MCImetro Access Transmission Services Corp – Verizon/Reciprocal Contract of Sale gwie
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RECIPROCAL CONTRACT OF SALE
This Reciprocal Contract of Sale ("Contract") is entered into this day of May, 2019
by and between MClmetro Access Transmission Services Corp., a Delaware corporation
("Verizon") and the City of Carmel, Indiana("City"), acting by and through its Board of Public
Works and Safety.
RECITALS
WHEREAS, each Party has constructed and owns or will own an organized system of
multi-duct underground conduit and related facilities in and around the City of Cannel, Indiana
(conduits owned by Verizon the "Verizon Conduit System" and conduits owned by the City the
"City Conduit System"); and
WHEREAS, each Party wishes to sell conduits within their respective conduit systems to
the other Party as an even exchange of assets. Whenever the term"Seller" is used herein it refers
to one of the Parties in its role as seller of the property to the other Party and whenever the term
"Buyer" is used herein it refers to one of the Parties in its role as buyer of the property from the
other Party; and
NOW,THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, each Party agrees to sell and buy, the segments of duct identified herein,
subject to the promises, covenants, and warranties set forth in this Contract.
ARTICLE I
PROPERTY CONVEYED BY EACH PARTY
1.1 Property to be Conveyed to City. Verizon agrees to sell, and City agrees to buy
the portion of the Verizon Conduit System consisting of fourteen thousand three hundred and
sixty eight(14,368') linear feet of 2" diameter duct as shown highlighted in Red on the
drawings attached hereto as Exhibit A(the"Verizon Property). Use of the Verizon Property by
City is restricted to internal municipal uses of the City and such property may not be sold, leased,
licensed or in any way conveyed to third parties or used for any other purpose.
1.2 Property to be Conveyed to Verizon. City agrees to sell, and Verizon agrees to
buy the portion of the City Conduit System consisting of seven thousand two hundred and fifty
(7,250') linear feet of 4" diameter duct as shown highlighted in Green on the drawings attached
hereto as Exhibit B (the"City Property). The term"Property"refers to either the Verizon
Property or the City Property or both properties, as the context suggests.
1.3 Manholes/Handholes. It is the intent of the Parties to use their reasonable
commercial efforts to build their own manholes and handholes in all parts of the conveyed
Property so as to maintain a separate conduit system after the sale of the conduits to avoid any
sharing of manholes and handholes in the purchased conduits. The Parties will construct such
separate manholes and handholes as soon as possible after the sale of the conduits. In the event
there are situations where such separate manholes and handholes cannot be constructed the
Parties shall share the use of existing manholes and handholes for those sections of conduit sold.
In the event the parties share the use of any manholes or handholes the following shall apply:
a. Buyer shall give at least 72 hours' notice to Seller before entering a manhole or
handhole belonging to Seller and Seller shall be able to have a representative
monitor any work done by Buyer in the manhole or handhole with the right to stop
work if there is a chance of damaging any other cables.
b. In the event Buyer needs to enter a manhole or handhole in an emergency situation
the Buyer shall attempt to give at least 4 hours prior notice to Seller or as much
notice as is possible for the situation.
ARTICLE II
VALUE OF EXHCANGE
2.1 Exchange Value. Verizon and City each declare that the value of the Property
sold to the other are equal in value requiring no additional consideration to be paid to the other.
The agreed value for exchange purposes is $110,777.00.
ARTICLE III
SELLER'S REPRESENTATIONS AND WARRANTIES
3.1 Ownership. Seller is the owner of the entire right, title, and interest in and to the
Property.
3.2 Seller's Power and Authority. Seller and its representatives have all power and
authority legally necessary to enter into this Contract, execute and deliver the Closing documents,
and sell the Property in accordance with the terms of this Contract.
3.3 No Actions Against Seller. Seller knows of no action, suit, proceeding, or
assessment pending or threatened against Seller, which would, if determined against Seller,
adversely and materially affect Seller's ability to perform its obligations under this Contract.
3.4 No Additional Approvals Required. Neither Seller's execution of this Contract
nor Seller's performance of any of its obligations hereunder:
a. Violates any written or oral contract, agreement or instrument to which
Seller is bound or which affects the Property or any part of it;
b. Constitutes or will result in the violation or breach by Seller of any
judgment, order, writ, injunction or decree issued or imposed upon Seller,
or result in violation of any federal, state, local and other laws, statutes,
regulations, codes, orders, ordinances and rules; or
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c. Requires that Seller obtain any approval, consent, order, authorization,
designation, filing(other than recording), registration, notification of,by,
or with any judicial or governmental authority except as expressly
provided in this Contract. Seller shall cooperate with Buyer in Buyer's
acquisition of any such approvals needed by Buyer from the
responsible judicial or governmental authority.
3.5 No Liens or Encumbrances. Seller shall deliver the Property to Buyer free of
any liens or encumbrances of any kind.
ARTICLE IV
BUYER'S REPRESENTATIONS AND WARRANTIES
4.1 Buyer's Power and Authority. Buyer and its representatives have all power and
authority legally necessary to enter into this Contract, execute and deliver the Closing documents,
and purchase the Property in accordance with the terms of this Contract.
4.2 No Actions Against Buyer. Buyer knows of no action, suit, or proceeding,
pending or threatened against Buyer, which would, if determined against Buyer, adversely and
materially affect Buyer's ability to perform its obligations under this Contract.
4.3 Submission to All Applicable Local Right-of-Way Controls. Buyer understands
and acknowledges that the Property is subject to all applicable local right of way controls as
enacted, either currently or in the future,by those municipalities in which the Property is located.
Buyer represents and warrants that it shall own and operate the Property subject to, and in
accordance with, the requirements of those municipalities and will secure all necessary permits,
approvals, and authorizations from such municipalities to the degree any such approvals are
necessary.
4.4 Required Rights. Buyer shall secure any rights of construction, occupation and
access for any conduit, which is owned by Buyer, to be placed on any private property, if any,
located at the end points of the Property.
ARTICLE V
ACCEPTANCE OF PROPERTY
5.1 Acceptance of Ducts. Seller shall notify Buyer in writing that the Property is
ready for testing and the testing will begin. Seller, with Buyer representatives present, shall test
the duct that will be conveyed as the Property("Tested Duct")by pneumatic testing or other
appropriate means. Within fourteen(14) days of such testing, Buyer shall then confirm that the
Tested Duct within the Property has been constructed according to generally recognized
standards in the communications industry and are capable of pulling a cable through such
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conduits without damage to the cable.
5.2 Acceptance of Property. If the Property meets the acceptance conditions in
Section 5.1, Buyer shall accept the Property and closing shall be scheduled as set out in Article
IX("Acceptance"). If the Property does not meet the above conditions, Seller shall immediately
correct the conditions causing such failure to meet such conditions and again give written notice
of completion and repeat the process above.
5.3 As-Built Drawings. Within ninety(90)days after Closing, Seller shall deliver to
Buyer a full set of as-built drawings for the Property.
ARTICLE VI
TAXES
6.1 Responsibility for Taxes. Each Party shall be responsible for and pay all taxes,
including sales, use, or transfer taxes, applicable on their respective purchase of the Conduit
System, and for filing any returns, reports or forms required to be filed with respect to such taxes
Each Party will provide the other Party with such information as reasonably required to complete
and file any returns, reports or forms for such taxes, or to establish a claim for exemption from
any applicable taxes arising under this agreement. The Party buying the Conduit System shall
only be responsible for applicable personal or real property taxes after the sale of the Property. If
any personal or real property taxes payable by Buyer herein are assessed on or paid by Seller,
Seller shall be permitted to invoice Buyer for its proportionate share of such taxes (including any
penalties, interest, and other additions thereto)based on the methodology used by the authority
imposing the tax. Neither Party shall be responsible for taxes on the other Party's net
income. Seller and Buyer shall reasonably cooperate in resolving any issues relating to taxes
I paid by a party relating to the Property that are double billed to the other party.
ARTICLE VII
INDEMNIFICATION
7.1 Seller's Indemnity. Seller agrees to indemnify, protect, and defend Buyer against,
and hold Buyer harmless from, any and all claims, demands, liabilities, losses, damages, costs
and expenses including, without limitation, reasonable attorney's fees, asserted against, incurred,
or suffered by Buyer resulting from any patent infringement, personal injury or property damage
occurring in, on, or about the Property or relating thereto before the date of closing from any acts
or omissions of Seller, other than as a consequence of the acts or omissions of Buyer, its agents,
employees, or contractors. Seller's obligations under this provision shall survive for any claims
accruing up to the time of sale. Neither the foregoing nor any other provision of this Contract
shall limit the rights and remedies available to Buyer at law or equity.
7.2. Buyer's Indemnity. Buyer agrees to indemnify,protect, and defend Seller against,
and hold Seller harmless from, any claims, losses, damages, costs or expenses including, without
limitation, reasonable attorneys'fees, asserted against, incurred, or suffered by Seller resulting
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from any personal injury or property damage occurring in, on, or about the Property or relating
thereto before or after the date of closing from any acts or omissions of Buyer other than as a
consequence of the acts or omissions of Seller, its agents, employees,or contractors. Buyer's
obligations under this provision shall survive for any claims accruing up to the time of sale.
Neither the foregoing nor any other provision of this Contract shall limit the rights and remedies
available to Seller at law or equity.
ARTICLE VIII
LIMITATION OF LIABILITY
8.1 Liability. Notwithstanding any other provision of this Contract, it is the intent of
the Parties that each shall be liable to the other for any actual and direct damages incurred as a
result of a party's failure to perform its obligations as required by this Contract; provided,
however,that, in no event, will either party, nor any of their contractors, subcontractors, agents,
or employees be liable for any loss of revenue, lost profit, or other indirect, special, or
consequential damages suffered as a result of either party's breach of its obligations under this
Contract.
ARTICLE IX
CLOSING
9.1 Place and Date of Closing. The closing for the purchase and sale shall take place
by email and regular or overnight mail, or at such other place as Seller and Buyer may agree.
The closing shall take place within 10 business days after Acceptance of both the Verizon
Property and the City Property("Closing").
9.2 Seller's Closing Obligations. At Closing, Seller shall deliver to Buyer an executed
bill of sale in the form of the attached Exhibit C and D.
9.3 Possession. Possession of the Property shall be delivered to Buyer by Seller along
with the executed bill of sale upon receipt of payment.
9.4 Closing Costs. Each Buyer shall pay for all transfer and conveyance fees in
connection with the sale of the Property, if any. Each party will be responsible for its own legal
fees, except in the event of default.
ARTICLE X
TERMINATION OR DEFAULT
10.1 Buyer's Termination. If Seller is unable to convey title to the Property or any
portion thereof due to damage or destruction, condemnation or for any other reason, Buyer may,
at Buyer's option, either: (a) terminate this Contract in its entirety as to the Property it is due to
receive or(b)terminate this Contract with respect to that portion of the Property it is due to
receive that is not capable of being conveyed. Buyer shall provide written notice to Seller of its
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election above not later than the Closing. For purposes of this Article X, the value of each
Party's Property is $110,777.00. The prorata difference in the value between what each Party
receives shall be computed and the Party receiving the higher value shall pay the Party receiving
the lower value the difference in such values at the Closing. In the event both Parties decide to
terminate their purchase of all conduit pursuant to this Article X, this Contract shall terminate
with no conveyance of Property to either Party.
10.2 Default. If either Seller or Buyer fails or refuses to perform their respective
obligations hereunder, including the failure to pay any amount when due, for any reason other
than the other party's default or a duly-noticed termination expressly permitted under this
Contract, Seller or Buyer, as applicable, may pursue any remedies available to such party at law
or equity.
ARTICLE XI
MISCELLANEOUS
11.1 Assignment by Buyer. Neither Party may assign or transfer this Contract, or any
rights and obligations arising hereunder, without the prior written consent of the other Party;
except as specifically provided hereafter. Any other attempted assignment or transfer shall be
null and void. Notwithstanding anything to the contrary herein, Verizon may assign or transfer
this Contract, or any rights and obligations arising hereunder, without the prior written Consent
of City, to any affiliate controlling or controlled by Verizon or under common control of a parent
company or companies, or in connection with the sale of all or substantially all of Verizon's
assets or in connection with a merger involving Verizon.
11.2 Notices. All notices, approvals, waivers, objections or other communications
under this Contract shall, unless otherwise specified,be in writing and deemed to be duly
delivered if delivered in person, by overnight courier with evidence of delivery, or by certified or
registered mail:
a. If to City,to: Information and Communications Systems
City of Carmel
31 1st AVE NW
Carmel, IN 46032Attention: Timothy Renick
With a copy to: Office of Corporation Counsel
City of Carmel
1 Civic Square
Carmel, IN 46032
Attention: Douglas C. Haney
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b. If to Verizon, to: MClmetro Access Transmission Services Corp.
400 International Parkway
Richardson,Texas 75081
Attention: Senior Manager, Network Contract
Services
With a copy to:
Verizon Business Network Services Inc.
1320 North Courthouse Road, 9th Floor
Arlington, Virginia 22201
Attention: Senior Vice President&Deputy General
Counsel
11.3 Entire Agreement. This Contract, and the exhibits attached hereto constitute the
entire agreement between Verizon and City and supersedes all prior agreements and
understandings between them as to the subject matter of the Contract. There are no restrictions,
arrangements, or undertakings, oral or written, between the parties relating to the transaction
contemplated hereby which are not expressed or expressly referred to herein.
11.4 Binding Effect. This Contract shall be binding upon, and inure to the benefit of,
Verizon and City and their respective successors and permitted assigns.
11.5 Amendments and Waivers. This Contract may not be amended except by a
written instrument executed by each of the Parties. No waiver, change, modification, consent or
discharge shall be effected except by a written instrument executed by the party from which such
waiver, change, modification, consent, or discharge is sought.
11.6 Severability. If any term or provision of this Contract is invalid, illegal, or
incapable of being enforced by any rule, law, or public policy, all other terms and provisions of
the Contract shall remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in a manner adverse to either party. Upon a
determination that any term or provision is invalid, illegal, or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Contract so as to effect the original
intent of the parties as closely as possible to the end that the transactions contemplated hereby are
fulfilled to greatest extent possible. If any term or provision is capable of two constructions, one
of which would render the term or provision invalid and the other of which would render the
provision valid,then the provision shall have the meaning which renders the term of provision
valid.
11.7 Counterparts. This Contract may be executed in counterparts, each of which will,
for all purposes, be deemed to be an original and all of which, together, will constitute one and
the same instrument. In pleading or proving any provision of this Contract, it shall not be
necessary to produce more than one complete set of such counterparts.
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11.8 Governing Law. This Contract shall be construed, governed, and enforced in
accordance with the laws of the state of Indiana, without reference to its conflict of laws
principles.
11.9 Time is of the Essence. Time is of the essence in the performance of both parties'
duties and obligations hereunder.
IN WITNESS WHEREOF,the parties have caused this Contract to be signed by their
respective duly authorized officers as of the date first written above.
MCImetro Access Transmission Services
Corp.
(Verizon)
By:
Name:
Date:
Approved and Adopted this/ day of/14 , 20 lei.
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY:
Ase,ivf—
James Brainard, Presiding Officer
Date:
ki/a g- 1
Mary 7
Burke 71,
Date:
8
Lori S. Watson,
Date: j914&/ri
ATTES
74 ,
,tA
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eti...,(V.-----..
CILLe Pauley, C1 Tres er
Date: ... / /9
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Exhibit A
M C I
• ♦ 1, { • Legend
lt.,rl •— r -'fir. i_ 1 '- • NIL' Green lines=
,� L .. ..I . 'f''„ 1 _�.. _ 1 _, ._ ...__.' City of Carmel
_+alms
��1•Illc+ i r. i ti j tir -
(Ewistin�4"CoMuit
•. -"nr t i' - i , I. s" ... - •[ }r -� 'v� I Brown Booms=
f- r { �4 }J v •- '! ,.y 16jilt
P `\ r I City of Carmel
_ va • ,. CoMuitSegmenu
• I' .r •_ t , _. '� i Red lines=
r gi --A ,` I MCI
a - - _ +►•_ • / t , . s"+- �,' . • frh -.,+. J. •4 , l (New)2-2"Conduit
.011 ;tq 4 •t j" ` i Bw �qr�F:i -*[s1t II \ .j ,1': "�"''1 C•
•_ • -C:T•!'a
- _ w '• I i —r1 t- RA=Round-About
1 Il I •..tr G i 2
ie
'��(( tt
MU Conduit In statnion
Main{City of Carmel Fie Station 44 to even with Tu rquioise CirI 1MU11 1112
Main{Gray to City of Carmel Are Station 441 {b1U21 2335
126th&Gray RA NW to Main {ad031 2228
Gray RA{North ries tl to Keystone RA{Southea stl 0M041 5390
/26th toBroobhre GoafCourse 1M051 2235
Rangelir a 1/2 way to 6th st to 4th st RASE {MU61 1068
Total amount of 2-2'Can duits 14
(units are in ft.)
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Exhibit B
M C I
w 4. 1 _ A0 Green lined=
^--- N.a �X Gty of Carmel
. 77,1
I -. S 1 SEus.ingl4"Conduit
«%" GCS• R
ti "�"t ` �� _ `i k Brown Boxes-
I•_ j '' 1'w ' _ r vl �•`� �� _ City of Carmel
+ .- Conduit Segments
CC?
! n # Red lines=
•wihF MCI
.ry re^ I - • - -� `4,i , - 'New]2-2"Conduit
•' i,(/, + ( - i y S_`t Blue Bones=
.�,r:. `• L}•\ �_ (. �'l` r�y-y`.� MCI
•
:-�. 7 1 ,}< � t. ' ,fi -. fi • Conduit s ents
>Pir~ IA• _ _ ' .l . , \,.. i... 1- ' • Yellow Name=
I a .. ,• t. - _ Segment Names
� -r . -- t' Iir i.7. i I. fJ'.r RA=Found-About
a, f .,q, f - y r 1�� -ma
a
... -- --+-+....—E++SN«S
Mae i .
Ed sting Gty of Carmei Coed on
126&Gray RA SN W to SW) CC1 673
126&Keystone RA SSE to N W I CC2 1492
126&Keystone RA to 126th&Rangeline RA CC3 3275
126&Rangeline RAto 1/2 way to6thst CC4 346
4th&Rangeine RA to SEtoNW 4thst CC5 472
4th&RangeineRANWto Carmel City CS CC6 992
Total amount of 4"conduit used 7250
(units are in ft)
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Exhibit C
Bill of Sale
Know all men by these presents:
Whereas, MCImetro Access Transmission Services Corp. ("Seller") and the City of
Carmel, Indiana("Buyer") entered into a Contract of Sale dated March_, 2019 ("Agreement");
Now, therefore, in consideration of the exchange of equally valued assets, Seller does
hereby grant, bargain, sell, assign, transfer, convey and set over unto Buyer all right, title and
interest in the Verizon Property(as defined in the Agreement and as described on Exhibit A
attached hereto), free and clear of any and all claims, liens, charges and security interests, for its
own use and benefit forever, subject to the terms of the Agreement. The Agreement is
incorporated herein by reference.
Except as otherwise provided herein or in the Agreement, the Verizon Property is
conveyed to Buyer in an "as is" condition on the date hereof. This Bill of Sale is made without
representation or warranty by or recourse to Seller, except as expressly provided in the
Agreement. Use of the Verizon Property by Buyer is restricted to internal municipal uses of the
City and such property may not be sold, leased, licensed or in any way conveyed to third parties
or used for any other purpose.
In Witness Whereof, Seller has executed this Bill of Sale on , 2019.
MClmetro Access Transmission Services Corp.
By:
Title:
State of Texas )
)ss
County of Dallas )
On this day of , 2019,before me, a notary public in and for said county
and state, personally came , of MClmetro Access Transmission Services
Corp., known to me to be the identical person who signed the foregoing Bill of Sale and
acknowledged the execution thereof to be the voluntary act and deed of said company.
Witness my hand and notarial seal in said county and state, the day and year last above
written.
Notary Public
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Exhibit D
Bill of Sale
Know all men by these presents:
Whereas, the City of Cannel, Indiana("Seller") and MClmetro Access Transmission
Services Corp. ("Buyer") entered into a Contract of Sale dated March_, 2019 ("Agreement"):
Now, therefore, in consideration of the exchange of equally valued assets, Seller does
hereby grant, bargain, sell, assign, transfer,convey and set over unto Buyer all right, title and
interest in the City Property(as defined in the Agreement and as described on Exhibit A attached
hereto), free and clear of any and all claims, liens, charges and security interests, for its own use
and benefit forever, subject to the terms of the Agreement. The Agreement is incorporated
herein by reference.
Except as otherwise provided herein or in the Agreement,the City Property is conveyed
to Buyer in an "as is" condition on the date hereof. This Bill of Sale is made without
representation or warranty by or recourse to Seller, except as expressly provided in the
Agreement.
In Witness Whereof, Seller has executed this Bill of Sale on , 2019.
City of Carmel, Indiana
By:
Title:
State of Indiana)
)ss
County of Hamilton)
On this day of , 2019,before me, a notary public in and for said county
and state,personally came , of the City of Cannel, Indiana,known to me
to be the identical person who signed the foregoing Bill of Sale and acknowledged the execution
thereof to be the voluntary act and deed of said company.
Witness my hand and notarial seal in said county and state,the day and year last above
written.
Notary Public
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