Document Moscow_doc_b19728e817

FIBER OPTICS CABLE SALE AND IRU AGREEMENT BETWEEN A VISTA AND CITY OF MOSCOW, IDAHO THIS FIBER OPTICS CABLE SALE AND IRU AGREEMENT (the "Agreement") is made and entered into as of the .d/.rr day of /V£7" , 2005 (the "Effective Date") by and between A VISTA Capital, Inc., a Washington corporation with its principal offices at 1411 East Mission, Spokane, W A 99220 (hereinafter "A VISTA"), and City of Moscow, Idaho, a municipal corporation of the State of Idaho, with its principal offices at 206 East 3'd Street, Moscow, Idaho, 83843 (hereinafter "CITY", and collectively hereinafter the "PARTIES"). RECITALS CITY is acquiring all of A VISTA's right, title, and interest in and to forty-eight ( 48) strands of SMF28 single-mode dark fiber optic cable (the "Dark Fiber") located in Moscow, Idaho (the "Route"), and all aerial and underground hardware appurtenant thereto, along with all rights-of­ way, easements, licenses, and/or rights of use in and to the real property along and/or underlying the Route (collectively the "Dark Fiber System"). WHEREAS, A VISTA desires to transfer to CITY all of A VISTA's right, title, and interest in and to said Dark Fiber and Dark Fiber System and to assign, transfer, convey, sublease and otherwise grant the right of use to the Dark Fiber System, reserving only to A VISTA the indefeasible right to the use of Six strands of said Dark Fiber in accordance with this Agreement. WHEREAS, as a condition of CITY's acquisition described above, A VISTA is granted an Indefeasible Right of Use ("IRU") to use Six strands of said Dark Fiber in the Route upon the terms and conditions set forth in this Agreement. WHEREAS, each defined term shall have the meaning set forth in this Agreement where such term is first used, or, if no meaning is so set forth, the commonly known industry meaning. NOW THEREFORE, in consideration of the foregoing, the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the PARTIES hereby agree as follows: I. Property and Interest Transferred AGREEMENT A VISTA hereby agrees to transfer, convey and assign to CITY and CITY hereby agrees to acquire and accept, in "as-is" condition and as of the Effective Date of this Agreement, the Dark Fiber and Dark Fiber System, all as defined hereinabove, subject to the conditions contained herein. FJBUZ SALE Vi.l2 Page 1 of 15 2005-47 ---PAGE BREAK--- 2. Dark Fiber System Condition, Access, Maintenance, and Use As described within Sections 1 and 23.3 of this Agreement, CITY accepts AVIST A's interest in the Dark Fiber System "as-is" with no warranty expressed or implied by A VISTA regarding the fitness or operability of the Dark Fiber System. Both PARTIES understand that the Dark Fiber System is currently in a non-operable (unspliced) condition. The PARTIES hereby agree that each Party shall be responsible for the cost necessary to bring their respective fiber strands into operable condition; however, it is also agreed that should CITY seek to make such repairs and splices prior to A VISTA doing the same, CITY may make such repairs upon A VISTA Fibers at no cost to A VISTA. At any time should the CITY decide to divest itself of the Dark Fiber System, CITY shall offer to A VISTA the right of first refusal to reacquire the full rights and ownership of the Dark Fiber System at no cost to A VISTA. CITY shall be responsible for and shall perform all maintenance services required to maintain the Dark Fiber and Dark Fiber System in good working order, including routine maintenance, scheduled maintenance and repair, and unscheduled maintenance and repair. Routine maintenance is maintenance performed once yearly to check for deterioration or damage caused by weather, the environment, or by animals. An example of scheduled maintenance and repair would be moving a line pole as part of a planned modification to the system within the Route. An example of an item of unscheduled maintenance and repair would be an accidental line break as a result of backhoe operations. All connections made to the Dark Fiber and to A VISTA's Dark Fiber reserved pursuant to the !RU shall be coordinated between the PARTIES to minimize interference with each party's operations as much as reasonably practical. 3. Grant ofiRU As of the Effective Date of this Agreement, CITY hereby grants to A VISTA, and A VISTA hereby accepts from CITY an Indefeasible Right of Use in, for the purposes described and in accordance with the terms and conditions contained herein, Six strands of Dark Fiber (the "A VISTA Fibers"), to be specifically identified in the Route. 4. Consideration For Grant The grant of this IRU by CITY to A VISTA during the Term of this Agreement is part of the consideration for A VISTA's transfer to CITY of the Dark Fiber System. The PARTIES agree that no further consideration shall be required from A VISTA during the Term with respect to the IRU hereunder. 5. Future Construction of the Dark Fiber Svstem During any future construction, installation, splicing, and testing of the Dark Fiber System, A VISTA shall have the right, upon written request, to inspect the construction, installation, splicing and testing in the Dark Fiber System during the course and at the time of the relevant design, construction and installation period as may be reasonably permitted by CITY. Upon A VISTA's written request, CITY shall make available for inspection by A VISTA, at CITY's offices, copies of all information, documents, agreements, reports, permits, drawings and FIBER SALE vl.l2 Page 2 of 15 ---PAGE BREAK--- specifications generated, obtained or acquired by CITY in performing its duties pursuant to this Agreement, that in CITY's determination are material to the grant of the IRUs to A VISTA, including, without limitation, the Dark Fiber System to the extent that the terms of each such document or the legal restrictions applicable to such information or document permits disclosure and further as may be redacted to protect disclosure of confidential business and proprietary terms. 6. Documentation A VISTA shall have the right to retain as-built drawings and technical specifications of the A VISTA Fibers, and associated splices. In the event of any and all changes affecting the A VISTA Fibers during the Term of this Agreement which may result from maintenance or new construction activities, CITY shall provide A VISTA with updated as-built drawings and technical specifications of the fiber optic cable (and associated splices), not later than ninety (90) days after the completion of said changes. 7. Term 7.1 The grant of the IRU hereunder shall become effective on the Effective Date of this Agreement and such grant shall terminate twenty-five (25) years following the Effective Date. The period of each such grant respecting the A VISTA Fibers and IRU is herein defined as the "Te1m". The Term may be extended by mutual agreement as set forth in this Agreement. 7.2 At the end of the Term, or in the event that A VISTA desires to not retain the IRU, A VISTA shall have the right to abandon the IRU with respect to the A VISTA Fibers by written notice to CITY. 7.3 It is understood and agreed that CITY must and does maintain legal title to the entire Dark Fiber System subject to the IRU hereunder. Notwithstanding the foregoing, it is understood and agreed as between the PARTIES that the grant of the IRU hereunder shall be treated for accounting and federal and all applicable state and local tax purposes as the sale and purchase of the A VISTA Fibers subject thereto, and that A VISTA shall be treated as the owner of the A VISTA Fibers for such purposes. The PARTIES agree to file their respective income tax returns, property tax returns, and other returns and reports for their respective impositions on such basis and, except as otherwise required by law, not to take any positions inconsistent therewith. 7.4 This Agreement shall terminate on the date when the Term shall have expired; provided that, those provisions of this Agreement which expressly state that they survive such termination, shall survive. FmERSALE vl.l2 Page 3 of 15 ---PAGE BREAK--- 8. Network Access CITY shall provide A VISTA with access to, and A VISTA shall have the right to connect, at A VISTA's sole cost and expense, its telecommunications system with the A VISTA Fibers at locations which shall be mutually reasonably agreed upon by the Parties, subject to CITY obtaining any required permits, authorizations and approvals. Any such connection may only be performed by a contractor as mutually agreed upon between CITY and A VISTA, at A VISTA's sole cost and expense. 9. Operations Upon not less than sixty (60) days' written notice from CITY to A VISTA, CITY may, subject to A VISTA's prior written approval (which approval shall not be unreasonably delayed or withheld) substitute for the A VISTA Fibers on the Route, or any segment or segments comprising a portion of said Route, an equal number of alternative, equivalent fibers along the same or an alternative route; provided that in any such event, such substitution shall be without tmreasonable interruption of service and use by A VISTA, shall be effected at the sole cost of CITY, including, without limitation, all disconnect and reconnect costs, fees and expenses, shall be constructed and tested in accordance with industry standards, and shall not adversely affect the use, operation or performance of A VISTA's network or business, or change any connecting points or endpoints of such segment. 10. Equipment CITY acknowledges and agrees that A VISTA is not supplying nor is A VISTA obligated to supply to CITY any optronics or electronics or optical or electrical equipment, all of which are the sole responsibility of CITY; nor is A VISTA responsible for performing any work other than as specified in this Agreement or for providing other facilities or materials, including without limitation, generators, batteries, air conditioners, fire protection and monitoring and testing equipment, unless specified herein. I I. Maintenance and Repair of the Fiber System Following execution of this Agreement, all maintenance of the Dark Fiber System along the Route shall be provided in accordance with the maintenance agreements and procedures set forth in this Agreement or as otherwise agreed to by the PARTIES. 12. Permits; Underlying Rights; Relocations 12.1 CITY shall have any and all rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in and/or access to the real property underlying the Route (collectively, the "Underlying Rights") and such other rights, licenses, permits, authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal authorizations and environmental permits) that are necessary in order to permit CITY to grant the IRU, and otherwise to perform its obligations hereunder. All such easements, licenses and agreements are attached hereto and incorporated herein as Exhibit FIBERSALEVI.l2 Page 4 of 15 ---PAGE BREAK--- 12.2 Upon the expiration or termination of any Underlying Right that is necessary in order to grant, continue or maintain an IRU granted hereunder in accordance with the terms and conditions hereof, and so long as CITY shall have fully observed and performed its obligations under this Section with respect thereto, the Term of the IRU hereunder shall automatically expire upon such expiration or termination of the Underlying Right. 12.3 If CITY reasonably determines, or is required by a third party with legal authority to so require (including, without limitation, the grantor of an Underlying Right), or if A VISTA agrees to relocate any portion of the Segment, including any of the facilities used or required in providing the IRU in such Segment hereunder, CITY shall proceed with such relocation, and shall have the right, in good faith, to reasonably determine the extent of, the timing of, and methods to be used for such relocation; provided that if the relocation is at CITY's determination, it shall not adversely affect the operations, performance, connection points with A VISTA's network or endpoints in the Route except for a reasonable amount of relocation downtime. CITY shall deliver to A VISTA updated as-built drawings with respect to the relocated segment not later than ninety (90) days following the completion of such relocation. 13. Use of the Dark Fiber System 13. 1 The requirements, restrictions, and/or limitations upon A VISTA's right to use the A VISTA Fibers as provided and permitted under this Agreement imposed under, and associated safety, operational and other rules and regulations imposed in connection with, the Underlying Rights are referred to collectively as the "Underlying Rights Requirements." 13.2 A VISTA represents, warrants and covenants that it will use the A VISTA Fibers in compliance with and subject to the Underlying Rights Requirements and all applicable government codes, ordinances, Jaws, rules and regulations. 13.3 CITY agrees and acknowledges that it has no right to use the A VISTA Fibers during the Term hereof, and that, from and after the effective date of the grant of the IRU hereunder, CITY shall keep the A VISTA Fibers free from any liens of any third party attributable to CITY, and any rights or claims of any third party attributable to CITY. As provided in the previous sentence, CITY shall obtain from any entity in favor of which CITY, in its discretion, shall have granted after the date hereof a security interest or lien on all or part of the Route a written non-disturbance agreement substantially to the effect that such lien holder acknowledges A VISTA's rights and interests in and to the A VISTA Fibers and the IRU hereunder and agrees that the same shall not be diminished, disturbed, impaired or interfered with in any adverse respect by such lien holder. 13.4 Subject to other provisions of this Agreement, A VISTA may use the A VISTA Fibers and the IRU for any of A VISTA's own lawful non-commercial telecommunications purpose(s), the PARTIES specifically agree that A VISTA shall be and is hereby prohibited from the offering or delivering of telecommunications services or other data, video or other services to the public or third party, or some portion thereof, for compensation of any nature or amount. A VISTA FIBERSALEV1.12 Page 5 of 15 ---PAGE BREAK--- agrees and acknowledges that it has no right to use any of the Dark Fiber or Dark Fiber System, other than the A VISTA Fibers, included in the cable or otherwise incorporated in the Dark Fiber System, and that A VISTA shall keep any and all of the Dark Fiber or Dark Fiber System, other than the IRU granted to A VISTA in the A VISTA Fibers, free from any liens, rights or claims of any third party attributable to A VISTA, 13.5 A VISTA and CITY shall notify each other of any matters pertaining to, or the occurrence (or impending occurrence) of, any event which would be reasonably likely to give rise to any damage or impending damage to or loss of the Dark Fiber System that are known to such Party. !3.6 A VISTA shall not use the A VISTA Fibers in a way which physically interferes in any way with or adversely affects the use of the fibers or cable of any other person using the Dark Fiber or Dark Fiber System, it being expressly acknowledged that the Dark Fiber and Dark Fiber System includes, may, or will include other participants, including CITY and other owners and holders of Dark Fiber IRUs or other interests and telecommunication system operations. CITY shall not use any other fibers in the Dark Fiber System in a way which physically interferes with or adversely affects the use of the A VISTA Fibers, and shall obtain a similar agreement from any person that acquires the right to use fibers in the Dark Fiber System after the date hereof. !3.7 A VISTA and CITY each agree to cooperate with and support the other in complying with any requirements applicable to their respective rights and obligations hereunder by any governmental or regulatory agency or authority. 14. Indemnification 14.1 Subject to other provisions of this Agreement, A VISTA hereby agrees to indemnify, defend, protect and hold harmless CITY and its employees, officers and directors, from and against, and assumes liability for: Any injury, loss or damage to any person (including CITY), tangible property or facilities of any person or entity (including reasonable attorneys' fees and costs) to the extent arising out of or resulting from the acts or omissions, negligent or otherwise, of A VISTA, its officers, employees, servants, affiliates, agents, contractors, or licensees arising out of the use of the property and interest transferred hereunder prior to the Effective Date or in connection with a default (other than a default caused by a failure of CITY to perform or comply with its obligations hereunder) by A VISTA in the performance of its obligations or breach of its representations under this Agreement; and Any claims, liabilities or damages, including reasonable attorneys' fees and costs, arising out of any violation by A VISTA of any regulation, rule, statute or court order of any local, state or federal governmental agency, court or body in connection with the performance of its obligations under this Agreement. FIBER SALE Vi.l2 Page 6 of 15 ---PAGE BREAK--- 14.2 Subject to other provisions of this Agreement, CITY hereby agrees to indemnify, defend, protect and hold harmless A VISTA, and its employees, officers and directors, from and against, and assumes liability for: Any injury, loss or damage to any person (including AVISTA), tangible property or facilities of any person or entity (including reasonable attorneys' fees and costs) to the extent arising out of or resulting from the acts or omissions, negligent or otherwise, of The Port, its officers, employees, servants, affiliates, agents, contractors, licensees, invitees or vendees arising out of the use of the property and interest transferred hereunder from and after the Effective Date or in connection with a default (other than a default caused by a failure of A VISTA to perform or comply with its obligations hereunder) by CITY in the performance of its obligations or breach of its representations under this Agreement; and Any claims, liabilities or damages, including reasonable attorneys' fees and costs, arising out of any violation by CITY of any regulation, rule, statute or court order of any local, state or federal governmental agency, court or body in connection with the performance of its obligations under this Agreement. 14.3 Procedure. If either Party receives notice of a claim or demand against which it is entitled to indemnification pursuant to this Agreement, such Party shall give written notice thereof to the other Party. The Party obligated to indemnify shall take such measures as may be reasonably required to properly and effectively defend such claim, and may defend the same with counsel of its own choosing approved by the other Party (which approval shall not be unreasonably withheld, delayed, or conditioned). 14.4 The PARTIES hereby expressly recognize and agree that each Party's said obligation to indemnify, defend, protect and save the other harmless is not a material obligation to the continuing performance of the PARTIES' 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 to seek a remedy in a court of competent jurisdiction against the other party for its damages as a result of the other party's failure to indemnify, defend, protect and save harmless. The obligations of the PARTIES under this Section of this Agreement shall survive the expiration or termination of this Agreement. 15. Limitation of Liability Notwithstanding any provision of this Agreement to the contrary, neither Party shall be liable to the other Party for any special, incidental, indirect, punitive or consequential damages, whether foreseeable or not, arising out of, or in connection with such Party's failure to perform its respective obligations or breach of its respective representations hereunder, including, but not limited to, damage or loss of property or equipment, loss of profits or revenue, cost of capital, cost of replacement services (whether arising out of transmission interruptions or problems, any interruption or degradation of service or otherwise), or claims of customers, in each case whether occasioned by any construction, reconstruction, relocation, repair or maintenance performed by, or failed to be pertormed by, the other Party or any other cause whatsoever, including breach of FJBER SALE Vl.l2 Page i of 15 ---PAGE BREAK--- contract, breach of warranty, negligence, or strict liability, all claims with respect to which such special, incidental, indirect, punitive or consequential damages are hereby specifically waived. 16. Insurance 16.1 Following the Effective Date with respect to the Route, and thereafter with respect to the Route, each Party shall procure and maintain in force, at its' own expense, not less than five hundred thousand dollars ($500,000) for bodily or personal injury, death, or property damage or loss as the result of any one occurrence or accident, regardless of the number of persons injured- the number of claimants. 17. Notices 17.1 Unless otherwise provided herein, all notices and communications concerning this Agreement shall be addressed to the other party in writing as follows: If to AVISTA: If to CITY: A VISTA Capital, Inc. 1411 East Mission, P. 0. Box 3727 Spokane, W A 99220-3727 Attn: Telephone No. Fax No. _ City of Moscow 206 East 3rd Street Moscow, ID 83843 Attn: City Supervisor Telephone No. (208) 883-7000 Fax No. (208) 883-7018 17.2 Unless otherwise provided herein, notices shall be hand delivered, sent by registered or certified U.S. mail, postage prepaid, or by commercial overnight delivery service, and shall be deemed served or delivered to the addressee or its office when received at the address for notice specified above when hand delivered, on the day after being sent when sent by overnight delivery service, or three days after deposit in the mail when sent by U.S. mail. 18. Default With respect to all of its other obligations hereunder, if either Party fails to perform an obligation and such failure shall continue for a period of thirty (30) days after the other Party shall have given the Party failing to perform written notice of such failure, such Party failing to perform shall be in default hereunder unless such Party shall have cured such failure or such failure is otherwise waived in writing by the other Party within such thirty (30) days; provided, however, that where such failure cannot reasonably be cured within such 30-day period, if the Party failing to perform shall proceed 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 FIBER SALE VLl2 Page 8 of 15 ---PAGE BREAK--- be necessary to complete such cure; and provided further that if the Party failing to perform certifies in good faith to the other Party in writing that the failure has been cured, such failure shall be deemed to be cured unless the other Party otherwise notifies the Party failing to perform in writing within fifteen ( 15) days of receipt of such notice from the Party failing to perform. Upon any default, the non defaulting party may take such action as it determines, in its sole discretion, to be necessary to correct the default, and recover from defaulting party its reasonable costs in correcting such default, and pursue any legal remedies it may have under applicable law or principles of equity relating to such default, inc! uding specific performance. 19. Force Majuere Neither Party shall be in default under this Agreement if and to the extent that any failure or delay in such party's performance of one or more of its obligations hereunder is caused by any of the following conditions, and such Party's performance of such obligation or obligations shall be excused and extended for and during the period of any such delay: act of God; fire; flood; fiber optic cable failures, or other material failures, shortages or unavailability or other delay in delivery not resulting from the responsible Party's failure to timely place orders; lack of or delay in transportation; government codes, ordinances, laws, rules, regulations or restrictions; war or civil disorder; strikes or other labor disputes; failure of a third party to grant or recognize an Underlying Right (provided that the responsible Party has made timely and reasonable commercial efforts to obtain the same), or any other cause beyond the reasonable control of such Party. The Party claiming relief under this Section shall notify the other in VvTiting of the existence of the event relied on and the cessation or termination of said event, and the party claiming relief shall exercise reasonable commercial efforts to minimize the time of any such delay. 20. Assignment Neither party may assign or sublease this Agreement or any interest or rights hereunder, in accordance with the terms and conditions contained herein, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, provided that A VISTA may assign this Agreement without consent to a parent, affiliate, or subsidiary, or to a successor in interest which acquires assets of A VISTA. The PARTIES herein agree that it is understood that CITY may grant additional IRUs to other parties or entities for use of fibers other than the A VISTA fibers and that CITY shall have the sole right and authority to grant such IRUs without prior approval of A VISTA. This Agreement and each of the PARTIES' respective rights and obligations under this Agreement shall be binding upon and shall inure to the benefit of the PAR TIES hereto and to their respective successors, heirs and assigns. 21. Confidentiality 21.1 CITY and A VISTA hereby agree that if either Party provides (or, prior to the execution hereof, has provided) confidential or proprietary information to the other Party ("Proprietary Infom1ation"), such Proprietary Information shall be held in confidence, and the receiving Party shall atTord such Proprietary Information the same care and protection as it affords generally to its own confidential and proprietary information (which in any case shall be FJBERSALEVl.l2 Page 9 of 15 ---PAGE BREAK--- not less than reasonable care) in order to avoid disclosure to or unauthorized use by any third party. As used herein, Proprietary Information shall mean any and all technical or business information furnished, in whatever form or medium, or disclosed by CITY to A VISTA including, but not limited to, product or service specifications, prototypes, network information, computer programs, models, drawings, marketing plans, financial data, and personnel statistics. All 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 Proprietary Information, 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. 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. 2 1.2 The foregoing provisions of Section 15.01 shall not apply to any Proprietary Information which becomes publicly available other than through the recipient; is required to be disclosed by a governmental or judicial law, order, rule or regulation; is independently developed by the receiving Party; becomes available to the receiving Party without restriction from a third party; or becomes relevant to the settlement of any dispute or enforcement of either Party's rights under this Agreement in accordance with the provisions of this Agreement, in which case appropriate protective measures shall be taken to preserve the confidentiality of such Proprietary Information as fully as possible within the confines of such settlement or enforcement process. If any Proprietary Information is required to be disclosed pursuant to the foregoing clause the Party required to make such disclosure shall inform the other Party of the requirements of snch disclosure. 21.3 Nothing herein shall be construed as granting to either Party any right or license under any copyrights, inventions, or patents now or hereafter owned or controlled by the other Party. 2 1.4 Notwithstanding Sections 2 1. 1 and 2 1.2 of this Section, either Party may disclose Proprietary Information to its employees, agents, 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 and/or performance of this Agreement or its obtaining of financing, provided that each such Party is notified of the confidential and proprietary nature of such Proprietary Information and is subject to or agrees to be bound by similar restrictions on its use and disclosure. 21.5 The provisions of this Section shall survive expiration or termination of this Agreement. 22. Termination FJBERSALEVL12 Page 10 of 15 ---PAGE BREAK--- 22.1 Unless renewed pursuant to this Agreement, this Agreement automatically shall terminate upon the expiration or termination of the Term defined hereinabove. 22.2 Upon the expiration or termination of this Agreement, the IRU shall inunediately terminate and all rights of A VISTA to use the Dark Fiber System, the A VISTA Fibers or any part thereof, shall cease and CITY shall owe A VISTA no additional duties or consideration. thereupon, A VISTA shall remove all of A VISTA's electronics, equipment, and other A VISTA property at its sole cost. 22.3 Notwithstanding the foregoing, no termination or expiration of this Agreement shall affect the rights or obligations of any Party hereto with respect to any then existing defaults or the obligation to make any payment hereunder for services rendered prior to the date of termination or expiration or Sections of this Agreement which the PARTIES have agreed herein shall survive the expiration or termination hereof. 23. Representations. Warranties, and Acknowledgments 23.1 Each PARTY represents and warrants that: it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; this Agreement constitutes a legal, valid and binding obligation enforceable against such Party in accordance with its terms, subject to bankruptcy, insolvency, non­ appropriation, creditors' rights and general equitable principles; and 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. 23.2 A VISTA represents and warrants that it has free and clear title, without any encumbrances or liens, to the dark fiber and hardware appurtenances thereto and the authority to assign, transfer or grant use of the private easements identified in Exhibit A, attached hereto. 23.3 AVISTA MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DARK FIBER, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. 24. General 24.1 Waiver. The failure of either Party hereto to enforce any of the provisions of tl1is Agreement, or the waiver thereof in any instance, shall not be construed as a general waiver or relinquishment on its part of any such provision, but the same shall nevertheless be and remain in full force and effect. FIBERSALEVl.l2 Page ll ofl5 ---PAGE BREAK--- 24.2 Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Idaho, without reference to its choice of law principles. Any litigation based hereon, or arising out of or in connection with a default by either Party in the performance of its obligations hereunder, shall be brought and maintained exclusively in the courts of the State of Idaho, and each party hereby irrevocably submits to the jurisdiction of such courts for the purpose of any such litigation and irrevocably agrees to be bound by any judgment rendered thereby in connection with such litigation. In the event of suit, venue will be in Latah County, Idaho. 24.3 Rules of Construction. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement or as amplifying or limiting any of its content. Words in this Agreement which import the singular connotation shall be interpreted as plural, and words which import the plural connotation shall be interpreted as singular, as the identity of the PARTIES or objects referred to may require. Unless expressly defined herein, words having well known technical or trade meanings shall be so construed. All listing of items shall not be taken to be exclusive, but shall include other items, whether similar or dissimilar to those listed, as the context reasonably reqmres. Except as set forth to the contrary herein, any right or remedy of CITY or A VISTA shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not. This Agreement has been fully negotiated between and jointly drafted by the PARTIES. All actions, activities, consents, approvals and other undertakings of the PARTIES in this Agreement shall be performed in a reasonable and timely manner. Except as specifically set forth herein, for the purpose of this Agreement the standards and practices of performance within the telecommunications industry in the relevant market shall be the measure of a Party's performance. 24.4 Entire Agreement. This Agreement constitutes the entire and final agreement and understanding between the PARTIES with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibit A and Appendix I referred to herein are an integral part hereof and are hereby made a part of this Agreement. This Agreement may only be modified or supplemented by an instrument in writing executed by a duly authorized representative of each party and delivered to the party relying on the writing. 24.5 No Personal Liability. Each action or claim against any party arising under or relating to this Agreement shall be made only against such party as a corporation, and any liability relating thereto shall be enforceable only against the corporate assets of such party. No party shall seek to pierce the corporate veil or otherwise seek to impose any liability relating to, or arising from, this Agreement against any shareholder, employee, officer or director of the other FIBER SALE VL 12 Page 12 of 15 ---PAGE BREAK--- party. Each of such persons is an intended beneficiary of the mutual promises set forth in this Section and shall be entitled to enforce the obligations of this Section. 24.6 Relationship of the PARTIES. The relationship between CITY and A VISTA shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, but not limited to federal income tax purposes. CITY and A VISTA, in performing any of their obligations hereunder, shall be independent contractors or independent parties and shall discharge their contractual obligations at their own risk subject, however, to the terms and conditions hereof. 24.7 No Third-Party Beneficiary Rights. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no person not a party to this Agreement will have any right to enforce any term of this Agreement. 24.8 Severability. If any term, covenant or condition contained herein is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall not be affected thereby, and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 24.9 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. In confirmation of their consent and agreement to the terms and conditions contained in this Agreement and intending to be legally bound hereby, the authorized representatives of the PARTIES have executed this Agreement as of the date first above written. A VISTA CAPITAL, INC. (Printed arne) C )C'o (Title) (Date) FliER SALE V 1.12 CITY OF MOSCOW, IDAHO Page 13ofl5 ---PAGE BREAK--- State ofÅ) ) ss. County of..sA:t-t-- ) On this day of , 2005, before me personally appeared 4L.!AV eA4c..,. ror; Q IP'C!Pc::) of A VISTA Capital, Inc. that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that _he _ authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. In Witness Whereof, I have hereunto set my hand and affixed my official seal the day and year first above written.  'it( ·U Residing at My Commission expires: &6p b rsection with the steam tunnel. 1 .3 The route presently approved will allow A VISTA to exit the University's tunnel system at the Student Recreation Center entrance from Line Street, rise on a pole at that location, and continue north overhead across Highway 8 to A Street. This overhead routing will be temporary, for approximately two to three years. At the direction of University, m conjunction with the relocation of Paradise Creek, the overhead line must be placed underground. A VISTA, therefore. also agrees to place a splice box, as directed by University, adjacent to the tunnel at the aforementioned Student Recreation Center entrance. Within a reasonable time f(>llowing University's notificabon to A VISTA of the commencement of the Paradise Creek relocation project, based on a schedule coordinated between A VISTA and University, A VISTA further agrees to install the necessary duct bank from the terminal pole at Highway 8 back to this vault, and to re-pull the fiber lines through this duct bank, and splice to the Jines in the tunnel. The construction of this duct bank will require A VISTA to perf(mn boring under the remaining railroad tracks, and to use a new duct bank With the new bridge that will be constructed by University over Para,hsc Creek. f(>llowing the creek's relocation. For the usc of the duct bank to be built as part of the new hridgc1S A VISTA agrees to pay it's pro-rata shan: of the cost to install such duct hank. with Uni\'crsity and any other companies using the duct hank. up to an amount ---PAGE BREAK--- Contract No. A-16241 equal to fifty percent (50%) of the cost. University understands that A VISTA will need a minimum 90 days advance notice before the commencement of the project in order for A vista to have sufficient time to obtain the appropriate permits to perform the work Additionally, A VISTA will në'Cd to schedule seven calendar days within the project timeframe to place the conduit in the ground as required by University. University shall be responsible for incorporating this time requirement into the Paradise Creek relocation project schedule, and A VISTA shall not be liable for charges that contractors performing the Paradise Creek relocation project may impose on University, if these scheduling requirements are not addressed as part of the project during the bidding and contracting process. 1.4 1be Parties agree that the mutual benefits set forth in this Section 1 are just and sufficient consideration under this Agreement. 2. Term. 1bis Agreement will have an initial term of ten (10) years, beginning on the Effective Date of this Agreement (the "Term"). The Agreement will be automatically extended for additionally successive terms of ten ( l 0) years unless either A VISTA or University gives written notice of termination to the other, at least thirty (30) days before the end of the term then in effect. 3. Removal of Facilities. At the end of the Term, A VISTA may, at its option and its sole cost and expense, remove the Facilities, materials, equipment, and all personal property installed by A VISTA on, upon, or around the Building, and repair all damage caused by such removal. Any Facilities, materials, equipment, and all personal property installed' hy A VISTA not so removed within sixty ( 60) days after the expiration of this Agreement will become the property of the University. 4. Indemnification. A VISTA and University shall, at all times during the term of this Agreement and thereafter, indemnify and hold each other, and each other's governing boards, officers, employees and affiliates, harmless against all claims and expenses, including legal expenses and reasonable attorneys' fees, that may be suffered or incurred, arising out of the death of or injury to any person or persons or out of any damage to property, and against any other claim, proceeding, demand, expense and liability of any kind relative to this Agreement which directly resulted from or was caused by the negligence of the indemnifying party, its officers or employees with respect to the indemnifYing party's obligations under this Agreement. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDTRECf, SPECIAL, CONSEQUENTIAL INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF TilE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND BOTH PARTIES ARE AWARE TI!AT V ARJOUS OTIIER Tll!RD PARTIES (I.E. CITY, COUNTY, STATE) MAY BE BENEFICIARIES OF THESE LIMITATIONS. 1bis indemnification does not apply when such claims, damages, costs, liabilities and expenses are the result of negligent acts, errors, omissions or fault on the part of indemnitee, its agents or assigns including conditions of indemnitee's premises, or when the claim or suit is made against A VISTA by the State of Idaho, or any of its agencies. A VlST A shall notify the University of Idaho, Office of Administrative Affairs, PO Box 443168, Moscow, Idaho 83844-3168 and University shall notify A VISTA of any such claim of which it has knowledge and shall cooperate fully with each other in the defense of the same. The University's liability coverage is provided through a self-funded liability program administered by the Idaho State Oflice of Insurance Management. Limits of liability, and this indemnification, are $500,000 Combined Single Limits, wh1ch amount is the University's limit of liability under the Idaho Tort Claims Act, this and this Agreement. 5. Miscellaneous. 5 .I This Agreement shall be and construed in accordance with the hnvs of the State of ldaho without regard to its choice of law principles. ---PAGE BREAK--- Contract No. A-16241 5.2 If any suit or action is filed by any party to enforce or interpret this Agreement, the prevailing party will be entitled to recover reasonable attorneys' fees from the other party, as fixed by the reviewing court, incurred in investigation of related matters and in preparation for the prosecution of such suit or action as fixed by the trial court. 5.3 This Agreement shall not be assigned or conveyed by either party to any person or entity without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. 5.4 All notices to be sent to a party pursuant to this Agreement shall be in \Vriting and deemed to be delivered upon personal delivery, (ii) three days after mailing certified mail return receipt requested, or (iii) on the day when the notice has been sent by facsimile if during business hours. In each case, the notice shall be sent to the person identified in this Section at the Full Business Address of the parties as they appear herein. The Full Business Address for purposes of notice under this Section as well as telephone voice and facsimile numbers shall be: If to A VISTA: 422 West Riverside Suite I 00-Skywalk Spokane, W A 9920 I Attn: Contracts Manager Telephone: (509) 444-4093 Facsimile: (509) 444-4525 If to the University of Idaho: Facilities Maintenance and Operations PO Box 442281 Moscow, Idaho 83844-2281 Attn: Ken White Telephone: [PHONE REDACTED] Facsimile: [PHONE REDACTED] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by the respective authorized representatives hereto, as of the date first written a hove. Regents of the University ofldabo  By:  Name:  . Title: VP of Finance and Administration Name: Kenneth G. Carlson Title: Real Estate Representative Date: _ ---PAGE BREAK--- 2 ' 0 ; g ji I" . I I I I . 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