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ZayoPREPARED BY: MATT MORLEY Director of Parks and Public Works Reviewed by: Assistant Town Manager Town Attorney Finance S:\COUNCIL REPORTS\2016\06-07-16\Zayo\Staff Report Zayo Agreement FINAL.docx 6/2/2016 12:02 PM MEETING DATE: 06/07/16 ITEM NO: 7 COUNCIL AGENDA REPORT DATE: MAY 25, 2016 TO: MAYOR AND TOWN COUNCIL FROM: LAUREL PREVETTI, TOWN MANAGER SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE A CONDUIT USE AGREEMENT WITH ZAYO GROUP, LLC FOR THE USE OF A TOWN-OWNED FIBER OPTIC CONDUIT ALONG A PORTION OF LOS GATOS BOULEVARD AND EAST MAIN STREET RECOMMENDATION: Authorize the Town Manager to execute a Conduit Use Agreement with Zayo Group, LLC (Zayo) for the use of a Town-owned fiber optic conduit along a portion of Los Gatos Boulevard and East Main Street. BACKGROUND: Zayo, along with other telecommunications companies, often request encroachment permits to install cable lines in the Town. Recently, Zayo completed a project with an encroachment permit for placement of underground cable on Lark Avenue and Winchester Boulevard to service the new Netflix facility on Winchester Boulevard. Zayo is currently requesting new encroachment permits to run underground conduits in both the Almond Grove District and along Los Gatos Boulevard and East Main Street from Lark Avenue to just east of the Highway 17 Bridge. DISCUSSION: In place of the encroachment permit along Los Gatos Boulevard, Zayo has made a request to lease the Town’s existing fiber optic conduit that runs along Los Gatos Boulevard and Main Street from Lark Avenue to just east of the Highway 17 Bridge on East Main Street, a distance of approximately 13,000 linear feet. This would be used as a “pass through” cable for businesses and cell phone carrier services. A pass through cable does not service individual properties, but rather completes a path for data transmission to larger data customers. Currently the Town utilizes a conduit for fiber optic cable that communicates between the Town’s traffic signals on Los Gatos Boulevard and the traffic signal control center that is located at the Town’s service PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: CONDUIT USE AGREEMENT WITH ZAYO GROUP, LLC MAY 25, 2016 DISCUSSION (cont’d): yard at 41 Miles Avenue. The conduit is large enough to accommodate the proposed cable from Zayo and still allow room for additional Town fiber should it be needed in the future. The Town’s current fiber cable currently consists of 96 strands of fiber, of which about half are obligated, leaving significant room for future expansion. Town staff have negotiated an upfront payment of $350,000 (approximately $1.35 per linear foot per year) to use the conduit for a 20 year lease agreement with an option to extend the lease for two additional 5 year periods at a lease rate of $130,000 per five year period. These amounts were arrived at through negotiations. The initial offer from Zayo was in the amount of $250,000 for the initial term with extensions valued at $70,000. The Town remains responsible for the continued maintenance of the conduit and Zayo would be responsible for the maintenance of their fiber cable in all versions of the agreement. Similar shared conduit leases in other jurisdictions are difficult to identify as the sharing of conduit is not typical. As a basis of comparison, staff utilized full fiber optic leases which equates to a conduit with fiber already in place. These compare at a premium due to the increased benefit of having the fiber in place. In these scenarios, comparative leases equate to $1.75 per linear foot per year. In comparing this with the Town’s situation, this amount is somewhat high as the Town is not providing the fiber and the conduit is shared and not exclusive. With these reductions, staff believes that the negotiated amount is a fair market value. An additional factor for consideration is the construction cost if Zayo were to install their own conduit. Staff estimates that a higher lease amount would push the project to a cost where it would be more beneficial for Zayo to install their own conduit. At that point, the Town could only recover administrative costs for permitting as set by Code, and would forego the lease revenue. Town Parks and Public Works staff along with the Town Attorney have reviewed the agreement and believe moving forward with this agreement is in the best interest of the Town. In addition to the additional revenue generated from the lease agreement, utilizing existing conduit will prevent the need for Zayo to trench along Los Gatos Boulevard and Main Street, thus avoiding additional traffic congestion on an already busy corridor. In the case of locations where shared conduits do not currently exist, staff will continue to process encroachment permits for the installation of the necessary conduits. If the companies meet the permit requirements, the Town must approve the installation of the conduit in a timely manner. CONCLUSION: Staff recommends that the Town Manager to execute a Conduit Use Agreement with Zayo Group, LLC (Zayo) for the use of a Town owned fiber optic conduit along a portion of Los Gatos Boulevard. ENVIRONMENTAL ASSESSMENT: This is a project as defined under CEQA and is Categorically Exempt [Section 15301(b) Existing facilities used to provide public utility service]. PAGE 3 MAYOR AND TOWN COUNCIL SUBJECT: CONDUIT USE AGREEMENT WITH ZAYO GROUP, LLC MAY 25, 2016 COORDINATION: This report has been coordinated with the Town Attorney and the Finance Department. FISCAL IMPACT: The revenue generated from this lease agreement is considered General Fund revenue for future appropriation by the Council. Attachment: 1. Conduit Use Agreement Page 1 of 16 ATTACHMENT 1 CONDUIT USE AGREEMENT THIS CONDUIT USE AGREEMENT (the “Agreement”) is entered into as of the _______ day of June, 2016 (the “Effective Date”), between the Town of Los Gatos, a municipal entity in the State of California (the “Town”), and Zayo Group, LLC, and its affiliates, subsidiaries, parent and assigns, a limited liability company (“Zayo”). The Town and Zayo may be referred to herein individually as a “Party” and collectively as the “Parties.” WHEREAS, the Town owns or controls an underground conduit system located in and around the Town of Los Gatos; and WHEREAS, the Town wishes to permit Zayo to use certain conduit that is a part of this system in accordance with the terms and conditions set forth below; and WHEREAS, Zayo desires to obtain from the Town and the Town desires to provide to Zayo a license to use the specified conduit; NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. License of Town Conduit and Related Support Facilities Pursuant to the terms and conditions as further described below, the Town hereby grants to Zayo the right, privilege and license (the “License”) for Zayo’s nonexclusive, restricted, nontransferable use, certain space in Town conduit, together will all related manholes, handholes and other support appurtenances (collectively, the “Facilities”) for Zayo to pull and occupy a 288 count cable (“Cable”). The Facilities route is as generally described in Exhibit A. The Facilities shall be accessbile through the access points set forth in Exhibit A and in Exhibit B. The specifications for the Facilities (“Specifications”) are set forth in Exhibit C. The Facilities shall be available, including Zayo’s receipt of the necessary permits, for Zayo to install the Cable upon the Effective Date. 2. Term; License Fee A. This Agreement shall become effective on the Effective Date, and it shall remain in full force and in effect for a period of twenty (20) years from the Effective Date (the “Term”), unless terminated earlier in accordance with this Agreement. Zayo shall have the option to elect to renew this Agreement for two successive five (5) year renewal terms for a renewal License Fee of $130,000 per each five (5) year renewal period. B. In consideration of the License granted to Zayo, Zayo will pay to the Town a one time amount of $350,000.00 (“License Fee”) for the Term. The Town will invoice Zayo for the License Fee upon Zayo’s acceptance that the Facilties meet the Specifications and Zayo will pay the License Fee within thirty (30) days of the invoice date. Page 2 of 16 3. Maintenance and Repair A. For and during the Term of the License, the Town shall be responsible for the repair and maintenance of the Facilities at the Town’s sole cost and expense; and Zayo shall be responsible for the repair and maintenance of the Cable in the Facilities as well as sweep conduit to Zayo provided manholes/handholes and said manholes/handholes as listed in Exhibit B at Zayo’s sole cost and expense. Zayo shall be responsible for the cost of repairing the Facilities, including Town cable, damaged by Zayo and repaired by the Town. Zayo shall repair its Cable and the Facilities damaged by another utility company, contractor, or other entity during the Zayo conducted installation and maintenance of the Cable and work directly with the utility company or contractor for reimbursement of the cost of this repair work. B. All standard maintenance and repair of the Facilities by the Town shall be performed by or under the direction of the Town, in accordance with the maintenance requirements and procedures set forth in Exhibit D. Non-standard maintenance specifically requested by Zayo shall be at Zayo’s expense. Zayo may not, nor permit others to, rearrange, disconnect, remove, attempt to repair or otherwise tamper with any of the Facilities or equipment installed by the Town, except with the written consent of the Town, which consent shall be at the Town’s sole discretion. Notwithstanding the foregoing, however, if the Facilities, or any part thereof are not maintained in accordance with terms and conditions provided by this Agreement and Zayo has not corrected the violation within twenty-four (24) hours, Zayo may exercise the self-help rights (“Self-Help Rights”) set forth in Exhibit E (Self-Help Rights). The Town shall reimburse Zayo for its related costs and expenses Zayo incurs in so exercising its Self-Help Rights in such event. C. “Service Affecting Condition” shall mean any damage to or failure of the Facilities that interrupts Zayo’s ability to transmit light on its fiber through the Facilities. A Service Affecting Condition begins when the Town is notified or becomes aware of an interruption, whichever first occurs. A Service Affecting Condition continues until the interrupted Facilities are again available to Zayo. The Town shall have its first maintenance technician on site within four (4) hours after the time the Town becomes aware of a Service Affecting Condition (whether same occurs within normal business hours or after-hours, weekend or holiday), unless delayed by circumstances beyond its reasonable control. The Town shall use reasonable efforts to complete repairs and terminate the Service Affecting Condition within not to exceed 24 hour after maintenance staff arrives at the site of the problem. Such repairs may be temporary. 4. Underlying Rights; Condemnation A. Subject to the terms and provisions of this Agreement, the Town agrees that it has and will maintain during the Term all Underlying Rights necessary for the Town’s construction, installation, maintenance and repair of the Facilities and for the Town’s grant to Zayo of the use of the Facilities in the manner contemplated by this Agreement. “Underlying Rights” shall mean all deeds, leases, easements, rights-of-way agreements, licenses, franchises, grants, contracts and other rights, titles and interests to use real property of any third person, which are necessary for Page 3 of 16 the construction, placement, location, installation, operation, use, license, maintenance, repair or replacement by the Town of the Town’s Facilities. B. In the event of a condemnation of all or any portion of the Facilities, the Town will provide a reasonable alternative conduit route subject to all required permits on a timely basis to Zayo. 5. Use of Facilities A. The License herby granted to Zayo provides Zayo with the right to install, maintain, operate, repair, renew, replace and remove Cable, together with rights of ingress, egress and access thereto, subject to all required permits, including but not limited to encroachment permits. B. Zayo shall not use, or permit any other entity or person to use, the Facilities, in violation of this Agreement, any law, rule, regulation or order of any governmental authority having jurisdiction over the Facilities. Further, Zayo is prohibited from leasing, subleasing, licensing or sublicensing, the Facilities (for the avoidance of doubt, Zayo may lease, IRU or sell services in connection with the fiber on the Cable that Zayo places in the Facilities). Zayo shall not allow access to the Facilities to any third party without the prior permission of the Town (it being understood that in the course of its normal daily operations and emergency cable repair Zayo may use outside contractors to provide services to Zayo and Zayo customers in connection with the installation and maintenance of the Cable, which outside contractors will be the responsibility of Zayo and may be afforded access to the Facilities without the permission of the Town). 6. Title All right, title, and interest in the Facilities and any other equipment or facility of the Town shall, at all times, remain exclusively with the Town. All right, title, and interest in the Cable placed within the Facilities by Zayo and any other equipment or facility of Zayo shall, at all times, remain exclusively with Zayo. 7. Liens and Encumbrances Neither party, directly or indirectly, shall create or impose any lien on the property of the other party, or on the rights or title relating thereto, or any interest therein, or in this Agreement. Each party will promptly, at its own expense, take such action as may be necessary to duly discharge any lien created by it on the property of the other. However, nothing in this Agreement shall be so construed as to prohibit the owner of any facilities from permitting the creation or imposition of a lien or security interest on facilities that it owns. 8. Indemnifications; Limitations of Liabilities; Warranties A. Zayo will indemnify and hold the Town harmless against any and all loss, liability, damage and expense (including reasonable attorneys’ fees) arising out of any demand, Page 4 of 16 claim, suit or judgment for damages to any property or bodily injury to any persons, including, without limitation, the agents and employees of Zayo which may arise out of or be caused by Zayo’s willful misconduct or gross negligent act or omission of Zayo in connection with the Facilities. The foregoing indemnity shall not apply in the case of claims which solely arise from the gross negligence, misconduct or other fault of the Town. It shall apply, however, if a claim is the result of the joint negligence, joint misconduct or joint fault of Zayo and the Town, but in such case the amount of the claim for which the Town is entitled to indemnification shall be limited to that portion of such claim attributable to the negligence, misconduct or other fault of Zayo. B. The Town will indemnify and hold Zayo harmless against any and all loss, liability, damage and expense (including reasonable attorneys’ fees) arising out of any demand, claim, suit or judgment for damages to any property or bodily injury to any persons, including, without limitation, the agents and employees of either party hereto which may arise out of or be caused by any willful misconduct or gross negligent act or omission of the Town in connection with the Cable. The foregoing indemnity shall not apply in the case of claims, which solely arise from the gross negligence, misconduct or other fault of Zayo. It shall apply, however, if a claim is the result of the joint negligence, joint misconduct or joint fault of the Town and Zayo, but in such case the amount of the claim for which Zayo is entitled to indemnification shall be limited to that portion of such claim attributable to the negligence, misconduct or other fault of the Town. C. Notwithstanding any contrary provision in this agreement, in no event shall either party be liable to the other party or any third party for any indirect, special, incidental, punitive, exemplary, or consequential damages, including, without limitation, those based on loss of revenues, profits, or business opportunities, frustration of economic or business expectations, loss of capital, cost of substitute product(s), facilities, or services, or down time cost, whether or not such party had or should have had any knowledge, actual or constructive, that such damages might be incurred, and even if such party was advised of the possibility of such damages. D. Notwithstanding any provision of this Agreement to the contrary, the maximum liability of either Party if any, to the other Party or its Affiliates in connection with this Agreement shall be limited, in the aggregate, to a provable amount which shall be no greater than the amount of the License Fee that have been paid by Zayo to the Town for the Facilities at the time the Claim is made. The foregoing limitation of maximum liability shall not apply to (i) claims for indemnification under this Agreement, (ii) License Fee and other payment obligations due and owing by Zayo to the Town, or (iii) damages arising from the gross negligence or willful misconduct of a Party or its Affiliates and shall not restrict either Party’s right to proceed for injunctive relief. E. Access to the facilities and the facilities are provided as-is. any and all express and implied warranties, including, but not limited to, warranties of merchantability and fitness for any purpose or use, are expressly excluded and disclaimed by the Town. Page 5 of 16 9. Required Approvals Zayo shall obtain any government authorizations and approvals required for Zayo’s use of the Facilities. The Town shall cooperate to that end as reasonably required. 10. Insurance Zayo shall secure and maintain (and ensure its subcontractors, if any, secure and maintain) all insurance and/or bonds required by law or this Agreement including without limitation: (a) Commercial General Liability (including, but not limited to, premises-operations; explosions, collapse and underground hazard; broad form property damage; products/completed operations; contractual liability; independent contractors; personal injury) with limits of at least $2,000,000 combined single limit for each occurrence. (b) Commercial Automobile Liability insurance with limits of at least $2,000,000 combined single limit for each occurrence. Notwithstanding, if the Zayo does not own or operate any vehicles or automobiles associated with the Zayo’s business or associated with the work related to this Agreement, then Zayo must only provide satisfactory evidence that its subcontractor(s) have purchased and maintained Commercial Automobile Liability insurance in such amount. (c) Workers’ Compensation insurance as required by statute and Employer’s Liability insurance with limits of not less than $1,000,000 per occurrence. (d) Broad Form Property Damage in policy or policies of insurance such that the total available limits to all insureds will not be less than $2,000,000 Combined Single Limit for each occurrence and $2,000,000 aggregated for each annual period. (e) Both the GL and AL insurance will name the Town and the Town officers, employees, agents, and registered volunteers as additional insured under the coverage afforded. Such insurance will be primary and noncontributing with respect to any other insurance available to the Town and will include a severability of interest (cross-liability) clause. The above limits may be satisfied by a combination of underlying/primary and excess/umbrella insurance. The Commercial General Liability and Commercial Auto Liability policies must name the Town, its subsidiaries and affiliates as additional insureds. Za yo shall be entitled to rely on the insurance of its parent company and any of its affiliates, and to use self insurance or a captive insurance company to meet its insurance obligations. All policies required by this Section shall require the insurance companies endeavor to notify the Town at least thirty (30) days prior to the effective date of any cancellation of such policies. Page 6 of 16 11. Notices All notices, demands, requests or other communications given under this Agreement shall be (i) in writing, (ii) effective on the first business day following the date of receipt, and (iii) be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service or by computer email (followed by confirmation on the same or following day by overnight delivery or by mail as aforesaid) to the address set forth below or as may subsequently in writing be requested. If to Zayo: Zayo Group, LLC 1805 29th Street Suite 2050 Boulder, CO 80301 Attn: General Counsel If to the Town: Town of Los Gatos Attn: Town Engineer 41 Miles Ave Los Gatos, CA 95030 12. Default and Termination A. A default shall be deemed to have occurred under this Agreement if: 1. In the case of a failure to pay any amount when due under this Agreement, the Party fails to pay such amount within thirty (30) days after receipt of notice from the other Party that such payment is due; or 2. Zayo knowingly uses or attempts to use the conduit for any purpose other than the purposes authorized in this Agreement and does not abandon such use immediately upon notice by the Town; or 3. A Party defaults in any other material obligation hereunder and fails to cure such default within thirty (30) days after receiving written notice from the non-breaching Party specifying such breach, provided that if the breach is of a nature that is curable but that cannot be cured within thirty (30) days, a default shall not have occurred so long as the breaching Party in good faith has commenced to cure within said time period and thereafter diligently pursues such cure to completion. B. In the event of any other default hereunder, the non-defaulting Party may avail itself of one or more of the following remedies (i) pursue any remedies it may have under Page 7 of 16 applicable law or principles of equity, including specific performance and (ii) terminate this Agreement, by giving the defaulting Party written notice of termination. C. Upon termination of this Agreement, all rights of Zayo to the Facilities shall cease and the Town has the option and right to require Zayo to remove all cable installations and improvements of any kind or other property belonging to or placed in the facilities by Zayo at the termination of this Lease, however occurring, providing Town gives notice, in writing, no later than thirty (30) days prior to the termination of the Lease, of its decision to require that such cable installations be removed. The parties agree that if the Town exercises its option, then at the termination of this Lease, however occurring, Zayo shall have sixty (60) days thereafter to remove all cable installations and improvements and other property belonging to Zayo from the facilities. If Town exercises such option and Zayo fails to remove all such cable installations and improvements and other property within sixty (60) days after the termination of this Lease, Town shall have the right to have any or all such cable installation and improvements and other property removed at the expense of Zayo. If Town does not exercise its option to remove (or require the removal of) the cable installation and improvements and other property, then title to such improvements and other property shall vest in Town and Zayo shall not remove same. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement. 13. Representations and Warranties. By execution of this Agreement, each Party represents and warrants to the other: A. That the representing Party has full right and authority to enter into and perform this Agreement in accordance with the terms hereof and thereof, and that by entering into or performing under this Agreement, the representing Party is not in violation of its charter or bylaws, or any law, regulation or agreement by which it is bound or to which it is subject; B. This Agreement constitutes a legal, valid and binding obligation enforceable against either Party in accordance with its terms; C. That the execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite corporate action, that the signatories for such Party hereto are authorized to sign this Agreement, and that the joinder or consent of any other Party, including a court or trustee or referee, is not necessary to make valid and effective the execution, delivery and performance of this Agreement by such Party. 14. Waiver The failure of either party hereto to enforce any of the provisions of this Agreement, or the waiver thereof in any instance, shall not be construed as a general waiver or relinquishment on its part of any such provisions, but the same shall nevertheless be and remain in full force and effect. Page 8 of 16 15. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the state of California without reference to its choice of law principles. 16. Rules of Construction The captions and headings in this Agreement are strictly for convenience and shall not be considered as interpreting it or as amplifying or limiting any of its content. 17. Assignment Zayo shall not assign this Agreement, without the express written consent of the Town, which consent shall be at the Town’s sole discretion. Nor shall Zayo assign, transfer or sublease, directly or indirectly, on an integrated or unintegrated basis, in whole or in part, the Facilities or its right to use the Facilities as granted herein without the express written consent of the Town, which consent shall be at the Town’s sole discretion. Notwithstanding the foregoing, Zayo need not obtain consent of the Town to assign this Agreement (a) to a parent, affiliate or subsidiary of Zayo, or (b) to any entity formed by or surviving a merger or consolidation of Zayo and any other entity, or (c) to any entity that acquires all or substantially all of the assets or shares of Zayo, but shall give written notice to the Town of any such assignment no later than thirty (30) days after such an assignment takes place. If, in connection with any assignment of this Agreement by Zayo, Zayo causes such assignee to contemporaneously therewith agree in writing to perform all of Zayo’s obligations under this Agreement which arise after the effective date of assignment or transfer, then Zayo shall be released from liability hereunder. 18. Entire Agreement This Agreement, including the Exhibits, which are hereby incorporated herein as an integral part of this Agreement, constitutes the entire agreement between the parties hereto with respect to the subject matter and geographical locations referred to and supersedes any and all prior or contemporaneous agreements whether written or oral. This Agreement cannot be modified except in writing signed by the party against whom enforcement of the modification is sought. 19. Relationship of the Parties The relationship between Zayo and the Town shall not be that of partners, agents or joint venturers for one another and nothing contained in this Agreement shall be deemed to constitute a partnership, agency, or joint venture agreement between them. Zayo and the Town shall report and pay, or cause to be reported and paid, in a timely manner (i) all wages, salary, health and welfare benefits, social security, unemployment and workers’ compensation to which its employees and agents are entitled and (ii) all applicable federal, state and local employment taxes required to be withheld or paid with respect to all compensation paid to its employees and agents. The Town may not use the name, logo, or emblem of Zayo, or any of its schools or affiliates in any brochure, publication, or advertisement, without first obtaining Zayo’s prior Page 9 of 16 written consent in each instance. The Town acknowledges that immediate, extensive, and irreparable damage will result if this provision is not specifically enforced. Therefore, in addition to, and not in limitation of, any other remedy available to Zayo, Zayo may enforce the foregoing provision in judicial proceedings by a decree of specific performance and appropriate injunctive relief as may be applied for and granted in connection with such enforcement. 20. Force Majeure Neither party shall be deemed to be in breach of this Agreement during any period of time in which it is unable to perform its obligations as a result of the occurrence of an event of force majeure, which shall include, but not be limited to, acts of God, act or order of government, denial or access to or loss of utility service or facilities or any other circumstance beyond the reasonable control and not caused by the fault or negligence of the party claiming force majeure. The required time for performance hereunder by the party claiming force majeure shall be extended to account for any such force majeure event and the party claiming force majeure shall use diligence to resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable. 21. Miscellaneous If any provision of this Agreement is found contrary to law or unenforceable by any court, the remaining provisions shall be severable and enforceable in accordance with their terms. Each Party shall keep the terms and conditions of this Agreement confidential and shall not release or disclose such terms to any other third party without the prior written permission of the other Party. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. Town of Los Gatos Zayo Group, LLC By: By: Name: Name: Title: Title: Date: Date: Page 10 of 16 Exhibit A Facilities Map Start Point – SW Corner Intersection of Lark Ave & Los Gatos BLVD Page 11 of 16 End Point- SE Corner of Dittos Ln and E Main St Page 12 of 16 Exhibit B Access Points The Zayo will sweep conduit to the following Zayo provided manholes/handholes and clamp the conduit at the connection point between the Town conduit and the sweep conduit:  Location: Lark Ave & HWY 17 at the VZW MMHH  117407 Los Gatos & Shannon  Corner of Los Gatos Blvd & E. Main St Zayo shall submit an encroachment permit for the above work and provide as-built plans to the Town. . Page 13 of 16 Exhibit C Specifications Should the Town need to replace the conduit due to failure, the conduit shall be 3”HDPE with a minimum of SDR-11. PVC conduit shall be minimum Schedule 80 wall thickness. Steel conduit will not be permitted.. If installed, Microduct shall be HDPE 12mm OD by 10 mm ID with microribs inside. Sufficient space will be provided for Zayo to pull a 288 count Cable. Any exposed steel brackets, or hardware shall be hot-dipped galvanized after fabrication. Should the Town replace failed Manholes, the Manholes shall have a minimum H-20 loading rating. Dimensions will typically be 4 by 8 by 6 feet or 4 by 4 by 4 feet (W by L by H). Should the Town replace failed Handholes, the Handholes shall have a minimum load rating of H-20. Dimensions will typically be 17 by 30 by 30 inches (W by L by H) or 30 by 48 by 36 inches (W by L by H), or sufficient in size to hold cable slack for laterals. Typically the minimum cover required in the placement of conduit may vary between thirty (30”) and forty-two inches (42”) along the run line depending on local conditions. Additional depth will be required in ditches, forty-eight inches (48”) and across streams, washes, culvert outfalls, and other waterways, sixty inches (60”). Page 14 of 16 Exhibit D Repair & Maintenance 1. Repair & Maintenance: The Town shall keep the Facilities maintained at least to the level of repair as existed on the Effective Date of this Agreement, reasonable wear and tear excepted. The Town will be available to perform conduit maintenance and repair around the clock, on a twenty-four (24) hour per day, seven (7) days per week basis. The Town shall assign the Town’s Traffic Signal and Maintenance Contractor to oversee and coordinate day-to- day maintenance activities of the Facility maintenance. The Town contractor (“Contractor”) shall be equipped to receive Zayo calls twenty-four (24) hours per day, seven (7) days per week, three-hundred-sixty-five (365) days per year. The Contractor shall be responsible for ensuring that preventative, corrective and emergency maintenance activities are carried out in a timely fashion and that maintenance activ ities are coordinated with Zayo. The Town’s Contractor shall provide qualified personnel, office services, vehicles, and all tools and materials required for the safe and proper performance of maintenance procedures. Specifically, the Town’s Contractor shall retain and maintain all appropriate equipment necessary for routine and preventative maintenance as well as corrective maintenance and emergency restoration. In the event of a Facilities failure, Zayo will notify the Town’s Contractor at (844) 544-4888. On an annual basis, Zayo shall confirm with the Town the appropriate contact information for the Town’s Contractor. The Town will allow Zayo or its contractors to be present for Zayo to perform required access and restoration of its Cable. If Zayo reasonably determines there exists an emergency requiring Zayo to immediately respond for repair and restoration, Zayo may immediately access the applicable manhole(s), shall notify the Town as soon as reasonably practical of such access, and shall provide updates to the Town at reasonable intervals until the emergency event is resolved. Zayo or its contractors shall not perform any maintenance or repair work without proper traffic control in place in accordance with the Town’s standard traffic control requirements. 2. Nonstandard Maintenance: Any Zayo request for nonstandard maintenance shall be charged to Zayo, at the Town’s rate schedule at time of occurrence. The Town and Zayo shall mutually agree to such costs prior to the initiation of the relevant work. Page 15 of 16 Exhibit E Self-Help Rights Solely for the Self-Help Rights, the Town grants to Zayo the right to access the the Town System for the purpose of repairing the Facilities. 1. Zayo shall make reasonable efforts to provide written notice to the Town at least three (3) business days prior to Zayo’s invoking Zayo’s Self-Help Rights based on Section1 above. 2. The Town shall have the right to supervise and control all activities concerning access to the Facilities or maintenance. 3. When Zayo is performing work within the Facilities, Zayo agrees: (a) That any contractor, personnel or representative of Zayo entering the manholes or handholes on Zayo’s behalf shall not step on, connect anything to, or otherwise come into contact with the Town’s, or any other party’s, cables or other equipment located in the manholes or handholes. Additionally, Zayo may not, nor permit others to, rearrange, disconnect, remove, attempt to repair or otherwise tamper with any of the facilities or equipment installed by the Town or any other parties; (b) To perform or cause to be performed all work contemplated hereunder in a safe manner consistent with construction and maintenance best practices; (c) To comply with all lawful federal, state and municipal laws, statutes, codes, orders, rules and regulations applicable to the manholes and handholes and the Town’s stand traffic control procedures; (d) To observe all reasonable rules and regulations set forth in writing by the Town for the use of the manholes and handholes, as amended from time to time; (e) To perform or cause to be performed all work contemplated hereunder in such a way as to minimize interference with the operation and use of the Town’s or any other Party’s facilities in the manholes or handholes; (f) To obtain, prior to the commencement of any work, all necessary federal, state and/or municipal permits, licenses and approvals; (g) Not to store any excess cable within the Manholes, (h) To be financially liable for the cost of repair or replacement of any conduits, cables, equipment or any other portion of the manholes, handholes or the property of third parties that is damaged by Zayo as a result of Zayo performing work in or around the manholes and handholes. Page 16 of 16 4. The above grant of Self-Help Rights expressly does not include the right of Zayo to: (a) The transfer the Town’s Underlying Rights; (b) Lease, sublease, IRU, license, sublicense, resell, assign, transfer or pledge any of the the Facilities. (c) Encumber in any manner the Facilities. Zayo shall not, directly or indirectly, create or impose any lien on the Facilties or the property of any other Party in the the Facilities. 5. For a Self-Help Rights event initiated by the Town no longer performing maintenance of the Facilities, the terms and conditions of this Exhibit E shall continue until such time as the Town has noticed Zayo that the Town intends on providing further maintenance responsibilities, at which time the Self-Help Rights event shall terminate.