Agenda - Council Work Session - 10/23/2012

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CONDUIT USE AGREEMENT This Conduit Use Agreement ("Agreement") is made and entered into this 24th day of April, 2012 (the "Effective Date"), between the City of Ramsey, Minnesota ("City") and Zayo Group, LLC ("Zayo"). RECITALS WHEREAS, City owns a four -inch (4") PVC conduit system located between Ramsey Boulevard west along Sunwood Drive to Armstrong Boulevard, as more completely described in Exhibit A attached hereto (the "Conduit System"); and, WHEREAS, Zayo desires to obtain from City and City desires to provide to Zayo, a license to use the Conduit System; NOW, THEREFORE, in consideration of the mutual covenants in this Agreement and other just and adequate consideration, the Parties hereby agree as follows: I : LICENSE. As of the Acceptance Date for the Innerducts, City agrees to issue a license to Zayo, and Zayo agrees to accept a license from City, the Conduit System as described in Exhibit A and under the terms and conditions as further described below (the "License"). 2. INSTALLATION AND ACCEPTANCE. 2.1 Installation. The Conduit System consists of a vacant four -inch (4") PVC conduit. In consideration of this License, Zayo agrees to provide all labor, materials and equipment required to engineer and install within the Conduit System three (3) inch -and -a -quarter (1.25") SDR 11 innerducts (collectively, the "Innerducts"). Zayo shall also install two (2) handholes, one (1) for Zayo's use and one (1) for City's use. Zayo shall install the lnnerducts and handholes according to the Zayo construction drawings ("Zayo Construction Drawings"), attached hereto as Exhibit B. 2.2 Installation Date. The Innerducts are estimated to be installed within sixty (60) days of the full execution of this Agreement (the "Estimated Completion Date"). City acknowledges that the Estimated Completion Date may change due to unforeseen construction conditions. In the event Zayo encounters any changes to the Estimated Completion Date, Zayo shall promptly notify City and provide a revised estimated completion date (the "Revised Estimated Completion Date"). 2.3 Innerduct Acceptance Procedures. Prior to commencement of the Term of this Agreement as defined in Section 3 below, Zayo shall perform necessary tests to verify that the Innerducts have been installed according to the Zayo Construction Drawings and shall promptly provide City with a report of such test results ("Notice of Completion"). City shall promptly review the Notice of Completion and shall provide Zayo with a written notice accepting (or rejecting by specifying the defect or failure in the Notice of Completion that is the basis for such rejection) the lnnerducts. If the City fails to notify Zayo of its acceptance or rejection of the final test results with respect to the Innerduct within twenty (20) business days after City's receipt of such Notice of Completion, City shall be deemed to have accepted the Innerducts. The date of such notice of acceptance (or deemed acceptance) of the Innerducts shall be the "Acceptance Date." In the event of any rejection by City, Zayo shall take such action reasonably necessary and as expeditiously as practicable to correct or cure such defect or failure and the process acceptance shall be repeated. The foregoing notwithstanding, if City uses any portion of the Innerducts prior to acceptance, such use shall constitute acceptance with an Acceptance Date effective as of the earliest documented use by City. 2.4 Confiauration and Access to the Innerducts. Of the three (3) inch -and -a -quarter (1.25") SDR 11 innerducts installed, one (1) will be routed into a Zayo handhole (the "Zayo Innerduct'') to be used exclusively by Zayo to make available telecommunications services in and through the City of Ramsey, Minnesota. The other two (2) innnerducts will be routed to a City handhole (the "City Innerducts") to be utilized by the City in accordance with this Agreement. Confidential