NON-EXCLUSIVE LICENSE AGREEMENT

Transcription

1 APN: None Street Right of Way When recorded, mail to: Property Management City of Reno P.O. Box 1900 Reno, Nevada NON-EXCLUSIVE LICENSE AGREEMENT THIS NON-EXCLUSIVE LICENSE AGREEMENT ("License") is issued this _ day of -----, 2013 ("Effective Date"), to Zayo Group, LLC, a Delaware limited liability company ("Zayo"), and City of Reno, a municipal corporation ("City"), with reference to the following: RECITALS WHEREAS, City is the owner in fee or easement of certain property known as West 2 nd A venue, Keystone A venue, Riverside Drive, Booth Street and California A venue in Reno, Nevada which is subject to a street easement for travel, related street activities and utilities which the City holds in trust for the public or located on other City owned property or improvements ("Property"). WHEREAS, Zayo desires to install 680 linear feet of new fiber optic cable, conduits and related infrastructure ("Project") in the Property as described and depicted in Attachment "A"; and WHEREAS, the City Council may permit the use of City right-of-way and City owned property or improvements for the installation of fiber optic infrastructure; and WHEREAS, City is agreeable to the installation of the Project on City Property, subject to the terms and conditions set forth below. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City gives permission to Zayo to enter upon Property as follows: 1. License. Subject to the right of the City to hold Property, the non-exclusive nature, and Zayo's obligations to comply with each and every term, provision and condition contained herein, the City gives Zayo a License that allows the installation and maintenance of the Project. All work shall be done in a workmanlike manner and consistent with the existing and future Reno Municipal Code provisions. 1

2 2. Scope of License. No legal title, leasehold interest, easement, easement by estoppel or implication, or other interest in the Propeliy is created or vested in Zayo by the issuance of this License. Zayo hereby waives any and all claims, present or future, which would be inconsistent with the provisions of this section. 3. Payment and Method of Payment. Zayo will pay City an annual amount for each year, or any portion thereof, in the amount of eighty one dollars and 60/100 ($81.60) for the Project. The annual amount shall increase each year in an amount equal to three percent (3%) of the annual amount. Payment shall be made no later than the first day of March by remitting in person or mail to City of Reno, Attn: Central Cashiering, P.O. Box 1900, Reno, Nevada If payment is not timely made, a 10% annual penalty, compounded monthly, shall be imposed. 4. Assertion of Rights. This License and rights conveyed under this License are subordinate to the City's rights and abilities to determine, in its sole discretion, what is in the best interest of the City and public with respect to the use of the Property and, as such, all or a portion of the rights conveyed by this License may be modified or revoked by the City in accordance with Sections 7 and Compliance with Law. Except as authorized by this License, Zayo shall not use the Property which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. 6. Liens. Zayo shall pay in full all persons who perform labor or provide materials for work on the infrastructure within the Property. Zayo shall keep the Property free from any liens arising out of any work performed, materials, furnished, or obligations incurred by Zayo. Zayo shall indemnify and hold harmless City from and against any and all liens, claims, demands, costs, or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. This indemnification survives the revocation or termination of the License until such time as the statute of limitations expires on all known and unknown claims. City reserves the right to participate, but not the obligation, at its own expense, in the defense of any claim. 7. Term. The License shall be effective as of the Effective Date set forth above, and shall terminate on the earlier of any of the following dates: (a) The City revokes the License upon notice delivered to the Zayo, in accordance with Section 19 at least 180 days preceding the termination date set forth in the notice, or (b) The City, in its sole discretion, determines that Zayo has failed to comply with the terms of this License, or (c) Zayo tenninates this License upon a notice delivered to the City in accordance with Section 18 at least 30 days preceding the termination date in the notice, or (d) A court of competent jurisdiction detennines that the Project is a violation of any federal, state, or local law. 2

3 8. Cost of Relocation of Private or City Infrastructure. Zayo shall remove or relocate said fiber optic infrastructure at their sole cost and expense if City determines that said fiber optic infrastructure interferes with City's rights in or use of the License areas. Zayo shall return the License areas to the original condition if said fiber optic infrastructure is relocated or removed. Zayo's installation of said fiber optic infrastructure shall not conflict with existing utilities located in the License areas. 9. Return of Property to Original Condition upon Termination or Revocation. If this License is revoked or terminated, Zayo shall, before the effective date of termination as specified in the notice, remove all private infrastructure owned by Zayo and restore all public and private property to as good or better condition unless otherwise specifically agreed to in writing by the Parties. If Zayo does not claim and remove the fiber optic infrastructure within 180 days after notice, the fiber optic infrastructure shall become City property. 10. Waiver and Indemnification. Zayo waives all claims against the City for damages to all personal property in, on or about the Property and for injuries to persons in or about the Property, from any cause arising from the acts authorized by this License; except to the extent caused by City's negligence or willful misconduct. Further, Zayo agree to defend, indemnify, and hold harmless the City, its officers and employees, from any and all claims, causes of action or liability arising directly from (a) Zayo's use of the Property, and/or (b) the negligence or wrongful misconduct of Zayo during the performance of this License including, but not limited to, the duty to constructing, operating, adding to, modifying, maintaining and removing said Project. This indemnification includes liability for third party costs and attorney's fees and survives the revocation or termination of the License until such time as the statutes of limitation expire on all known or unknown claims. The City reserves the right, but not the obligation to participate, at its own expense, in the defense of any claim. 11. Hazardous substances. Zayo shall obey all Environmental Laws and not to suffer or pennit the release of any significant amount of any Hazardous Substance on the Premises, and to remove or clean up any such release at Zayo's expense. Zayo agrees not to cause, suffer or pennit the use or storage of any Hazardous Substance on the Premises. "Environmental Laws" means any federal or state statute relating to the protection of health, safety and the indoor or outdoor enviromnent; the conservation, management or use of natural resources and wildlife; the protection or use of surface water or groundwater; or the management, manufacture, possession, presence, use generation, transportation, treatment of hazardous substances or materials, including, but not limited to the laws identified in Chapter 445A of the NRS and Chapter 445A of the NAC. "Hazardous Waste" has the meaning set out in NRS 445A.363 and NAC 445A as now existing or hereafter amended, and includes, without limitation, asbestos, polychlorinated biphenyls and petroleum. "Release" has the meaning set out in NAC 445A "Hazardous Substance" has the meaning set out in NAC 445A Damages. Zayo shall be responsible for any damage to personal property or improvements suffered by City by reason of Zayo constructing; altering, maintaining, inspecting, repairing, reconstructing and operating said fiber optic infrastructure. 3

4 13. Insurance. Zayo shall maintain for the period of the statutes of limitation after termination of this License, comprehensive general liability insurance for limits of not less than two million dollars ($2,000,000) for bodily injury and property damage, per occurrence. As evidence of liability insurance coverage, the City will accept celiification of insurance issued by an authorized representative of the insurance carrier. Each certification shall contain a 30-day written notice of cancellation to the certificate holder and shall name the City as an additional insured. The limits of liability insurance coverage do not limit Zayo's obligations. 14. Limited Liability. The City does not waive and intends to asseli any and all defenses, including, but not limited to, those set forth in Nevada Revised Statutes, Chapter Integration. This License represents the entire understanding of the Parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This License may not be modified or altered except by written amendment thereto signed by both Paliies. 16. Invalid provisions. If any provision of this License is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be severable unless the severance of the illegal, invalid, or unenforceable provision destroys the remaining provisions of the License, and in such case, the License shall be deemed terminated and revoked without notice. If the illegal, invalid or unenforceable provision is severable without harm to the remaining provisions, the remaining provisions shall not be affected by the illegal, invalid, or unenforceable provision or its severance from this License. 17. Headings. Headings used in this License are used for reference purposes only and do not constitute substantive matter to be considered in construing the tenns of this License. 18. Notices. Any and all notices, requests, demands, or other communications to or upon a Pmiy in connection with this License shall be in writing and shall be personally delivered or certified mail postage prepaid, to the respective designated representative and at the following address or an address for each Party as designated from time to time: CITY: City of Reno Attn.: Property Manager, P.O. Box 1900 Reno, NV Facsimile: Zayo Group, LLC. Attn.: Gregg Strumberger, General Counsel (ZFTI) of Zayo Group, LLC th Street Boulder, CO Revocation. The City has the right, but not the obligation to revoke the license as follows: 4

5 (a) The failure of Zayo to obtain required permits, regulatory approvals, rights-of-way agreements with other govemmental entities which allow the Project to proceed; and (b) A breach by Zayo of the provisions of this Agreement. 20. Subordination. This License does not take precedence over the rights of any existing utilities and is subordinate to any and all existing utilities. 21. Interpretation. This License shall not be construed for or against a party by virtue of which party drafted the terms of the License. 22. Governing Law. This License shall be construed and interpreted under the laws of the State of Nevada with venue in the Second Judicial District Court in and for Washoe County, State of Nevada. 23. Authority. The parties represent that they have full authority to sign this License. 24. No Third-Party Beneficiaries. None of the provisions of the License are intended to make any person or entity a third-party beneficiary. 25. Assignment. This License may not be assigned without written authorization of the City of Reno; except for an assignment to Zayo's affiliates. Such authorization not to be umeasonably withheld. }I\ Dated this,)0 day of_",,-,)'-i" i-l')lj,i-i"-,? i,-,'-1u.i-"-')",-o-,-r, I Zayo Group, LLC By: ~~~~ GreggStrumberger, Generat~Counsel 5

6 ACKNOWLEDGEMENT STATE OF~N~~A ) NlCOlELMATIHEWS I, 1 NOTARY PUBLIC (>r('dlo )ss STATEOFCOLORAOO COUNTY OF'W~ ) NOTARY Il0U I ri Of MY COMMISSION EXPIRES OCTOBER 29, 2016 This instrument was acknowledged before me on this,)ep' day of 'JRflt (lr-i hpj 2013, by Gregg Strumberger, General Counsel (ZFTI) ofzayo Group, LLC ~J/'\._~: Notary Public C c{jl ci. \,-./j;1_~~--- '--..J CITY OF RENO ATTEST: By: Robert A. Cashell, Sr., Mayor Reno City Clerk ACKNOWLEDGEMENT - NRS STATE OF NEVADA ) )ss COUNTY OF WASHOE ) This instrument was acknowledged before me on the day of, 2013, by Robert A. Cashell, Sr. as Mayor, of the City of Reno, a municipal corporation. APPROVED AS TO FORM: Notary Public Deputy City Attorney, Reno 6

7 ATTACHMENT "A" - LEGAL DESCRIPTION PURPOSE: FOR THE PURPOSE OF INSTALLING A FIBER OPTIC LINE BEING LOCATED IN THE SOUTHEAST QUARTER (SE 1/4) OF SECTION 11, TOWNSHIP 19 NORTH, RANGE 19 EAST, MoO.M., CITY OF RENO, COUNTY OF WASHOE, NEVADA, MORE PARTICULARLY DESCRIBED BY CENTERLINE AS FOLLOWS; COMMENCING AT A FOUND 1.5 INCH BRASS COUNTY MONUMENT S61SM01078 STAMPED PLS 16841, THENCE NORTH 53 06'18" EAST, A DISTANCE OF FEET TO A POINT WITHIN THE RIGHT-OF-WAY OF SAID SOUTH VIRGINIA STREET AND BEING THE POINT OF BEGINNING; THENCE SOUTH 76 13'08" WEST, A DISTANCE OF 5.12 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTH, HAVING A RADIUS OF 2.00 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 90 00'00", A DISTANCE OF 3.14 FEET; THENCE NORTH 13 46'52" WEST, A DISTANCE OF FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 09 25'13", A DISTANCE OF FEET; THENCE NORTH 45 42'42" WEST, A DISTANCE OF FEET; THENCE NORTH 23 12'41" WEST, A DISTANCE OF FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 2.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 90 20'10", A DISTANCE OF 3.15 FEET; THENCE NORTH 6r07'29" EAST, A DISTANCE OF FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 21 33'58", A DISTANCE OF FEET; THENCE NORTH 45 33'32"EAST, A DISTANCE OF FEET; THENCE SOUTH 89 57'14"EAST, A DISTANCE OF FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTH, HAVING A RADIUS OF FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 23 11'49", A DISTANCE OF FEET TO THE POINT OF TERMINATION, AS SHOWN ON THE EXHIBIT ATTACHED HERETO AND MADE A PART HEREOF. SAID CENTERLINE HAS A DISTANCE OF FEET. BASIS OF BEARING: THE NEVADA COORDINATE SYSTEM OF 1983, WEST ZONE. DISTANCES AND COORDINATES SHOWN ARE GROUND VALUES WITH A GRID TO GROUND SCALE FACTOR OF CRAIG D. WILSON NEVADA REGISTRATION NO JACOBS ENGINEERING 985 DAMONTE RANCH PARKWAY RENO, NEVADA CL-l

8 r \ \ \ \ ICE RINK PARCEL A \ \ (CITY OF RENO) \ N 66 17' 15" E \ \ 1~4.52 N 67 07'29" ' \ C3 '. " \~? \,f'\ /' ~~ \(' v.,).. ';:::\ \~~~ ";~ \~0-0.f. \ ~...<\~ \~~~ \ 00:? \ ~1:- ~ \\ Y', " \ \,/--/ \\ /.//\'/ \.-. CPL., 0-::;0 O ~9 0~\ ~Y, FOUND NAIL AND TAG PLS 5270 \J"'f...x,x, \~ LINE L1 L2 \l- \l-~~ 45 42' 42" W ' 60 25'37" E SCALE IN FEET 0' 8 SE 1/4 SECTION 11 TOWNSHIP 19 NORTH RANGE 19 EAST, M.D.M. BEARING S 76'13'08" W N 13'46'52" W DISTANCE 5.12' 32.25' b ~\ POINT OF :\~'C-'C-\ ~ _--- ~ f.\ \ BEGI N N I N \ii\'-'- ~ O~ ~~--- ~ '.:.'1\, ~\G~~--- ~ \ ~ C1 / CURVE ARC RADIUS DELTA ANGLE TAN /\" C1 3,14' 2,00' 90'00'00" 2,00' --;:-/ \---- C2 69,16' 420,63' 9'25' 13" 34,66' '"'~'>~~' \ C3 3.15' 2.00' 90'20'10" 2.01 ' POINT OF ~ " f;' ~'?'\~\ \ C ' ' 21'33'58" 22.85' COMMENCEMENT ~../ < \ C ' ' 23'11'49" 30.79' ~ COUNTY MONUMENT #S61 SMO INCH BRASS CAP STAMPED PLS JOB#W4X56200_6200-ZAYOROW License.dw.JACOBS" 985 DAMONTE RANCH PARKWAY, SUITE 100 RENO, NV OFFICE: FAX: ATTACHMENT ''A'' ZAYO GROUP LLC CENTERLINE DESCRIPTION ZAYO-2