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FIBER OPTIC NETWORK INSTALLATION AND MAINTENANCE AGREEMENT BETWEEN GRITMAN MEDICAL CENTER, INC., MOSCOW SCHOOL DISTRICT NO. 281 AND CITY OF MOSCOW, IDAHO THIS FIBER OPTIC NETWORK INSTALLATION AND MAINTENANCE AGREEMENT BETWEEN GRITMAN MEDICAL CENTER, INC., MOSCOW SCHOOL DISTRICT NO. 281, AND CITY OF MOSCOW, IDAHO (hereinafter referred to as "AGREEMENT"), is made and entered into this >Jot" day of Aufj&ust; , 2005 by and between GRITMAN Medical Center, Inc., a non-profit Idaho corporation, 7 South Mam Street, Moscow, Idaho, 83843 (heremafter "GRITMAN"); Moscow School District No. 281, a school district of the State of Idaho, 650 North Cleveland Street, Moscow, Idaho, 83843 (hereinafter "MSD 281 ");and CITY of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"); W I T N E S S E T H : WHEREAS, GRITMAN, MSD 281 and CITY (hereinafter referred to collectively as "CONSORTIUM") wish to enter into this AGREEMENT which governs the various rights and obligations of the parties, including ownership, installation, maintenance and other aspects of utilizing a fiber optic network for their mutual and individual benefit; and WHEREAS, 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 recognizes that each individual CONSORTIUM member owns its own physical facilities in various locations within the CITY of Moscow, Idaho and that a joint effort by CONSORTIUM members to utilize said fiber optic network should result in a judicious use of public funds; and WHEREAS, A vista Corporation, (hereinafter "A VISTA") has recently contemplated divested itself of its local forty eight (48) strand fiber optic cable presently located within the CITY of Moscow, Idaho (hereinafter "A VISTA NETWORK"), and has offered ownership of said A VISTA NETWORK to the CITY; and WHEREAS, A VISTA has also donated forty thousand (40,000) linear feet of twelve (12) strand fiber optic cable to the CITY for use in the fiber optic network; and WHEREAS, the State of Idaho Transportation Department (hereinafter "lTD") is planning the installation of an Intelligent Transportation System (hereinafter "ITS ]\1ETWORK") within the City of Moscow to interconnect all traffic signals within the City of Moscow with fiber optic cable and to grant ownership and control of said ITS Network to CITY; and WHEREAS, CITY has identified opportunities to utilize portions of the A VISTA and the ITS NETWORKs to facilitate the interconnection of the CONSORTIUM members respective facilities; and WHEREAS, CITY desires to facilitate the use of A VISTA NETWORK and ITS NETWORK, and to install additional fiber optic network cable to create a dark fiber network interconnecting CONSORTIUM members (hereinafter termed "CONSORTIUM CONNECTIONS"), all of which collectively shall be termed the CITY NETWORK: and DRAFf- FIBER 0PT!C NFf\VORK INSTALLATION AND MAINTENANCE AGREEMENT PAGE, l OF9 2005-61 ---PAGE BREAK--- NOW, THEREFORE, CONSORTIUM hereby agrees to the following: Section 1: Project Description. The Project shall include all necessary materials and installation costs of new fiber optic cable, all splices and associated materials necessary to utilize portions of the CITY NETWORK and all terminations and associated materials necessary to provide fiber optic cable access to listed physical facilities of CONSORTIUM members as listed in Exhibit attached to this AGREEMENT and incorporated herein, all final testing and certification of fiber connectivity and all other associated materials and labor necessary to complete the CONSORTIUM connections as described in this AGREEMENT. CONSORTIUM agrees that all materials utilized in the Project shall be installed to the standards and specifications agreed upon by CONSORTIUM and specified within the Request for Proposal for the Project, also as agreed upon by CONSORTIUM. Section 2: CONSORTIUM Connections Installation Costs. A. General Installation Costs. All costs associated with the Project described hereinabove shall be the obligation of each individual CONSORTIUM member in accordance with Sections 2(B), 2(C) and 2(D) of this AGREEMENT unless otherwise specifically agreed upon. Each CONSORTIUM member shall be individually responsible for all costs associated with CONSORTIUM CONNECTIONS of its individual physical facility to the closest practicable connection to the existing CITY NETWORK as shown within the diagram labeled as Exhibit attached to this AGREEMENT and incorporated herein. B. Sole Fiber Runs. Sole fiber runs, for purposes of this AGREEMENT are those fiber optic cable that serve to provide network connectivity and service to a single CONSORTIUM member's physical facility to the CITY NETWORK. All costs associated with sole fiber runs in the Project shall be the exclusive responsibility of the respective individual CONSORTIUM member serviced by such sole fiber run. C. Joint Fiber Runs. Joint fiber runs for the purposes of this AGREEMENT are those fiber optic cable that serve to provide network connectivity to more than one individual CONSORTIUM member's physical facilities to the CITY NETWORK. All costs associated with joint fiber runs in the Project shall be distributed on a proportional basis and shall be divided equally by the individual CONSORTIUM members' utilizing the subject joint fiber run. D. Ancillary Installation Costs. Ancillary installation costs which are related to a joint fiber run (such as utility pole replacement, underground vault installation, terminations, splices, and other similar costs) shall be borne by each CONSORTIUM member on the same proportion basis as described in Section 2(C) of this AGREEMENT. DRAFfÆ fiBER 0PT!C NEnVORK lNSTALLATlON AND MA!N'lTNANCE AGREEMENT PAGE2 OF9 ---PAGE BREAK--- Section 3: CITY NETWORK Ownership. CITY shall be the sole and exclusive owner of the CITY NETWORK. No action, inaction, or activity related to this AGREEMENT shall create, establish, or preserve ownership in CITY NETWORK by any party to this AGREEMENT other than CITY. Section 4: CITY NETWORK Usage. A. Indefeasible Rights of Use and General Terms and Conditions. The Indefeasible Right of Use (IRU) granted under this AGREEMENT shall establish the sole exclusive usage of such fiber strands by the individual CONSORTIUM member who retains (for the duration of the existence of the City Network established by this AGREEMENT) uninterrupted and undiminished right of use of said fiber strands unless such member is in violation or breach of this AGREEMENT or unless otherwise specifically agreed upon. CITY shall retain sole and exclusive ownership of the fiber optic cable runs, including full rights to over-lash additional fiber optic cables to such fiber optic cable runs. CITY shall retain the exclusive right to approve any commercial use above and beyond the normal operations of the CONSORTIUM member's entity or any transfer or sublease of rights granted under this AGREEMENT to any other party. In the event a proposed change to the use of the CITY NETWORK would adversely affect and/or impact the CONSORTIUM members' usage of the CITY NETWORK, CITY shall consult with and receive written approval from the CONSORTIUM members prior to making any such changes in the use of the CITY NETWORK. Approval by CONSORTIUM members' shall not be unreasonably withheld. B. Strand Map. Prior to the initiation of Project, CONSORTIUM shall develop and adopt a diagram of all CITY NETWORK segments, terminations, and splice locations including identification of individual strands of the fiber optic cable related to this AGREEMENT (the "Strand Map"). Such Strand Map shall accurately describe by strand, tube and color the distribution of IRUs to CONSORTIUM members of such fiber optic cable run. The Strand Map, when completed, shall become Exhibit of this AGREEMENT and shall be adopted and incorporated herein. CONSORTIUM members agree that the Strand Map shall be utilized to define and determine right of use, location and financial contribution pursuant to this AGREEMENT. C. An IRU in the CITY NETWORK is hereby established as follows: CONSORTIUM MEMBER NUMBER OF FIBER STRANDS GRITMAN MSD 28l Section 5: CITY NETWORK Maintenance and Repair. A. Regular Maintenance and Repair. 6 6 CITY shall enter into maintenance and service AGREEMENT(s) with qualified party(ies) in order to maintain a sufficient level of service and reliability at a reasonable cost for CONSORTIUM members. Such service agreement shall include emergency response capability twenty four (24) hours per day, Seven days per week with a response time between two to fours hours to arrive on-site after notification. Each CONSORTIUM member shall pay expenses related to such regular maintenance services in the same manner as described in Section 2 of this AGREEMENT. CITY in no way shall be DRAFf- FIBER 0Ff!C NETWORK INSTALLATION AND MA!NTEÅANCE AGREEMENT PAGE30F9 ---PAGE BREAK--- responsible to CONSORTIUM members for any costs or other damages of any nature resulting from any CITY NETWORK disruptions, or performance failures of the maintenance and service provider. B. Preventive Maintenance Fees. Each CONSORTIUM member shall pay, as the fair share of preventive maintenance costs, its relative proportional usage of the total CITY NETWORK as established by the Strand Map. For purposes of this portion of the AGREEMENT, preventive maintenance includes all new fiber optic cables installed within the scope of the Project and any existing fiber optic cables under ownership by any individual CONSORTIUM member which CONSORTIUM has agreed to include within its preventive maintenance program. Preventative maintenance is anticipated to include annual inspections of the CITY NETWORK and ancillary facilities. The CONSORITUM shall agree upon the level of maintenance required and the distribution of cost of such maintenance shall be in accordance with this AGREEMENT. CITY shall secure the maintenance services and each CONSORTIUM member shall reimburse CITY for their proportional share as described herein. C. Annual Joint Use Fees. CONSORTIUM understands and agrees that in accordance with the existing electrical franchise agreement between CITY and A VISTA, CITY is not obligated to pay any Joint Use Fees to attach to any A VISTA utility poles. CONSORTIUM understands and agrees that all CONSORTIUM members other than CITY must pay annual Joint Use Fees to AVIST A for all cable attachments utilized to serve the respective facilities of all Consortium members other than CITY. It is understood that the current A VISTA annual Joint Use Fee is eighteen dollars and sixty five cents ($18.65) per pole per year and that such fee is subject to annual inflationary and other adjustments by A VISTA which are beyond CITY's control. If more than one non-CITY CONSORTIUM member utilize the same pole contact to service its respective facility, then the annual Joint Use Fee shall be shared equally between the two non-CITY entities, however in the event one of the shared non-CITY CONSORTIUM members withdraws from this agreement in accordance with Section 9, 10 or II of this AGREEMENT, the sole remaining non-CITY CONSORTIUM member shall then be responsible for the entire joint use fee. Each CONSORTIUM member hereby agrees to pay its proportional share of all annual Joint Use Fees incurred in providing CITY NETWORK connectivity to their facilities. It is understood that A VISTA shall bill such Joint Use Fees annual on the calendar year to the CITY as the Master License Holder for the CITY NETWORK. CITY shall pay said Joint Use Fees upon the CONSORTIUM member's behalf and CONSORTIUM members shall reimburse CITY for their proportional share of said charges in accordance with this AGREEMENT within 30 days of receipt of request for reimbursement, or as otherwise agreed upon. D. Critical Response and Repair. Each CONSORTIUM member shall provide an initial one-time five thousand dollar ($5,000) contribution for inclusion in a common Critical Response and Repair Fund which shall be held and managed for the benefit of CONSORTIUM by CITY. Reimbursement of expenditures to such Critical Response and Repair Fund shall be made by the CONSORTIUM member requiring the Critical Response and Repair in the same manner as described in Section 2 of this AGREEMENT. For purposes of this portion of this AGREEMENT, critical response and repair shall include services which will insure a rapid response to any unanticipated or emergency situation which causes the CITY NETWORK to be severely compromised or to fail. Such events may include natural events such as impairment by falling trees, acts DRAFf- FIBER OPTIC :\EciWORK INSTALLATION AND MAINTENANCE AGREEMENT PAGE40F9 ---PAGE BREAK--- of God, fire, damage by accident or intention, and the like. The Critical Response and Repair fund shall not be used to fund the repair and/or maintenance of existing CONSORTIUM member's fiber optic cables, and shall be expended for tbe benefit of only those fiber optic cables proposed to be acquired or installed within this AGREEMENT. CITY shall provide a financial accounting report to CONSORTIUM members annually following the end of the CITY's fiscal year detailing expenses and reimbursements to the Critical Response and Repair Fund occurring during the reporting period. E. CITY NETWORK Recovery of Repair Costs If CITY NETWORK is damaged by a third party, CITY shall make a reasonable attempt to recover the repair cost from the responsible party. All costs associated with the recovery of such repair costs shall be shared by the respective CONSORTIUM members in the same manner as described within Section 2 of this AGREEMENT. Section 6. Right of Entry. Each CONSORTIUM member individually and CONSORTIUM collectively grants to each other CONSORTIUM member and to CONSORTIUM, a non-exclusive right for ingress and egress on, over, and across such individual CONSORTIUM member's property as shown in the CITY NETWORK Diagram and Strand Map subject to twenty four (24) hour prior written notice to CONSORTIUM for scheduled or routine maintenance, construction, servicing and/or repair. Such twenty four (24) hour prior written notice to CONSORTIUM shall not apply to emergencies. In case of an emergency, the appropriate CONSORTIUM member shall notify CONSORTIUM of entry as soon as practicable following receipt by the respective CONSORTIUM member of first notice of such emergency. The right of entry described herein shall expire with the expiration and/or termination of this Agreement Section 7. Indemnity and Hold Harmless. Each individual CONSORTIUM member hereby specifically agrees that it is responsible for its own negligence and that of said CONSORTIUM member's agents, employees, or representatives. Each individual CONSORTIUM member further agrees to indemnify, defend, and to hold harmless CONSORTIUM, CITY, and other CONSORTIUM members, their officers, agents and employees, from and against any and all claims, losses, or judgments for damages or injury to persons or property arising out of or in connection with the act and/or any performances or activities of CONSORTIUM, CITY of the said CONSORTIUM member, their agents, employees, or representatives under this AGREEMENT. Section 8. Insurance. Each individual CONSORTIUM member hereby specifically agrees to obtain and to keep in force during the entire term of this AGREEMENT, a comprehensive general liability insurance policy written on an occurrence basis with limits of no less than Five Hundred Thousand Dollars ($500,000) combined single limit per occurrence and Five Hundred Thousand Dollars ($500,000) aggregate for personal injury, bodily injury and property damage. Such minimum coverage shall include, but not be limited to, blanket, contractual, products/completed operations, broad form property damage, explosion, collapse, and underground (XCU) and employer's liability. Such coverage may be provided, in part, through an umbrella policy, with the approval of CONSORTIUM. DRAf