Real Property Interests (a) The Owner has provided, or upon execution of this Agreement shall promptly provide to the Developer, documentation acceptable to the Department indicating any right, title or interest in real property claimed by the Owner with respect to the Owner Utilities in their existing location(s). Such claims are subject to the Department’s approval as part of its review of the Utility Assembly as described in Paragraph 2. Claims approved by the Department as to rights or interests are referred to herein as “Existing Interests”.
(b) If acquisition of any new easement or other interest in real property (“New Interest”) is necessary for the Adjustment of any Owner Utilities, then the Owner shall be responsible for undertaking such acquisition. The Owner shall implement each acquisition hereunder expeditiously so that related Adjustment construction can proceed in accordance with the Developer’s Project schedules. The Developer shall be responsible for the actual and reasonable acquisition costs of any such New Interest (including without limitation the Owner’s reasonable overhead charges and legal costs as well as compensation paid to the landowner), excluding any costs attributable to Betterment as described in Paragraph 16(c), and subject to the provisions of Paragraph 16(e); provided, however, that all acquisition costs shall be subject to the Developer’s prior written approval. Eligible acquisition costs shall be segregated from other costs on the Owner's estimates and invoices. Any such New Interest shall have a written valuation and shall be acquired in accordance with applicable law.
(c) A New Interest shall be substantially equivalent (e.g., in width and type) to the Existing Interest being replaced, unless a New Interest exceeding such standard (i) is required in order to accommodate the Project or by compliance with applicable law, or (ii) is called for by the Developer in the interest of overall Project economy. Any New Interest that does not meet the requirements of the preceding sentence shall be considered a Betterment to the extent that it upgrades the Existing Interest which it replaces, or in its entirety if the related Owner Utility was not installed pursuant to an Existing Interest. Betterment costs shall be solely the Owner’s responsibility.
(d) For each Existing Interest located within the final Project right of way, upon completion of the related Adjustment work and its acceptance by the Owner, the Owner agrees to execute a quitclaim deed or other appropriate documentation relinquishing such Existing Interest to the Department, unless the affected Owner Utility is remaining in its original location or is being reinstalled in a new location within the area subject to such Existing Interest. All quitclaim deeds or other relinquishment documents shall be subject to the Department's approval as part of its review of the Utility Assembly as described in Paragraph 2. For each such Existing Interest relinquished by the Owner, the Developer shall do one of the following to compensate the Owner for such Existing Interest, as appropriate:
(i) If the Owner acquires a New Interest for the affected Owner Utility, the Developer shall reimburse the Owner for its actual and reasonable acquisition costs in accordance with Paragraph 16(b); or
(ii) If the Owner does not acquire a New Interest for the affected Owner Utility, the Developer shall compensate the Owner for the fair market value of such relinquished Existing Interest, as mutually agreed between the Owner and the Developer and supported by a written valuation. The compensation provided to the Owner pursuant to either subparagraph (i) or subparagraph (ii) above shall constitute complete compensation to the Owner for the relinquished Existing Interest, and no further compensation shall be due to the Owner from either the Developer or the Department on account of such Existing Interest.
(e) The Owner shall execute a Utility Joint Use Acknowledgment (TxDOT-U-80A) for each Adjusted Owner Utility where required pursuant to TxDOT policies. All Utility Joint Use Acknowledgments shall be subject to TxDOT approval as part of its review of the Utility Assembly as described in Paragraph 2.
Intangible Personal Property Subject to Section 3.4, all right, title, and interest of any Seller and any other Company Subsidiary in and to the intangible personal property exclusively used at one or more of the Properties in connection with, or otherwise appurtenant to, the day to day ownership, maintenance, repair, operation or use of one or more Properties or the associated Tangible Personal Property, including: (a) all Tenant Leases; (b) all Assumed Management Agreements; (c) all Licenses and Permits held in the name of any Seller; (d) all Loan Documents relating to Loans being assumed by Buyer in accordance with this Agreement; (e) all reports, technical studies and architectural and engineering plans, specifications and drawings, if any; (f) all rights of the applicable Seller under all Approved Contracts that arise from and after the Closing Date; (g) any proprietary rights in the name under which each Property is operated, and any variations thereof (the “Facility Names”), including facility-specific, stand-alone internet sites and domain names relating to the Properties; (h) trade names, trademarks, service marks, logos and other intellectual property with respect to the Facility Names, including all common law and statutory rights thereunder and all goodwill associated therewith; (i) subject to Section 3.4(b), software used in the operations of any CLP Managed Property (to the extent transfer would not violate the licensing or other agreements associated therewith); (j) all Warranties; (k) all books, records and databases relating to the Properties (copies of which Seller shall be entitled to retain); (l) all Seller Receivables; (m) all security deposits, resident deposits and other amounts to be transferred pursuant to Section 5.5 (the transfer of which may be effectuated by way of Buyer receiving a credit against the Purchase Price in a cumulative amount equal to such deposits and amounts on the Settlement Statements except as otherwise required by Legal Requirements), (n) all Resident Agreements at any CLP Managed Property, (o) to the extent assignable, the Ancillary Agreements, and (p) subject to Article 15, all rights and proceeds arising from any insurance policies and condemnation proceedings concerning a Property received by Sellers prior to Closing (the foregoing shall collectively be referred to herein as the “Intangible Personal Property”).
