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Home My WebLink AboutIRU Agreement with Syringa Networks for fiber optic communications systemIRU AGREEMENT THIS IRU AGREEMENT ("IRU Agreement") is made and entered into as of the 15)4 day of October, 2013 by and between Syringa Networks, LLC, an Idaho limited liability company ("Syringa Networks") and the City of Meridian, an Idaho Municipal Corporation ("City"). The signatories to this IRU Agreement shall be referred to individually as the "Party" and collectively as the "Parties". RECITALS A. Syringa Networks has constructed a multi -conduit fiber optic communications system (the "Syringa Networks System") along the routes described in Exhibit A (the "Syringa Networks System Routes"). B. City desires to obtain the right to use certain dark fibers in the Syringa Networks System and within the Syringa Networks System Routes as designated on Exhibit A, connecting various points identified on Exhibit B, attached hereto and incorporated herein by this reference (the "City Fibers"). C. Syringa Networks desires to grant to City an indefeasible right to use the City Fibers upon and subject to the terms and conditions set forth below. D. Cify will operate and use the City Fibers and Syringa Networks will provide maintenance and repair services necessary to maintain the City Fibers and City will pay Syringa Networks for such services in accordance with the terms and conditions of a separate operations and maintenance agreement executed simultaneously herewith (the "O&M Agreement"). NOW THEREFORE, in consideration of the foregoing Recitals and the covenants and agreements set forth below, Syringa Networks and City hereby agree as follows: ARTICLE I DEFINITIONS For purposes of this IRU Agreement, words spelled with initial capital letters (other than proper names, section headings, and the beginnings of sentences) shall have the defined meanings set forth in the applicable provisions of this IRU Agreement or in this Article. 1.01 "Associated Property" shall mean the tangible and intangible property needed for the use of the City Fibers as permitted by this IRU Agreement, as and to the extent more particularly described in this IRU Agreement, including but not limited to all associated conduits, poles and underlying rights of Syringa Networks as necessary to effectuate this IRU Agreement, but excluding any electronic and/or optronic equipment. 1.02 "Authorizations" shall have the meaning set forth in Section 12.03. 1.03 "Costs" shall mean the actual, reasonable direct costs incurred by Syringa Networks when performing any work for City. 1.04 "Delivery Date" shall have the meaning set forth in Section 5.01. 1.05 "Demarcation Point" shall mean a point on one side of which is City's responsibility for liabilities, as between the Parties, ensuring connections, and paying for and installing equipment, termed premise side; the other side of the Demarcation Point shall be termed network side, the side of the Demarcation Point on which the cable is located prior to termination, and which is opposite to the premise side. 1.06 "City Fibers" shall have the meaning set forth in the Recitals. 1.07 "Interconnection Fee" shall mean any fees assessed by Syringa Networks to City for additional splice points other than initially agreed to Demarcation Points. 1.08 "IRU Effective Date" shall have the meaning set forth in Section 5.01. 1.09 "Governmental Authority" shall mean any federal, state, regional, county, city, municipal, local, territorial, or tribal government, whether foreign or domestic, or any department, agency, bureau or other administrative or regulatory body obtaining authority from any of the foregoing, including without limitation, courts, public utilities and other authorities. 1.10 "O&M Agreement" shall have the meaning set forth in the Recitals. 1.11 "Person" shall mean any natural person, corporation, partnership, limited liability company, business trust, joint venture, association, company, non-profit organization, or Governmental Authority. 1.12 "Syringa Networks System Routes" shall have the meaning set forth in the Recitals. 1.13 "Taxes" shall mean and include all taxes, fees, levies, imposed duties, charges or withholdings of any nature (including without limitation ad valorem, real property, gross receipts, taxes and franchise, license and permit fees), together with any penalties, fines or interest thereon arising out of the transactions contemplated by this IRU Agreement and/or imposed upon the Syringa Networks System, or any part thereof, by any Governmental Authority. 1.14 "Term" shall have the meaning set forth in Section 5.01. ARTICLE H IRU RIGHTS 2.01 On the terms and subject to the conditions set forth herein, upon the IRU Effective Date as defined in Section 5.01 below, Syringa Networks shall grant to City the exclusive, Indefeasible Right of Use ("IRU") for the purposes described herein in the City Fibers and an associated, nonexclusive right of use for the purposes and subject to the conditions described herein in the Associated Property. The IRU granted herein does not provide City any ownership interest or other rights to physically access, control, modify, or encumber in any manner, or other use of Syringa Networks' System Routes except as provided herein. Exhibit B identifies the number of fibers, approximate route mileage, and configuration of the City Fibers. Exhibit C specifies the consideration to be paid Syringa Networks for the IRU in the City Fibers. Nothing in this Agreement is intended to be construed in any manner or under any circumstances as constituting a lease or an executory contract within the meaning of Section 365 of the U.S. Bankruptcy Code (or any successor section thereto). ARTICLE III USE OF THE CITY FIBERS 3.01 Notwithstanding any other provision of this IRU Agreement to the contrary, the parties recognize that City's use of the City Fibers is governed by the terms of the O&M Agreement and City's sole access rights to the City Fibers shall be those explicitly stated within the O&M Agreement. To that end, City shall have no access to the City Fibers or the Syringa Networks System unless such access is authorized pursuant to the O&M Agreement. City and Syringa Networks agree to abide by the terms of the O&M Agreement for the IRU Term. ARTICLE IV CONSIDERATION 4.01 In consideration for this IRU Agreement and the IRU granted to City hereunder, City shall pay to Syringa Networks the sums as set forth in Exhibit C. The parties hereby agree that the IRU Fee specified in Exhibit C reflects the fair market value of the City Fibers as of the commencement of the Term. 4.02 In addition to all other remedies available to Syringa Networks hereunder, any sums not paid within sixty (60) days of the due date hereunder shall bear interest from the date due until paid in full at an annualized rate that is the lesser of 12% or the highest amount permitted by law for commercial transactions. ARTICLE V TERM 5.01 The IRU granted to City for the City Fibers identified in Exhibit B shall become effective on the day (the "IRU Effective Date") when 1) City has delivered a Notice of Acceptance, or upon Deemed Acceptance, as defined in the O&M Agreement, and 2) City has delivered the consideration as set forth in Exhibit C. Syringa Networks shall use best efforts to deliver the City Fibers for testing on or before June 30, 2014 (the "Delivery Date"). The term with respect to the IRU ("Term") shall commence on the IRU Effective Date, and shall continue for a period of twenty (20) years, unless properly abandoned in accordance with Section 5.02 below or terminated in accordance with this IRU Agreement. Following the expiration of the Term, City may elect to have this IRU Agreement renew for up to four (4) successive periods of five (5) years each (each a "Renewal Term") upon written notice to Syringa Networks not later than ninety (90) days prior to the expiration of the then current Term or Renewal Term; provided however, if Syringa Networks determines that the City Fibers have reached the end of their useful life (as determined by Syringa Networks in its sole discretion), then Syringa Networks shall provide notice to City that the Term or Renewal Term shall not be renewed. 5.02 In addition to any other rights that City may have under this IRU Agreement, if at any time during the Term City determines that, with respect to all or any portion of the City Fibers have reached the end of their useful life (as determined by City in its sole discretion), or City otherwise desires to not retain the IRU, at any time after full payment of the IRU Fee, City shall have the right to abandon all or such portion of the IRU by ninety (90) days written notice to Grantor. In the case of abandonment, this IRU Agreement shall terminate as to such portion abandoned, and City shall not be entitled to a refund of any of the IRU Fee paid. ARTICLE VI TITLE 6.01 Unless prohibited by law, Syringa Networks and City acknowledge and agree City shall have the exclusive right of use of the City Fibers, subject to the terms hereof. 6.02 Syringa Networks shall have undivided, absolute legal title to and ownership in the Syringa Networks System Route, including but not limited to the City Fibers subject to the rights granted herein. ARTICLE VII REPRESENTATIONS AND WARRANTIES 7.01 Each Party represents and warrants that: (i) it has the power and authority to enter into, execute, and deliver this IRU Agreement and, including without limitation, Syringa Networks' representation and warranty that it has the power and authority to grant the IRU and all associated use rights granted herein to the City; (ii) it has taken all requisite corporate action to approve the execution, delivery and performance of this IRU Agreement; (iii) this IRU Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditor's rights and general equitable principles; (iv) it shall not commit a breach of any other agreement as a result of executing this IRU Agreement or as a result of the obligations imposed upon it hereunder; and (v) its execution of and performance under this IRU Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any Governmental Authority. 7.02 Each Party represents and warrants to the other that there are no pending, or to the knowledge of such Party, threatened actions, suits, claims, condemnations or other proceedings (i) which would materially and adversely affect the City Fibers being delivered hereunder by Syringa Networks, the Syringa Networks System Route, or the ability of either Party to consummate the transactions and perform the obligations contemplated hereby, (ii) which would result in any charge being levied against, or lien assessed on the City Fibers being delivered by Syringa Networks hereunder which lien would materially and adversely affect Syringa Networks' ownership or City's use of the City Fibers, or (iii) in which either Party is or will be a party by reason of either Party's interests in the City Fibers. 7.03 Each Party shall promptly notify the other Party of any matters pertaining to, or the occurrence (or impending occurrence) of, any event of which it is aware that could give rise to any damage or impending damage to or loss of the Syringa Networks System or City Fibers. 7.04 City and Syringa Networks agree to cooperate with and support each other in complying with the requirements applicable to their respective rights and obligations, including Authorizations hereunder by any Governmental Authority. ARTICLE VIII LIMITATION OF LIABILITY 8.01 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING BY WAY OF ILLUSTRATION, LOST REVENUES AND LOST PROFITS SUFFERED BY THE OTHER PARTY) ARISING OUT OF THIS IRU AGREEMENT OR ANY OBLIGATION ARISING THEREUNDER, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE. EXCEPT AS SPECIFICALLY SET FORTH IN THIS IRU AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND ALL SUCH WARRANTIES AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR A PARTICULAR PURPOSE OF THE FIBERS OR ANY SERVICE PROVIDED HEREUNDER ARE HEREBY EXCLUDED AND DISCLAIMED. ARTICLE IX FORCE MAJEURE 9.01 Neither Party shall be liable for any delay or failure in performance of any part of this IRU Agreement to the extent such delay or failure is caused by an event of force majeure, including but not limited to, fire, flood explosion, accident, war, strike, embargo, governmental requirement, inability to obtain governmental authorizations or permits, civil or military authority, act of God, inability to secure necessary materials, labor or transportation, acts or omissions of a common carrier, warehouseman, act of terrorism or other third party or any other cause beyond a party's reasonable control. Any such delay or failure shall suspend the IRU Agreement until the Force Majeure condition ceases and the term shall be extended by the length of the suspension. ARTICLE X GOVERNING LAW 10.01 This IRU Agreement shall be governed by the laws of the State of Idaho without regard to its choice of law provisions. In any action between the Parties to enforce any material provision of this IRU Agreement, the prevailing Party shall be entitled to recover its reasonable legal fees and court costs (including reasonable attorney's fees, expert witness fees, and costs and expenses of investigation and litigation) from the non -prevailing Party in addition to whatever other relief a court may award. ARTICLE XI CONFIDENTIALITY 11.01 Each Party agrees to maintain in strict confidence all plans, pricing, designs, drawings, trade secrets, and other proprietary information of the other Party that is disclosed pursuant to this IRU Agreement for the Term of this IRU Agreement. No obligation of confidentiality shall apply pursuant to disclosed information which the recipient (a) already possessed without obligation of confidentiality; (b) develops independently; or (c) rightfully receives without obligation or confidentiality from a third Party; or (d) is required to disclose for purposes of performing its obligations hereunder or by Governmental or quasi governmental authority or as otherwise required by law. ARTICLE XII ASSIGNMENT 12.01 Neither Party may assign this IRU Agreement without the written consent of the other Party (which consent shall not be unreasonably withheld or unduly delayed), except that a Party may assign its rights and obligations hereunder by providing thirty (30) days prior written notice to the other Party to: (i) any subsidiary, parent company, or affiliate; (ii) pursuant to any sale or transfer of all or substantially all the business; or (iii) pursuant to any financing, merger, or reorganization; provided however the assigning Party shall remain jointly and severally liable for all of it obligations hereunder arising or accruing prior to the effective date of this assignment. 12.02 Subject to the provisions of this Article, this IRU Agreement and each of the Parties' respective rights and obligations hereunder, shall be binding upon and shall inure to the benefit of the Parties hereto and each of their respective permitted successors and assigns. 12.03 Any and all increased payments for regulatory approvals, franchises, permits, orders, consents and rights-of-way, either by contract, franchise or some other agreement, and all other rights necessary to effectuate this IRU Agreement (all of which are collectively referred to herein as the "Authorizations"), fees, charges, costs or expenses which result under the Authorizations or otherwise as a result of any permitted assignment or transfer of this IRU Agreement by a Party shall be paid by such Party. ARTICLE XIII NOTICES 13.01 All notices or other communications which are required or permitted herein shall be in writing and sufficient if delivered personally, sent by prepaid overnight air courier, or sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: If to City: Jaycee Holman Information Services Director City Clerk City of Meridian 33 E Broadway Avenue Meridian, ID 83642 If to Syrinea Networks: Syringa Networks, LLC 12301 W. Explorer Drive Boise, Idaho 83713 with a copy to: Dave Tiede Infrastructure Support Manager City of Meridian 33 E Broadway Avenue Meridian, ID 83642 with a copy to: Cynthia A. Melillo PLLC 8385 W. Emerald Street Boise, Idaho 83704 Or such other address as the Party to whom notice is to be given may have furnished to the other Party in writing in accordance herewith. Any such communication shall be deemed to have been given when delivered or upon attempted delivery if delivery is refused. ARTICLE XIV ENTIRE AGREEMENT AND AMENDMENT 14.01 This IRU Agreement, the O&M Agreement, and any Attachments or Exhibits attached hereto or thereto or to be attached hereto or thereto, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, understandings, and agreements with respect hereto, whether oral or written. This IRU Agreement may be amended or modified only by written instrument duly executed by each of the Parties. ARTICLE XV DEFAULT AND TERMINATION 15.01 If City fails to observe and perform the terms and provisions of this IRU Agreement and such failure continues for a period of thirty (30) days after written notice from Syringa Networks (or if such failure is not susceptible of a cure within such thirty (30) day period, cure has not been commenced and diligently pursued thereafter to completion), then Syringa Networks may take the following actions: (A) If the default consists of the failure to pay the IRU Fee, Syringa Networks may terminate this IRU Agreement, in whole or in part, in which event Syringa Networks shall have no further duties or obligations hereunder, and (B) in the event of any other default hereunder, Syringa Networks may pursue any legal remedies it may have under applicable law or principles of equity relating to such default, including an action for damages, specific performance and/or injunctive relief. 15.02 If Syringa Networks fails to observe and perform the terms and provisions of this IRU Agreement and such failure continues for a period of thirty (30) days after written notice from City (or if such failure is not susceptible of a cure within such thirty (30) day period, cure has not been commenced and diligently pursued thereafter to completion), then City may (A) if the default consists of the failure to provide the City Fibers, terminate this IRU Agreement, in whole or in part, in which event City shall have no further duties or obligations hereunder, and (B) in the event of any other default hereunder, pursue any legal remedies it may have under applicable law or principles of equity relating to such default, including an action for damages, specific performance and/or injunctive relief. ARTICLE XVI MISCELLANEOUS 16.01 The recitals above are incorporated into this IRU Agreement by this reference. The headings of the Articles in this IRU Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the terms, provisions, or conditions of this IRU Agreement. 16.02 No failure to exercise and no delay in exercising, on the part of either Party hereto, any right, power, or privilege hereunder shall operate as a waiver hereof, except as expressly provided herein. 16.03 This IRU Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This IRU Agreement is the joint work product of both parties and, in the event of ambiguity no presumption shall be imposed against any party by reason of document preparation. [Signature page follows] IN WITNESS WHEREOF, Syringa Networks and City have executed this IRU Agreement as of the date first above written. SYRINGA NETWORKS, L - '� ) By: ' / Name: Greg Lowe Its: Chief Executive Officer CITY OF MERIDIAN By: Name: Its: EXHIBIT A SYRINGA NETWORKS SYSTEM ROUTES City of Meridian Syringa Networks Dark Fiber 4.6K 3 Fire Station 6001 N. Linder WWT 3401 2 S.SKM N Ten Mile Fire Station 4 2401 N Ten M e ♦-- = New Lateral Fiber Builds 7.6KM 4 Strands at every site 2 Strand Ring Design. 4 Strand Max Utilization H =Existing Syringa Fiber Network =2 Strand Ring Segments, Estimated 2 Strand Lenghts -16 24 Fire Station S Linder & Overland PROJECT City of Meridian Dark Fiber Fire Station 3545 N Locust Grove } 12 Water Dept 2235 NW 8' 9 1 I 2.7KM City Hail 33 E 7 8 Broadway 1.4KM 'I.SKM. Fire Station 40 E Frank 7 1700 Lanark 1.2K 6 y 10 S Water Tower 254 E Watertower MPD 1401 E Watertower Syringa 184 Core Fiber 7.4KM DESCRIPTIONI DRAWN BY 2 Strand Collapsed Ring, 4 Strand IRU per Site David Posey 10 N Not to Scale 1M Park 1900 • Records 11 8KM 413 Fire Station 2515 S Eagle REVISED VERSION PAGE 08-08-13 1.0 1 EXHIBIT B CITY FIBERS SEGMENT DESCRIPTIONS AND SCHEDULED COMPLETION DATES City hereby orders the following City Fibers and Syringa Networks hereby agrees to deliver the following City Fibers, all pursuant to and in accordance with the terms of the IRU Agreement. SEGMENT/ LATERAL SEGMENTDIVERSE FIBER COUNT .... SEGMENT ENDPOINTS SEGMENT ENDPOINT _ . TERM DIVERSE OR NOWT- DEMAR-CATION POINT TYPE * COMPLETI ON DA•E TBD, S. Linder & Overland Road, 3401 N. Ten Mile Road, Meridian, Meridian, ID ID 3401 N. Ten Mile Road, Meridian, 6001 N. Linder Road, Meridian, ID ID 2401 N. Ten Mile Road, Meridian, 6001 N. Linder Road, Meridian, ID ID 2401 N. Ten Mile Road, Meridian, 1401 E Water Tower, Meridian, ID ID 1401 E Water Tower, Meridian, ID 1700 Lanark Road, Meridian, ID 1700 Lanark Road, Meridian, ID 540 E. Franklin Road, Meridian, ID Non -Diverse Thirteen (13) Four (4) strands per site, two (2) strand 20 Year/ Path, Fiber Distribution Panel, sites collapsed ring 540 E. Franklin Road, Meridian, ID 33 E. Broadway, Meridian, ID 240 Month Collapsed 2 Strand Ring Single Mode Fiber, SC TBD topology between Term Physical Connector segments. Topology 33 E. Broadway, Meridian, ID 2235 NW 8'h Street, Meridian, ID 2235 NW 8b Street, Meridian, ID 254 E. Watertower, Meridian, ID 254 E. Watertower, Meridian, ID 1900 N. Records Road, Meridian, ID 1900 N. Records Road, Meridian, 3545 N. Locust Grove, Meridian, ID ID 3545 N. Locust Grove, Meridian, 2515 S. Eagle Road, Meridian, ID ID TBD, S. Linder & Overland Road, 2515 S. Eagle Road, Meridian, ID Meridian, ID Segment End Points: a. For Segments which are connecting the backbone network to incumbent local exchange carrier central offices ("ILEC CO's"), the Segment End Point for the City Fibers will be in the ILEC CO 11 "0" manhole then used by Syringa Networks and in which Syringa Networks has rights to install facilities (i.e., the ILEC manhole outside the CO), and Syringa Networks will provide the amount of slack fiber specified by City in the "0" manhole. City shall be responsible for bringing its fiber to such Segment End Point, and for securing any and all agreements, consents, permissions or authorizations from the ILEC necessary to permit Syringa Networks to provide City with access to slack fiber within the "0" manhole. b. For Segments which are connecting the backbone network to locations other than ILEC CO's, the Segment End Point for the City Fibers will be at an optical termination panel in or contiguous to Syringa Networks's POP within the building. City shall be responsible for bringing its fiber to such Segment End Point, and for securing any and all agreements, consents, permissions or authorizations from the building owner or manager necessary to install such connecting fiber. C. Any work required to connect the City Fibers to other fibers owned or procured by City (including, but not limited to, coring into Syringa Networks's manholes, hand holes or points of presence) shall be performed by Syringa Networks. 12 EXHIBIT C PAYMENT SCHEDULE B.1 IRU Fee: City agrees to pay, as compensation for the use of the City Fibers, the fees set forth below ("IRU Fee"). SEGMENT / LATERAL SEGMENT IRU FEE 1 $1,367,000.00 Totals $1,367,000.00 B.2 Payment Schedule: Fifty percent (50%) of the IRU Fee shall be due and payable by City to Syringa Networks within 10 days of the execution of this IRU Agreement. Fifty percent (50%) shall be due and payable by City to Syringa Networks within 10 days of the formal notification to City by Syringa Networks of the completion, testing, and acceptance of the Syringa Networks System Routes supporting all segments identified in the table in Section B.I. This final payment shall be due and payment in full whether or not City has completed construction of Fire Station 6 to enable Syringa Networks to pull fiber from the vault to the constructed building, as set forth in the scope of work presented to City. 13 OPERATIONS AND MAINTENANCE AGREEMENT THIS OPERATIONS AND MAINTENANCE AGREEMENT ("O&M Agreement") is made and entered into as of the IS4 h day of October, 2013 by and between Syringa Networks, LLC, an Idaho limited liability company ("Syringa Networks") and the City of Meridian, an Idaho Municipal Corporation ("City"). The signatories to this O&M Agreement shall be referred to individually as the "Party" and collectively as the "Parties". RECITALS A. Pursuant to that certain IRU Agreement of even date herewith by and between Syringa Networks and City (the "IRU Agreement'), City was granted an a indefeasible right to use the City Fibers within the Syringa Networks System Routes (as those terms are defined in the IRU Agreement); and B. City desires that Syringa Networks perform all maintenance on the City Fibers; and C. Syringa Networks is willing to perform maintenance on the City Fibers pursuant to the terms and conditions herein. NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Syringa. Networks and City agree as follows: ARTICLE I 1.01 Unless otherwise defined herein, all capitalized terms shall have the meaning given them in the IRU Agreement. ARTICLE II TERM AND TERMINATION 2.01 The term of this O&M Agreement (the "Term") shall begin on the IRU Effective Date and shall continue until twenty (20) years after the date of Acceptance (as defined in Section 5.04 below); provided, however, that this O&M Agreement shall automatically terminate in the event that either Party terminates the IRU Agreement in its entirety. In the event the IRU Agreement shall be renewed for any Renewal Term, this O&M Agreement shall automatically renew for a like renewal term. 2.02 The expiration or termination of this O&M Agreement shall not affect the rights or obligations of any Party hereto with respect to any payment hereunder for services rendered prior to the date of termination and any provisions which are expressly provided herein to survive such termination or expiration shall remain binding on the Parties hereto. ARTICLE III PAYMENT AND COSTS 3.01 On or before the first day of each month, commencing on the IRU Effective Date and continuing throughout the Term or any automatic renewal of the Term, or the earlier termination of this O&M Agreement, City shall pay to Syringa Networks, maintenance fees as set forth on Exhibit A attached hereto (the `Maintenance Fees"). 3.02 Syringa Networks shall invoice City in advance prior to the first day of each month for that month's Maintenance Fees, provided, however, the Maintenance Fees for the first partial month following the IRU Effective Date shall be invoiced promptly following the IRU Effective Date. The first month's Maintenance Fees shall be pro -rated based upon the IRU Effective Date. City shall pay such invoices prior to the first day of the month in which services are to be provided. 3.03 In the event of any Renewal Terms, the Maintenance Fees shall increase to the then current rates for such services provided by Syringa Networks effective as of the first day of each such Renewal Term. ARTICLE IV AUTHORIZATIONS 4.01 Syringa Networks agrees to use best commercial efforts to obtain, prior to the Delivery Date, and maintain, all rights, licenses, franchises, governmental regulatory approvals, authorizations, rights-of-way and other agreements necessary for the use of poles, conduit, cable, wire or other physical plant facilities, as well as any other such right, licenses, authorizations, rights-of-way, and other agreements necessary for the installation and use of City Fibers (all of which are herein collectively known as the "Rights-of-Way").Upon the request of City, Syringa Networks promptly will provide City with any reasonable evidence of such Rights -of -Way. In the event that Syringa Networks' best commercial efforts to secure and/or maintain the Rights -of -Way are unsuccessful at any point, Syringa Networks shall notify City immediately, indemnify City and, at the election of City, either (a) refund all fees paid to Syringa Networks by City under the IRU Agreement and O&M Agreement and terminate this O&M Agreement and the IRU Agreement or (b) secure and grant to City, at no additional cost to City, alternate Rights -of -Way that are mutually acceptable to both Syringa Networks and City. Syringa Networks shall be solely liable for all costs related thereto. Notwithstanding the foregoing, in the event any Rights of Way are required to be obtained from City in its capacity of a Governmental Authority and City fails to issue such Rights -of -Way, Syringa Networks shall have no obligation to indemnify City, refund fees or otherwise secure alternate Rights -of -Way for City. 4.02 City agrees to use best commercial efforts to secure, prior to the Acceptance Date, and maintain access to colocation space within the necessary Transmission Site(s) ("Colocation Space") from either (a) Syringa Networks, or (b) another qualified third party. ARTICLE V CONSTRUCTION TESTING AND ACCEPTANCE 5.01 Syringa Networks has constructed and installed or shall construct and install the City Fibers in accordance with the specifications set forth in Exhibit B and in accordance with industry standards (the "Specifications"). 5.02 Syringa Networks shall test the City Fibers in accordance with the testing procedures and standards also specified in Exhibit B ("Acceptance Testing Procedures"). Syringa Networks shall give City ten (10) days written notice prior to testing, and City may observe such testing at its own cost. 5.03 When Syringa Networks reasonably determines the City Fibers have satisfied the Acceptance Testing Procedure, Syringa Networks shall provide a written notice of completion to City ("Notice of Completion"). 5.04 City shall, within fourteen (14) days of receipt of the Notice of Completion, either accept the City Fibers by delivering a notice of acceptance to Syringa Networks ("Notice of Acceptance"), which delivery of a Notice of Acceptance constitutes "Acceptance" of the City Fibers, or reject the City Fibers by delivering a notice of rejection ("Notice of Rejection") to Syringa Networks specifying the defect or failure to meet the Specifications. In the event City delivers a Notice of Rejection to Syringa Networks, Syringa Networks shall promptly, and at no cost to City, remedy the defect or failure specified in the Notice of Rejection. Thereafter, Syringa Networks shall again give City a Notice of Completion with respect to the City Fibers. Subject to City's rights under Article XIV to terminate this O&M Agreement as provided for therein, the foregoing procedure shall apply again and successively thereafter until Syringa Networks has remedied all defects or failures specified by City. In the event City delivers three (3) Notices of Rejection for the same defect or failure and Syringa Networks fails to remedy such defect or failure, City may terminate this O&M Agreement and the IRU Agreement with respect to the affected City Fibers without liability and shall be entitled to a full refund of the portion of the IRU Fee paid with regard to the affected City Fibers. Any failure of City to timely deliver a Notice of Rejection shall be deemed to constitute Acceptance ("Deemed Acceptance") of the City Fibers for purposes of this O&M Agreement and City shall be deemed to have delivered a Notice of Acceptance on the fifteenth (15`h) day after City's receipt of the Notice of Completion. In addition, any use by City of the City Fibers for the purpose of delivering communications traffic (other than traffic which is transmitted only and solely for the purpose of testing the performance of the City Fibers) shall constitute a Deemed Acceptance. 5.05 Syringa Networks shall provide City with network maps and drawings of the City Fibers and the applicable portions of the Syringa Networks System Route ("Maps") within sixty (60) days of the City Acceptance Date and will contain the following information with respect to the City Fibers, but shall not contain information with regard to other Syringa Network fibers within the Syringa Networks System: (a) Route Description Maps: The Maps will contain a geographical depiction of the segment(s) containing the City Fibers provided in the form of electronic mapping utilizing Delorme or MapInfo software presentation. The depiction in the Maps will identify each building with interconnection to the specific fibers being provided to the City and show any fiber cross -connect at the Syringa Networks Node building and will include optical span length. (b) Fiber Drawings: The fiber level drawings of the City Fibers in the Syringa Networks System Route will provide conduit information, fiber assignment numbers around ring on each City lateral into City sites, and at the Syringa Networks Node, drawings and documents which include fiber demarcation point(s) ("FDP"),City fiber port assignments, splice points in manholes providing access to City's building, associated Syringa Networks manhole nomenclatures, Syringa Networks to City circuit ID's (to aid in identifying Segments within the fiber cable system), fiber mileage, and lateral or backbone fiber type. Syringa Networks shall also provide actual data and projection information to the City of Meridian. Defined Mileage will be fiber distances via OTDR traces between a Point of Presence ("POP") or Transmission Site and the next contiguous POP or Transmission Site. Invoices shall be as set forth in the table in Exhibit A of this O&M Agreement. Fiber type will be provided on the MapInfo or Visio block program. The Maps will identify the type of fiber (for example, Single mode, LEAF, NDSF, MetroCor, or SMF -LS) in each segment. The Maps will be provided electronically in MapInfo. Drawings will be in both block and line format. ARTICLE VI MAINTENANCE 6.01 From and after the Acceptance Date, Syringa Networks shall maintain and repair the City Fibers in accordance with the Specifications. When performing maintenance and repairs, Syringa Networks shall in all cases use commercially reasonable efforts to minimize disruption of City's business operation and treat City Fibers with at least as high a priority as Syringa Networks treats any and all other fibers; with the goal of responding on-site within two hours, goal of restoring service via temporary repair within four hours and goal of restoring service via permanent repair within 48 hours. Outage start times commence when outage is reported to Syringa Network's Network Operations Center and trouble ticket is opened in Syringa Network' service ticket system. Syringa Networks shall perform all preventive and reactive maintenance and repairs (as defined in Exhibit B) at Syringa Networks' cost as part of the recurring Maintenance Fee as set forth below. In the event that such preventive or reactive maintenance is caused by the negligence or willful misconduct of Syringa Networks or City in which case the Party causing such negligence or willful misconduct shall bear all Costs. Syringa Networks shall also be responsible for all "one -call" and cable locate services for the City Fibers and such services are included in the Maintenance Fee. 6.02 Syringa Networks shall operate and maintain one or more network operation control center(s) ("NOCC") staffed by trained and qualified personnel beginning on the IRU Effective Date. City shall promptly report the need for any unscheduled or emergency maintenance in accordance with the procedures set forth in Exhibit C using Syringa Networks' toll-free service number set forth on such Exhibit. 6.03 Syringa Networks will provide City with an escalation list that City shall use to report and seek resolution of maintenance problems and exceptions in performance standards for the City Fibers. 6.04 Syringa Networks shall have the right to subcontract any maintenance performed hereunder for City, provided that Syringa Networks shall require any subcontractor to perform in accordance with the requirements and procedures set forth in this O&M Agreement and all applicable industry standards. The use of any such subcontractor shall not relieve Syringa Networks of any of its obligations hereunder. 6.05 Subject to Force Majeure (as defined below), Syringa Networks shall provide twenty-four (24) hour, seven (7) days per week maintenance service. ARTICLE VII ACCESS 7.01 Syringa Networks shall control all activities concerning access to the Syringa Networks System, including the City Fibers on the network side of the Demarcation Point. 7.02 Any work required respecting the Syringa Networks System or the City Fibers required by City for any reason, including, without limitation, splicing of the City Fibers or the installation of hand holes or other access points along the Syringa Networks System Route, shall be undertaken only by Syringa Networks at City's request. All such work shall be performed in a timely manner consistent with industry accepted practices and, except as otherwise provided in this O&M Agreement, City shall reimburse Syringa Networks for the splicing fees and other Interconnection Fees as determined by Syringa Networks. ARTICLE VIII OPERATIONS 8.01 City shall not interfere with, or materially or adversely affect the use by any other Person of the Syringa Networks System and/or any electronic, optronic, or other equipment or related facilities used by such Person in connection therewith. If a Person under the control of City materially, adversely affects the use of the Syringa Networks System by Syringa Networks, Syringa Networks shall require that such Person cease using the Syringa Networks System until such Person can do so without causing such material, adverse effect on the Syringa Networks System. If possible, Syringa Networks shall provide City with reasonable prior notice of such event to allow for remediation by City. In the case that such notice is not possible, Syringa Networks shall provide City with prompt notice of such action and with an explanation of the necessary cure to restore service. 8.02 Syringa Networks shall not interfere with, or materially or adversely affect or permit another Person under the control of Syringa Networks to interfere with, materially or adversely affect City's use of the City Fibers and/or any optronics, electronics, electric, optronic, or other equipment or related facilities used by City in connection therewith. If a Person materially, adversely affects City's use of the City Fibers and such Person is in any way leasing, licensing or otherwise using (through an IRU or otherwise) any part of the Syringa Networks System Route, Syringa Networks shall require that such Person cease using the Syringa Networks System Route until such Person can do so without causing such material, adverse effect on City. 8.03 Notwithstanding any other provision of this O&M Agreement, in the event of any interruption of use by City of any segment of the City Fibers, which impairs City's provision of services to its customers and which is the result of a severance of, physical damage to, or degradation of the City Fibers, and which is caused by Syringa Networks, Syringa Networks sole liability and obligation shall be to provide a credit, not less that prorated O&M Fee for the outage period. The remedy provided in this Section shall be City's sole and exclusive remedy for outages or interruptions of service. The foregoing notwithstanding, City shall have no right to any credit, reimbursement or any other payment to the extent such service interruption or outage is caused in whole or in part by any act or omission of City or by City's system or any third party. Further, in the event City is in breach of this O&M Agreement, Syringa Networks may withhold any credit until such time as City has cured the breach in full. 8.04 City acknowledges and agrees that Syringa Networks is not supplying nor is Syringa Networks obligated to supply to City any optronics or electronics or optical or electrical equipment, any related facilities, or any space for the placement thereof (except as agreed in any other agreement executed by the Parties), all of which are the sole responsibility of City. ARTICLE IX RELOCATION, REPLACEMENT AND CONDEMNATION OF CITY FIBERS 9.01 If, as a result of any request, intent or plan by any third party including but not limited to any Governmental Authority, Syringa Networks is required to relocate any segment of the Syringa Networks System Route affecting the City Fibers, Syringa Networks shall provide City sixty (60) days (or as much notice as Syringa Networks receives if such notice is less than sixty (60) days prior written notice of any such relocation, and Syringa Networks shall relocate the City Fibers. To the extent Syringa Networks is not reimbursed for the costs of such relocation by a third party or Governmental Authority, City shall pay its pro -rata share of the Costs associated with the relocation of the City Fibers, based on the ratio of the City Fibers to the total number of fibers in the Syringa Networks System Route being relocated, or at City's election, City may terminate this O&M Agreement and the IRU Agreement. 9.02 In the event all or any part of the City Fibers shall require replacement during the Term of this O&M Agreement, such replacement shall be made as soon as reasonably practicable at Syringa Networks' sole cost and expense; except, however, if the replacement of the City Fibers is required as a result of the negligence or intentional misconduct of City, Syringa Networks shall replace the City Fibers and City shall pay all Costs associated therewith. 9.03 In the event any portion of the Syringa Networks System Route, City Fibers, and/or the Rights - of -Way in or upon which they shall have been installed, become the subject of a condemnation proceeding which is not dismissed within one hundred eighty (180) days of the date of filing of such proceeding and which could reasonably be expected to result in a taking by any Governmental Authority or other party cloaked with the power of eminent domain for public purpose or use, both Parties shall be entitled, to the extent permitted under applicable law, to participate in any condemnation proceedings to seek to obtain compensation by separate awards for the economic value of their respective interests in the portion of the Syringa Networks System and/or City Fibers subject to such condemnation. Syringa Networks shall notify City as soon as practicable of receipt of any notice of any condemnation proceeding filed against the Syringa Networks System, City Fibers or Rights -of -Way in or upon which the Syringa Networks System or City Fibers have been installed. Syringa Networks agrees not to sell the City Fibers and or the Rights -of -Way to such acquiring agency or Governmental Authority or other party in lieu of condemnation without thirty (30) business days prior written notice to City. ARTICLE X TAXES 10.01 City shall be responsible for, and shall timely pay, any and all Taxes imposed with respect to this O&M Agreement upon City. Syringa Networks shall be responsible for, and shall timely pay, any and all Taxes imposed with respect to this O&M Agreement upon Syringa Networks. 10.02 If at any time any Tax is imposed on, assessed against or borne by either City or Syringa Networks with respect to this O&M Agreement, the City or Syringa Networks as the case may be, shall have the right to protest, by appropriate proceedings, the imposition or assessment of any such Tax. In such event, City or Syringa Networks as the case may be, shall be responsible for such payments and shall indemnify and hold the other Party harmless from and against any liability, expense, legal action or cost, including reasonable attorney's fees, resulting from the exercise of its rights under this Section. In the event of any refund, rebate, reduction, or abatement of any such Tax, the Party who was responsible for paying such Tax shall be entitled to receive the entire benefit of such refund, reduction or abatement. ARTICLE XI INDEMNIFICATION 11.01 Syringa Networks hereby agrees to indemnify, defend, protect and hold harmless City and its employees, officers and directors, from and against, and assumes liability for: (i) any injury, loss or damage to any Person, tangible property or facilities of any Person (including reasonable attorneys' fees and costs) to the extent arising out of or resulting from the negligence or willful misconduct of Syringa Networks, its officers, employees, servants, Affiliates, agents, contractors, licensees, invitees and vendors in connection with the performance by Syringa Networks of its obligations or the exercise by Syringa Networks of its rights under this O&M Agreement; and (ii) any claims, liabilities or damages arising out of any violation by Syringa Networks of any regulation, rule, statute or court order of any Governmental Authority in connection with the performance by Syringa Networks of its obligations or the exercise by Syringa Networks of its rights under this O&M Agreement. 11.02 City hereby agrees to indemnify, defend, protect and hold harmless Syringa Networks, and its employees, members, officers and directors, from and against, and assumes liability for: (i) any injury, loss or damage to any Person, tangible property or facilities of any Person (including reasonable attorneys' fees and costs) to the extent arising out of or resulting from the negligence or willful misconduct of City, its officers, employees, servants, Affiliates, agents, contractors, licensees, invitees and vendors in connection with the performance by City of its obligations or the exercise by City of its rights under this O&M Agreement; and (ii) any claims, liabilities or damages arising out of any violation by City of any regulation, rule, statute or court order of any Governmental Authority in connection with the performance by City of its obligations or the exercise by City of its rights under this O&M Agreement. This duty to defend, indemnify and hold harmless is subject to the limitations of Idaho Law, including Article VIII Section 4, Idaho Constitution and Idaho Code Title 6 Chapter 9 (the Idaho Tort Claims Act), and to any other limitations set forth in this agreement. 11.03 Syringa Networks and City agree to promptly provide each other with notice of any claim that may result in an indemnification obligation hereunder. The indemnifying Party may defend such claim with counsel of its own choosing provided that no settlement or compromise of any such claim shall occur without the consent of the indemnified Party, which consent shall not be unreasonably withheld or delayed. 11.04 The indemnification obligations contained in this Article shall survive the expiration or termination of this O&M Agreement. ARTICLE XII LIMITATION OF LIABILITY 12.01 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING BY WAY OF ILLUSTRATION, LOST REVENUES AND LOST PROFITS SUFFERED BY THE OTHER PARTY) ARISING OUT OF THIS O&M AGREEMENT OR ANY OBLIGATION ARISING THEREUNDER, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE. EXCEPT AS SPECIFICALLY SET FORTH IN THIS O&M AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND ALL SUCH WARRANTIES AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR A PARTICULAR PURPOSE OF THE FIBERS OR ANY SERVICE PROVIDED HEREUNDER ARE HEREBY EXCLUDED AND DISCLAIMED. ARTICLE XIII INSURANCE 13.01 During the term of this O&M Agreement and the IRU Agreement, each Party shall obtain and maintain the following insurance: (i) Commercial General Liability or Excess Liability including coverage for (a) premises/operations, (b) independent contractors, (c) products/completed operations, (d) personal and advertising injury, (e) contractual liability, and (f) explosion, collapse and underground hazards, with combined single limit of not less than $2,000,000.00 each occurrence or its equivalent; (ii) Worker's Compensation in amounts required by applicable law and Employer's Liability with a limit of at least $1,000,000.00 each accident; and (iii) Automobile Liability including coverage for owned/leased, non -owned or hired automobiles with combined single limit of not less than $1,000,000.00 each accident. 13.02 During the term of this O&M Agreement and the IRU Agreement, City shall obtain and maintain "all risk" property insurance in an amount equal to the replacement cost of all electronic, optronic and other equipment utilized by City in connection with the City Fibers. 13.03 Unless otherwise agreed, all insurance policies shall be obtained and maintained with well - reputed companies and each Party shall, upon request, provide the other Party with an insurance certificate confirming compliance with the requirements of this Article. 13.04 City and Syringa Networks shall each obtain from the insurance companies providing the coverage required by this O&M Agreement, the permission of such insurers to allow such Party to waive all rights of subrogation and such Party does hereby waive all rights of said insurance companies to subrogation against the other Party, its affiliates, subsidiaries, assignees, officers, directors and employees. 13.05 In the event either Party fails to maintain the required insurance coverage and a claim is made or suffered, such Party shall indemnify and hold harmless the other Party from any and all claims for which the required insurance would have provided coverage. ARTICLE XIV DEFAULT AND TERMINATION 14.01 If City fails to observe and perform the terms and provisions of this O&M Agreement and such failure continues for a period of thirty (30) days after written notice from Syringa Networks (or if such failure is not susceptible of a cure within such thirty (30) day period, cure has not been commenced and diligently pursued thereafter to completion), then Syringa Networks may (A) terminate this O&M Agreement in whole or in part, in which event Syringa Networks shall have no further duties or obligations hereunder, and (B) pursue any legal remedies it may have under applicable law or principles of equity relating to such default, including an action for damages, specific performance and/or injunctive relief. 14.02 If Syringa Networks fails to observe and perform the terms and provisions of this O&M Agreement and such failure continues for a period of thirty (30) days after written notice from City (or if such failure is not susceptible of a cure within such thirty (30) day period, cure has not been commenced and diligently pursued thereafter to completion), then City may (A) terminate this O&M Agreement in whole or in part, in which event City shall have no further duties or obligations hereunder, and (B) pursue any legal remedies it may have under applicable law or principles of equity relating to such default, including an action for damages, specific performance and/or injunctive relief. ARTICLE XV FORCE MAJEURE 15.01 Neither Party shall be liable for any delay or failure in performance of any part of this O&M Agreement to the extent such delay or failure is caused by an event of force majeure, including but not limited to, fire, flood explosion, accident, war, strike, embargo, governmental requirement, inability to obtain governmental authorizations or permits, civil or military authority, act of God, inability to secure necessary materials, labor or transportation, acts or omissions of a common carrier, warehouseman, act of terrorism or other third party or any other cause beyond a Party's reasonable control. Any such delay or failure shall suspend the Agreement until the Force Majeure condition ceases and the term shall be extended by the length of the suspension, provided, however, that if Syringa Networks cannot perform required maintenance as a result of a Force Majeure condition that does not affect City, City may perform said maintenance at Syringa Networks' cost and expense until such time as the Force Majeure condition subsides. ARTICLE XVI REPRESENTATIONS AND WARRANTIES 16.01 Each Party represents and warrants that: (i) it has the full right and authority to enter into, execute and deliver this O&M Agreement; (ii) it has taken all requisite corporate action to approve the execution, delivery and performance of this O&M Agreement; (iii) this O&M Agreement constitutes a legal, valid and binding obligation enforceable against such Party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; and (iv) its execution of and performance under this O&M Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. 16.02 City acknowledges and agrees that City's sole rights and remedies with respect to any defect in or failure of the City Fibers to perform in accordance with the specifications set forth in Exhibit `B" of the IRU Agreement, shall be limited to the particular vendor's or manufacturer's warranty, as long as such defect of failure is not caused by a breach of Syringa Networks' maintenance and other obligations under this O&M Agreement and the IRU Agreement or by Syringa Networks' negligence or misconduct. In the event any maintenance or repairs to the Syringa Networks System are required as a result of a breach of any warranty made by any manufacturers, contractors or vendors, Syringa Networks shall pursue all remedies against such manufacturers, contractors or vendors on behalf of City, and Syringa Networks shall reimburse City's costs for any maintenance City has incurred as a result of any such breach of warranty to the extent the manufacturer, contractor or vendor pays such costs. ARTICLE XVII CONFIDENTIALITY 17.01 Except as required by applicable Public Records Disclosure law(s), each Party agrees to maintain in strict confidence all plans, pricing, designs, drawings, trade secrets, and other proprietary information of the other Party that is disclosed pursuant to this O&M Agreement for the Term of this O&M Agreement. No obligation of confidentiality shall apply pursuant to disclosed information which the recipient (a) already possessed without obligation of confidentiality; (b) develops independently; or (c) rightfully receives without obligation or confidentiality from a third Party. Notwithstanding the foregoing, if the Parties have entered into a Confidentiality or Non -Disclosure Agreement the terms and conditions of that agreement shall govern and control. ARTICLE XVIII NOTICES 18.01 Notices: All notices or other communications which are required or permitted herein shall be in writing and sufficient if delivered personally, sent by prepaid overnight air courier, or sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: If to City: Jaycee Holman Information Services Director City Clerk City of Meridian 33 E Broadway Avenue Meridian, ID 83642 If to Syrinim Networks: Syringa Networks, LLC 12301 W. Explorer Drive Boise, Idaho 83713 with a copy to: Dave Tiede Infrastructure Support Manager City of Meridian 33 E Broadway Avenue Meridian, ID 83642 with a copy to: Cynthia A. Melillo PLLC 8385 W. Emerald Street Boise, Idaho 83704 Or such other address as the Party to whom notice is to be given may have furnished to the other Party in writing in accordance herewith. Any such communication shall be deemed to have been given when delivered if delivered personally, on the business day after dispatch if sent by overnight air courier or on the third business day after posting if sent by mail. ARTICLE XIX ASSIGNMENT 19.01 Neither Party may assign this O&M Agreement without the written consent of the other Party (which consent shall not be unreasonably withheld or unduly delayed), except that a Party may assign its rights and obligations hereunder by providing thirty (30) days prior written notice to the other Party to: (i) any subsidiary, parent company, Idaho governmental agency, or affiliate; (ii) pursuant to any sale or transfer of all or substantially all the business; or (iii) pursuant to any financing, merger, or reorganization. Any proposed assignee of City must at a minimum meet all Syringa Networks credit standards then in place and City shall be and remain liable for the performance of its obligations under this O&M Agreement. 19.02 Subject to the provisions of this Article, this O&M Agreement and each of the Parties' respective rights and obligations hereunder, shall be binding upon and shall inure to the benefit of the Parties hereto and each of their respective permitted successors and assigns. 10 19.03 Any and all increased payments for Authorizations, fees, charges, costs or expenses which result under the Authorizations or otherwise as a result if any permitted assignment or transfer of this O&M Agreement by a Party shall be paid by such Party. ARTICLE XX ENTIRE AGREEMENT AND AMENDMENT 20.01 This O&M Agreement, the IRU Agreement and any Exhibits attached hereto or to be attached hereto, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, understandings, and agreements with respect hereto, whether oral or written. This O&M Agreement may be amended or modified only by written instrument duly executed by each of the Parties. ARTICLE XXI MISCELLANEOUS 21.01 The recitals in the IRU Agreement and this O&M Agreement are incorporated into this O&M Agreement by this reference. The headings of the Articles in this O&M Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the terms, provisions, or conditions of this O&M Agreement. 21.02 In the event that any term or provision of this O&M Agreement is declared to be illegal, invalid or unconstitutional, then that provision shall be deemed to be deleted from this O&M Agreement and have no force or effect and this O&M Agreement shall thereafter continue in full force and effect, as modified. 21.03 No failure to exercise and no delay in exercising, on the part of either Party hereto, any right, power, or privilege hereunder shall operate as a waiver hereof, except as expressly provided herein. 21.04 This O&M Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This O&M Agreement is the joint work product of both Parties and, in the event of ambiguity no presumption shall be imposed against any Party by reason of document preparation. 21.05 This O&M Agreement shall be governed by the laws of the State of Idaho without regard to its choice of law provisions. In any action between the Parties to enforce any material provision of this O&M Agreement, the prevailing Party shall be entitled to recover its reasonable legal fees and court costs (including reasonable attorney's fees, expert witness fees, and costs and expenses of investigation and litigation) from the non -prevailing Party in addition to whatever other relief a court may award. 11 IN WITNESS WHEREOF,Syringa Networks and City have executed this O&M Agreement as of the date first above written. Syringa Networks, LLC By: ,._.__ h- f� l % - ------ Name: Greg Low Its: Chief Executive Officer City: By: Name: Its: 12 EXHIBIT A MAINTENANCE FEES A.1 Maintenance Fees Unless otherwise stated below, City agrees to pay, as compensation for the Maintenance services provided by Syringa Networks, the maintenance fees set forth below. In addition, as part of the compensation for the Maintenance services to be provided by Syringa Networks, City, agrees to waive any and all present or future franchise fees, right-of-way fees, or other taxes and assessments that City of Meridian would charge against Syringa Networks for Syringa Networks occupancy of any City -owned public right of way. Right of way, taxes and other fees charged by other governmental entities are not waived or included in this agreement. SEGMENT / LATERAL SEGMENT MAINTENANCE FEE 1 $1,150 per month Totals $1,150 MRC B.1 Payment Schedule (if City elects to pay all maintenance fees in advance): [ ] Check if maintenance fees are to paid in lump sum upon execution of O&M Agreement. 13 EXHIBIT B SPECIFICATIONS AND ACCEPTANCE TESTING AND MAINTENANCE PROCEDURES A. CABLE SPECIFICATIONS Manufacturers: Various — All manufacturers will meet industry standards (Corning and CommScope preferred). Fiber type: Single Mode ITU -T G.652 (SMF -28 or equivalent) Matched Clad or Depressed Clad Glass Type: 8/125 microns nominal Buffer: Loose Buffer Tube Single Fibers or Loose Buffer Tube Ribbon Fibers Dry Block Operating Wavelength: 1310/1550nm Max Attenuation: 0.35/0.25 dB/km B. TESTING PROCEDURES 1. FIBER CABLE REEL ACCEPTANCE TESTING Syringa Networks shall be responsible for on -reel verification prior to placement. Syringa Networks may elect to test each fiber on every reel with an OTDR in one direction at 1550nm to determine the continuity of the fiber cable. 2. BONDING AND GROUNDING Syringa Networks shall perform bonding and grounding of all cables requiring it. All bonding and grounding shall be performed in accordance with the splice case manufacturer's standard practice and installation manuals. All bonds shall be clean and free of debris and sealed within the splice closure. Grounding and ground rod placement is to be done as per design. Syringa Networks is to be responsible for supplying all grounding material such as ground rods, ground lugs, and ground wire. 3. INITIAL CONSTRUCTION TESTING During initial construction, Syringa Networks shall use an optical time domain reflectometer (OTDR) or LID System (Light Injection/Detection) to test splices and pigtail connectors. Such initial construction tests shall be uni- directional and performed at 1550nm. No fusion splice will be accepted with over 0.3 dB of attenuation. Recommended fusion splice attenuation is 0.1 dB or less. 4. SPLICING AND TERMINATIONS Fibers shall be spliced with one to one correspondence. All splicing shall be done in accordance with Syringa Networks specifications and manufacturer's recommendations. All fibers are to be fusion spliced and organized, placed and secured in the splice closure equipment provided by Syringa Networks. 14 END-TO-END TESTING After tester has provided end-to-end connectivity on the fibers, continuity tests will be done to verify that no fibers have been transposed or crossed in any of the splice points. Bi-directional loss measurements will be recorded using a laser source and a power meter at 1310nm and 1550nm. OTDR traces will be taken bi-directional at 1310nm and 1550nm and splice loss measurements will be recorded. Syringa Networks will save each OTDR trace and power meter measurement spread sheets to diskette and provide to City for evaluation in either electronic or hard copy. Bi-directional Polarization Mode Dispersion (PMD) and Chromatic Dispersion (CD) measurements will be recorded at 1310nm and 1550nm. The test results for the bi-directional OTDR testing are as follows: 5.1 The objective for each splice is a loss of not more than 0.10 dB utilizing Exfo OTDR or similar reporting software. If Syringa Networks cannot meet or better the 0.10 dB loss value, then the splice will be marked as Out of Spec (OOS) on the data sheet. All cable information will be filled in by splicer and verified by a Syringa Networks representative. These two forms are to contain the following information: 5.2 The End -to -End Attenuation Loss Power Meter Test Form will be used to verify continuity from end to end. In addition, the power level readings taken with a laser source and power meter must be recorded for every fiber on this sheet. In the column marked fiber, the fiber color must be recorded. In the buffer column, the buffer tube or ribbon color must be recorded. Syringa Networks will attempt to meet a maximum loss of not more than 0.25 db/km at 1550 nm and 0.35 db/km at 1310 nm. OTDR testing to be conducted at 1310 nm and 1550 nm unless specified. All fibers inclusive to any span will be OTDR tested using the same range/resolution and pulse width settings to insure consistency in the test results. Use of 3:00 minute averaging, a minimum for each span. NOTE: If Syringa Networks determines that a 3:00 minute sample period is too long and Syringa Networks can obtain a "good" trace representation of the fiber being tested then a reduced sampling period will be applied. Traces will be stored electronically and will be supplied to City electronically. Syringa Networks shall provide City with electronic copies of all final OTDR end-to-end traces on the City Fibers within 30 days of completed construction. 5. POST CONSTRUCTION TESTING Other than for the emergency repair of a cable cut, and after performing permanent re -splicing, replacement of a segment of cable, or other work after initial installation and splicing of the cable, the test procedures and provisions set forth in the End -to -End Testing, OTDR Equipment and Settings, and the Acceptance Test Deliverables sections of this O&M Agreement that are relevant to such testing shall apply to the relevant fiber and cable segments. In conjunction with the emergency repair of a cable cut, and while Syringa Network's restoration personnel are at the repair site, City may request Syringa Networks to conduct relevant fiber testing as set forth in the End -to -End Testing, OTDR Equipment and Settings, and the Acceptance Test Deliverables sections of this O&M Agreement. Syringa Networks may, after completing construction of its System and after Acceptance of the City Fibers by City, adopt any alternative methods of testing that are generally accepted in the industry and that provide sufficient data to fulfill the objectives of the tests set forth in this exhibit; provided such alternative methods of testing are approved by City, in its reasonable discretion. 15 6. OTDR EQUIPMENT AND SETTINGS Syringa Networks shall use OTDR equipment and settings that are, in its reasonable opinion, suitable for performing accurate measurements of the fiber installed. Such equipment and settings shall include, without limitation, the equipment and settings described below. Syringa Networks currently uses and has approved the following OTDR for acceptance testing: Exfo Model FTB300. C. DARK FIBER MAINTENANCE AND REPAIR PROCEDURES Syringa Networks performs preventive maintenance on dark fiber in accordance with current industry practices. City may be present during the performance of any preventive or reactive maintenance at its own expense. In the event that preventive maintenance is canceled or delayed, Syringa Networks will notify City at the earliest opportunity to reschedule the activity. Preventive maintenance expected to produce any signal discontinuity must be coordinated between the Parties at least seven (7) business days prior to the event. Generally, this work is scheduled after midnight and before 6:00 a.m. local time. Syringa Networks may subcontract any of the maintenance services and require the subcontractor to perform in accordance with the Syringa Networks requirements and procedures. The use of any such subcontractor does not relieve Syringa Networks of any of its obligations to City described in this procedure. Preventive Maintenance Preventive maintenance is defined as the routine maintenance and repair of dark fiber. Syringa Networks performs routine maintenance, repair checks and services, including preventative inspections, as determined necessary by Syringa Networks to maintain dark fibers within the agreed upon specifications. Normal preventive maintenance activities performed by Syringa Networks include: • Patrol and monitoring of the Syringa Networks backbone on a regularly scheduled basis • Regular testing to establish thresholds for quality assurance on the Syringa Networks backbone • Establishment and operation of a "Call -Before -You -Dig" program • Perform all required cable locates and record-keeping on the Syringa Networks backbone Reactive Maintenance Reactive maintenance is any non -routine maintenance and repair of dark fiber not identified as preventive maintenance, including repairs required as a result of cable cuts or natural or man-made disasters. Reactive maintenance is generally divided into two categories as outlined below: Emergency reactive maintenance is repair activity performed in response to any of the following: • Alarm identification by Syringa Networks's NOCC • Notification by City or notification by third party of any failure • Interruption or impairment of dark fiber • Any event likely to cause the failure, interruption or impairment of dark fiber Demand maintenance is repair activity performed in response to any potential integrity -affecting situation so as to prevent any failure, interruption or impairment of dark fiber. City will report any failure, interruption or impairment in operation of the City Fibers to Syringa Networks and Syringa Networks will use best efforts to correct such failure, interruption or impairment as soon as commercially practicable. In the event Syringa Networks fails to commence reactive maintenance within four (4) hours of notification by City that such maintenance is required, City will have the right to perform the maintenance at Syringa Networks' sole cost and expense. Upon request by City and within fourteen (14) days of any outage, Syringa Networks will provide a post mortem report detailing the cause of the outage and the actions taken. 16 EXHIBIT C EMERGENCY PROCEDURES AND ESCALATION LIST TROUBLE REPORTING ESCALATIONS: City Any escalation should be directed to the following personnel: Outage Reporting or any General Issue Name: Information Services Director City Clerk City of Meridian 33 E Broadway Avenue Meridian, ID 83642 Phone: Fax: This contact list is to be updated periodically to ensure that the contacts are current. 17 Trouble Reporting / Status / Procedure: TO REPORT A SERVICE INTERRUPTION OR SERVICE -RELATED ISSUE: CONTACT: 24 -Hour Network Surveillance Center (800) 454-7214 customerservice@syringanetworks.net Please provide: CID (Circuit ID) Provide your CID and details regarding the trouble/service Interruption. A CSR (Customer Service Representative) will provide you with a Trouble Ticket number. CONTACT: CSR Please provide: Trouble Ticket Number TO ESCALATE A SERVICE INTERRUPTION / ISSUE: (800) 454-7214 customerservice@syringanetworks.net LEVEL 0: CONTACT: Network Surveillance Center (800) 454-7214 After initial contact if you do not receive an update within 60 Minutes, escalate to Level 1. LEVEL 1: CONTACT. On Duty Manager (208) 229-6101 If you do not receive an update within 30 Minutes, escalate to Level 2. LEVEL 2: CONTACT: Vice President, Operations - Rick McKinney (208) 891-4077 If you do not receive an update within 30 Minutes, escalate to Level 3/CEO. LEVEL L CONTACT. CEO -Greg Lowe (208) 473-1661 Our Network, Your Success. City of Meridian Dark Fiber Route Description and Project Scope Route Descriptions: One project, three major fiber optic build segments, 13 City sites total. Section 1. City Center — 6 sites. Section 2. Eagle Road — 3 sites. Section 3. Ten Mile Road — 4 sites. Four strand single -mode fiber build to each location configured in a collapsed ring physical topology where each site is connected to an upstream and a downstream site via two of four fiber strands. See Schedule 1 — ("Project Scope") drawing for collapsed ring diagram and site logical relationships. Syringa Networks shall install underground high-density polyethylene conduit and fiber optic cable according to Schedule 1. The total route distance is approximately 22 miles, (new build and Syringa core fiber). Syringa Networks shall use all commercially reasonable efforts to place the Cable along the Routes set forth in Schedule 2 - ("Dark Fiber Route Map") or such Routes that will include all of the locations specified in Schedule 2 or such alternative locations as may be mutually agreed upon by the parties. Syringa Networks shall provide any resulting Schedule 1 changes to City of Meridian as a replacement document to Schedule 2. Estimated project completion timeframe: Estimate 7 months from execution of contract. Please see Schedule 3 — ("Implementation Plan"). Estimate construction completion 5 months post final plans, completion of cable/utility locates, permitting and related pre -construction activities. Syringa Networks intends to construct multiple fiber optic cable runs concurrently during construction phase of this project. Timeframes may be delayed by materials availability, weather, permitting and other factors within and beyond the control of Syringa Networks and/or the City of Meridian. As build drawings and documentation to be complete 30 days post construction activities. City acceptance scheduled for 30 days post as -built drawings and documentation. All timeframes are estimates and are not guaranteed. Building Access: City of Meridian shall provide building entrance conduit route at each site from public right of way to designated telecom or data center room at each site for Syringa Network's on-site fiber build activities, unless otherwise noted below. Demarcation will consist of a IRU or 2 RU fiber distribution panel (FDP) located in telecom room or data center as noted and install inside City owned and provided 19" equipment rack or cabinet. Extension of demarcation point beyond site telecom room may require additional fees. Syringa Network's Scope of Work: A. City Center Section • Sites: 1401 E. Watertower, 1700 Lanark, 540 E Franklin, 33 E. Broadway, 2235 NW 8`" and 254 E. Watertower, Meridian, ID. • Estimated construction working days for this section, 92 days. • HDPE SDRI 1 conduit around Meridian City Center Fiber Ring, approximately 28,000'. • Single mode, single armored, single jacket fiber through approximately 28,000' of conduit. Polyethylene outer jacket. Gel free with water blocking filling. - Fiber Count: Vary strand count loose tube. Maximum attenuations (db/Km): 0.35/0.25 (at 1310/1550nm) (low or no water peak). Complies with RUS standards list. B. Eagle Road Section • Sites: 1939 N. Venture Street, 3545 N. Locust Grove and 2515 S. Eagle Road, Meridian, ID. • Estimated construction working days for this section, 30 days. • HDPE SDR11 conduit around the Farmington tower ring, approximately 15,000'. • Single mode, single armored, single jacket fiber through 15,000' conduit. - Polyethylene outer jacket. - Gel free with water blocking filling. - Fiber Count: Vary strand count loose tube. - Maximum attenuations (db/Km): 0.35/0.25 (at 1310/1550nm) (low or no water peak). - Complies with RUS standards list. C. Ten Mile Road Section • Sites: 2401 N. Ten Mile, 3401 N. Ten Mile, 6001 N. Linder and 1435 West Overland Road, Meridian, ID. • Estimated construction working days for this section, 50 days. • HDPE SDR11 conduit around the Airport tower ring, approximately 33,000'. • Single mode, single armored, single jacket fiber through 33,000' conduit. - Polyethylene outer jacket. - Gel free with water blocking filling. - Fiber Count: Various strand count loose tube. - Maximum attenuations (db/Km): 0.35/0.25 (at 1310/1550nm) (low or no water peak). - Complies with RUS standards list. Demarcation Points, Fiber Relationships: Dark fiber build will include a fiber distribution panel (FDP) at each site. The FDP will provide termination for lateral fiber build and act as customer demarcation point at each City site. FDPs shall require 1 or 2U high rack mount space installed inside City provided 19" equipment rack or cabinet. FDPs will terminate lateral fiber utilizing SC connectors. City is responsible for fiber jumpers, cables and cable management beyond FDPs and to City switching equipment. FDPs are non -powered, OSI layer one devices only. Demarcation point and site -to -site fiber strand relationships described in the following table. SYRINGA NETWORKS CITY OF MERIDIAN DARK FIBER IMPLEMENTATION PLAN City of Meridian Dark Fiber Deployment Plan *Notes* Plan assumes two or more installation crews actively working builds at the same time. City desired deployment order. Actual may vary. Construction activity estimated time frame 5 months. Crew #1 Crew #2 Priority Site/Lateral Site/Lateral 1st Water Dept to City Hall 184 Syringa core to Fire Station 2 Establish temporary site -to -site connection 2nd City Hall to Syringa 184 core Fire Station 2 to Wast Water lateral Temporary connection City Center segment with Ten Mile Segment (City Hall/Water Dept/Waste Water) 3rd Watertower lateral Fire Station 5 lateral 4th Fire Station 1 lateral Fire Station 4 lateral 5th Meridian Police Dept. Lateral Kleiner Park Maint. Shed lateral 6th Parks & Rec lateral Fire Station 3 lateral 7th Fire Station 6 lateral (station to be built, lateral vault slack for future FDP install) 8th Establish permanent 4 strand collapsed ring for testing and overall project acceptance. Syringa Networks shall complete Fire Station 6 lateral within 30 days of notification by City that the site is ready for completion. This delay will not impact City's acceptance or payment for the overall project. Kleiner Park, Maintenance Shop Four Rack mount FDP inside building's 1st floor Building, 1939 N. Venture (2 up, 2 Fire Station 3 Water Tower telco closet. Utilize existing conduit Street. downstream) supporting copper telco services. Fire Station 6, 1435 West Fire station will not be constructed at time of Overland Road this fiber build. Fiber build will consist of lateral fiber to property with adequate slack to reach planned telco closet (200'). Until such time as rack mount FDP can be installed inside new building, fiber strands will be physically Four spliced to provide collapsed ring topology and (2 up, 2 Waste Water Fire Station 4 stored with cable slack inside fiber vault on downstream) property. Overall project acceptance is not dependent on final FDP installation at this site. Syringa Networks shall complete this site installation as soon as reasonably possible, post fire station construction, and within 60 days of notification that fire station construction is complete. Water Tower, 254 E. Four Rack mount FDP inside tower's 1st floor telco Watertower Street. (2 up, 2 Kleiner Park Water Dept. closet. Utilize existing conduit supporting downstream) copper telco services. Fire Station 3, 3545 N Locust Four Rack mount FDP, inside building's 2" floor Grove Road. (2 up, 2 Fire Station 4 Kleiner Park telco closet. Utilize existing conduit downstream) supporting copper telco services. Meridian Police Dept., 1401 E. Rack mount FDP inside building's 1st floor Watertower Street. telco closet, utilizing existing conduit Four supporting copper telco services for main (2 up, 2 Parks & Rec. Fire Station 2 building basement access. Syringa Networks downstream) to provide 100 of additional lateral armored cable slack at this site and shall be coiled and mounted to existing backboard or City provided cable tray as necessary. Fire Station 4, 2515 S. Eagle Four Rack mount FDP, inside building's 2 nd floor Road. (2 up, 2 Fire Station 6 Fire Station 3 telco closet. Utilize existing conduit downstream) supporting copper telco services. Fire Station 1, 540 E. Franklin Four Rack mount FDP, inside building's 2 nd floor Road. (2 up, 2 City Hall Parks & Rec. telco closet. Utilize existing conduit downstream) supporting copper telco services. Fire Station 2, 2401 N 10 Mile Four Meridian Police Rack mount FDP, inside building's 2nd floor Road. (2 up, 2 Dept. Fire Station 5 telco closet. downstream) Parks & Recreation, 1700 Four Meridian Police Rack mount FDP inside building's 1st floor Lanark Street. (2 up, 2 Fire Station 1 Dept. telco closet. Utilize existing conduit downstream) supporting copper telco services. City Hall, 33 E. Broadway Four Main demarcation FDP to be installed in Avenue. (2 up, 2 Water Dept. Fire Station 1 basement utilizing existing conduit supporting downstream) copper telco services to access building. Demarcation shall be extended to 3rd floor data center via City provided cable path between floors. Syringa Networks will utilize unarmored cable for demarcation extension and deploy 2nd FDP in City provided 19" rack within 3rd floor data center. Water Dept., 2235 NW. 8 Four Rack mount FDP inside building's 1' floor Street. (2 up, 2 Water Tower City Hall telco closet. Utilize existing conduit downstream) supporting copper telco services. Waste Water, 3401 N. 10 Mile Syringa Networks to provide and install Road conduit to meet City's conduit approximately 975' from Ten Mile Road near storage tanks on south side of Waste Water facility. Syringa Networks will utilize City conduit from conduit meet point vault to west side of site admin building for access to building telecom 4 Four closet. City plans to build new admin building (2 up, 2 Fire Station 5 Fire Station 6 at this site. Current admin building is deeper downstream) into the property than planned new building. Re-route of fiber cable facility to future building is intended City plans to eventually pull-back lateral fiber to on-site vault and relocate demarcation FDP to new admin building. This relocation activity shall be performed by Syringa Networks at additional costs and is not part of this initial dark fiber project. Fire Station 5, 6001 N. Linder Four Rack mount FDP, inside building's 2° floor Road. (2 up, 2 Fire Station 2 Waste Water telco closet. Utilize existing conduit downstream) supporting copper telco services. 4.6K 8 Fire Station 5 WWr3401 9 S.SKm 6001 N. finder N Ten Mile Fire Station 7 2402 N Ten M e � City of Meridian Syringa Networks Dark Fiber Project Scope Drawing 4.— = New Lateral Fiber Builds 4 Strands at every site 2 Strand Ring Design. 4 Strand Max Utilization H = Existing Syringe Fiber Network ^- =2 Strand Ring Segments, Estimated 2 Strand lenghts 7.4Km Not to Scale Fire Station 3 3545 N Locust Grove 0- 12 Water Dept MK Park 2235 NW 8' 2 13 M iintenance Sh Building 1939 N. 2.71(m enture St Hall 33 E 7.SKm 3 Broadway 1.41(m 4.2Km vidian 1.SKm N Ea ad Fire Stat n- Roa 40 E F klin Parks & Rec 4 1.21(m 100 Lanark S 6.,/— 1 MPD 1401 E Water Tower 25 Watertort. wer E Watertower SKm Syringe 184 Core Fiber y30I ill Fire Station 6 Fire Station 4 1435 West Overland Road 2515 S Eagle S�l� PROTECT DESCRIPTION DRAWN BY REVISED VERSION PAGE City of Meridian Dark Fiber 2 Strand Collapsed Ring, 4 Strand IRU per Site David Posey 10/10/13 2.0 1 Actual may Planned Fiber Strand Count vary. Build Section Build Segment/Laterals Strand Count Stratford at ISP north to Watertower, west to S. Main City Center Build Meridian Rd, north to Pine. 72 Pint at Meridian Rd., west to 8th St, north to Cherry Lane 72 Lateral north on 8th St. to Water Dept. 2235 NW 8th St. 48 Lateral off Meridian Rd. into City Hall, 33 E. Broadway Ave. 48 Lateral off Watertower and Stratford, north to Franklin to 254 E. Watertower St. 48 Lateral off Watertower to Police Dept. 1401 Watertower St. 48 Lateral off Watertower north to Parks & Rec., 1700 Lanark St. 48 Main Ten Mile Build 184 and Ten Mile Rd. north to Mc Millen 144 Ten Mile at Mc Millen, east to Linder, north on Linder. 144 Lateral off Linder to Fire Station 5 6001 N. Linder Rd. 48 Lateral into West Water off Ten Mile Rd, 3401 N. Ten Mile Rd 48 Lateral into Fire Station 2 2401 N. Ten Mile Rd. 48 184 south to Overland at S. Linder Rd. 144 Lateral into Fire Station 6 (to be built) 1435 W. Overland Rd. 48 Eagle Road Build 184 south on S. Eagle Rd. to Goldstone Dr. 144 Goldstone and S. Eagle south near Fire Station 4 144 Lateral into Fire Station 4 2515 S. Eagle Rd. 48 Core hand hole between N. Eagle Rd. and N. Records Way east to N. Records & Elden Gray St. 48 � � » ENO »� \ � .�a .. .r> .. .. ,