Loading...
HomeMy WebLinkAboutDuke Energy/License Agreement/Com CenterCustomer NO. LICENSE ATTACHMENT AGREEMENT THIS AGREEMENT is dated as of November 11, 2015 and is by and between DIJIE ENERGY INDIANA, INC. with an address of 1000 East Main Street, Plainfield, IN 96168 (herein referred to as "Licensor"), and City of Carmel with an address of 1 Civic Square, Carmel, IN 46032 (herein referred to as "Licensee"). WITNESSETH: WHEREAS, Licensee desires to attach Fiber line facilities for Licensee's internal use upon the Electric line facilities of Licensor ("Licensor's Facilities"); and WHEREAS, Licensor is willing to permit Licensee to use Licensor's Facilities for this purpose subject to the terms contained herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Licensor hereby grants Licensee the right and license to use, at the expense and risk of Licensee and subject to the terms of this Agreement, the Licensor's Facilities which are identified and shown on the attached Exhibit "A". Licensee's attachments are also identified and shown on Exhibit "A". Said Exhibit "A" shall be a sketch, map or other document prepared by Licensee and acceptable to Licensor. / of -7 2. The total annual rental fee is payable in advance, and equal to the rate as specified on the attached Exhibit "B" multiplied by the number of Licensee's Attachments on Licensor's Facilities. The rental period is a Ten (10) year period beginning at the execution of this Agreement, Licensee shall pay a Lump sum for the use of the Licensee's Facilities for the ten (10) year period.. Any and all amendments of the rental rate shall be made on a new Exhibit "B" which shall then be attached hereto (superceding the preceding Exhibit "B"). Licensor shall have the right to establish the Initial rental rate specified on the attached Exhibit "B". In the event that Licensee discontinues use of Licensor's poles prior to the end of the ten (10) year period of this agreement no portion of the original rental fee will be returned to Licensee. 3. In the event that Licensee desires to add to or reduce the number of pole attachments, a sketch, map or other document shall be prepared by Licensee and submitted to Licensor for approval and signature, which sets out in detail the pole numbers, location of poles, quantity of poles It is the responsibility of Licensee to maintain current records, maps or sketches of pole contacts Licensor reserves the right to periodically review such records, maps or sketches. Any and all changes in the number of pole contacts shall be deemed a part of this Agreement. Licensor reserves the exclusive right to determine if Licensee may contact a particular pole of Licensor's Facilities, and the further right to determine the location, size, height and anchor support of any Licensor pole necessary to support the pole attachments of Licensee. Licensee shall pay Licensor in advance for any costs which will be incurred by Licensor to modify any of Licensor's Facilities to support Licensee's pole attachments. 2 0r] 4. Licensee shall use Licensor's Facilities and construct, operate and maintain Licensee's attachments so as not to conflict or interfere with the operation of Licensor's Facilities. All work by Licensee in or about, and all equipment used by Licensee in connection with Licensor's Facilities shall be at all times performed and maintained by Licensee in a safe and workmanlike manner, and in accordance with the rules and regulations set forth in any applicable codes such as the National, Electrical Safety Code and with Licensor's engineering standards. Licensor agrees to operate and maintain Licensor's Facilities in such a manner as to avoid unreasonable or willful conflict or interference with the satisfactory operation of Licensee's Facilities; provided, that, in so doing, Licensor shall not be required to do anything that would conflict or interfere in any manner with the satisfactory and efficient, operation of Licensor's facilities. FURTHER THERE ARE NO ASSURANCES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, PROVIDED BY LICENSOR TO LICENSEE REGARDING THE CONDITION, SUITABILITY OR FITNESS OF LICENSOR'S FACILITIES FOR LICENSEE'S FACILITIES. 5. In the event, Licensor determines that Licensor's Facilities need to be repaired, restored, modified or relocated Licensor shall provide Licensee with reasonable notice (depending upon the circumstances which necessitated the work), to replace, restore, modify or relocate Licensee's attachments at Licensee's expense; provided, that if Licensee is not able to perform this work in a timely manner (depending upon the circumstances which necessitated the work), Licensor shall have the right to perform the work for Licensee and Licensee shall reimburse Licensor for 3 On the costs and expenses reasonably incurred by Licensor in performing such work for Licensee. 6. Licensee shall be responsible to obtain all applicable land rights and governmental approvals as may be necessary to perform its work hereunder. Nothing herein contained shall be construed as a guarantee of permission from owners of private property or from state or local authorities to Licensee to use Licensor's Facilities, and upon notice that objection is made by such owner or authorities to such use, Licensor will immediately transmit a copy of such notice to Licensee. Upon receipt of said notice, Licensee shall make a reasonable effort to overcome as soon as possible, the objections of such owners or authorities to such use; provided, however, if Licensee has not obtained a cancellation of said notice of objection within thirty (30) days after the forwarding of said notice by Licensor to the Licensee and such failure affects Licensor's ability to construct, operate or maintain Licensor's Facilities in a safe or reliable manner, Licensor may then declare this Agreement canceled, and thereupon Licensee shall immediately remove Licensee's Facilities from, and cease the use of, any and all of Licensor's Facilities. 7. Licensee shall defend, indemnify and hold harmless Licensor from and against any and all loss or damage that may result to Licensor's Facilities or any other equipment or property, owned or used by Licensor, and from and against any and all legal and other expenses, claims, costs, losses, suits or judgments for damages, or injuries to or death of persons, or damage to or destruction of property arising in any manner directly or indirectly by reason of the use of Licensor's Facilities by Licensee, or by reason of acts or omissions of Licensee's agents done, in any way, or at any use y o'7 time, in connection with the of Licensor's Facilities by Licensee, although caused in part by the negligence of Licensor or its agents but excluding the sole negligence or willful misconduct of Licensor or its agents. 8. The rights hereby granted Licensee are personal to it and cannot be assigned, transferred or sublet without the consent in writing of Licensor. 9. Any notice or approval provided for in this Agreement shall be considered as having been given if faxed and mailed by certified mail -return receipt requested: a) To Licensee as follows: City of Carmel Attn: City Attorney 1 Civic Sq. Carmel, IN 46032 317.571-2472 b) To Licensor as follows: Duke Energy Attn: Jeremy Gibson 139 E. 4th St. Cincinnati, OH Jeremv.aibson(aduke-ene rev.com Telephone: 513-287-3274 Fax: 513-287-1743 10. This agreement may be terminated by Licensee, by giving ninety (90) days' prior written notice to Licensor. This agreement may be terminated by Licensor upon a breach by Licensee which is not corrected by Licensee within thirty (30) days after written notice from Licensor specifying the breach. Within such ninety (90)- or thirty (30) -day time period as the case may be, Licensee's Facilities shall be removed by Licensee from Licensor's Facilities at the sole cost and expense of Licensee. In the event that Licensor desires to abandon Licensor's Facilities, Licensor shall give notice in writing to Licensee and Licensee is hereby given a thirty (30) -day option to Soft purchase any or all Licensor's Facilities covered by this Agreement at a price equal to their then fair value in place. If Licensee, within this thirty (30) -day period, decides not to purchase such Licensor's Facilities, Licensee shall, within thirty (30) days thereafter, remove its attachments from such Licensor's Facilities in order that such Licensor's Facilities may be removed by Licensor. In the event that such Licensee attachments are not removed within such thirty (30) -day extended period, Licensor may remove such Licensee's attachments, deliver such Licensee's Facilities to Licensee and bill Licensee for the cost of such removal. 11. No use of Licensor's Facilities, however extended, shall be taken as creating or vesting in Licensee any ownership interest in Licensor's Facilities. 12. This Agreement shall be construed under the laws of the State of Indiana. 13. This Agreement supersedes and replaces any and all previous agreements or understandings by or between the parties with respect to the subject matter of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their duly authorized representative, the date first written above. DUKE ENERGY INC., Licensor By: By. City of Carmel, Indiana By and through its Board of Public Works and Safety Printed ame: Jeremy Gibson James Brainard, Presiding Officer Printed Title: Joint Use Facilities Specialist B Mary A Burge, Member Date: By: Date: Attest: `! Diana Cordray, IMCA, Clerk-Treasuer Date: ,,, . • . °aca +: t". :I -• 7t," 1- • - PERMIT NO. EXHIBIT `B' Dated: 3/31/15 (Superseding Exhibit "B" dated N/A ) Licensee shall pay a lump sum to Licensor a rate of $ 5.78 per pole per year for a period of ten (10) years beginning at the date this agreement is signed.