2023-02-23 FIBER OPTICS COMM AGREEMENT - PENDING-BOS-FINAL.PDF

DocuSign Envelope ID: E7168FCD-6081-450E-A62F-67E7257E7214

FIBER OPTICS COMMUNICATION
SYSTEM AGREEMENT

BETWEEN
MARICOPA COUNTY

AND
Arcadian Infracom 1, LLC

THIS AGREEMENT, is made between Maricopa County, a political subdivision of
the State of Arizona (hereinafter called "County”), and Arcadian Infracom 1, LLC,
a Delaware Limited Liability Company (hereinafter called “Company’”) (“Agreement”).
County and Company may collectively be referred to herein as the Parties, or individually
as a Party.

WHEREAS, Company has applied to the County for permission to use certain streets and
public ways for the placement of a Fiber Optics Communication System, as hereinafter defined,
under, in, along, over and across certain streets and public ways in the County; and

WHEREAS, it is necessary in the public interest that all uses within the right-of- way for
public roads, streets and alleys by individuals, corporations and political subdivisions be
regulated and controlled so that said public roads, streets and alleys may be effectively
utilized and maintained for their primary purposes as public ways; and

WHEREAS, the County has agreed to grant Company permission to use certain streets and
public ways, but will not under any circumstance grant the Company any property rights; and

WHEREAS, the laws of the State of Arizona authorize the Board of Supervisors of Maricopa
County to control and manage said public roads, streets, and alleys within Maricopa County.

NOW, THEREFORE, the Parties agree as follows:

SECTION 1. Definitions.

A. "Fiber Optics Communications System" means a network of components used for
transmitting data using light, including but not limited to, conduit, carrier pipe, cable
fibers, repeaters, power sources and other attachments and appurtenances
necessary for transmitting high speed voice, data and (for such applications as
teleconferencing) video signals in connection with a telecommunications system
or systems. This definition shall not include the use of fiber optic cable for operating
a cable television system, a cable system or for the Company to operate as a cable
operator as those terms are defined in the Communications Act of 1934 as amended,
state law, or the County code, or for an open video system as defined in the
Communications Act of 1996 or as defined or authorized by the FCC.

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The Fiber Optics Communication System authorized herein may be comprised of a
local/intrastate network:

“County Right of Way” means all roads, roadways, highways, streets, public ways,
alleys, sidewalks and rights of way, including the surface of and the space above and
below same, owned by County or in which County has any property right that has been
Open and Declared by County Board of Supervisors and accepted into County’s
maintenance system.

SECTION 2. Permission Granted.

A.

County hereby grants to Company the nonexclusive, revocable permission to
construct, install, operate, maintain, and upgrade a Fiber Optics Communication
System, in, under, along, over, and across in any County Right of Way.

The permission granted by County to Company shall, at all times be subject to: (1) the
County’s superior right to lay, construct, erect, install, use, operate, repair, replace,
remove, relocate, regrade, widen, realign, or maintain any street and public way, aerial,
surface, or subsurface improvement, including but not limited to water mains, traffic
control conduits, cable and devices, sanitary or storm sewers, subways, tunnels, bridges,
viaducts, or any other public construction within the rights-of-way of the County limits,
(2) all applicable ordinances and resolutions of the County, and any amendments
thereto, (3) all applicable state and federal laws, and (4) the provisions contained
herein.

Company shall comply with any law or regulation of the Federal Communications
Commission or the Arizona Corporation Commission to engage in business activities
associated with use of the streets and public ways for a Fiber Optics Communication
System as a condition precedent to exercising the permission granted by this
Agreement.

SECTION 3. Term of Agreement

This Agreement shall be effective upon full execution by the Parties (Effective Date) and
continue for five (5) years from the Effective Date (Term), unless sooner terminated as provided
in Section 10 below. This Agreement may be renewed by mutual agreement of the parties in
accordance with A.R.S. 9-583(G).

SECTION4. General Conditions

A.

Company shall provide County with a copy of the certificate of public convenience
and necessity issued by the ACC to Company within 30 days of execution of this
Agreement and thereafter within 30 days following any amendment to the certificate
of public convenience and necessity.

Company’s Fiber Optics Communication System will be subject to the annual per linear

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DocuSign Envelope ID: E7168FCD-6081-450E-A62F-67E7257E7214

foot fee covered in Section 8, unless, if during the Term of this Agreement, the status of
any portion of Company’s Fiber Optics Communication System changes to offer services
subject to fees as described under A.R.S. § 9-583, then Company will inform the County
and adjust its calculation of the Annual Fee under Section 8 accordingly.

Cc. Company shall indemnify, defend, protect, and hold harmless County, officers,
and employees from and against any and all claims, demands, losses, damages,
liabilities, fines, charges, penalties, administrative and judicial proceedings and
orders, judgments of any nature whatsoever, including all costs and expenses
incurred, reasonable attorney's fees and costs of defense in connection therewith, in
any way resulting from or related to Company's activities undertaken pursuant to
this Agreement, In addition, should any litigation brought by third parties
challenging the right of the County to grant the permission set forth in this
Agreement under Arizona law, upon tender by the County of a demand for defense,
Company, which shall then defend the litigation; provided, however, that if
County tenders such defense to Company, Company shall have the right to retain
counsel of its own choice, to settle all or any part of the litigation on terms
acceptable to Company (and, where such terms directly obligate or affect the
County, acceptable to the County) At its election, rather than submitted a tender
for defense, the County may terminate this Agreement under the terms provided in
the Agreement and withdraw from any such litigation.

D. Company shall carry, maintain, and pay the cost of the liability insurance for the
mutual benefit of the County and the Company: commercial general liability
insurance, written on an occurrence basis, against claims for bodily injury, death or
property damage occurring on or about the Company's Fiber Optics
Communication System and appurtenances, which insurance shall cover such
claims as may be occasioned by any act, omission or negligence of the Company or
its officers, agents, representatives, employees or servants during all times that
the Company will be using, maintaining and operating the Fiber Optics
Communication System and appurtenances granted under the terms of this
Agreement. The minimum types of coverage and limits of such liability coverage
shall not be less than:

Type of Insurance Minimum Limits of Liability:
1. Commercial General Liability $2,000,000 Combined Single Limit (Per

Occurrence) including: Premises/Operations, Products/Completed Operations,
Contractual liability.

2. Automobile Liability $1,000,000 Combined Single Limit (Each Accident) for
Owned, Hired, and Non-Owned vehicles

3. Workers! Compensation Statutory Amounts Employers' Liability $1,000,000
(each accident/disease/Policy Limit)

a) The County shall have no responsibility or liability for such insurance
coverage. An enumeration of specific insurance coverage and

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amounts shall not limit or restrict the indemnity covenants
contained in this Agreement.

b) The Company shall furnish the County with a Certificate of
Insurance. The Certificate shall be issued by an insurance
company authorized to transact business in the State of Arizona or
be named on the List of Authorized Insurers maintained by the
Arizona Department of Insurance. Insurance coverage shall not
expire during the term of this Agreement. The Company shall
provide a renewal certificate of the required insurance coverage to
the County within fifteen (15) days of the expiration date.

c) Workers' Compensation and Employers' Liability: A letter of
certification, from the Industrial Commission of Arizona, that the
Company is insured by the State Compensation Fund or is an
authorized self-insurer or a Certificate of Insurance issued by an
insurance company authorized by the Arizona Department of
Insurance to provide Workers' Compensation and Employers'
Liability insurance in the State of Arizona.

d) Additional Insured: The County, a governmental entity, its
officers, agents and employees shall be named as an additional
insured as their interest may appear on all policies except
Workers! Compensation and Employers' Liability, and this shall
be indicated on the Certificate of Insurance issued to the County.
The Company's coverage shall be primary for any and all losses
arising out of the performance of this Agreement.

e) Limits - At any times during the contract but at least at annual renewal,
limits required under this contract will be reviewed and may be
changed.

SECTION 5. Plans approval, Permits and Construction

A.

The Company shall obtain all permits before performing any work of any nature under
this Agreement. Company shall comply with all permitting performance bond
requirements until the completion of the initial Fiber Optics Communication System
installation. Company shall not install, maintain, or use any of its Fiber Optics
Communication System in such a manner as to damage or interfere with any existing
facilities located within the streets or public ways of the County Right-of-Way.
Company agrees to relocate its facilities, if necessary, to accommodate another facility
relocation as required by the County.

All phases of construction, as well as the location or relocation of said Fiber Optics

Communication System(s) shall be subject to the regulation and compliance of the
related permits and permitting authority of MCDOT.

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C. When required by the County, Company shall move facilities and any equipment
that is located in County Rights of Way, at its sole cost, to such a location as the
County directs.

Dz If Company's relocation effort delays construction of a public project causing
the County any damages, the Company shall reimburse the County for those
damages attributable to the delay created by the Company. Company shall pay the
County within 30 days of notice of the amount of such damages. Both late
charges of 5% and interest charges of 1-1/2% per month may be added for late
payment.

E. Company shall obtain annual Maintenance and Emergency permits to perform
maintenance and emergency work and will notify the County as quickly as possible if
such work will be performed after regular business hours. Company shall renew such
permits prior to expiration each year to avoid performing necessary work without the
required authorization.

F. Company shall obtain all permits as required by this Agreement prior to removing,
abandoning, relocating or reconstructing any portion of its Fiber Optics
Communication System. Company will notify the County prior to performing
any necessary emergency repairs within 24 hours, if practicable, and will obtain
the necessary permits in a reasonable time after the emergency ends.

G. If, in the installation, use or maintenance of its Fiber Optics Communication System,
Company damages or disturbs any streets or public ways, or adjoining public
property Company shall promptly secure necessary permits, at its own expense,
make necessary restoration, repairs or replacements in a manner acceptable to the
County. If Company does not accomplish such restoration, repair or replacement
within the permitted time period, the County has the right to perform the
necessary restoration, repair or replacement. The Company shall reimburse the
County for its expenses within thirty (30) days after receipt of the County's invoice.
Late charges of 5% and interest charges of 1-1/2% per month shall be added for
late payment.

H. The fee required under this Agreement is in addition to, and not a part of, any fees
required to obtain the necessary permits.

I. County shall have the right, subject to relevant County ordinances, resolutions,
regulations, and State law, to sever, disrupt, dig-up or otherwise destroy facilities
of Company, without any prior notice if such action is deemed reasonably
necessary by the Board of Supervisors, County Engineer or Director of the
Maricopa County Department of Transportation because of a public emergency. A
public emergency shall be any condition which poses an immediate threat to the
lives or property of the citizens of the County, caused by any natural or man-made
disaster, including, but not limited to, storms, floods, fire, accidents, explosions,

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major water main breaks, hazardous material spills, etc. Company shall be
responsible for repair at its sole expense of any of its facilities damaged pursuant
to any such action emergency taken by County.

County may issue reasonable policy guidelines to all Fiber Optics
Communication System Company’s to establish procedures for determining how to
control issuance of engineering permits to multiple Company’s for the same one-
mile segments of their Fiber Optics Communication Systems. The Company shall
cooperate with the County in establishing such policy and comply with the
procedures established by the Board of Supervisors or their designee to coordinate
the issuance of multiple engineering permits in the same one-mile segments.

SECTION 6. Records and Locator Service of Facilities

A.

Company shall comply with Arizona Revised Statutes Section 40-360.21 et seq.
by participating as a member of the Arizona Blue Stake Center (AZ811) with the
necessary records and persons to provide location service of Company's facilities
upon receipt of a locate call or as promptly as possible, but in no event later than
two working days. A copy of their agreement or proof of membership shall be
filed with the County.

Company shall keep accurate installation records ("as built") of the location of all
the Company’s facilities in the streets and public ways and furnish them to the
County upon request in an acceptable electronic format. The acceptable electronic
format will be in accordance with the Maricopa County Department of
Transportation guidelines.

SECTION 7. Abandonment of the Fiber-Optics Communications Cable or Termination
or Revocation of Agreement.

If the Company abandons use of any facilities installed pursuant to the Agreement, then the
facilities are required to be removed from the streets and public ways to the satisfaction of
the County at Company's sole cost. Upon revocation or termination of this Agreement,
Company shall, to the satisfaction of the County and, without cost or expense to the County,
promptly remove its facilities unless permission is authorized in writing by the County Engineer
for such facilities to remain place in such manner as the County may prescribe. If Company
determines to remove such facilities, or any portion thereof, Company, at its sole expense,
shall restore the public right-of-way to the pre-existing condition under the supervision
and satisfaction of the County. The Arizona Blue Stake Center must be notified to record
facilities abandoned.

SECTION 8. Fees

A.

No Annual Fee will be charged for the portion of Company's System that is used by
the local network for intrastate telecommunications, i.e. those services where the

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Company operates and maintains that service (lit service) in accordance to an
Arizona Certificate of Convenience and Necessity. (CC&N). Otherwise, for each
conduit, Company must pay a single linear foot fee of $0.54 (subject to adjustment
pursuant to subsection I, below) if one or more of subsections B through E below
applies. Any conduit which includes innerducts within the conduit will be considered
one conduit.

B. If Company's System carries interstate traffic between and among Company's
interstate points of presence, Company must pay the County $0.54 per linear foot
of conduit located in the Public Rights- of-Way or on other County-owned property for
such use.

Cc. If Company leases its dark fiber to another carrier for purposes of carrying interstate
traffic between and among that telecommunications corporation's interstate points of
presence; Company must pay the County $0.54 per linear foot of conduit located in
the Public Rights- of-Way or on other County-owned property for such use.

D. If Company leases its dark fiber to any entity not included in Subsection C of this
Section of this Agreement; Company must pay the County $0.54 per linear foot of
conduit located in the Public Rights- of-Way or on other County-owned property for
such use.

E. If Company places empty conduit in the Public Rights-of-Way or on other
County-owned property for services other than those listed in Subsection A of this
Section, Company must pay the County $0.54 per linear foot of conduit.

P. On the annual anniversary of the Effective Date, Company will report to the County
the amount of linear feet of conduit permitted and installed in the Public Rights-of-
Way or on other County-owned property. The Annual Agreement Fee is
calculated by multiplying the current annual per linear foot fee by the linear footage
of conduit permitted or installed in the Public Rights-of-Way or other County-
owned property. The County must receive the Annual Agreement Fee by July 7th,
as stated in section J, before the County will issue any new encroachment permits
for additional facilities or equipment in the Public Rights-of-Way or other County-
owned property.

G. The County holds the right to audit the Company’s linear footage accounting
calculations to ensure the accuracy of section 8, paragraph F.

H. Payment by Company to the County shall be made in United States legal tender.
Payments shall be considered timely if postmarked on or before the due date. If
Agreement fees are not paid by the due date, interest of 1.5% per month shall accrue
on the entire amount due. Any payment received shall first be applied to any interest
charges owed, then to any penalty owed and then to any Company fee owed.

The Annual Fee may be reviewed every 5 years as necessary to assure that the
County remains competitively neutral in their licensing requirements.

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Annual payments shall be paid by July 7" of each calendar year. Payments shall be
mailed to:

Maricopa County Department of Transportation
Attn: Utility Coordination Engineering Branch
2901 West Durango Street

Phoenix, Arizona 85009

SECTION 9. Agreement Non-transferable

A.

This Agreement and the related rights and privileges shall not be assigned without the
express written consent of the County, which consent shall not be unreasonably
withheld or delayed. The transfer of all rights and privileges in whole or in
part to a parent, subsidiary or other affiliated entity of Company, or to any corporation
into which Company may be merged or consolidated or which purchases all or
substantially all of Company's assets, or for the purpose of obtaining financing, shall not
be deemed an Assignment hereunder, provided that the Company provided written notice
to the County of such transfer and further provided that: Company and the New Company
submit a binding Agreement and warranty to the County stating that: 1) New Company
has read, accepts, and agrees to be bound by the terms of the Agreement; 2) New
Company assumes all obligations, liabilities and responsibility pursuant to the Agreement
for the acts and omission of Company, known and unknown, for all purposes, and agrees
that the transfer shall not permit it to take any position or exercise any right which
Company could not have exercised.

After assignment, this Agreement and any amendments, shall be binding on the assignee
(New Company) to the same extent as it was upon the original Company.

The approval of any change in ownership interest shall include an assignment agreement
signed by the assignee, Company, and County. Company must provide County a copy of
the deed, Agreement, mortgage, lease or other written instrument evidencing such sale,
transfer or lease, certified and sworn to as correct by the Company. Company must notify
the County within 60 days of any change in mailing address.

SECTION 10. Termination of Agreement

A.

This Agreement hereunder may be terminated prior to the Term by the Company
upon giving sixty (60) days written notice to the County. County may suspend or
terminate this Agreement at any time it deems necessary for material breach of the
following:

1. Failure to file and maintain items required by the Agreement and
this Agreement

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ee Applicable Ordinances;

3. Failureto meet any conditions established inthis Agreement;

4, Any sale, lease, assignment, or transfer of control of this
Agreement in violation of Section 9 of this Agreement without
prior consent of the County;

5. Repeated failure, as determined by the County, to maintain facilities
and operations in the streets and public ways under the standards
prescribed by the County for safety, operation, maintenance, and
general work in the streets and public ways according to County
requirements and codes.

County shall make a written demand that Company comply within sixty (60) days, or
within such other specific period as may be agreed upon by the parties, regarding notice
to Company of a material breach. If a violation by the Company continues for a period
beyond that set forth in the written demand without written proof that corrective action
has been taken or is being actively and expeditiously pursued, County may revoke, alter,
suspend or cancel this Agreement.

County also may suspend or terminate this Agreement if there is any change in state law
effecting the authority of the County to issue Agreements or controlling fiber optics
cable placed in the streets or public ways or concerning the authority of the County to
issue this Fiber Optics Communication System Agreement, which changes are in
conflict with the provisions of this Agreement.

SECTION 11.General Conditions

A.

CG

Inthe event of conflict between the terms and conditions of this Agreement and the
terms and conditions on which the County can grant permission to use the streets
and public ways as set forth in applicable federal law or Arizona law, the
applicable federal law or Arizona law shall, without exception, control.

Any contractor who engages in for-profit activity and has 10 or more employees, certify it is
not currently engaged in, and agrees for the duration of this Agreement to not engage in, a
boycott of goods or services from Israel. This certification does not apply to a boycott
prohibited by 50 U.S.C. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842.

No forced labor. Company warrants and certifies that it does not currently, and agrees
for the duration of the contract that it will not, use:

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1. The forced labor of ethnic Uyghurs in the People's Republic of China.

2. Any goods or services produced by the forced labor of ethnic Uyghurs in
the People's Republic of China.

3. Any contractors, subcontractors or suppliers that use the forced labor or
any goods or services produced by the forced labor of ethnic Uyghurs in
the People's Republic of China.

If Company becomes aware during the term of the Agreement that the Company is not in
compliance with this paragraph, the Company shall notify the County within five business
days after becoming aware of the noncompliance. Failure of Company to provide a
written certification that the Company has remedied the noncompliance within one
hundred eighty (180) days after notifying the public entity of its noncompliance, this
Agreement shall terminate unless the Term of this Agreement shall end prior to said one
hundred eighty (180) day period.

SECTION 12. Right of Cancellation

This Agreement is subject to cancellation by the County pursuant to Arizona Revised
Statute § 38-511.

[Signature pages follow]

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IN WITNESS WHEREOF, the Parties have executed this Agreement.

Arcadian Infracom 1, LLC

APPROVED AND

By:

IN
nvVY Bs

Name: Dan Davis
Title: CEO

WITNESS:
By: ¢.

rt

Name: _JowatHan) Beemer

Title: _Assretanor Genee ar Cosel.

STATE OF MISSOURI )
)ss
COUNTY OF ST. LOUIS )

On this AY day of ToNUiUr Y 20 2.2_, before me, the undersigned,
personally appeared (air Davis \ of Art athian Fiitracom ti Cand
such authorized representative(s) acknowledged that this document was executed on behalf of the
corporation for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

My Commission Will Expire: Ge. Le, LO rb

NOTARY PUBLIC - NOTARY SEAL

STATE OF MISSOUR) Notary Public
‘COMMISSION EXPIRES JANUARY 28, 2026
Hao CHARLES COUNTY
COMMISSION #14309107

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MARICOPA COUNTY

Recommended by:

‘DocuSigned by:

Jennifer Tell. 1/18/2023
TFFFPENPUth, P.E. Date
Transportation Director

Approval As To Form:

Approved and Accepted by:

Clint Hickman, Chairman Date
Maricopa County Board of Supervisors

Attest by:

Clerk of the Board Date

‘DocuSigned by:
Cc Puke 1/18/2023

ep PMRInty Attorney

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