Agenda - Council Work Session - 10/23/2012

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performance or failure of the lnnerduct or equipment or this Agreement. In no event shall either Party be liable for any loss or damage relating to a claim for personal injury arising out of or in connection with maintenance, use, performance or failure of the lnnerduct or equipment. 8. DEFAULT AND REMEDIES. 8.1 Event of Default. Any of the following shall constitute an event of default: (a) either Party fails to perform or observe any other representation, warranty, covenant, condition or agreement and fails to cure such breach within thirty (30) days after written notice; (b) any representation or warranty made by either Party hereunder or in any other instrument provided to the other Party proves to be incorrect in any material respect when made; (c) a proceeding under any bankruptcy, reorganization, arrangement of debts, insolvency or receivership law or assignment of benefit of creditors is made by or against Zayo; (d) Zayo becomes insolvent or fails generally to pay its debts as they become due; and, (e) Zayo voluntarily or involuntarily dissolves or is dissolved or terminates or is terminated. 8.2 Remedies. In the event of a default by either party, the non -defaulting party shall have the right to exercise any or all of the following remedies to the extent applicable: (a) terminate this Agreement; (b) declare all any amounts due under this Agreement immediately due and payable; (c) proceed to enforce the remedies of a secured party under Minnesota law; and, (d) proceed by court action to enforce performance of this Agreement and any remedy provided for herein and/or recover all damages of any default or exercise any other right or remedy available at law or in equity. 9. TERMINATION. Upon the expiration of the Term, as may be extended, the License with respect to the Conduit System shall immediately terminate, all rights of Zayo to use the Conduit System shall cease, all rights to the use of the Conduit System shall revert to City and City shall owe Zayo no further duties, obligations or consideration. 10. MISCELLANEOUS. 10.1 Minnesota. Choice of Law. This Agreement shall be govemed and interpreted under the laws of the State of 10.2 ' Attornev's Fees. If any suit or action is filed by either Party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, as fixed by the reviewing court, incurred in investigation of related matters and in preparation for the prosecution of such suit or action as fixed by the trial court and if any appeal or other form of review is taken from the decision of the trial court or any subsequent court. 10.3 Relationship of the Parties. Nothing contained in this Agreement shall be construed to create any partnership or agency relationship between the Parties for any purpose, action, or transaction, including those related to the performance of this Agreement. 10.4 Entire Agreement. This Agreement represents the entire agreement between the Parties relating to this matter. No prior or contemporaneous discussions, representations, understandings, or statements, oral or written, relating to this Agreement or its subject matter shall have any force or effect. The Parties agree that no individual party shall be deemed to be the drafter of this Agreement and that, in the event this Agreement is ever construed by a court of law or equity, such court shall not construe this Agreement or any provision against any individual party as the drafter of the Agreement. Exhibit A and Exhibit B, all attached hereto, are incorporated herein by reference and made a part of this Agreement. 10.5 Assignment. Either party may, without the other's consent, assign or otherwise transfer this Agreement or its rights or obligations hereunder to any other party, in whole or in part. Confidential