HomeMy WebLinkAboutItem #4 DirectcomExhibit A
Assignment and Assumption of Lease Agreement
This Assignment and Assumption of Lease Agreement (the "Agreement'), is made as of this
ay o----,2923-,between, Direct Commumcations wit its principal
offices located at 150 S Main Street PO BOX 269 Rockland, ID 83271 (hereinafter known as
"Directcom") and the Chubbuck Development Authority, and any political subdivision or
municipal agency to which Chubbuck Development Authority may assign this Agreement, with
its principal offices located at 5160 Yellowstone Avenue Chubbuck, ID 83202 (hereinafter called
"Assignor") and City of Chubbuck with its principal offices located at 290 E. Linden Avenue,
Chubbuck, ID 83202 (hereinafter called "Assignee"), and collectively called the "Parties."
Background
A. Directcom and Assignor entered into a written lease agreement dated
(the "Lease"), covering four strands of dark fiber Optic communications technology (hereinafter
the "Dark Fiber Network") servicing the following locations in Chubbuck, Idaho, County of
Bannock:
Chubbuck City Hall
Chubbuck Fire Station
Chubbuck Water Tank Site
Water Well 1, 2, 3, 4, 5 and 6
Water Booster Station
Sorrell Sewer Lift Station
Ellis Sewer Lift Station
Valenty Lift Station
Paradise Sewer Lift Station
Capell Park
Cotant Park
Stuart Park Bicentennial Park
Tree Valley Park
Heartland Park
Heritage Park
Hawthorne / Chubbuck Intersection Signal
Hawthorne / Knudsen Intersection Signal
(individually and collectively, the 'vault' locations as identified above)
B. Under the terms of the Lease, Assignor may assign the lease by agreement with Directcom
under Section 11.1.
C. The Assignor wishes to assign the Lease to the Assignee and the Assignee desires to
assume the Lease from the Assignor.
D. Directcom is willing to consent to the assignment and assumption of the Lease on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the
receipt and sufficiency of which are acknowledged by the parties, it is agreed as follows:
1. Background. The Background section of this Agreement is incorporated herein
by reference as if set forth at length.
2. Defined Terms. For purposes of this Agreement, the terms used in this Agreement
as defined terms which are not herein defined shall have the meaning ascribed to such terms in the
Lease.
3. Assignment. The Assignor assigns, transfers and sets over unto the Assignee all of
the Assignor's right, title and interest in and to the Lease.
4. Assumption. The Assignee assumes the obligation of the Assignor for the full and
punctual payment and performance of all of the terms, conditions and covenants of the Lease on
the Assignor's part as beneficiary thereunder to be paid and performed according to the terms of
the Lease.
5. Consent to Assignment. Subject to the terms, covenants and conditions of this
Agreement, Directcom consents to the assignment by the Assignor to the Assignee of all of the
Assignor's right, title and interest in and to the Lease. Directcom's consent may not be assigned.
6. Condition of Dark Fiber Network. No representations or warranties have been
made by Directcom to the Assignee regarding the condition of the Dark Fiber Network. The
Assignee represents, warrants and acknowledges that the Assignee is not relying upon any
representation or warranty by Directcom in entering into this Agreement.
7. Lease in Full Force. Except as expressly provided in this Agreement, all of the
terms, conditions and covenants of the Lease shall remain in full force and effect and nothing in
this Agreement shall be deemed to: (a) modify, waive or affect any of the terms, conditions or
covenants of the Lease; (b) waive any breach of the Lease; (c) waive any of Directcom's rights
against anyone liable for performance under the Lease; or (d) enlarge Directcom's obligations
under the Lease.
8. No Defaults or Claims. The Assignor and the Assignee hereby certify and agree
that: (a) Directcom is not in default under any of the terms of the Lease; (b) all obligations and
conditions under the Lease to be performed to date by Directcom have been satisfied; (c) no event
has occurred which with the passage of time or the giving of notice, or both, would constitute an
event of default by Directcom under the Lease; and (d) the Assignor and the Assignee have no
current defenses or claims against Directcom or rights of offset against any Base Rent, Additional
Rent, or other charges payable under the Lease, or otherwise. Directcom hereby certifies, without
the benefit of any inspection or investigation, and reserves any rights with respect to any default
that would be revealed by such an inspection or investigation, that to its actual knowledge that as
of the date executed by Directcom below: (a) the Assignor is not in default under any of the terms
—of -the -Lease; -(b) -ail -obligations and -conditions -under -the -Lease -to -be -performed to date by -the _ - -
Assignor have been satisfied; and (c) no event has occurred which with the passage of time or the
giving of notice, or both, would constitute an event of default by the Assignor under the Lease.
9. Limitation of Consent of Directcom. Directcom's consent to the assignment shall
not be deemed to be a consent to any other assignment of the Lease or any subletting of all or part
of the Dark Fiber Network. Directcom shall not be deemed a party to the assignment and
assumption between the Assignor and the Assignee.
10. Indemnification. The Assignee shall indemnify, defend and save Directcom
harmless under Section 7.3 and Section 11.3 of the Lease.
11. Governing Law. This Agreement shall be governed by the laws of the State of
Idaho. The parties acknowledge that this Agreement has been executed and delivered, and is
intended to be performed in the State of Idaho, and the parties submit to the jurisdiction of the
courts of the State of Idaho.
12. Entire Agreement. This Agreement and the Lease constitute the entire agreement
between the parties. No change, addition or modification to this Agreement shall be effective
unless signed in writing by the parties.
13. Miscellaneous. In all references in this Agreement to any parties, persons, entities
or corporations, the use of any particular gender or the plural or singular number is intended to
include the appropriate gender or number as the text of this Agreement may require.
14. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties, their heirs, executors, administrators, personal or legal representatives, successors and
permitted assigns, as the case may be.
15. Counterparts. This Agreement may be signed in one or more counterparts, each
of which shall be deemed an original.
16. Authority. The parties signing this Agreement individually represent and warrant
that they have the authority to sign this Agreement on behalf of the party for whom they are
executing this Agreement and to bind such party to this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by a duly authorized representative
of each Party as of the day and year first above written.
Direct Communications:
By:
(Authorized Signature)
(Printed Name)
(Title)
(Date)
City of Chubbuck:
By:
Kevin B. England
(Printed Name)
Mayor, City of Chubbuck
(Date)
Chubbuck Development Authority:
(PrintedF&me)
G1�or : f C+mmnurr, CDA
6� /Q:�:) -2 -S
(Date)
V"o— e VVt e1 nt'-c
Fiber Optic Cable Installation and Lease Agreement
[18o Months]
This fiber optic cable lease agreement ("the Agreement") is made and entered into 1-27'17(the"Effective
Date"), with a start date of Ninety (go) to one hundred and twenty (12o) days following signed contract between
Direct Communications with its principal offices located at iso S Main Street PO BOX 269 Rockland, ID 83271
(hereinafter known as "Directcom") and the Chubbuck Development Authority and any political subdivision or
municipal agency to which Chubbuck Development Authority may assign this Agreement, with its principal offices
located at 516o Yellowstone Avenue Chubbuck, ID 83202 (hereinafter called "Customer") and collectively called
"Parties."
RECITALS
WHEREAS, Customer wishes to lease (q) strands of dark fiber from Directcom; and
WHEREAS, Directcom is willing to install and provide (y) strands of dark fiber Optic communications
technology to Customer;
NOW, THEREFORE, in consideration of the mutual covenants in this Contract and otherjust and adequate
considerations, the Parties, their successors, and assigns do hereby agree as follows:
Article 1
SCOPE OF AGREEMENT
1.1 This Contract is for the installation of the Dark Fiber serviceto the facilities identified herein, and
for the Lease of such Dark Fiber for the Term. The Term shall begin post installation and upon customer acceptance
of fibers.
Directcom agrees to install and Lease to Customer, and Customer agrees to Lease from Directcom, four (y) strands
of single -mode fiber optic cable together with appurtenant hardware and telecommunications equipment
(collectively, the "Dark Fiber") to provide fiber optic connectivity to and between the following primary locations:
Chubbuck City Hall
Chubbuck Fire Station
Chubbuck Water Tank Site
Water Well 1, 2,3,4,5and 6
Water Booster Station
Sorrell Sewer Lift Station
Ellis Sewer Lift Station
Valenty Lift Station
Paradise Sewer Lift Station
Capell Park
Cotant Park
Stuart Park
Bicentennial Park
Tree Valley Park
Heartland Park
Heritage Park
Hawthorne / Chubbuck Intersection Signal
Hawthorne / Knudsen Intersection Signal
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(individually and collectively, the "vault" locations as identified above)
The following locations can be added to the Lease anytime during the Term on an a la carte basis for the
following one-time fees, paid by Customer to Directcom:
Water Well? - s8,1oo
Rio Vista Sewer Lift Station - sii3,000
Tyhee Fire Station - $45,000
1.2 As part of the service provided under this agreement, for the duration of this lease, Directcom shall
provide one (i) gigabyte internet service to the Chubbuck City Hall at no cost to the Customer.
Article a
INSTALLATION, MAINTENANCE AND ACCEPTANCE
2.1 Demarcation Points. As used in this Agreement, "Demarcation Points" shall be defined as the
connection points between the Directcom-owned Dark Fiber and Customer -owned fiber optic cable or peripheral
equipment ("Demarcation Points"). The Parties prior to construction shall mutually agree upon the specific
location of the Demarcation Points within the facility or locations identified in Section 1.i above.
2.2 Installation and Fee. Except for such specialized construction as defined in Section z.4 below,
Directcom shall provide all labor, materials and equipment required to install the Dark Fiber between the
Demarcation Points described in Section 2.1. Installation shall be performed on a mutually agreed-upon schedule.
For the installation services described herein, the Customer shall pay a one-time installation fee of three hundred
ninety five thousand dollars($395,000.00).
2.3 Payment for Installation. Customer agrees to pay the Installation Cost described in 2.2 based
on the following schedule: 5o% of the Installation Cost due upon commencement of installation, and the
balance is due and payable upon completion of the work.
z.4 Customer Responsibilities. Customer shall, at its own expense, be solely responsible for the
purchase, installation and maintenance of all terminals, fiber optic cable, and other peripheral equipment required by
Customer to interconnect with the Dark Fiber and with other fiber and/or copper telecommunications cable located
on Customer's side of the Demarcation Points at the Customer facility. In addition, the Customer shall, at its own
expense, provide all labor, materials and equipment for any specialized construction that may be required on the
Customer's property including, but not limited to, the installation of new conduit or core drilling. The Customer shall
also be solely responsible for obtaining all rights-of-way from Customer's property line to the Demarcation Point.
2.5 Maintenance of Service. As part of the services provided under this Agreement, Directcom
shall provide all maintenance services on Directcom-owned Dark Fiber and other Directcom-owned peripheral
equipment not located on Customer's property, as well as routine scheduled maintenance of Directcom-owned
Dark Fiber and other Directcom-owned peripheral equipment located on Customer's property on Directcom's side
of the Demarcation Points, at no cost to Customer. It should be noted that Dark Fiber is an un -monitored service. In
the case of fiber cut, or any event -requiring repair Directcom shall respond within 4 hours of the initial notification
of the service outage. Furthermore as an un -monitored service Directcom wishes to work with the Customer once
the fiber is lit and request certain access to alarms such that DlreetCOm'5 Network Operations Center be notified
and properly record such events. All other maintenance of Directcom-owned Dark Fiber and other Directcom-
owned peripheral equipment (i.e., repairs required due to cable cuts, fires, or other acts of third parties or Force
Majeure events) located on Customer's property on Directcom's side of the Demarcation Points shall be provided
by Directcom at no additional cost to Customer at the rates get f9i4 , n SeEt OR 5.4 below. In the event Directcom is
required to respond to a perceived or actual interruption of Customer's service and it is determined that the
interruption was the result of Customer's actions and/or equipment and not attributed to the failure of Directcom's
services, Directcom reserves the right to charge the Customer for said maintenance services at the rates set forth in
Section 5.4 below.
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2.6 Fiber Acceptance Procedures. Prior to commencement of the Term of this Agreement as
defined in Article y, below, Directcom shall perform a light meter test of the Dark Fiber circuit to verify that
circuit performance to and between the Locations identified in Article 1.2 above is within industry
specifications for calculated loss budget ("Fiber Acceptance Testing") and shall, upon receipt of Customer's
written request therefore, promptly provide Customer with a certified report of such test results. If Directcom
provides the test results to Customer, Customer shall provide Directcom with a written notice accepting (or
rejecting by specifying the defect or failure in the Fiber Acceptance Testing that is the basis for such rejection)
the Dark Fiber. If the Customer fails to notify Directcom of its acceptance or rejection of the final test results
with respect to the Dark Fiber within ten (10) days after Customers receipt ofsuch notice, Customer shall be
deemed to have accepted the Dark Fiber. The date of such notice of acceptance (or deemed acceptance) of the
Dark Fiber shall be the "Acceptance Date" for the Dark Fiber. In the event of any good faith rejection by
Customer, Directcom shall take such action reasonably necessary and as expeditiously as practicable to correct
or cure such defect orfailure.
2.7 Project Schedule. Directcom agrees to complete the requirements of this lease meeting
the following milestones:
Design of Dark Fiber Network prior to April 21st, 2017
Construction of Dark Fiber Network prior to July 21st, 2017
Dark Fiber Network Operational prior to September 4t', 2017
See Attachemnt "A"— Network Design Concept
See Attachment "B"— Project Schedule
Article 3 LEASE
3.1 Directcom agrees to exclusively Lease to Customer, and Customer agrees to exclusively
Lease from Directcom, the Dark Fiber between the Demarcation Points identified in Sections 1.1 and 2.1, for
the Initial Term specified below and forany extensions thereof (collectively, the "Term") and in accordance
with the other terms and conditions stated in this Agreement.
Article q LEASE TERM
4.1 The initial non -cancelable term of this Leaseshall commenceupon completion of the
installation, and shall remain in effect for a period of 18o Months (the "Initial Term"). Thereafter, this Lease
shall automatically be extended for a single, additional 12 Month extensions (the "Renewal Term") atthe then -
current dark fiber lease market rates, unless Customer gives Directcom written notice of Customer's election to
terminate the Lease at the end of the Initial Term, which notice must be delivered to Directcom not less than
ninety (go) days prior to the expiration of the Initial Term. If both parties wish to continue the lease of the Dark
Fiber following the expiration of the Renewal Term, Customer agrees to notify Directcom of its desire to
continue to lease the Dark Fiber, and the Parties agree to thereafter conduct good faith negotiations to
develop a new Lease Agreement to replace this Agreement. During any negotiations between the Parties, the
Lease Payment shall remain unchanged; provided, however, in the event such a new Lease Agreement is not
agreed to and signed within fifteen days before the expiration of the Term, Customer's lease of the Dark Fiber
shall end upon the expiration of the Term.
Article 5
LEASE PAYMENT AND OTHER CHARGES
5.1 In consideration of the one-time installation fee of three hundred ninety five thousand dollars
($395,000.00) for the Dark Fiber to be provided by Directcom pursuant to this Agreement, Customer will not be
obligated to make monthly lease payments ("Lease Payments") to Directcom.
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5.2 Lease Payments, and any other payments shaIIbemai ledordelivered tothe foIlowing
address:
Direct Communications PO Box 269
Rockland, ID 83271
5.3 Charges for maintenance work performed by Directcom personnel during the Term that
is billable to Customer under Section 2.5, shall be billed to Customer at the following per person rates:
Normal Business Hours
(8 am to c pm M -F PST) Non -Business Hours
Minimum call out charge ('S`
hour, each mobilization) s250.00 /hr $ 300.00 /hr
Additional hours $ i5o.00 /hr s zoo.00 /hr
In addition, Directcom will charge, and Customer agrees to pay, for all of Directcom's out of pocket
costs for any subcontractor support and material required for any maintenance work that is billable to
Customer under Section 2.5. Prior to commencing billable maintenance work, Directcom will obtain
Customer approval to the estimated maintenance cost.
5 4 Directcom shall participate in the Idaho Digline (811) utility locate program for all Dark Fiber
included in this agreement at no cost to the Customer.
Article 6 LEASE STATUS
6.1 The Parties intend that this Agreement shall operate as a "lease", as defined by Idaho law.
Directcom's Dark Fiber shall not be construed to result in the transfer of title to any part of the Dark Fiber to
Customer or in the creation of a "security interest" within the meaning of Idaho law. Customer disclaims any
interest it may claim in the materials, equipment, fiber optic cable and all personal property installed by
Directcom between the Demarcation Points as a fixture. Any materials, equipment, fiber optic cable and
other personal property shall remain Directcom's personal property even though it is installed to the real
property of the Customer. Customer acknowledges that it has no option to purchase any part of the
materials, equipment, fiber optic cable and other personal property of Directcom installed between the
Demarcation Points. Customer shall keep Directcom's facilities and the Dark Fiber free from all liens,
including but not limited to mechanics liens, and encumbrances by reason of the use of the Dark Fiber by
Customer. If Customer fails to pay, or bring appropriate challenge to, the above-mentioned taxes,
assessments, or other fees, and such failure results in the imposition of a lien or encumbrance on the Dark
Fiber or an assessment directly against Directcom, Directcom shall have the right to pay the same and charge
the amount thereof to Customer, who shall pay the same upon demand. This right is in addition to any other
right provided to Directcom herein to remedy a breach of this Agreement.
Article 7
OTHER RESPONSIBILITIES AND OBLIGATIONS OF THE PARTIES
7.1 Moves, adds, and changes of, to, and affecting the Dark Fiber, which are requested by
Customer, shall be provided by Directcom at the then -current time and material rates, with paymentterms
of 50% due upon Customer approval of cost estimate, and the balance is payable upon completion of the
work.
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7.2 Relocation of Dark Fiber located in public rights of way due to public infrastructure
improvements (i.e. roadways, water system, sewer system etc) shall be completed at no cost to the
Customer.
7.3 Customer agrees to assume full and complete control, responsibility, and liability for the
content and signals transmitted through the Dark Fiber by customers employees, customers, agents, and
invitees, and Customerfurther assumes all liabilityfrom any third party claims, suits, ordisputes overthe content
and signals.
7.4 Directcom and Customer agree that the Directcom Dark Fiber shall not be used in a manner
that could be construed as a violation of this Agreement, or any laws, regulations, orders, and/or rules of any
governmental authority having jurisdiction. Customer and Directcom agree totake all reasonable actions as may
be appropriate to comply with all laws, regulations, orders and/or rules, that may be applicable to them jointly
or severally by reason of the transactions contemplated in this Agreement.
7.5 Directcom shall be responsible to obtain all permits and easements required for the
installation of Dark Fiber. Where possible, the Customer will allow Directcom access to existing rights
of way and public utility easements for Dark Fiber installation.
Article 8
FORCE MAJEURE
8.1 In the event either Party is prevented from performing it obligations under this Agreement due
to circumstances beyond its control including, without limitation, labor disputes, power outages or shortages,
fire, explosion, flood, drought, acts of God, war or other hostilities, and civil commotion, domestic or foreign
governmental acts, orders, or regulations, inability to obtain facilities or supplies, or if Customer or Directcom is
notified by a state or federal regulatory body that any aspect of this Agreement does not comply with any
applicable law, regulation, rule, or policy, then the obligation of Directcom to provide services and/or the
obligation of the Customer to accept and pay for services hereunder shall be suspended during the period of
such disability.
Article 9
LIMITATION OF LIABILITY AND DISCLAIMER
9.1 DIRECTCOM MAKES NO REPRESENTATION OR WARRANTY EITHER EXPRESSED OR
IMPLIED REGARDING THE DARK FIBER, SERVICES OR SYSTEM EQUIPMENT, AND SPECIFICALLY
DISCLAIMS ANY WARRANTY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ANDASSUMES NO OBLIGATION
WITH RESPECT TO THE ENFORCEMENT OF ANY MANUFACTURER'S WARRANTIES AND GUARANTEES.
No defect, unfitness, or other condition of the Customers system equipmentor services shall relieve the
Customer of the obligation to pay any charges hereunder or perform any other obligations underthis
Agreement. Notwithstanding the foregoing, Directcom does representthat the Dark Fiber, upon installation
and during the term of this Agreement, shall, when lit, convey signals from Customers facilities to other
Customer facilities or the internet.
9.2 Customer's sole and exclusive remedies for breach or non-performance of this
Agreement, by Directcom shall be, at Directcom's election, re -performance and/or repair or replacement by
Directcom of any defective services, or of any defective Dark Fiber or equipment provided in connection with
the services, or the refund of any compensation actually paid to Directcom bythe Customer during the
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period of such breach or non - performance. Directcom will in no event be liable for consequential or
incidental damages, including but not limited to, damages for loss of use, lost profit, loss of business, or
other financial injury arising out of or in connection with them a intenance, use, performance or failure of the
Dark Fiber, services or equipment. In no event shall Directcom be liable for any loss or damage relating to a
claim for personal injury arising out of or in connection with maintenance, use, performance or failure of the
Dark Fiber, services or equipment. Directcom's liability to the Customer, for damages, from any cause
whatsoever and regardless of the form of the action, whether in contract, in tort(including negligence or
strict liability) or by statute, shall be limited to direct damages and shall not exceed the value of the total
payments paid to Directcom under this Agreement.
9.3 It is expressly understood that Directcom's Dark Fiber may be routed through various
city, county, state and/or other third party road rights-of-way and under franchise with city, county, state
and/or other third parties, and that these parties shall be made a third -party beneficiary of the limitations of
liability stated in Article 9.2 above.
9.4 Planned fiber routes and pricing listed in Article 2.2 are contingent on obtaining
easements and permitting from property owners with jurisdictional authority.
Article io
DEFAULT AND REMEDIES
10.1 Any of the following shall constitute an event of default: (a) Customer fails to pay any Lease
Payment or any other amount owed to Directcom within thirty (30) days after its due date; (b) Customer fails
to perform or observe any other representation, warranty, covenant, condition oragreement with Directcom and
fails to cure such breach within thirty (30) days after written notice; (c) any representation or warranty made by
Customer hereunder or in any other instrument provided to Directcom by Customer proves to be incorrect in any
material respect when made; (d) a proceeding under any bankruptcy, reorganization, arrangement of debts,
insolvency or receivership law or assignment of benefit of creditors is made byor against Customer; (e) Customer
becomes insolvent or fails generally to pay its debts as they become due; (f) Customer voluntarily or involuntarily
dissolves or is dissolved or terminates or is terminated; or (g) Directcom fails to observe or perform any of its
representations, warranties, and/or obligations with Customer and fails to cure such breach within thirty (30)
days after written notice.
10.2 In the event of a default by either party, the non -defaulting party shall have the right to
exercise any or all of the following remedies to the extent applicable: (a) terminate this Agreement; (b)
declare all Lease payments and other amounts under this Agreement immediately due and payable; (c)
proceed to enforce the remedies of a secured party under Idaho law; (d) proceed by court action to enforce
performance of this Agreement and any remedy provided for herein and/or recover all damages of any
default or exercise any other right or remedy available at law or in equity; and (e) disconnect and/or remove
the fiber optic cable and equipment.
Article ii
MISCELLANEOUS
11.1 Assignment. Customer shall not transfer or assign, voluntarily or by operation of law, its
obligations under this Agreement without the prior written consent of Directcom. This Agreement shall be
binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. Each
of the undersigned hereby state that he/she has full authority to enter into this Agreement and hereby
accepts this Agreement on behalf of the companies identified below.
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11.2 Prohibited Employment: The parties shall prohibit any individual from working at the
facility if such individual has pled guilty to or been convicted of any felony crime involving the physical neglect
of a child, the physical injury or death of a child, sexual exploitation of a child, sexual offenses where a minor is
the victim, promoting prostitution of a minor child or violation of similar laws. Any failure to comply with this
section shall be grounds for immediate termination of this Agreement.
11.3 Indemnification and Hold Harmless. Each party to this Agreement is responsible for its own
acts and omissions and the acts or omissions of its officers, employees, and agents. Each Party agrees to
defend, indemnify, and hold the other Party harmless from and against any claim, demand, suit, or cause of
action (hereinafter called "claim"), that may be asserted against the indemnitee, if and to the extent the claim
against the indemnitee is based on the actual or alleged fault of the indemnitor and relates to the subject
matter of the performance of this Agreement. This indemnification obligation applies to all costs of
investigation, attorney fees, litigation expenses, settlement, and judgment. Where claims are asserted against
both of the parties based on actual or alleged concurrent or shared fault of the parties, a party shall not be
required to indemnify the other party for that party's own proportionate share of fault. Attorney fees and
litigation expenses incurred by a Party in successfully enforcing the indemnification provisions of this
paragraph shall be paid to the Party against whom the provision was enforced.
114 Insurance. During the term of this Agreement, Directcom shall maintain in force
at its own expense, the following insurance:
Worker's Compensation Insurance in compliance with applicable state laws.
General Liability Insurance (or general liability coverage through membership in a self-insured risk
management pool), on an occurrence basis, with a combined single limit of not less than
s i,000,000 each occurrence and $ 2,000,000 aggregate for bodily injury and property damage. Such
coverage shall include premises and operations, independent contractors, products and completed
operations, personal injury and property damage liability, and contractual liability coverage for the indemnity
obligations provided for under this Agreement.
There shall be no cancellation, material change, or reduction of limits or intent not to renew such coverage(s)
without thirty (3o) days' written notice to the Customer.
[Remainder of page intentionally blank — Signature pages next]
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IN WITNESS WHEREOF, this Agreement has been executed by a duly authorized representative
Party as of the day and year first above written.
(Title)
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