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Page 1 of 9 IN-KIND CONDUIT AGREEMENT This IN-KIND CONDUIT AGREEMENT Agreement City of Buckeye, City Accipiter Communications, Inc. dba Zona Wyyerd, a Nevada corporation and Wyyerd Connect, LLC d/b/a Wyyerd Fiber, a Delaware limited liability company, Wyyerd City Party Parties RECITALS WHEREAS, the City owns public street and alley right-of-way and public utility easements within the boundaries of the City of Buckeye; and WHEREAS, Wyyerd is both an incumbent local exchange carrier (ILEC) and a competitive local exchange carrier (CLEC) and will primarily install, operate, maintain, and repair fiber-to-the-premise networks and fiber-based services to homes, residences, commercial customers and government agencies (including municipal facilities, schools, and police and fire departments), including telephone services, internet/broadband services, and end-to-end fiber-based services ; and WHEREAS, Wyyerd ACC CC&N Decision No. 78050 and Decision No. 59346 Certificate and WHEREAS, the City entered into a Wired Telecommunications License and Right-of-Way Use Agreement with Wyyerd on August 17th, 2021 Wyyerd License this reference; and WHEREAS, the City is authorized to regulate its streets, alley and public utility easements, and to grant, renew, deny, amend and terminate licenses for and otherwise regulate the installation, operation, repair, and maintenance of facilities within the City Buckeye Municipal Code, and by virtue of federal (47 U.S.C. § 253) and state statutes (including, but not limited to, A.R.S. §§ 9-581, 9-582, and 9-583), by the City City -of-way, and its other governmental powers and authority; and WHEREAS, the City has agreed to provide Wyyerd access to certain conduit facilities as described and depicted on Exhibit A. Wyyerd will install four (4) micro conduits in such City Conduit (see Exhibit A) and Wyyerd shall have the right to install the hand hole access points depicted on Exhibit B. In exchange, Wyyerd has agreed to provide two (2) micro ducts out of the four (4) micro ducts to the City. In addition, ; and NOW, THEREFORE, in consideration of the foregoing recitals, the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Wyyerd agree as follows: Page 2 of 9 GRANT OF CONDUIT 1. The above Recitals are incorporated by this reference and are made a part of this Agreement as if fully set forth herein. 2. TERM, TERMINATION, AND AMENDMENT. This Agreement shall remain in full force and effect for the term of twenty (20) years with two (2) additional automatic renewals unless Wyyerd provides notice of intent not to renew, unless terminated sooner as set forth herein. This Agreement may be modified only upon a written agreement signed by authorized representatives of the City and Wyyerd. 3. IN-KIND EXCHANGE. a. City owns approximately two thousand nine hundred and forty-five (2,945) feet of conduit as depicted in Wyyerd owns approximately two thousand eight hundred (2,800) feet of conduit as depicted on Exhibit C Wyyerd and City agree to the following in-kind exchange: i. Wyyerd agrees to proof four (4) segments of the City Conduit as needed to provide a path through the City Conduit. Thereafter, the City grants Wyyerd the access to and use of such City Conduit for the term (and any renewal terms) of this Agreement. ii. City agrees to allow Wyyerd to place four (4) 18/14mm future path micro ducts throughout the four (4) segments of the City Conduit. Two (2) of the four (4) 18/14mm future path micro ducts shall be owned by City internal use only. Two (2) of the four (4) 18/14mm future path micro ducts shall be owned by Wyyerd and for iii. Wyyerd agrees to allow the City to exclusively through the six (6) segments of the Wyyerd Conduit depicted in Exhibit C. The City shall have access to and use for the term (and any renewal terms) of this Agreement. iv. Wyyerd agrees to construct three (3) hand hole access points within the City Conduit structure for Wyyerd exclusive use. The Parties agree the three (3) hand hole access points are required to provide separation between City and Wyyerd facilities. The three (3) access points shall be detailed and mapped out in Exhibit B. Future access points may be mutually agreed upon between the Parties. v. City agrees to allow Wyyerd to use, at no cost, a maintenance permit to proof and repair the City Conduit s. vi. City agrees Wyyerd shall have an indefeasible right to use the City Conduit for the term of this Agreement, including any renewal terms. If this Agreement is terminated because of a Wyyerd default (which is not cured) or this Agreement expires, then right to use the City Conduit shall terminate. vii. Wyyerd agrees to provide City with prompt access to the City (2) micro conduits within sixty (60) days after each segment is installed in City Conduit. Wyyerd shall promptly notify City when each segment is installed. viii. Prior to delivering the two (2) micro conduits in the City Conduit to City, Wyyerd agrees to provide City staff the opportunity to inspect such micro conduits. Page 3 of 9 4. LIMITATION OF USE OF CONDUIT. a. City warrants and covenants that it will use the City Conduit in compliance with all applicable government codes, ordinances, laws, rules and regulations. b. City may allow other government entities to utilize the City Conduit. City may allow other third-parties to access and City agrees to not lease or transfer the City Conduit to any third party. c. Both Parties shall promptly notify each other of any known matters pertaining to, or the occurrence (or impending occurrence) of, any event which would likely give rise to any damage or impending damage to the subject City Conduit and/or the micro conduits in the network. d. network and no less than in good operating condition for normal use. Wyyerd makes no other warranties, written or oral, statutory, express or implied, including, without limitation, the warranty of merchantability or fitness for a particular purpose or use regarding the provided micro ducts. If City requests Wyyerd to provide any additional operation and maintenance services, including additional access points and conduit or fiber extensions, then such additional in good faith. 5. ADDITIONAL ROUTES. a. As ight-of-Way beyond the map contained in Exhibit A, City and Wyyerd may negotiate future in-kind exchanges regarding the additional network areas in lieu of the Annual Fee on such additional network areas or other consideration. The details associated with future in-kind exchanges shall be memorialized in a subsequent agreement or an addendum to this Agreement. Both Parties agree to negotiate in good faith any future in-kind exchanges within ninety (90) days after the execution of this Agreement. b. Wyyerd shall provide City the opportunity to participate in joint builds at a pro-rata cost in any future build within the Right-of-Way. Wyyerd shall have sole control and direction over engineering and construction related to future joint builds. City may request verification of pro- rata costs. City shall also provide Wyyerd notice of and the opportunity to participate in any open trench construction projects City engages in. If Wyyerd decides to install fiber or conduit in such City open trench projects, then Wyyerd must do so at its own costs unless the City requests projects (in which case Wyyerd and the City will share those costs pro-rata). 6. BREACH AND REMEDIES. In the event of a breach of any material terms or conditions of this Agreement by Wyyerd, the City may terminate this Agreement upon ninety (90) days written notice to Wyyerd; provided, however, Wyyerd shall be given the opportunity to cure any such breach and if the breach is cured then this Agreement will remain in full force and effect. 7. INDEMNIFICATION. To the fullest extent permitted by law, Wyyerd and the City Indemnifying Parties shall indemnify, defend and hold harmless the other Party, their managers, officers, boards, Indemnified Party any and all losses, claims, damages, liabilities, costs, and expenses (including, but not limited to, proceedings) to which any such Indemnified Party may become subject, under any theory of liability Claims Page 4 of 9 relate to, arise out of, or are caused by, or in connection with performance or non-performance under this Agreement. 8. INSURANCE, BONDS, AND LETTERS OF CREDIT. The Insurance, Performance Bond, and Letter of Credit provisions set forth in the Wyyerd License are applicable to this Agreement and are incorporated by reference as if fully set forth herein. Wyyerd shall take any and all action necessary to incorporate or otherwise apply said insurance, performance bond, and letter of credit to this Agreement. 9. GOVERNING LAW. In all respects, this Agreement and the obligations arising hereunder shall be governed by and construed and enforced in accordance with the laws of the State of Arizona. Any litigation initiated pursuant to this Agreement shall be commenced in a court of competent jurisdiction located in Maricopa County, Arizona. 10. CONFLICTS OF INTEREST. Wyyerd acknowledges that this Agreement is subject to Ariz. Rev. Stat. § 38-511 and may be terminated in accordance therewith. 11. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon, and inure to the benefit of, each not assign this Agreement without the prior written consent of the City. Notwithstanding the above, a bona fide change of control, sale of or corporate restructuring of Wyyerd or a sale of all or 12. NO AGENCY. Each Party hereto will act in its individual capacity. Nothing in this Agreement will be deemed to create the relationship of principal and agent, of partnership, agency, employer-employee, a joint venture, or an association among the Parties hereto. 13. NO THIRD PARTY BENEFICIARY. This Agreement is solely for the benefit of the Parties hereto and will not be deemed to be for the benefit of, or to create any rights in favor of, any third party. 14. COMPLIANCE WITH LAWS. The Parties hereto shall comply with all applicable federal, state, and local laws, rules and regulations in the performance of their duties under this Agreement. 15. FORCE MAJEURE. Neither Party will be liable to the other nor deemed in default under this e control of the Party affected and occurs without its fault or negligence. Without limiting the foregoing, force majeure includes acts of God: acts of the public enemy; war; acts of terror, hate crimes affecting public order; riots; strikes; mobilization; labor disputes; civil disorders; plague; pandemics (including without limitation, the COVID-19 pandemic); epidemics; quarantine orders or directives by a governmental entity; outbreaks of infectious disease or any other public health crisis, including without limitation, quarantine or other employee restrictions; fire; floods; lockouts, injunctions-interventions-acts, or failures or refusals to act by government authority; events or obstacles resulting from a governmental nse to the foregoing; and other similar occurrences beyond the control of the Party declaring force majeure which such party is unable to prevent by exercising reasonable diligence. The force majeure notifies the other Party of the existence of the force majeure and will be deemed to continue as long as the results or effects of the force majeure prevent the Party from resuming performance in accordance with this Agreement. Force majeure will not include the following occurrences: (A) Failure or delay resulting from general economic conditions or other market effects, foreseen or unforeseen, including any increase in the cost of materials, supplies, or services, or any decrease in profit or profit margins resulting therefrom; (B) Late delivery of equipment or materials Page 5 of 9 inefficiencies, or similar occurrences; or (C) Late performance by a subcontractor unless the delay arises out of a force majeure occurrence in accordance with this section. 16. SEVERABILITY. If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, such determination shall not affect any other provision hereof, all of which other provisions shall remain in full force and effect. 17. CONFLICT. If the terms and conditions of this Agreement conflict with any law or ordinance of the City or agreement between the Parties, the terms and conditions of this Agreement shall supersede, set, and control any other terms and conditions to the extent permitted by law. 18. ENTIRE AGREEMENT. The City and Wyyerd acknowledge and agree that no promises or representations have been made which do not appear written herein and that this Agreement contains the entire understanding of the Parties as to the subject matter contained in this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date the last party signs. City of Buckeye, an Arizona municipal corporation By: __________________________________ Printed Name: _________________________ Title: ________________________________ Date: ________________________________ Accipiter Communications, Inc. dba Zona Wyyerd, a Nevada corporation and Wyyerd Connect, LLC dba Wyyerd Fiber By: __________________________________ Printed Name: _________________________ Title: ________________________________ Date: ________________________________ Chief Operating Officer Travis Nance Page 6 of 9 Exhibit A Map of Conduit The conduit is within four (4) segments totaling approximately 2,945 Location: South 237th Lane and Yuma Road to Sundance Parkway and Yuma Road. Constructing on the South side of Yuma Road. Page 7 of 9 Exhibit B Wyyerd Scope Map with Hand Holes (Access Points) in the City Conduit Page 8 of 9 Page 9 of 9 Exhibit C Map of Wyyerd