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CONDUIT LICENSE AGREEMENTCONDUIT LICENSE AGREEMENT BETWEEN CITY OF CLEARWATER AND CENTURYLINK, INC. THIS AGREEMENT is made and entered into when dually executed by and between the CITY OF CLEARWATER, whose principal place of business is 100 S. Myrtle Ave, Clearwater, FL 33756 (hereinafter "City"), and CENTURYLINK COMMUNICATIONS, LLC, with a place of business at 1025 Eldorado Blvd., Broomfield, CO 80021 (hereafter "Customer"). WHEREAS, Customer maintains a fiber optic telecommunications system in the metropolitan area of Clearwater, Florida; and WHEREAS, City owns certain conduit space within City's facilities and service area; and WHEREAS, since June 25, 2004, City and Customer have previously and continuously entered into agreements for the license of City's conduit space to Customer; and WHEREAS, the Parties desire to enter into this Agreement for the license and use of the conduit space described herein. NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the Parties further agree as follows: ARTICLE 1 INCORPORATION OF RECITALS 1.1 The foregoing recitals are true and correct and are incorporated herein. ARTICLE 2 LICENSE OF CITY OF CLEARWATER CONDUIT SPACE 2.1 City presently owns certain conduit space within City's facilities and service area (hereinafter "City Conduit(s)"). See Exhibit A and C. City hereby grants Customer a non-exclusive license ("Conduit License") to use only for business purposes permitted by Customer's Florida Public Service Certificate of those City Conduits described herein and in Exhibits A and C ("Licensed Conduit') and represents that it has all legal rights to do so. Exhibits A and C may be amended from time to time to reflect the addition or deletion of conduits licensed to Customer under this Agreement if mutually agreed by the Parties. The Conduit License shall be for the term of this Agreement. 2.2 The Conduit License map/route and pricing shall be described in Exhibit A and C attached hereto and made a part hereof. 2.3 City and its contractors, subcontractors or, assigns (if any) shall maintain City's Conduit in such a manner as will best enable City's own service and other requirements, in accordance with City's fiber optic maintenance contract. In accordance with applicable ordinances, statutes, regulations, laws, and tariffs, City shall maintain City Conduit 1 licensed to Customer under this Article to the same extent and with the same degree of care that City uses to maintain its other similar property. City shall, at no cost to Customer, supply all labor, tools, heavy and light vehicles, pulling equipment and other equipment necessary to perform maintenance hereunder; provided however that Customer shall cooperate with, and assist as may be reasonably required and requested by City in performing said maintenance. 2.4 Subject to the provisions of this Article, City may upon one hundred eighty (180) days prior written notice to Customer, relocate any Licensed Conduit under this Article, transfer said Licensed Conduit to alternate City space, or perform any other work in connection with the Licensed Conduit which may be reasonably required by City. If such relocation is necessary due to the requirements of a third party, then City shall provide Customer with a copy of the written notice from the third party. The cost of such relocation shall be the sole responsibility of City. If the relocation changes the actual footage of the Licensed Conduit and Customer is the party requiring such relocation, the license fee or compensation for the Licensed Conduit shall be increased or decreased to reflect the actual change. 2.5 In cases of relocations necessitated by emergency, City may relocate or repair the Licensed Conduit under this Article without prior notice; provided, however, that City shall notify Customer, as soon as practicable after the emergency is discovered by City, that the emergency exists and that emergency relocation work is being or will be performed. 2.6 In emergencies, City shall perform repairs and maintenance to correct any failure, interruption or impairment in the operation of Licensed Conduit hereunder. Customer shall report any emergency to City, which shall use all commercially reasonable efforts to dispatch personnel to take immediate corrective action. 2.7 City may contract or sub -contract all or part of the work to be performed under this Article. 2.8 Customer shall obtain at its own expense all construction permits required, if any, related to the installation of Customer fiber optic facilities in City Conduit. If City is the only party authorized to obtain any particular permit for the installation of Customer fiber optic facilities in the City Conduit space, City shall do so and Customer shall reimburse City for all City's costs and expenses thereof. 2.9 Contact information for the Parties is provided in Exhibit B. ARTICLE 3 PAYMENTS, TERM, TAXES 3.1 The annual recurring license fees shall be due when billed by City and shall be delinquent if not paid sixty (60) days thereafter. Such annual recurring fees are set forth in Exhibit A. 2 City shall invoice Customer the annual recurring fee upon receipt of Customer's written acceptance of the Licensed Conduit. Customer will have thirty (30) days to accept the Licensed Conduit. If Customer does not provide written acceptance or rejection within such thirty (30) day period, the Licensed Conduit will be deemed accepted. Customer may pay the license fee in full for the entire five (5) year term upon Customer's written acceptance. Subsequent terms may also be paid in full. 3.2 Term of Agreement The term of this Agreement shall begin on June 25, 2019 and end on June 24, 2024 ("Initial Term"). This Agreement shall supersede all prior license agreements. Since June 25, 2019, the Parties have been operating on a year-to-year basis in accordance with the terms and conditions of the previous License Agreement (Term: June 25, 2014 thru June 25, 2019). The Parties hereby accept, acknowledge, and agree to be bound by the terms and conditions of that previous License Agreement (Term: June 25, 2014 thru June 25, 2019), from June 25, 2019 until this Agreement is dually executed by the Parties. After the Initial Term, this Agreement may be renewed for two (2) additional five (5) year terms ("Renewal Terms"), if mutually agreed upon in writing. 3.3 Termination Customer shall have the right to terminate this Agreement at any time upon three (3) month's written notice to City. Customer agrees to pay whatever fees are accrued up to and due upon cancellation. However, such termination must be on an all or nothing basis. If Customer terminates Conduit Licenses during the first year of this Agreement, City will be entitled to the remainder of any first year of payments due hereunder for each Conduit License. Upon termination by Customer as described herein, Customer may remove or abandon its property and facilities affected by the termination; provided that no such removal or abandonment shall impair or interfere with any City system. Customer shall reimburse City for all costs of recovering or removing any abandoned Customer property and facilities. Should Customer wish to remove any of its property or equipment, the removal shall be accomplished at such time and by such means as City shall reasonably specify. Customer may terminate this Agreement upon thirty (30) days written notice to City, and after a thirty (30) day cure period, for material default if it is unable to utilize the Licensed Conduit or if City fails to materially perform otherwise under this Agreement. In the event of any change in City's legal or regulatory status or the legal interpretation thereof by a court of competent jurisdiction that prohibits, restricts, or otherwise prevents City from furnishing the Licensed Conduit ("Regulatory Notice") to Customer, after receipt of the Regulatory Notice, the Parties will negotiate in good faith to modify the 3 terms of the Agreement to conform with such change. If after thirty (30) days, the negotiations fail, City or Customer may terminate this Agreement without further liability to either Party. In the event of any changes in underlying rights of way, permits or rights to use fiber optic cable and/or equipment or facilities pursuant to agreements between City and third parties, resulting in City's loss of required rights that are necessary to provide the Licensed Conduit hereunder, City may in its sole discretion terminate this Agreement without liability to Customer; provided, however, that City shall promptly give Customer written notice of any event, action or proceeding that City believes may result in City's loss of rights which it deems necessary to provide the Licensed Conduit hereunder. The City may terminate this Agreement or a portion hereof in the event it determines, at a duly constituted City Council meeting, that the Licensed Conduit is required for another municipal purpose. The City will give at least one hundred eighty (180) days written notice of such intended use, following which this Agreement shall terminate in every respect and both Parties shall be relieved of any further obligation. 3.4 Taxes During the term hereof, Customer shall pay, when due, all taxes including sales and use taxes, or any other fees to the use of the Licensed Conduit by Customer, which are assessed on Customer's activities involving the Licensed Conduit, as well as Customer's use of City's facilities. In the event that Customer provides City with a duly authorized exemption certificate or other valid evidence of exemption, City agrees to exempt Customer from the imposition of taxes in accordance with applicable law. Whenever possible, a tax shall be billed as a separate item on the invoice. Customer shall keep City's facilities and the Licensed Conduit free from all liens, including but not limited to mechanics liens, and encumbrances by reason of the use of the Licensed Conduit by Customer. If Customer fails to pay, or bring appropriate challenge to, the above-mentioned taxes, assessments, or other fees, and such failure results in the imposition of a lien or encumbrance on the Licensed Conduit or an assessment directly against City, City shall have the right to pay the same and charge the amount thereof to Customer, who shall pay the same immediately upon demand. This right is in addition to any other right provided to City herein to remedy a breach of this Agreement. If either party is audited by a taxing authority or other government authority, the other party agrees to reasonably cooperate with the party being audited in order to respond to any audit inquiries in a proper and timely manner so that the audit and/or resulting controversy can be resolved expeditiously. With respect to any tax or tax controversy covered by this Section, Customer is entitled to contest, with the imposing jurisdiction, pursuant to applicable law and at its own expense, any tax that it is ultimately obligated to pay. Customer will ensure that no lien is attached to any asset of City as a result of any such contest. Customer shall be entitled to the benefit of any refund or recovery amounts that it had previously paid resulting from such a contest. 4 ARTICLE 4 CONFIDENTIALITY 4.1 If either party provides confidential information to the other in writing and is identified as such, the receiving party shall protect the confidential information from disclosure to third parties with the same degree of care afforded its own confidential and proprietary information. Neither party shall, however, be required to hold confidential any information which becomes publicly available other than through the recipient, which is required to be disclosed by a governmental or judicial order, by statute, is independently developed by the receiving party or which becomes available to the receiving party without known restrictions from a third party. 4.2 Not -withstanding the foregoing, Customer acknowledges and understands that City is subject to the laws of the State of Florida regarding the disclosure of public records and may be required to disclose either this Agreement and/or any information contained herein and/or information received by City as a result of the operation of this Agreement, and City shall not be liable to Customer for any damages resulting from such disclosure. ARTICLE 5 MISCELLANEOUS 5.1 Assignment. Customer shall not assign, transfer or sublet any of the privileges described in this Agreement without the prior written consent of City. For purposes of this Article, transactions between Customer and any of its subsidiary companies (companies in which Customer has a controlling interest), or parent companies (companies which have or acquire a controlling interest in Customer), shall not be considered an assignment, transfer or a sublet. 5.2 No Partnership. The Parties acknowledge and agree that this Agreement does not create a partnership between, or a joint venture of, City and Customer. 5.3 Waiver. No delay or omission by either party to exercise any right or power occurring upon non-compliance or failure of performance by the other party shall impair that right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants, conditions or agreements to be performed by the other party shall not be construed to be a general waiver of any such covenants, conditions or agreements, but the same shall be and remain at all times in full force and effect. 5.4 Merger. This Agreement is an integration of the entire understanding of the Parties with respect to the matters set forth herein. The Parties shall only amend this Agreement in writing with the proper official signatures attached thereto. 5 5.5 Customer agrees to observe, comply with, and execute promptly at its expense all laws, rules, requirements, orders, directives, codes, ordinances and regulations of governmental authorities and agencies and of insurance carriers which relate to its use Licensed Conduit. 5.6 This Agreement shall be deemed to be a use agreement in the nature of a license and shall not be deemed to be a lease or conveyance of any real property rights nor shall this Agreement constitute an agreement for the use of real property that would subject the parties to the provisions of any statute regarding landlord and tenant rights. 5.7 Customer agrees and shall not obtain any prescriptive rights, easements, or other legal or equitable interest in the City Conduit or Licensed Conduit by reason of the execution of this Agreement, or by compliance with the terms thereof by Customer. Ownership of the City Conduit and Licensed Conduit shall at all times remain with the City of Clearwater, and Customer shall not do anything inconsistent with such ownership, except as may be permitted by this Agreement. 5.8 The granting of this license does not vest in Customer any interest in the City Conduit or Licensed Conduit which may be mortgaged, encumbered or liened, and no action of Customer shall cause or create any interests in real estate or any encumbrance upon any such real property. 5.9 The laws of the State of Florida shall govern this Agreement, and any action brought by either party shall lie in Pinellas County, Florida. ARTICLE 6 INDEMNITY AND INSURANCE 6.1 The Parties shall be liable for their own acts of negligence, or their respective agents' acts of negligence when acting within the scope of their employment, in the performance of this agreement; provided, however, that the City's liability is subject to the monetary limitations and defenses imposed by Section 768.28, Florida Statutes. Nothing herein is intended to serve as a waiver of sovereign immunity by the City, nor shall anything herein be construed as consent by the City to be sued by any third party for any cause or matter arising out of or related to this Agreement. The provision shall survive the termination of this Agreement. 6.2 Customer shall, at its own cost and expense, acquire and maintain (and cause contractors and subcontractors, if applicable, to acquire and maintain) during the term of this Agreement, sufficient insurance, or self-insurance, to adequately protect the respective interest of the Parties. Specifically, Customer must carry the following minimum types and amounts on an occurrence basis or in the case of coverage that cannot be obtained on an occurrence basis, then coverage can be obtained on a claims -made basis with a minimum three (3) year tail following the termination or expiration of this Agreement: 6 Commercial General Liability Insurance in the amount of $1,000,000 per occurrence and $1,000,000 general aggregate. The City shall be listed as an Additional Insured. Statutory Workers' Compensation Insurance and Employer's Liability Insurance in the minimum amount of $100,000 each employee each accident, $100,000 each employee by disease and $500,000 aggregate by disease with benefits afforded under the laws of the State of Florida. Coverage must be applicable to employees, contractors, and subcontractors, if any. The above insurance limits may be achieved by a combination of primary and umbrella/excess liability policies. Evidence of Customer's insurance is available at www.centurylink.com/moi. Customer shall provide written notice of any cancellation, non -renewal, termination, material change or reduction in coverage. The stipulated limits of coverage above shall not be construed as a limitation of any potential liability to the City, and failure to request evidence of this insurance shall not be construed as a waiver of Customer's obligation to provide the insurance coverage specified. (Remainder of page left blank intentionally) 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on their behalf. (Corporate Seal) CENTURYLINK COMMUNICATIONS, LLC Countersigned: By: Matthew Williams (Oct 27, 2022 12:47 MOT) Print Name: Matthew Williams Title: Manager, Dark Fiber WITNESS: &//H'/1`t EVGlhf By: Samantha Evans (Oct 27. 2022 12:50 MDT) Print Name: Samantha Evans CITY OF CLEARWATER Jon Jennings City Manager Approved as to form: Attest: Lead Assistant City Attorney f VOlic 8 Rosemarie Call City Clerk 4,1( EXHIBIT A City of Clearwater conduit space licensed to Customer, Pricing and Maintenance Terms 1. Conduit space Conduit footage licensed at 1700 feet of length. Conduit Map/route attached as Exhibit C. 2. Pricing Annual recurring fee is $4,641.00 (Annual rate of $2.73 per foot X year for the Initial Term. The City reserves the right to raise the annual recurring fee up percent in each of the two (2) Renewal Terms. 9 1700 feet) per to ten (10%) EXHIBIT B Contact Information City contacts and phone number with hours of operation to call if outage due to conduit failure/break. City of Clearwater Information Technology Department (24x7) 100 S. Myrtle Avenue Clearwater, FL 33756 727.562.4357 Helpdesk Contact for Maintenance and Repairs: Precision Contracting Services, Inc. Rhys Roberts, Vice President 15834 Guild Court Jupiter, FL 33478 (813) 987 0909 Office (954) 263 4176 Cell (561) 743 0775 Fax CenturyLink Contacts: CenturyLink 1025 Eldorado Blvd Broomfield, CO, 80021 Attn: NIS/Dark Fiber Dept With a copy to: Invoices should be sent to: CenturyLink 931 14th Street Denver, CO 80202 Attn: Legal Dept. CenturyLink 1025 Eldorado Blvd Broomfield, CO, 80021 Attn: NIS/ROW Dept E -Mail: CMA@centurylink.com 10 EXHIBIT C Map of Licensed Conduit See attached aerial photo depicting the Licensed Conduit route. (Pierce Street: Osceola Avenue to Myrtle Avenue)