CITY OF ENID RIGHT-OF-WAY AGREEMENT

CITY OF ENID RIGHT-OF-WAY AGREEMENT This Right-of-Way Agreement ( Agreement ) is entered into by and between the City of Enid, an Oklahoma Municipal Corporation, hereinafter referred to as City, and hereinafter referred to as Owner. WHEREAS, the Owner desires to lay and maintain a in, under, and across City owned right-of-way; and, WHEREAS, the City has determined that such use would not impair or impede the City s rights in and use of such right-of-way; and, WHEREAS, the City desires to allow such use. WHEREAS, the parties hereto desire to outlines the terms of such use. NOW THEREFORE, in consideration of the mutual promises, covenants and conditions herein stated and in consideration of the mutual benefits which will accrue to each of the parties hereto, the sufficiency of which are hereby acknowledged by the parties, it is agreed by and between the parties as follows: 1. Authorization, Limitation and Subordination of Use: A. The Owner is hereby authorized to lay, maintain and operate a within City owned right-of-way per attached plans and exhibits. This will require the boring of (street names). B. The Owner s use of City owned right-of-way is subject and subordinate to the prior and continuing right and obligation of the City to use and maintain its entire right-of-way and property, including the right and power of the City to construct, maintain, repair, renew, use, operate, change, modify or relocate any railroad tracks, signals, communication, fiber optics or other wire lines, pipelines and any other facility upon, along, across or under any or all parts of the right-of-way, all or any of which may be freely done at any time or times by the City without liability to the Owner or to any other party for compensation or damages. C. The Owner s use of City owned right-of-way is also subject to all outstanding prior rights, including those in favor of owners and lessees of the City s right-ofway or property, and the right of the City to renew and extend the same, and this grant of use to Owner is made without covenant of title or for quiet enjoyment. D. The Owner s use is also subject to any and all claims, if any, made by adjacent property owners for compensation for the additional burden, if any, placed on adjacent and abutting property by this Agreement.

2. Construction, Maintenance and Operation: A. The shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Owner in strict conformity with the City Standard Specifications for right-of-way crossings, and all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified and approved by the City Engineer. In the event such specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the specification shall apply. Owner further agrees to bury said a minimum of four (4) feet below the bar ditch surface and in such a manner as to pass inspection by the City Engineer or his authorized agent. B. All work performed on public right-of-way of the City in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the shall be done under the supervision and to the satisfaction of the City. C. Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the where it passes underneath the roadbed of the City, the Owner shall submit to the City, plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the City operations, and shall not proceed with the work until such plans have been approved by the Engineer of the City, and then only under the supervision of his authorized representative. The City shall have the right, if it so elects, to provide such support as it may deem necessary for the use and safety of its right-of-way, the time of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the, and, in the event the City provides such support, the Owner shall pay to the City, within fifteen (15) days after bills shall have been rendered therefore, all expense incurred by the City in connection therewith, which expense shall include all assignable costs. D. The Owner shall keep and maintain the soil over the thoroughly compacted and the grade even with the adjacent surface of the ground. 3. Notice of Commencement of Work. If an emergency should arise which requires immediate attention, the Owner shall provide as much notice as practicable to City before commencing any work. In all other situations, the Owner shall notify the City at least ten (10) days (or such other time as the City may allow) in advance of the commencement of any work upon property of the City in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the. All such work shall be prosecuted diligently to completion. G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 2 of 9

4. Owner to Bear Entire Expense. The Owner shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the, including any and all expense which may be incurred by the City in connection therewith for supervision, inspection, flagging, or otherwise. 5. Relocation or Removal of : A. The use herein allowed is subject to the needs and requirements of the City in the operation of its right-of-way and in the improvement and use of its property. The Owner shall, at its sole expense, move all or any portion of the to such new location as the City may designate, whenever in the furtherance of its needs and requirement, the City shall find such action necessary or desirable. B. All the terms, conditions and stipulations herein expressed with reference to the on right-of-way of the City in the location hereinbefore described shall, so far as the remains on the property, apply to the as modified, changed or relocated within the contemplation of this section 6. No Interference with City s Operation. The and all parts thereof within and outside of the limits of the property of the City shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the right-of-way and facilities of the City, and nothing shall be done or suffered to be done by the Owner at any time that would in any manner impair the safety thereof. 7. Protection of Fiber Optic Cable Systems: A. Fiber optic cable systems may be buried on the City right-of-way. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users, resulting in business interruption and loss of revenue and profits. Owner shall determine if fiber optic cable is buried anywhere on the City right-of-way to be used by the Owner. If fiber optic cable is buried in the City s right-of-way, Owner shall telephone the telecommunication company involved, arrange for a cable locator and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work in or on the City s right-of-way. B. In addition to the liability terms elsewhere in this Agreement, the Owner shall indemnify and hold the City harmless against and from all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of the City, its contractor, agents and/or employees, that causes or in any way or degree contributes to: G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 3 of 9

1) Any damage to or destruction of any telecommunications system by the Owner, and/or its contractor, agents and/or employees, on City right-ofway; and/or, 2) Any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on City right-of-way; and/or 3) Any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecommunication company. 8. Claims and Liens for Labor and Material; Taxes: A. The Owner shall fully pay for all materials joined or affixed to and labor performed upon the right-of-way of the City in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Owner. The Owner shall indemnify and hold harmless the City against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. B. The Owner shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the pipeline, to prevent the same from becoming a charge or lien upon property of the Owner, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the Owner's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Owner but shall be included in the assessment of the property of the City, then the Owner shall pay to the City an equitable proportion of such taxes determined by the value of the Owner's property upon property of the City as compared with the entire value of such property. 9. Restoration of City Property. In the event the City authorizes the Owner to take down any fence of the City or in any manner move or disturb any of the other property of the City in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the, then in that event the Owner shall, as soon as possible and at the Owner s sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Owner shall indemnify G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 4 of 9

and hold harmless the City, its officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the City. 10. Indemnity: A. As used in this section, "City" includes all right-of-way, property, and franchises at or near the location of the Owner's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: 1) Injury to or death of persons whomsoever (including the City's officers, agents, and employees, the Owner's officers, agents, and employees, as well as any other person); and 2) Damage to or loss or destruction of property whatsoever (including City's property, damage to the roadbed, tracks, equipment, or other property of the City, or property in its care or custody). B. As a major inducement and in consideration of the permit and permission herein granted, the Owner agrees to indemnify and hold harmless the City from any loss which is due to or arises from: 1) The prosecution of any work contemplated by this Agreement, including, but not limited to, the installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the or any part thereof; and/or, 2) The presence, operation, use of the or contents escaping therefrom, except to the extent the loss is caused by the sole and direct negligence of the City. 11. Removal of Upon Termination of Agreement. Prior to any termination of this Agreement, the Owner shall, at Owner's sole expense, remove the from those portions of the right-of-way or property of the City and shall restore, to the satisfaction of the City, such portions of such property to as good a condition as they were in at the time of the construction of the. If the Owner fails to do the foregoing, the City may do such work of removal and restoration at the cost and expense of the Owner. The City may, at its option, upon such termination, at the entire cost and expense of the Owner, remove the portions of the located underneath its roadbed and or right-of-way and restore such right-of-way to as good a condition as it was in at the time of the construction of the G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 5 of 9

, or it may permit the Owner to do such work of removal and restoration under the supervision of the City. In the event of the removal by the City of the property of the Owner and of the restoration of the right-of-way and property as herein provided, the City shall in no manner be liable to the Owner for any damage sustained by the Owner for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right of action for damages, or otherwise, that the City may have against the Owner. 12. Waiver of Breach. The waiver by the City of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Owner shall in no way impair the right of the City to avail itself of any subsequent breach thereof. 13. Termination: A. If the Owner does not use the right-of-way or for one (1) year, or if the Owner continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the City to the Owner specifying such default, the City may, at its option, forthwith immediately terminate this Agreement by written notice. B. In addition to the provisions of subparagraph (A) above, this Agreement may be terminated by written notice given by either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon which such notice shall be given. C. Notice of default and notice of termination may be served personally upon the Owner or by mailing to the last known address of the Owner. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. 14. Assignment. The Owner shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the City, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the City, shall terminate this Agreement. 15. Binding Effect. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 6 of 9

16. (Blank) 17. Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to confer upon any person other than the parties hereto and their respective assigns, any rights or remedies under or by reason of this Agreement, except as provided expressly herein. 18. Notices. Whenever a notice is required to be given in writing and under the terms of this Agreement, or any extension hereunder, such notice shall either be hand-delivered or mailed by certified mail, return receipt requested, and directed to the respective parties at the following addresses: If to the City: City of Enid P.O. Box 1768 Enid, OK 73702 If to Owner: or at such other address as a party shall specify by like notice to the other party hereto. Notices shall be effective on the date of delivery. 19. Severability. If any one or more of the sections, sentences, clauses, or parts be held invalid for any reason, the invalidity of such section, sentence, clause, or part shall not affect nor prejudice the applicability and validity of any other provision of this Agreement. 20. Employment Verification. The City of Enid requires all contractors to verify that employees working pursuant to contracts with the City of Enid are legally authorized to work in the United States. Owner agrees to verify and document the employment eligibility of all employees who may perform services pursuant to this Agreement. Owner also agrees to require all subcontractors who perform services under this Agreement to verify and document the employment eligibility of all employees who may perform services pursuant to this Agreement. 21. Non-Discrimination. The parties covenant (1) that no person shall be excluded from participation in, denied the benefit of, or otherwise subjected to discrimination under the terms of this Agreement on the ground of race, color, age, sex, handicap, or national origin; and (2) that, in carrying out the terms and conditions of this Agreement, no person shall be subjected to discrimination on the grounds of race, color, age, sex, handicap, or national origin. 22. Compliance with Laws. Owner shall conduct its business under the terms of this Agreement in such a manner that it does not violate Federal, State, or local laws or regulations applicable to the conduct of its operations under the terms of this Agreement. G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 7 of 9

23. Interpretation of Law. This Agreement shall be deemed to have been made in the State of Oklahoma and shall be construed and interpreted in accordance with the laws of the State of Oklahoma. 24. Choice of Law. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the parties in the courts of the State of Oklahoma, County of Garfield, or, if it has or can acquire jurisdiction, in the United States District Court for the Western District of Oklahoma, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. 25. Governmental Tort Claims Act. By entering into this Agreement, City and its employees, as defined by the Governmental Tort Claims Act, 51 Okla. Stat. 151 et seq., do not waive sovereign immunity, any defenses, or any limitations of liability as may be provided for by law. No provision of this Agreement modifies and/or waives any provision of the Local Government Tort Claims Act. 26. Construction. Captions and other headings contained in this Agreement are for reference and identification purposes only and do not alter, modify, amend, limit, or restrict the contractual obligations of the parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year last written below. Date: The City of Enid, an Oklahoma Municipal Corporation Mayor (SEAL) ATTEST: City Clerk G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 8 of 9

Approved as to form: City Attorney Date: Owner Signature Printed Name Title ATTEST: Secretary and/or Witness G:\Contracts\Engineering\ROW Crossing Agreement.docx Page 9 of 9