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INDEFEASIBLE RIGHT TO USE AGREEMENT
THIS INDEFEASIBLE RIGHT TO USE AGREEMENT (“Agreement”) is made as of
September ____, 2023 (“Effective Date”), by and between Millennium Networks, LLC dba
SilverLight Fiber Network, a Wyoming limited liability company (“Transferee” or
“SilverLight”), having an office at 104101 US Highway 89, Freedom, Wyoming 83120 and the
City of Rexburg, an Idaho municipality whose principal place of business is located at 35 N 1st
East, Rexburg, Idaho 83440 (“the City”) (Transferee/SilverLight and the City may be jointly
referred to herein as the “Parties”).
WHEREAS, the City owns certain fiber optic communications infrastructure, including
but not limited to dark fiber assets, conduit, hand-holes, manholes, fiber huts and regeneration
sites and components, including points of access (“Fiber System”); and
WHEREAS, SilverLight wishes to acquire exclusive access to and use of the Fiber
System, subject to the terms and conditions set forth in this Agreement; and
WHEREAS, the City will grant to SilverLight, on the terms and conditions of this
Agreement, an indefeasible right to use the Fiber System (“IRU”).
THEREFORE, IN CONSIDERATION OF the mutual promises stated in this Agreement,
the adequacy of which is acknowledged by the Parties, the Parties agree:
1. Term. The term of this Agreement begins on the Effective Date and terminates at
midnight on the thirtieth (30th) anniversary of the Delivery Date as defined in Section 8(c), unless
terminated sooner as provided by this Agreement (“Term”). Grantee may extend the IRU Term,
upon at least twenty-four (24) months’ written notice to the City, for an additional twenty (20)
year term, and subject to continuation of maintenance services under the Operations and
Maintenance Agreement between the Parties upon the terms expressed therein for extension of
such services. If Grantee fails to provide such notice, then upon expiration of an initial IRU Term
or an Extended IRU Term, the applicable IRU Term automatically extends, at no additional cost
(except for applicable O&M Agreement charges), on a month-to-month basis until terminated by
either Party on ninety (90) days prior written notice. on terms and conditions as mutually agreed
to by the Parties; however, if the parties have not renewed by mutual agreement by the end of the
Term, then (a) the Term shall not renew even if Transferee has not vacated possession of the
indefeasible right to use granted under this Agreement, and (b) Transferee shall vacate the
property applicable to the indefeasible right to use as provided in Section 16.
2. First Right of Refusal. The Network System is subject to a first right of refusal to
acquire, should either Party choose to sell or abandon any or all of the networks assets that are
the subject of this Agreement. The Network system may be acquired at a value not to exceed
prevailing market rates at the time of any election to acquire; the relinquishing party shall notify
in writing the other of its option to exercise its option to acquire.
3. Grant of Indefeasible Right to Use.
(a) Commencing on the Delivery Date as defined in Section 8(c) until the end of
the Term, and on the terms and conditions of this Agreement, the City grants to Transferee, and
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Transferee accepts from the City, (i) an exclusive indefeasible right to use (“IRU”) Network
System with approximate route mileage(s), all as described on Exhibit A (as may be changed
from time to time as provided in this Agreement, each a “Transferee Fiber” and collectively the
“Transferee Fibers” and each a “Route” and collectively the “Routes” respectively), together with
any of the City’s splicing of said fibers, but without electronics or optronics, such that the fiber
strands are “dark” fibers and are not “lit” or activated; and (ii) a non-exclusive IRU as to access
points described on Exhibit A as may be changed from time to time as provided in this Agreement,
each a “Transferee Access Point” and collectively the “Transferee Access Points.
(b) The granting of any IRU does not convey any legal title to any real or personal
property, including the Transferee Fibers and Transferee Access Points, or, except as may be
expressly provided otherwise in this Agreement, create any security interest; however, subject to
the terms and conditions of this Agreement, Transferee shall have the beneficial right to use the
Transferee Fibers and Transferee Access Points during the Term. As between the parties, the
City retains legal title to the Network System, together with the right to use, control, operate,
maintain, repair, replace, and relocate said network, all subject to the terms and conditions of this
Agreement. The interest of Transferee in the City’s fiber optic network in the Routes and all of
Transferee’s equipment related to the operation of the Transferee Fibers shall be only as expressly
provided in this Agreement.
(c) The City may take additional action, in its sole discretion, that it may deem to
be reasonably necessary or appropriate to document and publish any rights under this Agreement.
At the City’s request, Transferee shall execute and acknowledge a memorandum of IRU,
financing statement, or similar document for recordation in the appropriate governmental
office(s) to constructively notify third parties of any rights under this Agreement.
(d) The City may use or permit the use of certain elements of the Network System,
specifically the network drops to the City and Madison County owned assets and ITD signal
lights, subject to the terms and conditions of this Agreement, including allowing access to any
access points by any third party, provided that such access shall not adversely affect the ability of
Transferee to use the Transferee Fibers or Transferee Access Points as permitted under this
Agreement. Nothing in this Agreement shall be construed or implied to require the City to be
Transferee’s exclusive provider of fiber optic facilities along the Route(s) or to limit in any way
Transferee’s right in its own name to apply for and obtain from third parties authorizations,
permits, pole attachment agreements, conduit leases, or other usage rights to construct, maintain,
own, lease, or otherwise use fiber optic facilities.
(e) Transferee agrees that the City may specifically retain 24 dark fiber within the
Network System and Transferee agrees to provide 12 dark fiber to Madison County within the
Network System (“Cable”). Transferee agrees to provide City and Madison County each with a
10 Gig NNI at no charge for the duration of the IRU Term and any extended term, subject to the
condition that it be used only for noncompetitive purposes.
4. Compensation.
(a) IRU Fee. In consideration for the rights granted under this Agreement to
Transferee, Transferee shall pay the City the IRU Fee(s) listed on Exhibit A. Transferee shall pay
said amount(s) in annual payments, with the first payment being one-half of the initial year annual
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fee, due upon completion of the entire Network turn-up and Network acceptance by Transferee
and full execution of this Agreement by the parties and the second payment of the remaining
initial annual being due within six months of the Delivery Date (defined in Section 8(c))
Thereafter annual payments shall be due on or before the annual anniversary date of the
Agreement. Transferee may commence use of the Network System under this IRU prior to full
Network System completion and shall pay a pro-rated portion of the IRU fee based on the percent
of the partially completed Network System to the total Network. Payment terms shall be the same
as stated above; six months initial payment upon partial Network acceptance and the remaining
due six months following the partial Network Delivery Date.
(b) Replacement, Relocation, Repair, and Unscheduled Maintenance Fees. The
Parties shall each pay a Pro Rata Share for Replacement (as defined in Section 16(a), Relocation
(as defined in Section 16(b), and repair (including as to Unscheduled Maintenance as defined in
Exhibit C) related to the Network System or the Cable, based on the Parties’ respective share of
use under this IRU to the Total Network System, except Transferee shall pay all of the costs and
expenses of Replacement, Relocation, and repairs that arise out of Transferee’s acts or omissions
or the acts or omissions of any of its affiliates, directors, officers, agents, employees, servants,
representatives, contractors, subcontractors, licensees, invitees, vendors, and/or lenders
(“Agent(s)”) or customers.
5. Access.
(a) The City’s Access to the Transferee’s Equipment. The City shall have no
access to Transferee’s optronics, electronics, optical and electrical equipment, and materials,
facilities, and other equipment used by Transferee in connection with its use of the Transferee
Fibers and/or Transferee Access Points, including any of splice enclosures controlled by
Transferee.
(b) Exclusive Use of Network System. The City acknowledges that it has no right
to use or grant any other party the right to use or interfere with Transferee’s use of the Network
System during the IRU Term. The City is granting the IRU for Transferee’s and exclusive use.
6. Transferee’s Use of Transferee Fibers and Transferee Access Points.
(a) General.
(i) Transferee shall use the Transferee Fibers and Transferee Access
Points and conduct all of its operations related to the Cable, Transferee Fibers, and Transferee
Access Points, including all installation, testing, inspection, maintenance, repair, replacement,
relocation, and operation performed in connection with the Transferee’s equipment, materials,
and facilities, only (w) in accordance with all applicable local, state, and federal laws, ordinances,
rules, and regulations (collectively, “Law” or “Laws”); (x) in a good and workmanlike manner,
using good engineering practices, and so as to install, test, inspect, maintain, repair, replace,
relocate, and operate Transferee’s equipment, materials, and facilities in accordance with
standards at least as stringent as industry standards; (y) in a manner which will not interfere with
or interrupt the City’s business or use and enjoyment of the City assets or property, or the business
or use and enjoyment of the City assets or property by other transferees or customers of the City
and (z) at Transferee’s sole cost and expense.
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(ii) Neither Transferee nor its Agents or customers shall rearrange,
move, relocate, disconnect, remove, test, splice, maintain, repair, replace, or attempt to rearrange,
move, relocate, disconnect, remove, test, splice, maintain, repair, or replace the Cable including
the Transferee Fibers, Transferee Access Points, or equipment owned or controlled by the City
except with the prior written consent of the City or except as provided in Section 13(b)(ii)(x).
(b) Initial Splicing. Transferee has the obligation to bring Transferee’s fiber up to
and into each Transferee Access Point, and the City then is obligated, on at least two (2) weeks’
notice from Transferee to the City to approve the splicing of Transferee’s said fiber with the
Transferee Fibers within the applicable Transferee Access Point. Nothing in this Agreement shall
be construed to prohibit Transferee’s sole and exclusive ownership of any fiber optic cable so
installed by Transferee from such point of splicing.
(c) No Telecommunication Service. In no event shall any grant of IRU be
construed as a duty or obligation of the City to provide to Transferee or any third party any
telecommunications services, equipment space, licenses, rights of way, or other consents for any
attachments to or other uses of fiber except as expressly set forth in this Agreement. The provision
of telecommunications services, equipment space, and any such usage rights associated with the
provision of telecommunications services are outside the scope of this Agreement.
(d) Electronic and Optronic Equipment. Transferee at its own cost and expense
shall provide or arrange for the provision of any and all equipment necessary to service its
customers buying capacity on the Transferee Fibers, together with the cost and expense of space,
utilities, and optical connections for use of said equipment. Transferee has exclusive control and
responsibility to install, test, inspect, maintain, repair, replace, relocate, and operate all of its own
optronics, electronics, optical and electrical equipment, and materials, facilities, and other
equipment used by Transferee in connection with its use of the Transferee Fibers and Transferee
Access Points. Transferee is solely responsible for splicing its fibers to any electronics and
optronics.
7. Fiber Specifications.
(a) Specifications. Attached as Exhibit B are specifications, as may be modified
or amended by the City from time to time pursuant to Section 7(b) (the “Fiber Specifications”),
indicating the minimal specifications required by the City as to the Transferee Fibers. All such
modifications and amendments shall be subject to Transferee’s reasonable consent.
(b) Modifications and Amendments to the Fiber Specifications. The Parties’
technological, operational, or other business requirements may require modifications or
amendments to the Fiber Specifications from time to time. The Parties shall cooperate to effect
and implement those modifications and amendments.
8. Installation, Splicing, Maintenance, and Repair of Cable and Access Points.
(a) General Installation and Splicing Provisions. All installation and splicing
required in connection with the Cable shall be performed in a good and workmanlike manner,
using good engineering practices, in accordance with Law and the Fiber Specifications.
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(b) As-built Drawings. The City shall deliver to Transferee as-built drawings for
the Transferee Fibers. Such drawings will, at a minimum, contain information about all then-
existing hand holes and splice locations available from the City for access to the Transferee
Fibers.
(c) Maintenance and Repair. The Parties shall comply with the provisions of
Exhibit C as to maintenance and repair of the Cable including the Transferee Fibers, and access
points including the Transferee Access Points. The Parties shall each pay for their pro-rata share
of all repair and emergency maintenance related to the Cable (including as to the Transferee
Fibers, Transferee Access Points, and Unscheduled Maintenance as defined in Exhibit C) as
provided in Section 3(d).
9. Governmental Approvals and Rights of Way.
(a) “Governmental Approvals” means all written permits, licenses, franchises,
registrations, certificates, authorizations, variances, exemptions, orders, agreements, and
approvals lawfully mandated by any governmental or quasi-governmental authority. “Rights of
Way” means one or more right of way, easement, or similar right to use real property, or any right
to attach to or install and maintain in facilities, granted by any person, entity, or governmental
authority.
(b) The City has obtained and will maintain in full force and effect during the
Term at its cost and expense all Governmental Approvals and Rights of Way required for its
installation, maintenance, and operation of the Cable and Transferee Access Points. The City and
Transferee covenant to comply with the terms and conditions of said Governmental Approvals
and Rights of Way and take no action, or fail to take any action, that would constitute a breach
thereunder, provided that the City shall give Transferee notice of any said terms and conditions
requiring adherence by Transferee.
(c) Transferee will obtain and maintain in full force and effect during the Term at
its cost and expense all Governmental Approvals and Rights of Way not included within the
Governmental Approvals and Rights of Way obtained by the City required for use by Transferee
of the Transferee Fibers and Transferee Access Points, including the installation, maintenance,
and repair of any associated equipment owned or controlled by Transferee or its customers and
any franchises, permits, and licenses required for Transferee’s operation of its business where the
Transferee Fibers and Transferee Access Points are located. Transferee covenants to comply with
the terms and conditions of said Governmental Approvals and Rights of Way and take no action,
or fail to take any action, that would constitute a breach thereunder.
10. Taxes and Impositions.
(a) If it is properly determined by any federal, state, tribal or local
governmental authority that the acquisition, license, grant, transfer or disposition , operation,
use or ownership of any part of the property or rights herein described to or by Transferee
requires payment of any Imposition (including sales or use tax) (but excluding the City’s
income taxes due to IRS and real or personal property taxes), Transferee shall pay the same,
plus penalty or interest thereon directly to the taxing authority, unless such penalties or interest
are levied in connection with the City’s failure to collect any such Imposition if obligated to do
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so, in which event the City shall pay such penalties and interest directly to the applicable taxing
authority.
(b) In addition to Impositions described in Section 10(a), Transferee shall be
responsible for and shall pay all Impositions (i) imposed on, based on, or otherwise measured
by the gross receipts, gross income, net receipts or net income received by or accrued to
Transferee with respect to ownership or use of the Transferee fibers; or (ii) which has been
separately assessed, allocated to, or imposed on the Transferee fibers.
(c ) To the extent that Impositions are not separately assessed, allocated to or
imposed on the Transferee fibers, the City will pay all Impositions. The City shall notify
Transferee of such Impositions, and Transferee shall promptly reimburse the City for
Transferee's share of all such Impositions. Transferee's share shall be based on the number of
Transferee Fibers divided by total number of fibers in the fiber optic cable.
(d) Transferee shall have the right to protest by appropriate proceedings any
Imposition. In such event, Transferee shall indemnify and hold the City harmless from any
expenses, legal action or cost, including reasonable attorney's fees, resulting from Transferee's
exercise of its rights hereunder. The foregoing notwithstanding, the City, at its option and its
own expense, shall have the right to direct and manage any contest regarding an Imposition that
relates to the City’s system that affects their interests, subject, however, to reasonable and
appropriate consultation with Transferee. Transferee agrees to cooperate with the City in any
such contest.
(e) The Parties agree to cooperate fully in preparation of any returns or
reports relating to Impositions.
11. Insurance.
(a) During the Term, each party shall maintain a policy of commercial general
liability insurance, bodily injury, and property damage, written by a company licensed to do
business in the State of Idaho, covering use and activity contemplated by this Agreement with
combined single limits of no less than $500,000 per occurrence and $2,000,000 aggregate. Each
policy shall name the other party as an additional insured for the said purpose and use of this
Agreement, provided that such coverage shall exclude events or damages arising from the
additional insured’s acts or omissions. Each party shall also maintain Workers’ Compensation
insurance to meet the requirements of the Workers’ Compensation laws where applicable.
Certificate(s) of Insurance evidencing such insurance coverage of a party shall be provided to the
other party.
(b) To the extent of any payment of proceeds or benefits under any property
damage or liability insurance policy described in this Agreement or otherwise maintained by
either party for damage to property or liability in or around the Cable, the party receiving such
payment, on behalf of itself and its affiliates, hereby waives any right of subrogation it may have
against the other party and its affiliates, directors, officers, employees, agents, contractors, and
subcontractors as to said proceeds or benefits.
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12. Indemnity and Hold Harmless.
(a) Subject to any limitations under any applicable state or federal tort claims
act(s), the City shall indemnify, defend, and hold harmless Transferee and its directors, officers,
employees, agents, and contractors from all loss, damage, liability, cost, and expense (including
reasonable attorneys’ fees) arising out of any claims or actions by third parties against Transferee
for bodily injury, death, or damage, loss, or destruction of any real or tangible personal property,
each to the extent arising out of the City’s gross negligence or willful misconduct in or about the
Cable.
(b) Subject to any limitations under any applicable state or federal tort claims
act(s), Transferee shall indemnify, defend, and hold harmless the City and its directors, officers,
employees, agents, and contractors from all loss, damage, liability, cost, and expense (including
reasonable attorneys’ fees) arising out of any claims or actions by third parties against the City
for bodily injury, death, or damage, loss, or destruction of any real or tangible personal property,
each to the extent arising out of Transferee’s gross negligence or willful misconduct in or about
the Cable, including Transferee Access Points.
(c) Each party shall provide the other party with prompt notice of each written
third-party claim covered by this Section 11 and shall cooperate with the other party in evaluating
each such claim. If requested by the indemnitee, the indemnitor shall reasonably defend, assume
the defense, or pay reasonable defense fees and costs of indemnitee as to such claim. Neither
party shall settle of compromise any such claim, or consent to a judgment, without the other
party’s consent and an unconditional release of the indemnitee as to all indemnified claims of said
third party.
13. Default and Remedies.
(a) Default. If a party fails to perform a payment obligation and such failure
continues for thirty (30) days after the non-breaching party shall have given the breaching party
notice of such failure, the breaching party shall be in default under this Agreement. If a party
fails to perform any other material duty required under this Agreement and such failure continues
for thirty (30) days after receipt of notice of such failure from the other party, the breaching party
shall be in default unless such failure is waived in writing by the non-breaching party within such
thirty (30) days; provided, however, that where such failure cannot reasonably be cured within
such thirty (30)-day period, if the breaching party shall proceed promptly to cure the same and
prosecute such cure with due diligence, the time for curing such failure shall be extended for such
period of time as may be necessary to complete such cure; and provided further that if the
breaching party certifies in good faith to the non-breaching party in writing that a non-payment
failure has been cured, such failure shall be deemed to be cured unless the non-breaching party
otherwise notifies the breaching party within fifteen (15) days of receipt of such notice from the
breaching party.
(b) Remedies. Except as otherwise provided in this Agreement, upon any default
by a party, after notice thereof from the non-breaching party, the non-breaching party may (i)
pursue any legal remedies it may have under law or principles of equity relating to such default,
including specific performance, and (ii) take such action as it determines, in its sole discretion, to
be necessary to correct the default and, subject to Section 14, recover from the breaching party its
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reasonable costs and expenses incurred in correcting such default, payable within thirty (30) days
of receipt of an invoice for said costs and expenses, except that, if the default arises out of the
duty of the City to cause the Transferee Fibers to operate within the Fiber Specifications, then the
City shall have thirty (30) days from the date that any Transferee Fibers were first not operating
within the Fiber Specifications to provide Replaced Fiber(s) pursuant to Sections 15(a) and 15(c),
and if the City does not so provide Replaced Fiber(s) that in effect will permit the uses by
Transferee contemplated by this Agreement, Transferee may procure substitute fibers at an
expense pre-approved by the City, where such approval shall not be unreasonably withheld, and,
if so approved, payable by the City within thirty (30) days of receipt of notice from Transferee,
and this Agreement shall continue in full force and effect as to the remaining Transferee Fibers
and Transferee Access Points. If the City does not so provide Replaced Fiber(s) and Transferee
does not obtain substitute fibers under this Subsection, Transferee may terminate this Agreement
as its sole and exclusive remedy for said default. Upon such termination, Transferee shall receive
from the City (x) a payment, namely, the total IRU Fee provided in Section 3(a) times a fraction,
the numerator of which is the number of months otherwise remaining in the Term and the
denominator of which is the total number of months in the Term; and (y) a reimbursement of a
portion of the advanced annual payment for Scheduled Maintenance provided in Section 3(b),
namely, said payment times a fraction, the numerator of which is the number of days remaining
in the pre-paid year from the date of termination and the denominator of which is 365.
(c) Attorney Fees. If the non-breaching party seeks enforcement of remedies
under this Section through an attorney or some other legal procedure or action, the prevailing
party in such procedure or action shall be entitled to collect reasonable attorneys’ fees (including
those related to mitigation of damages) incurred on demand from the non-prevailing party.
(d) Interest and Late Fee. If the defaulting party fails to pay the non-defaulting
party any sum under this Agreement within thirty (30) days of its due date, the unpaid amount
shall bear interest at the rate of twelve percent (12%) per annum or the maximum lawful rate (if
lower) from the due date until paid. Notwithstanding the foregoing, in no event shall any interest
or late charge payable or paid pursuant to this Agreement exceed the maximum permitted by Law;
and any interest or late charge so payable or paid shall be reduced or reimbursed so that such
amounts shall not exceed the maximum permitted by Law.
14. Limitation of Liability.
(a) In no event shall the City be liable to any third party, or to any person or entity
claiming through or under Transferee, under this Agreement; and in no event shall the City be
liable to Transferee for (i) any injury or damage by or from any act, omission, or negligence of
any third party except as otherwise may be provided in Section 12(a); (ii) any injury or damage
to persons or property resulting from a casualty unless caused by willful misconduct or gross
negligence of the City or its Agent(s) acting in the course and scope of his (their) contractual
relationship with Transferee, except to the extent of any release or waiver pursuant to Section
11(b); (iii) any defect in the Cable, Transferee Fibers, Transferee Access Points, or other
equipment, except to the extent such defect arises out of failure to perform Scheduled
Maintenance as required of the City pursuant to this Agreement; and/or (iv) any loss or damage
attributable to any equipment of Transferee which malfunctions.
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(b) In no event shall Transferee be liable to any third party, or to any person or
entity claiming through or under the City, under this Agreement; and in no event shall Transferee
be liable to the City for (i) any injury or damage by or from any act, omission, or negligence of
any third party except as otherwise may be provided in Section 12(b); and (ii) any injury or
damage to persons or property resulting from a casualty unless caused by willful misconduct or
gross negligence of Transferee or its Agent(s) acting in the course and scope of his (their)
contractual relationship with Transferee, except to the extent of any release or waiver pursuant to
Section 11(b).
(c) EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT OR
TO THE EXTENT ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT IN THE PERFORMANCE OF THIS AGREEMENT, OR AS TO EACH PARTY’S
INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL
EITHER PARTY OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY FOR: (I) ANY INDIRECT,
CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, LOSS, COST, OR
EXPENSE (INCLUDING LOSS OF PROFIT OR REVENUE OR ANY COMMERCIAL LOSS OF
ANY KIND INCLUDING LOSS OF BUSINESS OR PROFITS) ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR ITS OBLIGATIONS UNDER THIS AGREEMENT WHETHER
INCURRED OR ARISING OUT OF OR FROM OR AS A RESULT OF THE USE OR
UNAVAILABILITY OF ANY CABLE, FIBER, OR ACCESS POINT, OR THE PERFORMANCE,
NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION
UNDER THIS AGREEMENT, OR FOR ANY OTHER REASON REGARDING THIS
AGREEMENT, AND WHETHER BASED ON BREACH OF WARRANTY, BREACH OF
CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF
A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (II)
FOR ANY DAMAGES OR LOSSES ARISING FROM ANY CABLE OR FIBER OUTAGE OR
INCORRECT OR DEFECTIVE TRANSMISSIONS OR ANY CONSEQUENCES THEREOF.
(d) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE CITY DOES
NOT MAKE ANY WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
OF THE CABLE INCLUDING THE TRANSFEREE FIBERS, THE ACCESS POINTS
INCLUDING THE TRANSFEREE ACCESS POINTS, OR AS TO ANY OTHER MATTER, AND
ALL SUCH WARRANTIES ARE EXCLUDED AND DISCLAIMED.
(e) NOTHING IN THIS SECTION SHALL CAUSE THIS AGREEMENT TO BE
CONSTRUED AS A SALE.
(f) Cumulative Damages. Except as to a default arising out of the City’s gross
negligence or willful misconduct, the cumulative damages payable by the City under this
Agreement may not exceed the amount paid by Transferee to the City in accordance with this
Agreement.
(g) Risk of Loss. Each party acknowledges and agrees that its property applicable
to this Agreement shall be installed, kept, stored, repaired, and maintained at its own risk; and,
except as otherwise provided in this Agreement, the other party shall not be responsible to it for
any loss or damage to its equipment or other property which might result from tornadoes,
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lightning, wind, storms, or other Acts of God or catastrophic or other events beyond its reasonable
control as described in Section 14.
15. Force Majeure. Notwithstanding any provision or implication to the contrary, each
party’s failure to perform as required under this Agreement shall be excused for such times as
performance is prohibited by occurrences beyond the reasonable control of such party, including
(to the extent beyond such party’s reasonable control): Acts of God, landslides, tornadoes,
hurricanes, sink holes, lightning, earthquake, floods, volcanic activity, power blackouts, fire,
explosion, vandalism, interruption of wireless transmission links, radiation, extreme
temperatures, or other similar catastrophes; any law, order, regulation, direction, action, or request
of the United States government, or of any other government, including state and local
governments having jurisdiction over either of the parties, or of any department, agency,
commission, court, bureau, corporation, or other instrumentality of any one or more governments,
or of any civil or military authority; national emergencies, insurrections, riots, wars, or acts of
terrorism; labor strikes, lock-outs, work stoppages, or other similar labor difficulties, actions, or
inactions of a third-party provider or operator of facilities employed in provision of fiber optic
fibers or access points to such fibers; or any other conditions or circumstances beyond the
reasonable control of a party which impedes or affects the provision of the Transferee Fibers and
Transferee Access Points, provided, however, that such failure is excused only as to that
performance affected by the specific occurrence. If the City asserts that a force majeure event
causes thirty-five percent (35%) or more of the Transferee Fibers or Transferee Access Points to
be unavailable to Transferee, and if the City does not provide applicable Replaced Fiber(s) and
Replaced Access Point(s) pursuant to Sections 15(a) and 15(c) within ninety (90) days, Transferee
may terminate this Agreement on ninety (90) days’ notice to the City given no more than two (2)
months after the City resumes performance; if the termination option is not so exercised by
Transferee during this time, this Agreement shall remain in effect as to the applicable force
majeure event. Upon such termination under this provision, Transferee shall receive from the City
(i) a payment for the loss of IRU, namely, the IRU Fee provided in Section 4(a) times a fraction,
the numerator of which is the number of months remaining in the Term divided by the total
months in the Term; and (ii) a reimbursement of the advanced annual payment for Scheduled
Maintenance paid pursuant to Section 4(b) times a fraction, the numerator of which is the number
of days remaining in the pre-paid year from the date of termination divided by 365.
16. Transferee Fiber, Transferee Access Point, and Route Changes.
(a) General. Notwithstanding any provision or implication to the contrary, the
Transferee Fibers, Transferee Access Points, Cable, the path of any and all Route(s), and/or other
access point(s) along any Route(s) may change from time to time: (i) when necessary due to
Transferee’s economic, technological, or voluntary regulatory reasons (i.e., when not required
pursuant to Section 16(a)(ii)), or if any of the fibers in the Cable do not operate within the Fiber
Specifications and the Parties have determined in their reasonable business judgment that
restoration of one or more of the affected fibers to proper operation is technically or economically
infeasible, or if a force majeure event causes thirty-five percent (35%) or more of the Transferee
Fibers or Transferee Access Points to be unavailable to Transferee (collectively, “Replaced” or
“Replacement”); or (ii) as required by Law or at the direction of any regulatory agency, other
governmental body or authority, or condemnor having apparent authority. Notwithstanding the
foregoing, in no event may the City voluntarily change (x) the number of Transferee Fibers in the
subject Route(s), or (y) the beginning or terminus points of the subject Route(s) unless consented
Page 11 of 26
to by Transferee; nor shall any voluntary change result in Transferee’s inability to use, as
permitted by this Agreement, the Transferee Fibers in the subject Route(s) other than at those
rerouting timeframes set out in Exhibit C. Any change as to Transferee Fibers or Transferee
Access Points shall be subject to Transferee, at its cost and expense, obtaining all required
approvals for Transferee’s use thereof. Transferee shall pay the charge related to changes as
provided in Section 4(e).
(b) Involuntary Changes. If any Transferee Fibers, Transferee Access Points,
Cable, the path of the applicable Route(s), and/or other access point(s) along any Route(s) is/are
required to be relocated as required by Law or at the direction of any regulatory agency, other
governmental body or authority, or condemnor having apparent authority, the City will use
reasonable efforts to reroute the applicable portion(s) of the Transferee Fibers, Transferee Access
Points, Cable, the path of the applicable Route(s), and other applicable access points (collectively,
“Relocated” or “Relocation”). Pending the completion of Relocation, or in place of Relocation
if Relocation would result in a change in the beginning or terminus points of the applicable
Route(s) so as to have a material adverse effect on the rights granted to Transferee under this
Agreement and its use and enjoyment thereof, the City shall attempt to provide or procure
substitute assets (“Substitution”) that in effect will permit the uses by Transferee contemplated
by this Agreement, provided that the City can obtain Substitution at a reasonable cost and
expense. If as of thirty (30) days prior to the date required for Relocation, the City has not begun
Relocation and does not provide or procure Substitution, Transferee may procure substitute assets
(provided same can be obtained at a reasonable cost and/or expense, as determined in the City’s
reasonable discretion), and this Agreement shall continue in full force and effect as to the
remaining Transferee Fibers and Transferee Access Points, and other rights granted under this
Agreement. The Parties shall take all reasonable action to evidence the Substitution or
Transferee’s substitution of such Transferee Fibers and/or Transferee Access Points. If the City
has not relocated or does not provide or procure Substitution by the date by which the City is
required to relocate, and Transferee does not obtain substitute assets, the City or Transferee may
terminate this Agreement as their sole and exclusive right and remedy. Upon such termination,
Transferee shall receive from the City (i) a payment for the loss of IRU, namely, the IRU Fee
provided in Section 3(a) times a fraction, the numerator of which is the number of months
remaining in the Term divided by the total months in the Term; and (ii) a reimbursement of the
advanced annual payment for Scheduled Maintenance paid pursuant to Section 3(b) times a
fraction, the numerator of which is the number of days remaining in the pre-paid year from the
date of termination divided by 365.
(c) Definition Changes. If any fiber replaces any Transferee Fiber whether due to
Replacement or Relocation other than due to permanent Substitution (each a “Replaced Fiber”),
the Replaced Fiber shall comply with the Fiber Specifications and Transferee shall have an IRU
in the Replaced Fiber or designated comparable fiber in the Relocation in lieu of the previous
Transferee Fiber(s), subject to the terms and conditions of this Agreement, and the Replaced Fiber
or designated comparable fiber in the Relocation shall be included in the definition of Transferee
Fibers thereafter; if any access point replaces any Transferee Access Point whether due to
Replacement or Relocation other than due to permanent Substitution (each a “Replaced Access
Point”), and Transferee shall have an IRU in such Replaced Access Point in lieu of the previous
Transferee Access Point(s), subject to the terms and conditions of this Agreement, and the
Replaced Access Point shall be included in the definition of Transferee Access Points thereafter.
Page 12 of 26
(d) Notice of Rerouting. In the case of any permitted rerouting activities, the City
shall notify Transferee at least thirty (30) days in advance of any voluntary rerouting activities
and as soon as reasonably possible in the case of any involuntary rerouting activities if the subject
rerouting activities are intended to require any interruption of service by Transferee related
thereto.
(e) Additional and Reconfigured Transferee Access Points. If Transferee desires
to have access to Transferee Fibers at additional City access point locations along any applicable
Route, Transferee shall request same in writing from the City and if the City is able to
accommodate the request, the City shall establish a new Transferee Access Point at each such
location, Transferee has the obligation to bring Transferee’s fiber up to and into each new
Transferee Access Point. If Transferee elects to add or reconfigure the splicing applicable to the
Transferee Fibers in any Transferee Access Point, Transferee may request, on at least two (2)
weeks’ notice from Transferee to the City that the City provide, and the City then shall be
obligated to provide, additional splicing or reconfiguration of splicing of the Transferee Fibers in
the applicable Transferee Access Points. The fees described in Section 3(d) shall apply to
additional and reconfigured splices.
(f) Compensation to Transferee. Transferee may seek and receive an award of
compensation in any eminent domain proceeding for any taking of its IRU interest in the
Transferee Fibers or Transferee Access Points, or for any taking of its other assets, except that
Transferee shall not be entitled to any award of compensation in any eminent domain proceeding
for any taking of its IRU interest for which substitute fiber, access points, or other assets, as
applicable, is provided or procured as provided above.
17. Termination Effect; Removal Duties at Termination, Replacement, Relocation,
and Substitution. All rights under this Agreement terminate upon the expiration or sooner
termination of this Agreement, and all rights under this Agreement as to each portion of the IRU
that has been replaced, relocated, or permanently substituted shall terminate upon such
Replacement, Relocation, or permanent Substitution. Promptly upon expiration or sooner
termination of this Agreement, Transferee shall vacate the Route(s) and remove all of
Transferee’s electronics, optronics, other equipment, and other property related to this Agreement
from the Route(s), including equipment related to the Transferee Access Points; and promptly
upon Replacement, Relocation, or permanent Substitution of any of the Transferee Fibers or
Transferee Access Points, Transferee shall vacate each portion of the IRU that has been Replaced,
Relocated, or permanently Substituted and remove all of Transferee’s electronics, optronics, other
equipment, and other property as to each such portion. Each such removal shall be at Transferee’s
cost and expense, under the City’s reasonable supervision (which supervision shall be without
cost to Transferee except as to the City’s then standard service call charge, payable within thirty
(30) days of receipt of invoice), and without damage to electronics, optronics, other equipment,
and other property of the City or any third party. If Transferee shall not have so removed all of
its electronics, optronics, other equipment, and other property, the City or its designee shall have
the right, but not the obligation, to remove such electronics, optronics, other equipment, and other
property; and in such case, Transferee shall reimburse the City within thirty (30) days of receipt
of invoice any and all costs and expenses incurred in removing Transferee’s remaining
electronics, optronics, other equipment, and other property.
Page 13 of 26
18. Representations and Warranties.
(a) The City, as of the Effective Date and through the Term, represents and
warrants, subject to the provisions of Sections 1, 9(b), and 18(b), that: (i) it either has or will
obtain the necessary right, title, and authority in the Cable, including the Transferee Fibers, and
the Transferee Access Points, and otherwise in its network, to be able to grant the IRU granted in
this Agreement to Transferee and fulfill its obligations under this Agreement; and (ii) the IRU
will not conflict with and is permitted under any encumbrances or liens on the Cable and the
Transferee Fibers, and that all required consents from any such lienholder necessary to grant the
rights under this Agreement have been obtained and are in effect and shall remain in effect
throughout the Term.
(b) The City represents and warrants that to the City’s knowledge as of the
Effective Date (i) the City is in compliance in all material respects with all its obligations with
respect to all Governmental Approvals and Rights of Way required to be obtained and maintained
by it pursuant to this Agreement; (ii) the City has installed and maintained the Cable in accordance
with the requirements of the applicable Governmental Approvals and Rights of Way; (iii) there
are no actions or lawsuits pending or threatened which might reasonably be expected to result in
the revocation or termination of, or the imposition of materially adverse conditions or penalties
on, any such Governmental Approval or Right of Way; (iv) there are no material disputes with
respect to any such Right of Way; and (v) the City is not a party to any investigation, inquiry,
notice of apparent liability, violation, forfeiture, order, complaint, suit, proceedings, claim, or
dispute pending or threatened, at law, in equity, in arbitration or otherwise, issued by or before
any court or governmental authority or any non-governmental regulatory body or of any other
proceedings which adversely affects the validity or continued effectiveness of the IRU granted to
Transferee under this Agreement, and there is no injunction, writ, temporary restraining order,
decree, or any order or determination of any nature by any arbitrator, court, or other governmental
authority purporting to enjoin or restrain the execution, delivery, or performance of this
Agreement.
(c) Each party represents and warrants that it has full authority to enter into,
execute, deliver, and perform this Agreement; that this Agreement does not conflict with any
other document or agreement to which it is a party or is bound; that this Agreement is fully
enforceable in accordance with its terms; and that the persons and/or entities executing and
performing this Agreement on its behalf have full authority to do so.
19. Assignment and Other Transfers.
(a) Except as provided in this Section 18, Transferee shall not assign, encumber,
or otherwise transfer this Agreement or all or any portion of its rights or obligations under this
Agreement without the prior written consent of the City (collectively, “Assignment”). In no event
will any Assignment be permitted without the delivery to the City of a binding agreement in
writing from the proposed assignee or Transferee that (i) states that the proposed assignee, or
transferee, upon delivery of the City’s prior written consent to the transaction, will assume all of
Transferee’s current, future, and outstanding past obligations under this Agreement as if such
assignee or Transferee had originally executed this Agreement, and (ii) evidence proof
satisfactory to the City that the proposed assignee or Transferee has insurance coverage
comparable to that described in Section 11(b) and other assurances that the proposed assignee or
Page 14 of 26
Transferee can adequately perform the obligations it will assume under this Agreement.
Notwithstanding any Assignment consented to pursuant to this Section 19(a), Transferee shall not
be released from, and shall remain obligated for, performance and payment of any and all duties
and liability required of it and accruing under this Agreement prior to the date of the Assignment.
Notwithstanding the foregoing, Transferee shall have the right to assign this Agreement on notice
in the event of the sale or merger of all or substantially all of the assets of Transferee.
(b) The City may contract for its duties under this Agreement to be performed by
any agent(s), contractor(s), subcontractor(s), or other designee(s), provided that the City shall
require that such performance be in accordance with requirements and procedures at least as
stringent as those stated in this Agreement. The City’s use of any such agents, contractors,
subcontractors, or other designees shall not release the City from liability for any of its obligations
under this Agreement except and to the extent of the City’s assignment, and its assignee(s)’s
assumption, of the applicable rights and obligations of the City under this Agreement.
20. Notices. Except as otherwise expressly provided in this Agreement, any demand,
notice, or other communication to be given to a party in connection with this Agreement shall be
given in writing and shall be given by personal delivery; by registered or certified mail, return
receipt requested; by commercial overnight delivery service; or by electronic means of facsimile
or email, each addressed to the recipient as set forth as follows, or to such other address,
individual, facsimile number, or email address as may be designated by notice given by the party
to the other:
If to Transferee: SilverLight Fiber Network
Attn: Barbara Sessions, Executive Vice President
104101 US Highway 89
P.O. Box 226
Freedom, WY 83120
Telephone: 307-883-2411
Fax: 307-883-2575
Email: bsessions@silverstar.net
With a copy to: Legal & Regulatory Administrator
SilverLight Fiber Network
P.O. Box 226
Freedom, WY 83120
If to the City: IT Director
City of Rexburg
Attn: Todd Smith
35 N. 1st East
Rexburg, ID 83440
Phone: 208-359-3020
Email: todd.smith@rexburg.org
With a copy to:
Rexburg City Clerk
35 N. 1st East
Rexburg, ID 83440
Page 15 of 26
Any demand, notice, or other communication shall be conclusively deemed to have been given
on the day of actual delivery if given by personal delivery; on the date of receipt if given by
registered or certified mail, return receipt requested; and on the day of transmittal if given by
facsimile or email during the normal business hours of the recipient, or on the next business day
if not given during normal business hours, and if a transmission error is not received.
21. Confidentiality; Trademarks, Trade Names, and Service Marks; Intellectual
Property.
(a) If either party provides or has provided confidential or proprietary information,
whether or not such information is so designated, to the other party in connection with this
Agreement (the “Confidential Information”), such Confidential Information shall be held in
confidence; and the receiving party shall afford such Confidential Information the same care and
protection as it affords generally to its own confidential and proprietary information (which in
any case shall be not less than reasonable care) to avoid disclosure to or unauthorized use by any
third party, except as otherwise provided below. This Agreement and its terms shall be deemed
the Confidential Information of both parties.
(b) All Confidential Information, unless otherwise specified in writing, shall
remain the property of the disclosing party and shall be used by the receiving party only for the
purposes intended in this Agreement. All Confidential Information received by the receiving
party, including all copies thereof, shall be returned to the disclosing party or destroyed after the
receiving party’s need for such information has expired, upon the reasonable request of the
disclosing party or promptly following termination or expiration of this Agreement, except as
required by Law. Confidential Information shall not be reproduced except to the extent
reasonably necessary to perform or exercise rights under this Agreement, or as otherwise may be
permitted in writing by the disclosing party.
(c) The foregoing provisions of this Section 21 shall not apply to: (i) any
Confidential Information and any provisions of this Agreement which become publicly available,
other than through the party claiming this exception, or are required to be disclosed by Law; (ii)
Confidential Information that is independently developed by the receiving party without breach
of any obligation of confidentiality; (iii) Confidential Information that becomes available to the
party claiming this exception without restriction from an unrelated third party, or becomes
relevant to the settlement of any dispute or to the enforcement or defense of either party’s rights
under this Agreement, provided that appropriate protective measures shall be taken to preserve
the confidentiality of such Confidential Information to the extent permissible in accordance with
such settlement or enforcement or defense process; (iv) disclosures of this Agreement to any
proposed permitted assignee or Transferee provided that each such proposed assignee or
Transferee agrees to be bound by confidentiality obligations no less stringent than those set forth
in this Section 21; and (v) disclosures by the City of the physical route of the Transferee Fibers
for the City’s dark fiber and fiber optic business marketing and sales-related purposes. If any
Confidential Information or any provisions of this Agreement are required to be disclosed
pursuant to settlement of any dispute or enforcement or defense of either party’s rights under this
Agreement, the party making such disclosure shall inform the other party of the requirements of
such disclosure as soon as reasonably practicable.
Page 16 of 26
(d) Nothing in this Agreement shall be construed as granting any right or license
under any copyrights, inventions, or patents now or hereafter owned or controlled by the City or
Transferee; and nothing in this Agreement shall be construed as granting any right, title, or interest
in the other party’s trademarks, trade names, service marks, or other intellectual property rights.
The parties agree not to use the trademarks, trade names, or service marks of the other party
without prior written permission, which may be granted or prohibited in the other party’s sole
discretion. Each parties recognizes the rights of the other party in its trademarks, trade names,
and service marks and agrees not to contest or take any action to contest said trademarks, trade
names, or service marks, or to use, employ, or attempt to register any trademarks, trade names,
brand names, logos, insignia, symbols, or decorative designs that are confusingly similar thereto.
(e) Notwithstanding any provision or implication to the contrary, the receiving
party may disclose Confidential Information and either party may disclose any provisions of this
Agreement to its board of directors, officers, employees, agents, contractors and other
representatives and legal, financial, and accounting advisors and providers (including its lenders
and other financiers) to the extent necessary or appropriate in connection with the negotiation,
interpretation, performance, and/or enforcement or defense of this Agreement or its obtaining or
maintaining of financing, provided that each such person and entity is notified of the confidential
and proprietary nature of such Confidential Information and is subject to or agrees to be bound
by confidentiality obligations no less stringent than those in this Agreement.
(f) Except for Section 21(d), the provisions of this Section 21 shall survive
expiration or termination of this Agreement for one (1) year.
22. Miscellaneous.
(a) Entire Agreement; Agreement Modifications and Amendments. This
Agreement including its Exhibits contains all of the agreements, promises, and understandings
between the parties relating to the subject matter of this Agreement. All Exhibits are incorporated
in this Agreement by this reference. No oral agreements, promises, or understandings relating to
such subject matter shall be binding on either party. Any modification and amendment to this
Agreement shall be void and ineffective unless made in writing and signed by the parties, except
as otherwise provided in this Agreement.
(b) Governing Law; Venue. The interpretation and performance of this
Agreement shall be governed by the Laws of the State of Idaho without regard to its conflicts of
laws provisions. If permitted by Law, any action or claim based in whole or in part on this
Agreement must be brought in Madison, Idaho state court or the corresponding federal court of
competent jurisdiction.
(c) Binding Effect. This Agreement shall inure to the benefit of and be binding
on the parties and their permitted successors and assigns.
(d) Consents. Unless expressly stated otherwise in this Agreement, whenever
under this Agreement the consent or approval of either party is required or a determination must
be made by either party, no such consent, approval, or determination shall be unreasonably given,
withheld, conditioned, or delayed. All such consents, approvals, and determinations shall be
given or made on a reasonable basis and in a reasonable manner.
Page 17 of 26
(e) No Waiver from Course of Dealing. No course of dealing between the parties
or any delay on the part of a party to exercise any right it may have under this Agreement shall
operate as a waiver of any of the rights under this Agreement, or provided by law or equity. No
waiver of any prior breach or default of this Agreement shall operate as the waiver of any
subsequent breach or default. No express waiver shall affect any term or condition of this
Agreement other than the one specified in the waiver, and any such waiver shall apply only for
the time and manner specifically stated.
(f) Severability. If any section, subsection, provision, sentence, clause, or other
portion of this Agreement is determined to be illegal, invalid, or unenforceable, such
determination shall in no way affect the legality, validity, or enforceability of any other section,
subsection, provision, sentence, clause, or other portion of this Agreement. Any such affected
portion shall be interpreted, modified, amended, or deleted to the extent legally permissible to
give the fullest effect to the intent of the parties under this Agreement.
(g) Further Acts. Each party agrees to take such further action and to execute and
deliver such additional agreements and instruments to the extent necessary to consummate this
Agreement and the transactions contemplated by this Agreement.
(h) Construction; No Interpretation Against Draftsman. In this Agreement, (i)
headings are included for convenience of reference only and neither limit nor expand the terms
of this Agreement; (ii) the City and Transferee, and each of their respective permitted successors
or assignees, may be referred to in this Agreement singularly as a “party” and collectively as the
“parties”; (iii) singular terms shall include the plural, and plural terms shall include the singular,
each as context may require; (iv) terms shall include all genders as context may require; (v) unless
otherwise expressly provided, references to a “Section,” “Sections,” “Subsection,” or
“Subsections” shall mean a Section, Sections, Subsection, or Subsections, respectively, of this
Agreement, and to an “Exhibit” shall mean an Exhibit to this Agreement; (vi) “to the City’s
knowledge” shall mean to the actual knowledge of the City’s Mayor; and (vi) unless otherwise
expressly provided, use of the term “include” or “including” shall mean “to include, or including,
without limitation.” No ambiguities in the text of this Agreement, including any Exhibits, shall
be resolved against either party by reason of the party’s drafting of this Agreement or any Exhibit.
(i) Time of Essence. Time is of the essence in this Agreement.
(j) No Joint Venture. The relationship between the parties shall not be that of
partners, agents, or joint ventures for one another; and nothing in this Agreement shall be deemed
to constitute a partnership or agency agreement between them for any purposes, including federal
income tax purposes. The parties, in performing any of their obligations under this Agreement,
shall be independent contractors or independent parties and shall discharge their contractual
obligations at their own risk.
(k) No Third-Party Beneficiaries. Subject to Sections 1, 3(e), and 19(b), (i)
nothing in this Agreement shall be construed to create any rights with respect to any third parties;
(ii) the parties agree that the terms of this Agreement and the parties’ respective performance of
obligations under this Agreement are not intended to benefit any person or entity not a party to
this Agreement; (ii) the consideration provided by each party under this Agreement runs only to
the parties, and (iii) no person or entity not a party to this Agreement shall have any rights under
Page 18 of 26
this Agreement nor the right to require the performance under this Agreement by either of the
respective parties.
(l) Survival. These provisions shall survive expiration or sooner termination of
this Agreement: Sections 1, 2(b), 10, 11, 13, 16, 18(b), 19, 20 (excluding Subsection 20(d)), and
21; any obligation to pay or reimburse fees, costs, expenses, or other sums in connection with or
as described in this Agreement; and any provisions which by their terms survive the termination
or expiration of this Agreement.
(m) Counterparts; Electronic Signatures. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one and the same instrument. A
signed copy of this Agreement delivered by facsimile, email, or other means of electronic
transmission shall be deemed to have the same legal effect as delivery of an original signed copy
of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
Millennium Networks, LLC dba SilverLight Fiber
Network
By:
Name: Barbara Sessions
Title: Executive Vice President
The City of Rexburg
By:
Name: Jerry Merrill
Title: Mayor
Exhibit A
Network System applicable to the IRU
ROUTE BEGINNING AND
ENDING POINTS
NUMBER OF
FIBER
STRANDS IRU’d
IN ROUTE
APPROX.
ROUTE
MILES
ESTIMATED IRU
FEE (Initial Term)
ESTIMATED IRU
FEE (Extended Term)
Reference Route
illustration below
432** 46,052 $10,000.00 per month,
subject to 3% annual
escalation; annual
escalation reduced to
2.75% if two (2)
providers on OAN*
Not to exceed
$19,000.00 per month,
subject to 3% annual
escalation reduced to
2.75% if two (2)
providers on OAN*
Term of IRU: Thirty (30) years; with Twenty (20) year renewal option
Co-Location Fee: inclusive in IRU Fee; to be chosen based on review of locations of the City’s
fiber huts/nodes, and Transferee requires the right to co-locate equipment at any equipment node
along the fiber route.
Access Point: Access Point when referred to in the IRU means any Fiber System handhole,
manhole, spice enclosure, pedestal and patch panel. This list is not exhaustive and includes any
point in the Fiber System at which access to the underlying facilities is available.
Other Splice Points: None currently anticipated, but Transferee requires the right to splice into
the fiber pair at any equipment node or splice point otherwise maintained by Transferee, or other
locations where such splices are technically feasible and can be performed without disrupting
other fibers in the sheath.
*OAN refers to Open Access Network to be operated and managed by Transferee; Transferee
affiliates shall not be counted toward the two providers in reference to the annual escalation
reduction.
**Less dark fiber retained/provided pursuant to paragraph 3(e), IRU Agreement above.
Exhibit B
INITIAL FIBER SPECIFICATIONS
1.0 Route Detail Information.
The City will provide to Transferee a description of the type of fiber (i.e., underground or aerial).
If Transferee desires additional information concerning the Transferee Fibers or Route(s), the
parties shall negotiate in good faith to determine the feasibility of providing the additional detail
requested. Updates to information will be provided by the City to Transferee within ninety (90)
days of completion of any network change affecting any Transferee Fiber or Transferee Access
Point.
2.0 Deviations from Specifications.
The Parties may deviate from these Specifications when field conditions dictate and as provided
in this Agreement.
3.0 Transferee Fiber Splicing and Testing Procedures.
(a) All splices of the Transferee Fibers will be performed with an industry-accepted fusion
splicing machine.
(b) Subsequent to the fiber optic splices being made as provided in this Agreement, all
Transferee Fibers shall be tested to ensure the Transferee Fibers meet the standards provided in
this Agreement.
(c) Testing will be documented on diskettes in Laser Precision format and on trace analysis
sheets reflecting bidirectional losses by fiber and installed span loss by fiber. One (1) copy of
trace diskettes and three (3) copies of trace analysis sheets will be submitted promptly by the City
to Transferee upon completion of the testing. Alt testing will be performed at 1550 nm.
(d) During initial unidirectional OTDR testing, a general indicator of the quality of each splice
will be an objective loss of 0.15 Db or less. If, after three attempts, a party is unable to produce
a loss value of less than 0.15 Db, then 0.25 Db will become the objective. If, after two additional
attempts, a value of less than 0.25 is unachievable, then the splice will be marked as “Out-of-
Spec” (“OOS”) on a field data sheet. The parties recognize that unidirectional OTDR test data is
not an acceptance/rejection criterion. Attempts to improve the loss for existing splices that are
marked OOS will not be made unless agreed by both parties.
(e) The installed span loss (span shall be FDP to FDP) shall be a bi-directional average of
0.50 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, the inherent loss in the pigtails, and the connector losses.
(f) Optical Return Loss will be recorded on the testing documentation, for information only.
(g) Transferee fiber assignments will be consecutive in count. The maximum number of
fibers within a single buffer tube (or ribbon or fiber bundle) shall be 12.
(h) Optical Fiber Specifications - Single Mode Fiber
Operation Temperature -60 c to 85 c
Optical Properties 1300-1550 nm
Standard Attenuation < .__0 Db/km @ 1310 nm
< .35 Db/km @ l550 nm
Attenuation Uniformity 0.1 Db/km
Splice Loss < .1 Db per splice bi-directional average
< .2 Db for DS fiber
Note: Some sections of the fiber path may be Corning DS fiber. These sections will not support
operation in the 1310 nm window.
Exhibit C
FIBER MAINTENANCE REQUIREMENTS
1. Definitions.
a. “Scheduled Maintenance” means (i) routine maintenance of the Transferee
Fibers and Transferee Access Points in accordance with the City’s then current preventative
maintenance procedures, which shall be materially consistent with industry practice; (ii) patrol of
the Transferee Fibers and Transferee Access Points on a regular basis; (iii) participation in the
local and/or state “Call-Before-You-Dig” program; (iv) maintenance of sign posts, as permitted
by the underlying right-of-way owner and Law, along the Cable right-of-way with the “800”
number for the local and/or state “Call-Before-You-Dig” program; and (v) assignment of
maintenance technicians for the Transferee Fibers and Transferee Access Points. Scheduled
Maintenance does not include Replacement, Relocation, and/or repair of the Cable and any access
point(s), including due to cuts or other failure or imminent failure of the system. Routine
maintenance as to Transferee Access Points shall include maintaining or causing to be maintained
(subject to the provisions of any license, lease, or other agreement with a third party by which the
City may have a right to access or co-occupy such Transferee Access Point) any hut, collocation
facility, or other structure used to house any Transferee Access Point.
b. “Unscheduled Maintenance” means repair and non-routine maintenance of
the Transferee Fibers and Transferee Access Points not included in Scheduled Maintenance,
namely, (i) “Emergency Unscheduled Maintenance” in response to an alarm identification by
either party’s Operations Center (“OC”), notification by Transferee, or notification by any third
party of any failure, interruption, or impairment in the operation of the Transferee Fibers or
Transferee Access Points, or any event imminently likely to cause the failure, interruption, or
impairment of the operation of the Transferee Fibers or Transferee Access Points; and (ii) Non-
emergency Unscheduled Maintenance in response to any potential (although not imminent)
service-affecting situation to prevent any failure, interruption, or impairment of the operation of
the Transferee Fibers or Transferee Access Points, provided that Unscheduled Maintenance does
not include Replacement and Relocation which are governed by Section 16 of the Agreement.
c. Notwithstanding any provision of implication to the contrary, Scheduled
Maintenance and Unscheduled Maintenance do not include duties which are Transferee’s
responsibility, including installation, testing, inspection, maintenance, repair, replacement,
relocation, and operation of Transferee’s optronics, electronics, optical and electrical equipment,
materials, facilities, and other equipment and property used by Transferee or Transferee’s
designees in connection with its use of the Transferee Fibers and/or Transferee Access Points.
2. General Duties.
a. The Parties agree that under a separate Operations and Maintenance
Agreement between the Parties, SilverLight shall have the sole power to arrange for testing,
inspection, maintenance, and repair of the Cable including the Transferee Fibers, the access points
thereto including the Transferee Access Points, and splicing related thereto. SilverLight shall
provide Scheduled Maintenance and Unscheduled Maintenance. Any Scheduled Maintenance,
Unscheduled Maintenance, and maintenance and repair of the Cable and access points performed
shall be performed in a good and workmanlike manner using good engineering practices, in
accordance with Law, and shall be performed so as to maintain the Transferee Fibers in
accordance with the Fiber Specifications or to a higher standard.
b. SilverLight will operate and maintain a NOC and have trained staff
available twenty-four (24) hours a day, seven (7) days a week. SilverLight shall have a
maintenance employee, contractor, subcontractor, or other designee available for dispatch twenty-
four (24) hours a day, seven (7) days a week.
3. Work Scheduling.
a. Notice. SilverLight shall notify the City at least five (5) business days in
advance of Scheduled Maintenance that will cause interruption of use of the City’s capacity on
the network If the Scheduled Maintenance of which the City has been so notified is canceled or
materially delayed, SilverLight shall notify the City at SilverLight’s earliest reasonable
opportunity and will comply with the provisions of the previous sentence to reschedule.
b. Work Windows. SilverLight shall perform Scheduled Maintenance,
Replacement, Relocation, and non-emergency testing and repair between the hours of midnight
and 6:00 a.m. Emergency, casualty, and eminent domain-related maintenance and repairs, and
maintenance and repairs responding to a notice of problems with the Network System, the Cable,
or other access points may be made at any time, but SilverLight will use reasonable efforts when
conducting such maintenance and repairs to minimize any interruption of the use of the Fibers
and Access Points. Major system work (including fiber rolls and hot cuts) will be scheduled
during a Planned System Work Period (“PSWP”), which is a pre-arranged period of time reserved
for performing certain work on the subject the network that may potentially impact the City’s
communications traffic. Generally, this will be restricted to weekends, avoiding the first and last
weekend of each month and holidays of high communications traffic.
4. Reporting Issues; Escalation List Use. The City shall initiate contact with
SilverLight regarding restoration and repair issues and the need for Unscheduled Maintenance of
which the City has knowledge either according to the following procedure or according to other
reasonable procedure as may be developed by SilverLight and provided by SilverLight to the City
from time to time and pursuant to the Operations and Maintenance Agreement between the
Parties. Each party will provide the other party with the names and telephone numbers of at least
three (3) employees, agents, or representatives, in the order that the other party shall attempt to
contact to perform Unscheduled Maintenance, to give notices regarding Scheduled Maintenance,
and to report and seek initial redress of exceptions noted in the performance in meeting
maintenance and repair requirements. Each party’s list of contact persons may be updated from
time to time by said party. A party shall notify the applicable employees, agents, and
representatives listed on Exhibit D as soon as reasonably possible following discovery of an
Unscheduled Maintenance duty. SilverLight will log the time of each notice report it receives
from the City.
5. Initial Investigation of Issues.
a. SilverLight, after suspecting or being notified by the City of a maintenance
or repair problem with the Network Fibers or Access Points, shall take reasonable action to
determine if the suspected problem is within the Transferee Network Fibers or Access Points. If,
after taking such reasonable action, SilverLight believes that such problem does not arise out of
the Transferee Fibers or Transferee Access Points, SilverLight shall so notify the City as soon as
reasonably possible. SilverLight shall use reasonable efforts, subject to the terms of the
Operations and Maintenance Agreement between the Parties to attempt to identify maintenance
and repair problems in the Network Fibers and the Access Points.
b. SilverLight shall respond to any notice of any failure of the Network Fibers
or Access Points to be in accordance with the Fiber Specifications (an “Outage”), whether or not
causing any interruption of Transferee’s use, as quickly as reasonably possible. SilverLight will
use reasonable efforts to have a maintenance employee, contractor, subcontractor, or other
designee at the site requiring Emergency Unscheduled Maintenance activity within two (2) hours
after the time SilverLight becomes aware of the event requiring such Emergency Unscheduled
Maintenance, and SilverLight will use best efforts to have such designee on said site within four
(4) hours after SilverLight receives such notice. SilverLight’s designee for initial restoration of
a cut Network Fiber shall carry in his vehicle the appropriate equipment that would enable a
temporary splice. SilverLight shall use reasonable efforts to remedy any problems related to the
Network Fibers and Access Points for which SilverLight is responsible under the Operations and
Maintenance Agreement between the Partries as quickly as possible, except that restoration of
Network Fibers that are not immediately required for service may be scheduled for the next
available PWSP.
c. When correcting or repairing an Outage or Network Fiber discontinuity or
damage, including in the event of Emergency Unscheduled Maintenance, SilverLight shall use
reasonable efforts to repair discontinuity having an impact on communications traffic within four
(4) hours after SilverLight’s maintenance designee arrives at the problem site. To accomplish
such objective, the repairs may be temporary in nature. SilverLight, promptly upon arriving on
the site of the cut, shall determine the course of action to be taken to restore the Network Fibers
and shall begin restoration efforts. SilverLight shall splice the Network Fibers tube-by-tube or
ribbon-by-ribbon or fiber-bundle by fiber-bundle, rotating between tubes or ribbons operated by
the separate interest holders, provided that lit fibers in all buffer tubes, ribbons, and fiber bundles
shall have priority over any dark fibers to allow transmission systems to come back on line; and
provided further that SilverLight will continue such restoration efforts until all lit fibers in all
buffer tubes or ribbons are spliced and all traffic restored. The goal of emergency restoration
splicing shall be to restore service as quickly as possible. This may require the use of some type
of mechanical splice, such as the “3M Fiber Lock” to complete the temporary restoration. Within
thirty-six (36) hours after completion of an Emergency Unscheduled Maintenance by SilverLight,
SilverLight shall commence its planning for permanent repair if applicable, and shall notify the
City of such plans and shall implement and complete such permanent repair as soon as practicable.
Cooperation and Communication. Each party will work in a reasonably cooperative manner with
the other party to attempt to identify maintenance and repair problems in the Transferee Fibers
and Transferee Access Points. Each party shall maintain sufficient capability to teleconference
with the other party during an Emergency Unscheduled Maintenance on Transferee Fibers and to
provide regular communication during the repair process. Without limiting the generality of the
foregoing and in the event that any Scheduled Maintenance or Unscheduled Maintenance requires
a traffic roll or reconfiguration involving Transferee Fibers, or any electronic equipment or other
facilities of a party, then, on reasonable request, the other party shall make its personnel available
as reasonably necessary to accomplish the maintenance, which personnel shall coordinate and
cooperate with personnel of the other party in performing such maintenance as required. If at any
time SilverLight determines that an Outage as to any Network Fibers will extend beyond eight
(8) hours, a manager or officer of each party will work together to determine a plan to restore
Network Fibers as soon as possible.
Exhibit D
I. SILVERLIGHT ESCALATION LIST
Steps Role CONTACT INFO
Technical Contacts
First SilverLight Service Center Phone: 307-883-2411
(SilverLight Service Center)
Second Office Phone: 307-883-6013
Jennifer Valentine Cell Phone: 307-880-6013
E-mail: jvalentine@silverstar.net
Third Office Phone: 307-883-6635
Jason Jenkins Cell Phone: 307-880-6635
E-mail: jjenkins@silverstar.net
Third Office Phone: 307-883-6629
Brock Walters Cell Phone: 307-880-6629
E-mail: bwalters@silverstar.net
Final Office Phone: 307-883-6042
Barbara Sessions Cell Phone: 307-887-2272
E-mail: bsessions@silverstar.net
II. City Escalation List
Steps Role CONTACT INFO
First City Hall Phone: 208-359-3020
E-mail:
Second Fiber Network Administrator Name: Todd Smith
Office Phone: 208-372-2181
Cell Phone:
E-mail: todd.smith@rexburg.org
Third County Emergency Dispatch Center Name: 911 Dispatch
Office Phone: 208-372-5001
Cell Phone:
E-mail:
Fourth Name:
Office Phone:
Cell Phone:
E-mail:
Final Name:
Office Phone:
Cell Phone:
E-mail: