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Res 20-08 Authorizing the Town Manager to sign agreements with a dedicated Internet Access Vendor for Dark FiberTOWN OF WESTLAKE RESOLUTION NO.20-08 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO SIGN AGREEMENTS WITH A DEDICATED INTERNET ACCESS VENDOR FOR THE DARK FIBER PROJECT WHEREAS, the Town currently uses a variety of internet services to connect our multiple municipal and academic locations; and, WHEREAS, the Town wishes to create a redundant fiber network between the buildings and offices utilizing the Town duct bank for reliability and standardization; and, WHEREAS, a new Dark Fiber based infrastructure will allow the Town to expand its Wide Area Network (WAN) with a common and stable infrastructure; and WHEREAS, the Town Council previously approved funding from the Capital Projects Fund for a Dark Fiber project; and, WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That the Town of Westlake Town Council hereby authorize the Town. Manager to sign agreements with a Dedicated Internet Access vendor for the Dark Fiber Project on behalf of the Town of Westlake. SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. SECTION 4: That this resolution shall become effective from and after its, date of passage, Resolution 20-08 Page 1 of 2 PASSED AND APPROVED ON THIS 24TH DAY OF FEBRUARY 2020. ATTEST: A a,-e— Tod Wood, Town Secretary APPROV AS FORM: L, anton f o n Attorney Laura Wheat, Mayor d4lta—" L Azc'e-- . Amanda DeGan, Town Manager TE X PS Resolution 20-08 Page 2 o; 2 FIBER PURCHASE AGREEMENT BY AND BETWEEN FIBERLIGHT, LLC AND TOWN OF WESTLAKE DATED AS OF February 27 , 2020 TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 1 of 14 ��� FIBER FIBER PURCHASE AGREEMENT This Fiber Purchase Agreement (the "Agreement") is made and entered into by and between FIBERLIGHT, LLC, with its principal place of business located at 3000 Summit Place, Suite 200, Alpharetta, Georgia 30009 (hereafter "FiberLight") and TOWN OF WESTLAKE, TEXAS with its principal place of business located at 1500 Solana Blvd., Building 7, Suite 7200, Westlake, Texas 76262 (hereafter "Purchaser") (each of FiberLight and Purchaser, a "Party" and, collectively, the "Parties"). 1. GENERAL FiberLight owns the fiber optic cable described in the separate Statement of Work executed in accordance with this Agreement, including all necessary appurtenances thereto, including but not limited to, manholes, conduits, and hndholes. Subject to the terms and conditions of this Agreement, FiberLight agrees to sell to Purchaser, and Purchaser agrees to purchase from FiberLight (i) the fiber described in the applicable Statement of Work (the "Purchaser's Cable System") and (h) a pro-rata share of the conduit containing both the Purchaser's Cable System and the Shared Cable System (as defined in Section 8.2). The route narratives and maps are set forth in Exhibit 1 to the applicable Statement of Work, and further represent the Purchaser's Cable System. 2. DELIVERY FiberLight will provide to Purchaser, in accordance with the terms of this Agreement, the goods, services and materials necessary to assure the delivery of Purchaser's Cable System. FiberLight will use all commercially reasonable efforts to deliver Purchaser's Cable System no later than the anticipated delivery date set forth in the applicable Statement of Work. Within four (4) months of the Acceptance Date (defined in Section 3.5 below), FiberLight shall deliver to Purchaser maps of the route in MapInfo format along with PDF drawings showing the route, segments, access points, and splice points ("Purchaser Fiber Facility Drawings"). ACCEPTANCE 3.1 Prior to delivery of Purchaser's Cable System, FiberLight will implement the Acceptance Test Plan (the "ATP") set forth in Attachment A to demonstrate Purchaser's Cable System is ready for use. FiberLight shall notify Purchaser of the date and time of the commencement of the ATP. Purchaser will have the right, but not the obligation, to observe the tests, provided that, at least twenty-four (24) hours prior to the commencement of the tests, Purchaser notifies FiberLight of the identities of Purchaser's observers and the nature of the observers' relationship with Purchaser, and further provides that such observers shall not disclose any information identified as confidential which is disclosed or observed in connection with the testing. 3.2 When the measured test results indicate that Purchaser's Cable System passes the ATP, FiberLight shall provide Purchaser written notice of the certified results ("Results") of all tests performed. The date upon which FiberLight delivers to Purchaser the Results will be the "Delivery Date." 3.3 Purchaser shall, within ten (10) days from the Delivery Date, either (i) accept Purchaser's Cable System by providing FiberLight with an executed "System Acceptance Notice" substantially in the form shown in Exhibit 3 to Attachment A, or (ii) notify FiberLight that it shall conduct its own verification tests. If Purchaser fails to respond within ten (10) days, such inaction shall constitute acceptance. If Purchaser elects to conduct its own verification tests and properly notifies FiberLight within ten (10) days, Purchaser shall conduct such tests (as set forth herein) within five (5) days from and after the date of its notice and shall use its own testing equipment. Verification tests shall be performed by Purchaser at Purchaser's sole cost and with access to Purchaser's Cable System provided by FiberLight. 3.3.1 If Purchaser's tests verify the Purchaser's Cable System passes the ATP, Purchaser shall accept Purchaser's Cable System by immediately executing and delivering a System Acceptance Notice to FiberLight. 3.3.2 If Purchaser's tests indicate the Purchaser's Cable System does not pass the ATP, Purchaser shall promptly notify FiberLight and FiberLight shall take such commercially reasonable corrective action as soon as practicable and in any event within thirty (30) days as may be necessary to ensure Purchaser's Cable System passes the ATP. Purchaser's right to conduct verification tests shall continue until such tests confirm Purchaser's Name v05.14.08 Contract Number: FPA-1000-00-08 Page 2 of 14 Purchaser's Cable System passes the ATP, however, after two (2) failed Purchaser verification tests, the Parties shall conduct a joint ATP and cooperate to determine the reason for the discrepancies between FiberLight's test results and Purchaser's verification test results. 3.4 Notwithstanding anything to the contrary, the following events constitute acceptance of Purchaser's Cable System without the formality of Purchaser executing a System Acceptance Notice. The Acceptance Date for acceptance under this section 3.4 shall be the Delivery Date: 3.4.1 Purchaser's use of Purchaser's Cable System for any reason except for performing the verification tests as permitted in this Section 3.3. For purposes of this subsection, `use' shall mean the lighting of the fiber for any period of time or the transmission of any form of communications or data over it; or 3.4.2 Purchaser's failure to notify FiberLight within ten (10) days of the Delivery Date that Purchaser did not accept certification of the ATP or that Purchaser plans to conduct its own verification of compliance with the ATP. 3.5 The date on which Purchaser delivers to FiberLight an executed System Acceptance Notice or is deemed to have accepted the Purchaser's Cable System under Section 3.4 shall be the "Acceptance Date." 3.6 Notwithstanding anything to the contrary, in no event shall the unavailability, incompatibility, delay in installation, or other impairment of any of Purchaser's (including Purchaser's suppliers) interconnection facilities be used as a basis for delay of Purchaser's verification tests or the Acceptance Date. 4. FEES AND TERMS OF PAYMENT 4.1 Purchaser agrees to pay FiberLight the fees for Purchaser's Cable System as set forth in the applicable Statement of Work. 4.2 Notwithstanding anything to the contrary, no payment due hereunder is subject to reduction, set-off or adjustment of any nature by Purchaser. 4.3 Upon receipt of the final payment of Purchaser's Cable System Fees, FiberLight shall deliver a Bill of Sale to Purchaser for the Purchaser Cable System conveying to Purchaser all ownership, transferable rights, title and interest in and to the Purchaser Cable System. 4.4 The sums required to be paid by Purchaser under this Agreement are exclusive of sales, use, excise, transfer, ad valorem, franchise or other similar taxes that may be imposed with respect to this Agreement or any of the services provided or used hereunder and Purchaser shall promptly pay or reimburse FiberLight for any such taxes. Purchaser shall have no responsibility for income or other similar taxes due from FiberLight which result from this transaction or which are assessed on revenues received by FiberLight. With respect to property taxes, the party that owns the property, which is subject to such a tax at the time the tax, accrues shall pay such property taxes. 4.5 FiberLight may charge Purchaser a one and one half percent (1.5%) monthly finance charge or the maximum allowed by law, whichever is greater, for all outstanding amounts not paid within thirty (30) days of those amounts becoming due. 4.6 FiberLight will send Purchaser all invoices related to this Agreement to the address indicated below. Purchaser may change its billing address upon providing written notice to FiberLight of the new address. Federal TIN #: 1-75-2449357-8 Billing Contact: Debbie Piper, Finance Director Address: 1500 Solana Blvd_, Building 7, Suite 7200 Westlake, Texas 76262 Phone: 817-430-0941 Emai1: 1 dpiper@wesflake-tx.org TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 3 of 14 REPRESENTATIONS AND WARRANTIES 5.1 Each party represents and warrants it has the full right and authority to enter into, execute, deliver, and perform its obligations under this Agreement, and has taken all requisite corporate action to approve the execution, delivery, and performance of this Agreement. 5.2 FiberLight represents it has obtained or can and will obtain all rights, licenses, franchises, authorizations, rights of way and other agreements necessary for the installation of Purchaser's Cable System and the transactions contemplated by this Agreement (all of which are hereinafter referred to as "Required Rights"). FiberLight shall provide notice to Purchaser of any lawsuit or administrative filing challenging FiberLight's Required Rights. 5.3 Purchaser represents it has obtained or will obtain prior to the Acceptance Date, the Required Rights necessary for its, as opposed to FiberLight's, use of Purchaser's Cable System (all of which are hereinafter referred to as "Purchaser Required Rights"). 6. CABLE SYSTEM WARRANTY 6.1 FiberLight warrants that Purchaser's Cable System will comply with all applicable codes, laws and regulations, and will be free from material defects in construction, workmanship, and design for a period of one (1) year commencing on the Acceptance Date. 6.2 FiberLight provides materials and non-FiberLight products on an "AS IS" basis. However, non-FiberLight manufacturers or suppliers may provide their own warranties to Purchaser and FiberLight shall cooperate fully with Purchaser to effect such warranty assignment and/or cooperate with Purchaser in filing warranty claims with such manufacturers. In no event shall FiberLight be deemed to have guaranteed any such warranties provided by manufacturers or suppliers. 6.3 EXCEPT AS EXPRESSLY SET FORTH ABOVE, FIBERLIGHT MAKES NO WARRANTIES AND SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WITH RESPECT TO PURCHASER'S CABLE SYSTEM. PURCHASER LOCATIONS, ACCESS, AND LIABILITY Purchaser hereby provides and grants, at no cost to FiberLight, all necessary and reasonable easements, licenses, permits or other authorizations for, and use of, all building entrance facilities and all electricity, sanitary facilities and other utilities at its (or its "affiliates and its agents") locations through which Purchaser's Cable System may pass, as FiberLight may reasonably require to provide safe and convenient working conditions for its personnel for the installation of Purchaser's Cable System. FiberLight shall have no responsibility for any damage or loss to Purchaser's Cable System or any portion or component thereof, which is on or in a Purchaser location after installation. 8. USE OF EQUIPMENT 8.1 Purchaser's use of Purchaser's Cable System shall comply with this Agreement and all applicable and lawful government ordinances, laws, rules, regulations or restrictions. 8.2 Use of the facilities adjacent to Purchaser's Cable System and contained with the conduit creating an undivided interest between the Purchaser and FiberLight (the "Shared Cable System"), as applicable, by FiberLight and Purchaser shall not: (i) interfere with the use of or impair service over the Shared Cable System; (ii) (ii) impair the privacy of any communications over the Shared Cable System; or (in) cause damage to property or create hazards to the employees of any user of the Shared Cable System or to the public. In no event shall Purchaser disturb or remove any conduit or innerduct comprising the Shared Cable System. 8.3 Purchaser shall keep the Shared Cable System free from any liens, rights, or claims of any third party attributable to TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 4 of 14 Purchaser and shall not damage or interfere with the Shared Cable System. 9. INDEMNIFICATION 9.1 To the extent allowed by law, each Party (the "Indemnifying Party") hereby releases and agrees to indemnify, defend, protect and hold harmless the other party, its employees, officers, directors, agents, shareholders and affiliates (the "Indemnified Party"), from and against any third party claims, actions, damages, liabilities, costs, judgments, expenses, costs of litigation, investigation or proceeding (including reasonable attorney fees), arising out of or in connection with: 9.1.1 Any injury, death or damage to any person, tangible property or facilities of any third person or entity arising out of or resulting from the negligence or willful misconduct by the Indemnifying Party; and 9.1.2 Any violation by the Indemnifying Party of any material applicable, law, regulation, rule, statute, or court order of any domestic or foreign local, state, federal or other duly authorized governmental agency, court, or body in connection with its obligations under this Agreement. 9.2 To the extent allowed by law, the Indemnifying Party hereby releases and agrees to indemnify, defend, protect and hold harmless the Indemnified Party, its employees, officers, directors, shareholders, servants, affiliates, agents, contractors, licensees, invitees, vendors and customers, from and against any third party claims, actions, damages, liabilities, costs, judgments, expenses, costs of litigation, investigation or proceeding (including reasonable attorney fees) arising out of or in connection with the Indemnifying Party's (and its officers', directors', shareholders', employees', servants', affiliates', agents', contractors', licensees', invitees', vendors' and customers use, misuse, resale or other transfer or conveyance, sharing or modification of the Shared Cable System or prevention or hindrance of the Indemnified Party's access thereto. 9.3 In all instances in which the Indemnifying Party is obligated to indemnify the Indemnified Party as provided for in this Agreement, (i) the Indemnified Party shall give the Indemnifying Party written notice of all claims, damage, losses, suits and any other event which is in any way related to or asserted by Purchaser as a basis for such obligation, which notice shall be given immediately after the Indemnified Party chaser becomes aware thereof, (ii) the Indemnified Party shall have the sole right to control the defense of such matter and the sole right to determine the disposition of each matter, (iii) the Indemnified Party shall furnish such available information and assistance as may be required by the Indemnified Party to assist in the disposition of such matter and no disposition or settlement shall be made by the Indemnified Party of any matter for which a claim of indemnification or to be held harmless will be made, without the prior written consent of the Indemnified Party. 10. LIMITATION OF LIABILITY NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER 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, RECORDS, DATA OR EQUIPMENT, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT (FOR THE PURPOSE OF THIS SECTION, NOTWITHSTANDING ANYTHING TO THE CONTRARY, LOST PROFITS, REVENUE OR OTHERWISE, SHALL NOT INCLUDE DIRECT DAMAGES WITH RESPECT TO ANY AMOUNTS DUE AND OWING FIBERLIGHT UNDER THIS AGREEMENT), 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 PURCHASERS OR THIRD PARTIES IN CONNECTION WITH THEIR USE OF THE SHARED CABLE SYSTEM, EXCEPT IN THE EVENT EITHER PARTY IS FOUND LIABLE ON THE BASIS OF GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT. NOTHING HEREIN SHALL PREVENT EITHER PARTY FROM PURSUING THIRD PARTY CLAIMS WHICH ACT TO INTERFERE WITH THE INTEGRITY OF THE AFFECTED PARTY'S NETWORK, AND THE PARTIES AGREE TO ASSIGN ANY RIGHTS OR CLAIMS,, EXECUTE ANY REASONABLY APPROPRIATE DOCUMENTS AND TAKE ANY OTHER STEPS THAT MAY BE REASONABLY NECESSARY TO ENABLE THE AFFECTED PARTY TO PURSUE ANY SUCH ACTION AGAINST SUCH THIRD PARTY. 11. FORCE MAJEURE TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 5 of 14 Neither Party will be in default under this Agreement to the extent it is delayed or prevented from performing its obligations hereunder because of any acts of God; fire; flood; natural disaster; adverse weather conditions; change in governmental codes, ordinances, laws, rules, restrictions or regulations; condemnation or exercise of rights of eminent domain; war or civil disorder; failure of a third party to grant or recognize any Required Right; permitting delays; strike or other labor problems; accidents; fiber cuts; material or facility shortages or unavailability or other delay in delivery; lack of or delay in transportation; or any other cause beyond the reasonable and foreseeable control of the Party (each a "Force Majeure"). In the event of a Force Majeure, the Party whose performance is delayed shall use commercially reasonable efforts to mitigate and avoid continuation of Force Majeure so as to recommence timely performance as soon as practicable. If an event of Force Majeure occurs, the time for performance or delay will be extended for the duration of the condition. Notwithstanding the foregoing, if an event of Force Majeure occurs and persists for sixty (60) days or more and a Party delays performance as a result, the non -delaying Party may terminate this Agreement without liability and receive a refund of any pre -paid amounts paid hereunder (if any). 12. CONFIDENTIALITY Each Party to this Agreement, its affiliates, agents, contractors and subsidiaries and its and their officers, directors, employees and agents receiving information from the other Party clearly indicated to be proprietary and confidential by a label, legend or other notice or is otherwise reasonably identifiable as confidential or proprietary information (including without limitation, blueprints, as -built drawings, business plans, customer data, network information or pricing) ("Confidential Information") will keep such Confidential Information in confidence and will not copy or disclose or permit others to copy or disclose such Confidential Information to any individual other than the directors, officers and employees of such Party or agents of such Party who need to know and who have agreed in writing to the confidentiality provisions of this Agreement which shall survive for a period of three (3) years from the Acceptance Date or the date the Confidential Information is provided to the receiving Party, whichever is greater, unless the Confidential Information constitutes a "trade secret" in which case the receiving Party must comply with the foregoing restrictions for as long as applicable law allows. All such Confidential Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party, and 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. Notwithstanding the foregoing, neither Party will be required to keep confidential any information that (1) becomes publicly available other than through the receiving Party; (2) is required to be disclosed pursuant to a governmental or judicial rule, order, or regulation, provided that the receiving Party notifies the disclosing Parry in advance of the pending disclosure so as to enable the disclosing Party to seek appropriate protective relief; (3) the receiving Party independently develops; (4) becomes available to the receiving Parry without restriction from a third Party that has the legal right to disclose such information, or (5) is required by the receiving Party's lender and given to such lender on a confidential basis with the delivering Parry's consent. 13. TERMINATION AND DEFAULT 13.1 The occurrence of any of the following will constitute a default under this Agreement by the relevant Party: 13.1.1 A Party fails to pay any undisputed amount due under this Agreement and fails to pay such amount within ten (10) days after such Party receives written notice of such failure to pay; or 13.1.2 A Party breaches a material provision of this Agreement, other than the payment of money, and fails to cure such breach within thirty (30) days after such Party receives written notice of such breach, or if such breach is not capable of cure within such thirty (30) day period, and the breaching Party fails to commence to cure such default or diligently pursue completion of such cure during and after such thirty (30) day period. 13.2 Upon a default by the other Party, the non -defaulting Party may terminate this Agreement by providing the defaulting Party ten (10) days prior written notice of its intent to terminate and may pursue any and all legal remedies it may have under applicable law, or principles of equity relating to such breach. Since a breach of a material obligation may cause irreparable harm for which monetary damages may be inadequate, in addition to other available remedies, the non - breaching Party may seek injunctive relief for any breach or default hereof. 13.3 The rights and remedies of the Parties provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or elsewhere in this Agreement. 14. INSURANCE TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 6 of 14 14.1 FibeLght shall obtain and maintain at their sole cost, not less than the following insurance: 14.1.1 Commercial General Liability Insurance with a combined single limit of not less than $5,000,000 for bodily injury and property damage; 14.1.2 Worker's Compensation Insurance in amounts required by applicable law and Employers Liability Insurance with limits not less than $1,000,000 each accident; and 14.1.3 Automobile Liability Insurance with a combined single limit of $2,000,000 for bodily injury and property damage, to include coverage for all owned, non -owned, and hired vehicles. 14.1.4 The limits set forth above may be met through a combination of primary and excess liability coverage and such limits are minimum limits and shall not be construed to limit the liability of the Parties. 14.2 Intentionally omitted. 15. MISCELLANEOUS 15.1 Notices. Except as otherwise provided herein, any notice required pursuant to this Agreement shall be in writing, transmitted to the Parties' addresses specified below or such other addresses as may be specified by written notice, and will be considered given either when deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; or delivered to a nationally recognized overnight courier service:: If to FiberLight: FIBERLIGHT, LLC 11700 Great Oaks Way, Suite 100 Alpharetta, Georgia 30022 Attention: Legal If to Purchaser: TOWN OF WESTLAKE 1500 Solana Blvd. Building 7, Suite 7200 Westlake, Texas 76262 15.2 Assignment. This Agreement shall be binding on Purchaser and its respective Affiliates, successors, and assigns This Agreement shall not be assignable without the express written consent of the other Party, which shall not be unreasonably withheld, conditioned, or delayed. In the event a Party assigns this Agreement to a legal successor, it shall so notify the other Party within ten (10) days of the assignment. 15.3 Waiver. The terms, covenants, representations and warranties of this Agreement may be waived only by a written instrument executed by the Party expressly waiving compliance hereunder. Except as otherwise provided for herein, neither Party's failure, at any time, to enforce any right or remedy available to it under this Agreement shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder. 15A Judicial Interpretation. If this Agreement requires judicial interpretation, then Purchaser and FiberLight stipulate that the court should not construe the terms of this Agreement more strictly against the party preparing this Agreement, because both Purchaser and FiberLight have sought and received advice of counsel to the extent that each deems necessary for full understanding of all the consequences of these terms and conditions. 15.5 Seve�bility. If any provision of this Agreement is found to be illegal or otherwise invalid, then the validity of the remaining provisions will not be impaired. Purchaser and FiberLight will attempt to replace any invalid provision with a valid provision having substantially the same commercial effect as the invalid provision, and such valid provision will be deemed effective retroactively to the date hereof. 15.6 Jurisdiction and Governing Law. This Agreement shall be interpreted, construed and governed in accordance with the laws of the State of Texas, without regard to principles of conflicts -of -law or choice of law principles. 15.7 Publicity. No publicity (e.g., press releases or other public disclosures) regarding the existence of this Agreement shall be TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 7 of 14 permitted without each Party's prior express written consent except to the extent required by law, and in such case, in compliance with all applicable provisions hereof (e.g., subject to prior notice and cooperation on confidential treatment). The content and timing of any press releases and all other publicity regarding the subject matter of this Agreement or Purchaser's relationship with FiberLight, if authorized, shall be mutually agreed upon by the Parties. 15.8 Headings and Construction. The headings of the Sections in this Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the content of this Agreement as set forth in the body of this Agreement. The singular herein shall include the plural, and the plural herein shall include the singular, where appropriate. 15.9 Counterparts and Amendments. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute the one and the same agreement. This Agreement may not be amended or otherwise altered except by written agreement between the Parties hereto. 15.10 Relationship of the Parties/Non-Exclusivity. The relationship between Purchaser and FiberLight shall not be that of partners, agents, joint venturers, employee relationship, or franchise for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency or such other agreement between them for any purpose, including but not limited to federal income tax purposes. Purchaser and FiberLight, in performing any of their obligations hereunder, acknowledge and agree that the relationship arising from this Agreement is one of independent contractors or independent parties and shall discharge their contractual obligations at their own risk. Nothing in this Agreement shall prevent either Party from entering into similar arrangements with, or otherwise providing services to, any other person or entity. Without limiting the generality of the foregoing, Purchaser expressly acknowledges that FiberLight may sell, convey transfer, maintain, and operate the Shared Cable System in its sole discretion, including transfers of shares within the same -shared conduit lines. 15.11 Entire Agreement. All Exhibits and attachments to this Agreement are hereby incorporated herein and therein as an integral part of this Agreement and supersedes all agreements previous to this Agreement with regard hereto between FiberLight and Purchaser. In the event of an express conflict between the provisions of this Agreement and those of any Statement of Work, the provisions of the Statement of Work shall prevail. [signatures appear on the follonving page) TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 8 of 14 IN WITNESS WHEREOF, FiberLight, and Purchaser, confirming their consent to the terms and conditions contained in this Agreement and intending to be legally bound hereby, have executed this Agreement as of the dates set forth below. FIBERLIGHT, LLC [INSERT PURCHASER'S NAME] By: By:A&I'" Ct Name: Name: Amanda PeGar, Title: Title: 0Lj1, AAojer Date: Date: 2 /z 7/z O Z O TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 9 of 14 ATTACHMENT A — ACCEPTANCE TEST PLAN 1. INTRODUCTION 1.1 This Acceptance Test Plan is the criteria by which FiberLight demonstrates that the Purchaser's Cable System is ready for use. Upon successful completion of this Acceptance Test Plan, and in accordance with the provisions set forth in the Agreement, Purchaser shall accept the Purchaser's Cable System. 1.2 Unless specifically noted otherwise, the capitalized terms in this document have the same meaning as those set forth in the Agreement to which this document is an attachment. 2. PERFORMANCE TESTING The following performance tests are conducted upon completion of installation and splicing of fiber optic cables to ensure signal quality. 2.1 SPLICE TESTING FiberLight requires bi-directional OTDR (Optical Time Domain Reflectometer) testing of individual splices. To ensure acceptable splices prior to closing and sealing the splice case, FiberLight uses the OTDR to monitor all splicing activity as it is performed. Splice cases are sealed immediately after testing. This test is: 2.1.1 Mass Fusion OTDR Splice Test Every fiber at each mass fusion splice point will be tested bi-directionally at 1550nm with an OTDR capable of long range and high resolution testing. The maximum allowable individual splice loss is .35 dB bi-directionally averaged, and the fiber will be re -spliced up to 2 times, if the splice still exceeds .35 dB. However, if the average bi-directional splice loss of all splices across the entire tested span is .2 dB or less, then the individual splice loss of .35 dB or greater will be acceptable. 2.1.2 Single Fusion OTDR Splice Test Every fiber at each single fusion splice point will be tested bi-directionally at 1550nm with an OTDR capable of long range and high resolution testing. The average splice loss of all individual splices, where a mass fusion splice machine is not used, in a span cannot exceed the FiberLight NT loss standards of 0.15 dB bi-directionally averaged. Individual splice losses are the average of the OTDR splice loss measurements made in both directions. 2.2 FIBER OPTIC CABLE TESTING 2.2.1 FiberLight performs various tests on spliced and terminated fiber optic cable spans to ensure fiber optic cables are working according to cable manufacturers specifications, including -one end -to -end power test in both directions at the 1550nm wavelength on terminated fiber and one end -to -end OTDR test for each fiber in both directions at the 1550nm wavelength on all fiber ends. 2.2.2 Mass Fusion OTDR Splice Test Every fiber in a segment span will be tested bi-directionally at 1550nm with an OTDR capable of long range and high resolution testing. The maximum allowable individual splice loss is .35 dB bi- directionally averaged, and the fiber will be re -spliced up to 2 times, if the splice still exceeds .35 dB. However, if the average bi-directional splice loss of all splices across the entire tested span is .2 dB or less, then the individual splice loss of .35 dB or greater will be acceptable. 2.2.3 Single Fusion OTDR Splice Test Every fiber in a segment span will be tested bi-directionally at 1550nm with an OTDR capable of long range and high resolution testing. The average splice loss of all individual splices, where a mass fusion splice machine is not used, in a span cannot exceed the loss standards of 0.15 dB bi-directionally averaged. Individual splice losses are the average of the OTDR splice loss measurements made in both directions. 2.2.4 End -to -End Test Every fiber of each terminated span is tested in both directions from end -to -end using a 1550nm stabilized light source and power meter. The total loss of any span shall not exceed the maximum loss per span as calculated below. TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 10 of 14 [Two (2) connector x .60] + [(#) of splices x. 2 db] + [specified cable loss per km x length of cable in km] = maximum acceptable loss 2.2.5 Bi-directional OTDR Span Test A signature trace of each fiber will be taken in each direction at 1550nm with an OTDR capable of long range and high resolution testing. EXHIBITS TO THE ATP INCLUDE FORMS FOR: 0 3.1 Bi-Directional Report, Exhibit 1. • 3.2 Power Meter Testing Results, Exhibit 2. 0 3.3 System Acceptance Notice, Exhibit 3. TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 11 of 14 Fiberl-ight Customer Name Project Name Reference: FEFE0373RC Exhibit 1 to ATP Example - Bi-Dir Splice Loss Summary Report Cable: Trace List: FEP76550401.TRL Correlation % : 5.00 01/15/07 --> Length : 69374 ft Wavelength(nm) : 1550 Cable: <-> Splice Number! -> Loc(kft) / -> Loc(kfl) 001 002 003 004 005 006 007 008 009 010 Fiber 7.39 20.36 22.91 31.19 45.64 46.94 57.75 65.61 67.75 68.54 End - Number 61.98 49.01 46.47 38.18 23.74 22.44 11.62 3.77 1.62 0.83 Avg Min Max End(dB) 037 -0.02 -0.01 0.03 0.01 0.02 0.00 -0.01 0.01 0.02 0.00 0.00 -0.02 0.03 4.11 038 0.01 0.01 0.01 0.03 0.01 0.01 0.01 0.00 0.10 0.03 0.02 0.00 0.10 4.38 039 -0.01 0.01 0.04 0.06 0.10 0.06 -0.01 0.02 0.01 0.20 0.05 -0.01 0.20 4.46 040 0.01 0.03 0.11 0.03 0.04 0.01 0.01 -0.00 0.02 0.01 0.03 -0.00 0.11 4.46 Average -0.00 0.01 0.05 0.03 0.04 0.02 -0.00 0.01 0.04 0.06 0.03 4.35 Min -0.02 -0.01 0.01 0.01 0.01 0.00 -0.01 -0.00 0.01 0.00 -0.02 4.11 Max 0.01 0.03 0.11 0.06 0.10 0.06 0.01 0.02 0.10 0.20 0.20 4.46 Purchaser's Name v05.14.08 Contract Number: FPA-1000-00-08 Page 12 of 14 Exhibit 2 to ATP -i1)erLight FiberLigi�1-1 Power Meter Test / C-inuir Check Off Sheet Site A Site B Coait-ity Test ? Y of N Trpe of ContinnitC Test VFL War 1--g>th Fib- Tcpe #� of Span Spil-, Optical Length (i.n ) 1 Fib- # A to B ldb;. B to A (db) Avezage End -to -End Los (db7 Acezap Span Loss (db/i:ai. 0 0.000 _ 0 0.000 0 0.000 - 0 0.000 9 0 0.000 6 0 0.000 7 0 0.000 S 0 0.000 9 0.000 10 0 0.000 11 0 0.000 12 0 0.000 13 0 0.000 14 0 0.000 15 0 0.000 16 0 0.000 2 + 0 0.000 1 S 0 0.000 19 0 0.000 20 0 0.000 21 0 0.000 22 0 0.000 23 0 0.000 24 0.000 25 0 0.000 26 0 0.000 - 0 0.000 23 0 0.000 29 0 0.000 30 0 0.000 31 0 0.000 32 0 0.000 33 0 0.000 34 0 0.000 35 0 0.000 36 0 0.000 TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 13 of 14 Exhibit 3 to ATP System Acceptance Notice By signature affixed below FIBERLIGHT, LLC ("FiberLight") hereby officially notifies The Town of Westlake (Purchaser) that the Purchaser's Cable System Services purchased by Purchaser, pursuant to the Fiber Purchase Agreement between Purchaser and FiberLight dated 21271 , 2020 ("Agreement"), and described as follows: The Purchaser's Cable System was successfully completed by FiberLight on . 2020; and on that date, the measured test results met the parameters of the Specifications for the Purchaser's Cable System as set forth in said Agreement. Accordingly, for purposes of the Agreement, the Acceptance Date shall be the above stated ATP completion date. Signed and Acknowledged without exception: FIBERLIGHT, LLC INSERT PURCHASER'S NAME_, By: By:41 ,G Name: Name: /J yna1)cEa De6an Title: Title: Date: Date: 212 7 12 0 2 U Please execute and return one original to Attention: Legal Department FIBERLIGHT, LLC 11700 Great Oaks Way, Suite 100 Alpharetta, GA 30022 TOWN OF WESTLAKE, TEXAS Contract Number: FPA-00013430 Page 14 of 14 OUTSIDE PLANT SERVICES FIBER MAINTENANCE AGREEMENT BY AND BETWEEN FIBERLIGHT, LLC AND TOWN OF WESTLAKE DATED AS OF FEBRUARY 27 , 2020 Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 1 of 13 ��� FIBER OUTSIDE PLANT SERVCES FIBER MAINTENANCE AGREEMENT This Outside Plant Services Fiber Maintenance Agreement (the "Agreement") is made and entered by and between FiberLight, LLC, with offices located at 11700 Great Oaks Way, Suite 100, Alpharetta, Georgia 30022 (hereafter "FiberLight") and City of Westlake, Texas with offices located at 1500 Solana Blvd., Building 7, Suite 7200, Westlake, Texas 76262 (hereafter "Purchaser") (each of FiberLight and Purchaser, a "Party" and, collectively, the "Parties"). 1. GENERAL 1.1 FiberLight and Purchaser has purchased certain fiber optic cable as described in the applicable Statement of Work ("Cable System"). In accordance with the purchase of the Purchaser's Cable System, FiberLight agree to provision services consisting of routine maintenance, emergency restoration, locate services, tie-in services, and access rights to the Purchaser and Purchaser agrees to the relocation, condemnation, and access policies applicable to Purchaser's Cable System. 1.2 FiberLight shall notify Purchaser in advance of planned or intrusive activities on Purchaser's Cable System that may impair or eliminate signal continuity. Intrusive cable activities are those which will require FiberLight to directly handle Purchaser's fiber, ribbon or buffer tube and are typically scheduled during the "off-peak" hours (typically 6 PM to 6 AM local time). FiberLight will use commercially reasonable efforts to perform intrusive activities outside of off-peak hours, but reserves the right to perform intrusive activities at any time with seventy-two (72) hours prior notice. Emergency repairs are not subject to the seventy-two (72) hour notification requirement. Non -intrusive cable activities and all other maintenance measures which do not physically expose Purchaser's buffer tube, ribbon or fiber may be performed during regular business hours. 1.3 FiberLight maintains a twenty-four (24) hour help desk ("Customer Care Center" or "NOC") to service requests made under this Agreement. When Purchaser has a service request that falls under the scope of this Agreement, it will call the Customer Care Center via a toll -free number to be provided to Purchaser. The Customer Care Center will open a service ticket for the work to be performed. The Customer Care Center will track the service ticket until the service request has been satisfactorily completed. The number is 1-800- 672-0181. 1.4 FiberLight uses advanced fiber testing systems which continuously monitor and analyze the performance of the Cable System in an itemized, point by point, process and performs Optical Time Domain Reflectometer (OTDR) on inactive FiberLight maintenance fibers to ensure that microbends are not being introduced into the Cable System. OTDR readings are used to find potential problems, such as pinched or twisted fiber, tight coils, tight overlash, or rubbing cable, FiberLight uses an OTDR capable of reading a .05dB loss level and documents all test results. This reading is dependent upon the OTDR average time, pulse width and span strength. 2. Cable System Maintenance 2.1 Routine Maintenance. FiberLight will perform routine maintenance (i.e. maintenance not made necessary by natural disasters, impairment of the Cable System or other emergency situations) on the Cable System. Elements of routine maintenance include inspections of the Cable System, maintenance on the general construction of the Cable System, changes to the manholes or handholes appurtenant to the Cable System and general upkeep of the Cable System. Inspections of the Cable System include: 2.1.1 Annual Inspection. FiberLight conducts an annual inspection of the Use of the facilities adjacent to Cable System and contained with the conduit adjacent to the Cable System which FiberLight and Purchaser hold an undivided interest in (the "Shared Cable System"), which includes inspection of the manholes/handholes, pole footings, loose or damaged hardware, and checking for code violations and change -outs. In addition, FiberLight inspects the Shared Cable System path at least quarterly by walking or driving the route to ensure that potentially harmful activities do not cross or parallel the Shared Cable System. Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 2 of 13 �� FIBER 2.1.2 Signs. FiberLight maintains sign posts along the Shared Cable System path with its "800" phone number. These markers clearly identify the route and are typically placed near splice locations, points where the route changes direction, and typically within 1,000 feet of the previous marker or where applicable. FiberLight is also limited in the types of signage that the governing jurisdiction permits or requires. 2.1.3 Locate Services. FiberLight subscribes to local utility locate services for the Cable System. FiberLight maintains contact with local utility companies and economic development planners to obtain accurate, current information about street widening and pole change -out projects. FiberLight responds to local, state, or federal authorities for compliance or cooperation with utility locate services. Upon notification, FiberLight will mark the Cable System for utility development, general construction, and landscaping in the area and will coordinate, and execute routine and emergency locates (regardless of how they are received —by telephone, computer, actual observation, etc.). 2.2 Emergency Restoration and/or Repair 2.2.1 Upon notification by Purchaser, detection by FiberLight, or a local emergency authority that Purchaser's Cable System is damaged, impaired or not functioning, FiberLight will make commercially reasonable efforts to respond to requests for emergency restoration within two (2) hours. However, response times may be adversely affected by conditions outside of the control of FiberLight, including, but not limited to Force Majeure events as described in Section 8 hereto. FiberLight will ensure that specific preparations are made to maintain the readiness and accessibility of the personnel, materials and equipment required for response to emergency restoration conditions. 2.2.2 FiberLight will be responsible for all temporary and permanent repairs to Purchaser's Cable System and appurtenances thereto and will coordinate all aspects of both temporary and permanent restoration activities. FiberLight will provide emergency escalation lists upon request. 2.2.3 FiberLight personnel will take the lead in coordinating all aspects of both temporary and permanent restoration activities and FiberLight will maintain contracts to have the appropriate personnel, material and equipment on call all the time. Mobilization and response time goals are less than two (2) hours. 2.2.4 When a temporary cable is used for repair, FiberLight will make commercially reasonable effort to restore all "assigned" fibers as a priority. All activities will be coordinated by FiberLight to ensure that all parties have the safest and most efficient repair. 3. ADDITIONAL SERVICES AND OPERATIONS The following are services FiberLight may perform, but which are not covered by the Maintenance Fee: 3.1 Tie -In Services. FiberLight's tie-in services include planning, support and project management and cable splicing services. Tie-in services are required for all customers that want to connect fiber cables from laterals into the FiberLight backbone. Tie In Services will not be performed until FiberLight receives the executed System Acceptance Notice. If Purchaser utilizes the network for other then testing purposes this usage will deem acceptance. FiberLight will provide basic planning support for lateral connection operations. The routine tie-in service does not cover conditions relating to emergency outages of service or routine locate and maintenance, unless FiberLight owns the lateral connection. Unless the Purchaser designates a specific location for demarcation between the Purchaser's Cable System and Purchaser's network, FiberLight will engineer and design the most efficient location for demarcation between the Cable System and Purchaser's network. FiberLight will coordinate the placement of a demarcation manhole/handhole or a building demarcation point for fiber lateral connections. Purchaser shall pay the specific splicing or tie-in charges and the appropriate labor charges set forth in Attachment A — Splicing Matrix. 3.2 Splicing_ Cable splicing services at the backbone include accessing the cable, preparing the splice enclosure, preparing the fibers for splicing, fusion splicing the fibers, installing and dressing the fibers and splices in the Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 3 of 13 \� FIBER..: 2.1.2 Sins. FiberLight maintains sign posts along the Shared Cable System path with its "800" phone number. These markers clearly identify the route and are typically placed near splice locations, points where the route changes direction, and typically within 1,000 feet of the previous marker or where applicable. FiberLight is also limited in the types of signage that the governing jurisdiction permits or requires. 2.1.3 Locate Services. FiberLight subscribes to local utility locate services for the Cable System. FiberLight maintains contact with local utility companies and economic development planners to obtain accurate, current information about street widening and pole change -out projects. FiberLight responds to local, state, or federal authorities for compliance or cooperation with utility locate services. Upon notification, FiberLight will mark the Cable System for utility development, general construction, and landscaping in the area and will coordinate, and execute routine and emergency locates (regardless of how they are received —by telephone, computer, actual observation, etc.). 2.2 Emergency Restoration and/or Repair 2.2.1 Upon notification by Purchaser, detection by FiberLight, or a local emergency authority that Purchaser's Cable System is damaged, impaired or not functioning, FiberLight will make commercially reasonable efforts to respond to requests for emergency restoration within two (2) hours. However, response times may be adversely affected by conditions outside of the control of FiberLight, including, but not limited to Force Majeure events as described in Section 8 hereto. FiberLight will ensure that specific preparations are made to maintain the readiness and accessibility of the personnel, materials and equipment required for response to emergency restoration conditions. 2.2.2 FiberLight will be responsible for all temporary and permanent repairs to Purchaser's Cable System and appurtenances thereto and will coordinate all aspects of both temporary and permanent restoration activities. FiberLight will provide emergency escalation lists upon request. 2.2.3 FiberLight personnel will take the lead in coordinating all aspects of both temporary and permanent restoration activities and FiberLight will maintain contracts to have the appropriate personnel, material and equipment on call all the time. Mobilization and response time goals are less than two (2) hours. 2.2.4 When a temporary cable is used for repair, FiberLight will make commercially reasonable effort to restore all "assigned" fibers as a priority. All activities will be coordinated by FiberLight to ensure that all parties have the safest and most efficient repair. 3. ADDITIONAL SERVICES AND OPERATIONS The following are services FiberLight may perform, but which are not covered by the Maintenance Fee: 3.1 Tie -In Services. FiberLight's tie-in services include planning, support and project management and cable splicing services. Tie-in services are required for all customers that want to connect fiber cables from laterals into the FiberLight backbone. Tie In Services will not be performed until FiberLight receives the executed System Acceptance Notice. If Purchaser utilizes the network for other then testing purposes this usage will deem acceptance. FiberLight will provide basic planning support for lateral connection operations. The routine tie-in service does not cover conditions relating to emergency outages of service or routine locate and maintenance, unless FiberLight owns the lateral connection. Unless the Purchaser designates a specific location for demarcation between the Purchaser's Cable System and Purchaser's network, FiberLight will engineer and design the most efficient location for demarcation between the Cable System and Purchaser's network. FiberLight will coordinate the placement of a demarcation manhole/handhole or a building demarcation point for fiber lateral connections. Purchaser shall pay the specific splicing or tie-in charges and the appropriate labor charges set forth in Attachment A — Splicing Matrix. 3.2 Splicing, Cable splicing services at the backbone include accessing the cable, preparing the splice enclosure, preparing the fibers for splicing, fusion splicing the fibers, installing and dressing the fibers and splices in the Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 3 of 13 ��� FIBER 4. PURCHASER ACCESS TO CABLE SYSTEM To insure overall system integrity, a FiberLight representative will perform and inspect any intervention with the backbone cable fibers, cable, conduits, manholes, handholes, aerial plant, splice cases, strand, pole attachments, bridge attachments and related appurtenances. Purchaser or a FiberLight approved contractor may perform, under the supervision of a FiberLight representative construction of a manhole when Purchaser installs a meet me manhole to be used as a demarcation point between the Purchaser's and FiberLight's network, terminating Purchaser -provided jumpers, coordinating the fiber assignment and inspection at a third parry's manhole including, but not limited to, Purchaser verifying that Purchaser's Cable System has met the requirements of the ATP. The ATP supervision will not be billable. FiberLight will provide inspectors at commercially billable rates with a 4-hour minimum. All work performed on the backbone cable system, fibers, conduits, manholes, handholes, aerial plant, splice cases, strand, pole attachments, bridge attachments and related appurtenances will be performed by FiberLight. Notwithstanding any of the foregoing, Purchaser shall have the right to be present during the performance of any maintenance activity hereunder so long as this requirement does not interfere with FiberLight's ability to perform its obligations under this Agreement. 5. FEES AND TERMS OF PAYMENT 5.1 Fees. The Annual Maintenance Fee and Monthly Location Access Fee shall be identified on the applicable SOW and shall be payable to FiberLight in accordance with the applicable SOW. The Maintenance Fee for partial years shall be pro -rated. Commencing on the first day of February in the second year of the term of this Agreement, FiberLight may, upon thirty (30) days prior written notice to Purchaser, adjust the annual Maintenance Fee, provided, however, that in no event shall any such adjustment result in an increase over the previous year that exceeds the increase in the Consumer Price Index (up to a maximum of 59/6) for the same period. 5.2 Incident Cost. In addition to the Maintenance Fee, in the event FiberLight incurs costs exceeding One Thousand Dollars ($1,000.00) in any one incident requiring emergency repair or service restoration to Purchaser's Cable System ("Incident Cost"), and the need for such repair or restoration is not attributable in whole or in part to the negligence or other fault of FiberLight, then in addition to the Maintenance Fee, Purchaser shall also pay its pro rata share of such Incident Cost. For purposes of this subsection, "pro rata" shall mean the proportion that the number of fibers in the Purchaser's Cable System bears to the total number of fibers in the Shared Cable System at the location at which the Incident Cost is incurred. 5.3 Fees for Additional Services. Purchaser shall pay additional fees to FiberLight for additional services performed by FiberLight, which additional services are set forth in Section 3 hereto. 5.4 Notwithstanding anything to the contrary, no payment due hereunder is subject to reduction, set-off or adjustment of any nature by Purchaser. The sums required to be paid by Purchaser under this Agreement are exclusive of sales, use, excise, transfer, ad valorem, franchise or other similar taxes that may be imposed with respect to this Agreement or any of the services provided or used hereunder and Purchaser shall promptly pay or reimburse FiberLight for any such taxes. Purchaser shall have no responsibility for income or other similar taxes due from FiberLight which result from this transaction or which are assessed on revenues received by FiberLight. With respect to property taxes, the party that owns the property which is subject to such a tax at the time the tax accrues shall pay such property taxes. 5.5 FiberLight may charge Purchaser a one and one half percent (1.5%) monthly finance charge or the maximum allowed by law, whichever is less, for all outstanding amounts not paid within thirty (30) days following the date those amounts become due. G. WARRANTIES FiberLight warrants that it is able to furnish the materials, supplies, services, equipment and labor required to perform its obligations under this Agreement and has sufficient experience and competence to do so. EXCEPT AS SET FORTH ABOVE, FiberLight MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LIMITATION OF LIABILITY Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 5 of 13 \� FIBER NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER 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, RECORDS, DATA OR EQUIPMENT, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT (FOR THE PURPOSE OF THIS SECTION, NOTWITHSTANDING ANYTHING TO THE CONTRARY, LOST PROFITS, REVENUE OR OTHERWISE, SHALL NOT INCLUDE DIRECT DAMAGES WITH RESPECT TO ANY AMOUNTS DUE AND OWING FIBERLIGHT UNDER THIS AGREEMENT), 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 PURCHASERS OR THIRD PARTIES IN CONNECTION WITH THEIR USE OF THE SHARED CABLE SYSTEM, EXCEPT IN THE EVENT EITHER PARTY IS FOUND LIABLE ON THE BASIS OF GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT. NOTHING HEREIN SHALL PREVENT EITHER PARTY FROM PURSUING THIRD PARTY CLAIMS WHICH ACT TO INTERFERE WITH THE INTEGRITY OF THE AFFECTED PARTY S NETWORK, AND THAT THE PARTIES AGREE TO ASSIGN ANY RIGHTS OR CLAIMS, EXECUTE ANY REASONABLY APPROPRIATE DOCUMENTS AND TAKE ANY OTHER STEPS THAT MAY BE REASONABLY NECESSARY TO ENABLE THE AFFECTED PARTY TO PURSUE ANY SUCH ACTION AGAINST SUCH THIRD PARTY. FORCE MWEURE Neither Party will be in default under this Agreement to the extent it is delayed or prevented from performing its obligations hereunder because of any acts of God; fire; flood; natural disaster; adverse weather conditions; change in governmental codes, ordinances, laws, rules, restrictions or regulations; condemnation or exercise of rights of eminent domain; war or civil disorder; strike or other labor problems; accidents; fiber cuts; material or facility shortages or unavailability or other delay in delivery; lack of or delay in transportation; or any other cause beyond the reasonable and foreseeable control of the Party (each a "Force Majeure"). In the event of a Force Majeure, the Party whose performance is delayed shall use commercially reasonable efforts to mitigate and avoid continuation of Force Majeure so as to recommence timely performance as soon as practicable. If an event of Force Majeure occurs, the time for performance or delay will be extended for the duration of the condition. Notwithstanding the foregoing, if an event of Force Majeure occurs and persists for sixty (60) days or more and a Party delays performance as a result, the non - delaying Party may terminate this Agreement without liability and receive a refund of any pre -paid amounts paid hereunder (if any). 9. CONFIDENTIALITY Each Party to this Agreement, its affiliates, agents, contractors and subsidiaries and its and their officers, directors, employees and agents receiving information from the other Party clearly indicated to be proprietary and confidential by a label, legend or other notice or is otherwise reasonably identifiable as confidential or proprietary information (including without limitation, blueprints, as -built drawings, business plans, customer data, network information or pricing) ("Confidential Information") will keep such Confidential Information in confidence and will not copy or disclose or permit others to copy or disclose such Confidential Information to any individual other than the directors, officers and employees of such Party or agents of such Party who need to know and who have agreed in writing to the confidentiality provisions of this Agreement which shall survive for a period of three (3) years from the Acceptance Date or the date the Confidential Information is provided to the receiving Party, whichever is greater, unless the Confidential Information constitutes a "trade secret" in which case the receiving Party must comply with the foregoing restrictions for as long as applicable law allows. All such Confidential Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party, and 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. Notwithstanding the foregoing, neither Party will be required to keep confidential any information that (1) becomes publicly available other than through the receiving Party; (2) is required to be disclosed pursuant to a governmental or judicial rule, order, or regulation, provided that the receiving Party notifies the disclosing Party in advance of the pending disclosure so as to enable the disclosing Party to seek appropriate protective relief; (3) the receiving Party independently develops; (4) becomes available to the receiving Party without restriction from a third Party that has the legal right to disclose such information; or (5) is required by the receiving Party's lender and given to such lender on a confidential basis with the Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 6 of 13 ��� FIBER delivering Party's consent. 10 TERMINATION AND DEFAULT 10.1 The term of this agreement shall begin on the Effective Date and shall run until the earlier to occur of (i) ten (10) years following the Effective Date, or (ii) the termination of this agreement as set forth below. 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. 10.2 The occurrence of any of the following will constitute a default under this agreement by the relevant Party: 10 2.1 A Party fails to pay any amount which is undisputed to be due under this agreement and fails to pay such amount within thirty (30) days after such Party receives written notice of such failure to pay; 10.2.2 A Party breaches a material provision of this agreement, other than the payment of money, and fails to cure such breach within thirty (30) days after such Party receives written notice of such breach, or if such breach is not capable of cure within such thirty (30) day period, and the breaching Party fails to commence to cure such default or diligently pursue completion of such cure during and after such thirty (30) day period; or 10.2.3 A Party makes a general assignment for the benefit of creditors or files a voluntary petition in bankruptcy, or a petition in bankruptcy or other insolvency protection is filed against either Party which is not dismissed with a finding in such Party's favor within ninety (90) days thereafter, or any petition or answer is filed seeking, consenting to, or acquiescing in reorganization, liquidation, dissolution or similar relief, or either Party's inability to pay its debts as they mature; or 10.3 Upon a default by the other Party, the non -defaulting Party may terminate this agreement by providing the defaulting Party ten (10) days prior written notice of its intent to terminate and may pursue any and all legal remedies it may have under applicable law, or principles of equity relating to such breach. Since a breach of a material obligation may cause irreparable harm for which monetary damages may be inadequate, in addition to other available remedies, the non -breaching Party may seek injunctive relief for any breach or default hereof. 10.4 The rights and remedies of the Parties provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or elsewhere in this agreement. 10.5 Intentionally omitted. 11. MISCELLANEOUS 11.1 Notices. Except as otherwise provided herein, any notice required pursuant to this agreement shall be in writing, transmitted to the Parties' addresses specified below or such other addresses as may be specified by written notice, and will be considered given either when deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; or delivered to a nationally recognized overnight courier service:: If to FiberLight: FIBERLIGHT, LLC 11700 Great Oaks Way, Suite 100 Alpharetta, Georgia 30022 Attention: Legal If to Purchaser: TOWN OF WESTLAKE 1500 Solana Blvd. Building 7, Suite 7200 Westlake, Texas 76262 11.2 Assignment. This Agreement shall be binding on Purchaser and its respective Affiliates, successors, and assigns. This Agreement shall not be assignable without the express written consent of the other Party, which Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 7 of 13 ��� FIBER shall not be unreasonably withheld, conditioned, or delayed. In the event a Party assigns this Agreement to a legal successor, it shall so notify the other Party within ten (10) days of the assignment. 11.3 Waiver. The terms, covenants, representations and warranties of this Agreement may be waived only by a written instrument executed by the Party expressly waiving compliance hereunder. Except as otherwise provided for herein, neither Parry's failure, at any time, to enforce any right or remedy available to it under this Agreement shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder. 11.4 Judicial Interpretation. If this Agreement requires judicial interpretation, then Purchaser and FiberLight stipulate that the court should not construe the terms of this Agreement more strictly against the party preparing this Agreement, because both Purchaser and FiberLight have sought and received advice of counsel to the extent that each deems necessary for full understanding of all the consequences of these terms and conditions. 11.5 Severability. If any provision of this Agreement is found to be illegal or otherwise invalid, then the validity of the remaining provisions will not be impaired. Purchaser and FiberLight will attempt to replace any invalid provision with a valid provision having substantially the same commercial effect as the invalid provision, and such valid provision will be deemed effective retroactively to the date hereof. 11.6 Jurisdiction and Governing Law. This Agreement shall be interpreted, construed and governed in accordance with the laws of the State of Texas, without regard to principles of conflicts -of -law or choice of law principles. 11.7 Pubhci1y. No publicity (e.g., press releases or other public disclosures) regarding the existence of this Agreement shall be permitted without each Party's prior express written consent except to the extent required by law, and in such case, in compliance with all applicable provisions hereof (e.g., subject to prior notice and cooperation on confidential treatment). The content and timing of any press releases and all other publicity regarding the subject matter of this Agreement or Purchaser's relationship with FiberLight, if authorized, shall be mutually agreed upon by the Parties. 11.8 Headings and Construction. The headings of the Sections in this Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the content of this Agreement as set forth in the body of this Agreement. The singular herein shall include the plural, and the plural herein shall include the singular, where appropriate. 11.9 Counterparts and Amendments. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute the one and the same agreement. This Agreement may not be amended or otherwise altered except by written agreement between the Parties hereto. 11.10 Relationship of the Parties/Non-Exclusivity. The relationship between Purchaser and FiberLight shall not be that of partners, agents, joint venturers, employee relationship, or franchise for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency or such other agreement between them for any purpose, including but not limited to federal income tax purposes. Purchaser and FiberLight, in performing any of their obligations hereunder, acknowledge and agree that the relationship arising from this Agreement is one of independent contractors or independent parties and shall discharge their contractual obligations at their own risk. Nothing in this Agreement shall prevent either Party from entering into similar arrangements with, or otherwise providing services to, any other person or entity. Without limiting the generality of the foregoing, Purchaser expressly acknowledges that FiberLight may sell, convey transfer, maintain, and operate the Shared Cable System in its sole discretion, including transfers of shares within the same -shared conduit lines. 11.11 Entire Agreement. All Exhibits and attachments to this Agreement are hereby incorporated herein and therein as an integral part of this Agreement and supersedes all agreements previous to this Agreement with regard hereto between FiberLight and Purchaser. In the event of an express conflict between the provisions of this Agreement and those of any Statement of Work, the provisions of the Statement of Work shall prevail. Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 8 of 13 ��� FIBER IN WITNESS WHEREOF, FiberLight, and Purchaser, confirming their consent to the terms and conditions contained in this Agreement and intending to be legally bound hereby, have executed this Agreement as of the dates set forth below. FIBERLIGHT, LLC [INSERT PURCHASER'S NAME] By: By: Axgo� Name: Name: !'YIGIr►GlQ e n Title: Title: i o lh �una5 C-C Date: Date: 2I27I 2-oa0 Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 9 of 13 ��� FIBER Attachment A — Splicing Matrix FIberLight Splice Only Matrix Brief Description of Work Customer city I Order # Trbl Mngmt # S 1 Loc. OPS MGR. Requester Cust PO # Date Due Date Comp Qty (# of Item Splice Locations Locations) Unit Price Price A Existing manhole /without splice closure /slack coil only S 1,162.00 S B Existing manhole /with splice closure $ 742.00 $ C OCEF / new or existing in EUB S 651.00 $ D Meet -me manhole /without demark fiber cable $ 1,722.00 $ E Meet -me manhole /with existing demark fiber cable & closure I S 812.00 S Subtotal $ Qty (# of Item Fibers to be Spliced per Location Locations) Unit Price Price F 001 to 012 fibers spliced S 812.00 $ G 013 to 024 fibers spliced S 1,162.00 S H 025 to 036 fibers spliced $ 1,519.00 $ 1 037 to 048 fibers spliced S 1,876.00 S J 049 to 060 fibers spliced S 1,960.00 $ K 061 to 072 fibers spliced $ 2,254.00 S L 073 to 084 fibers spliced $ 2,555.00 $ M 085 to 096 fibers spliced $ 2,947.00 $ N 097 to 106 fibers spliced S 3,276.00 S 0 109 to 120 fibers spliced S 3.416.00 S P 121 to 132 fibers spliced $ 3,605.00 S Q 133 to 144 fibers spliced $ 3,934.00 S Subtotal S G L ACCOUNT NUMBER (office use only) - -BASE 4400 + below 1 ATL = 50-201 [ ] SoFL = 52-202 [ ] TAM = 54.203 [ ] DFNJ = 56-401 [ ] HOU = 56-101 [ ] WDC = 60-100 [ ] TOTAL PRICE S - P erarer muc lace an "x" in the a n rn ate hoz IX E-0e'Cus;amer puch:r;es8 dr;«mtinapad-p'Y.h Imcr:oryNerd andreque;t5`-Wkm9sc*Mce31a Corne(1Ia Iheu84r oftl:n11MrmIlm L.aG bwrt CViam [+e:E(rs-SIn Ilse warty mllmn :cr Item B antl =� In the q.:3r:,Iy cotxnn br Item r. (MI'oLigh 8 Me, ara 4tbced Inla a !hers, the INM num ber at t.0 s V 4M 13 8, net 16.) (Last Update 05124f2005. Prices subject to change without notice. FiberLight,LLC) Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 10 of 13 ��� FIBER Attachment B — Inspection Services Laterals will be built on an as requested basis and will be priced on an individual cases basis. 2. All times are based on local times, and will be billed at the following rates: Time Rates Billing Increments 8:00 AM to 5:00 PM Monday — Friday* $ 90.00/hour One (1) hour increments; Two (2) hour minimum 5:00 PM to 8:00 AM Monday— Friday** $ 115.00/hour One (1) hour increments; Three (3) hour minimum All Day Saturday and Sunday; Holiday $ 115.00/hour One (1) hour increments; Three (3) hour minimum Rates are subject to increase annually based on CPI Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 11 of 13 ��� FIBER ATTACHMENT C — MANHOLE LICENSE TERMS 1. MANHOLE LICENSE 1.1 FiberLight hereby grants to Purchaser a Manhole License, subject to the limitations and other provisions set forth herein this Agreement, to enter the Manholes to perform work only on the Purchaser's Cable System as defined and set forth in this Agreement. 1.2 The license granted herein is not exclusive, and FiberLight hereby reserves the right to grant, renew, or extend similar licenses to other Parties. 1.3 Nothing contained herein shall be construed as granting to Purchaser any property or ownership rights in the Manholes, or to create a partnership or joint venture between the Parties. 2. CUSTOMER WORK 2.1 Prior to the commencement of any work in or around the Manholes, Purchaser shall notify FiberLight in accordance with the terms set forth below. Purchaser shall, at its sole cost and expense, prepare and deliver to FiberLight complete working drawings, plans, and specifications (the "Plans") describing all proposed work. No such work shall commence until FiberLight has approved the Plans, which approval will not be unreasonably withheld or delayed. Except for emergencies, Purchaser shall give FiberLight not less than five (5) days' written notice prior to entering or performing work in or around the Manholes, provided that FiberLight may waive any such notice requirement in its sole discretion. In the event of an emergency, Purchaser shall endeavor to provide FiberLight with notice immediately prior to disturbing or working on the Manholes. FiberLight shall, in its sole discretion, have the right to have an authorized representative present during Purchaser's entry or work in or around the Manholes, whose presence shall be billed to Purchaser in accordance with the rates set forth in Attachment B — Inspection Services. Purchaser agrees that persons entering the Manholes on their behalf shall not step on, connect anything to, or otherwise come into contact with FiberLight's or any other Party's cables or any other equipment located in the Manholes. All notices required to be given shall be made through FiberLight's Customer Care Center as set forth in the Agreement. 2.2 In addition, Purchaser shall: 2.2.1 perform or cause to be performed all such work in accordance with the Plans and in a safe manner consistent with local construction standards and in compliance with applicable laws and codes; 2.2.2 perform or cause to be performed all such work in such a way as to minimize interference with the operation of FiberLight's or any other Customer's facilities in the Manholes; 2.2.3 obtain, prior to the commencement of any work, all necessary federal, state and municipal permits, licenses and approvals; and 2.2.4 not perform any splicing or store any excess cable within the Manholes except to the extent required to facilitate Purchaser's splicing activity into Purchaser -owned splice boxes, manholes, and handholes. 3. COVENANTS 3.1 Purchaser covenants and agrees: 3.1.1 to observe all reasonable rules and regulations set forth by FiberLight for the use of the Manholes, as amended from time to time, provided Purchaser has prior written notice of amendment; Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 12 of 13 ��� FIBER 3.1.2 to comply with all federal, state, and municipal laws, orders, rules, and regulations applicable to the Manholes; 3.1.3 not to disrupt, affect or interfere with FiberI.ight's or any other third parry's use of the Manholes; and 3.1.4 to be financially liable for the cost of repair or replacement of any conduits, cables, equipment or any other portion of the Manholes or the property of third parties that is damaged by Purchaser solely as a result of Purchaser performing work in or around the Manholes. 4. SAFETY PRECAUTIONS 4.1 When performing work under this license, Purchaser shall take any and all precautions reasonably necessary to help ensure the safety of traffic, persons, and property in and around the Manholes. These precautions include, without limitation, the following: 4.2 Purchaser shall test the Manhole's atmosphere for explosive or other hazardous conditions prior to entering or working in the Manholes and shall provide continuous ventilation to the Manholes while any work is being performed or any person is inside the Manholes; 4.3 Purchaser shall not permit smoking, the use of any open flame or the use of any spark producing equipment (such as meggers, breakdown sets, electric drills, electric hammers and induction sets) in the Manholes and explosion proof lighting shall be used when artificial lighting is required; 4.4 Purchaser shall not place any cover less than four (4) feet in height above the surface level of any Manhole opening, except for protective screens of the type normally used in connection with manhole work. 4.5 FiberLight may immediately terminate any of Purchaser's work operations in and around the Manholes; if, in FiberLight's sole reasonable discretion, Purchaser fails to exercise adequate safety precautions or otherwise permits an unsafe condition to exist. 5. PURCHASER FACILITIES FiberLight shall not be liable for damage, theft, misappropriation, or loss of any Purchaser facilities placed in or around the Manholes unless and to the extent caused by the negligent acts or willful misconduct of FiberLight, its agents, contractors, or employees. At the termination of the Agreement, Purchaser shall, at its sole cost and expense, remove its facilities and its personal property from in and around the Manholes and repair all damage caused by such removal. Any property not so removed within thirty (30) days after the expiration or termination of the Agreement may be removed by FiberLight, at Purchaser's expense, without liability to Purchaser for damages. G. INTERFERENCE If any Purchaser property or facilities cause or are likely to cause interference with any other facilities or equipment in or around the Manholes, FiberLight may require Purchaser to remove such facilities at Purchaser's sole expense. Town of Westlake, Texas v. 10.2018 Contract Number: OSP-00013435 Page 13 of 13