HomeMy WebLinkAbout21-079 - ExteNet Systems, Inc - Asset Exchange License Agreement21-079
Council Approval 2/1/21
THIS ASSET EXCHANGE LICENSE AGREEMENT (hereinafter referred to as the "Agreement") is
made and entered into as of the date of the last signature below (the "Effective Date"), between ExteNet
Systems, Inc., a Delaware corporation with primary offices at 3030 Warrenville Road, Suite 340, Lisle,
Illinois 60532 ("ExteNet"), and City of Tukwila, a municipality in the State of Washington ("City")
ExteNet and City may be hereinafter referred to individually as "Party", and collectively as "Parties."
WHEREAS, each Party owns or has rights in Conduit or Fiber within the City and each Party wishes to
exchange certain Conduit or Fiber from their respective Conduit or Fiber systems within the City
boundaries, and enter into an agreement to facilitate future exchanges.
NOV, THEREFORE, for and in consideration of the mutual covenants and consideration set forth in this
Agreement, the Parties do hereby agree as follows:
1. Definitions. The following terms, whether in the singular or in the plural, when used in this
Agreement shall have the meaning specified in this Section 1. Use of the word "or" when
describing "Fiber or Conduit" is not intended to mean or convey that it is exclusively one or the
other unless the context specifically requires.
Authorizations: All governmental or municipal approvals and authorizations; all rights-of-
way and pole attachment agreements; and all leases, licenses, consents or other agreements
necessary for the Licensor to construct, install, maintain and repair its Conduit System and
to license portions of the Conduit System to a third party.
1.2 Asset: Conduit or Fiber within a Party's Conduit System or otherwise agreed between the
Parties.
1.3 Asset Exchange Form (or "AEF"): The form exchanged between the Parties via email or
hardcopy, to communicate and agree to information related to an Asset Request, Asset Use
Authorization, and Notice of Asset Availability, as shown on Exhibit A.
1.4 Asset Request: A formal request for a license to use Conduit or Fiber, within a specific
portion of the other Party's Conduit System (either the City Conduit System or the
ExteNet Conduit System as defined), made by completion of the Asset Request section of
an AEF.
1.5 Asset Use Authorization: Unless rejected upon request, Licensor's acceptance and grant to
an Asset Request providing authorization to license specific Conduit or Fiber. The Asset
Use Authorization is executed by completing the Asset Use Authorization section of the
Asset Exchange Form.
1.6 City Conduit System: Existing Conduit or Fiber, owned by City, as more particularly
described on an AEF or exhibits attached thereto; provided that, subject to the terms of this
Agreement, such Conduit or Fiber may be modified from time -to -time in City's sole
discretion provided such modifications do not impact Licensee use of the Licensed Conduit
or Fiber unless otherwise permitted herein.
1.7 Conduit: Conduit which (a) was installed for the purpose of, or capable of being used for,
communication fiber installation in accordance with Bellcore Standards, (b) is located in
the City, and (c) is owned by either ExteNet or City, as the context requires.
1.8 Conduit System: Either the City Conduit System or the ExteNet Conduit System, as
context requires.
1.9 Fiber: dark (unlit) fiber optic cable of one or more fibers owned by either the City or
ExteNet, as the case may be, and as specified in an AEF or exhibits attached thereto.
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1.10 License or Licensed Asset: Asset Use Authorization by City or ExteNet, as the case may
be, to use the Licensed Conduit or Fiber for the License Term.
1.11 License Term: The term of each license for use of Licensed Conduit or Fiber, as further
defined in Article 6 of this Agreement.
1.12 Licensee: The Party authorized under this Agreement and an AEF to use Licensed Conduit
or Fiber within the other Party's Conduit System.
1.13 Licensor: The Party granting a License pursuant to an Asset Use Authorization,
1.14 Notice of Asset Availability: Notice from Licensor to Licensee that the Licensed Conduit
or Fiber meets the Specifications and is available for Licensee's use, provided by
completion of the Notice of Asset Availability section of the Asset Exchange Form.
1.15 Specifications: The minimum specifications identified on an AEF that Licensed Conduit
or Fiber must meet as a precondition to the Notice of Asset Availability.
1.16 ExteNet Conduit System: Existing Conduit or Fiber owned by ExteNet, as described on
an AEF or exhibits attached thereto. on Exhibit A; provided that, subject to the terms of
this Agreement, such Conduit or Fiber may be modified from time -to -time in ExteNet's
sole discretion provided such modifications do not impact Licensee use of the Licensed
Conduit or Fiber unless otherwise permitted herein.
2. Exchanging Assets.
21 As set forth in an executed AEF, City agrees, subject to the terms and conditions of this
Agreement, to grant a License to ExteNet to use available Conduit or Fiber within City's
Conduit System, including the right and permission to access and use any City easement(s)
that the City's Conduit System routes through. This only applies to those easements that
the City is authorized to grant access to ExteNet and ExteNet receives permission to
access from the City. As set forth in an executed AEF, ExteNet agrees, subject to the terms
and conditions of this Agreement, to grant a License to City to use commercially
available Conduit or Fiber within ExteNet's Conduit System. Nothing in this agreement
shall purport to give the City the right to resell any Fiber it may acquire in this Agreement.
Each segment of conduit or fiber strands licensed will entitle the Licensor to the same
amount of conduit or fiber strands on the Licensee's Conduit System.
2.2 City and ExteNet agree that the assets to be exchanged must be available at the time of
the AEF exchange,
2,3 City and ExteNet agree that the intent of the Parties is that the Licensed Assets exchanged
between the Parties will remain balanced and approximately equal, The Parties agree that
the initial AEF's executed by the Parties on the same date as the Effective Date are an equal
exchange of Licensed Assets. Further AEF equity analysis will consider Licensed Asset
type, length (on a linear foot or a mile -for -mile basis, whichever is most applicable to the
request), capacity and location as agreed between the Parties. Licensed Assets within the
central business area, will be calculated at twice its length for purposes of exchanges of
Assets outside the central business area.
2,4 If the amount of a Licensed Asset that one Party has Licensed, as to Conduit to Conduit or
Fiber to Fiber amounts, exceeds the amount of Licensed Asset that the other Party has
Licensed, and the difference is greater than 15% ("Disparate Licensed Asset Amount"),
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then the Party with excessive Licensed Asset will not request additional AEF until the
Disparate Licensed Asset Amount is corrected (meaning less than 15%). Notwithstanding
the foregoing, the Parties may agree to alternate consideration to correct a Disparate
Licensed Asset Amount,
2,5 Either Party may relinquish its right to use any segment of Licensed Asset prior to theend
of the License Term. If one Party relinquishes Licensed Asset which results in Disparate
Licensed Asset Amount, then the Party with excessive Licensed Asset will not request
additional AEF until the Disparate Licensed Asset Amount is corrected or the Parties
otherwise agree.
2,6 Each Party will maintain a record of the Licensed Assets exchanged pursuant to this
Agreement. Upon reasonable request by a Party, not greater than once per year, the Parties
will meet to review and validate these records.
2.7 This agreement does not remove the requirement that ExteNet must obtain all permits or
other approval as required by law to perform any work under this agreement. Prior to a
completed exchange, if either Party is unable to obtain, through no fault of its own,
permits or other approvals required to perform any work under a particular AEF, that
request, and its corresponding exchange shall cease to exist and each Party shall return
back into the position they were in before the agreement- was made.
2.8 Following a completed exchange, if one Party loses the ability to maintain required rights
for an exchanged Licensed Asset, then that Party shall pay the other party the fair market
value for the corresponding Licensed Asset which was exchanged.
3. Asset Requests and Use Authorization.
3.1 Submission of AEF. All requests for Licensed Assets shall be made utilizing a AEF, with
each Party completing information as Licensor or Licensee, as applicable, and forwarding
the AEF via email to both address of a Party as indicated below (two (2) required for back-
up purposes):
If to ExteNet: noc@extenetsysterns.com
If to City: eric.comptonAtukwilawa.gov
joel.bushgtukwilawa.gov
3.2 When one Party wishes to use Assets of the other Party, such Party will complete the Asset
Request section of the AEF, and submit the form to the other Party's email addresses.
Submission of an AEF to one email address but not both email addresses shall not, by itself,
constitute a failure to properly submit an AEF.
3.3 Acceptance or Denial of AEF. Within fifteen (15) business days of receipt of a completed
Asset Request, Licensor will complete the Asset Use Authorization section of the AEF and
return the form to Licensee. Licensor's response will either authorize Licensee's use of
the Asset upon Notice of Asset Availability or indicate denial of the Asset Request.
3.4 Notice of Asset Availability. Notice of Asset Availability can take place on the same date
as the Asset Use Authorization if the Asset meets the Specifications on the same date. If
the Notice of Asset Availability cannot take place on the same date as the Asset Use
Authorization, Licensor shall send back the AEF without completion of the Notice of Asset
Availability section. Licensor shall then promptly provide email notice to Licensee when
the Asset is available, and Licensee shall send back the AEF for Licensor's completion of
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the Notice of Asset Availability. In all cases, upon completion of the Notice of Asset
Availability from Licensor, the License Term shall begin.
3.5 Licensor will use commercially reasonable efforts to ensure that the requested Asset
complies with all applicable Specifications and ready for Licensee's use within thirty (30)
days of date of an Asset Use Authorization.
4. Access and Escort.
4.1 Handholes and Manholes. Unless otherwise specifically agreed in an AEF, Licensee will
install handholes and/or manholes as a means of accessing the Licensed Conduit or Fiber.
Licensee shall be responsible for all "one -call" responses and cable locate services for the
Licensed Conduit or Fiber. Alt costs associated with Licensee's access to the Licensed
Conduit or Fiber will be borne by the Licensee. The City shall not be required to install
handholes or manholes for Conduit that has been installed prior to the entry of this
Agreement. If necessary, ExteNet may install handholes or manholes at its own cost.
4.2 Activities Around or In Licensed Assets. If Licensee's activities will be performed within
four (4) feet of Licensor's Conduit System, Licensee must contact Licensor to schedule the
activity at a mutually agreed time allowing for Licensor to provide an escort, at Licensor's
discretion and at Licensee's cost. Escort services will be requested using the Request for
Field Activity ("RFA") form attached as Exhibit B or such other form as mutually agreed
in writing. For Fiber placement within a Licensed Conduit, a RFA shall be made. Licensor
shall grant such access as agreed to in an RFA, provided however, that Licensor shall not
delay such an access request by more than ten (10) business days of receipt of such request.
Licensee shall be responsible for all costs, including Licensor's costs for an RFA for Fiber
placement. Licensor's costs for RFA may include a fifteen percent (15%) markup over
costs.
4.3 The Licensee shall have the right, but not the obligation, to supervise and oversee any work
performed by the Licensor in or to the Licensee's facilities, at Licensee's cost.
5. Repair and Maintenance
5.1 If either Party wishes to perform any repairs or maintenance they must follow all state and
local laws for any and all work within in the right of way or other locations that require
approval by state and local governing bodies, this includes permits and other requirements.
ExteNet shall use commercially reasonable efforts to cause the Licensed Assets to
continue to meet the Specifications during the License Term. ExteNet shall perform all
routine maintenance and operations for the shared conduit and fiber system at its own
cost, provided that City shall reimburse ExteNet for its proportionate share of all
emergency maintenance and repair costs including but not limited to all costs associated
with "one- call" responses, cable locate services and placement of a locate wire for the
Licensed Conduit or Fiber and any other repair costs incurred due to damage caused by
the City, plus fifteen percent (15%). Proportionate share means the number of licensed
fibers divided by the total amount of fibers for the particular segment.
5.2 Routine Maintenance. From time to time, at the ExteNet's reasonable discretion, and after
adequate advance notice to the City (which shall be at least 72 hours), the ExteNet will
schedule and perform specific periodic maintenance and repair checks and services on both.
the Licensed Assets. This maintenance shall be provided at no cost to the City.
5.3 Emergency Maintenance.
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(a) Within two (2) hours after a ExteNet receives a trouble report of imminent or actual
failure or impairment of the Licensed Conduit or Fiber, the ExteNet shall commence
all commercially reasonable efforts to repair such failure or impairment to cause the
Licensed Conduit or Fiber to meet the Specifications. At a minimum, such
commercially reasonable efforts shall include dispatching at least one service
technician (or more if commercially reasonably prudent to do so) to the source of the
reported problem.
(b) Within four (4) hours after ExteNet receives a trouble report of the type described in
section (a), upon the City's request, ExteNet shall provide adequate assurance that
ExteNet is diligently pursuing remedial action. If the ExteNet fails to initiate and
diligently pursue repair within six (6) hours after the trouble report, then the City
may, but shall not be obligated to, effect reasonable repair or replacement to restore
the Licensed Conduit or Fiber to the Specifications ("Self Help"). ExteNet shall
reimburse the City for all reasonable costs and expenses for Self Help incurred within
forty-five (45) days after receipt of an invoice which shall include backup
documentation for all charges. If the City performs Self Help, the City shall be
responsible to perform such Self Help in a professional and workmanlike manner in
accordance with industry standards and if necessary shall indemnify ExteNet in
accordance with 12.2.
(c) If the City does not elect to repair the Licensed Conduit or Fiber pursuant to subsection
(b), and ExteNet fails to restore the Licensed Conduit or Fiber to the Specifications
within twelve (12) hours after the trouble report, then upon the City's request,
ExteNet shall review its Conduit System and propose alternate Licensed Assets with
the same end points and capacity at least equal to the capacity or fiber count of the
failed Licensed Conduit or Fiber, if available. If such alternative Licensed Asset is
not available, the City 'nay terminate the Licensed Asset pursuant to the terms of this
Agreeinent.
(d) Notice of interruption arising from relocation, condemnations and Force Majeure (as
defined in Section 14) events shall be treated as a trouble report for purposes of this
Section 5 and shall require prompt notice via email to both address of a Party as
indicated below (two (2) required for back-up purposes):
If to ExteNet: noc@extenetsystems.com
if to City: eric.compton@tukwilawa.gov
joel.bush@tukwilawa.gov
6. Term. The term of this Agreement, shall begin on the Effective Date, and shall end on the
expiration of the last AEF License Term. Each License Term shall begin upon receipt of Notice of
Asset Availability, and shall end on the last day of the AEF License Term.
7. Representations Regarding Authorizations.
7.1 Licensor represents, warrants and covenants that:
(a) it has obtained, and will use commercially reasonable efforts to maintain all
Authorizations throughout any License Term; and
(b) it has the full right and authority under the Authorizations to enter into this
Agreement and perform its obligations hereunder, and the same will not violate the
Authorizations (with or without the giving of notice or the lapse of time or both)
or require any consent, approval, filing or notice under the Authorizations or under
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any provision of any law, rule or regulation, court order, judgment or decree
applicable to the Licensor; and
(c) it has no knowledge of any defect in the normal operating condition of the Conduit
System that would have an adverse effect on the ability of the other Party to utilize
Licensed Conduit or Fiber to provide telecommunications services to its
customers; and
(d) it will exercise its rights and perform its obligations hereunder only in accordance
with all applicable laws, rules and regulations; and
(e) it will perform all maintenance services in a professional and workmanlike manner
in accordance with industry standards.
7.2 Licensee represents, warrants and covenants that:
(a) Licensee's use of the Licensed Conduit or Fiber will be limited to the provision of
communication services in accordance with all Federal, State and local laws, rules,
regulations, codes, statutes and subject to all Authorizations; and
(b) Licensee has obtained all rights of way, authorizations and consents necessaty to
use the Licensed Conduit or Fiber. Licensee will indemnify, defend and hold
harmless Licensor from any claims related to its use of the Licensed Conduit or
Fiber; and
(c) it has the full right and authority under the Authorizations to enter into this
Agreement and perform its obligations hereunder, and the same will not violate the
Authorizations (with or without the giving of notice or the lapse of time or both)
or require any consent, approval, filing or notice under the Authorizations or under
any provision of any law, rule or regulation, court order, judgment or decree
applicable to the Licensor; and
(0 it will perform all work related to access and use of the Licensed Conduit or Fiber
in a professional and workmanlike mariner in accordance with industry standards.
8. Default and Termination.
8.1 Neither Party shall be in default under this Agreement herein unless and until such Party
has received written notice of such default from the other Party, and has failed to cure the
default within thirty (30) days after receipt of such notice, except for a payment default
which must be cured within ten (10) days after receipt of such notice. Notwithstanding,
when a default (unrelated to payment) cannot reasonably be cured within such thirty (30)
day period, the time for curing such default shall be extended for a period no longer than
sixty (60) days from the date of the receipt of the default notice if the Party proceeds
promptly to cure the default with due diligence.
8.2 Unless otherwise provided herein, a Party shall be in default if (i) such Party breaches any
term or provision of this Agreement or fails to comply with the provisions of this License;
(ii) such Party becomes insolvent; (iii) a petition under any of the bankruptcy laws is filed
by or against such Party; (iv) such Party makes a general assignment for the benefit of
creditors; or (v) a receiver, whether temporary or permanent, is appointed for the property
of such Party or any part thereof.
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8,3 Upon the failure by the defaulting Party to timely cure any default, the non -defaulting Party
may (i) take such action as it determines, in its sole discretion, to be necessary to correct
the default, and/or (ii) pursue any legal remedies it may have under applicable law or
principles of equity relating to such breach. Notwithstanding the above, if the defaulting
Party certifies to the non -defaulting Party in writing that a default has been cured, such
default shall be deemed to be cured unless the non -defaulting Party notifies the defaulting
Party in writing within fifteen (15) days of receipt of the defaulting Party's notice of cure.
8.4 In the event of a payment default which has not been cured, Licensor may suspend
Licensee's use of the Licensed Conduit or Fiber, without further notice and by whatever
means Licensor deems appropriate, until the payment default is cured and for as long as
thirty (30) days from the date of notice. If the payment default has not been cured within
such thirty (30) day period, then Licensor may immediately terminate this Agreement and
pursue any legal remedies it may have under applicable law or principles of equity relating
to Licensee's breach.
8.5 Notwithstanding the foregoing, no termination of this Agreement shall 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 the non -defaulting Licensee shall not be required to
relinquish its rights in the Licensed Conduit or Fiber as a result of a Licensor's default and
failure to cure.
8.6 City shall use the Licensed Assets for City's own use. Under no circumstances shall City
resell, lease, license, provide an IRU, or otherwise provide use of Licensed Assets, to any
third party. A violation of this Section 8.6 shall be grounds for immediate termination of
the Licensed Asset.
9. Taxes.
9.1 Each Party shall pay the taxes that apply to their use of facilities under this agreement.
ExteNet shall have the ability to transfer, sell, assign, swap, exchange, lease, sublease,
license, sublicense, resell or grant indefeasible or other rights of use in or to all or any part of
the optical fiber strands it pulls within the Licensed Asset(s) it acquires under this Agreement
as "dark fiber" as such term is commonly understood in the telecommunications industry.
ExteNet's resell rights do not include the right to transfer bear legal title. ExteNet is
responsible for any actions that may violate this Agreement by those entities that have been
granted access or use of optical fiber strands by ExteNet.
10. Relocation of the Facilities.
If the need arises either through law, permit, or other circumstances to relocate the Conduit System
and/or Licensed Conduits or Fiber, or a portion thereof. Each Party shall be responsible for its
proportionate share (as defined in Section 5.1) of relocation costs. Licensor shall give the Licensee
at least three (3) months' prior notice, or as soon as practicable, of any relocation or of any
governmental proceedings that might result in a relocation, or such lesser amount of notice as the
Licensor receives from such governmental authority. Relocation costs means the net relocation
costs adjusted for amounts Licensor may receive from any third -party.
11. Condemnation.
If at any time during the Agreement Term, all or any significant portion of the Conduit
System or the Licensed Conduit or Fiber shall be taken for any public or quasi public
purpose by any authority by the exercise of the right of condemnation or eminent domain,
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such a taking shall be an interruption of use that shall be handled in accordance with Section
5, Repair, Maintenance and Continuity,
11.2 Each Party shall notify the other Party immediately upon learning of any condemnation
proceeding filed against its Conduit System which may impact the other Party's Licensed
Conduit or Fiber.
12. Indemnification and Exclusion of Certain Damages.
12.1 ExteNet shall defend, indemnify and hold the City, its officers, officials, employees and
volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney
fees, arising out of or in connection with its performance of this Agreement, except for injuries
and damages caused by the sole negligence of the City.
The City shall defend, indemnify and hold ExteNet, its officers, officials, employees and
volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney
fees, arising out of or in connection with its performance of this Agreement, except for injuries
and damages caused by the sole negligence of ExteNet.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,
then, in the event of liability for damages arising out of bodily injury to persons or damages to
property caused by or resulting from the concurrent negligence of ExteNet, its officers, officials,
employees and volunteers and the City, its officers, officials, employees, and volunteers,
ExteNet's liability hereunder shall be only to the extent of ExteNet's negligence and the City's
liability hereunder shall be only to the extent of the City's negligence. It is further specifically and
expressly understood that the indemnification provided herein constitutes ExteNet's and the
City's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The provisions of this
section shall survive the expiration or termination of this Agreement.
12.2 Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE
UNDER ANY CIRCUMSTANCES TO THE OTHER PARTY FOR SPECIAL, INDIRECT,
PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES,
INCLUDING LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY OR OTHER SIMILAR
DAMAGES RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, BY STATUTE,
IN TORT OR CONTRACT
13. Insurance.
13.1 The parties agree that they shall procure and maintain for so long as that party is in use of the IRU
Conduit or IRU Fiber, as the case may be, insurance against claims for injuries to persons or
damages to property which may arise from or in connection with the exercise of rights, privileges
and authority granted to that party, its agents representatives or employees. The parties shall require
that every contractor and subcontractor maintain substantially the same insurance coverage with
substantially the same limits as required of that party. The parties shall procure insurance from
insurers with a current A.M. Best rating of not less than A -VII. ExteNet shall provide a copy of a
certificate of insurance and additional insured endorsement to the City for its inspection at the time
of or prior to acceptance of this Agreement. The parties shall maintain insurance that includes:
(a) Automobile Liability insurance with limits no less than $2,000,000 combined single limit
per occurrence for bodily injury and property damage. Automobile Liability insurance
covering all owned, non -owned, hired and leased vehicles. Coverage shall be written on
Insurance Services Office (ISO) form CA 00 01 or a substitute form that provides
equivalent liability coverage.
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(b) Commercial General Liability insurance, written on an occurrence basis with limits no less
than $3,000,000 per occurrence and $5,000,000 aggregate for personal injury, bodily injury
and property damage. Coverage shall include but not be limited to: blanket contractual;
premises; operations; independent contractors; stop gap liability; personal injury; products
and completed operations; broad form property damage; explosion, collapse and
underground (XCU); and employer's liability. Commercial General Liability insurance
shall be written on Insurance Services Office (ISO) occurrence form CG 00 01 and shall
cover products liability. The City shall be named as an additional insured under Grantee's
Commercial General Liability insurance policy using ISO Additional Insured -State or
Political Subdivisions -Permits CG 20 12 or a substitute endorsement providing equivalent
coverage;
(c) Workers' Compensation coverage as required by the Industrial Insurance laws of the State
of Washington. No deductible is presently required for this insurance; and
(d) Umbrella liability policy with limits not less than $1,000,000 per occurrence and
$5,000,000 in the aggregate.
13.2 Maintenance of insurance shall not be construed to limit the liability of either party to the coverage
provided by such insurance, or otherwise limit a party's recourse to any remedy available at law or
equity. Further, a party's maintenance of insurance policies required by this agreement shall not
be construed to excuse unfaithful performance by that party.
13.3 If the ExteNet maintains higher insurance limits than the minimums shown above, the City shall
be insured for the full available limits of Commercial General and Excess or Umbrella liability
maintained by the ExteNet, irrespective of whether such limits maintained by ExteNet are greater
than those required by this contract or whether any certificate of insurance furnished to the City
evidences limits of liability lower than those maintained by ExteNet.
13.4 ExteNet shall provide the City and all Additional Insureds for this work with written notice of any
policy cancellation within two business days of their receipt of such notice.
13.5 Failure on the part of the ExteNet to maintain the insurance as required shall constitute a material
breach of contract, upon which the City may, after giving five business days notice to ExteNet to
correct the breach, immediately terminate the contract or, at its discretion, procure or renew such
insurance and pay any and all premiums in connection therewith, with any sums so expended to be
repaid to the City on demand, or at the sole discretion of the City, offset against funds due
ExteNet from the Public Entity.
14. Force Majeure.
Neither party shall be liable to the other or deemed in breach or default for any failure or delay in
performance under this Agreement during the time and to the extent its performance is prevented
by reasons of Force Majeure. For the purposes of this Agreement, Force Majeure means an
occurrence that is beyond the reasonable control of and without fault or negligence of the party
claiming force majeure and which, by exercise of due diligence of such party, could not have been
prevented or overcome. Force Majeure shall include natural disasters, including fire, flood,
earthquake, windstorm, avalanche, mudslide, and other similar events; acts of war or civil unrest
when an emergency has been declared by appropriate governmental officials; acts of civil or
military authority; freight embargoes; epidemics; quarantine restrictions; labor strikes; boycotts;
terrorist acts; riots; insurrections; explosions; and nuclear accidents. A party claiming suspension
or termination of its obligations due to force majeure shall give the other party prompt written
notice, but no more than fourteen (14) working days after the event, of the impediment and its effect
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on the ability to perform; failure to provide such notice shall preclude recovery under this
provision. Such delay shall cease as soon as practicable and written notification of same shall be
provided. The time of completion shall be extended by Agreement modification for a period of
time equal to the time that the results or effects of such delay prevented the delayed party from
performing in accordance with this Agreement.
15. Assignment.
City shall use the Licensed Conduit or Fiber for City's own use. Under no circumstances shall City
resell, lease, license, provide an IRU, or otherwise provide use of Licensed Conduit or Fiber Stands,
to any third party. Notwithstanding, ExteNet may assign this Agreement in its entirety without the
City's consent, to an entity in which such ExteNet or its parent company directly or indirectly
owns a majority of the voting interests, or to any person, finn or corporation into or with which it
may be merged or consolidated or that purchases all or substantially all of ExteNet's assets by
providing notice of such assignment to the City.
16. Notice.
16.1 Other than notice for AEF and maintenance, all other notices, to be effective, must be in
writing and delivered by pre -paid commercial overnight delivery service, or by first class
mail, return receipt requested, addressed as follows:
If to ExteNet:
If to City:
ExteNet Systems, Inc.
ATTN: CFO
3030 Warrenville Rd, Suite 340
Lisle,IL 60532
With copy to General Counsel at same address
Notice@extenetsystems.com
CITY of Tukwila
ATTN: IT Manager
6300 Southcenter Blvd
Tukwila, WA 98168
Either Party may change its notice address(es) by written notice to the other Party.
16.2 Notice shall be effective on the date of the addressee's receipt or refusal, as the case may
be.
17. Dispute Resolution and Governing Law.
In the event of any claim or dispute under or in connection with this Agreement, the Parties shall
negotiate in good faith to resolve the claim or dispute or, upon the failure to resolve such claim or
dispute through good faith negotiations, this Agreement shall be governed by and construed in
accordance with the laws of the State of Washington without giving effect to the principles of
conflicts of laws. Venue for any dispute arising under this Agreement shall be in Pierce County
Superior Court.
19. Miscellaneous.
This Agreement, including all Exhibits, sets forth the entire agreement of the Parties with respect
to the subject matter hereof and supersedes all prior understandings and agreements on such subject
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matter. No amendment or modification to this Agreement shall be valid unless in writing and signed
by both Parties. The only relationship between the Parties is that of licensor and licensee with
respect to the Licensed Conduit, and otherwise as independent contracting Parties, and specifically,
but without limitation, the Parties are not partners in any undertaking. THIS AGREEMENT
SHALL BE INTERPRETED AND ENFORCED UNDER THE LAWS OF WASHINGTON
WITHOUT REGARD TO CONFLICTS OF LAWS. If any provision of this Agreement is
unenforceable, it shall be deemed stricken from this Agreement and shall have no effect on any
other provision. This Agreement shall be binding upon and inure to the benefit of Parties and their
respective representatives, successors and assigns. Headings are for convenience only and shall
not affect the interpretation of this Agreement. This Agreement shall become effective only upon
execution by both Parties. Both Parties have been represented by counsel and neither Party shall
be deemed to be the drafter of this document for purposes of interpreting an ambiguity against the
drafter. There are no third party beneficiaries of this Agreement. "Days" shall mean calendar days,
unless otherwise specified. Business days shall mean all days other than Saturdays, Sundays and
Federal holidays. No waiver shall be valid unless in writing and signed by the Party against whom
enforcement is sought.
20. Waiver. No delay or omission by either party to exercise any right or power occurring upon non-
compliance or failure of performance by the other party shall impair that right or power or be
construed to be a waiver thereof. A waiver by either party of any of the covenants, conditions or
agreements to be performed by the other party shall not be construed to be a general waiver of any
such covenants, conditions or agreements, but the same shall be and remain at all times in full force
and effect.
21. Severability. In the event any term, covenant or condition of this Agreement, or the application of
such term covenant or condition, shall be held invalid as to any person or circumstance by any court
having, jurisdiction, all other terms, covenants and conditions of this Agreement and their
application shall not be affected thereby, but shall remain in force and effect unless a court holds
that the invalid term, covenant or condition is not separable from all other terms covenants and
conditions of Agreement.
IN WITNESS WHEREOF, the Parties have caused this Asset Exchange Agreement to be executed by their
respective duly authorized representatives as of the day and year first above written.
EXTENET SYSTEMS, INC CITY OF TUKWILA
By:
Print Name: R. I-1 11
Title: EVP- Loo
Date:
4/21.12.Dzi
By:
eSigned via SeemlessDocs.com
C7/(Law 6A-Ge/g
Key: .11,2,163,,clucctltle.,tleet1,050&00
Director Initials
JAB
Print Name: Allan Ekberg
Title: Mayor
Date: 05/20/2021
APPROVED AS TO FORM
eSigned via SeemlessDocs.com
oe. adi-eK
Key: 2,2,010f2c02,10001,5673ebfb3ffa_
Office of the City Attorney
Page 1 1 of 14
EXHIBIT
ASSET EXCHANGE FORM
This Asset Exchange Form shall be processed in accordance wth the Asset Exchange Agreement by and
between ExteNet and City of Tukwila dated . If a License is granted hereunder, the
license shall be for the term listed below.
ASSET REQUEST (completed by the Licensee):
Requesting Party:
Date:
Contact Person:
Phone:
EMAIL:
AEF Term:
AEF Renewal Term:
Specifications:
A Location:
ZLocotion:
Number of Conduit:
Size of Conduit:
Access Points:
Specifications (fiber type,
requirements, etc.):
A Location:
Z Location:
Fiber Count:
Is Fiber within above Conduit?:
Splice Points:
ASSET REQUEST CONFIRMATION (completed by the Licensee):
Date:
ASSET USE AUTHORI TION ICENSE comp eted by the Licensor):
Party:
Date:
Contact Person:
EMAIL:
Phone:
o License Granted o License Denied
(check one)
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(Licensor to attach a drawing to this AEF of the License, including access and splice points.)
Licensor Signature:
Printed Name:
Title:
Date:
NOTICE OF ASSET AVAILABILITY (completed by the Licensor):
Date of Asset Availability:
Licensor Signature:
Printed Name:
Title:
Date:
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EXHIBIT B
TO BE AGREED UPON BY THE PARTIES. FORM MAY INCLUDE:
City shall coordinate all activity on a Licensed Asset with ExteNet's Network Control and
Management at
ExteNet shall coordinate all activity on a Licensed Asset with City's Network Operations Center at 1 -800 -
Originator:
Phone #:
Date Originated:
Responsible Party:
Phone #:
CeIUPager#:
Additional Vendor
Contact Info:
Phone:
Maintenance Spans affected:
Job Locations:
City:
State:
Brief Job Description:
*************AcT
V TY CLASSIFICATION*************
Date requested: Tine:
Expected Duration of Activity:
***************AppRoyALs***************
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