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HomeMy WebLinkAboutWaterloo Municipal Telecommunications Utility, Telecom Partners, Inc.-Fiber Network Agreement-12.03.2007 • 1a - 3-o7 apptikLai FIBER OPTIC NETWORK AGREEMENT This Fiber Optic Network Agreement (the "Agreement") is entered into as of 1 2- 3 , 2007, by and among the City of Waterloo, Iowa ("City"), the Board of Trustees of the Waterloo Municipal Telecommunications Utility ("Utility"), and Waterloo Telecom Partners, Inc. ("WTP"). RECITALS A. City is an Iowa municipality that owns and controls right of way and other land within its corporate limits. B. Utility is a municipal utility created by City and existing under authority of the City and state law. It was created by City to develop and administer a municipal utility for the delivery of telecommunications services to business, government, and residential users in the City of Waterloo. C. WTP is a non-profit corporation organized under Iowa law and having its principal offices in Black Hawk County, Iowa. WTP was organized to provide a vehicle by which private and public interests could work cooperatively to develop a fiber optic network in the City. WTP is capable of acting as the lead participant under this Agreement so that the parties will achieve the desired ends. D. The objective of the parties in entering this Agreement is to increase the availability of affordable and competitively priced broadband capacity, to stimulate economic development by attracting and retaining businesses and their key employees, and to enhance the quality of related services to the residents of Waterloo. City and Utility believe that their participation in this Agreement is in the public interest and will be of significant benefit to the residents and businesses of Waterloo. AGREEMENT In consideration of the mutual promises exchanged herein and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Article I CONTRIBUTIONS BY CITY AND UTILITY 1.1 Authorization for Right-of-Way Use. City and Utility hereby authorize WTP to occupy and use the Public Rights-of-Way (defined below) to construct, install, operate, repair, and maintain a fiber optic backbone network for data transmission and internet access (the "Network") and related equipment (the "Equipment") useful or necessary for operation of the Network system as specified in this Agreement. The foregoing authorization includes but is not limited to the authorization to enter upon the Public Rights-of-Way and to occupy the Public Rights-of-Way for the limited purposes of attaching, installing, operating, maintaining, removing, reattaching, reinstalling, relocating, and replacing Equipment in or upon conduit, street light poles, and other poles or facilities (collectively, the "Public Facilities") owned or controlled by the City and that are located in the Public Rights-of-Way. This Agreement does not confer any rights other than those expressly provided herein and does not authorize WTP to occupy and use the Public Rights-of-Way for any purposes other than those stated in this Section 1.1 and such other purposes as may be reasonably incidental thereto. As used in this Agreement "Public Rights-of-Way" means the area in, upon, above, beneath, within, along, across, under, and over the public streets, sidewalks, roads, courts, alleys, spaces, and boulevards within the corporate limits of the City in which the City now or hereafter holds any property interest which is dedicated to public use. From time to time City also may authorize WTP to occupy and use other land owned by the City for the purposes set forth in this Section 1.1, subject to the city engineer's review and approval of any proposed use. The rights granted to WTP pursuant to this Section 1.1 are subject to such usual and customary regulation of the Public Rights-of-Way and other City property as are specified from time to time by the City Engineer and the City's Code of Ordinances. To the extent that any fee is charged for the rights granted under this Section 1.1, such fee will be charged on a neutral and non-discriminatory basis. 1.2 Dark Fibers and Related Rights. City is party to a Fiber Optic Cable—Lease Option (the "Option") dated October 6, 1997. Pursuant to the Option, McLeodUSA Network Services, Inc. granted City the option to obtain an indefeasible right of use in four fiber optic strands (the "Fibers") in McLeodUSA's city ring network. City's use of the Option is subject to the terms and conditions set forth therein. City and Utility shall use their best efforts to exercise the Option and make the Fibers available for exclusive use in the Network. All cost and expense payable by City in connection with exercise of the Option shall be paid by WTP, either directly to McLeodUSA or as a reimbursement to the City. WTP agrees that any use made of the Fibers in the Network shall be subject to the terms and conditions of the Option and such other reasonable terms and conditions as the City and/or Utility may impose. 1.3 Limitations on Authorization. Nothing in this Agreement shall be deemed or construed to grant, convey, create, or vest in WTP a real property interest of any type or nature whatsoever in any Public Rights-of-Way or other land of the City. Any and all rights expressly granted to WTP under this Agreement shall be subject to the prior and continuing right of the City to use any and all parts of the Public Rights-of-Way exclusively or concurrently with any other person or entity and shall be further subject to all deeds, easements, dedications, covenants, conditions, restrictions, encumbrances, and other interests or claims of record which may affect the Public Rights-of-Way. WTP's use of the Public Rights-of-Way shall at all times and in all ways comply with all applicable laws, including but not limited to the City's Code of Ordinances. 1.4 Reserved Right of Condemnation. Nothing in this Agreement shall be deemed or construed to limit or otherwise condition any right the City may have to acquire by eminent domain or otherwise any property of WTP; provided, however, that WTP shall be compensated for any such acquisition pursuant to applicable law. 1.5 Non-Exclusive Use. Except as set forth in Section 1.2 above, the authorizations granted by this Agreement shall be non-exclusive, and nothing contained in this Agreement shall 2 i be deemed or construed to limit, alter, or waive the right of the City and Utility to enter into agreements authorizing persons or entities other than WTP to access and use the Public Rights- of-Way and Public Facilities to install any form of communications equipment or for any other purpose, except as specifically set forth herein. Such other authorizations by the City and Utility shall be made on a non-discriminatory and competitively neutral basis, taking into account material differences in the circumstances of each applicant for such authorization. ARTICLE II THE NETWORK 2.1 Network Development. Subject to the terms and conditions of this Agreement, WTP will design, construct, install, test, operate, manage, maintain, and upgrade the Network at its sole cost and expense, except as otherwise set forth herein and except as McLeodUSA may otherwise provide for maintenance of that portion of the Network comprised of McLeodUSA Fibers. The parties contemplate that WTP may engage any number of professionals, consultants, and subcontractors to assist it in fulfilling its obligations under this Agreement. If an opportunity at any time appears for the installation of conduit and/or fiber in connection with a street construction or reconstruction project, City agrees to accommodate a request by WTP to add a line item to the bid solicitation for conduit and fiber materials and installation and to cooperate in the subsequent installation (at WTP's cost and expense) of same if WTP elects to proceed with the project. 2.2 Ownership and Control of Network. The as-built Network shall be the property of WTP and shall be subject to the control and management of WTP, except as explicitly set forth in this Agreement. The parties contemplate that persons or entities not parties to this Agreement may contribute fiber and/or Equipment to WTP for use in building the Network, and to the extent of such contribution the contributor may remain the owner of the physical asset, which shall be subject to a license in favor of WTP for Network use. While subject to said license, the contributed fiber and/or Equipment shall, to the extent necessary for proper operation of the Network, be subject to the control of WTP. 2.3 Workmanship. All work undertaken pursuant to this Agreement by WTP shall be performed only by competent personnel under the supervision of WTP and under the supervision of and in the employment of WTP's consultants and subcontractors. All work shall be performed according to good and workmanlike standards and in conformity with generally prevailing standards in the telecommunications industry. Any subcontractor used by WTP in carrying out the obligations of WTP under this Agreement must be properly licensed as required by applicable law. Such subcontractor shall have the same duties with respect to its work as WTP would have if WTP performed the work itself. WTP shall be responsible for ensuring that the work of subcontractors is performed consistent with this Agreement and other applicable law. 2.4 No Interference. In the performance and exercise of its rights and obligations under this Agreement, WTP shall not adversely interfere with the existence and operation of any and all public and private rights-of-way, poles, aerial and underground electrical and telephone 3 wires, cable television, and other telecommunications, utility, or municipal property, without the express written approve of the owner or owners of the affected property or properties, except as permitted by applicable law or this Agreement. 2.5 Open Access; Service Level Commitments. Subject to the provisions of Sections 2.6 and 2.7 below, WTP shall offer, on terms and conditions determined by WTP but subject to approval of the Utility (which approval shall not be unreasonably withheld), access to the Network to any person or entity for the personal or business use of such person or entity, including but not limited to a person or entity operating a service that permits subscribers to obtain access to the internet through the Network. WTP intends to enter a service level agreement with users that will set service and responsiveness expectations for the parties and that will provide penalties against WTP in the event of interruptions in Network service or availability that are attributable to WTP and not to a Force Majeure Event, the actions or inactions of user equipment or systems, the actions or inactions of third parties, and other persons or events defined in such agreement. 2.6 Access by City. The parties contemplate that City shall, to the extent practical, utilize the Network for fulfillment of its telecommunications needs. In recognition of the City's contribution of Public Rights-of-Way and its participation in this Agreement, the WTP board of directors may choose to give City a discount from the ordinary fees charged by WTP to Network users. 2.7 Public Welfare Access. The parties contemplate that WTP may, from time to time, at its sole discretion offer services, programs, and access under terms and conditions that are more favorable than standard terms and conditions, for the purpose of facilitating broadband access to individuals, groups, or geographic areas that are disadvantaged and/or underserved. Such special services, programs, terms, and conditions shall be an exception to the provisions of Sections 2.5 and 2.8. 2.8 Non-Discrimination and Other Policies. WTP agrees to promote the open and interconnected nature of the public internet and the neutral and non-discriminatory treatment of users thereof by(a) allowing users to run applications and use services of their choice, to the extent consistent with applicable law, (b) allowing users to access available internet content of their choice, and(c) fostering competition among broadband providers, application and service providers, and content providers. The parties to this Agreement shall encourage all similarly situated providers of broadband services to also abide by these policies. WTP, in consultation with the City and Utility, may establish other or more specific standards and policies of general applicability to all similarly situated users and/or providers of broadband service. Policies and standards shall not regulate content carried on the Network. 4 ARTICLE III FEES 3.1 User Fees. WTP shall, in consultation with Utility, determine connection, access, use, service, network management and maintenance, and other fees to be paid by users of the Network. WTP acknowledges that it is a non-profit entity and accordingly agrees to set fees in a manner to raise sufficient revenues to fund the proper development, construction, operation, management, maintenance, repair, and continued expansion of the Network, and WTP may properly establish one or more reserve funds for future capital expenditures and improvements. Fees shall be set without a motive to earn profits for WTP. The parties agree that fees charged by WTP to users of the Network will be imposed, as nearly as possible, on a neutral and non- discriminatory basis for users that are determined to be similarly situated and for services or service levels that are similar in nature and scope. All fees of any type or nature collected by WTP will be the sole property of WTP. 3.2 Fees to Utility. In consideration of continued use and occupancy of Public Rights-of-Way and the Fibers by the Network, WTP, and Network users, WTP shall, within thirty(30) days following the end of each calendar quarter, pay to City a sum(the "Use Fee") equal to no more than five percent (5%) of user fee revenues received by WTP in such quarter. WTP may elect to specifically identify and pass this fee through to Network users. In the event that the Use Fee is declared by legislative act or judicial decision to be invalid for any reason, then in lieu thereof WTP shall pay to City a sum equal to the reasonable administrative cost and expense of City and Utility in administering the relationship and rights provided for in this Agreement, including but not limited to the cost and expense of regulating Public Right-of-Way and Public Facilities in connection with this Agreement. ARTICLE IV TERM AND TERMINATION 4.1 Term of Agreement. The term of this Agreement shall commence upon the date of execution hereof and shall continue thereafter as set forth herein. This Agreement shall continue for a minimum term of ten (10) years, unless sooner terminated as set forth in Section 4.3 below. The term of this Agreement shall be automatically extended for additional successive periods of ten (10) years each, unless prior to expiration of the current term one party delivers to the other parties a written notice stating that this Agreement will terminate at the end of the next 10-year renewal term, unless sooner terminated as set forth in this Article IV. 4.2 Termination for Default. The occurrence of one or more of the following events constitutes an event of default and a breach of this Agreement that justifies termination of this Agreement by City and Utility. All such events are subject to the occurrence of a Force Majeure Event(defined below). If WTP disagrees with City and/or Utility that an event of default has occurred, or that a default has not been cured, or that the period of time allowed to cure the default is sufficient, then WTP may submit the matter to arbitration as provided in Section 8.1 below or may exercise any other rights or remedies available under law. 5 A. Failure to establish the Network. Failure by WTP to establish an operational Network according to plans approved by Utility within five (5) years after the date of this Agreement. City and Utility may not terminate this Agreement for this cause unless they have first given written notice of default to WTP that specifies the default and WTP thereafter fails to cure the default within an additional six (6) months from the date of delivery of notice. B. Interruption or abandonment of Network service. Basic Network service is unavailable to Network users for a period of fifteen (15) consecutive days. City and Utility may not terminate this Agreement for this cause unless they have first given written notice of default to WTP that specifies the default and WTP thereafter fails to cure the default within an additional fifteen (15) days from the date of delivery of notice or, if Network service cannot be restored within such additional fifteen(15) days but WTP is taking reasonable and diligent steps to restore service, then the cure period will be extended for a period that is a reasonable period of time to restore service. C. Failure to pay fees. Failure by WTP to make any payment to City and Utility as required by this Agreement. City and Utility may not terminate this Agreement for this cause unless they have first given written notice of default to WTP that specifies the default and WTP thereafter fails to cure the default within an additional sixty (60) days. D. Violation of law. Violation by WTP of any applicable federal, State of Iowa, or local law, statute, ordinance, or regulation. City and Utility may not terminate this Agreement for this cause unless they have first given written notice of default to WTP that specifies the default and WTP thereafter fails to cure the default within an additional sixty(60) days. 4.3 Other Defaults. If any party fails to observe or perform any of the covenants, conditions, or terms of this Agreement that such party is required to observe or perform, other than those defaults described in Section 4.2 above, then any other party may give written notice of default to the defaulting party that specifies the default. If the default continues uncured for a period of sixty(60) days after delivery of notice of default, then the party that issued notice of default may exercise all rights and remedies allowed by this Agreement and applicable law, including but not limited to the right to obtain specific performance, injunctive relief and/or money damages; provided, however, that if such default cannot be cured within such sixty-day period but the party in default is taking reasonable and diligent steps to cure the default, then the cure period will be extended for a period that is a reasonable period of time to cure the default, not exceeding an additional sixty(60) days. ARTICLE V REPORTING AND AUDIT REQUIREMENTS 5.1 WTP to Maintain Records. WTP shall maintain for a period of five (5)years separate and accurate financial records. Such records shall show in detail all of WTP's operations related to the calculation of the Utility Fees under this Agreement. WTP shall enter 6 • all receipts arising from such business in regular books of account, and all entries in any such records or books shall be made at or about the time the transactions respectively occur. 5.2 Periodic Reports. During the term of this Agreement, WTP shall maintain quarterly and annual financial statements in a form and method mutually agreeable to the parties. 5.3 Verification of Accounts. WTP shall keep and maintain records that will enable City and Utility to ascertain and audit the Utility Fees received by Utility. WTP shall make available to City and Utility, no less than quarterly, such data, information, and reports as are reasonably necessary to monitor WTP's compliance with payment of Utility Fees and other terms of this Agreement. WTP shall provide such data, information, and reports to City and Utility, and City and Utility shall receive same, in a manner that preserves the confidentiality of such data, information, or reports that are marked confidential, subject to applicable open records laws. ARTICLE VI CONFIDENTIALITY 6.1 Confidential Information. If any party shares any information with another party(the "Recipient") that the originating party (the "Protected Party") wishes to have held in confidence, then the Protected Party shall prominently mark such information (the "Confidential Information") as "Trade Secret", "Proprietary", or"Confidential." The Recipient shall not disclose such Confidential Information that is so marked unless, in the case of City or Utility, such disclosure is required by applicable law. The Recipient shall use best efforts to: (a) restrict disclosure of the Confidential Information solely to those of its employees or officials with a need to know and not disclose it to third parties; (b) advise employees and officials who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use the same degree of care to protect the Confidential Information and to prevent disclosure of the Confidential Information as is used with the Recipient's own confidential information, which shall be at least the degree of care which a reasonably prudent person would use to protect and prevent disclosure of confidential information; and (d) use the Confidential Information only for the purposes contemplated by this Agreement. "Confidential Information" shall not include any information that (a) was known by the Recipient prior to receipt from the Protected Party, (b) is or becomes publicly available through no fault of the Recipient, (c) is rightfully received by the Recipient from a third party without a duty of confidentiality, (d) is independently developed by the Recipient without a breach of this Agreement, or(e) is disclosed by the Recipient with the Protected Party's prior written approval. 6.2 Disclosure of Information. The Recipient may disclose Confidential Information, or any part thereof, to a third party only after the Protected Party gives its express 7 it •' . written consent to such disclosure. The Recipient may also disclose Confidential Information if required by applicable law,regulation, or legal process. In such event, the Recipient shall promptly notify the Protected Party of such duty of or demand for disclosure, and the Recipient shall not disclose such information in response to said process unless the originating party (a) has been given a reasonable opportunity, based on the circumstances and to the extent allowed, to request a protective order from the legal or governmental authority requiring the process and such request has been denied, (b) has consented in writing to the disclosure in response to the process, or(c) has taken no action to protect its interest in the Confidential Information within fourteen (14) days after receipt of notice from the recipient of its obligation to disclose the information in response to the process. In each instance where the originating party cannot obtain a protective order or other appropriate remedy, the recipient will furnish only that portion of the Confidential Information that the recipient is required to disclose, in the exercise of its reasonable judgment, and, to the extent reasonably practicable, the recipient shall advise the third party seeking the information of the confidential nature of the Confidential Information so disclosed. Article VII INSURANCE 7.1 Required Insurance. WTP must maintain in force during the term of this Agreement, at its own cost and expense, insurance as required by this paragraph. Each policy of insurance shall be issued by a company or companies reasonably satisfactory to City and Utility and shall include City and Utility as additional insureds. WTP must maintain combined single limit commercial general liability insurance in the annual aggregate amount of$2,000,000 for bodily injury and property damage. Said insurance shall provide the following coverages: premises and operations, products and completed operations,personal injury, broad form property damage, contractual liability, and independent contractors. 7.2 Proof of Coverage; Notice of Cancellation. Before commencing any activity under this Agreement, WTP shall provide to City and Utility proof of required insurance, including the status of such parties as additional insureds. A renewal certificate shall be provided to City and Utility prior to expiration of any policy. Each policy shall provide for thirty (30) days' advance notice to City and Utility before cancellation. 7.3 Subcontractors. If WTP engages any subcontractor to carry out any obligation of WTP under this Agreement, WTP shall ensure that the subcontractor is covered by insurance that complies in all respects with the provisions of this Article VII, including but not limited to including City and Utility as additional insureds. Article VIII DISPUTE RESOLUTION 8.1 Binding Arbitration. If any dispute, controversy, claim, or question arises between the parties relating to this Agreement (each a"Dispute"), the parties shall use their best efforts to settle the Dispute. To this end, they shall consult and negotiate with each other in good 8 • faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach a solution within a period of fourteen (14) days, then, upon written notice by either party to the other, a Dispute may be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the Expedited Procedures thereunder. Arbitration shall be conducted, if possible, by mail and telephone conference call and, if personal appearances are deemed necessary by the arbitrator, in Waterloo, Iowa. The parties shall agree upon an arbitrator in writing within fourteen (14) days following the delivery of written notice by either party to the other setting out the Dispute in general terms and requesting that the Dispute be resolved by arbitration. If the parties cannot agree upon a single arbitrator, each party shall appoint its own arbitrator, and the arbitrators so appointed shall themselves appoint at least one additional arbitrator, and, if necessary to ensure that there are an odd number of arbitrators, two additional arbitrators. The decision of the arbitrator, or, in the case of more than one arbitrator, the simple majority decision of such panel of arbitrators so appointed, shall determine all issues in dispute between or among the parties. The decision of the arbitrator(s) shall be final and binding and shall not be subject to appeal on a question of fact, law, or mixed fact and law. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Each party shall bear all costs and expenses, including but not limited to attorneys' fees, that it incurs in the handling of any dispute which is determined and/or settled by arbitration pursuant to this Section 8.1. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved. 8.2 Litigation. The parties recognize that the arbitration procedure provided for in Section 8.1 above is likely to provide for a speedier and more cost-effective resolution of Disputes, and the parties therefore declare a preference for resolving Disputes by arbitration. However, the parties also acknowledge that in some instances a court of law may be able to fashion a more appropriate remedy. With respect to any Dispute that is not submitted for resolution to arbitration as provided in Section 8.1, the parties may exercise any rights or remedies available to them under applicable law, including but not limited to relief by specific performance or injunction. 8.3 Jury Trial Waiver; Litigation Forum. As to any dispute that is not submitted to arbitration in accordance with Section 8.1 above, the parties hereby agree and consent (i)to WAIVE ANY RIGHT TO A TRIAL BY JURY in any action to enforce or defend with respect to any claim, counterclaim, cause of action, or any matter arising from or in any way related to this Agreement; and(ii) to irrevocably submit to the jurisdiction of the Iowa District Court for Black Hawk County over any action or proceeding to enforce or defend any matter arising from or related to this Agreement. Nothing in this paragraph shall affect or impair a party's right to serve legal process in any manner permitted by law. 9 Article IX MISCELLANEOUS MATTERS 9.1 Cooperation. Each party agrees to cooperate with the others in good faith to achieve the intended objects of this Agreement. Each party further agrees not to unreasonably withhold, delay, or condition any approvals or other actions necessary or appropriate for any other party to exercise its rights and to perform as provided in this Agreement. 9.2 Representation and Warranties. Each party represents and warrants for itself that its officers are duly authorized to execute and deliver this Agreement and any other documents contemplated hereby, and it is and will continue to be duly authorized to perform all of its obligations under this Agreement and under each instrument and document delivered in connection with this Agreement. 9.3 Time of the Essence. Time is of the essence in the observance and performance of the duties and rights set forth in this Agreement. 9.4 Force Majeure. Any prevention, delay, or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor, or materials or reasonable substitutes therefor, governmental actions, civil commotions, fire or other casualty, and/or any other cause(s) beyond the reasonable control of the party obligated to perform under this Agreement (each a "Force Majeure Event"), shall excuse such party from its obligation to perform under this Agreement for the duration of the Force Majeure Event, provided that the affected party shall promptly give written notice to the other party of the occurrence of a Force Majeure Event and shall use its best efforts to resume performance. Upon delivery of such notice, all affected obligations under this Agreement shall be immediately suspended for the duration of such Force Majeure Event. A delay shall not be excused to the extent that a party could reasonably have avoided or mitigated the delay by altering its conduct. 9.5 Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by overnight delivery service, by U.S. registered mail, postage prepaid, or by facsimile (with an additional copy delivered by one of the foregoing means), and addressed: CITY UTILITY City of Waterloo Waterloo Municipal Telecommunications Utility 715 Mulberry Street 715 Mulberry Street Waterloo, IA 50703 Waterloo, IA 50703 Attn: City Clerk Attn: Chairperson 10 WTP Waterloo Telecom Partners, Inc. c/o 315 E. 5th Street Waterloo, IA 50703 Attn: President Delivery of notice shall be deemed to occur(i) on the date of delivery when delivered in person, (ii) one (1)business day following deposit for overnight delivery to an overnight delivery service which guarantees next day delivery, (iii) three (3)business days following the date of deposit if mailed by U.S. registered mail, postage prepaid, or(iv) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. 9.6 Waiver. No waiver by any party of any condition or of the breach of any term, covenant, representation, or warranty contained in this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or breach in other instances, or as a waiver of any other condition or of any breach of any other terms, covenants, representations, or warranties contained in this Agreement. No waiver shall be effective unless it is in writing and signed by the party to be bound thereby. 9.7 Severability. In the event any provision of this Agreement is held invalid, illegal, or unenforceable, whether in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal, or unenforceable as written, but that by limiting such provision it would become valid, legal, and enforceable, then such provision shall be deemed to be written and shall be construed and enforced as so limited. 9.8 Binding Effect. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their personal representatives, successors, and assigns. This Agreement shall continue in force until all the obligations, duties, and warranties as specified herein shall be fully performed and satisfied. 9.9 Headings and Captions. The title or captions of sections and paragraphs in this Agreement are provided for convenience of reference only and shall not be considered a part hereof for purposes of interpreting or applying this Agreement, and such titles or captions do not define, limit, extend, explain, or describe the scope or extent of this Agreement or any of its terms or conditions. 9.10 Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements of the parties in connection with the subject matters hereof. All exhibits hereto, if any, are hereby incorporated by reference into and made a part of this Agreement. This Agreement may not be modified or amended unless in a writing signed by the parties. 11 9.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures transmitted by facsimile or other electronic means shall be deemed originals. IN WITNESS WHEREOF, the parties have executed this Fiber Optic Network Agreement as of the date first written above. 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