R2018-26 Authorizing an Indefeasible Right of Use Agreement and Associated Sales Order with CIRDC to Obtain Dark Fiber from the City

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ARTICLE 19 DEFAULT 19.1 The following events shall constitute (Events of Default), the occurrence of which shall constitute a material breach of this Agreement and entitle the non-defaulting party to seek the rights and remedies available to it under the terms of this Section 19, Default: (a) Failure by Customer to pay any amount when due and such failure is not cured within thirty(30)calendar days following receipt of written notice of such failure, or (b) Failure by either party to observe or perform any other material obligation under this Agreement when such failure shall continue for a period of thirty(30) calendar days (or such longer period as may be agreed upon by the parties in writing; provided that the defaulting party commences to cure such failure within such thirty (30) calendar day period and thereafter diligently pursues such cure) after written notice. 19.2 Rights and Remedies of Customer. Upon the occurrence of an Event of Default by or with respect to the CITY, Customer shall be entitled to terminate this Agreement. 19.3 Rights and Remedies of the CITY. Upon the occurrence of an Event of Default by or with respect to Customer, the CITY shall have the right to: (i) terminate the Agreement; (ii) recover actual amounts owed by Customer to the CITY that accrued on or prior to the date of termination;and/or(iii)recover Damages. In addition to the foregoing, Customer shall be deemed to have abandoned the Dark Fiber, and to have conveyed to CITY all right, title and interest in and to the Dark Fiber. Customer shall provide to the CITY a bill of sale or such other documents as may be reasonably necessary to evidence such abandonment and/or conveyance. 19.4 Notwithstanding anything to the contrary contained in this Agreement, Customer's sole and exclusive remedy for any failure by the CITY to deliver the Dark Fiber by the Anticipated Completion Date shall be limited to those contained in this Section 19.4. In the event the CITY shall have failed to deliver the Dark Fiber within ninety(90)days after the Anticipated Completion Date (as such date may be extended by Events of Force Majeure or under the terms of this Agreement), then Customer may terminate this Agreement with respect to such Segment and receive a refund of the Initial Payment allocable to such Segment. If Customer elects to so terminate, neither Party shall have any further duties or obligations to the other Party (except for the CITY'S obligation to so refund the allocable Initial Payment)under this Agreement with respect to such cancelled Segment. In the event the CITY shall have failed to deliver the Dark Fiber in any Segment within twelve (12) months after the Effective Date, then this Agreement shall automatically terminate with respect to such Segment and CITY shall refund to Customer the Initial Payment with respect to such Segment, and the CITY shall have no further duties or obligations hereunder with respect to such Segment. 16