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everskream
<br />IRUAGREEMENT
<br />THIS IRU AGREEMENT (this "AA rte') is made and entered into as of September _, 2013 (the "Effective Date ") by City of Lakewood,
<br />an Ohio municipal corporation with a place of business at 12650 Detroit Avenue, Lakewood, Ohio 44107 ( "GRANTEE "), and Everstreanr
<br />Solutions, LLC, an Ohio corporation with a place of business at 800 West St. Clair, Second Floor, Cleveland, Ohio, 44113 ("GRANTOR ").
<br />GRANTEE AND GRANTOR are sometimes individually referred m herein as a "Party" or collectively as the "Pef ire'
<br />RECITALS
<br />A. GRANTOR operates or shall operate a fiber
<br />optic communications system throughout the Northeast Ohio
<br />Region, which is more particularly described in Exhibit A (the
<br />"GRANTORSasum ').
<br />B. GRA NTEE desires to be granted an
<br />indefeasible right to use, and GRANTOR is willing to grant to
<br />GRANTEE, an indefeasible right to use, certain fibers and
<br />associated property in the GRANTOR System, on the terms and
<br />conditionssetfonhbelow.
<br />C. Each defined term shall have the meaning
<br />set forth in this Agreement where such term is first used.
<br />Accordingly, in consideration of the ..left promises
<br />set forth below, and other good and valuable eonsid ... him, the
<br />receipt and sumciare, of wbich are hereby acknowledged, the
<br />parties hereby agree as follows:
<br />1.0 GR\NTOFIRU
<br />1.1 GRANTOR hereby grants to GRANTEE., and GRANTEE
<br />hereby accepts from GRANTOR, a fully paid, exclusive,
<br />indefeasible right to use the dark fiber strands in a
<br />continuous path along the GRANTOR System more
<br />particularly described in Exhibit A (the "GRANTEE
<br />Fibers"), along with the nonexclusive right to use the
<br />tangible and intangible property needed for the use of the
<br />GRANTEE Fibers (collectively, the"Associated
<br />Propted including the associated fiber cable and
<br />GRANTOR's rights in all Underlying Rights, as that term
<br />is defined in Section 7 (the "IRU PT
<br />1.2 The l RU is granted the terms and subject to the
<br />covenants and conditions set forth in this Agreement and
<br />shall hemmer, effedlve on the Acceptance Date, as defined
<br />in Section42. The IRU shall be exclusive as to the
<br />GRANTEE Fibers, and nonexclusve as to the Associated
<br />Property. The IRU does not include the right of
<br />• RANTF. F, to own, control, maintain, modify of rector the
<br />GRANTER Fibers ar Associated Property, or the right of
<br />physical access to, the right to encumber in any manner, or
<br />other use ofthe GRANTOR System except as expressly
<br />set forth herein.
<br />1.3 GRANTEE acknowledges and agrees that GRANTOR is
<br />not supplying nor is GRANTOR obligated to supply to
<br />GRANTER any opt onics or electronics or optical or
<br />electrical equipmeat or other facilltics, including without
<br />]mutation, generators, batteries, air conditioners, fire
<br />protection and monitoring and testing equipment, all of
<br />which are the sole responsibility of GRANTEE, nor is
<br />GRANTOR responsible for performing any work other
<br />than as specified in this Agreement.
<br />14 GRANTOR shall, at no additional cost, provide intermit
<br />service at a speed am less than 1 Gbps symmetrical to
<br />GRANTEE for sale use by the GRANTEE.. Further,
<br />GRANTOR has entered into of agreement with the
<br />Lakewmd Public Schools for the provision of inteeet
<br />service at a speed of not less than 100 Mbps symmetrical
<br />and hereby agrees, and acknowledges sufficient
<br />consideration therefore, to upgrade the agreement with the
<br />Lakewood Public Schools by increasing that interest
<br />service speed at a speed of not less than 1 Claps
<br />symmetrical at no additional charge to GRANTEE or
<br />Lakewood Public Schools as long as n service cantonal is
<br />inspect
<br />2.0 CONSIDERATION FOR GRANT
<br />2.1 In consideration of the grant of the IRU hereunder by
<br />GRANTOR to GRANTEE, GRANTEE agrees to pay to
<br />GRANTOR, an IRU Fee in the amount set f nth on Exhibit A
<br />Fhe'TRU Fee"). The IRO Fee shall be paid based upon the
<br />payment terms described on Exhibit A All work invoked for
<br />in Exhibit A shall be bid by GRANTOR and GRANTEE
<br />shall have the right to inspect all bids to verify pricing.
<br />22 GRANTOR shall invoice GRANTEE for all amounts due
<br />under this Agreement, All invoices shall be due and payable
<br />within forty five (45) days alter receipt by GRANTEE of
<br />GRANTOR's invoice. GRANTOR reserres the right to
<br />apply a late charge equal to one percent (M) per month (or
<br />the maximum legal rate, if less) on any I.oice balance
<br />remaining unpaid alter the date due.
<br />3.0 FIBER ALONG THE GRANTOR SYST EAI
<br />3.1 Technical specifications of the GRANTEE Fibers are set
<br />forth in Exhibit .
<br />4.0 CONSTRUCTION, REPORTING ACCEPTANCE. AND
<br />TESTING OF GRANTEE FIBERS
<br />4.1 GRANTOR has constructed or shall summuel and install the
<br />GRANTEE Fibers within the route depicted on Exhibit A
<br />within M days from the execution of the IRO Agreement (the
<br />'Construction Completion Date'), in accordance with the
<br />specifications set forth in Exhibit B and in accordance with
<br />generally accepted industry standards. GRANTOR
<br />covenants that the GRANTOR System, including GRANTEE
<br />Fibers, shall be constructed substantially and in all material
<br />respects in accordance with Exhibit B and all industry
<br />standard outside plant specifications. GRAIaTBE will be
<br />permitted full access, at its own cost, to the work- improgress
<br />at all times for purposes of inspection amt construction
<br />monitoring, provided that GRANTOR is given notice of such
<br />access no lass than twenty -four (24) hours in advance.
<br />42 GRANTOR shall test all GRANTEE Fibers ("i' bar
<br />Acceptance Testing') on or before the Construction
<br />Completion Date to verify that the GRANTEE Fibers are
<br />installed and operating in accordance with the specifications
<br />described in Exhibits Band C. GRANTOR shall provide
<br />GRANTEE reasonable advance notice of the data and lime of
<br />Fiber Acceptance Testing such that GRANTER shall have
<br />the opportunity to have is person or persons present to
<br />observe the Fiber Acceptance Testing. When GRANTOR
<br />has determined that the results of the Fiber Acceptance
<br />Testing show that the GRANTEE Fibers have been installed
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