ACCESS AND LICENSE AGREEMENT
THIS ACCESS AND LICENSE AGREEMENT (this "Agreement") is entered into this day of __________________, 2000 (the "Effective Date"), between the Consolidated City of Indianapolis, Marion County, Indiana, a municipal corporation of the State of Indiana; the Department of Public Works ("DPW"), and the Department of Capital Asset Management ("DCAM") (the "Licensor"), and CityNet Telecommunications, Inc., a Delaware corporation authorized to do business in the State of Indiana (the "Licensee").
WHEREAS, the Licensor desires to find new and innovative ways to provide fiber optic access to its citizens, in both commercial and residential uses, which would attract new business and retain existing business, would attract and expand a highly skilled workforce and would promote general economic development through technology availability and upgrades;
WHEREAS, the Licensor desires to protect and preserve its infrastructure and more efficiently use its monetary and personnel resources by finding and authorizing innovative methods of deploying fiber optic systems which do not involve digging and trenching in the streets and other public right of ways and which minimize the disruption of traffic flow and commerce and the economic loss associated with such disruption;
WHEREAS, the Licensor desires to identify new methods of inspection, maintenance and metering of its sewer system to insure compliance with local, federal and state environmental laws and regulations;
WHEREAS, the Licensor desires to identify new revenue sources which can be derived from its existing properties and resources in order to increase the funds available to serve better its citizens;
WHEREAS, the Licensor has received a request from the Licensee that the Licensor grant the Licensee access to, and a license to use, the sewer system (including sanitary, storm water and relief sewers or a combination of them) and related or adjacent facilities and properties now or hereinafter owned or used and operated by the Licensor, or such portion(s) thereof chosen by the Licensee from time to time in conjunction with the approval of the Licensor (the "System"), for the purpose of installing, maintaining, operating and licensing to third parties for a fee the use of a dark (unlit) fiber optic network and related facilities and equipment, or such portion(s) thereof chosen by the Licensee from time to time in its sole discretion (the "Network"), in the System;
WHEREAS, the Licensor desires to grant the Licensee such non-exclusive access and license;
WHEREAS, Licensee is a public utility, having been granted a Certificate of Territorial Authority by the Indiana Utility Regulatory Commission ("IURC") on September 20, 2000 in Cause No. 41781, and, as such, the Licensor is authorized to allow Licensee nondiscriminatory access to the public rights-of-way pursuant to I.C. § 8-1-2-101;
WHEREAS, the Licensor has authority to grant to Licensee such non-exclusive access and license and is entitled to receive a reasonable fee for such access and license; and
WHEREAS, the Licensor deems such grant and license pursuant to this Agreement to be an exercise of a proprietary, rather than a governmental, function.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
Section 1. Grant of Access and License. Subject to the terms and conditions of this Agreement, the Licensor hereby grants to the Licensee non-exclusive access to, and a license/ permit to use, the System for the purposes of installing, maintaining, operating and licensing to third parties for a fee the use of the Network in the System (the "Access and License"). The Licensor further grants to the Licensee, at all times during the term of this Agreement, a nonexclusive easement for ingress and egress to and from the System for the installation, maintenance and operation of the Network in the System.
Section 2. License/Permit Fee. Within Sixty (60) days of the Effective Date, Licensee shall pay Licensor the sum of Fifty Thousand Dollars ($50,000.00) as an initial minimum access and license fee to be credited against the "Gross Revenue" fees set out immediately below. From and after the Effective Date, the Licensee shall pay to the Licensor, on a quarterly basis, a license/permit ("license") fee of two and one half percent (2½%) of the "Gross Revenues" (as defined below) received by the Licensee from Licensee's operation of the Network in the System pursuant to this Agreement. Such payment shall be made within forty-five (45) days after the expiration of each quarter at the Licensor's address specified in Section 21 hereof. For purposes of this Section, "Gross Revenues" of the License shall be all gross revenues, determined in accordance with generally accepted accounting principals, derived and received by the Licensee from its operation of the Network in the System. Gross Revenues include, but are not limited to, charges made by the Licensee for use of the Network by other persons or entities. Notwithstanding anything to the contrary in this Section, Gross Revenues shall not include (i) any tax or fee imposed on users of the Network by the Licensor or any other governmental authority and collected by the Licensee on behalf of such governmental entity; (ii) the revenues of any Affiliate (as defined below) of the Licensee to the extent such Affiliate revenues are costs of the Licensee and recovered by the Licensee through charges to subscribers that are included in gross revenues on which fees are paid; (iii) actual bad debt, refunds or credits, provided any such bad debt subsequently collected shall be included in gross revenues in the period collected.
Section 3. Term. The "Initial Term" of this Agreement shall be three (3) consecutive years, commencing on the Effective Date and expiring at 11:59 p.m. on the day before the third anniversary of the Effective Date. The Licensee shall have the right, in its sole discretion, to extend this Agreement for seven (7) additional three (3) year renewal periods (each being a "Renewal Term") commencing on the day following the expiration date of the Initial Term or any subsequent Renewal Term. Licensor shall have the right to refuse any renewal of this Agreement in the event of a breach of a material condition of the Agreement by Licensee if such breach has not been timely cured pursuant to the provisions of the Agreement. Such option(s) may be exercised by the Licensee in its sole discretion, by giving to the Licensor written notice provided herein, not later than six (6) months prior to the expiration of the Initial Term or the then current Renewal Term, as the case may be.
Section 4. Licensee's Use. The Licensee shall use the Access and License for the purpose of, installing, maintaining, operating and licensing to third parties for a fee the use of the Network in the System and any uses incidental thereto. The Licensee may, with the Licensor's consent, but the Licensor shall not unreasonably withhold, delay or condition its consent, modify, alter or upgrade the Network during the Initial Term and any and all Renewal Terms, subject however, to the Licensee's duties of noninterference in this Agreement. The Licensor reserves the right to make additions or modifications to the System, subject to the Licensor's duties of noninterference set forth in Section 16 hereof and the Licensee's rights of access and use of the System hereunder. Licensee further agrees to obtain such permits as required by law from DPW and DCAM.
Section 5. Installation/Construction and Maintenance Standards.
(a) The Licensee shall have the right, at its sole cost and expense, to install, maintain and operate the Network in the System. The Licensee's installation of the Network shall be made according to plans approved by the Licensor, which approval shall not be unreasonably withheld, delayed or conditioned. In connection therewith, the Licensor shall respond to the Licensee in writing with respect to any submittal of such plans or drawings after receipt thereof with any disapproval, objection or proposed modification within 30 days of said receipt, or such plans or drawings shall be deemed approved by the Licensor. The Licensee shall, at is sole expense, put, keep and maintain the Network in good condition throughout the entire period of this Agreement; install and maintain the Network in accordance with standard good engineering practices; and conform, when applicable, with the National Electrical Safety Code and all other applicable federal, state and local laws or regulations. At all reasonable times and following reasonable advance notice to the Licensee, the Licensee shall permit examination of the Network by any duly authorized representative of the Licensor. Such advance notice shall be suspended at the time of emergencies when Licensor has the need to immediately inspect the Network and the System.
(b) During the period of installation/construction of the Network, the Licensee shall have, and the Licensor hereby grants to the Licensee, a temporary construction easement to use portions of the System reasonably necessary for the storage of materials and staging of construction, provided, however, that Licensee shall not interfere with the Licensor's customary operations on the System during the Licensee's utilization of such temporary easement. Licensee shall be responsible for obtaining permits from the Licensor regarding traffic and right-of-way use during such time.
(c) All work by the Licensee shall be performed in compliance with applicable laws and ordinances as required by Licensor, including any and all permits required to permit work. The Licensee is not authorized to contract for or on behalf of the Licensor for work on, or the furnishing of materials to the System or any part thereof, and the Licensee shall pay any and all subcontractors, materialmen, mechanics and laborers promptly for any work performed or materials furnished at the instance of the Licensee on the System. Licensee agrees to subsidize the existing agreement between the Licensor and the White River Environmental Partnership ("WREP"), with respect to the portion of the System being used by Licensee, or contract separately with WREP to continue to maintain the System where applicable.
(d) The Network shall remain the exclusive property of the Licensee and the Licensee shall have the right to remove all or any portion of the Network at any time during the term of this Agreement, provided that the same does not otherwise interfere with the Licensor's normal operations of the System. The Network shall be deemed personal property for purposes of this Agreement, regardless of whether any portion thereof is deemed real or personal property under applicable law, and subject to these provisions as set forth in Section 13 hereof. Upon termination of this Agreement, Licensor shall retain the right to order Licensee to remove such facilities upon sixty (60) days' written notice to Licensee.
Section 6. Damage to the System by the Network. If the System is damaged during the term of this Agreement directly as a result of the installation, maintenance or operation of the Network, the Licensee shall repair or rebuild the System to substantially the condition in which the System was immediately prior to such damage, except with respect to normal wear and tear, damage caused by the negligence or willful misconduct of the Licensor or any of its employees, agents or representatives or modifications to the System or such portion thereof subsequent to the Licensee's first use of the System or such portion thereof. Notwithstanding the foregoing, the Licensee shall not be responsible for any damage caused or contributed to by any other licensee or other person or entity acquiring rights to use or occupy the System.
Section 6.1. Maintenance of the System. Prior to installation of the Network, the Licensee will clean, videotape and repair (patch or reline), where necessary, to the Licensor's specifications, those sewer segments into which the Network will be installed. However, if after investigation of the condition of that portion of the System in which Licensee is considering installing its Network, Licensee determines, in its discretion, that the condition of that portion of the system is unsatisfactory to Licensee, Licensee may elect not to install its Network in that portion of the system. Licensee and Licensor may agree, but are not obligated, to share the cost of repairing a sewer segment into which the Network may be installed if each party determines it is in its best interest to share such costs. If any part of the System must be relocated, rebuilt, abandoned, or modified in any way, the Licensee shall be responsible for any and all costs associated with changes to the Network. This includes the engineering, design, construction, and relocation of the Network. The work must be done in a timely manner. The scheduling of the System design and construction shall not be adversely impacted by the design and construction of the Network modifications. Twice annually in the first two (2) years after Network installation, Licensee shall jet wash and inspect those portions of the System containing the Network and shall each time supply Licensor with the written report and the VHS format videotape of the inspection. Thereafter, Licensee agrees to perform such inspection and jet washing as frequently as reasonably necessary and in consultation with Licensor.
Section 6.2. Emergency Maintenance of the System. The System occasionally ceases to drain normally due to blockage or structural failure. On these occasions it is Licensor's responsibility to restore normal flow as soon as possible to prevent the back up of storm and/or sanitary flow into buildings or onto the roadway. If the System must be jet-rodded, jet-sawed, or repaired through conventional open-cut methods, in an emergency situation, to restore normal flow conditions to the System, the Licensor is not responsible for any damage caused to the Network and the System. The Licensor will make every reasonable attempt to notify the Licensee of work that may impact the Network. Licensee agrees to immediately notify Licensor of any blockage or structural failure as determined or recognized by Licensee during the operation of the System.
Section 6.3. Excavation Notification. The Licensee will be a member of Indiana's Underground Planned Protection Service notification system. This system will be the exclusive mechanism used to notify the Licensee of the Licensor's intent to excavate around the Network facilities. Licensee agrees to furnish Licensor with any and all proposed construction plans and "as builds" and also to submit such information to the Licensor's Geographical Information System ("GIS") and become an associate partner to the IMAGIS Consortium and use the Licensor's standards to share data on the System with the Licensor's sewer system.
Section 7. Access to the System. The Licensor hereby grants to the Licensee, at all times during the term of this Agreement, a nonexclusive easement for ingress and egress to and from the System for the purpose of accessing the Network. The Licensee, at all times during the term of this Agreement, shall have access to the System and the Network, on a 24-hour, 7-day per week basis, in order to field test, install, maintain and operate the Network. Licensee will make judicious use of such access easement to minimize a disruption of traffic pursuant to applicable permits issued by Licensor.
Section 8. Costs Associated with the Licensee's Use of the System. The Licensee shall be solely responsible for any costs incurred in securing the Network from theft, vandalism or any other damage, and the Licensor shall have no responsibility for any such losses.
Section 9. Governmental Approval Contingency.
(a) It is understood and agreed that the Licensee's ability to use the System for the purposes provided in this Agreement is contingent upon its obtaining, before or after the execution date of this Agreement, all the certificates, permits, zoning, and other approvals that may be required by any federal, state, or local authorities and the failure of which to obtain would have a material adverse effect on the Licensee's ability to operate the Network in the System. Licensor may cooperate with Licensee, at no expense to Licensor, in any and all such approval or exemption applications and related proceedings. Any structural analysis, radio frequency studies, surveys or engineering studies conducted by the Licensee with respect to its intended use of the System shall be solely at the Licensee's expense. Licensee agrees to furnish such information to Licensor upon Licensor's request.
(b) The Licensee shall be and hereby is authorized to seek, apply for or otherwise request whatever zoning, land use, permitting or regulatory exemptions that may now or hereafter be available to the Licensee on account of the System being owned by the Licensor, which is a political subdivision of the State of Indiana; provided, however, that the Licensor makes no representation or warranty herein as to the Licensee's entitlement to any such exemption. Licensor may cooperate with Licensee, at no expense to Licensor, in any and all such approval or exemption applications and related proceedings. Licensee is solely responsible for the cost of obtaining any zoning, land use, permitting or regulatory exemptions.
(c) The Licensee's use of the System is also contingent on the submission to the Licensor of documentation that the Licensee has met the insurance requirements of Section 12 hereof, including a certificate of insurance signed by the insurance agent or other authorized representative of the company or companies named, as well as any properly executed endorsements, if applicable. The said certificate of insurance shall provide that the subject insurance policy or policies shall not be canceled without thirty (30) days' prior written notice to the Licensor. Any self-insured retention must be declared to and approved by the Licensor.
Section 10. Telecommunications Law Requirements. The Licensee shall be bound by the requirements and standards contained in all applicable federal, state, and local telecommunications laws and regulations, except those requirements and standards which are not applicable to the Licensee.
Section 11. Damages and Indemnity. The Licensee shall repair or pay for all actual damages done to Licensor's property and improvements, or to the improvements of the Licensor's tenants, caused by Licensee's negligent acts.
The Licensee shall defend, indemnify and hold harmless the Licensor, its officials, agents and employees from and against any and all claims, actions, suits or proceedings of any kind brought against said parties as a result of the Licensee's negligent use of the rights-of-way, the exercise by the Licensee of its rights under the License and Licensee's Operations; provided, however, this agreement to indemnify shall not extend the liability, claims, damages, losses or expenses including lawyers' fees, arising out of (i) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications by the Licensor, or the agents or employees of the Licensor, or (ii) the giving of or the failure to give direction or instructions by the Licensor or the agents or employees of the Licensor, where such giving or failure to give directions or instructions is the primary cause of bodily injury to persons or damage to property.
The Licensee shall be solely responsible for and will defend, indemnify, and hold harmless the Licensor, its agents, and employees harmless from and against any and all direct claims, costs and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the clean up or restoration of the sewer system associated with the Licensee's use of Hazardous Materials. The indemnification contemplated by this paragraph specifically includes costs incurred in connection with any investigation of work required by any governmental authority having jurisdiction. "Hazardous Materials" means asbestos, petroleum products, or any toxic or hazardous substance, waste, or materials as defined in any federal, state or local environmental or safety law or regulation including, but not limited to, CERCLA.
The Licensee shall defend, indemnify, and hold harmless the Licensor, its officials, agents and employees, from and against any and all claims, actions, suits or proceedings of any kind brought against said parties as a result of the Licensee's negligent use of the right-of-way, the exercise by the Licensee of its right under the License and Licensee's operations from any and all liability pertaining to any environmental activities that result in the Licensor's being in violation of any federal, state or local environmental rules and regulations that are caused by the negligent acts of the Licensee.
This indemnity shall not apply to any liability, claims, damages, losses or expenses, including attorneys' fees, arising out of bodily injury to persons or damage to property caused by or resulting from, in whole or in part, the negligent act or omission of the Licensor, or the agents or employees of the Licensor. Licensee assumes all responsibility for damage to its Network due to the normal deterioration of any sewer line in which it installs its facilities or equipment.
The obligations of this Section 11 shall survive the expiration or other termination of this Agreement.
Section 12. Insurance.
(a) The Licensee shall, at its sole expense, take out and maintain during the term of this Agreement, a policy or policies of commercial general liability insurance issued by a company licensed to do business in the State of Indiana and having a financial strength or net worth comparable to those carriers having a rating by Best in its "A" range of classification, which insurance shall protect the Licensee, the Licensor, and the Licensor's officials, officers, employees and agents from claims which may arise from operations under this Agreement, whether such operations are by the Licensee, its officials, officers, directors, employees and agents, or any subcontractors of the Licensee. This liability insurance shall include, but shall not be limited to, protections against claims arising from bodily and personal injury and damage to property, resulting from the Licensee's use of the System, the Network, vehicles, products and completed operation. Insurance issued by a company described above shall protect the Licensor and the Licensee from and against any and all claims, injury or damage to persons or property, both real and personal, caused by the installation/construction, maintenance or operation of any aspect of the Network. Such insurance shall include coverage for bodily injury or property damage of not less than $3,000,000 per occurrence and $5,000,000 in the aggregate. The Licensee's policy or policies described above shall also include automobile insurance coverage for property damage and bodily injury with limits of not less than $3,000,000 per occurrence and $5,000,000 in the aggregate. In addition to the foregoing requirements, the insurance required hereunder shall be subject to the following:
(1) The policy or policies shall cover personal injury as well as bodily injury.
(2) Broad Form property damage liability shall be afforded.
(3) The Licensor shall be named as an additional insured on the policy.
(4) The policy or an endorsement thereto shall state that the coverage is primary insurance and that no other insurance effected by the Licensor will be called upon to contribute to a loss under this coverage.
(5) The policy or an endorsement thereto shall state that the policy shall not be canceled without the insurer providing thirty (30) days prior written notice of such cancellation to the Licensor. If the Licensor shall receive such notice of cancellation, it shall so notify the Licensee in writing, and the Licensee shall thereafter have twenty (20) days to secure replacement or other insurance meeting the requirements of this Section. If the Licensee shall fail to secure such replacement or other insurance within such twenty (20) days, the Licensor may terminate this Agreement upon the provision of thirty (30) days' prior written notice to the Licensee.
(b) It shall be the obligation of both parties to notify the other promptly of any pending or threatened litigation that would be likely to affect the Licensee's insurance coverage.
Section 13. Termination.
(a) Except as otherwise provided in this Agreement, this Agreement may be terminated by the terminating party described below upon sixty (60) days prior written notice to the other party as follows: (i) by either party upon a default of any material covenant or term hereof by the other party, which default is not cured within sixty (60) days after receipt of written notice of default to the other party (without, however, limiting any other rights of the parties pursuant to any other provision hereof); provided, however, that if such default is capable of being cured, but not within such 60-day period, this Agreement may not be terminated so long as the defaulting party commences appropriate curative action within such period and thereafter diligently prosecutes such cure to completion as promptly as possible; (ii) by the Licensee if it is unable to obtain or maintain any license, permit or other governmental approval necessary for the installation/construction, maintenance or operation of the Network in the System; (iii) by the Licensee if the System or the Network is or becomes unacceptable under the Licensee's system design, interference standards, engineering specifications or usage patterns applicable to the Network; (iv) by the Licensor if, under relevant building, structural or engineering codes or standards applicable to the Network, the Network is structurally unsound (provided, however, that this Agreement shall not terminate if the Licensee repairs, refurbishes or otherwise remedies the Network within such 60-day notice period so that the structurally unsound condition no longer exists); and (v) by the Licensor for a breach of a material term of this Agreement not cured within the time prescribed by the Agreement upon sixty (60) days' written notice by Licensor upon Licensee. The foregoing shall not be deemed to shorten the period applicable to the Licensor's right to terminate this Agreement for interference by the Licensee as set forth in Section 15 hereof or as provided above in Section 12(a) hereof.
(b) Unless the Licensor and the Licensee shall otherwise agree, upon termination of this Agreement pursuant to Section 12, 13, 15, or expiration, or otherwise, the Licensee shall have the right to remove the Network from the System within one hundred twenty (120) days after the date of termination upon the written consent of Licensor. In removing the Network pursuant to this Section, the Licensee shall restore the System to substantially the same condition in which the System was prior to its use by the Licensee, normal wear and tear expected, all at the Licensee's sole cost and expense. Any parts of the Network which are not removed by the end of said one hundred twenty (120) day period shall, at the Licensee's option, become the property of the Licensor, and the Licensee shall have no further rights or obligations with respect thereto.
(c) Notice of any party's exercise of its right to terminate under this Section 13 shall be given to the other party in writing in accordance with Section 21 hereof, and shall be effective upon the sixtieth (60th) day after receipt of such notice by such other party.
Section 14. Temporary Interruptions of Service. If the Licensor reasonably and in good faith determines under applicable standards, specifications or other requirements relating to pubic health, welfare or safety that continued operation of the Network in the System would cause or contribute to an immediate threat to public health, welfare or safety, the Licensor may, without prior notice to the Licensee, interrupt operation of the Network in the System or may order the Licensee to discontinue operation of the Network in the System. Service shall be discontinued only for the period that the immediate threat exists. If prior notice is not given to the Licensee, the Licensor shall notify the Licensee as soon as possible after the Licensor's action and give the Licensor's reason for taking the action. The Licensor shall not be liable to the Licensee or any other person or entity for any interruption in the Licensee's service or interference with the Licensee's operation of the Network in the System if the Licensor has acted in accordance with this Section 14. This paragraph shall also apply to any relocation of the System, with prior notice of at least sixty (60) days.
Section 15. Interference with Communications. The Licensee shall not operate the Network in the System in a manner that materially interferes with the operations of the System by the Licensor or the "Combined Sewer Overflow Initiative" and any "Barrett Law Programs" planned by the Licensor. If such interference occurs, the Licensee shall, following written notice thereof from the Licensor, take appropriate measures necessary to eliminate or correct such interference. If such interference cannot be eliminated within 72 hours after receiving the Licensor's written notice of such interference, the Licensee shall immediately cease operating the component or components of the Network in the System causing such interference and shall not reactivate operation thereof, except intermittent operation for the purpose of testing, until such interference has been corrected or eliminated. If such interference continues to occur thirty (30) days after the Licensee has received the Licensor's written notice, the Licensor may, at its option, terminate this Agreement immediately upon written notice to the Licensee.
Section 16. Interference - Licensor and Subsequent Occupants. The Licensor agrees that it shall not conduct its operations in the System so as to unreasonably interfere with the Licensee's installation, maintenance or operation of the Network. The Licensor further agrees that it will require any licensees or other persons or entities acquiring rights to use or occupy the System to provide to the Licensor the same assurances against interference required of the Licensor pursuant to this Agreement, so long as such notification does not materially interfere or delay the approval of any other sewer improvement program. If such interference is not eliminated, the Licensee shall have the right to terminate this Agreement or seek injunctive relief enjoining such interfering use generated by any such licensee or other person or entity or seek other redress with respect thereto.
Section 17. Network. With respect to the Network to be installed/constructed by the Licensee in the System, the parties hereby agree as follows:
(a) The parties hereby acknowledge that the date for commencement of installation/construction of the Network, the design for installation/construction of the Network and the process and timing of installation/construction of the Network shall be determined and directed by the Licensee upon approval by the Licensor and under its sole supervision (subject to the Licensor's review of plans described in Section 5 hereof and the Licensee's compliance with its and installation/construction duties described therein). The Licensee shall likewise be entitled to select any contractors or subcontractors to conduct the installation/construction of the Network subject to the inspection and approval of appropriate personnel of Licensor.
(b) The Licensee shall maintain during the term of this Agreement the duty of maintenance and repair of the Network and the System, but Licensee's obligation to maintain and repair the System shall be limited to such maintenance and repairs that are necessitated or caused by Licensee's activities in the System. In connection therewith, the Licensee shall have the duty of maintaining the Network in compliance with any and all applicable lighting, painting, marking or their requirements pertaining to the Network or similar facilities promulgated by federal, state or local agencies, or authorities having jurisdiction with respect thereto. In the case of casualty or condemnation affecting the Network as described in Section 19 hereof, the Licensee's rights with respect to this Agreement shall be as described in said Section 19 hereof.
Section 18. Assignment.
(a) The Licensee may assign this Agreement and any rights hereunder or sublicense all or part of the Network, at any time to the Licensee's "Affiliates," subject to approval of the Licensor and Licensor shall not unreasonably withhold, delay or condition such approval. As used herein, "Affiliate" shall mean a parent or subsidiary of the Licensee, an entity that owns or controls, is owned or controlled by, or is under common ownership or control with the Licensee, or an entity which merges or is consolidated with the Licensee or which purchases a controlling interest in the ownership or assets of the Licensee. As to other parties, this Agreement may not be sold, assigned, or transferred, or the Network sublicensed, without the written consent of the Licensor, which consent shall not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, the Licensee shall have the right, in its sole discretion, to license the use of the Network to other telecommunications and similar entities which in turn will provide telecommunications and related services directly to commercial and residential end-user customers. The Licensor may require a non-"Affiliate" assignee or transferee to post with the Licensor security in the form of a cash deposit, letter of credit, or surety bond satisfactory in form and amount, which shall be fully refunded or otherwise released to the posting party upon termination of this Agreement and upon the timely removal of the Network pursuant to this Agreement, to the reasonable satisfaction of the Licensor. This Agreement shall run with the System. This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns.
(b) In the event of transfer or assignment permitted under this Section 18, any transferee or assignee shall not be authorized to construct or operate its improvements in the System until the Licensor has approved appropriate installation/construction drawings or plans pertaining thereto in accordance with Section 5 hereof, which approval shall not be unreasonably withheld, delayed or conditioned, and provided further that the Licensor agrees that the timing procedure for review set forth in Section 5 shall apply to such drawings or plans submitted to the Licensor.
Section 19. Condemnation and Casualty.
(a) In the event the whole of the System is taken by eminent domain, this Agreement shall terminate as of the date title to the System vests in the condemning authority. In the event a portion of the System is taken by eminent domain so as to prohibit the Licensee's installation, maintenance or operation of the Network in the System in a commercially reasonable manner, either party shall have the right to terminate this Agreement as of the date of title transfer, by giving thirty (30) days' written notice to the other party. All damages, whether or not awarded as compensation for diminution in value of the System shall belong to the Licensor. All damages, whether or not awarded as compensation for diminution in value of the Network shall belong to the Licensee.
(b) If at any time during the term of this Agreement all or substantially all of the Network shall be damaged and/or destroyed by fire or other casualty, then the Licensee may terminate this Agreement by providing written notice to the Licensor, which termination shall be effective as of the date of such notice, and whereupon the Licensee shall be entitled to collect all insurance proceeds payable on account thereof under policies of insurance maintained by the Licensee.
Section 20. Taxes. The Licensee shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the Network located in the System.
Section 21. Notices. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, by personal delivery against receipt or by overnight delivery by a nationally recognized carrier, addressed as follows (or to any other address that the party to be notified may have designated to the sender by like notice):
Section 22. Miscellaneous.
(a) Each party agrees to cooperate with the other in executing any documents (including a short form or Memorandum of Access and License) requested by a party to protect or confirm its rights under this Agreement. Neither party shall record this Agreement in the records of the appropriate governmental office, but may record, in lieu thereof, the aforementioned short form or Memorandum of Access and License.
(b) In addition to the obligations required to be performed hereunder by Licensor, Licensor agrees to perform such other acts, and to execute, acknowledge, and/or deliver subsequent to the entering into of this Agreement, such other instruments, documents, and rights-of-way as Licensee may reasonably require in order to fully use and to perfect Licensor's grant of this access and license to use the System for use of the Network in cooperation between Licensee and Licensor, Licensee shall be responsible for the preparation of such other instruments, documents and rights-of-way to be reviewed and approved by Licensor.
Section 23. Authority.
(a) Each of the individuals executing this Agreement on behalf of the Licensee or the Licensor represents to the other party that such individual is authorized to do so by requisite action of the party to this Agreement.
(b) The Licensor commits that (i) it has existing right-of-way to the System that is sufficient for the Licensee's permitted use of the System; and (ii) the Licensee shall have the quiet enjoyment of the System, and the Licensee shall not be disturbed as long as the Licensee is not in default beyond any applicable grace or cure period.
(c) Following the expiration or termination of this Agreement, the Licensee agrees to execute and deliver to the Licensor, in recordable form, a cancellation, confirming that this Agreement has expired or terminated, as the case may be.
Section 24. Nondiscrimination. The Licensee shall not discriminate or permit discrimination in the performance of this agreement in violation of federal or state laws or local ordinances because of race, color, sex, age, or disability as recognized under 42 USC 12101 et seq., or because of political or religious opinions, affiliations or national origin. The Licensee certifies for itself, and agrees to obtain certifications from its contractors and subcontractors certifying, compliance with existing laws of the State of Indiana and the United States regarding prohibition of discrimination in employment practices on the basis of race, sex, creed, color, religion, national origin, ancestry, age, handicap, disabled veteran status and Vietnam-era veteran status; and the Licensee agrees to make good faith efforts to encourage the use of small businesses, minority-owned businesses and women-owned businesses in its operations.
The Licensee shall not, and shall obtain from its contractors and subcontractors their agreement not to, discriminate against any employee or applicant for employment who is to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of his or her race, religion, color, sex, handicap, national origin or ancestry, disabled veteran status or Vietnam-era veteran status. Breach of this covenant may be regarded as a material breach of this Agreement. However, the Licensee shall be given reasonable notice and opportunity to cure prior to the Licensor's claiming or asserting such a breach.
Section 25. Computation of Time. In computing any period of time prescribed by this Agreement, the last day of any period of time prescribed in this Agreement shall be included unless it is a Saturday, Sunday, or a legal holiday as set by the Licensor. In such cases, the period of time shall run until the end of business hours of the Licensor on the next day that is not a Saturday, Sunday, or a legal holiday as set by the Licensor.
Section 26. Interest of the Licensor. No elected official or any officer or employee of the Licensor shall have a financial interest, direct or indirect, in any Licensor Agreement. Any violation of this section with the knowledge of the person or corporation contracting with the Licensor shall render the Agreement voidable by the Licensor.
Section 27. Complete Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all offers, negotiations and other agreement(s) of any kind with respect hereto. There are no representations or understandings of any kind with respect to the subject matter hereof not set forth herein. Any modification of or amendment to this Agreement must be in writing and executed by both parties hereto.
Section 28. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Indiana.
Section 29. Severability. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect.
Section 30. Future Benefits for Licensor. During the term of this Agreement, in connection with installing, maintaining and operating the Network in the System, the Licensee will seek to find ways to benefit, or provide additional value for, the Licensor by virtue of the Licensee's access to and use of the System. Such benefit and additional value may include, without limitation, (i) assisting the Licensor in the installation of flow meters and other instruments in the System, and (ii) providing records of the condition of the System to assist the Licensor in identifying which portions of the System need repair for purposes of budgeting and planning of monetary and personnel resources.
Section 31. Renewal of License. If both the Licensor and the Licensee wish to enter into a new License agreement, then, before the expiration of the final renewal period, the Licensor and the Licensee shall enter into good faith negotiations, the object of which will be to agree upon the terms of a renewal of this License. The agreement of the Licensor shall not be withheld or delayed unreasonably. If an agreement is reached, all terms, including the agreed-upon consideration, shall be reduced to a writing signed by both parties.
Section 32. Most Favored Municipality, Municipal Corporation. Licensee and Licensor acknowledge that the terms, benefits and provisions of this Agreement are taken as a whole and entered into based on specific requirements of the Licensor. Notwithstanding the foregoing, if Licensee enters into an agreement with another municipality or municipal corporation that contains a license/permit fee in excess of the license/permit fee defined and set forth in this Agreement in Section 2, then the license/permit fee shall be increased to the same amount in this Agreement. The Licensee shall then pay the Licensor the increased amount pursuant to the terms and conditions of this Section and Section 2. Licensee has a continuing obligation and hereby agrees to inform Licensor of any license permit fee agreed to by Licensee with any other municipality in excess of the license permit fee defined and set forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the day and year first above written.