R2018-92 Authorizing an Indeasible Right of Use Agreement and Assocated Sales Order with Millikin University to Obtain Dark Fiber

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the proportionate Share to the Customer is equal to one (1) twelfth (12th) of the total of the Unscheduled Maintenance Costs for this segment. 10.4 Customer shall have no right to physically access the Fiber System or maintain, adjust, align or attempt to repair the Dark Fiber. Notwithstanding the foregoing, this provision shall not limit CITY'S ability or right to pursue a claim for damages to equipment or facilities proximately caused by Customer and in no event shall this provision authorize Customer to access a Fiber System manhole, hand hole or other element of the Fiber System. 10.5 Unless otherwise agreed to in writing by the Parties, nothing in this Agreement shall obligate CITY to maintain Customer's optronic, electrical, optical or other equipment, all of which are the obligation and responsibility of Customer. 10.6 Neither Party shall adjust, remove, relocate, align or attempt to repair the other Party's equipment except as expressly authorized in advance in writing by the other Party. Each Party will be liable for any loss or damage to the other Party's equipment arising from that party's negligence, intentional act, unauthorized maintenance. ARTICLE 11 PERMITS; RELOCATION 11.1 Subject to the terms and provisions of this Agreement, CITY shall use commercially reasonable efforts to obtain and maintain during the Term, certain rights of way and other agreements which are necessary for the use of the Fiber System by the CITY in accordance with this Agreement. 11.2 If, after the Acceptance Date with respect to any Segment, CITY is required (i) by a third party with legal authority to so require or(ii)by an act of nature(including,without limitation, erosion, earthquakes, flood, sinkhole, etc.), (iii)or if Customer requests, to relocate any portion of the Fiber System, with respect to such Segment, including any of the facilities used or required in providing the IRU, CITY shall proceed with such relocation, including without limitation, the right, in good faith, to reasonably determine the extent of, the timing of, and methods to be used for such relocation; provided that any such relocation shall incorporate fibers meeting or exceeding the specifications of the Dark Fiber. In the event of any such relocation, CITY shall use commercially reasonable efforts to minimize any service interruptions. 11.3 CITY shall notify Customer in writing of Customer's Proportionate Share of the Costs of relocation. If Customer consents to the relocation, then Customer shall be responsible for its Proportionate Share of the Costs of relocation,which will be invoiced to Customer by CITY. If Customer does not consent, then it shall terminate this Agreement with respect to the Dark Fiber that requires relocation, and Customer shall have no further payment obligations with respect to it effective 30 days after Customer provides CITY notice. 10