.4.4 Take Other Actions. Engage in any other lawful action with respect to the Telecommunications Infrastructure, or any part thereof, and any other IRC facility which may affect the design, construction, installation, operation or management of the Telecommunications Infrastructure, or any part thereof, or any IRC utility, provided, however, that IRC shall use reasonable efforts to ensure no such action shall directly and substantially interfere with LICENSEE's use of the Licensed Fibers. 95 LICENSEE Prohibited From Accessing Telecommunications Infrastructure and Transmission Pathway. LICENSEE is prohibited from accessing, directly or indirectly, the Telecommunications Infrastructure, or any part thereof, the Transmission Pathway, or any part thereof, or any IRC facility. Any unauthorized access by LICENSEE to or use of the Telecommunications Infrastructure, or any part thereof, the Transmission Pathway, or any part thereof, or any IRC facility shall constitute a material breach of this Agreement and a default by LICENSEE, and, notwithstanding any other Provision hereof, IRC may terminate for cause this Agreement upon the delivery of written notice of termination to 16 LICENSEE. Such notice of termination shall become effective immediately after its receipt by LICENSEE. 9.6 LICENSEE's Connection To Licensed Fibers. LICENSEE's Property or any part thereof, and LICENSEE's Premises, if any, shall be interconnected with the Telecommunications Infrastructure, or any part thereof, at Junction Sites, at which Splice enclosures or patch panels, or both are located, as illustrated in EXHIBIT "A". The route of the Transmission Pathway, and the location of the Junction Sites are also generally described in EXHIBIT "A". ARTICLE 10 LICENSEE's PROPERTY 10.1 LICENSEE Owns LICENSEE's Property. Notwithstanding any contrary Provisions of this Agreement, LICENSEE shall own all bays, panels, jacks, ironworks, associated electronics, Fiber Optic Cable termination equipment, regenerators, power sources, and other property and equipment provided by LICENSEE in the exercise of, or associated with, LICENSEE's use under this Agreement. 10.2 LICENSEE Shall Locate Its Property In Accordance With The Law. LICENSEE, at its sole cost and expense, shall locate LICENSEE's Property, and every part thereof, in accordance with applicable Laws. In the event LICENSEE desires to locate LICENSEE's Property in IRC's Public Rights-of-Way, LICENSEE shall apply for all required permits and comply with all permitting requirements in order to locate LICENSEE's Property, or any part thereof, in the Public Rights-of-Way. This Agreement does not authorize LICENSEE to locate LICENSEE's Property, or any part thereof, within the Public Easements or the Licensed Service Properties. IRC will cooperate with LICENSEE to locate LICENSEE's Property, and every part thereof, as practicable, within the Public Rights-of Way. 10.3 LICENSEE Shall Connect To Telecommunications Infrastructure In Accordance With Section .8.6. In accordance with Section 8.6, LICENSEE's Property, or any part thereof, and LICENSEE's Premises, if any, shall be interconnected with the Telecommunications Infrastructure, or any part thereof, in accordance with the route configurations approved by IRC. 10.4 IRC May Remove LICENSEE's Abandoned Property At LICENSEE's Expense. In the event that LICENSEE abandons LICENSEE's Property (as set forth in Section 3.8, above) or any part thereof, within the Public Rights-of-Way, IRC shall remove or cause to be removed LICENSEE's Property at LICENSEE's sole cost and expense. LICENSEE may abandon LICENSEE's Property in place and dedicate the same to IRC, provided that IRC accepts, in writing, dedication of the same within thirty (30) Days of the receipt of the offer of dedication. LICENSEE shall execute such documents of title as will convey all right, title, and interest in LICENSEE's Property, or any part thereof, to be dedicated to IRC. If LICENSEE fails to remove or cause to be removed LICENSEE's Property in accordance with Section 3.9, above, LICENSEE shall be deemed to designate IRC as its 17 agent and at LICENSEE's sole cost and expense to remove or cause the removal of the abandoned LICENSEE's Property. LICENSEE covenants and agrees to pay IRC, upon demand, its actual costs of removal, and this obligation shall survive the expiration or earlier termination of this Agreement. IRC shall not be liable to LICENSEE for any direct or consequential damages suffered by LICENSEE resulting from IRC's removal of LICENSEE's Property. 10.5 IRC May Require LICENSEE To Remove LICENSEE's Property From Public. Rights-Of-Way. In the event that IRC must occupy the Public Rights-of-Way, or any part thereof, which is occupied by LICENSEE's Property, in the lawful exercise of IRC's governmental or proprietary activities, functions and operations, including, but not limited to, the construction of IRC's public works or other public projects, IRC may require LICENSEE to promptly remove and locate LICENSEE's Property to another site within the Public Rights-of-Way, and LICENSEE, at its sole cost and expense, shall temporarily or permanently remove and locate LICENSEE's Property to such other authorized site within the Public Rights-of-Way, as appropriate. If LICENSEE does not temporarily suspend, or cause to be suspended, construction and installation activities affecting LICENSEE's Property, or any part thereof, or LICENSEE's Property, or any part thereof, is not removed and located to another site upon receipt of IRC's notice within the time required by IRC's permitting regulations, then, unless LICENSEE demonstrates to the reasonable satisfaction of IRC that the removal and location of LICENSEE's Property in another portion of the Public Rights-of-Way will be completed before IRC must occupy such portion of the Public Rights-of-Way, LICENSEE shall be deemed to have designated IRC as its agent and at LICENSEE's sole cost and expense to remove or cause the removal of LICENSEE's Property, or any part thereof, and no liability shall accrue to IRC by its action. LICENSEE covenants and agrees to pay IRC, upon demand, IRC's actual costs of removal, and this obligation shall survive the expiration or earlier termination hereof. 10.6 LICENSEE Shall Furnish Plans Which Depict Location Of LICENSEE's Property Within Public Rights-Of-Way. LICENSEE promptly shall furnish to IRC plans and record drawings showing, in detail, the exact location, depth, and size of LICENSEE's Property in the event that LICENSEE locates LICENSEE's Property within the Public Rights-of- Way, including, but not limited to, the profiles of all street crossings within such time frame and containing such detail as may be reasonably established by IRC. 10.7 Permitting Requirements Take Precedence. To the extent that the requirements of IRC's permitting regulations conflict, directly, with the Provisions of this Agreement, IRC's permitting regulations shall control. 10.8 LICENSEE Shall Maintain LICENSEE's Property. LICENSEE shall be solely responsible, at its own expense, for the purchase, installation, operation, maintenance and repair of all LICENSEE's Property required in connection with its use of IRC Fiber licensed to LICENSEE. ARTICLE 11 18 ACCEPTANCE 11.1 Acceptance Of The Licensed Fibers. Upon completion of construction of Fiber Optic System and any LICENSEE Make Ready Work, IRC will Acceptance Test IRC Licensed Fibers to insure that the Licensed Fibers meet or exceed the specifications outlined in Exhibit B. In the event the Licensed Fibers meet such specifications, IRC shall notify LICENSEE in writing of the availability of the Licensed Fibers. Within five (5) Business Days of the Fiber Notice Date, LICENSEE shall give IRC written notice of any failure of the Licensed Fibers to satisfy Acceptance Test and meet specifications, or provide IRC with LICENSEE's Notice of Acceptance (substantially in the following form.- "LICENSEE orm:"LICENSEE has examined the Licensed Fibers and hereby accepts them.") 11.2 Corrections. If LICENSEE gives IRC written notice of such failure, IRC shall use its best commercial efforts to correct such failure, whereupon LICENSEE and IRC shall jointly conduct another Acceptance Test. This procedure shall be repeated until all Licensed Fibers meet or exceed the specifications in Exhibit "B". 11.3 Conditional Acceptance. In the event deficiencies continue to be identified after the third round of testing, LICENSEE may, at its option, conditionally accept the Licensed Fibers. IRC will correct any such deficiencies within sixty (60) Days of conditional acceptance. 11.4 Acceptance By Default. If LICENSEE does not give IRC written notice of such failure within five (5) Business Days of LICENSEE receiving the Fiber Notice, it shall be deemed that LICENSEE has accepted the Licensed Fibers. 11.5 Fiber Acceptance Date. The Day on which LICENSEE has accepted (including acceptance by default)the Licensed Fibers (in accordance with this Article 11) is the Fiber Acceptance Date. ARTICLE 12 UTILITIES AND OTHER SERVICES 12.1 LICENSEE Must Continue To Pay For Other Utilities And Services. LICENSEE covenants and agrees to pay, when due, all charges for other utilities and services used or enjoyed by LICENSEE or required for the use, enjoyment and occupancy of LICENSEE's Property and the Telecommunications Infrastructure, or any part thereof, including the Licensed Fibers, to the degree or extent such services are provided by and separately billed to LICENSEE by IRC. 12.2 LICENSEE Must Pay License Fees Even If There Is An Electrical Power Outage. IRC shall not be liable for any damages resulting from, and LICENSEE expressly waives any and all claims against IRC for compensation occasioned by, and the License Fees and other Charges shall not be abated by reason of, the failure of IRC to furnish, or delay in furnishing, any utility service which is necessary to the use, enjoyment or occupancy of LICENSEE's Property or the Telecommunications Infrastructure, or any part thereof, 19 including the Licensed Fibers, when such failure or delay arises in connection with or is caused by an event of Force Majeure, or when such failure does not arise in connection with or is caused by an event of Force Majeure and continues for a continuous period of not more than five (5) Days. A failure of IRC as contemplated in the preceding sentence shall not be deemed or construed to relieve LICENSEE of its responsibilities under this Agreement. ARTICLE 13 AUTHORITY TO ENTER INTO AGREEMENT 13.1 LICENSEE's Representations. LICENSEE represents and warrants: 13.1.1 Corporate Authority. It is a political sub-division of the state of Florida, County of Indian River. It has all requisite corporate power and authority to own its property, real and personal, and operate as and where it is now being conducted. 13.1.2 Authority To Enter Into This Agreement. It has the power and authority to enter into this Agreement and perform its obligations set forth in this Agreement. The execution, delivery and performance hereof have been duly authorized by all necessary corporate actions and proceedings. This Agreement is (and any other instrument, document or writing to be executed and delivered pursuant hereto will be) legal, valid and binding obligations of LICENSEE, and enforceable against LICENSEE in accordance with the Provisions hereof except as may be limited by applicable Laws. 13.1.3 Terms Of This Agreement Will Not Conflict With Articles Of Incorporation, Bylaws, Etc. The execution and delivery hereof and any other instrument, document or writing contemplated hereby by LICENSEE will not conflict with or violate or constitute a breach or default under the Articles of Incorporation or Bylaws of LICENSEE or the provision of any mortgage, trust, indenture, bond, lien, pledge, release, agreement, guaranty or instrument to which LICENSEE is subject. 13.1.4 LICENSEE Shall Furnish True and Correct Documents And Statements. All information, financial statements, records, reports, resolutions, certifications and other documents or writings which will be submitted by LICENSEE pursuant to the Provisions hereof will be true and correct at the time such information, financial statements, records, reports, resolutions, certifications and other documents or writings are submitted or made available to IRC. 20 13.1.5 No Outstanding Claims Or Legal Action That Would Interfere With Performance Of Agreement. There are no unresolved claims or disputes between LICENSEE and IRC. There are no actions, suits or proceedings pending or, to the knowledge of LICENSEE, threatened against LICENSEE that, if adversely determined to LICENSEE, would materially and adversely affect the ability of LICENSEE to perform its obligations under this Agreement. 13.2 IRC's Representations. IRC represents and warrants: 13.2.1 IRC's Authority. It is a political subdivision of the State of Florida It has all requisite power and authority to own its property, real and personal, as and where it is now being conducted. 13.2.2 Authority To Enter Into This Agreement. It has the power and authority to enter into this Agreement and perform its obligations set forth in this Agreement. The execution, delivery and performance hereof have been duly authorized by all necessary actions and proceedings. This Agreement is (and any other instrument, document or writing to be executed and delivered pursuant hereto will be) legal, valid and binding obligations of IRC, and enforceable against IRC in accordance with the Provisions hereof except as may be limited by applicable Laws. 13.2.3 Terms Of Agreement Consistent With IRC Charter And Code. The execution and delivery hereof and any other instruments, documents or writings contemplated hereby by IRC will not conflict with, or violate any Provision of, IRC's Charter or Code of Ordinances. ARTICLE 14 COMPLIANCE WITH LAWS 14.1 IRC Will Maintain Necessary Public Rights-Of-Way, Etc. IRC shall have and maintain in effect at all times, all necessary franchises, consents, Public Rights-of- Way, Public Easements, permits and authorizations applicable to this Agreement, if any, from federal, state, county, city and other regional or local authorities, to construct, maintain, operate, and use the Fiber Optic System. 14.2 LICENSEE Will Maintain Necessary Public Rights-Of-Way, Etc. LICENSEE shall have and maintain in effect at all times, all necessary franchises, consents, Public Rights-of-Way, Public Easements, permits and authorizations applicable to this Agreement, if any, from federal, state, county, city and other regional or local authorities. IRC expressly agrees that this Agreement constitutes the sole and complete agreement and requirement for use of the Licensed Fibers by LICENSEE 21 and that it shall not require an IRC Public Rights-of-Way agreement or permit of LICENSEE for such use. 14.3 IRC And LICENSEE Shall Comply With The Law. LICENSEE and IRC each shall comply with all applicable federal, state and local Laws and regulations including, but not limited to, those of the Federal Communications Commission and the Florida Public Service Commission. ARTICLE 16 NO THIRD PARTY BENEFICIARIES This Agreement does not provide third Parties (including without limitation customers of IRC or of LICENSEE) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege, except that the Provisions hereof involving indemnification or limitation of liability of either Party shall also inure to the benefit of that Party's employees, officers, agents, affiliates, and any other benefited Persons specifically identified in the applicable Provision. The relationship between IRC and any of its customers is governed solely by the terms and conditions of IRC's agreements and applicable tariffs. The relationship between LICENSEE and its customers is governed solely by the terms and conditions of any agreement between LICENSEE and its customers. ARTICLE 17 INDEMNITY, HOLD HARMLESS 17.1 LICENSEE Indemnity of IRC. LICENSEE agrees to indemnify, hold harmless and defend (with counsel reasonably acceptable to IRC) IRC, its commissioners, directors, employees, contractors, agents, representatives, and each of them, against any and all administrative and judicial proceedings and orders, charges, claims, costs, damages, demands, expenses, fines, judgments, liabilities, losses, penalties, and remedial actions of any kind, including the costs of any hazardous materials remedial actions of any kind and all other related costs and expenses incurred in connection therewith, including, but not limited to, reasonable attorney's fees and the costs of defense arising out of injury to Persons, including but not limited to death, or damage to property, caused by, directly or indirectly, in whole or in part, the negligence of LICENSEE, or its officers, employees, or agents, in connection with this Agreement. Nothing contained herein shall be construed as a waiver of any immunity from, or limitation of, liability either party has under the Doctrine of Sovereign Immunity of Section 768.28 Florida Statutes. 17.2 Binding On Successors. The indemnification and hold harmless Provisions set forth in Section 17.1, above, shall be binding upon the successors and assigns of LICENSEE, provided, however, any non-governmental successor of LICENSEE shall not be subject to the limitation of liability in Section 768.28, Florida Statutes. 17.3 Additional Remedies. The indemnification and hold harmless Provisions set forth in Section 17.1, above, shall be in addition to any other remedy available under this Agreement, or at Law or equity, and shall survive the term of this Agreement executed 22 pursuant hereto, with respect to any circumstance or event occurring before termination. Under no circumstance shall IRC be liable for damages of any nature to LICENSEE, its successors or assigns in excess of the amount equivalent to the License Fees paid by LICENSEE to IRC for the twelve (12) month period prior to the date of the claim or demand for damages. ARTICLE 18 INSURANCE 18.1 LICENSEE Responsible For Compliance With Insurance Requirements. During the Term of this Agreement, LICENSEE, at its sole cost and expense, shall procure and maintain insurance of the types and to the limits specified below. 18.2 Coverage. Except as otherwise stated, the amounts and types of insurance shall conform to the following minimum requirements: 18.2.1 Workers' Compensation And Employers' Liability insurance which provides coverage for all employees for Statutory Limits in compliance with the applicable state and federal Laws. In addition, the policy must include: A. Employer's Liability with a limit of $100,000 each accident and disease. B. Notice of Cancellation and/or Restriction — The policy must be endorsed to provide IRC with thirty (30) Days' notice of cancellation and/or restriction. C. If any operations are to be undertaken on or about navigable waters, coverage must be included for the U.S Longshoremen & Harbor Workers Act and Jones Act. 18.2.2 Commercial General Liability— Coverage must be afforded on a form no more restrictive than the latest edition of the Commercial General Liability Policy, on an occurrence basis, filed by the Insurance Services Office and must include: A. Minimum limits of $1,000,000 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. B. Premises and Operations C. Independent Contractors. 23 D. Products and Completed Operations — LICENSEE shall maintain in force until at least three (3) years after completion of all services required under the contract, coverage for products and completed operations, including Broad Form Property Damage. E. Broad Form Contractual Coverage applicable to this specific contract, including any hold harmless and/or indemnification agreement. F. Notice of Cancellation and/or Restriction — The policy must be endorsed to provide IRC with thirty (30) Days' notice of cancellation and/or restriction. 18.2.3 Business Auto Policy— Coverage must be afforded on a form no more restrictive than the latest edition of',Business Auto Policy filed by the Insurance Services Office and must include: A. Minimum Limits of $300,000 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. B. Owned Vehicles. C. Hired and Non-Owned Vehicles. D. Notice of Cancellation and/or Restriction — The policy must be endorsed to provide IRC with thirty (30) Days' notice of cancellation and/or restriction. 18.3 IRC Shall Be Named As Additional Insured. Such insurance shall name IRC, its commissioners, directors, employees, agents, and Contractors as additional named insureds as respects any liability arising out of LICENSEE's performance of work under this Agreement pursuant to ISO Form No. GC2010. Coverage shall be provided in accordance with the limits specified and the conditions indicated therein. Claims-made policies are not acceptable. When an umbrella or excess coverage is in effect, coverage shall be provided in "following form." Such insurance shall not be cangeled or materially altered to reduce coverage until IRC has received at least thirty (30) Days' prior written notice of such cancellation or change. LICENSEE shall be responsible for notifying IRC of such change or cancellation. 18.4 LICENSEE's Insurance Carrier Shall Be Authorized To Conduct Business In Florida. Any insurance carrier of LICENSEE shall be admitted and authorized to transact insurance business in the State of Florida and shall be rated at least A- VII in Best's Key Rating Guide, or shall be specifically approved by IRC through IRC's risk manager. 24 18.5 Certificates Of Insurance. Certificates of insurance evidencing the insurance coverage specified in the previous paragraphs shall be filed with IRC before operations are begun. The required certificates of insurance not only shall name the types of policies provided, but also shall refer specifically to this contract and section and the above paragraphs in accordance with which insurance is being furnished, and shall state that such insurance is as required by such paragraphs of this contract. If the initial insurance expires prior to the completion of the work, renewal certificates of insurance and required copies of policies shall be furnished thirty (30) Days prior to the date of their expiration. 18.6 LICENSEE's Insurance Requirements Subiect To IRC's Annual Review. LICENSEE's insurance requirements, as set forth in this Article 18, shall be subject to the review, annually, by IRC's risk manager. If IRC's risk manager requires any change in coverage, notice thereof shall be given to LICENSEE, in writing, and LICENSEE shall comply with such notice within thirty (30) Days of receipt thereof. ARTICLE 19 DEFAULT AND REMEDIES FOR DEFAULT 19.1 IRC May Terminate If LICENSEE Defaults. IRC may terminate this Agreement upon the occurrence of a material breach of its Provisions and a default by LICENSEE under this Agreement, and LICENSEE fails to cure the same within the time periods set forth within this Agreement, or if no time period is set forth, within thirty (30) Days after receipt of notice thereof from IRC, or, when the cure reasonably requires more than thirty (30) Days, the failure of LICENSEE to commence to cure within thirty (30) Days of receipt of notice thereof from IRC and thereafter diligently and continuously prosecute such cure to completion, including, but not limited to, any of the following: 19.1.1 Failure To Pay License Fee. Failure to pay any License Fee, or Charge, when due (as set forth in Section 5.3 ), regardless of whether LICENSEE in good faith disputes all or any portion of such License Fee, or Charge, and the failure continues for a period of thirty (30) Days from the License Fee's or Charge's due date; 19.1.2 Failure To Pay Tax. Failure to pay any Tax, when due, or the failure-to perform any other obligation requiring the payment of money under the Provisions hereof, and the failure continues for a period of thirty (30) Days, regardless of whether LICENSEE in good faith disputes all or any portion of such Tax, in which case LICENSEE shall pay only the undisputed portion, if any, until such dispute is resolved; 19.1.3 Failure To Comply With Terms Of Agreement. Failure to observe, perform or comply with any material Provision of this Agreement required to be"observed, performed or complied with by LICENSEE, 25 19.1.4 Assignment. Assignment or transfer of its interest in this Agreement, whether voluntarily or by operation of Law, in violation of the Provisions of this Agreement, 19.1.5 General Assignment. General assignment of its assets for the benefit of its creditors; 19.1.6 Abandonment Of LICENSEE's Property. Abandonment of LICENSEE's Property in violation of the terms of this Agreement or a failure to notify IRC of such abandonment; 19.1.7 False Representations Or Statements. Any representation, warranty, or statement made by LICENSEE in this Agreement that shall prove to have been incorrect in any material respect when made. 19.2 LICENSEE's Termination For Default. In the event of a default by IRC, LICENSEE shall give notice of default to IRC at least thirty (30) Days before any notice of termination shall become effective. This Agreement may be terminated by LICENSEE upon the occurrence of any of the following defaults by IRC: 19.2.2 Failure To Comply With Terms Of Agreement. Failure to observe, perform or comply with any material Provision hereof required to be observed, performed or complied with by IRC, and IRC fails to cure the same within thirty (30) Days, or, when the cure reasonably requires more than thirty (30) Days, the failure of IRC to commence to cure within such thirty (30) Days and thereafter diligently and continuously prosecute such cure to completion; 19.2.3 General Assignment. General assignment of its assets for the benefit of its creditors, or the filing by or against IRC a petition to have IRC adjudicated a bankrupt, or a petition for a reorganization or arrangement under any Law relating to bankruptcy or insolvency, unless the same is dismissed within one hundred eighty(180) Days after the same is instituted, unless IRC upon the written demand of LICENSEE indemnifies LICENSEE against loss or damage suffered by LICENSEE as a result of IRC's non- performance pursuant to such order or decree; 19.2.4 Court Enjoins Or Prohibits IRC From Performing. A Person other than LICENSEE obtains an order or decree in any court of competent jurisdiction enjoining or prohibiting IRC from performing under this Agreement, and such order or decree is not vacated within one hundred eighty (180) Days after the granting thereof, unless IRC upon the written demand of LICENSEE indemnifies LICENSEE against loss or damage suffered by LICENSEE as a result of IRC's non-performance pursuant to such order or decree; and 26 19.2.5 State Terminates /RC's License, Etc. In the event that the State of Florida terminates any license or any other agreement to which IRC or State and IRC are Parties, it shall be a ground for termination for cause, if LICENSEE's use of substantially all Licensed Fibers is effectively terminated by the action of State of Florida. If LICENSEE shall prove to the reasonable satisfaction of IRC that LICENSEE has lost the use of substantially all Licensed Fibers, LICENSEE may terminate this Agreement. No liability shall accrue to IRC on account of the termination of any license or other agreement with the State which results in LICENSEE's loss of use of substantially all Licensed Fibers. 19.3 IRC's Additional Rights And Remedies. In addition to all other rights and remedies provided by Law or otherwise provided in this Agreement, to which IRC may resort cumulatively, or in the alternative, IRC may: 19.3.1 Keep Agreement In Effect. Except as otherwise provided herein, keep this Agreement in effect and enforce all of its rights and remedies hereunder, including the right to payment of all License Fees and Charges as they may become due, by appropriate legal action; 19.3.2 Seek Specific Performance. Seek the specific performance hereof by LICENSEE or other rights or remedies at Law or in equity; and 19.3.3 Terminate For Cause. Terminate for cause this Agreement by giving notice of termination. 19.3.4 Accelerate License Fee. IRC is entitled to the License Fee and any additional amounts that are due and unpaid, and those payments will become due immediately. 19.3.5 Liquidated Damages. If IRC is entitled to liquidated damages, LICENSEE shall pay such damages in installments on the Day License Fee is payable. The amount of liquidated damages will be computed as follows: (A) The deficiency between the License Fee paid and any net amount of the License Fees still to be collected under this Agreement or any Extension Term of this Agreement for each month of the remaining Initial Term or Extension Term, plus; (B) The expenses that IRC incurs in connection with LICENSEE's default, such as legal expenses, court costs, attorneys' fees, including those at trial and appellate levels. ARTICLE 20 RESTRICTIONS AGAINST TRANSFER Neither Party shall sell, assign, transfer, or otherwise alienate or dispose of this Agreement or the privileges hereby granted, without the prior written consent of the other 27 Party, which consent shall not be unreasonably disposed of, withheld or delayed. Notwithstanding the foregoing, this Agreement may be sold, transferred or otherwise disposed of or assigned by LICENSEE without the approval or prior consent of IRC to any parent, successor, subsidiary or affiliated company of LICENSEE. ARTICLE 21 FAILURE TO ENFORCE PROVISIONS IS NOT A WAIVER The consent by a Party to any act by the other Party shall 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 other Provision, nor shall any custom or practice which may arise between the Parties in the administration of any part 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. ARTICLE 22 SEVERABILITY In the event that any Provision of this Agreement shall be held unconscionable, unenforceable, or void for any reason by any tribunal of competent jurisdiction, it is agreed that the Provision in question shall be modified to eliminate the elements of concern to the tribunal and as modified shall be binding on the Parties hereto. The remaining Provisions shall not be affected by the action of any tribunal or modification of such Provision, and shall remain in full force and effect ARTICLE 23 FORCE MAJEURE In the event of any failure or delay resulting from a Force Majeure event, upon notice to the other Party within thirty (30) Business Days of occurrence of the event giving rise to the delay the time for performance hereunder shall be extended for a period of time reasonably necessary to overcome the effects of such delays. In the event any such failure or delay shall last for a period of more than one hundred eighty (180) Days, then either Party may terminate this Agreement forthwith, in whole or in part, by notice in writing to the other. [THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.] 28 ARTICLE 24 NOTICE Except for Notices relating to construction, outages or maintenance which shall be as provided in Exhibit"C"attached hereto, any notice, request, instruction, demand, consent, or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered either by hand or by certified mail, postage prepaid, and certified return receipt requested to the following address or such other address as the Parties may provide to each other in writing: To LICENSEE: (To be completed by Licensee) Telephone: Facsimile: With a copy to: (To be completed by Licensee) To IRC: With a copy to: 29 ARTICLE 25 CHOICE OF LAW; VENUE The validity, interpretation, and enforcement of this Agreement shall be governed by the Laws of Florida without regard to conflict of Law applications. Indian River County, Florida, shall be proper venue for any litigation involving this Agreement. Any legal proceedings of any nature brought by either Party to enforce any right or obligation arising out of this Agreement shall be submitted to trial without jury before any court of competent jurisdiction in Indian River County, Florida. The Parties consent and submit to the jurisdiction of any such court in Indian River County, Florida, and agree to accept service of process outside the state of Florida in any matter submitted to any court pursuant hereto. ARTICLE 26 ENTIRE AGREEMENT This Agreement represents the entire Agreement between the Parties and supersedes all prior Agreements or representations, whether written or oral, with respect to the subject matter hereof. There are no representations, warranties, agreements or understandings (whether oral or written) between the Parties relating to the subject matter hereof which are not fully expressed herein. No Provision of this Agreement may be changed or amended except by written Agreement signed by both Parties. ARTICLE 27 PARTIES BOUND This Agreement shall be binding upon the Parties hereto and their respective successors, heirs, personal representatives and permitted assignees. ARTICLE 28 CONSTRUCTION; HEADINGS SOLELY FOR CONVENIENCE 29.1 Ambiguities Not To Be Resolved Against Draftinq Party. Each Party and its counsel have reviewed this Agreement. Accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the construction and interpretation hereof. 29.2 Article, Section, And Sub-Section Headings For Convenience. The capitalized and bolded ARTICLE HEADINGS, underlined and initial capitalized Section Headings and the italicized and initial capitalized Sub-Section Headings, hereof, are inserted for convenience of reference only, are not a part hereof and shall have no effect on the construction or interpretation hereof. IN WITNESS WHEREOF, the Parties hereto have caused these presents to be executed, by their respective officers thereunto duly authorized, on the Day, month and year first above written. 30 ATTEST: LICENSOR: BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY Jeffrey R. Smith, Clerk of the Circuit Court and Comptroller • p�1MISS% . • Deputy Clerkt'Cj:�. '•, nt: Bob Solari Chairman Approved as to form and ?°'9;y �' •f�Q� a••R��ER COVLk ''. Legal ufficiency: . dol&, County Attorney 1 A Joseph . Baird, County Administrator STATE OF FLORIDA COUNTY OF INDIAN RIVER The foregoing instrument was acknowledged before me this lst day of Marrh , 2016, by Bob sol r; as Chairman, and attested by Leona Allen en , as Deputy Clerk They are both known to me and did not take an oath. NOTARY PUBLIC Sign: Print: misty z lairsel State of Florida at Large [SEAL] My Commission Number: FF65450 My Commission Expires: 1/11/16 [AFFIX NOTARY SEAL HERE] 32 CORPORATION: THIS AGREEMENT MUST BE EXECUTED BY THE CHIEF EXECUTIVE OFFICER, OR PRESIDENT OR VICE-PRESIDENT, AND THE SECRETARY OR ASSISTANT SECRETARY, UNLESS THE BYLAWS OR A RESOLUTION OF THE BOARD OF DIRECTORS SHALL OTHERWISE PROVIDE, IN WHICH EVENT A CERTIFIED COPY OF THE BYLAWS OR RESOLUTION,AS THE CASE MAY BE, MUST BE FURNISHED. ALSO, THE CORPORATE SEAL OF LICENSEE, IF LICENSEE HAS SUCH A SEAL, MUST BE AFFIXED. WITNESSED BY: LICENSEE: Sign: Sign: Print: Print: Title: Sig . Print: &-r [AFFIX CORPORATE SEAL HERE].-__ STATE OF FLORIDA COUNTY OF INDIAN RIVER The foregoing instrument was acknowledged before me this day of 2016, by NOPE T�Sa-,k is personally known to me or produced as identification and did/did not take an oath. NOTARY PUBLIC Sign: Print: State of Florida at Large [SEAL Commission Number: My Commission Expires: [AFFIX NOTARY SEAL HERE] �0%%111umii1,,, C. C''�'. p�',o�,�A1SSI0iyF;FcP'. ��•; FF 925883 Q�s EXHIBIT "A" ROUTE DIAGRAM - ::z -e i ._a-"_=a,_Y•...--rim-.w _ .�' .:e•:.:- w=•'�,;.� - „� _ - -L-=L' •] �_ _ { � .•sL�:ii•,�, l� G� .,yam �y. - a �4ur,�ps. �'+5`+' ���}_'.� lty r `2�''t�+..� t� ,3t.ji:!I -•.a �y�,. 7 `+C=' �.i�} `r,Y a y` y.•" "vT_ ,' 4F��:''"y '•�Srxy`_y .`t:,,y;." � _:�.n'. �����.,��� $ - -1'• •(• �, �',J {• � �e��:itfi1 � � � •�a�`�' -�'' 'j{ - ;6•>'�`.'^K.\'Y"3�.'•3 _ '��"•+•" Z:.�.r.�.t-•+• L,•y 4�' L'. ,s` �-l• "{r•�qe(Te' 4.•.". 2a��_1�;.�`,i4�'�N 5 _ -�C.--��3y�+:y✓fi� _ ��4: �:s ��-xy..t7- .. fi�'L:. __- ti_ t �_:• ,4<,�-vim t t\' `-F+i. -���`�� :.Y,.. �•j. .C3 �j "' �� 1 " 1�'r iY?�;��.'f >n�3`" `� '� �4 w f^j;rxFi:`.v..- +`y M1� "�a= � v4Y.+ 4 � �_ t20nD 5U7 r. :,�i:i ;fy s:• s' tt 3`;a+' '"L'.:: yet - .� .. .�.�-,�:.;..•. Y�� 1Pa{:'L3[y�}y. ` v�3 i}V,�i�.".-,cdrr,�r—�s.-s �•"� ��� ' ..:,�;�1� � � h� F,ellsmere (�� z. �yy i� �I f-c+_.'y���;.`•V ea.�?r'.� r, � <- _�; < L~ .fi�✓'�. - .�� 307 '`r� � f.1� -: �``-"_� c;i?�_ux" .��.''•3� �'`�C ��-�.yc- �•+t22 y VNilcoma � � ,,,_-. '�-•- In*' � "S':t:..'`���x•� .ate cam. Center itr!a�£ �w '" T" 1 ' .a ,couNlvaonost2- 4 E ' G:es�e�re�' �,�-•� Cfly Bell '��56g'�r�e+• ?-r?� �E_-�* ��� a -�e� '.��r-vr~,;';�.,tAfittee.. ��jt '�``'G.`'?,�'� .-a �� t• a.- �' �xR� - _ t� itrr :ice:- :`� '���- �' ••3�� � i�3 �s _ yy ���r, - Qr,4 - :3'y~�� _� _- 'M'� .J:.e, 1�Y, „ �i.;.r`=c-�;-r•5•. '3'J-'* l.. �Fs.°Jt . �•P � 1 � '�. 'L w;5!rt 'L_ 0��,�!,�� .qt'.�� .y,. u ��RK�3. :�7a�'i�5�^'�'��-� �ty-gw••��<_�{^-•�.,'i'4 •�'�'.� �t �• � - - `a o�:Y447y2,r•.-�-J_u' ',..' F +h.%%�"•}'-r S�asM� `''4�. Y�,-Y.a�i•�. _ -•`� .. �•��!. � � - : - ' :' .,,�:t Fes •.�� Y� - -t'� �: ��.:,�=>,, , '+<' xtV.F':t;'iy'�`. ,Ab;+^� _ iH..r�.-.,,r.r• + � �,�. 'v :' `='Zir`?Y '�' f' - n�yr s ��v �'.,'r��.'� 4.'."• �s•uYy i•�v .�j� .- _ L � _ :i,i C Vii" �i _x, � s.: •".� 'ti:� Y:-�"' •y��e[ +-,Y,. _ T Y�..r .rF' - i�t'y'. � 1 'j} .GJ,,..... _Yi' •: -` � - _ :d��'�n T-iv, �"��*�• Proposed Map Date;11/1 9120 1 5 i,ir•e+ y�) Q Endpoints roposed 1~ellsrnrre. V elcaine Cc11tC1' fiber Connection 0 1,000 2,000 4.O Feat �•• �ExmUng Fltrer 35 EXHIBIT "B" FIBER SPECIFICATIONS AND CONNECTION DETAILS FIBER: All Fiber will meet or exceed the Corning SMF-28, dual 1310/1550 window optical glass specifications: Maximum attenuation for 1310 nm systems will be .35 dB/km Maximum attenuation for 1550 nm systems will be .25 dB/km SPAN SPECIFICATIONS: Discontinuities (known as steps, Splices, or attenuation non-uniformities) shall be measured with an Optical Time Domain Reflectometer (OTDR) to determine the loss for the localized attenuation. No Fiber shall show a point discontinuity greater than 1.0 dB. However, a Fiber Span that includes a discontinuity in excess of specifications may still be considered acceptable, with mutual agreement of IRC and LICENSEE, provided said Fiber still meets LICENSEE's overall attenuation and dispersion specifications. Performance levels will be maintained as accepted through the duration of the Agreement. OPTICAL SYSTEM LOSS TABLE WAVE MAXIMUM MAXIMUM AVERAGE MAXIMUM AVERAGE LENGTH NM FIBER CONNECTOR LOSS PER LOSS PER LOSS PER LOSS/KM LOSS SECTION SPLICE SPLICE 1310 .35 dB .5 dB .06 dB .2 dB .06 dB 1550 .25 dB .5 dB .06 dB .2 dB .06 dB GENERAL CONSTRUCTION: The Fiber Optic Cable will be constructed in accordance with sound commercial practices. The National Electric Safety Code will be followed in every case except where local regulations are more stringent, in which case local regulations shall govern. Optical and span test data, including OTDR traces, will be submitted by IRC to LICENSEE at an agreed upon schedule. 36 EXHIBIT "C" CONTACT LIST AND OUTAGE NOTICE FORM Notification To LICENSEE: All notices relating to construction, outage, or maintenance should be relayed to LICENSEE through this number: Telephone: (To be provided by Licensee.) Notification To IRC: All notices relating to construction, outage, or maintenance should be relayed to IRC through this telephone number: Telephone: 37 1 EXHIBIT "D" SAMPLE NOTICE OF ACCEPTANCE Date- To: [Person Specified in Article 24] Re: Notice of Acceptance of Licensed Fibers Dear [Person Specified in Article 24]: Our technical person tested the licensed fibers, today, and confirmed that they meet the Performance Specifications required by our Agreement. Accordingly, today, we accepted the Licensed Fibers as operational. In accordance with our Agreement, I have enclosed, herewith, the first installment of the License Fee ($ �. Sincerely yours, By: cc: [Person Specified in Article 24] 38 EXHIBIT "E" SAMPLE NOTICE OF TERMINATION WITHOUT CAUSE Via Certified Mail, Return Receipt Requested Article Number Dear In accordance with Article 3 of our Agreement you are hereby notified that in twelve (12) months from your receipt of this Notice Of Termination Without Cause this Agreement shall terminate (unless this Agreement terminates sooner in accordance with other terms of our Agreement) and you shall no longer have a license and privilege to use the Licensed Fibers. 39 EXHIBIT "F" SAMPLE NOTICE OF TERMINATION WITH CAUSE Date: Via Certified Mail, Return Receipt Requested Article Number [Person Specified in Article 24] Dear [Person Specified in Article 24]: In accordance with Article 19 of our Agreement, you are hereby notified that you are in default of our Agreement. If you fail to cure your default within the time specified within our Agreement, or if no time is specified within thirty (30) days, IRC may elect to terminate our Agreement with cause. You are in default as follows: Your failure to Pay License Fee. Your failure to Pay Tax. Your failure to Comply With Terms of Our Agreement. Your Unauthorized Assignment. Your Unauthorized General Assignment. Your Bankruptcy. Because a Court has Enjoined or Prohibited you from Performing. Your False Representations or Statements. Sincerely yours, cc: [Person Specified in Article 24] 40 EXHIBIT "G" SAMPLE LICENSEE'S NOTICE OF TERMINATION WITHOUT CAUSE NOTE: LICENSEE may only terminate without cause during the Extension Term (if any) Via Certified Mail, Return Receipt Requested Article Number Dear In accordance with Article 3 of our Agreement you are hereby notified that in ninety (90) Days from your receipt of this Notice Of Termination Without Cause this Agreement shall terminate (unless this Agreement terminates sooner in accordance with other terms of our Agreement) and we shall no longer have a license and privilege to use the Licensed Fibers, nor be obligated to pay the License Fee. xc: 41 EXHIBIT "H" SAMPLE NOTICE OF DISCONNECTION Via Certified Mail, Return Receipt Requested Article Number Dear 0 In accordance with Section 3.9 of our Agreement you are hereby notified that in five (5) Days from your receipt of this Notice Of Disconnection IRC shall disconnect the Licensed Fibers. As further set forth in Section 3.9 of our Agreement, you must remove your property, if any, from the Public Rights-Of-Way within thirty (30) Days from receipt of this Notice of Disconnection. If you fail to remove your property from the Public Rights-of-Way within thirty (30) Days, your property shall be deemed abandoned and IRC shall remove your property (in accordance with Article 9) from the Public Rights-of-Way at your expense. As you know, our Agreement terminated on for (cause / convenience). 42 J