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HomeMy WebLinkAboutC2007-100 - 4/17/2007 - ApprovedReciprocal Fiber License Agreement TI~IS Recipx cal ~'i er L..~~cense :-~greement (this "A~reement" or "License") is made and enter~d into as ot(~)1«. #°!_. Z007 (the "Effective Date") by and between City of Corpus Chrfs~i. Texas ("Ci~"1 and Granc~e Comrnunications Networks, Inc., a Delaware corporation (:`Gr~de '}. RECITALS ,a City and (~rande each owns a fiber optic communication system in the City of C°orp~s Christi, referred tc~ as the C'ity System Route and Grande System Route, respectively. 3 Cit} desires to be granted the right to use, and Grande is willing to grant to City the rt~ht to use certain dark fibers and associated property in the Grande System Route, on the ternls and conditions set forth bel~~v. ~: Grande desires to be granted the right to use, and City is willing to grant to Crrande the right to use certain dark fibers and associated property in the City System Route, on the terms atad conditions set forth below D Each defined term ~hali have the meaning set forth in this Agreement where such term is first used, or, if ~lo meaning is so set forth, the meaning ascribed to such term in the C'Tl~ssar~- of Terms w~hich is attached hereto and incorporated herein by this reference. A~cordingly, in consideration of the mutual promises set forth below, and other good and ~ alu~le consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: ARTICLE 1. Licensed Fiber 1 1 Grande hereby grants to Lity, and City hereby accepts from Grande: (a) the e~clusive right and license (the "City Fiber License") to use certain ~,ommunications dark fibers (the "Grande Fibers") which will be specifically identified by Grande in the Grande System Route as depicted on Exhibit A attached hereto and incorporated herein; and (b) the nonexclusi~~z right and license to use the tangible and intangible property needed for the use of the (Trande Fibers (collectively, the "Grande Associated Property"), including but not iimited tu the associated conduit; and (2'f Crrande's rights in all Grande Underlying Rights. 2007-100 0~;17/07 r Ord027222 Grande (~ommutlicatiOns Network ~ET~~~ORKS. ]Ni; CONFIDENTIAL AND PROPRIETARY „.,. .:y.,» .... .. , . ,e.,„ ,. ,.._.,.,~..., . . .,.~ _ , . . ~ . y~ .~.. .» _,....,,~ '' City~ hereb~ grants to Grande, and Grande hereby accepts from City_ (a) rhe exclusive r~ght and license (the "Grande Fiber License") to use certain ~ ommunications dark fibers (the "City Fibers") which will be specifically identified by ~: ity in the C:ity S~-stem Raute as depicted on the attached Exhibit Al attached hereto and incorporated hereirl; and (b) the nonexclusi~e right and license to use the tangible and intangible City property needed for the ~se of the City Fibers (collectively the "Citv Associated Pro~ertv"l, including but not limited to: (1) the associated conduit; and (2l City's rights in all City Underlying Rights. ~. 3 Neither party has the right to own, control, maintain, modify or revise the Fibers or As~ociated Property of the other part~~. '.-~ Neither party has the r~ght of physical access to, the right to encumber in any mant~er, or other use of the System Route of the other party, except as expressly set forth herein. ;.~ Each party shall ha~~e fuli and complete control and responsibility far determining any network and service configuration or designs, routing configurations, rearrangement or consc~lidation of channels or circuits and all related functions with regard to the use of that party's fiber. i.o Each party acknowiedges and agrees that the other party is not supplying nor is oblig~.ted to supply any optronics or electronics or optical or electrical equipment or other facilities, including without limitation, generators, batteries, air conditioners, fire protection and moni~oring and testing equipment. all ot which are the sole responsibility of the using party, nor is any party responsible for perforrning any work other than as specified in this Agreement. ARTICLE 2. ADDITIONAL CONSIDERATION FOR GRANTS ?.i Cit~~ shall pay directly or reimburse Grande for the costs and expenses described in ~icle 7. ?.? Upon the earlier oi~ (aj 90 days after the execution of this License; or (b) City's recei~t of notice from the Dir. of MIS that the Grande Fibers have been delivered to City, the C'ity shall irnmediately refund to Grande the $100,000 security deposit previously provided by Gran~e ta City pursuant to the terms and conditions of that certain Franchise Agreement, dated March i C~, 200C) and entered into by and between the parties hereto. ARTICLE 3. COIVSTRUCTION OF THE GRANDE FIBER SYSTEM GRAI~DE COMMUNtC.ATtON~ NETWORKS, I!~t'. CONF[DENTIAL AND PROPRIETARY ~. i Grande shall construct the Grande System Route as described on the attached Exhihit A The Grande `~ystem Route and the Grande Fibers therein shall meet or exceed the specifications set forth in Bxhibit E3. ?,? EXCept as may be provided herein. Grande shall, at Grande's sole cost and e~pense, procure all materials to be incorporated in and to become a permanent part of the Gran~e Svs~em Route. ARTICLE 3A i ONSTRUC"TION OF THE CITY FIBER SYSTEM ~~A.1 Cit}~ has c~nstructeci the City System Route as described on the attached Exhibit A1. The City System Route and khe City Fibers therein shall meet or exceed the specifications set fo~th in Exhibit B. ARTIC'LE 4. TESTING -~.1 Grande shall test all Grande Fibers in accordance with the procedures specified in Exhi ' it B("Fiber Testin~"). Fiber Testing shall proceed span by span along each Segment as cable splicing progresses, so that test results may be reviewed in a timely manner. Grande shall pro~tt~tly provide City with a copti~ of the test results. 4.? Grande will provide City reasonable advance notice of the date and time of each Fiber Testing so the City shall ha~ e the opportunity to have a representative present to observe the Fiber Testing. ARTICLE 5. TFR M >.l The grants of the City Fiber License and the Grande Fiber License shall each beco~e ef~setive on the Effective Date and shall each extend for a period of ten (10) years thereafter. The period of the fiber licenses granted herein is defined as the "Term." (a j At the expiration or other termination of this Agreement, the fiber licenses granted herein shall each immediately terminate, and all rights of either party to use the other party's Assaciated Property, or an~ par[ thereof, shall cease. ~.~ If at any time City determines that, with respect to any Segment, the Grande Fiberas have reached the end of their useful life ( as determined by City in its sole discretion), or City ~therwise desires not to retain this Agreement, City shall have the right to abandon the use of th~ Gra~de Fibers by notice t~~ Gr~uide. In the case of abandonment, this Agreement shall termi~nate as to such Segment, and (~'ity shall not be entitled to a refund of any of the consi~ieration paid GRAIdDE COMMUNICA"TION< NETWORKS. 1~;~' CONFIDENTIAL AND PROPRIETARY ,... ...,~ ~ , .,'.~. . .b,~..,.,: . _ ,b . . . _ . _, _. _._...~_ ..._ .~.~. ..~ .,,,~ ._.. . ..,,.. . -~~ _._,~„ ~.3 It is understood and ageed that Grande must and does maintain legal title to the entire (Jrande System Rotite, subject to the Grande Fiber License granted hereunder. The parties a~ree ta fi~e their i•espective income tax returns, property tax returns, and other returns and reports for their respecti~ e Impos~tions on such basis and, except as otherwise required by law, noC to take any positions inconsistent therewith. ~.-~ The term ~.~f this Agreement shall extend for two additional periods of five (5) years each, by agreemerit of th~ Parties, not later than twelve (12) months preceding the expir~tion of the Term (or the extended Term). ARTIC;LE 6. NETWORK ACCESS 6.1 (a) Grande shal] provide City with access to the Grande Fibers by cable stub taken by Grande from the Grande System Route in the public right of way adjacent to City facili~ies identified on Exhibit A. ~al) City shall provide Grande with access to the City Fibers by cable stub taken by Citv from the City System Route in the public right of way adjacent to Grande facilities ident~f ed on Exhibit Al (b i If either party desires additional Connecting Points on the System Route of tYre other party, the parties will negotiate in good faith the terms and conditions for such addi~onal Connecting Points. All ~onneeting Points shall be placed at splice points. (c) All eonnections to the Grande System Route shall be performed by Urande. in accordance ~~ith Urande's applicable specifications and operating procedures. The Cost ~of" sueh connections will be borne by Grande. It is the responsibility of City to obtain all govettimental and other approvals and consents necessary for the delivery of the cable stub. (c 1 i All connecti~ns to the Citv System Route shall be performed by City. The Cost of such connections will be borne bv City. (d j In ~~rder to ~chedule a Connection, each party shall request and coordinate such work with the other party not Iess than thirty (30) days in advance of the date the connection is requested tu be completed. Neither Grande nor City shall have any limitations on the types of electronics or technologies employed to utilize its fibers, subject to applicable safety proc~dures and so long as such electronics or technologies do not interfere with the use of or pres~t a risk of damage to an~~ partion i~f the other party's system. ARTICLE 7. MA1NZ ENANCE AND REPAIR OF THE FIBER SYSTEM ~ i Each Party shall ~~e responsible far maintenance and repair of its own Fiber Syst~m. The parties agree to maintain their respective System Route in accordance with the mair~#enance requirements and prc~cedures set forth in Exhibit D hereto. a GRAI`~DE ('OMMUNfCATION~ NETWOR-KS. INC~ CONFIDENTIAL AND PROPRIETARY _.,.. _-~ _..~. , ._ ~ ,~ . . Mn,.... . ..,,. ~ . .. _ . _ _.. .~,.._. _._,..,..... ..,.. _._,._ ......,. . . ,,,,~ e.~ .,_. „ ..... -- .... ~.,,,, ~'.' If~ Grande determi~~es that the fiber optic cable is technically or functionally obsolete and should be replaced on the Grande System Route or any Segment thereof, then C~rande n~ay, on not less ~~han one hundred twenty (120) days' written notice to City, substitute for il~e Grande Fibers on the Grande System Route an equal number of alternative fibers along the sarne or an alternati~°e route; provided that in any such event, such substitution (a) shall be u~ithaut interruption of service and use by City; and (b) shall not adversely affect the use, ~~pera#ic?n or perf~rmance of City' t net~~ork or business or change any Connecting Points. In the e~~ent of a fiber substituti~~n, Gran~e v~~~ll use all commercially reasonable efforts to reconnect to the isxaride 5ystem Route without intenuption of service along the Grande System Route. ??A If City determines rhat the fiber optic cable is technically or functionally obsolete and shoulri be replaced an the Citr Systeln Route or any Segment thereof, then City may, on not less tl~an +~ne hutldred twenty { 12(~ } da~=s' written notice to Grande, substitute for the City Fibers ~n the ('ity Systerri Route an equ~l number of alternative fibers along the same or an alternative route; provided that in any such ever7r, such substitution (a) shall be without interruption of ser~ice and use by Grande; and {h) shall not adversely affect the use, operation ar performance of Grande's netwc~rk or business ar change any Connecting Points. In the event of a fiber subst~tution, Cit_y ~.~ill usc all commercially reasonable efforts to reconnect to the City System Route ~~ithout interruption of sen~x~e along the City System Route. '~3 In the event of iz fiber substitution under Section 7_2, all costs of such subst~#ution, including, without limitation, all disconnect and reconnect costs, fees and expenses, shall be shared by the parties in thc following order and amounts (the "Allocable Shares"): (a) First, if the affected portion of the Grande System Route includes any cond~it otl~er than the ronduit h~using the Grande Fibers, the total Costs shall be allocated equally among all of the affected conduits; and (b j Second, the Costs related to the conduit carrying the Grande Fibers plus the Costs specifically related to the fibers within such conduit shall be allocated between City and C~rrande and other users based on the ratio to which the number of Grande Fibers bears to the total number of fibers in such conduit. ~.3A In the event of a fiber substitution under Section 7.2A, all costs of such subst~tution, including, without limitation, all disconnect and reconnect costs, fees and expenses, shall be shared b~ the parties in the following order and amounts (the "Allocable Shares"): (a} Eirst, if the affected portion of the City System Route includes any conduit other than the conduit housing tht Citv Fibers, the total Costs shall be allocated equally among all ~fthe affected conduits; and Ibj Second, the Costs related to the conduit carrying the City Fibers plus the Costs speci#'ically related to the fibers within such conduit shall be allocated between City and i GR.A1~E ~ OMMC~NICATIONti NETWORKS. I'~( ~ CONFIDENT[AL AND PROPRIETARY -,- ..,g , . ~ . . . ~ ,~„ ,_ ~,~ ~.~..: .~. . . ,... ~ , x _.,. .~ ,~ _a..... a_W ,_ ~... .. ~.., .._..... _... .. ..._. .._,,. ~.. _. Grande and other users based on ~he ratio to which the number of City Fibers bears to the total nunil~er ot fibers ~n such ronduit. ARTICLE 8. GRANDE PERNII I'SiUNDERLYING RIGHTS; RELOCATION 8. ; Grande has obtained or will obtain certain rights of way far construction and opera~ion of the Grande System ftoute (the "Grande Underlyi•n~ Ri ts"). This Agreement is subj~t to the terms of'the Grande Underlying Rights, and subject to the terms under which the right of` v~ ay is owned or held by the grantor of the Grande Underlying Rights, including, but not limit~d to, covenants, conditions, restrictions, easements, reversionary interests, bonds, rriortg~ages and indentures, and other matters, whether or not of record, and to the rights of tenan~ts and licensees in possession. Tlle rights and license granted to City hereunder are further sub~eet and subordinate to the pnc~r right of the grantor of the Grande Underlying Rights to use the right of way for other business act~vities, including railroad operations, telecommunications uses, p~peline operations ~r an}~ oilier purposes, and to the prior right of Grande to use its rights granted unaer the Grande Underlying Rights. The rights and license granted herein are expressly made subject to each anti every (~mitation, restriction or reservation affecting the Underlying Rights. Vothing herein shall be c.onstrued as to be a representation, warranty or covenant of Crrande~s right, titl~ ~r int~rests ~uith respect to the right of way or the Grande Underlying Rights. ~.? C7n Citv's written request, Grande shall make available for inspection by City, at CTrande~s offices. copies of all intormation, documents, agreements, reports, permits, drawings and ~~citieations that are materiai to the grant of the rights hereunder to City, including, without limitation, the Grande linderlying Rights, to the extent that their terms or other legal restrictions permit disclosure. Grande ma_y redact cc~nfidential or proprietary business terms. 8. ~ If during the Tern~. Grande undertakes a relocation of any part of the Grande Syst~n Route, inciuding any of the facilities used or required in providing the rights hereunder, Gran~e shall proceed with such relocation, including, but not limited to, the right, in good faith, tc~ re~sonably determine the extent of, the timing of, and methods to be used far such relocation; provided that (a) if the relocation is at Grande's discretion, Grande shall maintain the same endpbints of the Grande System Route; and (b) the relocation shall be conducted in accordance with the procedures set forth in Eahibit D. ~3.~ t;pon the expiration or ather termination of an Grande Underlying Right that is neces~sary in order to grant, continue or maintain any rights granted hereunder in accordance with the t~rms and conditions hereof or~ any relocation of the Grande System Route, Grande shall use ai1 reasonable efforts to ,.:~btain an alternate right of way. The parties shall share the costs of obtaining an alternate r~~ht of ~~ay and the costs of relocation according to their Allocable Shares. ~3, i Grande shall deli~ er to City updated As-Builts with respect to the relocated segrt~ent not later than ninety (90) days following the cornpletion of such relocation. cR~1~E ('OMMLIN[CaTION~ NETwORk_S, IRt". CONFIDENTIAL AND PROPRIETARY _ ~ _ .,,.,. _~ . ,.~,,,..... _ _ ~ _ _ . . .~ ~, _.~.~.. ~,. ....., _... .,., .w ._.. ..,~. _ _~. ,,,a„~ ARTICLE 8A. C[TY PERMITS; UNDERLYING RIGHTS; RELOCATION ~A.l City~ has t~btained ~r will obtain certain rights of way for construction and operation of the Cit}` System Route (the '`City Underl i~ng Rights"). This Agreement is subject t~ the~ terms of the City Underlyin~ Rights, and subject to the terms under which the right of way is ow~ed or held by the grantor ~~f th~ City Underlying Rights, including, but not limited to, covenants, conditions, resfiction~, easements, reversionary interests, bonds, mortgages and inder~tures, and other matters, whether or not of record, and to the rights of tenants and licensees in possession. The rights and lic-ense granted to Grande hereunder are further subject and subordinate to the prior right of the grantor of the City Underlying Rights to use the right of way for ~ther business activities, incl~_~ding railroad operations, telecommunications uses, pipeline opera~ions or any other purposes, and to the prior right of City to use its rights granted under the City Underlying Rights. The rigt~ts and license granted herein are expressly made subject to each and every limitatic~n, restrictior ~~~~r reservation affecting the City Underlying Rights. 'vothi~~ herein sha(1 be construed as to ~e a representation, warranty or covenant of City's right, iitle ar interests with respect to the righ~ of way or the City Underlying Rights. ~A.2 On Grande's written request, City shall make available for inspection by Grande, at City4, offices, copies c~f all infc,rmation, documents, agreements, reports, permits, drawings and ~ecifications that are material to the grant of the rights hereunder to Grande, including, witho~t limitation, the ~ ity Underlying Rights, to the extent that their terms or other legal restrictions permit disclosure. ('it~~ mav redact confidential or proprietary business terms. ~A.3 lf during the Term. Citv undertakes a relocation of any part of the City System Route, including any of the facilities used or required in providing the rights hereunder, City shall proceed with such relocation, including, but not limited to, the right, in good faith, to reasot~abli~ determine the extent ai, the timing of, and methods to be used for such relocation; provic~ed that (a} if the relocation is at (`ity's discretion, City shall maintain the same endpoints of the (1'ity System Route; and (n) t}~e relocation shall be conducted in accordance with the proc~iures set forth in Exhibit D. ~A.4 Upon the ~xpiration or other termination of an City Underlying Right that is neces~ary in order to grant, continue or maintain any rights granted hereunder in accordance with the t~'ms and conditions hereof or anv relocation of the City System Route, City shall use all reasot~able efforts to obtain an alternate right of way. The parties shall share the costs of aLtai~ing an alternate n~;ht of ~~ay and the costs of relocation according to their Allocable Shares. 8A.5 City~ shall deliver to Grande updated As-Builts with respect to the relocated segm~nt ~~ot later than ninety (90) days following the completion of such relocation. ART1C'LE 9. USE OF FIBER SYSTEM GRA?VDE COMMLNIC`4TfON~ NET~ti'ORKS. I'~( CONFIDENTIAL AND PROPRIETARY ,~,u. ..,.~~ ~ ~ .. : ~ ~ ...t,..,... _ _ y.. _. . .. __. _ ~... _......._. _. _,__.e._ _... ..~ ._. _. , ..~. . .w. W,.,,.~ `~.' Intentional~y Delete~i. ~.? Each. part~~ represents, ~~~arrants and covenants that it will use the other party's Fibers and Associated Property in compliance with and subject to all applicable government codes, ordinances, laws, rules and regulations. 9. > Subject to the lim~tations set forth in this Agreement, each party may use the Fibers and the Associated Property of the other party for any lawful purpose. City agrees and ackna~wledges that it has no right to use any of the fibers that are part of the Grande Svstem, ofher than the Grande Fibers. Grande agrees and acknowledges that it has no right to use any of the fibers that are part of the City Systern, other than the City Fibers. Each party shall keep any and all ~~f the other party~ ~ System. free from anv liens. rights or claims of any third party. `7.-~ Grande agi-ees and ack~lowledges that it has no right to use the Grande Fibers durir~ the Term hereof. I'rom and after the Effective Date, Grande shall keep the City's rights in the Grande Fibers and the Grarrde ,-~ssociated Property granted hereunder, other than any .Associated Propert~ as to which Grande shall have provided to City a nondisturbance agreement, free from any liens, rigl~ts or claims of any third party attributable to Grande. Grande shall obtain ~i-om any entity ir favor c~f° which Grande in its discretion shall have granted after the Effec~ive Date a securit~ interest or lien on all or part of the Grande System Route a written nondisturbance agreement in whicl~ such lien holder acknowledges City's rights and interests in and to the Grande Fibers. the Grande ~~ssociated Property and the rights granted hereunder, and agr~es that City shatl nc~t be dim~iush~d, disturbed, impaired or interfered with in any adverse respect by such lien holder, City agrees and acknowledges that it has no right to use the City Fibers during the l~erm hereof. F'~om and after the Effective Date, City shall keep the Grande's rights in the City Fibers and the City Associated Property granted hereunder, other than any City Associated Property as to which C`ity shall have provided to Grande a nondisturbance agreement, free f~'om any liens, rights or claims of~ any third party attributable to City. City shall obtain from any~ ent~ty in fa~~or of which City in its discretion sl~all have granted after the Effective Date a securit} interest c~r lier~ on all ~~r part of the City System Route a written nondisturbance agree~nent in which such lien hoider acknowledges Grande's rights and interests in and to the C'itv Fibers, the C'ity Associated Pro~erty and the rights granted hereunder, and agrees that CTrande shall not be diminished, disturbed, impaired or interfered with in any adverse respect by such lien holder ~S Each part~ shall p~~omptly notify each other of any matters pertaining to, or the occu~rence (or impendin~ occurrence) of, any event which would be reasonably likely to give rise to any damage or impending damage to or loss of the other party's System that are known to such cep~rting party ~.c, Neither party shall use ~ts System in a way that interferes in any way with or adve~ely affects the use of the fibers or cable of any other person using the other party's Svstem. ~I'he parties acknowledge that each party's System may include other participants. ~ GRAIVDE C'OMMUNf('.4TION~ NETw'ORKS. f?~(~ CONFIDENTIAL AND PROPR]ETARY _.,,. ....~ ..~ ._ .. . ,,.,.~ ,. , ,,4,..,ary,, _ <,s.: ._ . , t _ ..,., ~ ~~.~. . ~. . ..~.~. ._ ~.. -.~.. . ~ _.... . .,~ , ._~ .~.,~ ~f The parties agree t~~ cooperate with and support the other in complying with any requi~ements applieable tcs their respective rights and obligations hereunder. ARTICLE 10 INDEMNIFICATION AND LIMITATION OF LIABILITY 4(1.1 Subject ta the pro~ lsions of Sectron 11.5, Grande hereby releases and agrees to inder~nify, defend. protect and hc71d hannless City, its Affiliates, and its and their employees, offic~rs. directors, agent~, contractors, and shareholders (`Indemnified Persons"), from and agair~t any third party claims, suits, proceedings and actions ("Claims") for: (a} .Anv injury. death, loss or damage to any person, tangible property or faciti~ies of any person or entity (including reasonable attorney fees and costs at trial and appealj to the extent arising out of or resulting from the negligence ar willful misconduct of Grande, its offic~'s, employees, servants, agents or c~ntractors in connection with its performance under this Agreement; and {bj Anv liabilitaes ~r damages (including reasonable attorneys fees and costs at tri~l and appeal) arisin~ out of any violation by Grande of regulations, rules, statutes or court orders of any locaf, state or federal go~~ernmental agency, court or body in connection with its perfotmance under this A~reemem . 111,2 Nothing contained herein shall operate as a limitation on the right of either User or CJr~nde ta bring an action for damages against any third party, including indirect, special, or conse~quential damages, based or~ any acts or omissions of such third party as such acts or omis~ions may affect the construction, aperation or use of the User Fibers or the System Route or any portion thereof; provided, however, the above limitation of liability shall apply to indirect liabil~ty including Claims against third parties who, directly or through one or more other parties, have a right of indemnification, impleader, cross-claim, contribution or other right of recovery against a Party to this Agreement Each of User and Grande shall assign such rights or claims, execute such documents and do w~~atever else may be reasonably necessary to enable the other to purs~ any such action against sucE~ third party. i t~.3 Notwithstanding aily pro~~ision of this Agreement to the contrary, NEITHER PAR'~'Y ~HALL BE LIABLE TO THE OTHER FOR SPECIAL, PUNITIVE, EXE~VIPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR DAMAGES AS A RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS L!NDER THIS AGREEMENT, OR ITS ACTS OR OMISSIONS REL~TED TO THIS ~GREE'.VIENT, WHETHER OR NOT ARISING FROM SOLE, JOII`~T OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE. THE ~BUVE [.IMI'I°ATION OF LIABILITY SAALL APPLY TO INDIRECT LIA~ILITY IIV'VOLVI1vG Sl'ITS BROUGHT AGAINST THIRD PARTIES WAO, DIR~CTLY OR THROUGH ONE OR MORE OTHER PARTIES, HAVE A RIGHT OF IND~MNIFICATION, [MPLE.aDER, CROSS-CLAIM, CONTRIBUTION, OR OTHER RIG~T OF RECOVERY AG:IINST A PARTY TO THIS AGREEMENT (e.g., if an ~; GR.A?*IDF COMMi.NICAT(()N~ NET~ti~ORi~S, I~( CONFlDENTIAL AND PROPRIETARI' ~. . W, .. , .,,R,. _ ..~...,... . _ ~,, _. , . ,. .. ,. , ,~... _,,.,.~ w . _.. ._.,_.,.. _._ .,,.,. ~,., ,.~. _ ._... .,~..,.,r affili~te of Party A sues Party B's contractor under circumstances in which the contractor has a right of indemnih~ against Partv B). ARTICLE 11. INSi TR AN(~'F. ' 1.1 At ail times during the 7'erm each party shall procure and maintain in force, at its owr expense: (a) not less than $2,000,000 combined single limit liability insurance, on an occurtence basis, for personal injury and property damage, including, without limitation, injury or da~nage arising from the operation of vehicles or equipment and liability for completed oper~ions; (bj r~~orkers' compensation insurance in amounts required by applicable law and e~nployers' liability insurance with a limit of at least $1,000,000 per occurrence; (c i automobile liability insurance covering death or injury to any person or persons, or damage to property arising from the operation of vehicles or equipment, with limits of not less than $2,000,000 per occurrence; and (d) an~ other insurance coverages specifically required of such party pursuant ta Gr~nde's right-of-way agreements with railroads or other third parties. f l,2 Botil parties expressly acknowledge that a party shall be deemed to be in com~iance with the provisions of" this Article if it maintains a self-insurance program providing for a retenti~an of up to $2,00O,OOU. If either party provides any of the foregoing coverages on a clair~-mad~ basis. such policy or policies shall be for at least a three-year extended reporting or discovery period. iJnless other~'rse agreed, liser's and Grande's insurance policies shall be obtai~ed ar~d maintained with cotnpanies rated "A" or better by Best's Key Rating Guic~e and each party shall provide the other with an insurance certificate confirming compliance with this requirement for each polic:y proviciing such required coverage. I 13 If either party fails to obtain the required insurance or fails to obtain the required certificates from any contractor and a claim is made or suffered, sueh party shall indemnify and hold harmless the other party froi7~ any and all claims for which the required insurance would have provided coverage. Further, in the event of any such failure which continues after seven (7) days' writt~n notice thereof by the other party, such other party may, but sha11 not be obligated ta, obtain such insurance and ~;-ill have the right to be reimbursed for the cost of such insurance by the party failing to obtain such insurance. i I.4 In the event coverage is denied or reimbursement of a properly presented claim is disp~ed by the carrier tor insurance provided above, the party carrying such coverage shall make good-faith efforts tc? pursue ~uch claim with its carrier. '? S City and Grande hereby mutually waive their respective rights of recovery against iU GRAI~DE C~OMMUNICATIONS NETW'ORKS, [tit~_ CONFfDENTIAL AND PROPRIETARY' each other and the officers, directors, shareholders, partners, joint venturers, employees, agents, custo~ers, invitees, or business :~isitors of either party, for any loss arising from any cause covered c~r that would b~ covered b~ fire, extended coverage, All Risks or other insurance requi~ed to be carried under this ~greement or now or hereafter existing far the benefit of the respe,~tive party. C'ity and Grande will cause from time to time their respective insurers to issue appropriate waiver of subrogation !-ights endorsements to all property insurance policies carried ~r c~~nnection with their respective property. ARTICLE I2. TAXES, FEES AND OTHER GOVERNNIENTAL IMPOSITIONS i 2. l City is not responsible for payment of any taxes for City's use of any part of Grande S vstem . ARTICLE l3. NOTICES All notices and other communications required or permitted under this Agreement shall be in writing and shall be given b} United States first class mail, postage prepaid, registered or certif~d, return receipt requested. or by hand delivery (including by means of a professional mess~ger service or overnight mail) addressed as follows: Al l notices and other communications shall be given to Grande at: Grande Communications Networks, Inc. 401 Carson Circle San Marcos. TX ?8666 Att1~: President With a cop~ to: Grande Communications Networks, Inc. 40l Carson Circle San Marcos.. TX ?8666 Attn: General Counsel :~ll notices and other communications shall be given to User at: Citv of Corpus Christi 1201 Leopard Street Corpus Christi, Texas 78401 Attention: City Manager With a copy to: t.itv of Corpus Chnsti GRANpF Ct)MMl1NICATIONS NET«'ORKS. 1N( CONFIDENTIAL AND PROPRIETARY _ ..~„~,. ,,,~ „µ:~, ..~ ., .,,~, _ .... .~ ._ _ . _ .. . .. , .~ ._.~...~ ~ .~. .m._._.._..~.. .,.. . _ ~., , .,,,,_ ._.. ,_ .,._ ~„ 12(~ 1 Leopard Street Corpus Chr~sti, Texas 78401 Attention: C'ity Att~rne_y Any such notice or other communication shall be deemed to be effective when actua~ly received or refus~. Eitlier party may by similar notice given change the address to v~~hich fUture notices or other communications shall be sent. ARTIC LE 14. CONFIDENTIALITY t 4,1 As used h~rein, "Confidential Information" shall mean this Agreement and all mate~ials, maps, and other documents that are marked confidential and disclosed by one party to the o~her in fulfilling the provisions and intent of this Agreement, as well as confidential or propr~etary information that is orally disclosed, provided that, for information that is orally disclc~sed, the disclosing party indicates to recipient at the time of disclosure the confidential or propr~etary nature of the ialformation and confirms in writing to the recipient within 30 days after such ~isclosure that such ~nformaUon is confidential. Each party agrees to hold the Confidential Information of the other party in confidence. Neither party shall divulge or otherwise disclose the pt+ovisions of this Agreement tc~ anv third party without the prior written consent of the other party, except that either party ma~~ make disclosure to those required for the implementation of this t~greement, and to customt.rs and prospective customers, purchasers and prospective purcl~sers, auditors, attorneys, financia] advisors, lenders and prospective lenders, investors and prospecti~e investors, provided that in eaeh case the recipient agrees in writing to be bound by the etjnfidentiality provisions set forth in this section. In addition, either party may make discla~sure as required b~ a cour? order or as otherwise required by law or in any legal or arbitration proceeding reiating ta this Agreement. If either party is required by law or by interrogatories, requests for information or documents, subpoena, civil investigative demand or simil~r process to disclos~ the proV isions of this .Agreement or the design information referred to in this Section, it will provide trBe othc;r party with prompt written notice of such request or requirernent so that such partti ma~~ seek an appropriate protective order and/or waive ~cc~nzp~iance with this Sect3on~ The party whose consent to disclose information is requested shall respond to such request. in ~~~riting, wlthin ti~e (~) working days of the request by either autharizing the disclosurt or advising ~~f its election to seek a protective order, or if such party fails to respond ~vithin the prescribed period the disclosure shall be deemed approved. ( a) Nothing her~in shall be construed as granting any right or license under any copyrights, imention~, or patents now ar hereafter owned or controlled by Grande. (bj Upon termination of this Agreement for any reason or upon request of Grande, City shall return all Confidential Information, together with any copies of same, to Grande. The requirements of confidentiality set forth herein shall survive return of such ~'onf~dentia~ Information. (c) Cit~~ shall nc~t, without first obtaining written consent of Grande, use any trade~ark or trade name of Grande or refer to the subject matter of this Agreement or Grande in 1? GRANDE C~MMUNICqT10NS NET~~'ORKS, [N( CONFIDENT[AL ANDPROPRIETARY _ .. __.. e~_._ _~.~.._~ ...... _..r,._....,.._ ..~.. ..._ ._.. ~. ~~ >._,,,,, any p~omotional activity or other~~~ise, nor disclose to others any specific information about the subje~t matter of this Agreement. :~2 i'he provisions of this Article are subject to the Texas Public Information Act lf C ity receives a request for any of Grande's Confidential ~nfurmation, City shall notify Grande of the request, so that Grande may present its writte» arguments to the Texas Attorney General. The City ~ha11 releasE• Grande"s Confidential Information if directed to do so by the Tex as Attorney Generai. 3 4.3 The~ provisions of this Article shall survive expiration or other termination of this Agreement ARTICLE 15. DEFAULT E 5.1 A default shall be deemed to have occurred under this Agreement if: (a) in the case ~~f a fatlure to pay any amount when due under this Agreement, a party fails to pay such amount within ten (10) days after receipt of notice specifying such breach, or (b) in the case r~f any other material breach of this Agreement, a party fails to cure such within thirty (30) days after receipt of notice specifying such breach, provided that if the b~each is of a nature that cannot be cured within thirty (30) days, a default shall not have occur~ed so long as the breaching party has commenced to cure within said time period and there~fter diligentlv pursues such cure to completion. d~.2 The foregoing not~~ithstanding, if the default consists of a failure to pay any part of th~ l.icense Fee, nonpaying party shall forfeit its license and its rights in the other party's Fibers, and non-defaulting pam may terminate any and all of its obligations under this Agre~rnent and apply any and all amounts previously paid by defaulting party hereunder toward the psyment of anv other amount> then or thereafter payable by defaulting party hereunder. In the e~ent of any other default hereunderq the non-defaulting party may avail itself of one or more of th~ following remedies: (a) take such action as it determines, in its sole discretion, to correct the default; and (b) pursue any le~al remedies it may have under applicable law or principles of equity, including specific performance. ~~.3 A waiver by eithel- party at any time of any of its rights as to anything herein cont~tned shall not be deemed ?o be a waiver of' any breach of covenant or other matter subseyuently occurring. ARTIC LE t 6. TERMINATION This Agreement shall automatically terminate on the expiration of the Term ar earlier as provided in this Agreement. Upon the expiration of the Term or other termination of this 1_'s GRAI~E~ COMMUNI~~ATION~ NETW'ORKS, I'~(' CONFIDENTIAL AND PROPRIETARY' . . _ _. ~. _ .... ....._~..w . ._._ _ ..... . _ .._.. .,,,-. _. ._...~. ~_ ~,,~ ,4gre~nent for default, the defaulting party shall immediately terminate and all rights to use the non-defaulting party ~ s System Route and the Associated Property, shall cease, all rights to use of the Systern Route shall r~vert to non-defaulting party, and the non-defaulting party shall owe defaulting party na further duties ~~r consideration. Upon termination at expiration of the Term, each part~ shall promptl~ remove :ill of its electronics, equipment, and other property from the c~ther pany's Systerti Route and lacilities at its sole cost and under other party's supervision. Term~nation of this :qgreement sh~ll n~~t affect the rights or obligations of either party that have arisen b+~f~re the date of r.e.rtninatio~l or expiration. ARTIC LE 17. EORCE MAJEURE Neither part~ shall be liable to the other party, and each party's performance under this Agre~nent shall be excused, if and to the extent that any failure or delay in such party's perfa~rnance of one or more of ~ts obligations hereunder is caused by any of the following cond~ions, and such part~'s performance of such obligation or obligations shall be excused and extended for and during the period of any such delay: act of God; fire; flood; fiber, Cable, or other material failures, shortages ;~r unavailability ar other delay in delivery not resulting from the responsible part~'s failure to timelv place orders therefar; lack of or delay in transportation; govert~ment codes, ordinances. la~~ s, rules, regulations or restrictions (collectively, "Re~~lations"); war or civil disorder; strikes or other labor disputes; failure of a third party to grant or recognize an Underlying Right (provided that party seeking an Underlying Right has made timely and reasonable commercia! efforts to obtain the same); inability of either party to obtaia track time or access to their System; or any other cause beyond the reasonable control of such partv. The party claiming relief under this Article shall notify the other in writing of the exist~ce of the event relied on ~~nd the cessation or termination of said event, and the party claim~n~ relief shall exerzise reasc~nable commercial efforts to minimize the time of any such delay. ARTIC LE 18. INTENTIONALLY DELETED ARTIC LE 19. ASSIGNMENT AND USER FIBER TRANSFERS Neither Party shal f have the right to assign or otherwise transfer this Agreement without the p~or ~~vritten consent of the other Party, which shall not be unreasonably withheld. ARTICLE 20. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS ~(:~ 1 Each ~artv represents and warrants that: (aj ~t has the full right and authority to enter into, execute, deliver and perfotm its obligations under this :~greement; t -t GRANflE COMML;NfC4T[ONS NETWORKS. ]ti(~ CONFIDENTIAL AND PROPRIETARY (b~ thi~ Agreenient constitutes a legal, valid and binding obligation enfarceable against such party in accordance with its terms, subject to bankruptcy, insolvency, credi~rs' rights and general equitable principles: and (c} its execution of and performance under this Agreement shall not violate any a~plicable existin~ regulations, rules, statutes or court orders of any local, state or federal goverflment agenc~~, caurt or bodti '0.2 Each part_y represents and warrants to other party that: (a) Each party Elas obtained or will obtain all permits and other governmental appr~vals required for the installation of the System Route. (b) [n its ownership, operation and maintenance of the Grande System, Grande ~~ill comply urith all applicable local, municipal, state or federal laws, orders and regul~ttions. ?U.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GRA~TDE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE: USER FIBERS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITI~SS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEI~BY EXPRESSLY DISCLAIMED. IN ADDITION, GRANDE MAKES NO WA~KANTIES OR REPRESEN'I'ATIONS OF ANY TYPE CONCERNING THE INT~GRITY OR PERFORMANCE OF THE MATERIALS FURNISHED OR DES~NATED BY USER. ARTICLE 21. GENERAL ??.1 Binding Effect. This Agreement and each of the parties' respective rights and oblig~tions under this Agreement, shall be binding on and shall inure to the benefit of the parties hereta and each of their respective permitted successors and assigns. ? 1.2 Waiver. The failure of either party hereto to enforce any of the provisions of this Agre~ment, or the waiver thereof in anv instance, shall not be construed as a general waiver or relint~uishment on its part of any such pro~-ision, but the same shall nevertheless be and remain in full force and effect. ? 1.3 Governing Law. This Agreement shall be governed by and construed in accortiance with the domestic laws of the State of Texas, without reference to its choice of law princi~les. ~1.4 Rules of CoAStruction. "Che captions or headings in this Agreement are strictly for conv~nience and shall not be considered in interpreting this Agreement or as amplifying or limiti~g any of its content. Words in this Agreement which import the singular connotation shall a~ GKAN~7F COMMUNICAT[ONS NETWORKS, I'~(' CONFIDENTIAL AND PROPRIETARY __ __. , ., .. . .,...... ,,......__.__ _.. .~...._v_.._... ..~ ._ ,~, , _,,,. _. ~~.. ~....~,„ be interpreted as plural, and wards which import the plural connotation shall be interpreted as singular. as the identity of the parties or objects referred to may require. (a) Unless expressly defined herein, words having well known technical or trade ~neanings shall be sr~ construed. All listing of items shall not be taken to be exclusive, but shall include other items, whether similar~ or dissimilar to those listed, as the context reasonably rey uire4 (bj Except as s~t forth to the contrary herein, any right or remedy of User or Grande shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not. (c) Nothing in this Agreement is intended to provide any legal rights to anyone not an executing party of this Agreement, the parties, (dj This Agreement has been fully negotiated between and jointly drafted by (e) All actions, activities, consents, approvals and other undertakings of the parties in t~is Agreement shall be performed in a reasonable and timely manner, it being expr~sly acknowledged and uncierstood that time is of the essence in the performance of oblig~ttions required to be performed bv a date expressly specified herein. Except as specifically set fa~th herein, for the purpose ~f this Agreement the standards and practices of performance withi~ the telecommunications industr~~ in the relevant market sha11 be the measure of a party's perfonnance. ?,.5 Entire Agreement. This Agreement, together with any Confidentiality Agreement enter~i into in connection herewith, constitutes the entire and final agreement and understanding betw~en the parties with respect tn the subject matter hereof and supersedes all prior agreements relati~g to the subject matter hereof; which are of no further force or effect. The Exhibits referr~d to herein are inte~ral parts hereof and are hereby made a part of this Agreement. To the extent that any of the pro~~isions of any Exhibit herelo are inconsistent with the express terms of this Agreement, the ternis of th~s Agreement shall prevail. This Agreement may only be modi5ed or amended by an instnament in writing executed by each party and delivered to the party rely~ng on the writing. ~1.6 No Personal Liabili~. Each action or claim against any party arising under or relati~g to this Agreement shall be made only against such party as a corporation, and any liabil~#y relating thereto shall be enforceable onlv against the corporate assets of such party. No partyshall seek to pierce the corporate veil or otherwise seek to impose any liability relating to, or ar~ing from, this Agreement =igainst any shareholder, employee, officer or director of the other party. Notwithstanding anything in this Agreement to the contrary, each of such persons is an in~nded beneficiary of the mutual promises set forth in this Article and shall be entitled to enforce the obligatlons of this Art~cie. 1 ~~ GR.A?~IUF C~I~iMUN1CA fTONS NETVdORKS, 1'~( CONFIDENTIAL AND PROPRIETARY ,~... ...-.~.w•»,...~w. T ,..... ,,.~n. . •.~~. .....-.... ~~'~IIR ~? 1.7 Relationshlp of the Parties. The relationship between the parties shall not be that of pa~tners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, but not limited to federal inc~me tax purposes. The parties, in performing any of their ablig~ttic~ns hereunder. s€iall be ~ndependent eontractors or independent parties and shall disch~rge their contractual obligations at their own risk subject, however, to the terms and cc~r~ditions hereof_ ' 1,8 Severabilitv. If any tenn. covenant or condition contained herein is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall not be affected thereby, and each term, covenant or condition c~ _f thi~ Agreement shall be valid and enforceable to the fullest extent permitted by law. ? l.9 Counterparts. This Agreement may be executed in one or more counterparts, all of ~~1~ch taken together shall constitute one and the same instrument. In confirmation oi~ their consent and agreement to the terms and conditions contained in this t~greernent and intending t« be legally bound hereby, the parties have executed this Agree~tnent as of the date tirst abol~e written. GRANDE Grande Communications Networks, Inc. By: Name: Title: Date: CITY: City of Corpus Chr~sti By: Name: Title: Date: , _ ~pprove~~s to fo~m: - - ~~ . ~~. F ;oisa A : r ~ ~ssista~t City A-ttomeY -os C+ty At~orn8y ~, ~ ~ , ~~ i (~~~~ ~ r t: ~ ~:.~.,, ,~~~.~n~ ttr 8w~c~i .~L~! ~ ~( ~ ~ - ~ SECRET1tRISn~ ~R ~ ~~a ~57. _.._r"_"_' ~----~-~.~-:-~-~.,~. ~00 CHAPA. 1 "~ Cif1` S~GREtARIf GRA~(pE C~~MMUNICaT[ONS VETWORKS. iNi~ CONFIDENTIAL AND PROPRIETARY ._,.. ,.~. . ...~...,,,~ .... _...,~, GLtJSSARY OF TERMS 1'he following tern~s shall have the stated definitions in this Agreement. "Allocable Shares'' is defined in section 7.3. "r~s-Builts~" is defined in section ~.01. `'Cable'' ~neans the fiber optic cable and the fibers contained therein, and associated splicing connections, splice boxes, and vaults to be installed by GRANDE as part of the Grande System `Costs" means all actual, direct costs paid or payable in accordance with the estab~shed accounting procedures generally used by Grande and which it utilizes in billing third partie~ for reimbursable projects which costs shall include, without limitation, the following: (i) int~rnal l~abor costs, including wages and salaries, and benefits, and (ii) other direct costs and out-af pocket expenses on a pass-through basis (e.g., equipment, materials, supplies, contract Seri'tC~S_ ~tC.~. "I:ffective I~ate" is ~:iefined in the introductory paragraph to this Agreement. "Planned System Work Period'' or `'PSWP" means a prearranged period of time reservec~ for performing certain ~ti ork on the URANDE System that may potentially impact traffic. Generally, this wi I1 be restricted to weekends, avoiding the first and last weekend of each mont~ and high-traffic weekends. "T'he PSWP shall be agreed upon pursuant to Exhibit D. 'Gr~inde S~ stem" shall have the meaning ascribed thereto in Exhibit A. "City Svst~m'" shall have the meaning ascribed thereto in Exhibit Al . "Se~ment'~ shall mean a pair described in Exhibit A or Exhibit A-1. "Underlying Rights" is defined in Section 9.1. ["Best efforts"] ["reasonable commercial efforts"], when used herein in connection with a c~~venant of a party to this Agreement, shall not obligate such party, unless othe~~ise specificall_y required by the operative covenant, to make wlreimbursed expenditures (other than costs or expenditures that would have been required of~ such party in the absence of the requirements of such covenant) that are material in amount, in light of the circumstances to which the requirement to use ~iest ef~forts appiies. ~~ ~iRAf~IDE COMMUNICATIONS NETN'ORKS, f1~C CONFIDENTIAL AND PROPRIETARY EXHIBIT A TO RECIPROCAL FIBER LICENSE AGREEMENT GRANDE SYSTEM ROUTE Grande w~ill pro~~tde four dark fibers (except as noted), from the City Service Center to the public ROW ad~acent to the follov~~ing city facilities 1, 2300 Rodd Nield (F- - 2. 5805 Williams ( C1ini~: ) 3. 5901 S. Staples ( F-14 ~ 4. Yorktown ~k Staples ( S.C. ; 5. Cedar Pass & Everhart S.C' i 6. 6"13 Webe~~ ( F- 6) 7. 3202 Cabinas Prkw. (tiatatorium ) 8. Alameda & Ocean ( S (~. ) 9. 5601 S. Alac~da ( Oso Galf Course ) 10. 910 Airline { F-11 ) 11. 1025 Carmel Prkw. ( ti.C j*(R fibersl 12. 4639 Kostoryz ( F- 8~~ 13. 3722 S. Staples ( F- 7) 14. 4225 S. Port ( Gas Deparhnent ) I5. (iollihar 8~ Weber /6. Saratoga & Weber 17. Saratoga & Everhardt 18. Saratoga & Staples 19. Saratoga & Cimarron 20. Saratoga & Airline 21. Saratoga & Rodd Field 22 Service Center to Saratoga & Rodd Field **(2 fibers ) GranciC wil( provide 30 dark fibers from the City 5ervice Center to the intersection of Sacky Drive and Richter Street, and 36 dark fibers on Saratoga from Weber Road to Rodd Field. 1 ~) GRaI~E ( OMMUNICAT[ONS NETWORKS. I~C CONFIDENTIAL AND PROPRIETARY EXHIBIT A1 TO RECIPROCAL FIBER LICENSE AGREEMENT CITY SYSTEM ROUTE I'he City will provide 1wo dark f rbers 1i~om the existing fiber interconnect at the intersection of Ayers and Hatly to the followin~ facilit~es: 1. ] 201 Leopard (Gity Hall) 2. KZ'I'V, 301 Artesian S? 3. Del Mar East, 3209 S Staples 4. KEF)T, 44Si S. Padre Island Dr., Suite 38 2U GRA~iDE COMMUNICA-CIONS NETLVORKS. [ltiC CONFIDENTIAL AND PROPRIETARY .._.._.. _ .,~. __.__. ~_ . _ ___ ,,,,,. , . , r... ..,. _..~.~ d a ..... ._._... _.... .... ... ,,_. . .,,... __ .~._ __,~,F EXHIBIT B TO RECIPROCAL FIBER LICENSE AGREEMENT Fiber Cable Splicing, Testing and Aceeptance Procedures 1 ~il splices will be perform~d with an industry-accepted fusion splicing machine. Testing will be documented on diskettes in Laser Precision format and on trace analysis sheets reflecting bi-directional ]osses by fiber and installed span loss by fiber. One copy of trace diskettes and one c~py of trace analysis sheets ~~~ill be submitted. All testing will be performed at 1550 nm. 2 lluring initial uni-directiarial OTDR testing, a general indicator of the quality of each splice wi11 be an objective loss of t1.1(~ dB ar less. If, after three attempts, Grande is not able to prod~ce a loss value of Icss than t).10 dB, then 0.20 dB will become the objective. If, after two addit~onal attempts, a value of less than 0.20 is not achievable, then the splice will be marked as '`C)ut--of -Spec" (OOSI o» a field data sheet. The parties recognize that uni-directional OTDR test dg.ta is not an acceptance/rejectaon criterion. 3 [`he installed span loss (span shall be FDP to FDP) shall be a bi-directional average of 0.20 dB!km or less. as calculated using an industry-accepted optical loss test set at 1550 nm. The installed span loss includes the inherent attenuation of the glass, the backbone splice losses, the pigtail splice losses, che inherent loss in the pigtails, and the connector losses. 4 +Optical Return I,oss (ORL) wiLl be recarded on the testing documentation, far iriforr~nation only. 5 -['Ize entire fiber optic cable system shall be properly protected from foreign voltage and grourZded with an industrv-accepted system. The current systems in use by Grande are the ACT 440Q-1 ~0 and the Norscar~ 2745 St:~L'. 6 'I`he fibers shall be terminated tc~ the FDP with Ultra FC-PC connectors, unless another type of connector is specitied. ~~: GRA?YDE CC~MMUNIC4T[ONS NETWORKS. II~C CONFIDENTIAL AND PROPRIETARY ~. ....»~ .,~ . „~.~ .._a,,.~... _ __ EXHIBIT C TO RECIPROCAL FIBER LICENSE AGREEMENT Connecting Points 1 Delivery dates will he indi~ idually determined jointly by Grande and City but in no insta~e shall be less than 30 days for a splice point or 90 days for a shared manhole or handhole. On phase completion, both timelines will be based on accessing existing Grande splice points and c~operation from any and all third party or governmental entities that may require oversight. All ti~es will be measured from tr,~ date City provides to Grande detailed connection plans for a speci~ic connectin~ point Timelines are based on City obtaining permits, licenses and cooperation from any and all third party ar governmental entities that may require oversight to City's access to the splice points, and Cit~~ shall bear all costs associated therewith. Grande's sole responsibility shall be the splicing of City's cable to the Citti~ Fibers or constructing the handhole. 2 Pricing for zonnections is as foliows: Grar~de will provide all fiber for the Grande System Route and the City shall provide the labor ~nd other materials i~ecessarv to establish the connections to the adjacent City facilities. City shall provide all fiber for the ~ ity System Route and the labor and other materials necessary tc? establish the connectiorls to the adjacent Grande facilities. 22 GRAI~E CO[~IMUNICA"CIONS NETWORKS, [N( CONFIDENTIAL AND PROPRIETARY EXHIBIT D TO RECIPROCAL FIBER LICENSE AGREEMENT Grande System Maintenance 5pecifications and Procedures Any part}~ responsible for providing maintenance of the Grande System hereunder shall be refert~ed t~~ herein as the ``Service Provider." The Party receiving maintenance services from the Service Provider hereunder shall be referred to herein as the `'Service Recipient". All other eap~talir,ed terms not otherwise detined herein shall have their respective meanings as set forth in tl~e IRL' Supplement of which this Exhihit forms a part. Maintenance. (a) Scheduled Maintenance. Routine maintenance and repair of the Grande Syste,~n deseribed in this section (`'Scheduled Maintenance") shall be performed by or under the direc~ion af Service Provider, at Service Provider's reasonable discretion or at Service Recipient's request. Scheduled Maintenance shall commence with respect to each Segment upon the effective date of the grant of the IRt' therein, as provided in the IRU Supplement. Scheduled Mair~enance shall include the foll~~win~ activities: (i j Patr~~l of~ Grande System route on a regularly scheduled basis, wh~c~ tivill be weekl~ untess hyrai! access is necessary, in which case, it will be quarterly; (ii ) Maintenance of a"Call-Before-You-Dig" program and all required and r~lated cable locates~ (b i Unscheduled Maintenance. Non-routine maintenance and repair of the Gran~ie System which is r~ot included as Scheduled Maintenance ("Unscheduled Maintenance"), shall ~e performed by or under the direction of Service Provider. Unscheduled Maintenance shall comrr~mce with respect to each Segment upon the effective date of the grant of the IRU therein, as provided in the IRU Supplement. Unscheduled Maintenance shall consist of: (i} '`Emergency Unscheduled Maintenance" in response to an alarm identification by Service Provider~ s Operations Center, notification by Service Recipient or notif~eation by an} third party of any failure, interruption or impairment in the operation of the C~rande System, or any e~ent imminently likely to cause the failure, interruption or impairment in t}~e o~-eration of the Grande Systern. (ii) "Non-Emergency Unscheduled Maintenance" in response to any poten~tial service-affectin~ situation to prevent any failure, interruption or impairment in the oper~ion of the Grande System. Service Recipient shall immediately report the need for Unscheduled Maintenance to Servi+ce Provider in accordance w~th procedures promulgated by Service Provider from time to tim~. Service Pro~~ider w~ll log the time of Service Recipient's report, verify the problem and ~3 GRA1~E COMMUN(CATIfJN~~ NETWORKS, IN~~ CONFIDENTIAL AND PROPRIETARY dispa~ch personnel immediately to take corrective action. .~ . Operations Center. Ser~~ice Pr~vider shall operate and maintain an Operations Center ("OC") staffed twenty-four (24) hours a day, seven (7) days a week by trained and qualified personnel. Service Provider's maintenance employees shall he available for dispatch twenty-four (24) hours a day, seven~ (') d~ys a week. Service Pr~vider shall have its first maintenance employee at the site requi~ing Emergenc`- Unscheduled Maintenance activity within two (2) hours after the time Serti~i~e Provider becomes aware o f an event requiring Emergency Unscheduled Maintenance, unless delayed by circumstances beyond the reasonable control of Service Provider. Service Provider shall maintain a toll-free ~elephone number to contact personnel at the OC. Service Provi~ler's OC personnel shall dispatch maintenance and repair personnel along the system to handle and repair problems detected in zhe Grande System, (i) through the Service Recipient's remo~e surveillance equip~nent anc± upon notification by Service Recipient to Service Provider, or (ii) upon notification b~ a third ;.iart~ Cooperation and Coordination. (a} Service Reci~ient shall utilize an Operations Escalation List, as updated from time to time, to report and seek immediate initial redress of exceptions noted in the performance of Service Provider in meeting maintenance service objectives. (b) Service Recipient will, as necessary, arrange for unescorted access for Ser~~i~e Provider to all sites of the C'Jrande System, subject to applicable contractual, underlying real property and other third-party limitations and restrictions. ~c) In performing its services hereunder, Service Provider shall take work~nanlike care to prevent impairment to the signal continuity and performance of the Grande Syst~n. The precautions to be taken by Service Provider shall include notifications to Service Reci~ent. In addition, Service Provider shall reasonably cooperate with Service Recipient in shari~g information and analyzing the disturbances regarding the cable and/or fibers. In the event`that any Scheduled or Unscheduled Maintenance hereunder requires a traffic roll or recon~'iguration involving cable, fiber, electronic equipment, or regeneration ar other facilities of the S~rvice Recipient, then Servict Recipient shall, at Service Provider's reasonable request, make such personne) of Service Recipient availabie as may be necessary in order to accomplish sucli ~aintenance, which personnei shali coordinate and cooperate with Service Provider in perf'onning such maintenance as required of Service Provider hereunder. (d) Service Provider shall notify Service Recipient at least ten (10) business days prior to the date in conneetion with any PSWP of any Scheduled Maintenance and as soon as possible after becomin~ aware of the need for Unscheduled Maintenance. Service Recipient shall have the right to be present during the performance of any Scheduled Maintenance or C'nsc~teduled Maintenance so long as this requirement does not interfere with Service Provider's ability to perform its obligations ualder this Supplement. In the event that Scheduled Main~enance is canceled c~r delaye~ for whatever reason as previously notified, Service Provider ,.~ GRANDE C"~MMI~~NICAT[ONS NETWORKS. 11~C . CONFIDENTIAL AND PROPRIETARY _.. w_.._... ...._. ...n ._ .,.. . _..~. .. _~._ __...,,,~ shall notify Service Recipient at SLrvice Provider's earliest opportunity, and will comply with the provisians of the pre~~ious sentence to reschedule any delayed activity. ~. Facilities. (a) Service Provider shall maintain the Grande System in a manner which will perm~t Service Recipient' ~ use, in accordance with the terms and conditions of the Reciprocal Fiber License Agreement, the L1ser Fibers and the Associated Property required to be provided under the terms of the Reciprocal ~~iber License r'~greement. (b i Except to the. extent otherwise expressly provided in the Reciprocal Fiber Licer~e Ag~eement, Servrce Recipient will be solely responsible for providing and paying for any a~d all maintenance of all electronic, optronic and other equipment, materials and facilities used by Service Recipient in conn~ction with the operation of the Dark Fibers, none of which is included in the maintenance services to be provided hereunder. ~. Cable/Fibers. {a} Service Provider shall perform appropriate Scheduled Maintenance on the Cable contained in the Grande System in accordance with Service Provider's then current prev~ntative maintenance procedures as agreed to by Service Recipient, which shall not subst~tntially deviate from standard industry practice. (b i Service Provider shall have qualified representatives on site any time Servi~e Pravider has reasonable advance knowledge that another person or entity is engaging in construction activities or c~therwise digging within five (5) feet of the Cable. (c ) Service Provider shall maintain sufficient capability to teleconference with Service Recipient during an Emergency Unscheduled Maintenance in order to provide regular com~unications during the repair process. When correcting or repairing Cable discontinuity or dama~e, including but not limited to in the event of Emergency Unscheduled Maintenance, Serviee Provider shall use reasonable efforts to repair traffic-affecting discontinuity within four {4) hours after the Service Provider maintenance employee's arrival at the problem site. In order ta ac~omplish such objective, it is ackn~wledged that the repairs so effected may be temporary in nature, [i~ s~tch event, within twenty-f~ur (24) hours after completion of any such Emergency L~nse~eduled Maintenancc:, Service Provider shall commence its planning far permanent repair, and t~ereafter promptly shall notif~- Serti ice Recipient of such plans, and shall implement such perm~xient repair within an appropriate time thereafter. Restoration of open fibers on fiber strands not immediately required for service shall be completed on a mutually agreed-upon Schecl~ale If the fiber is required for immediate service, the repair shall be scheduled for the next ava;l~le Planned Senric~ Work P~riod IPSWP) (d? [n performing repairs, Service Provider shall comply with the splicing speci~ications as set forth in Exhibit B. Service Provider shall provide to Service Recipient any modifications to these specifications as may be necessary or appropriate in any particular instat~ce far Service Recipient"s approval_ which approval shall not be unreasonably withheld. ~~ ztR,~N~E. C'~MMUNICATION,~ NETWORKS, I!~(~" CONFIDENTIAL AND PROPRIETARY ,,,, z,...,~ .~ <. .~, _ _.,~,..-. _ ,. _ _ .~.. _ _ . .. . W w. . ~ _.... -.~ __....,__... ._._._. .._. ,..,. ._ ,~. , ...._ .~ .....,,,, ~ej Service Pro~ider`~ representatives that are responsible for initial resto~ation of a cut Cable shall carry on their vehicles the typically appropriate equipment that would enable a temporar_y~ splice, ~~~ith the objective ofrestoring operating capability in as little time as possible. Service Provider shall maintain and supply an inventory of spare Cable in stora~e facilities supplied and maintained by Service Provider at strategic locations to facilitate tlmel~ restoration. ~. Planned Service Work Period (PSWP~ Scheduled Maintenance which is reasonably expected to produce any signal disc~tinuity must be coordinated between the parties. Generally, this work should be scheduled after midnight and before 6:00 a.rr~ local time. Major system work, such as fiber rolls and hot cuts, wii] be scheduled foi- PSWP weekends. A calendar showing approved PSWP will be agread upon in the Iast quarter of ~very year for the year to come. The intent is to avoid jeopardy work on the first and last weekends of the month and high-traffic holidays. Restoration. (ai Service Provider shall respond to any interruption of service or a failure of the I~rk Fibers to operate {in any event, an"Outage") as quickly as possible (allowing for delays caus~tl by circumstances beyond the reasonable control of Service Provider) in accordance with the ptocedures set forth herein. (b j When restoring a cut Cable in the Grande System, the parties agree to work together to restore all traffic as quickly as possible. Service Provider, promptly upon arrivi~ng on the site of the cut, shall determine the course of action to be taken to restore the Cable and ~all begin restoration efforts. Service Provider shall splice fibers tube by tube ar ribbon by ribb~ or fiber bundle by fiber bundle, rotating between tubes or ribbons operated by the separate Inter~st Holders (as defined in paragraph 9(a)), including Service Recipient, in accordance with the ft~llowing described priority and rotation mechanics; provided that, lit fibers in all buffer tubes or- ribbons or fiber bundles shall have priority over any dark fibers in order to allow trans~ission systems to come back on iine; and provided further that, Service Provider will conti~ue such restoration efforts until all lit fibers in all buffer tubes or ribbons are spliced and all tr~ffic restored. In general, pri~>rity among Interest Holders affected by a cut shall be detenmined on a rotating restoratian-by-restoration and Segment-by-Segment basis, to provide fair a~d equitable restorat~on priority to all Interest Holders, subject only to such restoration prior[ty ta which CTrande ?s contractualiv obligated prior to the date of the Supplement. Service Prov~tler shall use all reasonable efforts to implement a Grande System-wide rotation mechanism an a Segrnent-by-Segment basis s~ that the initial rotation order of the Interest Holders in each Segment is varied (from earlier to Iater in the order), such that as restorations occur, each Interest Holder has approximately equivalent rotation order positions across the Grande System. Additional participants in the Grande Syrstem that become Interest Holders after the date hereof shall ~e added to the restoratior rotatic~n mechan~sm_ (c ~ The goal of emergency restoration splicing shall be to restare service as ~~ GI2ANDE (~OMMUNI(~ATII~i~S NETWORKS, IN~`. CONFIDENTIAL AND PROPWETARY quickiy as possible This ~nay require the use of some type of inechanical splice, such as the "3M ~'iber Lock" to complete the t~mporary restoration. Permanent restorations will take place a5 sor~n as possible after the tempc~rary splice is complete. Subcontract~. Service Provider may subcontract any of the maintenance services hereunder; provi~ed that Service Pro~-ider shall require the subcontractar(s) to perform in accordance with the reaquirernent and procedures set forth herein. The use of any such subcontractor shall not relieve Service Provider of any of ~ts obligations hereunder. ~~. Fees and Costs. (a) Unscheduled Maintenance Fees. For any Unscheduled Maintenance, the Costs thereof shall be allocated among the various Interest Holders in the conduit, cable an/or fibers affected thereby as follows: (i) Costs of Unscheduled Maintenance solely to or affecting a condt~it or cable which houses fibers of a single Interest Holder shall be borne 100% by such Inter~t Holder; (ii) Costs of Unscheduled Maintenance to or affecting a conduit which houses multiple innerduct conduits, not including such Costs attributable to the repair or replacement of fiber therein, shall be borne propoi~tionately by the Interest Holds in each of the affected inner~uct conduits based on the ratio that such affected conduit bears to the total number of affec~ed innerduct conduits, and (i~i) Costs of Unscheduled Maintenance attributable to the repair or replacement of fiber, including ~he acquisition, installation, inspection, testing and splicing therec~f., shall be borne proportionately hy the Interest Holders in the affected fiber, based on the ratic~ ~at the number of affected fibers subject to the interest of each such Interest Holder bears tc~ the total number of affected fibers. Ail such Costs which are allocated to Service Recipient pursuant to the foregoing provisions shall be the responsibility of and paid by Service Recipient withi~ thirty (30) davs after its receipt from Service Provider of an invoice therefor. (b} Costs. "Costs" ~neans the actual, direct costs paid or payable in a~cordance with the established accounting procedures generally used by each party, as the case may be, and which it utilizes in billing third parties for reimbursable projects, which costs shall inclut~e, without limitation, the followin~: {i) labor costs, including wages and salaries, and bene~Ets and overhead allocable ro such labor costs (overhead allocation percentage shall not exceed the lesser of (x j the percentage Service Provider typically allocates to its internal projects or ( y} thirty-percent (30°~~ -, and (ii - other direct costs and out-of-pocket expenses on a pass- through basis (e.g.. equiprnent, materials, supplies, contract services, etc.). ~ (?. T`erm. Ser~ ice Provider's ~~bligation to perform maintenance on the relevant portion of the G~ande System shall be for an initial term expiring one (1) year from contract execution, and unles~ a different Service Provider is selected by the Interest Holders under a mutually agreed selection process, then Grande shall be the Service Provider. Thereafter, Grande shall have no oblig~ttion to provide Scheduled oi Unscheduled Maintenance hereunder, but shall be entitled to partic~pate in any process selected by the Interest Holders as a potential Service Provider. r~ GRA~IDE C'OMMUNIC4"!'I(7N~ YE"TV4`ORKS. ('vC CONFIDENTIAL AND PROPRIETARY ,_ ~ _ ~ _ e„~,,.,~ _ _ ~ .,.~ :.g .,,,~, a . ~ . Y . ~. ,.. _.. ~.... _ .... ._ .~._,.~. -.~ . _. ,.._ . ..~. _ _.,,.~ --~