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HomeMy WebLinkAbout16-85 Resolution No. 16-85 RESOLUTION AUTHORIZING EXECUTION OF AN INDEFEASIBLE RIGHT OF USE AGREEMENT WITH JUDSON UNIVERSITY FOR USE OF CITY-OWNED FIBER OPTIC CABLE TO CONNECT WITH NIUNET AT ELGIN COMMUNITY COLLEGE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Sean R. Stegall, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Indefeasible Right of Use Agreement on behalf of the City of Elgin with Judson University for use of city-owned fiber optic cable to connect with NIUNet at Elgin Community College, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: June 22, 2016 Adopted: June 22, 2016 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk INDEFEASIBLE RIGHT OF USE AGREEMENT THIS INDEFEASIBLE RIGHT OF USE AGREEMENT("Agreement")is made, entered into, this 22nd day of June , 2016, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter"IRU Grantor")and Judson University—a Baptist Institution, an Illinois not-for-profit corporation, (hereinafter"Grantee"). NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: DEFINITIONS In addition to any teens defined herein,the following terms used in this Agreement shall have the following meanings: A. "Acceptance" means Grantee's issuance of an Acceptance Notice or failure to issue a notice of defective IRU Fibers within thirty(30)days after receipt of Optical Time-Domain Reflectometry(``OTDR") test results from IRU Grantor pursuant to Article III herein. B. "Acceptance Notice"means the notice of acceptance or deemed acceptance of a Segment and/or entire route given to IRU Grantor by Grantee pursuant to Article III herein. C. "Access Point" is the physical location(s) at which Grantee may, subject to required permits and Rights, connect its telecommunications system with the IRU Fibers. Access Points maybe an IRU Grantor point of presence,regenerator site,optical amplifier site, or other designated splice point,with each Access Point specifically set forth in Exhibit A-1, which is attached hereto and incorporated by reference herein,or in any additional exhibits through Exhibit A-5 attached hereto at a later date pursuant to Article 1. D. "Associated Property" shall have the meaning set forth in Section 1.1. E. "Collocation Agreement" shall have the meaning set forth in Section 4.1. F. "Confidential Information" shall include all Proprietary Information, and by way of example and without limiting the foregoing definition, Proprietary and Confidential Information shall include, but not be limited to (1) formulas, algorithms, logic, functionality, research and development techniques, processes, trade secrets (including as defined in 765 ILCS 1065/2(d)), computer programs, software, electronic codes, inventions, innovations, patents, patent applications,discoveries, improvements,data,know-how,formats, test results,and research projects; (2) information about costs, profits, markets, sales, contracts and lists of customers, and distributors; Page I of 32 (3) business,marketing, and strategic plans; (4) forecasts, unpublished financial information, budgets, projections, and customer identities, characteristics and agreements; and (5) employee personnel files and compensation information. Confidential Information is to be broadly defined, and includes all information that has or could have commercial value or other utility in the business in which either party is engaged or contemplates engaging,and all information of which the unauthorized disclosure could be detrimental to the interests of the party, whether or not such information is identified as Confidential Information by either party. (6) information or documents which is required to be released by law, including, but not limited to the Freedom of Information Act(5 ILCS 140/1,et seq.),as amended, shall not be construed as constituting"Confidential Information". G. "CPI"shall have the meaning set forth in Section 5.5. H. "Dark Fiber' means Fiber between two specified locations that has no optronics or electronics attached to it. I. "Delivery Charges- shall mean all costs including administration and overhead for Delivery Work. J. "Delivery Work" shall mean all work necessary in order to achieve connectivity and to provide OTDR test results to Grantee from Access Point to Access Point pursuant to Article III herein. K. ``Deposit"shall have the meaning set forth in Section 5.1. L. "Fiber"means a glass strand or strands which is/are protected by a color coded buffer tube and which is/are used to transmit a communication signal along the glass strand in the form of pulses of light. M. "Fiber Optic Cable' or "Cable- means a collection of Fibers contained in color-coded buffer tubes with a protective outer covering, which covering includes stiffening rods and filler. N. '`Indefeasible Right of Use"or"IRU"is an exclusive and irrevocable right to use certain Dark Fibers in the IRU Grantor Cable, subject to the terms and conditions of this Agreement. Page 2 of 32 0. "IRU Fibers"means the Dark Fibers obtained by Grantee in the IRU Grantor Cable as set forth in Exhibit A-1, or in any additional exhibits through Exhibit A-5 attached hereto at a later date pursuant to Article L P. "IRU Fee" means the amount of money in United States Dollars Grantee shall pay IRU Grantor for the use of the IRU Fibers as set forth in Exhibit A-1, or in any additional exhibits through Exhibit A-5 attached hereto at a later date pursuant to Article L Q. "IRU Grantor Cable" means the Cable containing Dark Fibers in which Grantee has an IRU pursuant to the terms of this Agreement. R. "IRU Grantor Network" means the telecommunications system owned or operated by IRU Grantor. S. "Proprietary Information"means all information and any idea in whatever form,tangible or intangible, pertaining in any manner to the business of either party, or its employees, clients, consultants, or business associates, which was produced by any employee or consultant of the party in the course of his or her employment or consulting relationship or otherwise produced or acquired by or on behalf of either party. All Proprietary Information not generally known outside of either party's organization,and all Proprietary Information so known only through improper means,shall be deemed"Confidential Information." T. "Optical Splice Poinf'means the point where Grantee's Cable connects to the IRU Fibers. U. "PSWP" means Plan System Work Period, which is a prearranged period of time reserved for certain work on the IRU Grantor Network that may potentially impact traffic. V. "Rejection Notice" means the notice of rejection of a Segment and/or entire route given to IRU Grantor by Grantee pursuant to Article III herein. W. "Rights"means any and all necessary right of way agreements,easements,licenses,leases, rights or other agreements necessary for the occupancy and use by either party of poles, conduit, cable, wire,physical plant facilities, and/or access to real property underlying the -Cable. X. "Segments" are portions of IRU Grantor Cable routes specified in Exhibit A-1, or in any additional Exhibit A-x attached hereto at a later date pursuant to Article 1, which are capable of being tested and accepted. Y. "Taxes"shall have the meaning set forth in Section 9.1. Page 3 of 32 Z. "Term"means the term of the IRU as set forth in Exhibit A-1,or in any additional exhibits through Exhibit A-5 attached hereto at a later date pursuant to Article I. ARTICLE I FIBER OPTIC USE 1.1 Grant of IRU. Subject to the terms and conditions of this Agreement and state law, IRU Grantor grants Grantee an IRU in certain Dark Fibers in the IRU Grantor Network as specifically described in Exhibit A-1. The IRU includes a non-exclusive right to use tangible and intangible property in order to use the IRU Fibers, including but not limited to cable sheathing, troughing, pedestals, slack containers, and related equipment necessary for the operation and use of the IRU Fibers as contemplated herein (collectively, the "Associated Property"), but excluding any electronic or optronic equipment which shall be provided by Grantee at its sole cost. From time to time after execution of this Agreement, Dark Fiber IRUs in certain Segments may be incorporated into this Agreement by both parties executing a supplemental Exhibit in the form of Exhibit A-1 through A-5 of this Agreement. For each additional Segment in which an IRU is granted,the separate Exhibit A-1 through A-5,executed by both parties, shall be attached hereto and made a part hereof; and shall be titled so as to identify this Agreement, the Cable Segment affected, the resulting IRU Fee and any other material terms and conditions relating to the additional Segment in which an IRU is granted hereunder. Any provision relating to the affected Segment contained in a supplemental Exhibit A-1 through A-5 which is more specific than a comparable or contrary provision contained in this Agreement shall control with respect to that Segment. Upon Acceptance and payment of the IRU Fee for the Segment set forth in a supplemental Exhibit A-1 through A-5, Grantee shall acquire hereunder an IRU for the IRU Fibers specified in the supplemental Exhibit A-1 through A-5. Upon Acceptance, Grantee shall be entitled to use its IRU Fibers for any lawful purpose, subject to the limitation in Section 1.2, below. Grantee hereby agrees to be bound by all laws,regulations and any requirements of Rights agreements and to appoint IRU Grantor as its agent for any and all matters relating to the Rights if reasonably requested by IRU Grantor. 1.2 Non-Interference. Grantee shall not use the IRU Fibers in a manner that materially interferes in any way with, or otherwise adversely affects the use of the IRU Grantor Network, Fibers, Cable, (or any equipment or element thereof), or of the fiber, cable or equipment of any person along the route Segments. IRU Grantor shall not use any other Fibers in the IRU Grantor Cable in a way that materially interferes with or adversely affects Grantee's use of the IRU Fibers. 1.3 IRU Grantor Property. Grantee shall not individually, or permit others to, access, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any IRU Grantor property without the prior, written consent of IRU Grantor. The Parties agree that no party other than IRU Grantor or a contractor under the direct supervision of IRU Grantor shall be permitted to perform maintenance or splicing. IRU Grantor property is for use in connection with the IRU and shall not be used for any purpose other than that for which IRU Grantor provided it. In the event that Grantee, or Grantee's representative, agent or any other party associated with Grantee violates this provision, in addition to actual damages sustained by IRU Grantor, exclusive of indirect, incidental, consequential, special, or punitive damages, for breach by Grantee, Grantee Page 4 of 32 shall be responsible to pay IRU Grantor for all reasonable damages to IRU Grantor property and also any ongoing service charges in the event that maintenance or inspection of IRU Grantor property is required as a result of Grantee's violation of this provision. In no event shall IRU Grantor be liable to Grantee or any other entity for interruption of Service or for any other loss, cost or damage caused or related to Grantee's unauthorized tampering with the IRU Grantor property. In the event of any violation of this provision,IRU Grantor reserves the right to terminate for cause this Agreement, and Grantee shall forfeit all monies paid to date by Grantee. Grantee has the right to access the terminal ends of TRU Grantor fiber (jumpers, FDP) at their equipment rack when collocated within an IRU Grantor premise. ARTICLE II TERM 2.1 Term. Grantee will be entitled to use the IRU Fibers as of the date of this Agreement. This Agreement shall terminate on the date set forth in Exhibit A-1, or in any additional exhibits through Exhibit A-5 attached hereto at a later date pursuant to Article 1. 2.2 Survival of Certain Obligations. Expiration or termination of this Agreement shall not affect the rights or obligations of any party with respect to any payments of costs incurred prior to the date of termination or pursuant to Article IX (Taxes); Article X (Liability); Article XV (Confidentiality); Article XVI (Default), and Article XXIII (Rights). ARTICLE III ACCEPTANCE AND DOCUMENTATION 3.1 Acceptance. Grantee shall be deemed to have accepted and to be in possession of the IRU Fibers upon the date of the Agreement subject to, and after completion of,the procedures set forth below. 3.2 Test Results. After receipt of Grantee's Deposit for any Segment pursuant to Article 5.1, IRU Grantor shall complete the Delivery Work for the Segment and provide Access Point to Access Point OTDR test results for the specific IRU Fibers in the Segment. In addition, Grantee may perform a visual inspection, subject to the protocols of all Rights agreements, of all above- ground Access Points and visible IRU Grantor Cable construction. Within thirty (30) days after receiving the IRU Fiber test results, Grantee shall (i)determine whether the IRU Fiber test results conform to the requirements of the Testing and Acceptance Standards attached hereto as Exhibit B incorporated by reference herein, and (ii) provide an Acceptance/Rejection Notice in the form of the attached Exhibit C incorporated by reference herein. Issuance of an Acceptance Notice or failure to issue an Acceptance/Rejection Notice within the thirty (30) day period shall constitute unconditional and irrevocable Acceptance of the IRU Fibers for all purposes under this Agreement by Grantee as of the 31st day after Grantee's receipt of the IRU Fiber test results. 3.3 Acceptance/Rejection Procedure;Date. Should Grantee reject the IRU Fibers by providing a Rejection Notice within the applicable thirty (30) day period in accordance with Section 3.2, upon receipt thereof, IRU Grantor shall promptly undertake to investigate, and if necessary correct, any deficiency or non-conformity in the IRU Fibers. Thereafter, IRU Grantor shall again conduct testing of the IRU Fibers from Access Point to Access Point, The foregoing Page 5 of 32 procedure, as described in Section 3.2, shall apply again and successively thereafter until IRU Grantor has remedied all material defects or significant failures and IRU Grantor has received written notice from Grantee that the IRU Fiber meets the requirements of this Agreement and the Exhibits to this Agreement, provided, however that Grantee shall deliver to IRU Grantor any subsequent Rejection Notices after the initial thirty(30)day period within thirty(30)business days after receipt of the relevant test results from IRU Grantor or Grantee shall be deemed to have accepted the IRU Fibers pursuant to the last sentence of Section 3.2 herein. If Grantee issues a Rejection Notice where IRU Grantor reasonably believes the IRU Fiber test results conform to the Testing and Acceptance Standards,the parties shall work together to do cooperative testing, sharing the cost equally, to determine whether the test results conform to specifications. Grantee shall not unreasonably withhold its acceptable of the IRU Grantor Cable. 3.4 Record Drawings. Upon request, but not before one hundred twenty (120) days after Acceptance, IRU Grantor shall provide record drawings regarding the as-built Cable containing the IRU Fibers. The record drawings shall contain the technical specifications of the IRU Grantor Cable, associated splices and other details consistent with industry standards. At the request of Grantee, and provided Grantee shall bear the reasonable cost of production therefor, the record drawings shall also be provided in electronic format if possible using reasonable efforts. ARTICLE IV FRANCHISE/LICENSE/PERMIT FEES,AND COLLOCATION AGREEMENTS 4.1 Collocation. Grantee shall be responsible for entering into any collocation agreements with Local Exchange Carriers and Interexchange Carriers to use its IRU Fibers. In the event that Grantee wishes to co-locate in IRU Grantor facilities, or in facilities owned by any third party as a sub-tenant Lessee of IRU Grantor, the parties shall enter into a separate collocation agreement for each site substantially in the form of an IRU Grantor Master Services Agreement and Collocation Services Addendum (a"Collocation Agreement",which may be attached hereto and made a part hereof as Exhibit "D") subject to obtaining any required third party consent(s), including but not limited to the consent of any landlords of IRU Grantor. In the event that IRU Grantor, in its discretion, decommissions any collocation site, TRU Grantor shall not be liable for any costs associated with removal or relocation of Grantee's facilities or the IRU Fibers. 4.2 Permits. Grantee shall be responsible for the appropriate government filings, licenses, or other requirements to place the IRU Fibers into operation, including, but not limited to any necessary municipal licenses and/or franchise agreements other than those Rights agreements discussed in Article XXIII herein and which shall remain the responsibility of IRU Grantor. 4.3 Rights Fees. Grantee shall pay 50% of Rights fees as required from time to time by property owners,government agencies,taxing authorities,or otherwise imposed by law or contract and which relate to the 1RU Grantor Cable containing the IRU Fibers. Upon written request therefor, IRU Grantor shall provide a reasonable accounting for same. Page 6 o1'32 ARTICLE V PAYMENT 5.1 Deposit. As partial consideration for the grant of the IRU by IRU Grantor to Grantee, Grantee shall pay a deposit of ten percent(10%)of the IRU Fee set forth in Exhibit A-1,or in any additional Exhibit attached hereto at a later date pursuant to Article I, upon execution of this Agreement("Deposit"). Upon Acceptance,the Deposit shall be applied to the IRU Fee hereunder. 5.2 IRU Fee. Upon Acceptance of the IRU Fibers in any Segment pursuant to the procedures set forth in Article III herein,and as further consideration for the grant of the IRU by IRU Grantor to Grantee, Grantee shall pay IRU Grantor the balance of the IRU Fee applicable to the Segment as set forth in Exhibit A-1,or in any additional Exhibit attached hereto at a later date pursuant to Article I, and the unpaid balance of any estimated Delivery Charges. The IRU Fee shall be calculated in United States Dollars per fiber per mile for the applicable IRU Grantor Cable Segment in which Grantee receives an IRU hereunder and shall specifically include slack loops and similar lengths necessary for proper splicing and maintenance. The Segments and actual route miles used to calculate the IRU Fee shall be set forth in Exhibit A-1, or in any additional Exhibit attached hereto at a later date pursuant to Article I;provided that the total IRU Fee shall be adjusted to take into account a differing amount calculated pursuant to the immediately preceding sentence in accordance with final OTDR tests. The distance used to calculate the IRU Fee hereunder using the OTDR distances from Access Point to Access Point shall be conclusive and binding on the parties for all purposes hereunder. The IRU Fee for any given Segment shall be paid within sixty (60) days after Acceptance of the Segment. In the event such Segments and actual miles are not included in any exhibit attached hereto, such Segments and actual route miles shall be as reasonably determined by the IRU Grantor in its sole discretion. 5.3 Payment. All payments to IRU Grantor as set forth in this Agreement are due and payable within sixty(60)days of invoice. 5.4 Rights Fees. Grantee shall pay 50%of Rights fees as set forth in Article IV herein. 5.5 Annual Maintenance Fee. Payment for maintenance and repairs performed pursuant to Article VI of this Agreement shall be made as follows: (a) Upon Acceptance, Grantee shall pay IRU Grantor an annual routine maintenance fee as set forth in Exhibit A-1 or in any additional Exhibit attached hereto at a later date pursuant to Article I, in advance for the subsequent year. Grantee shall pay IRU Grantor for routine maintenance of its IRU Fibers based upon the OTDR mileage used to calculate the IRU Fee set forth in Article V herein. Routine maintenance fees shall be adjusted every five(5) years by using the Consumer Price Index (all city index), published by the Bureau of Labor Statistics, United States Department of Labor("CPI"). The routine maintenance fee shall adjust by the same percentage of increase that the CPI published on each fifth(5`f') anniversary date of this Agreement has increased over the CPI published on the date of this Agreement. Page 7 of 32 (b) Grantee shall pay 50% of costs for emergency maintenance, payable within sixty (60)days after transmission of an invoice. 5.6 Delivery and Splicing Fees. The estimated Delivery Charges for IRU Grantor to perform the Delivery Work shall be paid with the balance of the IRU Fee. All splicing at the Access Points in order for Grantee to achieve end-to-end connectivity thereafter pursuant to Article VII hereunder shall be billed to and paid by Grantee within sixty(60)days after invoice. 5.7 Overdue Payments. If Grantee fails to make any payment under this Agreement when due, such amount shall accrue interest from the date such payment is due until paid, including accrued interest compounded monthly,at an annual rate of six percent(6%). If the aforementioned rate exceeds the maximum rate allowed by applicable law, then the interest rate made applicable herein shall be the maximum rate allowed by law. ARTICLE VI MAINTENANCE AND REPAIR 6.1 Procedures. The escalation and call-out list for maintenance and repair communications is set forth on the attached Exhibit E incorporated by reference herein. IRU Grantor warrants that the IRU Fiber will be maintained in accordance with prevailing telecommunications industry standards, and with the Routine Maintenance Standards set forth in the attached Exhibit F incorporated by reference herein. 6.2 Routine and Emergency Maintenance. All routine maintenance and repair functions and emergency maintenance and repair functions,including"one-call"responses,cable locate services, and necessary relocation of the IRU Grantor Cable containing the IRU Fibers, shall be performed by IRU Grantor or its designee for a period coterminous with the term of this Agreement. (a) Emergency Maintenance. IRU Grantor shall respond to any failure, interruption or impairment in the operation of the IRU Fibers within four (4) hours after receiving a report of any such failure, interruption or impairment. IRU Grantor shall use its best efforts to perform maintenance and repair to correct any failure, interruption or impairment in the operation of the IRU Fibers within eight(8)hours. (b) Routine Maintenance. IRU Grantor shall schedule and perform periodic maintenance and repair checks and services as set forth in the Routine Maintenance Standards. Additional maintenance may be performed from time to time on the IRU Fibers at IRU Grantor reasonable discretion, or upon Grantee's request with reasonable advance notice to IRU Grantor. 6.3 Notice of Rpair. Except when, and to the extent to which, implementation of an emergency repair situation would be delayed by the following notice requirements, IRU Grantor shall provide advance notice to Grantee of maintenance or repairs that may affect the IRU Fibers. Page 8 of 32 (a) Emergency Maintenance. IRU Grantor shall provide at least two (2) hours advance notice regarding repairs that may affect Grantee's IRU Fibers. Notice shall be given in the method specified for Routine Maintenance in subsection(b)below. (b) Routine Maintenance. IRU Grantor shall provide at least seventy-two (72) hours advance notice regarding any maintenance or repairs that may affect Grantee's IRU Fibers by submitting an email notification to Grantee. 6.4 Notice of PSWP. IRU Grantor shall provide seventy-two (72) hours advance notice for any PSWP affecting the Grantee Network. 6.5 Maintenance of Relocated Fibers. In the event that Grantee acquires an IRU in relocated fibers pursuant to Section 12.1, IRU Grantor shall continue to provide maintenance and repair services for such relocated fibers pursuant to the terms of this Agreement,for the remaining Term set forth in the applicable Exhibit A. ARTICLE VII SPLICING 7.1 IRU Grantor to Perform. Upon Acceptance and payment of the balance of the IRU Fee and Delivery Charges, Grantee's lateral or other Fibers beyond the Access Points may be spliced into the IRU Grantor Cable at the Access Points pursuant to the procedures set forth on Exhibit B attached hereto and incorporated by reference herein. In order to maintain the integrity of the IRU Grantor Cable and Network, IRU Grantor, or a contractor operating under its direction, shall perform all splicing performed on the IRU Grantor Cable at the Access Points. 7.2 Future Work. For future expansion at existing Access Points, or at splice points that are not designated Access Points hereunder if requested(and if possible using reasonable efforts),IRU Grantor will perform the necessary splicing upon written or e-mail request by Grantee at IRU Grantor's cost plus ten percent (10%) for administration and overhead. Normal requests for splicing shall be submitted at least sixty (60) days prior to the requested splicing date, and expedited requests shall be submitted at least thirty (30) days prior to the requested splicing date. Grantee will pay an expediting fee for each expedited splicing request in the amount specified in Exhibit A-1, or in any additional Exhibit attached hereto at a later date pursuant to Article I. IRU Grantor shall obtain any and all permits necessary for such splicing. Grantee agrees that it will not perform any splicing or otherwise interfere in any manner with the IRU Grantor Cable at any time for any reason. The cost of splicing Fibers into IRU Grantor Cable will be borne at all times by Grantee in accordance with Article V herein. ARTICLE VIII REPRESENTATIONS,WARRANTIES AND ACKNOWLEDGMENTS 8.1 Representations and Warranties. Each party represents and warrants to the other with respect to the rights and obligations contained herein: Page9of32 (a) it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) this Agreement constitutes a legal,valid,binding obligation enforceable against such party in accordance with its terms; (c) its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. 8.2 Limited Warranty, Disclaimer of Implied Warranties, and Limitation of Damages. IRU GRANTOR WARRANTS THAT THE IRU GRANTOR CABLE AND FIBERS SHALL HAVE BEEN CONSTRUCTED IN ACCORDANCE WITH PREVAILING INDUSTRY STANDARDS AND SHALL BE FREE OF MATERIAL DEFECTS IN MATERIALS AND WORKMANSHIP FOR A PERIOD OF THIRTY (30) DAYS FROM ACCEPTANCE THEREOF BY Grantee. IRU GRANTOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE IRU GRANTOR CABLE OR THE IRU FIBERS. THE FOREGOING WARRANTY CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE IRU GRANTOR CABLE AND IRU FIBERS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IRU GRANTOR SHALL IN NO EVENT BE LIABLE TO GRANTEE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR MONETARY DAMAGES OF ANY NATURE WHATSOEVER FOR ANY REASON. 8.3 Vendor Warranties. In addition to the foregoing warranties,IRU Grantor hereby assigns to Grantee,and Grantee shall have the benefit of,any and all vendors',manufacturers',contractors' and suppliers' warranties with respect to the material in the Cable, Fiber, and/or associated property supplied by IRU Grantor. 8.4 Grantee Acknowledgment. Grantee acknowledges that IRU Grantor has granted to Grantee interest in this IRU Agreement and the IRU Fibers which are the subject of this IRU Agreement, and that such security interest is and shall be continuing. Grantee further agrees and acknowledges that such IRU Fibers and all of IRU Grantor's right,title and interest in and to this IRU Agreement are and shall remain subject to such security interest and any modifications, consolidations, replacements, and extensions thereof. ARTICLE IX TAXES 9.1 Definition. As used in this Article IX, "Tax" or "Taxes" means all taxes, fees, levies, impositions, imposed duties, charges, or withholdings of any nature, including without limitation ad valorem, real property, gross receipts, taxes and franchise, license and permit fees, together with any penalties, fines or interest thereon arising out of the transactions contemplated by this Page 10 of 32 Agreement and/or imposed upon the IRU Fibers, IRU Grantor Network, or any part thereof, by any governmental agency or taxing authority. 9.2 Responsibility. Upon Grantee's Acceptance of its IRU Fibers, it shall be liable for any and all sales, use, income, gross receipts or other Tax or imposition assessed on the basis of revenues received by IRU Grantor pursuant to its use of its IRU Fibers. 9.3 Payment Exclusive of Taxes. All payments made by Grantee hereunder shall be made without any deduction or withholding for or on account of any Tax, duty or other charges of whatever nature imposed by any taxing or government authority. ARTICLE X LIABILITY 10.1 LIMITATION OF LIABILITY. NEITHER IRU GRANTOR NOR GRANTEE SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM FROM ANY CUSTOMER FOR LOSS OF SERVICES, ARISING UNDER THIS AGREEMENT OR FROM ANY BREACH OR PARTIAL BREACH OF THE PROVISIONS OF THIS AGREEMENT OR ARISING OUT OF ANY ACT OR OMISSION OF EITHER PARTY HERETO, ITS DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS, CONTRACTORS AND/OR AGENTS. Both IRU Grantor and Grantee shall include in any agreement with any third party relating to the use of the IRU Grantor Cable or Grantee's IRU Fibers a waiver by such third party of any claim for indirect, special, punitive or consequential damages, including, but not limited to, any claim from any client or customer for loss of services, arising out of or as a result of any act or omission by either party hereto, its directors, officers, employees, servants, contractors and/or agents. 10.2 Grantee Indemnification. Grantee shall agree to indemnify, defend, protect and hold harmless IRU Grantor, and its employees, officers and directors, from and against, and assumes liability for: (i) any injury, loss or damage to any person, tangible property or facilities of any person,including reasonable attorneys' fees and costs,to the extent arising out of or resulting from the negligence or willful misconduct of Grantee, its officers, employees, servants, affiliates, and agents arising out of or in connection with the performance or omission by Grantee of its obligations or the exercise by Grantee of its rights under this Agreement; and (ii) any claims, liabilities or damages arising out of any violation by Grantee of any regulation, rule, statute or court order of any governmental authority in connection with the performance or omission by Grantee of its obligations or the exercise by Grantee of its rights under this Agreement. 10.3 Notice. IRU Grantor and Grantee agree to promptly provide each other with notice of any claim which may result in an indemnification obligation hereunder. The indemnifying party may defend such claim with counsel of its own choosing provided that no settlement or compromise of any such claim shall occur without the consent of the indemnified party, which consent shall not be unreasonably withheld or delayed. Page 11 of 32 10.4 Actions Against Third Parties. Nothing contained herein shall operate as a limitation on the right of either party hereto to bring an action for damages, including consequential damages, against any third party based on any acts or omissions of such third party as such acts or omissions may affect the operation or use of the IRU Grantor Cable,or any IRU Fibers;and each party hereto shall assign such rights or claims, execute such documents and take whatever actions as may be reasonable and necessary to enable the injured party to pursue any such action against such third party; provided, however, that employees or agents of IRU Grantor shall not be construed to constitute "third parties". 10.5 Non-Materiality; Survival. IRU Grantor and Grantee each expressly recognize and agree that its obligation to indemnify, defend, protect and hold the other harmless is not a material obligation to the continuing performance of its other obligations, if any, hereunder. In the event that a party shall fail for any reason to so indemnify, defend, protect and save the other harmless, the injured party hereby expressly recognizes that its sole remedy in such event shall be the right to bring legal proceedings against the other party for its damages as a result of the other party's said failure to indemnify, defend,protect and save harmless. These obligations shall survive the expiration or termination of this Agreement. ARTICLE XI FORCE MAJEURE The obligations of the parties (except for the payment of money hereunder by Grantee) are subject to force majeure and neither party shall be in default under this Agreement if any failure or delay in performance is caused by strike or other labor dispute; accidents; acts of God; fire; flood; earthquake;lightning;unusually severe weather;material or facility shortages or unavailability not resulting from such party's failure to timely place orders therefor; lack of transportation; legal inability to access property; acts of any governmental authority; government codes, ordinances, laws, rules and regulations or restrictions; condemnation or the exercise of rights of eminent domain; war or civil disorder; or any other cause beyond the reasonable control of either party hereto. The excused party shall use its best efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. Notification of any such event or cause shall in all cases be given by the excused party to the other and, when possible,of the estimated duration. ARTICLE XII RELOCATION OF CABLE 12.1 Relocation. IRU Grantor is required to, or reasonably determines that it is required to, relocate or replace its Cable or any of the appurtenant facilities used or required in providing the IRU, (whether by act of nature, government, or grantor of any Right) then, so long as such work is not necessitated by a breach of the IRU Grantor obligations hereunder, Grantee shall reimburse IRU Grantor for 50%of such costs, including,without limitation, Fiber acquisition, splicing, and testing, including overhead. IRU Grantor, upon written request, shall deliver to Grantee updated record drawings with respect to any relocated portion of the Cable upon request but no earlier than one hundred twenty(120)days following such relocation. Upon completion of any such relocation Page 12 0'32 and payment therefor by Grantee,Grantee shall be deemed to have an IRU in and to such relocated and/or replacement Fibers as set forth in Article I herein. 12.2 Notice of Relocation. IRU Grantor shall give Grantee thirty(30) days prior notice of any such relocation, if possible, and shall have the obligation to proceed with such relocation, including,but not limited to,the right to determine the extent of, the timing of, and methods to use for such relocation. 12.3 Right to Review. IRU Grantor shall have the right to determine the timing,means,method and extent of any relocation hereunder; provided however, that Grantee shall have the right to review the relocation plans of IRU Grantor fourteen (14) days prior to any relocation and shall have the right to have a representative present at the time IRU Grantor relocates the Cable that contains the TRU Fibers. ARTICLE XIII INSURANCE 13.1 Grantee's Insurance. Grantee, and any contractor employed by Grantee to work on the Fiber and/or Cable, shall maintain insurance for the duration of this Agreement, and for three (3) years after the termination of either this Agreement (in the case of Grantee)or for three(3) years after the termination of a contractor's work on the Fiber and/or Cable(in the case of a contractor), as follows: (a) Workers' Compensation Insurance complying with the law of the state or states in which the services are to be provided and Employers Liability Insurance with the limits of $1,000,000 for each accident, including occupational disease coverage with limits of$1,000,000 for each employee, with a$1,000,000 policy limit. (b) Comprehensive General Liability Insurance, including premises, operations, products and completed operations, contractual, broad form property damage, independent contractors and personal injury with the following minimum limits: Personal Injury- $5,000,000 each person and$5,000,000 each accident, and Property Damage- $1,000,000 each accident. (c) Automobile Liability Insurance for owned,hired and non-owned autos:$2,000,000 combined single limit bodily injury/property damage. (d) Railroad Protective Liability Insurance for any work within fifty (50) feet of a railroad right-of-way, with policy limits of at least $2,000,000 each person/occurrence or such other limits as required by the Right-of-Way providers. (d) Excess or Umbrella Insurance applicable to all of the coverages required in this Section 13.1,except for the Workers' Compensation Insurance required in subparagraph(a)above (but such coverage shall be applicable to the required Employers Liability Insurance),with policy limits of at least$5,000,000 per occurrence. Insurance amounts contained in this section shall be increased based upon the increase in the CPI. Page 13 of'32 13.2 IRU Grantor Inclusion. IRU Grantor shall be included as an additional insured on a primary,non-contributory basis on all policies specified in Section 13.1. Such additional insurance shall apply to any and all claims arising out of Grantee's or a contractor's work, operations, or products; additional insurance provisions which apply only to claims arising out of the named insured's negligence or which otherwise apply only to vicarious liability of IRU Grantor are not acceptable. 13.3 Failure of either party to enforce the insurance requirements of this Article XIII shall not relieve the party of its obligation to maintain the required coverage. Upon request, Grantee or a contractor shall provide a copy of its insurance policies to IRU Grantor. 13.4 Unless otherwise agreed in writing, all insurance policies required shall be obtained and maintained with companies rated A or better by Best's Key Guide. ARTICLE XIV CONDEMNATION 14.1 Eminent Domain Costs. It is expressly recognized and understood by Grantee that relocation costs resulting from any condemnation proceeding may not be fully reimbursed by the condemning authority and, if IRU Grantor relocates the IRU Fibers, Grantee shall pay 50%of all costs associated with the relocation of the IRU Fibers in excess of such costs which were reimbursed by the condemning authority. Notwithstanding,if the IRU Fibers are relocated by IRU Grantor, Grantee shall pay to IRU Grantor all condemnation awards given to Grantee,if any,that relate to the relocation of the IRU Fibers and thereafter Grantee shall be deemed to have an IRU in and to the replacement fibers as set forth in Article I herein. ARTICLE XV CONFIDENTIALITY 15.1 Generally. Grantee and IRU Grantor represent, certify, and warrant that they shall use their best reasonable efforts to ensure that any and all information and documents obtained from the other party during the term of this Agreement, and identified as being Confidential or Proprietary Information will be held in strict confidence and will not be used by their company,its employees, subcontractors, consultants or agents for any purpose other than its performance required by this Agreement. If either party provides Confidential or Proprietary Information to the other party, such Confidential or Proprietary Information shall be held in confidence, and the receiving party shall afford such Confidential or Proprietary 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, in order to avoid disclosure to or unauthorized use by any third party. All information disclosed by either party to the other in connection with or pursuant to this Agreement shall be deemed to be Proprietary Information, provided that verbal information is indicated as being confidential or proprietary when given and promptly confirmed in writing as such thereafter. All Confidential or Proprietary Information, unless otherwise specified in writing,shall remain the property of the disclosing party,shall be used by the receiving party only for the intended purpose, and such written Confidential or Proprietary Information, Page 14 o1'32 including all copies thereof,shall be returned to the disclosing party or destroyed after the receiving party's need for it has expired or upon the request of the disclosing party. Confidential or Proprietary Information shall not be reproduced except to the extent necessary to accomplish the purpose and intent of this Agreement,or as otherwise may be permitted in writing by the disclosing party. 15.2 Applicability. The foregoing provisions of Section 15.1 shall not apply to any Confidential or Proprietary Information which (i) becomes publicly available other than through the disclosing party; (ii) is required to be disclosed or released pursuant to law; (iii) is independently developed by the receiving party; or(iv) becomes available to the receiving party without restriction from a third party. 15.3 Permitted Disclosure. Notwithstanding Sections 15.1 and 15.2,either party may disclose Confidential or Proprietary Information to its employees, agents, lenders, funding partners and legal and financial advisors and providers to the extent necessary or appropriate in connection with the negotiation and/or performance of this Agreement or in obtaining financing,provided that each such party is notified of the confidential and proprietary nature of such Confidential or Proprietary Information and is subject to or agrees to be bound by similar restrictions on its use and disclosure. 15.4 Use of Name. Neither Grantee nor IRU Grantor may make any news release, public announcement, denial or confirmation concerning all or any part of this Agreement or use the other's name in sales or advertising materials, or in any manner advertise or publish the fact that the companies have entered into this Agreement, or disclose any of the details of this Agreement to any third party, including the press, without the prior written consent of the other party, except such disclosures required by law,or the rules and regulations of the relevant government agencies. 15.5 Cooperation. In the event either party shall be required to disclose all or any part of this Agreement in, or attach all or any part of this Agreement to, any filing or statement, each party agrees to discuss and work cooperatively, in good faith, with the other party, to protect, to the extent possible, those items or matters which the other party deems confidential and which may, in accordance with applicable laws,be deleted therefrom. 15.6 Survival. The provisions of this Article shall survive expiration or termination of this Agreement. Any breach of this Article shall be deemed irreparable and/or incompensable with money damages or Iegal relief, and the non-breaching party shall be entitled to seek injunctive or such other equitable relief in a court of competent jurisdiction in accordance with the terms of this Agreement. ARTICLE XVI DEFAULT 16.1 Notice and Cure. Neither party shall be in default under this Agreement unless and until the other party shall have given the defaulting party written notice of such default and the defaulting party shall have failed to cure the default within thirty(30)days after written receipt of such notice; provided, however, that where a default cannot be reasonably cured within the thirty (30) day period, if the defaulting party shall promptly proceed to cure the default with due Page 15 of 32 diligence, the time for curing the default shall be extended for a period of up to ninety (90) days from the date of receipt of the default notice. 16.2 Failure to Cure. Upon the failure by the defaulting party to timely cure any default after notice thereof from the non-defaulting party, the non-defaulting party may take any action it determines necessary to pursue any legal remedies it may have under applicable law or principles of equity relating to the breach, subject to the limitations of liability set forth herein. IRU Grantor specifically reserves the right to terminate the rights granted under this IRU in the event of an uncured default by Grantee. 16.3 Equitable Relief. The parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each party shall be entitled to injunctive or similar preliminary relief to prevent or cure breaches of the provisions of this Agreement by the other and to enforce specifically the terms and provisions hereof. 16.4 Additional Events of Default by Grantee. An event of default shall also be deemed to have occurred if Grantee becomes insolvent, or institutes or has instituted against it bankruptcy proceedings which are not dismissed within ninety (90) days of filing, or makes a general assignment for the benefit of creditors, or if a receiver is appointed for the benefit of its creditors, or if a receiver is appointed on account of its insolvency, and IRU Grantor may immediately terminate this Agreement. ARTICLE XVII NOTICES 17.1 Notice Address. Unless otherwise provided herein, all notices and communications concerning this Agreement shall be in writing and addressed as follows: If to IRU Grantor: Jeffery Massey Chief Technology Officer City of Elgin 150 Dexter Court Elgin, IL 60120-5555 If to Grantee: Hasi Smith Vice President for University Information Systems Judson University 1151 North State Street Elgin, IL 60123 17.2 Manner of Giving Notice. Unless otherwise provided herein, notices shall be sent by certified U.S. Mail, return receipt requested, or by commercial overnight delivery service which provides acknowledgement of delivery and shall be deemed delivered: if sent by U.S. Mail, five Page 16 of 32 (5) days after deposit, or if sent by commercial overnight delivery service, upon verification of receipt. ARTICLE XVIII ASSIGNMENT,SUCCESSION 18.1 Grantee Assignment. Except as provided in this Article, Grantee shall not assign this Agreement to any other party without the prior written consent of IRU Grantor,which shall not be unreasonably withheld,provided,however,that without such consent, Grantee shall have the right to assign,sublet or otherwise transfer this Agreement,in whole or in part,to any parent, subsidiary or affiliate of Grantee or to any person,firm or corporation which shall control,be under the control of or be under common control with Grantee,or any corporation or entity into which Grantee or a subsidiary of Grantee may be merged or consolidated or which purchases all or substantially all of the assets of Grantee or a subsidiary of Grantee. 18.2 TRU Grantor Assignment. Except as provided in this Article, IRU Grantor shall not assign this Agreement to any other party without the prior written consent of Grantee, which shall not be unreasonably withheld, provided, however, that without such consent, TRU Grantor shall have the right to assign, sublet or otherwise transfer this Agreement, in whole or in part, to any parent, subsidiary or affiliate of IRU Grantor or to any person, firm or corporation which shall control,be under the control of or be under common control with IRU Grantor,or any corporation or entity into which IRU Grantor, or a subsidiary of IRU Grantor,may be merged or consolidated or which purchases all or substantially all of the assets of IRU Grantor, or a subsidiary of IRU Grantor. 18.3 Binding Effect. Subject to the provisions of this Article, each of the parties' respective rights and obligations hereunder shall be binding upon and shall inure to the benefit of the parties hereto and each of their respective permitted successors and assigns. 18.4 IRU Fibers.Nothing in this Article shall prohibit Grantee from selling services on IRU Fibers lit with Grantee's equipment/optronics in accordance with this Agreement at any time. ARTICLE XIX GOVERNING LAW This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement or any rights arising out of or in connection with this Agreement shall be in the Circuit Court of Kane County, Illinois. ARTICLE XX NOT A PARTNERSHIP This Agreement shall not be construed so as to create a partnership,joint venture or employment relationship between the parties hereto. Page 17 o132 ARTICLE XXI ACKNOWLEDGEMENT REGARDING USE AND ENCUMBRANCES Grantee agrees and acknowledges that it has no right to use any of the Fibers, other than the IRU Fibers, included in the IRU Grantor Cable or otherwise incorporated in the IRU Grantor Network and that Grantee shall keep any and all of the IRU Grantor Network, other than the IRU Fibers, free from any liens, rights or claims of any third parties whatsoever. ARTICLE XXII OPERATIONS 22.1 Responsibility for Operations. Subject to the provisions of this Agreement, each party shall have responsibility for determining any network and service configurations or designs, routing configurations, rearrangement or consolidation of channels or circuits and all related function with regard to the use of that party's Fiber. 22.2 Responsibility for Optronics. Grantee acknowledges and agrees that IRU Grantor is not supplying nor is IRU Grantor obligated to supply to Grantee any optronics or electronics or optical or electrical equipment at any Grantee site, all of which are the sole responsibility of Grantee; nor shall IRU Grantor be required to perform any work other than as specified in this Agreement or for providing other facilities, including, without limitation, generators, batteries, air conditioners, fire protection, and monitoring and testing equipment at any Grantee site, unless specifically otherwise agreed in writing. ARTICLE XXIII RIGHTS 23.1 Relocation. If IRU Grantor is required(i)by any governmental authority under the power of eminent domain or otherwise, (ii)by any other entity having the authority to require a relocation (each a"Relocating Authority"),or(iii)by the occurrence of any force majeure event,to relocate the Cable, Fibers, or associated equipment within a Segment or any portion thereof, IRU Grantor shall have the right to either proceed with such relocation, including,but not limited to, the right, in good faith, to reasonably determine the extent and timing of, and methods to be used for, such relocation, or to pay such amounts to the Relocating Authority as are necessary to avoid the need for such relocation. Grantee shall be kept fully informed of all determinations made by IRU Grantor in connection with such relocation, and any such relocation shall be constructed substantially in accordance with the specifications set forth in Exhibit A, incorporate Fiber meeting or exceeding the specifications set forth in Exhibit A and be subject to Acceptance testing. 23.2 Right to Contest. IRU Grantor shall have the right to contest any legal or equitable challenge relating to the Rights. If Grantee agrees in writing to join IRU Grantor in any such contest the out-of-pocket costs and expenses (including, without limitation, reasonable attorney's fees and expenses)incurred by IRU Grantor in any such contest shall be shared equally by Grantee and IRU Grantor. Page 18 of 32 ARTICLE XXIV MISCELLANEOUS 24.1 Headings. The headings of the Articles in this Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the terms, provisions or conditions of this Agreement. 24.2 Construction. In construction of this Agreement,words used in the singular shall include the plural and the plural the singular, and "or" is used in the inclusive sense, in all cases where such meanings would be appropriate. 24.3 Severability. No provision of this Agreement shall be interpreted to require any unlawful action by either party. If any Article or clause of this Agreement is held to be invalid or unenforceable, then the meaning of that Article or clause shall be construed so as to render it enforceable to the extent feasible. If no feasible interpretation would save the section or clause, it shall be severed from this Agreement with respect to the matter in question, and the remainder of the Agreement shall remain in full force and effect. However, in the event such Article or clause is an essential element of the Agreement,the parties shall promptly negotiate a replacement section or clause that will achieve the intent of such unenforceable section or clause to the extent permitted by law. 24.4 Entire Agreement; Amendment. This Agreement, and any Exhibits referenced and attached hereto or to be attached hereto,constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, understandings and agreements with respect hereto, whether oral, written or implied. This Agreement may be amended only by a written instrument executed by the parties hereto. 24.5 Non-Waiver. No failure to exercise and no delay in exercising,on the part of either party hereto,any right,power or privilege hereunder shall operate as a waiver hereof,except as expressly provided herein. Any waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless and until agreed to in writing by both parties. 24.6 Conflicts. In the event of a conflict or difference between the provisions of this Agreement and those of Exhibit A-1, or of any additional Exhibits attached hereto at a later date pursuant to Article I, the provisions of such Exhibit A-1 or Exhibits shall prevail. If there is a conflict or difference between this Agreement and other Exhibits, this Agreement shall prevail. 24.7 Performance. All actions, activities, consents, approvals and other undertakings of the parties in this Agreement shall be performed in a reasonable and timely manner. 24.8 Well Known Meanings. Unless expressly defined herein, words having well known technical or trade meanings shall be so construed. 24.9 Signatures. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of Page 19 of 32 executing this agreement,any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. JUDSON UNIVERSITY By: FAAIMu.. PA175 4.SoiJ Title: rAT.Eeirn ,SIP 0 F e(?S.1)E5S 4 r4(&4- e-F0 CITY 0'frOf IN By: ,/ /� _I���.; an ' . ega / Title: City Manager A t: City Clerk EXHIBITS (all incorporated by reference in this Agreement): A-1: IRU Fiber Details, Route Maps, and Material Terms. A-2: Network Logical Diagram A-3: Network physical Map A-4: Network Narrative Description A-5: Judson University Connection Point Map B: Splicing, Testing and Acceptance Standards C: Acceptance/Rejection Notice D: Form of Collocation Agreement E: Maintenance and Repair Procedures and Time Frames F: Routine Maintenance and Repair Standards Page 20 of 32 EXHIBIT A-1 Description of Cable Route Segment: Grantee shall purchase an IRU from IRU Grantor for various cable counts within the N1U fiber-optic cable as defined in the description below. Fiber Route. Route Description A Location Z Location Distance(miles) Fibers Miles Comments Adjacent to Airlight Judson Water Plant 5 2 10 Total i 5 Total 10 Fiber Type: Single Mode Fiber Total IRU Fee: $10,000.00 Annual Routine Maintenance Fee: $800.00 Estimated Delivery Charges: $3,500 for 50%of the cost for fiber optic CWDM muxes $ 720 for splicing at the edge of the property at Judson University Splicing Expedite Fee: 30%above Contracted Splicing Cost Term of this Agreement: This Agreement shall terminate December 31, 2036; provided, however, that either party hereto may terminate this Agreement for any reason upon thirty(30)days written notice. In the event of any such termination by either party hereto prior to the termination date provided above,Grantee shall pay to IRU Grantor the total IRU fee and estimated delivery charges described Page 21 of 32 above plus any annual routine maintenance fee and splicing expedite fee on a prorata basis to the extent that such fees have previously been incurred. Due Date: All payments from Grantee to IRU Grantor provided for herein shall be due and payable upon thirty(30) days of invoice from IRU Grantor. Special Conditions: Grantee agrees in cooperation with IRU Grantor that the fiber strands have been tested and certified using the standards in Exhibit B during Grantee buildout. Grantee acknowledges that these fiber strands are acceptable as-is and cannot be tested as a result that the fibers are currently in use for the Grantee network and customers. Page 22 0 f 32 EXHIBIT A-2 Network Logical Judson 5 4 5 Miles Miles Miles • 0 0 0 0 0--1MUX � POP MUX I MUX MUX Network ECC Airlight FS-7 Water This link is indicated by the yellow link in the physical map in Exhibit A-3 and further described in the narrative in Exhibit A-4. Page 23 of32 EXHIBIT A-3 Network Physical Map \ 1.......8 i ..,... . Fire Statton 2 ,, '-'-'....°".-.'''''""...".... .. „'"°-"■•••....„...................4G TIMBER RD '"°", '''..-'-''"'`'"'"•••••....Awm, ct Water Me : elWing Park Pool Fire Stilton 3 2 .,....„..4 ila ...10 Wing Park M.-.in ten ce 0 Mce 1 '''2■ Wing Pa k Golf 0:Asse •r i , ilf il Kimball Ilitilk\c„. , --... i i L 1 itHel '. -4.1 KIMBALL ST z 1 4.....or'''''--I /?1(AND. , , ,•2 2 Hemmercy, WH,,_ iiy.H:t r...„,90u N.,...... i io ,.,,„,„A ve F HIGHLAITO it.70 Ir . '4.-----....7 r -••■•-+—Zi '..., Hawthorne Hill Nature Cent.,:ildite Water PuniP AVt LAi"'IN I .. Fire Station 6 'kin H.S. I N.1 1 sr :......1) Z In rs 01\-.■ e fl .... , %....' s....H.--7 EC C rifitakets Complex \ I Fire Station 4 Highlands Gokf —4, RF t . ,,,,,,,,...,4■1iM Z .k Fire SI?Iton 7 I n +-.J A BOWES RD 0 Page 24 of 32 EXHIBIT A-4 Link Description One pair of fiber optic cable(2 strands, colors yet to be determined)between the Riverside Water Treatment Plant and the Airlite Water Treatment Plant will be provided to Judson University for their exclusive use. The entry point for Judson will be the COE Fiber hand- hole near the left field fence at the Judson University baseball field. Judson can being in two pair (4 strands) of fiber to splice to the existing COE fiber. One pair (2 strands) going north to the Riverside Water Treatment Plant, one pair (2 strands) going south to the Airlite Water Treatment Plant. At the Airlite Water Treatment Plant a fiber optic MUX is in place between Airlite Water Treatment Plant and Fire Station 7. Judson will be provided one lambda between Airlite Water Treatment Plant and Fire Station 7. At Fire Station 7 a fiber optic MUX is in place between Fire Station 7 and Elgin Community College. Judson will be provided one lambda between FS 7 and ECC. Page 25 of32 EXHIBIT A-5 Judson Connection Point I /A \ ' 4 At 0). W 114116■ * ' liQottvoe xt, I -I '4".0 '•-•:, ..... ir 4p. ---..... / 40 11•• ...- al .1 --") r ■ — a• I I 1 i .- 1..,,, mu 1 •- - Page 26 of 32 EXHIBIT B SPLICING,TESTING AND ACCEPTANCE PROCEDURES/STANDARDS 1. IRU Grantor in cooperation with Grantee shall,within forty five(45)days of execution hereof, complete any necessary splicing and deliver to Grantee OTDR uni-directional testing of the Dark Fiber over which the Services shall be provided from IRU Grantor Access Point to IRU Grantor Access Point. The Access Point to Access Point OTDR tests shall conform to the standards set forth below, subject to the Acceptance procedure contained in Article III of the Agreement. 2. At such time thereafter, and only after Acceptance and payment of the IRU and Delivery Charges by Grantee,Grantee may request that IRU Grantor splice Grantee-owned lateral Fiber into the IRU Grantor Cable at an Access Point. 3. All splices will be performed with an industry-accepted fusion splicing machine. 4. Splicing of Grantee-owned lateral Fibers will be qualified at the Access Points by the core alignment system on the fusion splicer at such time as IRU Grantor splices Grantee-owned lateral Fibers into the IRU Grantor Cable at an Access Point pursuant to Grantee's request. 5. After splicing and end to end(site to site)connectivity is achieved on the IRU Fibers,including Grantee-owned Fibers spliced into the IRU Grantor Cable at an Access Point, bi-directionaI span testing will be performed by Grantee for the entire span or by IRU Grantor if so requested by Grantee. These measurements will be made after all cable installation activities are complete for each span. Once the bi-directional testing is achieved,if Grantee believes that the criteria set forth herein are not met as a result of the splicing performed by IRU Grantor at an Access Point,Grantee shall provide the OTDR tests for the entire span to IRU Grantor in order to allow IRU Grantor to verify and if necessary, perform re-splicing in order to correct the problem. In no event shall IRU Grantor be responsible for the performance of Grantee-owned lateral Fibers or any splicing performed by Grantee at its own sites or any splice point beyond the IRU Grantor Access Point. 6. OTDR standards shall be as follows: • Installed loss measurements at 1550nm or 1310nm (depending upon Grantee) will be recorded using an industry accepted laser source. Continuity testing (checking for `'frogging")will be done on all Fibers concurrently. • OTDR traces will be taken at 1550nm or 1310nm (depending upon Grantee) and splice loss measurements will be analyzed. GN Nettest Laser Precision format will be used on all traces,unless another OTDR format is agreed to by both parties. • All testing and OTDR traces, will be conducted at 1550nm or 1310nm (depending upon Grantee)only. • OTDR traces shall be saved in a standard file naming convention. • One set of diskettes with OTDR traces will be provided. Page 27 of 32 7. Splicing standards shall be as follows: • The objective loss value of the connector and its associated splice will be 0.50 dB or less. • The objective for each Fiber within a span shall be an average bi-directional loss of 0.15 dB or less for each splice. For example, if a given span has 10 splices, each Fiber shall have a total bi-directional loss (due to the 10 splices) of 1.5 dB or less. Individual bi- directional loss values for each splice will be reviewed for high losses. • The aforementioned standards are objectives,not the basis for acceptance. The acceptance standard for each Fiber per span shall be calculated as follows: Span Loss= a(span distance in kilometers)+b(0.15 dB/splice) +c(0.50 db/connector) Where: a=maximum fiber loss in dB per kilometer for the specific Fiber type/manufacturer at 1550nm or 1310nm (depending upon Grantee) b=number of splice locations for the span c=number of connectors for the span • All connector splices will be protected with heat shrinks. Backbone splices may be stored in trays with bare Fiber manifolds and RTV silicone protection. Buffer tubes/ribbons will not be split across more than one splice tray. An industry accepted splice enclosure will be used on all splices. Page 28 of 32 EXHIBIT C ACCEPTANCE/REJECTION NOTICE Check one box: ❑ IRU Fiber Accepted (fill in acceptance statement below) Pursuant to Article III of the IRU Agreement between Judson University('Grantee') and the City of Elgin dated 23 June 2016, Grantee hereby Accepts its IRU Fibers as defined in Exhibits A-1 through Exhibits A-S for the Segment described as Fiber Optic Link for Judson University. ❑ IRU Fiber Rejected (fill in reason statement below) Reason for Rejection: Name: Signature: Title: Company: Date: Page 29 of 32 EXHIBIT D Form of Collocation Agreement-To be provided if requested by Grantee Page 30 of 32 EXHIBIT E IRU GRANTOR MAINTENANCE AND CALL OUT LIST Upon the IRU Grantor Network Management Center(1-815-753-8100)receiving a trouble report from Grantee, IRU Grantor shall use its best efforts to dispatch qualified personnel to the location of the outage within four(4)hours. At the same time,the IRU Grantor Operations Manager and/or Outside Plant Network Manager will be notified to assist in isolating the problem. If Grantee requests further escalations, it will contact the Network Management Center who will escalate as follows: • OPS/OSP Manager • OPS/OSP Director • OPS/OSP Vice President PSWP:nimc @niu.edu NOC: nimc®niu.edu Page 31 of 32 EXHIBIT F ROUTINE MAINTENANCE STANDARDS Maintenance of the Fiber plant should be completed on a regular recurring basis and documented. Properly installed Fiber plant normally needs minimal routine maintenance. Most hazards to fiber plant are external in nature, such as dig ups, pole hits, gunshots, animals, etc. Most destructive events are detected immediately and corrected with plant restoration. A well-implemented maintenance plan will permit correction of marginal plant conditions that might otherwise become restoration events. The IRU Grantor Network Management Center should be notified in advance of any scheduled OSP maintenance activity reported or planned. 1.1 CABLE ROUTE SURVEILLANCE Outside Plant facilities (OSP) are periodically inspected by field personnel. During this periodic inspection the Cable route is driven/walked to inspect for discrepancies that may affect Cable integrity. Any discrepancies found are documented and forwarded into the Outside Plant Maintenance desk for correction and repair as necessary. The following are some of the OSP items that will be inspected: Cable route integrity(e.g.: erosion) Condition of poles,pedestals,risers, lashing wire, route markers and signs Clearance of aerial facilities Construction activity in the area near the Cable 1.2 PLANT LOCATION REQUESTS All facilities associated with this Agreement are located in states with statewide"one call"agencies for excavators to request and notify utilities of digging in the vicinity of the IRU Grantor facilities. IRU Grantor will subscribe to these services and follow the guidelines and laws applicable to that state including the marking of their facilities within forty eight (48) hours of receipt of request. IRU Grantor will also take action to ensure that the excavator is aware and protect the facility during the excavation as required. 1.3 PLANT RELOCATION REQUESTS Plant relocation requests will be submitted to the manager of OSP Network to be reviewed for applicable resolution. Requests should be responded to within ten (10) business days and scheduled as required taking into consideration the scope of work and the urgency of the activity. Page 32 01'32