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AGREEMENT FOR FIBER OPTIC CABLE DESIGN AND ENGINEERING SERVICES BETWEEN BIG BEAR TELCOM INCORPORATED AND CITY OF MOSCOW, IDAHO This greement for iber optic cable design and engineering services, made and entered into this ;2D day of 1'-l , 2005, by and between the Big Bear Telcom Incorporated (hereinafter referred to as "BBTf'), and City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter referred to as "CITY"). W I T N E S S E T H : WHEREAS, GRITMAN MEDICAL CENTER, INC., MOSCOW SCHOOL DISTRICT NO. 281 and CITY (hereinafter referred to collectively as "CONSORTIUM") believes that it is important for each CONSORTIUM member to be able to secure efficient, effective and reliable communications infrastructure via fiber optic network to serve the respective constituencies; WHEREAS, CONSORTIUM wishes to secure the services of BBTI to assist in the fiber optic cable design and engineering of a Metropolitan Area Fiber Optic Network to provide for the interconnection of the CONSORTIUM members' respective facilities located within the City of Moscow; and WHEREAS, CONSORTIUM wishes to have CITY contract with BBTI for said fiber optic engineering and design services as the most expedient and efficient method of engaging BBTI's services; and WHEREAS, GRITMAN MEDICAL CENTER, INC. and MOSCOW SCHOOL DISTRICT NO. 281 have agreed to reimburse CITY for their respective proportionate cost for said BBTI services. NOW, THEREFORE, be it agreed that for and in consideration of the mutual covenants and promises between the parties hereto, that: SECTION 1: SCOPE OF WORK A. Fiber Optic Cable Design and Engineering Services I. The services provided by BBTI to CITY shall include all field surveys and measurements, utility pole inventories, fiber optic cable engineering and design services, required construction material estimation, AutoCAD construction plan creation, and all necessary design revisions to gain Joint Use Approval from A vista Utilities Joint Use Division to allow the installation of the fiber optic cables as detailed upon the Route Map referenced as Exhibit A attached to this Agreement and made a part thereof up to and including the defined building attachment point at each facility (hereinafter "Project"). BBTI not shall be responsible for interior building routing design. Agreeme nt For Fiber Optic Cabling De sign Services- BBTI and City Page l of5 2005-19 ---PAGE BREAK--- 2. BBTI shall provide CITY three complete original printed copies of the final construction drawings as approved by A vista Utilities Joint Use Division, and a single electronic AutoCAD copy of all such design drawings delivered upon a computer compact disc to CITY. SECTION II: A. Independent Contractor The contracting parties warranty by their signature that no employer/employee relationship is established between BBTI and CITY by the terms of this Agreement. It is understood by the parties hereto that BBTI is an independent contractor and as such, neither it nor its employees, if any, are employees of CITY for purposes of tax, retirement system, or social security (FICA) withholding. B. Fees and Conditions 1 . The cost for fiber optic design and engineering services for Project as described in Section I, Scope of Work shall be based upon a per fiber cable foot basis of thirty six cents ($0.36) per linear foot of cable designed and engineered. The linear design footage total calculation shall include aerial spans, underground segments and all repair and maintenance slack loops. It is estimated that the total linear length of the design routes, excluding repair and maintenance slack loops or other, is approximately twenty five thousand six hundred feet (25,600'). 2. In addition to the per foot compensation described above, CITY shall reimburse BBTI for certain limited expenses related to BBTI services provided to CITY such as travel, lodging, printing, duplication, telecommunications, and similar expenses incurred during the conduct of the services for Project described within Section I, Scope of Work. Such reimbursable amount shall not exceed a total sum of Five Hundred ($500.00) dollars for Project. 3. Should CITY desire additional services from BBTI not included within Section I, Scope of Work of this Agreement, such additional work shall be conducted upon an hourly basis at the rate of Fifty ($50.00) Dollars per hour. Any such additional work shall only be preformed upon receipt of a written request from CITY to BBTI detailing such desired additional services. 4. Bills submitted to CITY by BBTI shall list the person performing the service, a description of work performed, and a detailed description of requested reimbursable expenses, if any. Bills shall be submitted on a basis to CITY's authorized representative for approval and payment. 5. Payment shall be due upon receipt of BBTI's statement(s). SECTION III: Agreement For Fiber Optic Cabling Design Services- BBTI and City Page 2 of 5 ---PAGE BREAK--- A. Termination of Agreement This Agreement may be terminated by BBTI upon thirty (30) days prior written notice, should CITY fail to substantially perform in accordance with its terms, through no fault of BBTI. CITY may terminate this Agreement with thirty (30) days prior notice without cause and without further liability to BBTI, except as designated in this Section. In the event of termination, BBTI shall be paid for services performed to termination date, including direct expense and including a percentage of the fixed fee calculated by the work completed. B. Extent of Agreement This Agreement may be amended only by written instrument signed by both parties hereto. C. Data of Record CITY shall make available to BBTI all GIS and other electronic data (hereinafter referred to as "City Data") of record in CITY's possession or control necessary to support the work of this Project. City Data may be used only by BBTI for its internal use in the conduct of the services requested by CITY for Project. Upon the termination and/or completion of Project and/or this Agreement, the right of usc of the City Data by BBTI shall cease and City Data shall be immediately returned to CITY. All electronic data created by BBTI at the request or direction of CITY and for the purpose of Project (hereinafter referred to as "Project Data") shall be the sole property of the CITY and shall be delivered immediately to CITY upon request in a suitable and editable AutoCAD industry standard format. BBTI shall not retain the right to sell, use, or otherwise distribute City Data or Project Data to any other party or entity. D. Termination of Project If any portion of Project covered by this Agreement shall be suspended, abated, abandoned or terminated, CITY shall pay BBTI for the services rendered to the date of such suspended, abated, abandoned or terminated work. Such payment is to be based, insofar as possible, on the amounts established in this Agreement or, where the Agreement cannot be applied, payment shall be based upon a reasonable estimate as mutually agreed upon between the two parties regarding the percentage of the work completed. E. Indemnification BBTI agrees, to the fullest extent permitted by law, to indemnify and hold harmless CITY against damages, liabilities and costs arising from the negligent or intentional acts of BBTI in the performance of professional services under this Agreement, to the extent that BBTI Agreement For Fiber Optic Cabling Design Services- BBTI and City Page 3 of 5 ---PAGE BREAK--- is responsible for such damages, liabilities and costs on a comparative basis of fault and responsibility between BBTI and CITY. BBTI shall not be obligated to indemnify CITY for CITY's sole negligence. F. Costs and Attorney Fees In the event either party incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. G. Jurisdiction and Venue It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. H. Binding of Successors CITY and BBTI each bind themselves, their partners, successors, assigns and legal representatives to the other parties to this Agreement and to the partner, successors, assigns and legal representatives of such other parties with respect to all covenant. of this Agreement. I. Modification and Assignability of Agreement This Agreement contains the entire agreement between the parties concerning Project, and no statements, promises, or inducements made by either party, or agents of either party, are valid or binding unless contained herein. This Agreement may not be enlarged, modified, or altered except upon written agreement signed by the parties hereto. BBTI may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder without the prior written consent and express authorization of CITY. Any such subcontractor or assignee shall be bound by all of the terms and conditions of this Agreement as if named specifically herein. J. CITY'S Representatives CITY designates Bill Belknap or designee as the authorized representative to act in behalf of CITY. Such CITY authorized representative shall examine the documents of the work as necessary, and shall render decisions related thereto in a timely manner in order to avoid unreasonable delays. K. Conflict of Interest BBTI expressly covenants that it presently has no interest and will not acquire any interest, direct or indirect, in Project which would conflict in any manner or degree with the Agreement For Fiber Optic Cabling Design Services- BBTI and City Page 4 of5 ---PAGE BREAK--- performance of services hereunder. B BTl further covenants that, m performing this Agreement, it will employ no person who has any such interest, L. Non-discrimination. BBTI shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sex, sexual orientation, sexual practices, age, marital status, physical or mental handicap, or national origin. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. CONSULTANT Big Bear Telcom, Incorporated By: ; / Denny Meyers STATE OF I DA:1+D COUNTY OF 1.-Al]i tt CITY City of Moscow, Idaho { ATTEST: r ACKNOWLEDGMENT ) ) ss. ) On this 1--o'-tiA day of AP f-1 , 2005, before me, a Notary Public in and for said State, appeared Denny Meyers, known to me to be the person named above and acknowledged that he executed the. foregoing document a the duly authorized representative for Big Bear Telecom, Inc;· • · . L . . j / Not u lief or the State of 0 \ Residing at (VL.c 6 ( I. r My commission expires .;,;-j/lvQ WDS Agreement For Fiber Optic Cabling Design Services- BBTI and City Page 5 of 5