DeKalb Advancement of Technology Authority Broadband Project Supplier

Agreement

This Supplier Agreement (this “Agreement”) is made as of the __ day of

______________ 2010 (the “Effective Date”) by and between DEKALB FIBER
OPTIC, LLC (“DFO”), an Illinois limited liability company, having its principal office
at 1626 DeKalb Avenue, Sycamore, IL 60178, and ________________________
(“Supplier”), a ________________________________ with an office at
______________________________, pursuant to which DFO and Supplier agree
as follows:

1. DEFINITIONS. The term “Laws” shall mean and include all federal, provincial,
state and local laws, statutes, codes, rules, regulations, ordinances, administrative
rules, and orders in effect now or in the future. The term “Affiliates” shall mean (i)
any other person or entity controlling, controlled by or under common control
with such particular person or entity, where “control” means the possession,
directly or indirectly, of the power to direct the management and policies of a
person or entity whether through the ownership of voting securities, by contract
or otherwise, and (ii) if such person or entity is a partnership, any partner thereof.

2. PRODUCTS.
a. This Agreement shall apply to and govern all building materials and other
products sold by Supplier or its Affiliates to DFO on or after the Effective Date
indicated above (“Products” or a “Product”), including, but not limited to, the
following Products: ___________________________________________
___________________________________________________________________
________________. When ordered by DFO, Supplier agrees to sell Products to
DFO, for DFO’s use in the DeKalb Advancement of Technology Authority
Broadband Project (the “Project”), upon the terms and conditions of this
Agreement.

9334441.8
Final Form
 b. Supplier acknowledges and agrees that this Agreement and the
manufacture and sale of the Products related to the Project shall comply with all
the applicable statutes, regulations, executive orders, Federal Acquisition
Regulations, Office of Management and Budget circulars, terms and conditions
and approved applications as may apply to the Project or required by the Special
Award Conditions applicable to the Project and that certain grant award
NT10BIX5570030 (the “Grant”) from the U.S. Department of Commerce National
Telecommunications and Information Administration under The American
Recovery and Reinvestment Act of 2009 in connection with the Project. Such
requirements, shall include, but not be limited to, Supplier’s Product(s) using, if
such materials are used in or a part of the Product(s), iron, steel and
manufactured goods produced in the United States pursuant to Section 1605 of
the American Recovery and Reinvestment Act of 2009 (the “ARRA”).

3. PURCHASE ORDERS AND INVOICES.

a. The quantity of Product(s) purchased by DFO shall be completely within
DFO’ discretion, and shall be limited to the quantity of Product(s) specifically
stated in any orders placed by DFO with Supplier in the form attached hereto as
Exhibit A (“Purchase Order”). Each fully executed Purchase Order shall be
incorporated herein and made a part hereof and such additional terms and
obligations thereto shall become a part hereof. Supplier shall invoice DFO for all
Products sold to DFO pursuant to this Agreement. All undisputed invoices shall be
paid by DFO at the terms provided in the attached Exhibit A. Supplier will supply
the Product to DFO for the duration of the Term (as hereinafter defined) of this
Agreement at the price set forth on Schedule 1 attached hereto, as provided in
the attached Exhibit A, and Supplier shall not increase the Product prices during
the Term of this Agreement. Nothing herein shall create any obligation on DFO’s
behalf to purchase any Products from Supplier during the Term of this Agreement.
DFO will purchase the Product(s) from Supplier on a non-exclusive basis. DFO may
purchase the Product(s) from any other person or entity at any time for any
reason or without reason during and after the Term of this Agreement.

9334441.8
Final Form
 b. Unless otherwise provided in a Purchase Order, invoices for products
purchased under this Agreement shall be sent to DFO no earlier than the delivery
of the Products covered by the invoice and payment of the invoice shall be due no
sooner than on a net 60 day basis following receipt of such invoice, with DFO
having the right to set-off against any invoice any claims DFO may have against
Supplier.

c. Supplier acknowledges and agrees that DFO shall have the right to cancel
any Purchase Order immediately upon notice in the event of the suspension,
termination or material change to the Grant.

4. WARRANTIES.
a. Supplier warrants that each Product shall: (i) be free and clear of all liens
and encumbrances; (ii) be merchantable; (iii) be new, free of defects in design,
materials, workmanship, packaging, labeling and tagging, and include all
necessary warnings and safety devices; (iv) meet Supplier's specifications and all
applicable industry standards and code requirements for the Product, as in effect
at the time of Product shipment; (v) meet any specifications for the Product
communicated by DFO to Supplier; (vi) comply with the claims, representations
and warranties made; and (vii) be equivalent in design, materials, quality, finish,
workmanship and performance to any samples, designs or drawings submitted to
and approved by DFO. In no event shall DFO be deemed to have warranted any
Product in any respect.

b. Supplier shall be responsible for handling all Product claims, and for all
costs associated with such claims, and shall defend, indemnify and hold DFO
harmless, as provided in Section 8, against any liability or expense related thereto
in accordance with Section 8. If Supplier fails to promptly reimburse DFO for sums
paid and Products provided by DFO to resolve Product claims, then DFO may elect
to make appropriate deductions, with the right of set-off against any invoice, for
such items from payments made to Supplier. When requested by DFO, Supplier

9334441.8
Final Form
shall provide information about the warranty, claims and litigation history for any
Product.

c. Nothing contained herein shall impose any duty or affirmative obligation of

DFO to inspect, test, approve or ensure compliance with any specifications or
quality standards or consistency with samples provided concerning the Products
or any improvements, modifications or changes to any of the Products that
Supplier may undertake from time to time.

d. Supplier shall cooperate and assist, if requested by DFO, DFO and the
DeKalb County Government with the compliance with the award Terms and
Conditions under the Grant and the requirements under that certain Indefeasible
Right to Use Agreement dated November 29, 2010 by and between DeKalb
County Government and DFO (the “IRU Agreement”).

e. Supplier shall deliver the Product(s) purchased under a Purchase Order

within __ days of such order or as otherwise stated in the Purchase Order.
Delivery of such Product(s) shall be made to DFO at its address provided in Section
14 or at such other address as DFO may designate in a Purchase Order.

f. Notwithstanding anything to the contrary in this Agreement and in addition

to all other rights herein or at law, upon the request of DFO, Supplier shall
immediately replace and repair any defective Product(s).

g. Supplier hereby warrants that it has not and will not pay any rebate,
commission, salary or any remuneration or reward, indirectly or in any form
whatsoever (“Rebates”) to any officer, employee, agent, or representative
employed by or on behalf of DFO for such person’s personal use and/or benefit,
rather any such Rebates shall be for the sole benefit of and shall directly benefit
DFO. Any violation of such warranty shall be considered a material breach of this
Agreement.

9334441.8
Final Form
5. COMPLIANCE WITH LAWS. Supplier warrants that each Product shall be
manufactured, packaged, tagged, labeled and shipped in accordance with all
applicable Laws. Supplier shall identify in an MSDS or other written statement all
hazardous or toxic substances (as those terms are defined in any applicable Laws)
contained in any Product. With the exception of such hazardous or toxic
substances so identified, Supplier warrants that each Product contains no
hazardous or toxic substances. Supplier shall be solely responsible for any recall,
replacement or repair of any Product ordered by any governmental agency or
court, and shall defend, indemnify and hold DFO harmless against any liability or
expense related thereto in accordance with Section 8. Supplier warrants that it
shall comply with all applicable Federal, state, and local Laws and regulations
regarding the manufacturing and sale of the Product(s) to DFO during the Term of
this Agreement, including, but not limited to, the requirements set forth on
Exhibit B attached hereto (the “Requirements”), to the extent applicable, as if
Supplier is in place of DFO.

6. PATENTS AND OTHER PROPRIETARY RIGHTS. Supplier warrants that it has the
right to manufacture the Products and sell the Products to DFO for use in the
Project. Supplier shall defend, indemnify and hold DFO harmless, as provided in
Section 8, against any and all liability, losses, costs and expenses related thereto in
accordance with Section 8.

7. DAMAGES. In addition to any right afforded DFO elsewhere in this Agreement,

Supplier shall be liable for any special, consequential, incidental, punitive or
exemplary damages, attorneys fees and costs arising out of or in any way
connected with the Product(s) for this Agreement, including, but not limited to,
damages for injuries, lost profits, loss of use or for any damages or sums paid by
DFO, its Affiliates or the DeKalb County Government to third parties. Supplier also
acknowledges that in the event that delivery is delayed to DFO, DFO may be
assessed liquidated damages which by agreement will be paid by Supplier in
addition to all other damages stated above to the extent that such liquidated
damages result in whole or part from the breach of this Agreement by Supplier. If
5

9334441.8
Final Form
Supplier is more than five (5) days late on any delivery at any time, DFO shall have
the right to terminate this Agreement upon 48 hours notice to Supplier without
further payment to Supplier and obtain substitute materials and recover all direct,
incidental and consequential costs resulting from the failure of Supplier to timely
comply with the delivery schedule without waiver of any other remedy available
to DFO.

8. INDEMNIFICATION.
a. Supplier shall defend, indemnify and hold DFO, its Affiliates and the DeKalb
County Government harmless from and against any and all losses, liabilities, suits,
claims, damages, fees, and expenses (including, but not limited to, court costs and
reasonable attorneys' and expert witness fees) of whatever kind or nature which
may arise out of or be in any way connected with or is alleged to arise out of or be
connected with: (i) the death of or injury to any person or damage to any property
which resulted or is alleged to have resulted from any acts or omissions of
Supplier, its employees and agents, contractors, subcontractors and/or any other
persons for whose conduct it may be or is alleged to be legally responsible or from
the Product or its use; (ii) in connection with the failure or alleged failure of
Supplier or any Product to fully comply with any warranties, guarantees, or
representations of Supplier hereunder, or otherwise; (iii) out of any
environmental, property and/or toxic tort claim, lawsuit, judgment; loss, civil
penalty or action; (iv) from the failure of Supplier to comply with any applicable
Law; (v) the production, supply, storage, distribution or delivery by Supplier of any
Products, article or other item from Supplier, (vi) the use of any Product or article
or other item from Supplier, or (vii) the breach by Supplier of any of its obligations
or representations under this Agreement, including without limitation any
guarantee or warranty, whether implied or express by Supplier, except in any case
to the extent such loss, damage or injury is the direct result of gross negligence or
willful misconduct of DFO.

If any claim or demand is asserted against DFO, its Affiliates or the DeKalb
b.
County Government and their respective directors, officers, employees,
6

9334441.8
Final Form
representatives, agents, successors, insurers, assigns and beneficiaries (the
“Indemnitees”) by a third party with respect to the indemnities set forth in this
Agreement (the "Third Party Claim"), the Indemnitees shall give prompt written
notice thereof to Supplier, including copies of any pleadings in the Indemnitees’
possession, the failure to so notify the Supplier shall not relieve the Supplier of its
obligations hereunder, except to the extent such failure shall have adversely
prejudiced the Supplier. Within twenty (20) days of receipt of such notice,
Supplier shall either (i) pay the Third Party Claim in full or upon compromise
agreed to by Supplier and said third party, and obtain a complete and final written
release of the Indemnitees from the Third Party Claim, or (ii) notify the
Indemnitees that Supplier disputes the Third Party Claim and intends to defend
against it, and thereafter so defend and pay any adverse final judgment, award or
settlement amount in regard thereto. Such defense shall be controlled by
Supplier, and the costs and expenses of such defense shall be borne by it, except
that the Indemnitees shall have the sole right to approve counsel retained by
Supplier to defend against the Third Party Claim, such consent not to be
unreasonably withheld. The Indemnitees may actively participate in or monitor
the defense of the Third Party Claim with its own counsel. If Supplier has
complied fully with its obligations under this Section 8, the Indemnitees shall bear
the cost of its own counsel. If Supplier fails to take action on a Third Party Claim
within twenty (20) days as set forth above, then the Indemnitees shall have the
right to pay, compromise or defend the Third Party Claim and to assert the
amount of any payment on the Third Party Claim plus the costs and expenses of
defense or settlement as an indemnity claim against Supplier. DFO shall
reimburse Supplier for the reasonable expenses of defense and any damages paid
by Supplier in connection with any Third Party Claim to the extent that the final
judgment, decree or settlement is based upon DFO’s negligence. The failure of
any Indemnitee to conduct independent Product testing or to take other steps to
verify the accuracy of Supplier's Product Literature or its representations or
warranties made herein shall not be deemed to be negligence or evidence of
negligence adversely affecting, restricting or compromising any Indemnitee’s
rights under this Section in any way.
7

9334441.8
Final Form
 c. Notwithstanding the above, Supplier shall not enter into any settlement or
compromise of the claim that would result in the admission of any liability by any
Indemnitee, any financial liability on the part of any Indemnitee, or would subject
any Indemnitee to injunctive relief without first obtaining such Indemnitee’s prior
written consent.

d. Supplier’s agreement to defend, indemnify and hold the Indemnitees

harmless under the terms of this Section 8 is independent of and in addition to
Supplier’s agreement to procure insurance as required in Section 9. Supplier’s
insurers position regarding insurance coverage for DFO as an additional insured,
does not in any way modify or limit Supplier’s agreement to defend and indemnify
and hold the Indemnitees harmless as required in this Section 8.

9. INSURANCE. During the term of this Agreement, Supplier shall procure and
maintain, at its sole expense, from insurance companies that are reasonably
acceptable to DFO, Comprehensive or Commercial General Liability Insurance
covering claims for bodily injury, death or property damage, including coverage for
Premises and Operations; Products and Completed Operations; Independent
Contractors; Personal Injury; Blanket Contractual Liability and Broadform Property
Damage Liability, in the amount of $3,000,000.00 Combined Single Limit per
occurrence. Supplier’s insurance policies shall provide for thirty (30) days’ prior
written notice to DFO of cancellation, change or non-renewal, and shall be written
on an “occurrence” policy form. Supplier's insurance shall be primary coverage in
all instances regardless of similar coverage, if any, carried by DFO, and Supplier
shall pay all deductibles from insured claims under its insurance policies. Supplier
shall promptly provide DFO with Certificates of Insurance acceptable to DFO
indicating insurance coverage complying with the requirements of this
Agreement, including a Broadform Vendors Endorsement naming DFO and the
DeKalb County Government as an insured party. The maintenance of this
insurance shall not in any way operate to limit the liability of Supplier to DFO
under this Agreement.
8

9334441.8
Final Form
10. DELIVERY.
a. All Product shipped to DFO shall be in accordance to the freight terms
provided in the attached Exhibit A. All Product shall be shipped to DFO in
accordance with Section 4.e.

b. Time is of the essence of any order. Product must be shipped to arrive at

the “Ship To” destination by the delivery date. Supplier will advise DFO
immediately if any Product cannot be shipped in time to be received on the
delivery date specified.

c. Supplier is responsible, at its cost, for insuring the Product to the F.B.O. at
1626 DeKalb Avenue, Sycamore, IL 60178 for full replacement value, including
freight, and Supplier shall file all claims for loss or damage. All uncollectible
portions of concealed damage claims will be charged back to Supplier.

d. All transportation costs or expenses incurred by DFO because of Supplier’s

noncompliance with the terms of this Agreement shall be charged to Supplier.

11. RISK OF LOSS. Risk of Loss shall not pass to DFO until legal title passes upon
receipt of the Product by DFO at the designated final destination in good
condition.

12. TERM.
a. This Agreement shall begin on the Effective Date indicated above, and shall
continue in effect until terminated as follows:

i. Upon the third anniversary of the Effective Date, unless otherwise

terminated pursuant to this Section or renewed upon mutual
agreement of the parties, this Agreement shall terminate;

9334441.8
Final Form
 ii. DFO may terminate this Agreement by written notice to Supplier if
Supplier fails to comply with any of the provisions of this Agreement
that DFO reasonably determines to be material to it (including, but not
limited to, any representation, warranty, covenant or obligation set
forth in this Agreement) and such failure is not cured to DFO’s
reasonable satisfaction within fifteen (15) days following written notice
of such failure to Supplier or if there are three (3) or more such failures
within a twelve-month period regardless of whether or not cured
within the cure period;

iii. DFO may terminate this Agreement by written notice to Supplier in the
event the Grant is cancelled or suspended for more than ninety (90)
days or the Grant or IRU Agreement is materially altered in DFO’s sole
determination; or

iv. Supplier may terminate this Agreement if DFO fails to pay Supplier’s
undisputed invoices when due, by giving DFO written notice of such
breach and sixty (60) days to cure the breach. If DFO has not cured its
breach at the end of said period, Supplier may terminate this
Agreement, effective immediately upon written notice to DFO.

In connection with any termination pursuant to Sections 12.a.ii. and 12.a.iii.,

DFO shall have the right to cancel any open Purchase Orders and DFO shall have
no obligation to Supplier or its Affiliates for any material or other costs incurred,
other than for payment on non-canceled, fulfilled Purchase Orders.

b. The termination of this Agreement shall not affect the rights, obligations or
liabilities of the parties under the provisions of this Agreement which by their
nature extend beyond termination, including, but not limited to, Supplier’s
warranties and obligations under Sections 4, 5, 6, 7, and 8, all of which shall
survive termination as independent obligations. If a party breaches this
Agreement, the non-breaching party shall have all rights granted to it at law or in
10

9334441.8
Final Form
equity, including, but not limited to, the right to receive reasonable attorneys’ fees
and costs in accordance with Section 13.

If Supplier terminates this Agreement for any reason, DFO has the right to
return to Supplier all Products in DFO’ inventory. In the event DFO exercises this
right, Supplier shall refund to DFO the amounts paid by DFO for such returned
Products.

13. ATTORNEYS’ FEES. If either party institutes any suit or action to enforce its
rights hereunder, the prevailing party in such suit or action shall be entitled to
recover from the other its reasonable attorneys' fees, fees of accountants and
other experts, and court costs and other litigation expenses incurred in such suit
or action and in any appeals therefrom. The prevailing party means a claimant
that recovers more than seventy-five percent (75%) of its claim exclusive of fees
and costs of the proceeding or a defendant that is only required to pay twenty-five
percent (25%) or less of any claim exclusive of fees and costs of the proceeding.

14. NOTICE. Any notice required or permitted under this Agreement shall be
given in writing and shall be deemed to have been received on the date sent.
Notices shall be sent by certified mail (return receipt requested), express mail
service, or confirmed facsimile transmission, with all applicable charges prepaid,
addressed as set forth below. Either party may change its notice address by giving
written notice pursuant to this Section.

For DFO: For Supplier:

DeKalb Fiber Option, LLC
1626 DeKalb Avenue
Sycamore, Illinois 60178
Attn: Attn:
Fax: Fax:

11

9334441.8
Final Form
15.ASSIGNMENT. Supplier shall not assign or transfer this Agreement or delegate
any of its responsibilities under this Agreement to any person or entity, whether
verbally, in writing, by operation of law, execution sale, in bankruptcy or
otherwise, without the prior written consent of DFO, which may be withheld by
DFO for any or no reason in DFO’ sole discretion. Except as provided in this
Section, this Agreement shall be binding upon and inure to the benefit of the
parties to this Agreement and their respective successors and assigns. DFO may
assign all of its rights and obligations hereunder to any person or entity.

16.CONFIDENTIALITY. All information, including but not limited to, oral

statements, computer software, files, and databases, accounting information and
financial records, business plans, new products, lists of key personnel, customers,
clients, vendors, suppliers, distributors and consultants, price lists and pricing
information, advertising and promotional materials, training manuals, handbooks,
video and audio tapes or files, and other documents or media that contain DFO’s
confidential information and trade secrets and sensitive and proprietary
information provided to Supplier by clients, customers, sellers and other
stakeholders that is shared with Supplier in confidence and trade secrets in
existence during this Agreement, and other material or data supplied by DFO to
Supplier or obtained by Supplier in any manner related to this Agreement is
confidential and privileged (“Confidential Information”), including, but not limited
to, any purchaser orders made a part hereof. Confidential Information shall only
be used by Supplier in its performance under this Agreement and shall not be
disclosed by Supplier except to those employees and independent contractors
who have a need to know and who have agreed in writing to maintain the
confidentiality of the Confidential Information as required herein. Supplier shall
(i) not reproduce or copy the Confidential Information in whole or in part, except
as authorized in this Agreement or when requested by DFO; (ii) at DFO’s written
instruction, return or destroy the Confidential Information upon the termination
of this Agreement or when requested to do so; or (iii) disclose the Confidential
Information pursuant to a requirement of a duly empowered governmental

12

9334441.8
Final Form
agency or court of competent jurisdiction, after due notice and adequate
opportunity to intervene is given to DFO unless legally prohibited.

17. MISCELLANEOUS. Failure by either party to require strict compliance with

any provision of this Agreement shall not be construed as a waiver of that
provision or any other provision. Each and every provision of this Agreement is
completely severable, and the invalidity of any one or more of such provisions
shall not in any way affect the validity of this Agreement or its other provisions.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, and it shall not be necessary in making proof of this
Agreement or its terms to produce or account for more than one counterpart.
The parties hereby stipulate that legible executed facsimile copies of this
Agreement shall be admissible as evidence of the originals under any federal or
state rules of evidence. This Agreement has been entered into for the sole benefit
of DFO, Supplier and the persons and entities protected by the indemnification
provisions set forth above, and it is not intended to benefit or create any rights
whatsoever in favor of any other persons or entities. This Agreement shall be
governed by and construed under the laws of the State of Illinois, except the laws
of that state which would render such choice of laws ineffective. Each party to
this Agreement hereby submits to and hereby irrevocably waives any objection it
may now or hereafter have to the jurisdiction and venue of the United States
District Court for the Northern District of Illinois, and the DeKalb County Circuit
Court, State of Illinois, for the purposes of all legal proceedings arising out of or
relating to this Agreement. When requested by DFO, Supplier shall provide
banking and other credit references, financial statements and other information
about its financial condition. By its signature below, Supplier hereby authorizes
DFO to contact and investigate any banking or other credit references provided by
Supplier; authorizes such references to release the information requested by DFO;
and authorizes DFO to obtain credit reports on Supplier, all for the purpose of
allowing DFO to assess and continue to assess Supplier’s credit solely for business
purposes.

13

9334441.8
Final Form
17. ENTIRE AGREEMENT. Subject to Section 3 of this Agreement, this
Agreement is the entire agreement between the parties with respect to the
matters set forth herein, and all prior written or verbal proposals, agreements,
communications or understandings between the parties with respect to such
matters are merged into this Agreement. This Agreement can only be amended or
modified by a written document executed by DFO and Supplier. The terms of this
Agreement shall control over any additional, conflicting or inconsistent provision
set forth or referred to in any purchase order, bill of lading, freight receipt,
warehouse receipt, invoice or similar document exchanged or executed by the
parties in connection with the performance of this Agreement.

[Signature page(s) follows]

14

9334441.8
Final Form
 IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective on the Effective Date indicated above.

DeKalb Fiber Optic, LLC ________________________________

("DFO") ("Supplier")
By:_________________________________ By:_________________________________
______ _____

Typed Typed
Title:________________________________ Title:________________________________
______ _____

15

9334441.8
Final Form
 Exhibit A

FORM OF PURCHASE ODER

Attached hereto.

16

9334441.8
Final Form
 Purchase Order No:_____________

THE DEKALB ADVANCEMENT OF TECHNOLOGY AUTHORITY BROADBAND

PROJECT SUPPLIER AGREEMENT APPLIES TO ALL PURCHASES ORDERS ISSUED.

Seller:
______________________________________________________________
Name:
_______________________________________________________________

Authorized Printed
Signature:________________________ Name:___________________________
____ _____

DEKALB FIBER OPTIC, LLC, an Illinois limited liability company (“DFO”), 1626
DeKalb Avenue, Sycamore, Illinois 60178

Authorized Printed
Signature:________________________ Name:___________________________
____ _____

DATE: __________________, 201___

PRODUCT QUANTITY

SPECIFIED DELIVERY DATE: ___________________, 2010___

SPECIAL DELIVERY INSTRUCTIONS:

____________________________________________
___________________________________________________________________
___________________________________________________________________
__________________
17

9334441.8
Final Form
 Purchase Order No:_____________

STATEMENT OF INTENT.

DFO is contracting with you for certain materials or services to be used in

connection with the Project. Capitalized terms, unless otherwise defined herein,
have the meanings assigned to such terms in that certain DeKalb Advancement of
Technology Authority Broadband Project Supplier Agreement dated as of
__________ __, 201_ by and between Suppler and DFO (the “Supplier
Agreement”). The U.S. Department of Commerce National Telecommunications
and Information Administration and other government agencies (collectively, the
“Government”) strictly regulates use of the award money under the Grant
associated with the Project and has strict requirements regarding the policies and
procedures DFO and its suppliers use in the purchasing process. Accordingly, this
document combined with the Supplier Agreement contains both (i) DFO’s terms
and conditions regarding its order with you, and (ii) the requirements imposed
upon DFO (and therefore you) as a result of DFO’s obligations to the Government.

APPLICABLE CONTRACT PROVISIONS.

a. DFO has previously communicated to you an offer to purchase a quantity of

goods and/or services (the “Products”) at a defined price (this “Order”). This
Order, which may be a written or electronic document, may also include particular
specifications, shipping instructions and/or other requirements by DFO for the
goods or services. These terms and conditions, together with the aforementioned
Order, constitute an offer by DFO to purchase from you (“Seller”) the described
Products pursuant to the terms and conditions described herein and further
pursuant to the terms and conditions included in the Supplier Agreement. This
offer is not an acceptance or a confirmation of any previous offer or proposal from
Seller, and this offer shall be deemed to be a rejection and counteroffer with
respect to any previous offer or proposal from Seller with regard to the Products.
Acceptance of any shipment of the Products shall not be construed as an

18

9334441.8
Final Form
 Purchase Order No:_____________

acceptance of any such previous offer or proposal or an acceptance of any

different or additional terms proposed by Seller.

b. DFO’s offer shall become an “Agreement” upon acceptance by Seller. Seller

shall be deemed to have accepted this offer by Seller’s commencement of delivery
of the Products to DFO at the address stated above, by Seller’s written acceptance
or confirmation of this Order (not to be more than three (3) days from receipt of
this Order), or by any other act or communication constituting legal acceptance,
whether or not any such acceptance or confirmation purports to state terms
additional to or different from those stated herein. DFO hereby expressly objects
to and rejects any such additional or different provisions, and none of such
provisions shall be deemed to be a part of the Supplier Agreement or this Order
between the parties unless specifically agreed to in writing by DFO.

c. The “Agreement” shall consist of this Order, the Supplier Agreement, and
any specifications, drawings, instructions and/or requirements conveyed by DFO
to Seller with regard to this Order and the Products. Notwithstanding anything
stated herein to the contrary, all the aforementioned documents and
communications shall be incorporated herein as material terms of the Agreement
between DFO and Seller. In the event of a conflict among any the documents
comprising the Agreement, the following order of precedence shall apply: first,
the Supplier Agreement, then the Order (including any enforceable change orders
thereto), then the specifications, drawings and technical requirements for the
Products.

SHIPPING INSTRUCTIONS. Routing and shipping instructions on the face of this

Order must be followed. Notice of shipment shall be sent to DFO at the time of
shipment, which shall state the number of the Order, the kind and amount of
Products and the route by which the shipment is being made. Seller shall ship the
Products from the specified point of shipment no later than the specified
shipment date and shall deliver the Products to DFO at the specified destination
no later than the specified delivery date. All Products shall be shipped FOB
19

9334441.8
Final Form
 Purchase Order No:_____________

destination and shall be suitably packed, marked and shipped in accordance with
shipping instructions specified by DFO and the requirements of common carriers.

INVOICING. Seller shall render an invoice with delivery of each shipment or as

soon as practicable following delivery. Original bills of lading or other shipping
documents must accompany Seller invoice. No charges for packing or cartage will
be accepted or paid unless otherwise specified on this Order.

QUANTITY DELIVERED. The quantity of Products delivered shall not be greater

than the amount specified unless an additional amount is first ordered by DFO in
writing on its “Revised Purchase Order.” DFO may return excess quantities to
Seller at Seller’s expense.

TIMELY DELIVERY. Timely deliveries are of the essence for this Order. DFO may
refuse to accept, or at DFO’s option, may return at Seller’s expense, all Products
made after the date or dates specified on this Order. If Products are not timely
shipped and/or delivered to DFO, then DFO shall not be liable for payment of
Products and shipping costs if DFO elects to refuse or return the Products and
Seller shall be liable to DFO for damages, as provided in the Supplier Agreement.

INSPECTION. All Products specified in this Order are subject to DFO’s inspection
within a reasonable time after arrival at the ultimate destination. If, upon
inspection, any Products are found to be non-conforming, defective, of inferior
quality or workmanship, or fails to meet the specifications of any other
requirements of this Order (hereinafter “Non-Conforming Goods”), then DFO may
reject and return the Non-Conforming Goods to Seller at Seller’s expense and may
seek any and all remedies specified in the Supplier Agreement. Payment for Non-
Conforming Goods shall not be an acceptance of such Products.

Seller shall promptly correct any Products that do not comply with the warranties
set forth in this Order. If DFO requests Seller to make any such correction and
Seller thereafter fails or indicates its inability or unwillingness to do so, then DFO
20

9334441.8
Final Form
 Purchase Order No:_____________

may correct (or cause to be corrected) the noncompliance or otherwise achieve

compliance by the most expeditious means available to it and charge to or
otherwise recover from Seller the cost thereof in accordance with the Supplier
Agreement. If DFO rejects any Products that do not comply with the foregoing
warranty, Seller shall have the time indicated in the Supplier Agreement to correct
the noncompliance; if Seller fails to correct the noncompliance within such time,
DFO may cancel this Order as to the non-complying Products without any liability
or obligation of, or cost to, DFO with respect to such Products and without
prejudice to any other rights or remedies of DFO with respect to such
noncompliance (e.g., as to damages or cover).

CANCELLATION. DFO may at its option cancel any unshipped Products in

accordance with the Supplier Agreement. Subject to the Supplier Agreement,
DFO’s only obligation shall be to pay for and accept Products shipped prior to the
date of cancellation. Upon payment, title to all Products or partially complete
Products shall pass to DFO.

TAX. Any applicable County and State Sales Tax and/or use tax shall be paid by
DFO directly to Seller and Seller shall be responsible for paying said tax to the
appropriate municipal taxing authorities. Excise tax, where applicable, shall be
billed as a separate item on same invoice as the merchandise to which it is
released is billed.

DELAYED DELIVERY. In the event a location where certain Products are to be

provided is not ready to receive delivery, then Seller, upon receiving at least three
(3) days notice, will hold said Products for a reasonable period at no cost to DFO.

NO ASSIGNMENT. This Order and/or money due hereunder may not be assigned
without written authorization by any officer of the DFO and any attempted
assignment without such written consent shall be void. Subject to the foregoing
restriction on assignment and delegation by Seller, this Order shall be fully binding

21

9334441.8
Final Form
 Purchase Order No:_____________

upon, inure to the benefit of and be enforceable by Seller, DFO, and their
respective successors, assigns, and legal representatives.

RESPONSIBILITY PRIOR TO ACCEPTANCE. Responsibility for damage or injury to

Products to be furnished under this Order from any cause whatsoever shall rest
with Seller until final receipt and acceptance thereof by DFO, and in case of
materials to be installed, until completion of installation and acceptance thereof
by DFO.

ENTIRE AGREEMENT. This Order when signed by DFO and bearing an order
number is the only purchase order that shall be recognized by DFO as authority
for charging Products to its account. Other than the Supplier Agreement, this
Order supersedes all previous communication and negotiation and constitutes the
sole and entire agreement between the parties with regard to the Order unless
there is also a formal written agreement related to this Order signed by the
parties. In that case, the formal written agreement shall constitute the sole and
entire agreement of the parties. If there is a conflict between the terms of this
Order, a written agreement other than the Supplier Agreement, and the Seller’s
invoice, the items of this Order will control absent a written agreement between
the parties that provides otherwise.

NO WAIVER; NO OTHER TERMS. No waiver or modification of the terms and

conditions contained in this Order shall be binding on DFO unless in writing signed
by DFO. No waiver of a breach of any provision of this Order shall constitute a
waiver of any other breach of this Order. This offer is expressly limited to the
terms contained herein and the Supplier Agreement.

PUBLICITY. Seller shall not disclose, use, or refer to this Order, or the trade
names, trademarks, or service marks of DFO, in any advertising, publicity releases,
promotional materials, or other materials without the prior written consent of
DFO.

22

9334441.8
Final Form
 Purchase Order No:_____________

GOVERNING LAW AND GOVERNMENTAL REGULATIONS. The law of the State of

Illinois shall govern the respective rights and obligations of the parties, without
regard to its rules relating to conflicts of law. The terms set forth above shall not
be construed to limit any rights that DFO may have pursuant to the Uniform
Commercial Code or other similar laws governing the relationship between the
DFO and the Seller.

23

9334441.8
Final Form
 Exhibit B

Requirements

Signs: DFO is responsible for constructing, erecting and maintaining in good

condition throughout the construction period a sign(s) satisfactory to the NTIA
that identifies the project and indicates that the project is Federally funded. The
NTIA also may require that DFO maintain a permanent plaque or sign at the
project site with the same or similar information. Furthermore, all signage shall
display signage that features the Primary Emblem throughout the construction
phase. The signage will be displayed in a prominent location on site, and the
Primary Emblem will not be displayed at a size less than 6 inches in diameter.

2 CFR 1326 and Executive Order 12549: This Contract is subject to 2 CFR Part
1326 Subpart C Governmentwide Debarment and Suspension (Nonprocurement)
and to Executive Order 12549, which provides that no award will be made to any
party which is debarred or suspended or is otherwise excluded form or ineligible
for participation in Federal Assistance programs. The County has verified that DFO
is not debarred or suspended, and DFO will verify that no subcontractor has been
debarred or suspended.

Lobbying Activities: This Contract is subject to 31 U.S.C. § 1352 as

implemented at 15 CFR Part 28, “New Restrictions on Lobbying.” DFO and its
subcontractors shall submit a completed “Disclosure of Lobbying Activities” (Form
SF-LLL) regarding the use of non-federal funds for lobbying. The Form SF-LLL shall
be submitted within 15 days following the end of the calendar quarter in which
there occurs any event that requires disclosure or that materially affects the
accuracy of the information contained in any disclosure form previously filed. The
Form SF-LLL shall be submitted from tier to tier until received by the recipient.
The recipient must submit all disclosure forms received, including those that
report lobbying activity on its own behalf, to the Grants Officer within 30 days
following the end of the calendar quarter.
24

9334441.8
Final Form
Kick-back Activities: The parties agree to comply with the Copeland “Anti-
Kickback” Act.

Subcontract To Federal Agency: DFO and/or any subcontractor shall not sub-
contract any part of the approved project to any employee or agency of DOC
and/or other Federal department, agency or instrumentality, without prior written
approval of the Grants Officer.

Reporting and Registration under the ARRA: The parties agree to cooperate
and to report on the use of ARRA funds as required. Reports are due no later than
10 days after each calendar quarter in which ARRA funds are received. DFO and
Grantee will maintain current registrations in the Central Contractor Registration
at all times during which they have active federal awards funded with ARRA funds.
DFO will cooperate and assist the County in the submission of a “Financial Status
Report” on a quarterly basis as required under the Department of Commerce
requirements. The parties agree to cooperate and timely submit all performance
or technical reports as required. The parties agree to the retention of all required
records for three years after final payments have been made. The parties agree
that Grantee and any appropriate Federal authority, shall have access to any
books, documents, papers, and records of DFO which are directly pertinent to this
Agreement for the purpose of making audit, examination, excerpts and
transcriptions.

Use of American Iron, Steel and Manufactured Goods under Section 1605 of the
ARRA: The parties agree, subject to exceptions provided, that any
construction, alteration, maintenance or repair of a public building or public work
will use iron, steel and manufactured goods produced in the United States.

Wage Rate Requirements under Section 1606 of the ARRA: The parties agree
to comply with Section 1606 of the ARRA, which requires that all laborers and
mechanics employed by contractors and subcontractors on projects funded
25

9334441.8
Final Form
directly by or assisted in whole or in part by and through ARRA funds shall be paid
wages at rates not less than those prevailing on projects of a character similar in
locality of DeKalb County. The parties agree to comply with the pertinent Davis-
Bacon Act requirements associated herewith.

Contract Work Hours and Safety Standards: The parties agree to comply
with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act.

Construction-related requirements:
Maintenance: The parties agree to properly and efficiently administer,
operate and maintain the Project for the useful life of the Project.

Compliance:The County, DFO and each other contractor or subcontractor,

will comply with all applicable Federal, state and local laws and regulations.

Energy Efficiency: The parties shall apply, where feasible, sustainable, and
energy efficient, design principles for the purpose of reducing pollution, and
energy costs and optimizing lifecycle costs associates with the construction. The
parties agree to comply with the mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservations plan
issues in compliance with the Energy Policy and Conservation Act.

Non-Discrimination and Equal Opportunity Requirements: The parties agree

to comply with the Equal Employment Opportunity Executive Order 11246 of
September 24, 1965, as amended.

Contracting with Small and Minority Firms, Women’s Business Enterprise and
Labor Surplus Firms: The parties agree to take all necessary affirmative steps
to assure that minority firms, women’s business enterprises, and labor surplus
firms are used when possible. Affirmative steps shall include:
Placing qualified small and minority businesses and women’s business
enterprises on solicitation lists;
26

9334441.8
Final Form
 Assuring that small and minority businesses, and women’s business
enterprises are solicited whenever they are potential sources;
Dividing total requirements, when economically feasible, into smaller tasks
or quantities to permit maximum participation by small and minority business and
women’s business enterprises;
Establishing delivery schedules, where the requirement permits, which
encourage participation by small and minority business, and women’s business
enterprises; and
Using the services and assistance of the Small Business Administration, and
the Minority Business Development Agency of the Department of Commerce.

Debts: The parties agree to pay promptly and debts determined to be owed
to the Federal Government.

Individual Background Screening: The parties agree to provide for individual

background screening on key individuals as may be required under the Grant
award and submit a Form CD-346 as required.

Drug-Free Workplace: The parties shall comply with the provisions of the Drug-
Free Workplace Act of 1988.

Codes of Conduct: The County will maintain written standards of conduct to

establish safeguards to prohibit employees from using their positions for a
purpose that constitutes or presents the appearance of personal or organizational
conflict of interest, or personal gain in the administration of the Award. DFO will
comply with such standards in accordance with Illinois law.

Environmental Requirements: The parties agree to comply with all

environmental standards in the Award and to comply with the Clean Air Act, Clean
Water Act and Executive Order 11738, and Environmental Protection Agency
regulations.

27

9334441.8
Final Form
 SCHEDULE 1

Pricing

Product Price

28

9334441.8
Final Form