Metronet/CMN-RUS, Inc./Eng/Memorandum of Understanding for Video ServicesMEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING ("Agreement') is made this 13th day of
January, 2017 ("Effective Date") pursuant to IC 8-1-34 by and between CMN-RUS, Inc., an
Indiana corporation ("MetroNet'), and The City of Carmel, Indiana (the "C "), by and through
its Board of Public Works (the "RP—Y')-
WITNESSETH
BPW").
WITNESSETH
WHEREAS, MetroNet is a Provider holding a Certificate issued by the Commission
pursuant to IC 8-1-34-17 and wishes to provide Video Services over a Video Service System
within the City of Carmel; and
WHEREAS, the City has certain rights pursuant to IC 8-1-34; and
WHEREAS, MetroNet and the City wish to memorialize their respective rights and
obligations under IC 8-1-34 as more particularly set forth herein. MetroNet; and
NOW THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration, the parties agree as follows:
1) DEFINITIONS – Unless otherwise defined or explained herein, all Capitalized terms shall
have the meaning provided in IC 8-1-34-1 et. seq.
2) SCOPE OF AGREEMENT – The parties hereto acknowledge that, as set forth in Section IC
8-1-34-16, the Commission is the sole video franchising authority in Indiana and that the City
may not: (a) require MetroNet to obtain a separate franchise; (b) impose any fee, gross receipt
tax, licensing requirement, rate regulation, or build -out requirement on MetroNet; (c) regulate
MetroNet, or (d) establish, fund or otherwise designate an agency, a board or another
subordinate entity to monitor, supervise, evaluate or regulate MetroNet. Therefore, any
provision of this Agreement which expands MetroNet's obligations to the City beyond those
expressly set forth in Section IC 8-1-34 shall be null and void.
3) CERTIFICATE - -- The City acknowledges that MetroNet, its successors and assigns, has the
non-exclusive right to deploy a Video Service Network in the City's rights-of-way for the
exclusive purpose of providing Video Services pursuant to MetroNet's Certificate. .
4) TERM – The term of this Agreement shall commence on the Effective Date and shall be
conterminous with MetroNet's Certificate. MetroNet.
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5) COMPENSATION — Pursuant to the City's rights under IC 8-1-34, MetroNet agrees to
compensate the City as follows:
a) EXPENSES -- MetroNet shall pay to the City: (i) all permitting, bonding, inspection and
review fees as may be required by the City; and (ii) all costs and expenses, including, but
not limited to engineering review fees incurred by the City to facilitate and coordinate the
location and/or relocation of the Video Service System.
b) GROSS REVENUES FEE — Pursuant to IC 8-1-34-24, on a quarterly basis at a location to
be agreed to by the parties, MetroNet shall pay the City five percent (5%) of Gross
Revenues.
c) PEG — As more fully described below, MetroNet shall provide no less than two (2) PEG
channels as required in IC 8-1-34-25 (c) and in kind support as required in IC 8-1-34-25
(d) in the form of equipment and transport of the City's and School Board's existing PEG
programming. Moreover, MetroNet shall present the PEG programming in a format that
is comparable to that provided by MetroNet to other Basic Tier Programming as that term
is defined in the federal Cable Act.
i) The Parties agree that the in-kind payments provided in this Agreement, which consist
of equipment installation and equipment maintenance, is in full and complete
satisfaction of MetroNet's PEG -related financial support to the City under IC 8-1-34,
to the extent that section is applicable.
ii) Nonrecurring Costs. MetroNet agrees to be solely responsible for all nonrecurring costs
associated with the purchase and upgrade of equipment, software, and installation of
equipment as described in Exhibit A, which is hereby attached and incorporated herein.
Based upon a site inspection, the Parties agree that the equipment listed on Exhibit A
is necessary for the City and School Board to deliver and submit their PEG content on
each entity's existing PEG government channel to MetroNet in the manner required by
IC 8-1-34-27(b), at an agreed upon demarcation point for transmission by MetroNet.
The itemized list of equipment provided as Exhibit A and all nonrecurring costs
associated with the installation of such list of equipment, shall be the sole responsibility
of MetroNet.
iii) MetroNet agrees to be solely responsible for the maintenance, future upgrades, and
maintenance expenses associated with the equipment listed in Exhibit A, in order to
ensure the highest quality of carriage available as described in paragraph 5(c) above.
iv) The Parties agree to meet to discuss and establish terms for access to the City's location
for the purpose of installing and maintaining the equipment installed for PEG.
v) Recurring Costs. MetroNet agrees to be solely responsible for the transport of the
content from the City's existing PEG channel from an agreed upon demarcation point
at City Hall, One Civic Square to a point determined by MetroNet to be necessary for
transmission by MetroNet on its Internet Sourced PEG solution. The Parties agree that
Provider shall not charge the City any recurring costs under this Agreement.
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d) Non Discrimination. The City represents and warrants to MetroNet that all expenses set
forth in this Section 6 shall be imposed on all providers of Video Services in the City on a
non-discriminatory basis and that in no event will MetroNet be required to pay higher fees
or charges than any other provider of Video Services in the City.
6) FACILITY DEPLOYMENT AND RELOCATION -- All MetroNet Facilities within City
rights-of-way shall be located so as to cause minimal technical interference with other uses of
the public ways and adjoining premises and shall not be placed in any location to which the
City reasonably objects.
a) No location of any Facilities shall be or at any time become a vested interest, and whenever
the City reasonably determines that the public convenience so requires, such facilities shall
be removed, relocated, or modified by MetroNet at no expense to the City. Following
notice to MetroNet from the City, MetroNet's facilities shall be removed, relocated, or
modified by MetroNet, at its sole cost and expense, within thirty (30) days, weather
permitting, following notice by the City. MetroNet shall indemnify and reimburse the City
for any expenses the City may occur resulting from MetroNet's Use.
7) PERMITS AND BONDS -- MetroNet shall obtain a separate Right -of -Way permit and bond,
consistent with the City's stated amounts for same at the time of permitting, for each new pole,
cabinet, or other Video Services Network Facility, including those already in place or installed
as of the date of this Agreement, that it wishes to install in connection with its Video Services
Network.
8) ACCESS TO UTILITY INFRASTRUCTURE -- MetroNet shall be solely responsible for
obtaining the permission of each utility upon whose facility it wishes to collocate, and
understands and agrees that the City shall have no responsibility whatsoever for any such
colocation.
9) RIGHT-OF-WAY DISTURBANCE -- Any disturbance of a public way shall comply with all
provisions of the Carmel Municipal Code relevant to such disturbance and any other policy or
directive from the City of Carmel.
10) STANDARD OF CARE -- MetroNet shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injury, or nuisance to the public.
11) CODES AND STANDARDS -- The facilities shall be installed and maintained in accordance
with the requirements of all applicable Codes and Standards to include, but not be limited to
the National Electrical Code and the National Fire Protection Association.
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12) HOLD HARMLESS -- MetroNet shall be solely responsible for, and shall release and hold
harmless the City from, any and all losses, expenses, damages, demands, and claims arising
out of, or in connection with injuries, including death or damages to any and all persons,
employees, and/or property in any way sustained, directly or indirectly through the use of a
subcontractor or subsidiary, and arising from or based upon MetroNet's use or occupancy of
the City's right-of-way.
13) INDEMNIFICATION — Except for any loss, cost or damage due to the City's negligence or
willful misconduct, MetroNet shall, at all times, indemnify to the fullest extent permitted by
law City and its affiliates, elected and appointed officials, attorneys, employees, successors,
assigns, officers, directors, agents, representatives, lessees, independent contractors, servants
and employees of each of them ("Indemnitees"), from all third party claims, losses, damages,
costs, expenses), actions and liabilities incurred or asserted in connection with any action, suit,
proceeding, claim, demand, investigation or inquiry (formal or informal), or any settlement
thereof (whether or not a formal proceeding or action has been instituted) which directly arise
out of or is based upon the MetroNet's use or occupancy in the City's public way and or the
acts or omissions of MetroNet and MetroNet's employees, agents, contractors, invitees,
licensees, officers, owners, directors, assigns or affiliates.
14) INSURANCE -- MetroNet shall promptly deliver to City a Certificate of Insurance, which
evidences the following insurance coverage for the Work:
1. Comprehensive or Commercial General Liability:
a. Each Occurrence $1,000,000
b. Fire Damage (any one fire) $1,000,000
C. Medical (per person) $ 5,000
d. Personal Injury $1,000,000
e. General Aggregate $2,000,000
2. General Liability
a. The insurance provider must represent that the aggregate limits
shown are not impaired.
b. Products and Completed Operations insurance of $1,000,000.00
shall be maintained for one (1) year after the Work is completed
and MetroNet shall continue to provide evidence of such coverage
to the City on a monthly basis during the aforementioned period.
3. Policy must include the following coverage:
a. Premises — Operations
b. Independent Contractors (if applicable)
C. Property Damage Liability
All Parties agree that the CGL would also include Blanket Contractual liability
endorsement and proof of the specific reference to this Agreement.
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4. Such insurance as will protect MetroNet from liability under the Indiana
Worker's Compensation and Worker's Occupational Diseases Acts, but in no
case less that coverage for Employers Liability with limits of
$500,000/500,000/500,000 (as that expression is understood in the insurance
company).
Automobile Liability with limits of $1,000,000/Occurrence for all Owned, Non -
Owned or Hired Autos.
6. Umbrella or Excessive Liability with a limit per Occurrence of $5,000,000 to sit
over the CGL and Automobile and Employers Liability provided in the Workers
Compensation and Worker's Occupational Disease Act.
7. Professional Liability Insurance with limits of at least $1,000,000.
In addition to the Certificate of Insurance, MetroNet shall supply a written endorsement
to MetroNet's Comprehensive and General Liability policy that names the City as an
additional insured. The endorsement shall provide that MetroNet's policies shall be
primary, and that any liability insurance of City shall be secondary and noncontributory.
All insurance policies shall be maintained in good and responsible insurance companies
rated "A" or better by A.M. Best Company (or a comparable rating service if A.M. Best
Company ceases to exist or rate insurance companies), and shall be countersigned by an
agent of the insurer who is a resident of the State of Indiana.
The Parties further agree that the limits asked for in this insurance section shall not serve
as a limitation on any amounts assumed by MetroNet in Sections 12 ("Hold Harmless")
and 13 ("Indemnification") above.
15) In the event any notice is required to be given hereunder, it shall be deemed delivered when
sent via overnight carrier with package tracking enabled, or via hand delivery with
confirmation signature to:
The City:
Douglas C. Haney,
City Attorney
City of Carmel
One Civic Square
Carmel, Indiana 46032
With a copy to:
Mayor Brainard
One Civic Square
Carmel, Indiana 46032
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MetroNet:
CMN-RUS, Inc.
8837 Bond Street
Overland Park, KS 66214
Attn: Legal Department
16) Unless otherwise specified herein, all matters hereunder between the parties shall be
construed in accordance with the laws of the State of Indiana.
17) The parties hereby agree and consent to be subject to the venue and jurisdiction of the Courts
of Hamilton County, State of Indiana in connection with any claims, causes of actions, or other
disputes arising out of or relating to this Agreement.
18)No failure of either party to strictly enforce any of its rights or remedies hereunder shall be
deemed to constitute a waiver by such party in any respect.
19) MetroNet shall not assign or otherwise transfer its interest in this Agreement, without the prior
written consent of City. Notwithstanding the foregoing, with consent to the City, MetroNet
may assign this Agreement to: (i) any parent or subsidiary or (ii) to any party that acquires all
or substantially all of MetroNet's assets or equity whether by merger or sale.
20) MetroNet binds itself, its affiliates, subsidiaries, divisions, partners, successors, executors,
administrators and assigns, to City in respect to all of the terms and conditions of this
Agreement.
21) In the event any provision of this Agreement shall be held to be invalid and unenforceable,
the other provisions of the Agreement shall be valid and binding on the parties hereto.
22) Entire Agreement. This Agreement sets forth the entire understanding of the parties and
supersedes any and all prior agreements, arrangements, representations or understandings
relating to the subject matter hereof. No subsequent agreement between the City and MetroNet
concerning the subject matter of this Agreement, and no modification of this Agreement, shall
be effective or binding unless it is made in writing and signed by both Parties.
23) Modification. This Agreement may only be amended in writing by an instrument executed by
both Parties.
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[Signatures appear on following page]
CM?
IM
STATE OF INDIANA )
) SS:
COUNTY OF VANDERBURGH)
John Greenbank
Name
Executive Vice President
Title
BEFORE ME, the undersigned Notary Public, in and for said County and State, personally
appeared John Greenbank, of Indiana, who acknowledged the execution of the foregoing
Agreement on behalf of CMN-RUS, Inc.
WITNESS my hand and Notarial Seal this day day of*Uwvul
2017
r
NOTARY PUBLIC
My Commission expires:
'Resident of County
ANGELA RENE REINHART.y
Notary Public - Seal
State Of Indiana
Vanderburgh County
My Commission Expires Feb 14, 2023
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CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY:
/'� 22
Jamey Brainard, Presiding Officer
ate: 2
Mary A Burkoj;V4�ejn ber,
Date: ppLL //
Lori S. Watson, Me
Date: `� f
ATTEST:
C
Christine au y, Clerk -Tr asurer
Date: ' /! >
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON )
BEFORE ME the unggsiped Notary Yublic, in and for said County and State, personally
JAMES 5FLAItJA M py MlN B0.P-,
appeared�ai wk-Tson i uNbA }IA2.ve-, of Indiana, who acknowledged the execution of the
foregoing Agreement on behalf of C -RUS, Inc.
WITNESS my hand and Notarial Seal this i � , day of FebY , 2016
NOTARY PUBLIC
My Commission expires:
31/1cf ay
Resident of 4-)!a-kni County
l�
DIANNE WALTHALL
Seal
Notary Public - State of Indiana
Hamilton County
My Commission Expires Mar 16, 2024
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Exhibit A — PEG Equipment
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Exhibit A — PEG Equipment
Equipment to be determined.
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