MASTER AGREEMENT

FOR INDEFEASIBLE RIGHT OF USE OF FIBER

This Master Agreement for Indefeasible Right of Use of Fiber (“Agreement”) is made and entered into as of this 30thday ofMarch, 2010, (the “Effective Date”) by and between The Illinois Municipal Broadband Communications Association, an Illinois not-for-profit corporation (“User”), and The City of Batavia, an Illinois municipal corporation(“City”).

RECITALS

A.The City has constructed a fiber optic cable system (the “System”)for use by the City and by third parties.

B.User wants to use a portion of the fibers in the System, all on the terms and conditions contained in this Agreement.

C.To provide User with the right to use fibers in the System, the City and the User will, from time to time, enter into separate Statements of Work pursuant to which Statements of Work the right to use specific User Fibers (as defined below) will be granted to User, all subject to the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the premises and mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

  1. Master Agreement. This Agreement is a Master Agreement for Indefeasible Right of Use of Fiber. The fibers in the System that are subject to this Agreement and that are reserved for User are defined below as the “User Fibers.” To subject any fibers in the System to the terms and conditions of this Agreement, the City and the User will enter into a separate schedule (a “Statement of Work”) in the form attached to this Agreement as Schedule 1. Each such Statement of Work must contain an identification of the fibers in the System which are to be added to this Agreement, the fees to be paid by the User for the use of such fibers, the term of the Statement of Work, and any other provisions regarding those specific fibers which the City and the User elect to add. Upon execution of such Statement of Work by the City and the User, the Statement of Work shall be attached to this Agreement as part of Exhibit A, and the fibers identified in that Statement of Work shall constitute User Fibers for all purposes under this Agreement.
  2. Certain Definitions. The following terms are hereby defined:

(a)“Affiliate”shall mean any Person controlling, controlled by, or under common control with another Person.

(b)“City” means the City of Batavia, an Illinois municipal corporation.

(c)“City’s Rights”are, collectively, all deeds, leases, easements, rights of way, licenses, permits and other rights, titles or interests as are necessary for the construction, installation, maintenance, repair and replacement of the City Cable, including the City’s Rights under the DAA Intergovernmental Agreement.

(d)“Control”or similar derivations thereof shall mean with respect to: (a) a corporation having stock or members, the ownership, directly or indirectly, of fifty percent (50%) or more of the securities of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the directors or managers of such corporation; (b) a notforprofit corporation not having stock, having the power to elect, or appoint, approve or ratify, directly or indirectly, a majority of the members of the Directing Body of such corporation; or (c) any other entity, the power to direct the management of such entity through the ownership of at least a majority of its voting securities or the right to designate or elect at least a majority of the members of its Directing Body, by contract or otherwise. For purposes of this definition, “Directing Body”means with respect to: (d) a corporation having stock or members, such corporation's board of directors or managers or and the owners, directly or indirectly, of fifty percent (50%) or more of the securities of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the corporation's directors or members (both of which groups shall be considered a Directing Body); (e) a notforprofit corporation not having stock, such corporation's members if the members have discretion to elect the corporation's directors, or the corporation's directors if the corporation's members do not have such discretion; and (f) any other entity, its governing board or body. For purposes of this definition, all references to directors and members shall be deemed to include all entities performing the function of directors or members, however designated.

(e)“City Cable”isthat certain fiber optic cable and conduit constructed and installed along the City Route.

(f)“City Route”isthe route of fiber optic cable installed by and owned by the City.

(g)“DAA” means the DuPage Airport Authority, an Illinois body politic and corporate.

(h)“DAA Intergovernmental Agreement” means that Intergovernmental Agreement between the City of Batavia and the DAA.

(i)“Emergency Maintenance” is defined in Section 7(g).

(j)“Emergency Preventive Maintenance” is defined in Section 7(g).

(k)“Event of Default” is defined in Section 10.

(l)“Maintenance Manager”is defined in Section 7(j).

(m)“Person”shall mean an individual, association, partnership, corporation or other legally recognized entity.

(n)“Routine Maintenance” is defined in Section 7(g).

(o)“Statements of Work” are the separate documents executed by the City and User in the form attached hereto as Schedule 1 and which, following execution by the City and the User, will be attached to this Agreement as Exhibit A.

(p)“System” is defined in Recital Paragraph A of this Agreement.

(q)“Technician” is defined in Section 7(g).

(r)“Term.”For each Statement of Work, the “Term” isthe period identified in such Statement of Work as the Term and which will constitute the duration of the period of time as to which this Agreement will apply to the User Fibers identified in that Statement of Work.

(s)“User” is the Illinois Municipal Broadband Communications Association, an Illinois not-for-profit corporation.

(t)“User Fee”isthat fee or other consideration for use of a User Fiber which is described on the Statement of Work for that User Fiber.

(u)“User Fibers”are those dark fibers within the City Cable along the City Route which are identified in any Statement of Work.

(v)“User Maintenance Fee”isthat fee or other consideration fee or other consideration for use of a User Fiber which is described on the Statement of Work for that User Fiber.

(w)“User Rights” are defined in Section 3.

  1. User Rights. City hereby grants and conveys to User the exclusive, indefeasible and noncancellable, except as otherwise provided for in this Agreement, right of use of the User Fibers for the purposes specified herein for the respective Terms identified on the Statements of Work, all on the terms and conditions contained in this Agreement (the “User Rights”).

(a)The User Rights are limited to: The exclusive right of use of the User Fibers in the conduct of User's business, provided that User shall have no right of access to the User Fibers, except as may be allowed by City in its sole discretion and with its prior written consent; and the right to request that the City replace the User Fibers at User's cost and expense.

(b)City shall not unreasonably restrict access to locations on City's property where User's personal property and electronics relating to the User Fibers shall be located. City shall use commercially reasonable efforts to provide User with access to the locations on DAA’s property where User's personal property and electronics relating to the User Fibers shall be located. Notwithstanding anything herein to the contrary, User shall not have access to City's property or to the property of the DAA at any location other than the beginning and ending demarcation points identified on any Statement of Work or access to any duct owned by the City or DAA for any purpose whatsoever including, without limitation, for the purpose of accessing the User Fibers, except as may be allowed by City in its sole discretion and with its prior written consent.

(c) City shall, from time to time upon request of User, execute, deliver and file or record such documents or instruments as shall be reasonably necessary or appropriate to evidence or safeguard the User rights herein granted and User agrees to reimburse City for its actual outofpocket expenses incurred in connection therewith, including reasonable attorneys' fees.

(d)A portion of the City Cable extends to the DuPage National Technology Park through duct owned by the DAA and consists of fibers owned by the City which extend to the DuPage National Technology Park Communication Building #1 Point of Demarcation, under rights of the City granted by the DAA pursuant to the DAA Intergovernmental Agreement.

  1. User Fee. In consideration of the grant of the User Rights and the other covenants and agreements of City set forth herein, User agrees to pay to City the User Feesset forth in each Statement of Work at the time or times and in the manner set forth on such Statement of Work. City reserves the right to direct payment of the User Fee to City or any other party.
  2. User Representations and Covenants. User represents to and covenants with City as follows:

(a)User is duly organized and validly existing and has the authority to execute this Agreement and perform its obligations hereunder; and

(b)User will deliver to City copies of such franchises, licenses or rights which relate to User's ability to use the User Fibers hereunder and perform User's obligations hereunder, as User reasonably determines are relevant to City hereunder or as reasonably required or requested by City; and

(c)There are no pending, or to User's knowledge threatened, claims, actions, suits, audits, investigations or proceedings by or against User which could have a material adverse effect on User's ability to perform its obligations under this Agreement.

  1. City Representations and Covenants. City represents to and covenants with User as follows:

(a)User shall peaceably and quietly have use of the User Fibers for the purposes described herein without interference during the Term of this Agreement; provided, however, that in the event there is any interruption of User's quiet enjoyment as described herein, City shall use its continuous efforts to cure such interference and no breach of this Section 6(a) shall be deemed to occur while City is attempting to cure such interference; and

(b)City is an Illinois municipal corporation and has the authority to execute this Agreement and perform its obligations hereunder; and

(c)City will use its reasonable best efforts; in good faith, to keep all City’s Rights in full force and effect during the Term; and

(d)The User Fibers meet or exceed the technical specifications set forth on Exhibit B; and

(e)There are no pending, or to City's knowledge threatened, claims, actions, suits, audits, investigations or proceedings by or against City which could have a material adverse effect on City's ability to perform its obligations under this Agreement.

EXCEPT AS PROVIDED HEREIN, CITY MAKES NO WARRANTY WITH RESPECT TO ACCESS TO EASEMENTS OVER CITY'S PROPERTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CITY MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF ANY MATERIAL OR OTHER DELIVERABLE UNDER THIS AGREEMENT.

CITY DISCLAIMS ANY REPRESENTATION OR WARRANTY MADE AND ASSUMES NO LIABILITY WHATSOEVER WITH RESPECT TO THE CONSTRUCTION OF THE SYSTEM, THE MATERIALS, OR THE UNINTERRUPTED SERVICE AND/OR AVAILABILITY OF THE SYSTEM. USER ACKNOWLEDGES THAT NO CLAIMS RELATING TO SUCH WARRANTIES SHALL BE BROUGHT AGAINST CITY BY USER OR ITS AFFILIATES.

  1. Maintenance. City, or its subcontractor, agrees to repair, constantly maintain, reinforce and otherwise preserve the User Fibers in accordance with normal industry standards and the provisions of this Agreement and as more specifically set forth below:

(a)General. City shall effect and perform at all times all routine maintenance services (“Routine Maintenance”) described herein.

(b)Routine Maintenance. Routine Maintenance of the User Fibers shall be performed by City or its subcontractor. Routine Maintenance will be performed during City's normal business hours (8:30 a.m. through 4:30 p.m., Monday through Friday, excluding regularly scheduled City Holidays). City shall perform appropriate Routine Maintenance in accordance with City's then current preventative maintenance procedures. Routine Maintenance shall include the following activities:

(i)Providing at least one (1) field operations technician for the City Route to perform Routine Maintenance as described herein.

(ii)Patrolling segments of the City Route on a regularly scheduled basis. During patrols of the System, City will verify that the “Call-Before-You-Dig” marker signs along the City Route are in place and undamaged. Damaged and/or missing signs will be replaced during this patrol.

(iii)Performing all required cable locates for User within two (2) business days of a written request by User.

(c)System Performance. In performing its services hereunder, City shall take workmanlike care to prevent impairment to the signal continuity and performance of the User Fibers. The precautions to be taken by City shall include notification to the User of service affecting maintenance as set forth below.

(d)Notification of Service-Affecting Maintenance.City shall, when possible, notify User at least ten (10) calendar days prior to the date of any service affecting maintenance. City shall notify User as soon as reasonably possible after becoming aware of the need for any Emergency Maintenance. In the event that any service affecting maintenance is canceled or delayed for any reason as previously notified, City shall notify all affected Users at City's earliest opportunity, and will reschedule any delayed activity.

(e)Replacement of Systems. In the event all or any part of the City Route shall require replacement as a result of the negligent acts or omissions of a party (without contribution to such negligence by the other party) or intentional misconduct/s of either party, its agents or subcontractors, City or its subcontractors, shall use commercially reasonable efforts to replace the City Route at the earliest possible time, at the sole cost of the responsible party, whether responsible directly or by delegation, for such negligence or intentional misconduct/s.

(f)Relocation of System. In the event that relocation of the City Route or any portion thereof is required due to circumstances beyond the control of City, or its subcontractors, shall relocate the City Route and the User shall be required to pay for such relocation on a pro rata basis (based on the total number of ducts affected and then based on the total fiber count affected by such work) for the reasonable costs of such relocation. User will pay its portion of such costs prior to relocation of the City Route. City shall make every effort to notify the User at least sixty (60) days in advance of a planned movement or alteration of the User Fibers. City shall use its best efforts to assure that movement or alteration of the User Fibers or the City Route does not cause any interruption of operation of Users Fibers (except for such de minimis and planned interruptions of which User shall have previously been notified). Without limiting User’s obligations set forth above, City shall use reasonable efforts to recover costs of any relocation from any party that may be legally liable therefore. Except as may be caused by events of force majuere, City shall hold harmless and indemnify User against any damage to User’s property occurring as a result of City’s (or its contractors’, agents’ or employees) actions in movement or alteration of the User Fibers.

(g)Emergency Maintenance. Maintenance and repair of the City Route, which is not Routine Maintenance (“Emergency Maintenance”), shall be performed by City or its subcontractor. Emergency Maintenance may include unscheduled maintenance emergencies (“Unscheduled Maintenance”), such as cut cables reported to City outside City's business hours that will require technicians (“Technicians”) to be available on-site at the location of the problem. The Technicians will be available twenty-four (24) hours per day, seven (7) days per week. Emergency Maintenance shall also include services in response to any potential service-affecting situation to prevent any failure, interruption or impairment in the operation of the System (“Emergency Preventative Maintenance”).

(i)Unscheduled Maintenance. City shall provide Unscheduled Maintenance in response to an alarm identification, notification by City of any failure, interruption or impairment in the operation of the City Route or any event imminently likely to cause the failure, interruption or impairment in the operation of the City Route. City shall verify the problem and dispatch personnel as early as possible to take corrective action.

(ii)Restoration Procedure. When restoring a cut cable in the City Route, City will work to restore all traffic as quickly as possible.

(iii)Restoration Time Frames. City shall use its commercially reasonable efforts to repair traffic-affecting discontinuity as soon as possible, effective on site commencement of which shall begin no later than two (2) hours after City receives notification from anyone of failure, disrepair, impairment or other need for repair; provided, however, that in the event the User Rights are interrupted by a force majeure event, repairs will be made as expeditiously as possible. Restoration of open fibers on fiber strands not immediately required for service shall be completed on a schedule reasonably determined by City.