TEMPORARY CONSTRUCTION AGREEMENT KNOW ALL MEN BY THESE PRESENTS that the undersigned, City of Cheyenne, a Municipal Corporation, hereinafter referred to as Grantor, in consideration of the sum of Ten Dollars and other good and valuable consideration, the receipt of which is hereby acknowledged, and the further consideration of performance of the covenants and agreements by ZAYO Group LLC, a Delaware Limited Liability Company, 400 Centennial Pkwy., Suite 200, Louisville CO 80027, by and through its successors and assigns, hereinafter referred to as Grantee, as hereinafter set out and expressed, hereby grants, bargains, sells and conveys to the Grantee, a non-exclusive TEMPORARY CONSTRUCTION EASEMENT to lay, construct, maintain, operate, remove, and replace a fiber optic line or lines, and appurtenances thereto, including any necessary manholes, for transportation of data on, over, through and across certain lands, situate in Laramie County, State of Wyoming, described as follows: A sixty (60) foot wide TEMPORARY CONSTRUCTION EASEMENT situate in the NE1/4 of Section 23, Township 13 North, Range 68 West, 6 th PM. Laramie County, Wyoming more particularly described as follows: Beginning at the point of intersection of the southerly right of way line of the Union Pacific Railroad and the centerline of the Belvoir Ranch Road (being the westerly line of this easement), and located on an Azimuth of 203 22 27 a distance of 795.11 feet from the northeasterly corner of said Section 23; Thence on and along said centerline on an Azimuth of 198 17 13 a distance of 635.59 feet to a point on the south side of an east-west dirt road intersection; Thence continuing on an Azimuth of 198 17 13 a distance of 355.90 feet to the point of intersection with the northerly right of way line of a second Union Pacific Railroad line, being the point of terminus for this easement. Said temporary construction easement contains 1.4 acres more or less. The term for the temporary construction easement granted shall commence with the execution of this agreement for the ZAYO project and terminate upon completion of the project and an as built survey and permanent easement grant to be completed by the City Engineer s Office but, in any event, no later than September 30, 2013. As a further consideration of this agreement, the Grantee herein agrees as follows: 1. That Grantee will bury all fiber optics laid upon said land to a sufficient depth so as not to interfere with the cultivation of the soil; 2. That Grantee will replace or rebuild any and all unusual or excessive damage to the easement which shall be occasioned by the operation and maintenance of said fiber optics; and appurtenances under and through the above-described premises. 3. Grantee, following the installation, maintenance or removal of the Facilities, shall restore the surface of the Easement and any constructed improvements to, as near as practicable, Page 1 of 6
the condition of the surface and the constructed improvements prior to said installation or maintenance. 4. Grantee assumes the risk of any liability arising from its negligent and/or willful acts, errors or omissions, including those of its employees and/or subcontractors, in the performance of this Agreement. 5. If Grantor requires relocation of the Facilities, Grantee agrees to relocate the Facilities at its own expense provided that Grantor provides a suitable alternate location for such Facilities and grants the necessary easement rights at the new location upon the same terms and conditions herein provided. 6. In consideration for this agreement, the Grantee shall pay the Grantor $0.04 per square foot for temporary construction easement and $0.10 per square foot for permanent easement. Payment shall be due within 30 days of the execution of this agreement. 7. Insurance Requirements. a. The Company shall file a Certificate of Insurance with the City of Cheyenne verifying each type of insurance coverage listed below. b. The Certificate of Insurance shall be submitted to and approved by the City of Cheyenne prior to commencement of performance under this bid and the subsequent contract. c. Type of Coverage Minimum Limits Commercial General Liability (Including Products and Completed Operations; Explosion, Collapse and Underground if applicable to the hazards of a specific project. ) Business Automobile Liability $1,000,000 per Occurrence $2,000,000 Aggregate $1,000,000 CSL Workers' Compensation OR Employer's Liability Statutory $500,000 Each Accident $500,000 Each Disease- Policy Limit $500,000 Disease/Each Employee d. It is understood and agreed that these policies are primary and not contributory. All policies required under this contract shall be in effect for the duration of the project Page 2 of 6
and contract. It shall be an affirmative obligation upon Company to immediately notify in writing the city risk manager, city clerk, and city attorney of any fact, circumstance, or occurrence that has resulted in or may result in the cancellation or substantive change of any insurance coverage required by this contract, and failure to do so shall be construed to be a breach of this contract. e. The City of Cheyenne shall be named as an additional insured on the Company's insurance policies, except workers' compensation, and the Company shall provide a copy of the endorsements providing this coverage. f. The City has the right to reject a certificate of insurance if the Company's insurance company is widely regarded in the insurance industry as financially unstable. Any insurance company providing coverage under this contract shall have a minimum A.M. Best rating of A- (excellent). g. The City has the right to review the insurance certificates of any or all subcontractors used by the Company. Further, the City requires that the subcontractor s insurance coverages be at least equivalent to that required of the Company. h. The City has the right to increase the required minimum limit of liability on any contract project as warranted by an increase in hazard. Examples of increased hazard include, but are not limited to: i. handling of hazardous materials ii. activities involving large congregations of people i. The City shall have the right to consult with the Company's insurance agent for disclosure of relevant policy information, but the City s failure to request or review such policies, endorsements, or certificates shall not affect the City s rights or Company s obligations hereunder. Disclosure of relevant policy information would specifically involve, but is not limited to: i. exclusions ii. deductibles iii. claims in progress which could significantly reduce the annual aggregate limit 8. Indemnification. The Company will compensate the City for the full actual loss, damage or destruction of the City s property that in any way arises from or is related to this Agreement or activities undertaken pursuant to this Agreement (including, without limitation, the installation, construction, operation or maintenance of Company s Communications Facilities), except to the extent caused by the gross negligence or willful misconduct on the part of the City or its agents, officers or employees. Page 3 of 6
The Company will further indemnify, defend and hold harmless the City and its agents, officers and employees, from any and all losses, damages, costs, expenses (including reasonable attorney s fees), statutory fines or penalties, actions or claims for personal injury (including death), damage to property, or other damage or financial loss of whatever nature (except special or consequential damages other than personal injury and property damage) in any way arising out of or in connection with this Agreement or activities undertaken pursuant to this Agreement (including, without limitation, the installation, construction, operation or maintenance of Company s Communications Facilities), except to the extent caused by the gross negligence or willful misconduct on the part of the City or its agents, officers or employees. The Company specifically assumes the liability for actions brought against the City and its agents, officers and employees, by the Company s agents, officers or employees, and the Company specifically waives any immunity from the enforcement of this indemnification provision that might otherwise be provided by workers compensation law or by other state or federal laws. 9. Governmental Immunity. The City of Cheyenne expressly reserves the right to invoke governmental immunity for any claims arising out of this Agreement pursuant to the Wyoming Governmental Claims Act, Wyo. Stat. 1-39-101, et seq. Said Grantee has selected the route for said fiber optic line or lines; and appurtenances over and through said premises, and shall have the right to cut and remove any brush or trees and remove other obstructions along the route of such fiber optic line or lines; and appurtenances. On completion of construction, the permanent easement shall be for construction, reconstruction, operation, installation, use, repair, replacement, upkeep, monitoring, and maintenance of the fiber optic line or lines. It is further understood and agreed that this agreement shall run with the land and shall inure to the benefit of, and be binding upon the legal representatives, heirs, devisees, successors and assigns of the respective parties, and by the execution and acknowledgment thereof, Grantors jointly and severally waive their homestead rights to the above described lands so far as the same may be affected by this agreement. THE REST OF THIS PAGE WAS INTENTIONALLY LEFT BLANK Page 4 of 6
IN WITNESS WHEREOF, we have hereunto set our hands this day of, 2013. Signed and delivered in the presence of: GRANTEE: ZAYO Group, a Delaware Limited Liability Company By: Title: STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me by, this day of, 20. Witness my hand and official seal. My commission expires: Notary Public Page 5 of 6
IN WITNESS WHEREOF, we have hereunto set our hands this day of, 2013. GRANTOR: CITY OF CHEYENNE By: Richard L. Kaysen, Mayor STATE OF WYOMING ) ) ss. COUNTY OF LARAMIE ) This foregoing instrument was acknowledged before me by Richard L. Kaysen, Mayor of the City of Cheyenne, this day of, 2013. Witness my hand and official seal. My commission expires: Notary Public Page 6 of 6