Supporting Document (5497c7b5...)

Item 9
cnreniMi mm.
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REPORf mm
Meeting Date: October 20, 2026
General Plan Element: Public Services and Facilities
General Plan Goal: Provide and maintain utility and infrastructure systems
ACTION
Wired Telecommunications License Agreement for Forged Fiber 37 LLC
1. Adopt Resolution 13795 approving contract 2026-159-COS, a Wired Telecommunications
License Agreement that allows Forged Fiber 37 to construct, operate, maintain, and repair a
telecommunications network within the City's rights-of-ways.
PURPOSE
Forged Fiber 37 LLC (the applicant) has applied to the City for permission to install an underground
conduit and fiber-optic cable network within the City and provide telecommunications services.
Telecommunications licenses are allowed under Chapter 47 of the Scottsdale Revised Code with City
Council approval.
Key Items for Consideration
- Will conform with Chapter 47 of the Scottsdale Revised Code
- Give residents in areas of the City an additional choice of internet provider
- This License Agreement requires the applicant to pay the applicable annual linear foot fee
provided in the Chapter 47-166.(2) of the Scottsdale Revised Code.
BACKGROUND
On February 8, 1996, the Federal Telecommunication Act of 1996 became law, which changed the
rules for competition and regulation in the communication industry to encourage marketplace
competition. This set the stage for the construction of high capacity, high speed fiber-optic
infrastructure networks allowing for the two-way communication and sharing of voice, text, data,
pictures, video, etc.
On July 2, 2001, the Scottsdale City Council approved Ordinance 3368, which added Article VII to
Chapter 47 of the City Revised Code. The purpose of the ordinance was to create a process and
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requirements for telecommunications corporations who wish to construct, operate, and maintain
telecommunications facilities within the City's public highways.
Scottsdale currently has 9 approved Wired Telecommunications Licenses, all of which allow these
corporations to have conduit and wires installed in the City's rights-of-ways and public utility
easements:
- Level 3
- TW Telecom
- ELI/Integra
- AT&T/TCA
Zayo (formerly Atlanta Gas & Light Networks - AGL)
Crown Castle
MCI Metro/Verizon
BAM Broadband
Light Source Communication LLC
On June 11, 2019, the Scottsdale City Council approved an amendment to Chapter 47 of the Scottsdale
Revised Code. With certain exemptions allowed by state statutes, the code update established an
annual linear foot fee structure for conduit installed within the public rights-of-ways (and public utility
easements), regardless of the status of the telecommunications provider. Staff believes the fee
structures established allows the City to better manage the rights-of-ways through fair, non-
discriminatory treatment of telecommunications providers and fair compensation for use of the City's
rights-of-ways.
PROPOSAL
Forged Fiber 37 has acquired consumer fiber-to-the-home assets from Lumen Technologies as part
of a transaction that closed in February 2026. The acquired assets include fiber-optic infrastructure
serving customers in multiple states, including Arizona.
As part of the continued operation and expansion of the fiber network. Forged Fiber 37, LLC has
requested a license from the City of Scottsdale to access, operate, maintain, and/or support
telecommunications infrastructure within the public rights-of-ways. The proposed License Agreement
establishes the rights and responsibilities of the parties and provides a framework for the Forged Fiber
37 LLC use of the licensed area for telecommunications purposes.
Forged Fiber 37, LLC with this contract, agrees to pay any lawful fee under the City Code. Alternatively,
both parties may agree to provide an in-kind exchange, where a credit is provided against the annual
linear foot fee if the telecommunications provider agrees to provide facilities or services for the City.
Such an agreement would be based on an evaluation that the provider can provide in-kind facilities
or services that are beneficial to the City.
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ANALYSIS & ASSESSMENT
This agreement will provide Forged Fiber 37 permission to install conduit, manholes, splicing vaults
and fiber-optic cables in the City rights-of-ways.
All engineering and design of the network will require City plan approval and permits prior to
construction. The provider is required to pay all applicable plan review and permit fees, including
street cut surcharges. Future network expansion is allowed by this contract with approval from the
City's Telecom Policy Coordinator.
Within 10 days of the approval of this contract, the applicant shall submit a Letter of Credit to the City
in the amount of $100,000.00 and shall provide proof of insurance and indemnification during the
entire term of this agreement in the amounts specified in Article XI of the agreement.
The agreement has an initial term of ten (10) years, with up to three (3) additional five (5) year
extensions.
RESOURCE IMPACTS
Staffing, Workload Impacts
This contract will be managed by the City's Telecom Policy Coordinator. During the plan review and
construction/inspection phase of the project, there will be an increase in the workload of the City's
Engineering, Transportation, and Inspection Services departments.
Maintenance Requirements
After installation, all maintenance, repair and relocation of the fiber-optic cables and supporting
infrastructure will be the responsibility of Forged Fiber 37. Before performing any maintenance,
repair, or relocation work in the rights-of-ways, the applicant must comply with the City's
requirements of plan review, permits and traffic control requirements.
Cost Recovery
As part of the telecommunications license application process, the applicant submitted a license
application fee of $2,000.00 that is required in Section 47-164 of the Scottsdale Revised Code. The
applicant will pay the City all applicable plan review and permits fees, inspection fees, street
surcharge fees, and any other fees that may be necessary for the installation, operation, maintenance
and repair of the network. The City will also receive either the applicable annual linear foot fee for
conduit installed within the rights-of-ways or an in-kind exchange for facilities or services to the City.
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OPTIONS & STAFF RECOMMENDATION
Recommended Approach
Adopt Resolution 13795 approving contract 2026-159-COS, a Wired Telecommunications Right-of-
Way License Agreement that allows Forged Fiber 37, LLC to construct, operate, maintain and repair
a telecommunications network within the City's rights-of-ways.
RESPONSIBLE DEPARTMENT
Planning and Development Services
STAFF CONTACT
Keith Niederer
Telecom Policy Coordinator
480-312-2953
kniederer@scottsdaleaz.gov
APPROVED BY
9/30/2026
Keith Niederer, Telecom Policy Coordinator Date
480-312-2953
kniederer@scottsdaleaz.gov
Date/Izozl,
Erin Perreault, Planning & Development Director
480-312-2664
eperreault@scottsdaleaz.gov
ATTACHMENTS
1: Resolution No. 13795
2: Contract 2026-159-COS
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RESOLUTION NO. 13795
A RESOLUTION OF THE COUNCIL OF THE CITY OF
SCOTTSDALE, MARICOPA COUNTY, ARIZONA, AUTHORIZING
WIRED TELECOMMUNICATIONS RIGHT-OF-WAY LICENSE
AGREEMENT NO. 2026-159-COS FOR FORGED FIBER 37. LLC
TO CONSTRUCT. OPERATE, MAINTAIN. AND REPAIR A
TELECOMMUNICATIONS NETWORK IN THE CITY’S RIGHTS-
OF-WAYS
WHEREAS, the City of Scottsdale has authority by virtue of federal and state statutes, the
City’s police power, and other City powers and authority to grant, renew, deny, amend, and
terminate licenses for the installation, operation, and maintenance of private improvements within
its public rights-of-ways (the “ROW’) and to regulate use of the ROW; and
WHEREAS, Forged Fiber 37, LLC (“Licensee”) desires to construct, operate, maintain,
and repair a wired telecommunications network (“the Network”) within the City’s ROW; and
WHEREAS, City is willing to grant to Licensee a license (the “License”) to install, operate,
maintain, and repair the Network in the ROW; and
WHEREAS, without limitation, City is authorized to grant the License pursuant to
Scottsdale Revised Code, Chapter 47.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Scottsdale, Maricopa
County, Arizona, as follows:
Section 1. The Mayor is hereby authorized and directed to execute contract 2026-159-
COS for Forged Fiber 37, LLC to construct, operate, maintain, and repair a telecommunications
network within the City’s rights-of-ways as set forth in said Agreement.
PASSED AND ADOPTED by the Council of the City of Scottsdale, Maricopa County,
Arizona, this 20“’ day of October, 2026.
CITY OF SCOTTSDALE, an Arizona
municipal corporation
Lisa Borowsky, Mayor
ATTEST:
Ben Lane, City Clerk
APPROVED AS TO FORM:
Saritaella, Ci^Jh^rney
By: Jennifer Fernandez/^enior Assistant City Attorney
ATTACHMENT 1
19662653 Page 1 of 1

Forged Fiber 37, LLC
Contract No. 2026-159-COS
Resolution No. 13795
WIRED TELECOMMUNICATIONS RIGHT-OF-WAY LICENSE AGREEMENT
THIS WIRED TELECOMMUNICATIONS RIGHT-OF-WAY LICENSE AGREEMENT (“Agreement")
is made this____ day of ______________ , 2026, (“Effective Date”) by and between the City of
Scottsdale, an Arizona municipal corporation (“Licensor” or “City”), and Forged Fiber 37, LLC, a
Delaware limited liability company (“Licensee”).
RECITALS
A. Licensor owns public street and alley rights-of-way and public utility easements
within the boundaries of the City of Scottsdale (the “Boundaries”) that are designated for use by
public utility companies for installation, operation and repair of water, electrical and other public
utilities pursuant to franchises, licenses or other agreements between utility companies and
Licensor (collectively, the “Right-of-Way”).
B. Licensee desires to install and operate fiber optic lines and related equipment (the
“Private Plant”) on a portion of the Right-of-Way (the “Use Areas”), subject to the requirements of
this Agreement, to provide wholesale broadband transmission services. The boundaries of the Use
Areas are depicted on Exhibit “A” attached hereto (the “Use Areas Map”).
C. Licensor desires to grant to Lessee a license to install, maintain, operate, and repair
the Private Plant (the “Permitted Uses”) subject to the requirements of this Agreement.
D. Licensor and Licensee desire to provide a method whereby additionai portions of the
Right-Of-Way (the “New Use Areas”) can be added to this Agreement.
E. Licensor desires to reserve rights to construct and use and allow others to constnJct
and use all manner of additional improvements upon the Use Areas.
F. Various laws (the “Telecommunications Laws”) authorize Licensor to regulate its
streets, alleys and public utility easements, and to grant, renew, deny, amend and terminate licenses
for and othenvise regulate the installation, operation and maintenance of telecommunications
systems. The Telecommunicettions Laws include, without limitation, the following:
1) Chapter 47 of the Scottsdale Revised Code entitled “Streets, Sidewalks and Public
Works Generally” (the “Street Code”).
2) The Scottsdale City Charter.
3) A.R.S. §§ 9-581 through 9-583 and other state and federal statutes.
4) The Constitution of the State of Arizona.
5) Other applicable federal, state and local laws, codes, rules and regulations.
6) Licensor’s police powers, its authority over public rights-of-way, and its other
governmental powers and authority.
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Contract No. 2026-159-COS
G. There may be portions of the Right-of-Way (the Third-Party Areas") upon which the
Private Plant may not be built without permission (the Third Party Permission") firom one or more
third parties (the Third Parties”). The Third-Party Areas are areas such as canal crossings Or other
areas that for any reason have limited Right-of-Way dedications or that have regulatory use
restrictions imposed by a Third Party.
NOW, THEREFORE, for and in consideration of the foregoing, the amounts hereinafter to
be paid by Licensee, and the covetiants and agreements contained herein to be kept and performed
by Licensee, and other good and valuable consideration. Licensor and Licensee agree as follows:
I. USE AREAS
1. Use Areas. Licensor hereby grants to Licensee a license to use the Use Areas as follovrrs:
1.1 Use Areas Defined. The Use Areas are the portion of the Right-of-Way shown on
the Use Areas Map. The Right-of-Way is limited to the public street and alley rights-of-way and public
utility easements that are owned by Licensor from time to time comprising Licensor’s public utility
easement network. The land comprising the Right-of-Way will decrease, increase, and othenMse
Change' over time due to abandonments, dedications, annexations, de-annexations, and other
events that affect the amount of land included in Licensor’s public utility right-of-way network
inventory. This Agreement shall not allow Licensee to use Right-of-Way that is abandoned,
condemned, removed from the Boundaries, or is otherwise no longer part of Licensor’s public utility
easement network.
1.2 Non-Use Areas. Licensee shall not use or occupy any portion of the Use Areas
other than as necessary to perform its obligations under this Agreement. The Private Plant shall be
confined to the Use Areas.
1.3 New Use Areas. Licensor and Licensee may elect to add New Use Areas to
this Agreement subject to the following:
1.3.1 When Licensee desires to add New Use Areas to the Use Areas, Licensee
shall give notice to Licensor containing the following:
1.3.1.1 A map showing the area proposed to be added to the Use Areas.
1.3.1.2 A map showing the total Use Areas, including the proposed New Use
Areas.
1.3.2 Within thirty (30) days after receiving such a notice. Licensor shall inform
Licensee whether Licensor approves the proposed New Use Areas.
1.3.3 Upon addition of New Use Areas, the New Use Areas shall be part of the Use
Areas for all purposes under this Agreement. All New Use Areas shall be subject to all Provisions of
this Agreement
1.3.4 Licensor’s City Manager or designee shall have authority Without further act
by Licensor’s City Council to consent for Licensor to the addition of New Use Areas and othenwise
act for Licensor under this paragraph.
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Contract No. 2026-159-COS
1.4 Condition of Title., Licensee’s rights hereunder are subject to all recorded or
unrecorded matters or conditions of title to or agreements or documents regarding the Use Areas
(the “Site Documents”). Licensee’s rights to Use the Use Areas under this Agreement are limited to
a subset of the interests held by Licensor from time to time. Licensee shall not violate the Site
Documents.
1.5 Condition of Use Areas. The Use Areas are being made available in an “as is”
condition without any express or implied warranties of any kind, including Without limitation any
warranties or representations as to their condition or fitness for any use.
1.6 No Real Property Interest. Notwithstanding any provision hereof to the contrary,
and notwithstanding any negotiation, correspondence, course of performance or dealing, or other
statements or acts by or between the parties. Licensee’s rights herein are limited to use and
occupation of the Use Areas for the Permitted Uses. Licensee’s rights in the Use Areas are limited
to the specific limited license rights created by this Agreement.
1.7 Limited Rights in Use Areas. This Agreerrtent grants Licensee no rights to or use of
the Use Areas other than those expressly granted herein.
1.8 Reserved Right and Competing Users and Activities. Notwithstanding anything in
this Agreement to the contrary. Licensor specifically reserves to itself and excludes from this
Agreement a non-exclusive delegable right (the “Reserved Righf) over the entire Use Areas for all
manner of real and personal improvements and for stieets, sidewalks, trails, landscaping, utilities
and every other land use of every description. Without limitation:
1.8.1 Competing Users. Water pipes, pavement, and other facilities may all be
located within the same Segment of Right-of-Way with portions of the Private Plant. Licensee
accepts the risk that Licensor and others (the “Competing Users”) may now or in the future install
their focilities in the Use Areas in locations that make parts of the Right-of-Way unavailable for
Licensee’s use. The Competing Users include without limitation Licensor, the State of Arizpna and
its political subdivisioris, the public, and all manner of utility companies and other existing or future
users of the Use Areas.
1.8.2 Competing Activities. Licensee accepts the risk that there may now or in the
future exist upon the Use Areas all manner of work and improvements upon the Use Areas (the
“Competing Activities”). The Competing Activities include without limitation any and all laying
construction, erection, installation, use, operation, repair, replacement, removal, relocation, raising,
lowering. Widening, realigning or other dealing with any or all of the following, whether above, upon
or below the surface of ttie Use Areas and whether occasioned by existing or proposed uses of the
Right-of-Way or existing or proposed uses of adjoining or nearby land:
1.8.1.1 All manner of streets, alleys, sidewalks, trails, ways, traffic
control devices, subways, tunnels, trains and gates of every description, and all manner of other
transportation facilities and their appurtenances.
1.8.1.2 All manner of pipes, wires, cabies, conduits, sewers, pumps,
valves, switches, conductors, connectors, poles, supports, access points and guys of every
description, and all manner of other utility facilities and their appurtenances.
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Contract No. 2026-159-COS
1.8.1.3 All manner of canals, drains, bridges, viaducts, overpasses,
underpasses, culverts, markings, balconies, porches, overhangs and other encroachments of every
description and all manner of other facilities and their appurtenances.
1.8.1.4 All other uses of the Right-of-Way that Licensor may permit
from time to time.
1.8.3 Reserved Right. The Reserved Right includes the right to use and allow
other Competing Users to conduct Competing Activities at any location upon the Use Areas.
1.8.4 Licensor’s Rights Cumulative. All of Licensor’s Reserved Rights under
various provisions of this Agreement shall be cumulative to each other.
1.8.5 Use Priorities. This Agreement does not grant to Licensee or establish for
Licensee any exclusive rights or priority in favor of Licensee to use the Use Areas. Licensee’s use of
the Use Areas shall be subordinate to all Competing Activities in accordance with applicable law.
Licensee shall not obstruct or Interfere with or prevent any Competing User from using the Use
Areas, provided that if the Competing User is not a governmental entity (a private entity) and said
Competing User seeks to place or modity facilities in a Use Area where Licensee has lawfully placed
and maintains Licensee ^duties, nothing in this Agreement shall be construed to affect any right
Licensee may have to be reimbursed by said Competing User for any modification, removal, or
relocation of Licensee’s previously-existing fadlities undertaken to accommodate said Competing
User's desired use.
1.8.6 Regulation. Licensor shall have full authority to regulate use of the Use
Areas and to resolve competing demands and preferences regarding use of the Use Areas and to
require Licensee to cooperate and partidpate in implementing such resolutions. Without limitation.
Licensor may take any or all of the following into account in regulating use of the Use Areas:
1.8.6.1 All timing, public, operational, financial and other fadors affecting
existing and future proposals, needs and plans for Competing Activities.
1.8;6.2 All other fadors Licensor may consider relevant, whether or not
mentioned in this Agreement
1.8.6.3 Differing regulatory regimes or laws applicable to daimed rights,
public benefits, community needs and all other fadors relating to Competing Users and Competing
Adivities.
1.8.7 Private Plant Relocation. Upon Licensor’s request Licensee shall
temporarily or permanently relocate or othenvise modify the Private Plant (the “Relocation Work”) as
follows:
1.8.7.1 Licensee shall perform the Relocation Work at its own expense when
required by Licensor’s City Manager or designee for any public purpose as determined by the City.
1.8 7.2 The Relocation VVork indudes all work determined by Licensor to be
necessary to accommodate Competing Adivities, including without limitation temporarily or
permanently removing, proteding, supporting, disconneding or relocating any portion of the Private
Plant.
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Contract No. 2026-159-COS
1.8.7.3 Within ninety (90) days after service of notice by Licensor, Licensee
shall remove the designated portions of the Private Plant, or in the event that, by the nature of the
removal, such removal cannot reasonably be performed within the ninety-day period, Licensee shall
take reasonable steps to timely commence removal of the Facilities and diligently prosecute the
removal to completion. Licensor may perform any part of the Relocation Work that has not been
performed within ninety (90) days or is not being diligently prosecuted after ninety (90) days after
notice from Licensor. Licensee shall reimburse Licensor for its actual costs in performing any
Relocation Work.
1.8.7.4 City has no obligation to move Licensee’s, City’s or others’ facilities.
1.8.7.5 Licensor and not Licensee shall be entitled to use any of Licensee's
facilities that are abandoned in place or that are not timely relocated.
1.8.7.6 All Relocation Work shall be subject to and comply with all other
provisions of this Agreement.
1.8.7.7 Licensee’s relocation obligations hereunder are not intended to create
any legal rights in any third party. Without limitation, no third party shall be a third party beneficiary
of such obligations, and, therefore, any and all obligations third parties may have to bear the cost of
relocating Licensee’s facilities in connection with Competing Activities shall not be diminished by
Licensee’s relocation obligations hereunder.
1.8.8 Disruption by Competino Users. Neither the Licensor nor any governmental
Competing User, nor their respective agents, contractors, or employees, shall be liable to Licensee,
its customers, or third parties for any service disruption or other harm caused to them or the Private
Plant due to Competing Users or Competing Activities.
1.8.9 Emergency Disruption by Licensor. Licensor may remove, alter, tear out,
relocate or damage portions of the Private Plant in the case of fire, disaster, or other emergencies
if Licensor’s City Manager or designee deems such action to be reasonably necessary under the
circumstances. In such event, neither Licensor nor any agent, contractor nor employee of
Licensor shall be liable to Licensee or its customers or third parties for any harm so caused to
them or the Private Plant. When practical, Licensor shall consult with Licensee in advance to
assess the necessity of such actions and to minimize to the extent practical under the
circumstances damage to and disruption of operation of the Private Plant. In any event. Licensor
shall inform Licensee after such actions. Licensee’s work to repair or restore the Private Plant
shall be Relocation Work.
1.8.10 Public Safety. If the Private Plant or any other Licensee equipment,
improvements or activities within the Use Areas present any immediate hazard or impediment to the
public, to Licensor, to other improvements or activities within or without the Use Areas, or to
Licensor’s ability to safely and conveniently operate the Right-of-Way or perform Licensor’s utility,
public safety and other public health, safety and welfare functions, then Licensee shall immediately
remedy the hazard, comply with Licensor’s requests to secure the Use Areas, and otherwise
cooperate with Licensor at no expense to Licensor to remove any such hazard or impediment.
Licensee’s work crews shall report the Use Areas within two (2) hours of any request by Licensor
under this paragraph.
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Contract No. 2026-159-COS
II. TERM OF AGREEMENT
2. Term of Agreement. The tenn of this Agreement is as follows:
2.1 Original Tenn Expiration. The original term of this Agreement shall terminate
11:59 p.m. on the date that is the tenth (10“’) annual anniversary of the Effective Date, unless sooner
terminated as set forth in this Agreement.
2.2 Extensions. The term of this Agreement may be extended for three (3) additional
five (5) year periods subject to the following:
2.2.1 No extension shall be effective without the consent of both Licensor and
Licensee.
2.2.2 Both Licensor and Licensee may withhold their consent to an extension in
their sole and absolute discretion.
2.2.3 Both Licensor and Licensee shall indicatewhether or hot they consent to an
extension by giving notice of consent to the other not more than one hundred eighty (180) days prior
to the end of the initial tenn (or, in the case of the second or subsequent extension, the prior
extension).
2.3 Holding Over. In any circumstance whereby Licensee would remain in possession
or occupancy of the Use Areas after the expiration of this Agreement, such holding over shall operate
as a limited renewal or extension of this Agreement from month to month that may be terminated at
any time by Licensor upon sixty (60) days’ notice to Licensee, or by Licensee upon sixty (60) days’
notice to Licensor.
2.4 Agreement Accepted. By accepting this Agreement, Licensee covenants and agrees
to perform and be bound by each and all of the temns and conditions imposed by the Street Code,
the Telecomrnunications Laws, and this Agreement.
III. LICENSEE’S PAYMENTS
3. Licensee’s Payments. Licensee shall make payments to Licensor as follows:
3.1 Fee Payment Items. Licensee shall pay to City each of the following separate and
cumulative amounts (collectively the “Fee Payment”):
3.1.1 An amount (the “Annual Fee Paymenf) based on Licensee’s use of the
Private Plant.
3.1.2 An amount (the “Permit Fee Paymenf) based on Licensee’s permit review
and other costs as set out below.
3.1.3 An amount (the “Violation Fee Paymenf) based on certain breaches by
Licensee of this Agreement as set out below.
3.1.4 All other amounts required by this Agreement.
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Contract No. 2026-159-COS
3.2 Annual Fee Payment Amount. The amount of the Annual Fee Payment shall be as is
set forth in Chapter 47 of the Scottsdale City Code, specifically SRC § 47-166 (as may be amended
from time to time).
3.3 in-Kind Facilities In-Lieu of Annual Fee Payment. In accordance with S.R.C. § 47-
166a, Licensee and Licensor, through its City Manager or designee, may agree by separate written
agreement, at any time, to Licensee's provision of in-kind ^cilities in-lieu of all or any portion of the
Annual Fee Payment that would otherwise be lawfully due and payable under the Scottsdale City
Code.
3.4 Permit Fee Payment Amount. The amount of the Permit Fee Payment shall be the
total amount of all applicable ordinary fees (the “Ordinary Permit Charges”) payable to Licensor
for Licensor’s review of plans, issuance of permits, and inspection of Licensee’s work upon the
Use Areas.
3.5 Fee Payment Cumulative, All items of Fee Payment shall be cumulative and
separate from each other.
3.6 Fee Payment Schedule. Except as specifically provided elsewhere for the
Annual Fee Payment and the Violation Fee Payment, Licensee shall pay all Fee Payment on the
following schedule:
3.6.1 Licensee shall pay Penn|t Fee Payment at the tirnes and in the amounts
specified by Licensor’s normal processes for Ordinary Permit Charges.
3.6.2 All other Fee Payment shall be payable quarterly in arrears on the last day of
the first month of the next calendar quarter. For example, the Violation Fee Payment for the first
calendar quarter of a year shall be payable on or before April 30.
3.7 Fee Payment Amount Report. Each installment of Fee Payment other than Permit
Fee Payment shall include a report showing the manner in which each component of the Fee
Payment was calculated. The report shall summarize the transactions giving rise to the License Fee
Payment.
3.8 Assurances.
3.8.1 Letter of Credit. Prior to receiving any penriit to perform any work in
connection with this Agreement, and in no event later than ten (10) days following the Effective Date,
Licensee shall at its own expense obtain and provide to the City a letter of credit as follows:
3.8.1.1 The amount of the letter of cr'edit shall be One Hundred Thousand
Dollars ($100,000).
3.8.1.2 The letter of credit is an additional security deposit for Licensee’s
performance of all its duties and obligations under this Agreement.
3.8.1.3 The letter of credit shall meet the requirements listed on Exhibit
“B” attached hereto.
3.8.1.4 Licensee shall provide and maintain the letter of credit during the
entire term of this Agreement as follows:
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Contract No. 2026-159-COS
3.8.1.4.1 No later than thirty (30) days before a letter of credit is
required, Licensee shall give Licensor notice containing
a copy of the proposed form of letter of credit, along with
a copy to Licensor’s financial services general manager,
3.8.1.4.2 Licensee shall cause the original letter of credit to be
delivered to Licensor’s financial services general
manager.
3.8.1.4.3 Licensee shall pay all costs associated with the letter of
credit, regardless of the reason or manner such fees are
required.
3.8.1.4.4 Within fourteen (14) days after Licensor gives Licensee
notice that Licensor has drawn on the letter of credit,
Licensee shall cause the letter of Credit to be
replenished to its prior amount.
3.8.1.5 Licensor may draw on the letter of credit upon any Event of Default,
and in the following circumstances whether or not they are an Event
of Default:
3.8.1.5.1 Licensee fails to cause the letter of credit to be renewed,
extended, increased in amount or othenvise maintained
as required by this agreement.
3.8.1.5.2 Licensee fails to make monetary payments required
under this Agreement.
3.8.1.5.3 The issuer of the letter of credit fails to imrnediately
honor a draft on the letter of credit or otherwise
repudiates or fails to honor the letter of credit.
3.8.1.6 Licensor shall also have such additional rights regarding the letter
of credit as may be provided elsewhere in this Agreement.
3.9 Late Fees. Fee Payment is deemed paid only when Licensor actually receives
good cash payment. Should any Fee Payment not be paid on or before the date due, a late fee shall
be added to the amount due in the amount One Hundred Dollars ($100). Furthemiore, any Fee
Payment that is not timely paid shall accrue simple interest at the rate of one and one-half percent
{VA %) per month from the date the amount first came due until paid. Licensee expressly agrees
that the foregoing represent fair and reasonable estimates by Licensor and Licensee of Licensor’s
costs (such as accounting, administrative, legal and processing costs, etc.) in the event of a delay in
payment of Fee Payment. Licensor shalf have the right to allocate payments received from Licensee
among Licensee’s obligations.
3.10 Fee Payment Amounts Cumulative. All amounts payable by Licensee hereunder or
under any tax, assessment or other existing or future ordinance, law or other contract or obligations
to the City of Scottsdale or the State of Arizona shall be cumulative and payable in addition to each
other payment required hereunder, and such amounts shall not be credited toward, substituted for,
or setoff against each other in any manner.
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IV. USE RESTRICTIONS
4. Use Restrictions. Licensee’s use and occupation of the Use Areas shall in all respects
confomn to all and each of the following cumulative provisions (collectively the “Restrictions”):
4.1 Pemriitted Uses. Licensee shall use the Use Areas solely for the Permitted
Uses and shall conduct no other activity at or from the Use Areas. The Permitted Uses are limited to
the following:
4.1.1 Constructing, maintaining, repairing and operating the Private Plant as
described in this Agreement.
4.1.2 Such additional related uses for which Licensor may give or retract consent
from time to time. Such additional uses may only be conducted following Licensor's giving to
Licensee notice of such consent. Licensor may terminate or impose lawful conditions and limitations
on such consent from time-to-time in Licensor’s sole and absolute discretion.
4.2 Prohibited Uses. All other uses of the Use Areas are prohibited.
4.3 Equipment Allowed. The Private Plant is limited to the equipment listed on the list
attached hereto as Exhibit “C” (the “Equipment List”).
4.4 User Contracts. Licensee may enter into contracts between Licensee and third
parties or Affiliates in the ordinary course of Licensee’s business for use of portions of the Private
Plant (the “User Contracts”). As used in this Agreement, “Affiliate” means any entity that directly or
indirectly controls, is controlled by, or is under common ownership or control with Licensee, where
“control" means the power to direct or cause the direction of the management and policies of an
entity, whether through ownership of voting securities, by contract, or otherwise. User Contracts shall
be subject to all requirements and provisions of this Agreement and the following:
4.4.1 No person shall transmit data over the Private Plant or otherwise use the
Private Plant except under a User Contract with Licensee.
4.4.2 No third parties or Affiliates are authorized to perform any construction
maintenance, repair or other work of any description in the Use Areas related to the Private Plant.
All User Contracts shall prohibit all third parties and Affiliates from performing any construction,
maintenance, repair or other work of any description in the Use Areas related to the Private Plant.
4.4.3 Licensee may use a User Contract to either “sell” or “lease” fibers or conduit
in the Private Plant or otherwise grant permission to a third party or Affiliate to use fibers or conduit
in the Private Plant. But all User Contracts and all rights and interests created or affected in any way
thereby, however denominated, shall be subject to and limited by all provisions of this Agreement.
In no event shall Licensor be bound in any way by any provision of any User Contract. Licensee shall
not represent to any User Contract party that Licensor bears any obligation or liability to that party,
and all User Contracts shall include a provision stating that Licensor is not a party to the User
Contract and assumes no obligation or liability thereunder.
4.4.4 Within thirty (30) days after a notice of request by Licensor, such notice to be
given not more often than once in any twelve (12) month period. Licensee shall deliver to Licensor a
notice describing the User Contracts. The notice shall state the following:
4.4.4.1 The name of the third party or Affiliate.
4.4.4.2 The name, title, address, telephone number, and email address of a
person with authority to speak for the third party or Affiliate.
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4.4.4.3 The route of the proposed service.
4.4.4.4 The street address within the City of Scottsdale, if any, where data
under the User Contract will be introduced to or received from the Private Plant.
4.4.4.5 The duration of the User Contract and any extension rights.
4.4 4.6 Affiliate User Contract Notice. Licensee shall give Licensor written
notice within thirty (30) days of executing any User Contract with an Affiliate. Such notice shall include
all information specified in Section 4.4.4.
4;4.5 Affiliate Regulated Activities. Licensee shall ensure that nO Affiliate uses the Private
Plant for Regulated Activities. Any such use without Licensor’s prior written consent and without the
Affiliate separately obtaining all required approvals shall constitute an Event of Default.
4.4.6 Contractors. Licensee may use contractors and subcontractors to perfomn physical
work in the Right-of-Way, provided that:
(a) Licensee remains fully responsible for all acts, omissions, and obligations of such
contractors and subcontractors;
(b) no contractor or subcontractor shall have any rights under this Agreement or any right to
use the Right-of-Way except through Licensee; and
(c) no contractor or subcontractor shall be deemed a Licensee, assignee, operator, or holder
of any interest in the Private Plant or this Agreement.
(d) contractors shall comply w'ith all applicable provisions of the Agreement.
4.5 Regulated Activities. The following additional requirements apply to certain uses
(the “Regulated Activities”) of the Private Plant:
4.5.1. The following are Regulated Activities:
4.5.1.1 Use of the Private Plant for cable television or video services as
defined by applicable Federal, state or local law or regulation.
4.5.1.2 Use of the Private Plant for open video service as defined by
applicable Federal, state or local law Or regulation.
4.5.2. Licensee shall not use the Private Plant for Regulated Activities without
proper formal authorization from Licensor, separate from this Agreement.
4.5.3. Licensee may enter into User Contracts that allow third parties or Affiliates to
use the Private Plant for the Regulated Activities only if such third party or Affiliate has already
entered into an agreement with Licensor that allows the third party or Affiliate to conduct the
Regulated Activity in the Use Areas.
4.5.4. If Licensee ever Obtains or seeks federal, state or local approval to provide
Regulated Activities over the Private Plant, this Agreement shall remain in effect according to its
terms and Licensee shall Continue to pay the Use Fees required by this Agreement, regardless of
any legal or regulatory provisions, permits or other processes or rules that might now or hereafter
provide otherwise.
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4.5.5. Without limiting the other amendment or waiver provisions of this Agreement,
no change to or waiver of this Agreement’s provisions regarding Regulated Activities is effective
without a formal amendment to this Agreement executed by Licensor after approval by Licensor’s
City Council. Licensor has not promised any such amendment or waiver. This Agreement does not
prohibit the parties frorn entering into other agreements regarding the Private Plant, should both
parties desire to do so in their sole and absolute discretion.
4.5.6. Affiliate Regulated Activities. Affiliates of Licensee are subject to all
requirements of Section 4.5. Anv Affiliate use of the Private Plant for Regulated Activities shall also
be governed bv Section 4;4.5.
4.6 Signs. All signage is prohibited except in compliance with the following requirements:
4.6.1 Signs Reguired. Licensee shall install and thereafter maintain all signs
and markings that the Private Plant and Licensee’s activities may make necessary for safe use of
the Use Areas by the public. Licensor, Licensee and other persons who may be at the Use Areas at
any time for any reason.
4.6.2 Signs Covered. This paragraph shall apply to all signs, designs,
monuments, decals, graphics, posters, banners, markings, and other manner of signage;
4.7 Lighting, Lighting is prohibited except as this Agreement may specifically allow
for construction activities.
4.8 Noise. Except during approved constmction, noise at the Use Areas is subject to the
following limitations:
4.8.1 Except for vehicle backup alarms and other safety devices, outdoor
loudspeakers, sirens or other devices for making noise are prohibited.
4.8.2 All equipment must be equipped with appropriate mufflers and other sound
control devices.
4.9 Governmental and Neighborhood Relations. Licensee shall conduct ite activities in
coordination with Licensor as necessary to maintain good relations with all Third Parties
governmental and other entities having jurisdiction over the Use Areas, all other occupants of the
Use Areas, and the occupants of surrounding real property. Licensee shall Immediately give to
Licensor notice of any actual or threatened dispute, violation or other disagreement relating to the
Use Areas. Licensee is not an agent for Licensor. Without limitation, such entities (who are not third-
party beneficiaries to this Agreement) include (to the extent that such entities have jurisdiction over
the Use Areas):
4.9.1 State of Arizona
4.9.2 Maricopa County
4.9.3 Bureau of Reclamation
4.9.4 Central Arizona Water Conservation District
4.9.5 Salt River Project
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4.10 Licensee’s Aoent. Licensee shall at all times retain on call available to Licensor
by telephone an active, qualified, competent and experienced person to supervise all activities upon
the Use Areas and operation of the Private Plant and who shall be authorized to represent and act
for Licensee in matters pertaining to all emergencies and the day-to-day operation of the Right-of-
Way and all other matters affecting thjs Agreement. Licensee shall also provide notice to Licensor of
the name, street address, electronic mail address, and regular and after-hours telephone and
electronic mail address of a person to handle Licensee’s affairs and emergencies at the Right^of-
Way. Unless and until Licensee gives notice to Licensor of a new representative, Licensee’s
representative shall be the staff of Licensee’s network operations center. The current telephone
number of the network operations center is 480-445-9151. Any change shall be given in writing hand-
delivered to Licensor’s contract admiriistrator for this Agreement as well as in the manner stated for
notices under this Agreement.
4.11 Coordination Meetings. Licensee shall meet with Licensor and other Right-of-
Way users from time to time as requested by Licensor to coordinate and plan construction on the
Right-Of-Way and all matters affected by this Agreement.
4.12 Hazardous Substances. Licensee’s activities upon or about the Right-of-Way
shall be subject to the following regarding any hazardous or toxic sub^nces, waste or materials, or
any substance now or hereafter subject to regulation under the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. §§ 9601, etseg., the Arizona Hazardous Waste
Management Act, A.R.S. §§ 49-901, etseg., the Resource Conservation and Recovery Act, 42
U.S.C. §§ 6901, etseg., or the Toxic Substances Control Act, 15 U.S.C. 2601, etseg., or any other
federal, state, county, or local law pertaining to hazardous substances, waste or toxic substances
and their reporting requirements (collectively "Toxic Substances”);
4.12.1 Licensee shall not produce, dispose, transport, treat, use or store any Toxic
Substances upori or about the Right-of-Way. The prohibitions of the preceding sentence only shall
not apply to:
4.12.1.1 Ordinary gasoline, diesel fuel or other fuels or lubricants
necessary for ordinary Use in motor vehicles and ordinary construction machinery permitted upon
the Right-of-Way. Such materials must be properly and lawfully contained in ordinary quantities in
ordinary tanks and receptacles that are permanently installed in such vehicles and machinery, or
small portable tanks that are being used for fueling permitted construction machinery (“Minimal
Fueling”).
4.12.1.2 Electric backup batteries.
4.12.2 Licensee shall dispose of any Toxic Substances a\way from the Right-of-Way
as required by law and as reasonably required by Licensor.
4.12.3 Licensee shall not use the Right-of-Way in a manner inconsistent with
regulations issued by the Arizona Department of Environmental Quality, or in a manner that would
require a permit or approval from the Arizona Department of Environmental Quality or any other
governmental agency. The preceding sentence does not prohibit ordinary permits for control of dust
during construction permitted by this Agreement.
4.12.4 In addition to and without limitation of any other indemnities or obligations.
Licensee shall pay, iridemnify, defend and hold Licensor harmless against any loss or liability
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incurred by reason of any Toxic Substance on or affecting the Right-of-Way Use Areas attributable
to or caused by Licensee or anyone using the Right-of-Way under this Agreement.
4.12.5 Licensee shall immediately notify Licensor of any Toxic Substance at any
time discovered or existing upon the Right-of-Way. Licensee is not responsible for Toxic Substances
that may exist at the Right-of-Way if Licensee, Licensee’s contractors, and other persons using the
Right-of-Way under this Agreerhent did not knowingly or negligently do any of the following;
4.12.5.1 Participate in the Toxic Material coming to the Right-of-Way.
4.12.5.2 Faii to immediately report the Toxic Material to Licensor.
4.12.5.3 Participate in spreading or othenwise disturbing the Toxic
Material.
4.12.5.4 Exacerbate the effects of the Toxic Material or the difficulty or
cost of dealing with the Toxic Material.
4.12.6 Licensee understands the hazards presented to persons, property and the
environment by dealing with Toxic Substances. Licensee acknowledges the possibility that the
Right-of-Way may contain actual or presumed asbestos and other Toxic Substances containing
materials.
4.12.7 Within twenty-four (24) hours after any violation by Licensee of this
Agreement pertaining to Toxic Substances, Licensee shail give Licensor notice reporting such
violation.
4.13 Gommunications Operations Restriction. Licensee shall not instali, operate, or
allow the use of equipment, methodology or technology that may or would interfere With the optimum
effective use or operation of Licensor’s existing or future fire, emergency or other communications
equipment, methodology or technology (i.e., voice or other data carrying, receiving or transmitting
equipment). If such interference should occur. Licensee shall immediately discontinue using the
equipment, methodology or technology that causes the interference until Licensee takes corrective
measures to alter the Private Piant to eliminate such interference. Any such corrective measures
shali be made at no cost to Licensor.
4.14 Actions bv Others. Licensee shall cause to comply with this Agreement all
persons using the Right-of-Way through or under Licensee or this Agreement. Licensee is
responsible for any violations of this Agreement by persons using the Right-of-Way through or under
Licensee or this Agreement.
V. IMPROVEMENTS BY UCENSOR
5. Improvements bv Licensor. Licensor has not promised to and is not obligated in any rnanner
to make any improvements or perform any other construction or other work at the Right-of-Way.
VI. UCENSEE’S IMPROVEMENTS GENERALLY
6. Licensee’s Improvements Generailv. All of Licensee’s improvements and other construction
work whether or not specifically described herein upon the Right-of-Way (coilectively “Licensee’s
Improvements”) shall comply with the following:
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6.1 Construction Plans. Annually, and upon reasonable request with at least thirty
(30) days prior written notice by the City Manager or designee from time to time, Licensee shall
deliver to Licensor route maps showing plans for existing and proposed construction of the Private
Plant along arterials and other principal streets and public ways within the City.
6.2 Permits and Inspections. Prior to performing work upon the Right-of-Way,
Licensee shall submit all work plans to Licensor for review by Licensor’s staff in designated
departments responsible for such review and shall obtain all permits and other approvals related
thereto. During the course of the work. Licensee shall observe inspection, safety and other rules.
6.3 Licensee’s Improvements. Licensee’s Improvements include, without limitation
all modification, replacement, repairs, installation, construction, grading, structural alterations, utility,
lighting or other alterations, parking or traffic alterations, removal, demolition or other cumulatively
significant construction or similar work of any description, together with all installation or alteration of
the Private Plant.
6.4 Regulatory Approval Process. The building permit processes, right-of-way
management and similar regulatory requirements that apply to Licensee’s Improvements are
completely separate from the requirements of this Agreement. Licensee’s satisfaction of any
requirement of this Agreement does not count toward any compliance with any regulatory
requirement. Licensee’s satisfaction of any regulatory requirement does not count toward
compliance with any requirement of this Agreement. Licensee must make all submittals and
communications regarding the requirements of this Agreement through Licensor’s contract
administrator for this Agreement, and not through planning, building safety or other staff. Licensee
must obtain all approvals in accordance with all present and future Licensor codes, policies and
procedures.
6.5 Relationship of Plans Approval to Regulatory Processes. Licensee’s submission
of plans under this Agreement, Licensor’s approval of plans for purposes of this Agreement, and the
plans approval process under this Agreement, shall be separate and independent of all zoning,
design review and other regulatory or similar plans submittal and approval processes, all of which
shall continue to apply in addition to the requirements of this Agreement and its approvals.
BUILDING PERMITS, ZONING CLEARANCES, OR ANY OTHER GOVERNMENTAL REVIEWS
OR ACTIONS DO NOT CONSTITUTE APPROVAL OF ANY PLANS FOR PURPOSES OF THIS
AGREEMENT.
6.6 Work Standards. All work by Licensee under this Agreement shall conform to
the standards of the Maricopa Association of Governments and of the City of Scottsdale Design
Standards and Practices Manual, as either may be amended from time to time. All construction by
Licensee must comply with applicable Right-of-Way noise, light, timing, event planning, dust and
other policies in effect from time to time.
6.7 Cost of Licensee Improvements. All Licensee’s Improvements shall be
designed and constructed at no expense to City. In no event, including without limitation termination
of this Agreement for any reason, shall Licensor be obiigated to compensate Licensee in any manner
for any of Licensee’s Improvements or other work provided by Licensee during or related to this
Agreement. Licensee shall pay, protect, indemnify, defend and hold harmless Licensor and
Licensor’s employees, officer’s, contractors and agents against all claims related to labor, materials,
professional services and other work for Licensee’s Improvements. Licensee shall bear the cost of
all work required from time to time to cause the Right-of-Way and other nearby property owned by
Licensor to comply with local zoning rules, the Americans with Disabilities Act, building codes and all
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similar rules, regulations and other laws if such work is required because of work performed by
Licensee, by Licensee’s use of the Right-of-Way, or by any exercise of the rights granted to Licensee
under this Agreement.
6;8 Improvement Quality. Any and all work performed on the Right-of-Way by Licensee
shall be performed in a workman-like manner as reasonably determined by Licensor and shall be
diligently pursued to completion and in conformance with all building codes and similar rules.
6.9 Damage During Work. Upon performing any work upon the Right-of-Way, Licensee
shall simultaneously restore the RIght-of-Way to its prior condition, as directed by Licensor and repair
any holes, mounting surfaces or other damage whatsoever caused by Licensee’s activities to the
Right-Of-Way. Such work shall include revegetation and repairing or replacing pre-existing irrigation
systems for revegetated areas, if applicable.
6.10 Restoration. Following installation, repair or replacement work performed in the
Use Areas, Licensee shall restore disturbed areas of the Use Areas to a condition equal to or better
than the condition of the Use Areas immediately prior to Licensee’s activities. The preceding
sentence does not require Licensee to repair or maintain Licensor’s or third party facilities at the Use
Area uniess such work is attributable in whole or in part to Licensee’s use of the Use Area. Licensee
shall repair or replace to Licensor’s standards, rules and policies published from time to time ail
pavement, sidewalks, curbs, landscaping and other Licensor’s improvements of any description that
may be damaged in the course of Licensee’s activities under this Agreement.
6.11 Coordination with Encroachment Permit Process. This Agreement serves as an
encroachment permit to the extent of granting permission from Licensor for Licensee’s private
improvements to exist in the Use Areas. Licensee shall not be required to obtain any further
encroachment permit for the Private Plant for that purpose. However, Licensee shall perform no
construction work in the Use Areas without obtaining through normal processes from Licensor a
permit giving permission to work In the Right-of-Way. Licensee shall not alter or perform any work to
Licerisor’s improvements without first obtaining through nomial processes from Licensor a permit
giving permission to alter Licensor’s improvements. Licensee shall not obstruct traffic without
obtaining through normal processes from Licensor a perrriit granting permission to obstruct traffic. In
case of emergencies. Licensee may commence work before obtaining additional permits to the
e^nt, if any, allowed by Licensor’s permit process from time to time. The foregoing notwithstanding.
Licensor reserves the right to limit the nurriber and scope of permits that may be active at any given
time to ensure the work.performed pursuant to this Agreement does not unreasonably obstruct traffic
or otherwise harm public health and welfare. The City’s right to limit the number and scope of active
permits for any work performed pursuant to this Agreement may be exercised at Licensor’s sole
discretion but shall not be exercised unreasonably.
6.12 Work Classifications. All Lessee’s Improvements and other construction, repair,
maintenance and other work (collectively “Work”) shall be divided into three categories (“Heavy
Work”, “Medium Work” and "Light Work”):
6.12.1 Heavy Work is any work that involves any of the following:
6.12.1.1 Complete blockage of a sidewalk or trail.
6.12.1.2 Any Worker coristruction signage closer to the center of a street
than the edge of pavement or back of curb.
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6.12.1.3 Any Work that involves workers or equipmerit within thirty (30) feet
of an intersection measured from the closest edge of payment or back of curb.
6.12.1.4 Any Work that does or is projected to take more than seven (7)
days to complete.
6.12.1.5 Any Work that involves excavating more than five (5) cubic yards
Of dirt, digging more than three hundred (300) feet of trench, or any boring.
6.12.1.6 Any Work that involves any traffic breaks, diversions or
intenuptions, any temporary or permanent alteration of traffic signals or signs or other traffic control
devices, or any rerouting of any traffic.
6.12.2 Medium Work is all Work that is not Heavy Work but involves workeia or
equipment being used or located within ten (10) feet of any portion of any public street right-of-way
designated for vehicular travel, within one hundred (100) feet of the nearest part of ariy intersection
measured from the closest edge of pavement or back of curb, or upon or interfering in any way with
any sidewalk, path or trail.
6.12.3 Light work is Work that is not Medium Work or Heavy Work.
6.13 Street Classifications. All Right-of-Way shall be divided into three categories
(“Critical Streets”, “Large Streets", and “Small Streets”) as follows:
6.13.1 Critical Streets are all of the Scottsdale Road, Hayden Road, Pima Road and
Shea Boulevard Right-of-Way and all Right-of-Way within one hundred (100) feet of the Right-of-
Way of any of these roads. During January and February, Critical Streets also include Frank Lloyd
Wright Boulevard, Bell Road, Princess Drive and Perimeter Center Drive. Critical Streets are only
the streets named in this paragraph and do not include other streets encircled by or near the Critical
Streets.
6.13.2 Large Streets are all streets shown on Scottsdale’s General Plan as Major
Arterials, Minor Arterials or Collectors.
6.13.3 Small Streets are all Route Right-of-Way that is not Critical Streets or Large
Streets.
6.14 Light Work Restrictions. All Light Work shall comply with the following:
6.14.1 Licensee shall obtain all permits.
6.14.2 Licensee shall not perform Light Work to Critical Streets during the hours of
6 a m. to 9 a.m. or 4 p.m. to 7 p.m. Monday through Friday (collectively “Rush Hours").
6.15 Medium Work Restrictions. All Medium Work shall comply with all of the
restrictions applicable to Light Work and also with the following:
6.15.1 Licensee shall give Licensor ten (10) days advance notice of any Medium
Work.
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6.15.2 Licensee shall not perform Medium Work to Critical Streets or Large Streets
during Rush Hours.
6.16 Heavy Work Restrictions. All Heavy Work shall comply with all of the restrictions
applicable to Medium Work and Light Work and also with the following:
6.16.1 Heavy Work is prohibited on Critical Streets during the period from November
15 to April 30.
6.16.2 Licensee shall give Licensor ten (10) days advance notice of any Heavy
Work.
6.16.3 Licensee’s giving notice under this paragraph is not a substitute for obtaining
Licensor’s approval of the proposed work.
6.17 Work Restriction Waivers. Licensor’s contract administrator shall have authority
but not an obligation to grant written exceptions to the provisions of this Agreement that limit the days
or times during which Licensee may conduct Work.
6.18 Data Deliverables. Wrthin ninety (90) days after the installation of any segment of
the communications network as defined on the License Agreement, the Licensee shall supply the
City with electronic files showing the installed location of the fiber optic cable associated with the
communication network in a format agreed by the City. The current required fonnatfor the electronic
files shall be ESRI file geodatabase or shapefile format. The data shall be provided in NAD 1983
StatePlane Arizona Central FIPS 0202 (Inti Feet) == WKID 2868, or another mutually agreed upon
format. Licensee shall supply CIS data attributes in a schema provided by the City, and within an
accuracy of no less than three (3) feet for all components of the communication system. Upon prior
approval by the City Telecommunications Policy Coordinator, Licensee may provide electronic files
in a different electronic format or transfer the files to the City via email or file transfer protocol (FTP).
The City will use data for project coordination.
VII. LICENSEE’S INITIAL PROJECT CONSTRUCTION
7. Licensee's Initial Project Construction. Licensee is not required to construct any
portion of the Private Plant by any particular deadline.
VIII. MAINTENANCE AND OPERATIONS
8. Maintenance and Operations. Except as expressly provided below. Licensee shall be solely
responsible for all maintenance, repair and utilities for the Private Plant during the term of this
Agreement. Without iimitation. Licensee shall perform the following:
8.1 Right of Inspection. Licensor shall be entitled to inspect all construction,
reconstaiction or installation work and to make such tests as it deems necessary to ensure
compliance with the terms of this Agreement, the Street Code, or other Telecommunications Laws.
All Licensor plans reviews, inspections, standards and other rights and actions with relation to
Licensee’s Improvements are for Licensor’s sole and exclusive benefit and neither Licensee nor any
other person shall rely thereon or haVe any rights related thereto.
8.2 Identification. All Licensee employees, contractors and subcontractors shall wear
on their clothing a clearly visible ideritification card bearing their name and photograph and
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Licensee’s logo or name, or the name or logo of Licensee’s contractor or subcxantractor. Licensee
shall account for all Licensee issued identification cards at all times. Every service vehicle of
Licensee, its contractors and its subcontractors shall be clearly identified as such to the public.
Licensee vehicles shall prominently display Licensee’s name and logo. Other vehicles shall
prorninently display the contractor’s or subcontractor’s name.
8.3 Construction Notification, Licensor may establish requirements for Licensee to
notify nearby residents prior to construction.
8.4 Maintenance bv Licensor. Licensor has no maintenance or repair obligations for
the Use Areas.
8.5 Maintenance bv Licensee. Licensee shall at all times repair and maintain the
Private Plant at the Use Areas at Licensee’s sole expense in a sound, clean, safe manner, meeting
or exceeding best industry practices of maintenance of comparable facilities in the southwest United
States as detennined in Licensor’s discretion.
IX. BREACH BY LICENSEE
9. Breach bv Licensee. Licensee shall comply with the terms and provisions of this
Agreement and shall cause all persons using the Use Areas under the authority granted Licensee
by this Agt^ment to do the sarne. Licensee’s failure to do so shall be a material breach by Licensee
of this Agreement.
9.1 Events of Default. This entire Agreement is made upon the condition that each
and every one of the following events shall be deemed an “Event of Defaulf by Licensee of
Licensee’s material obligations under this Agreement:
9.1.1 If Licensee shall be in arrears in the payment of Fee Payment due and not
paid or disputed and shall not cure such arrearage within ten (10) days after Licensor has notified
Licensee in writing of such arrearage.
9.1.2 If, at any time. Licensee is iegally required to hold the Certificate, and
Licensee fajls to keep the Certificate in effect, such failure shall constitute a breach.
9.1.3 If Licensee shall fail to maintain any insurance required by this Agreement.
9.1.4 If Licensee shall be the subject of a voluntary or involuntary bankruptcy,
receivership, insolvency or similar proceeding or if any assignment of any of Licensee's or such other
person’s property shall be made for the benefit of creditors or if Licensee or such Other person dies
or is not reguiarly paying its debts as they come due (coliectively a “Licensee InsolvenciT).
9.1.5 If Licensee shall fail to comply with the Site Documents arid shall not cure
such noncompliance before the earlier of;
9.1.5.1 The date such non-compliance causes any harm to Licensor.
9.1.5.2 The date within sixty (60) days after Licensor gives Licensee written
notice of such noncompiiance.
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9.1.6 If the issuer of any letter of credit shall fail for any reason to timely and fully
honor any request by Licensor for funds or other performance under the instrument and Licensee
fails to cause the issuer to or some other person to honor the request within ten (10) days after
Licensor notifies Licensee in writing that such request has not been honored.
9.1.7 If Licensee shall fail to obtain or maintain any licenses, permits, or other
governmental approvals pertaining to the Right-of-Way or timely pay any taxes pertaining to the
Right-of-Way and shall not cure such failure within sixty (60) days of written notice thereof.
9.1.8 If Licensee shall engage in a pattern of repeated failure (or neglect) to timely
do or perform or observe any provision contained herein. After Licensor has once given notice of
any failure by Licensee to comply with any provision of this Agreement, the following shall constitute
a repeated failure by Licensee to comply with such provision:
9.1.8.1 Another failure to comply with any provision of this Agreement during
the following thirty (30) day period, or diligently pursue a cure if such cure reasonably requires
additional time.
9.1.8.2 Three (3) or more failures to comply with any provision of this
Agreement during any ninety (90) day period.
9.1.8.3 Six (6) or more failures to comply with any provision of this Agreement
during any twelve (12) month period.
9.1.9 If Licensee shall fail to or neglect to timely and completely do or perform or
observe any other provisions contained herein and such failure or neglect shall continue for a period
of sixty (60) days after Licensor has notified Licensee in writing of such failure or neglect.
9.1.10 In the event a cure cannot be effected during any period described above.
Licensee shall not be in default so long as Licensee commences cure during the period and diligently
prosecutes the cure to completion provided such cure must be completed within sixty (60) days after
the notice.
9.2 Licensor’s Remedies. Upon the occurrence of any Event of Default or at any time
thereafter. Licensor may, at its option and from time to time, exercise at Licensee’s expense any or
all or any combination of the following cumulative remedies in any order and repetitively at Licensor’s
option:
9.2.1 Terminate this Agreement. Termination of this Agreement due to Licensee’s
breach or for any other reason does not terminate Licensee’s obligations arising during the time
simultaneous with or prior to or the termination, and in no way terminates any of Licensee’s liability
related to any breach of this Agreement. City shall not use such termination power without first
conducting a hearing before its City Manager or designee upon fifteen (15) days written notice to
Licensee, at which Licensee may appear and present evidence. The person conducting the hearing
shall state in writing his or her determination of the validity of the proposed termination and shall
summarize his or her findings on the controversy. Such findings may be appealed by Licensor or
Licensee to a court for de novo review. In order to give the parties time to consider entering into a
new agreement or otherwise dealing with the termination, any termination under this paragraph shall
not take effect until the earlier of the date Licensee commences a court proceeding or ninety (90)
days after the hearing.
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9.2.2 Pay or perform, for Licensee's account, in Licensee’s name, and at
Licensee’s expense, any or all payments or performances required hereunder to be paid or
perfomried by Licensee.
9.2.3 Abate at Licensee’s expense any violation of this Agreement.
9.2.4 Notwithstanding anything in this Agreement to the contrary, unilaterally and
without Licensee’s or any other person’s consent or approval, draw upon, withdraw or othenwise
realize upon or obtain the value of any letter-of-credit, escrowed funds, insurance policies, or other
deposits, sureties, bonds or other funds or security pledged for Licensor’s benefit pursuant to this
Agreement and use the proceeds for any remedy permitted by this Agreement.
9.2.5 Be excused without any liability to Licensee therefor from further performance
of any or all obligations under this Agreement.
9.2.6 Insist upon Licensee’s full and faithful performance under this Agreement and
upon Licensee’s full and timely payment of all amounts during the entire remaining term of this
Agreement.
9.2.7 Require an additional security deposit adequate in Licensor’s sole discretion
to protect Licensor and the Right-of-Way in light of Licensee’s history of performance under this
Agreement.
9.2.8 Assert, exercise or otherwise pursue at Licensee’s expense any and all other
rights or remedies, legal or equitable, to which Licensor may be entitled, subject only to the limitation
set out below on Licensor’s ability to collect money damages in light of the Violation Fee Payment.
9.3 Violation Fee Payment. In lieu of certain money damages (the “Inconvenience
Costs") set out below, the following shall apply to Licensee’s violation of certain limited requirements
of this Agreement (the "Violation Fee Provisions”):
9.3.1 The Inconvenience Costs are the money damages that Licensor suffers in
the form of administrative cost and inconvenience, dishamnony among Competing Users, and
general inconvenience in Right-of-Way use by Licensor, Competing Users and the public when
Licensee fails to comply with the Violation Fee Provisions.
9.3.2 Licensee’s failure to comply with Violation Fee Provisions will result in
Inconvenience Costs in an amount that is and will be impracticable to determine. Therefore, the
parties have agreed that, in lieu of Licensee paying to Licensor as damages the actual amount of
the Inconvenience Costs for violating the Violation Fee Provisions, Licensee shall pay Violation Fee
Payment.
9.3.3 Violation Fee Payment is only intended to remedy Inconvenience Costs that
Licensor suffers because of Licensee’s breach of the Violation Fee Provisions. Licensee’s payment
of Violation Fee Payment does not in any way excuse any breach by Licensee of this Agreement or
limit in any way Licensee's obtaining any other legal or equitable remedy provided by this Agreement
or othenwise or such breach. For example. Licensee’s obligation to pay Violation Fee Payment does
not in any way detract from Licensee’s indemnity and insurance obligations under this Agreement,
which shall apply according to their terms in addition to Licensee’s obligation to pay Violation Fee
Payment.
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9.3.4 Except as may be expressly stated in this paragraph, no cure period applies
to the accrual of Violation Fee Payment.
9.3.5 Licensee may elect to draw upon the letter of credit to collect the Violation
Fee Payment.
9.3.6 The Violation Fee Provisions and the amount of the Violation Fee Payment
per day or part thereof are as follows:
9.3.6.1 The amount of One Hundred Fifty Dollars ($150.00) per day for
Licensee’s feilure to properly restore the public right-of-way or to conect related violations of
specifications, code, ordinance or standards within ten (10) business days after Licensor’s notice to
correct such defects. Such Violation Fee Payment shall be in addition to any cost the Licensor may
incur to restore the right-of-way or correct the violation.
9.3.6.2 The amount of Two Hundred Fifty Dollars ($250.00) per day for each
failure to make Licensee’s books and records available as required by this Agreement.
9.3.6.3The amount of Five Thousand Dollars ($5,000.00) for any
unauthorized partial or total assignment of this Agreement.
9.3.6.4 The amount of Five Hundred Dollars ($500.00) per instance of any
other action or non-action by the Licensee contrary to this Agreement that causes Inconvenience
Costs and that is not cured after three (3) days notice.
9.3.7 Violation Fee Payments shall be assessed as follows:
9.3.7.1 If Licensor determines that Licensee is liable for Violation Fee
Payment, then Licensor shall issue to Licensee a notice of Licensor’s assessing a Violation Fee
Payment. The notice shall set forth the nature of the violation and the amount of the assessment.
9.3.7.21 Licensee shall pay the Violation Fee Payment within
ten (10) days after Licensor’s notice. However, if the Violation Fee Payment amount exceeds Five
Thousand Dollars ($5,000), then the following shall apply:
9.3.7.2.2 Licensee shall have thirty (30) days after the notice to
pay the Violation Fee Payment or give Licensor notice contesting the assertion of noncompliance.
9.3.7.2.3 If Licensee fails to respond to the notice. Licensee
shall pay the Violation Fee Payment. Othenivise, Licensor shall schedule a hearing to investigate
whether the Violation Fee Payment is properly assessed. Licensor’s City Manager or designee shall
preside over the hearing. Licensor shall provide Licensee at least ten (10) days notice of such
hearing, which shall specify the time, place and purpose of the hearing. At the hearing. Licensee
shall be provided an opportunity to be heard and present evidence. If the result of the hearing is that
Licensee is liable for Violation Fee Payment, then the Violation Fee Payment is due ten (10) days
after the hearing decision is announced.
9.3.7.2.4 Licensee may appeal the outcome of the hearing to
an appropriate court. Such appeal to the appropriate court must be taken within sbdy (60) days after
the issuance of Licensor’s determination. Othenvise, the outcome of the hearing shall be final and
conclusive.
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9.4 Effect of Abandonment. In addition to Licensor's other rights, if Licensee
abandons the Private Plant during the term of this Agreement, or fails to operate the Private Plant in
accordance with its duty to provide continuous service. Licensor, at its option, may seek an injunction
requiring Licensee to continue operations or an order requiring Licensee to transfer title of the
abandoned plant to Licensor. If Licensee abandons only part of the Private Plant, then this paragraph
shall apply to the part abandoned. Any part of the Private Plant shall be deemed to be abandoned if
Licensee fails to respond in the affirmative within sixty (60) days to a written notice from Licensor
requesting that Licensee confirm that Licensee is maintaining and utilizing that part of the Private
Plant in its operations. In its discretion. Licensor may require Licensee to provide evidence of use of
that part of the Private Plant in question.
9.5 Non-waiver. Licensee acknowledges Licensee’s unconditional obligation to
comply with this Agreement. No failure by either Party to demand any performance required of the
other Party under this Agreement, and no acceptance by either Party of any imperfect or partial
performances under this Agreement, shall excuse such performance or impair in any way such
Party’s ability to insist, prospectively and retroactively, upon full compliance with this Agreement. No
acceptance by Licensor of Fee Payment payments or other performances hereunder shall be
deemed a compromise or settlement of any right Licensor may have for additional, different or further
payments or performances. Any waiver by a Party of any breach of condition or covenant herein
contained to be kept and performed by the other Party shall not be deemed or considered as a
continuing waiver and shall not operate to bar or othenwise prevent such Party from declaring a
default for any breach or succeeding or continuing breach either of the same condition or covenant
or otherwise. No statement, bill or notice by Licensor or Licensee concerning payments or other
performances due hereunder, or failure by Licensor to demand any performance hereunder, shall
excuse Licensee from compliance with this Agreement nor estop Licensor (or otherwise impair
Licensor’s ability) to at any time con'ect such notice and/or insist prospectively and retroactively upon
full compliance with this Agreement. No waiver of any description (INCLUDING ANY WAIVER OF
THIS SENTENCE OR PARAGRAPH) shall be effective against a Party unless made in writing by a
duly authorized representative of the Party specifically identifying the particular provision being
waived and specifically stating the scope of the waiver. BOTH PARTIES EXPRESSLY DISCLAIM
AND SHALL NOT HAVE THE RIGHT TO RELY ON ANY SUPPOSED WAIVER OR OTHER
CHANGE OR MODIFICATION, WHETHER BY WORD OR CONDUCT OR OTHERWISE, NOT
CONFORMING TO THIS PARAGRAPH.
9.6 Reimbursement of Licensor’s Expenses. Licensee shall pay to Licensor within
thirty (30) days after Licensor’s written demand any and all amounts expended or incurred by
Licensor in performing Licensee’s obligations after an Event of Default together with interest thereon
at the rate of twelve percent (12%) per annum from the date expended or incurred by Licensor.
9.7 Inspection. Licensor shall have access to all portions of the Use Areas at all times
and without notice for the purpose of examining, inspecting, evaluating, planning, repairing,
designing, maintaining or showing the Use Areas or exercising Licensor’s other rights hereunder.
Licensee shall promptly undertake appropriate action to rectify any deficiency (identified by Licensor
during such inspections or othenwise) in Licensee’s compliance with this Agreement. This paragraph
does not limit Licensor’s other rights of access to the Use Areas elsewhere in this Agreement or
otherwise. This right of access is in addition to access rights for Licensor inspectors or other
employees and officers acting within their legal authority.
9.8 Breach bv Licensor. Notwithstanding anything in this Agreement to the contrary, if
Licensor at any time is required to pay to Licensee any amount or render any performance, such
amount or performance is not due until thirty (30) days after written notice by Licensee to Licensor
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that the amount has become payable or that the performance is due. In the event a cure cannot be
effected during that period, Licensor shall not be in default so tong as Licensor commences cure
during the period and diligently prosecutes the cure to completion provided such cure must be
completed within sixty (60) days after the notice.
9,9 Right to Setoff and Credit. In addition to its other rights and remedies under this
Agreement, Licensor shall have the right to setoff and credit from time to time and at any time, any
and all amounts due from Licensee to Licensor, whether pursuant to this Agreement or otherwise,
against any sum which may be due from Licensor to Licensee pursuant to this Agreement or
otherwise.
X. TERMINATION
10. Rights at Termination. The following provisions shall apply at the expiration of the term
hereof or upon any other termination of this Agreement (taking into account any extensions of this
Agreement):
10.1 Surviving Obligations. Expiration of this Agreement (or Licensor’s termination of this
Agreement due to an Event of Default or any other reason) does not terminate Licensee’s obligations
existing or arising prior to or simultaneous with, or attributable to, the termination or events leading
to or occurring before termination.
10.2 Delivery of Possession. Licensee shall cease using the Use Areas. Licensee
shall without demand, peaceably and quietly quit and deliver up the Use Areas to Licensor in as good
order and condition, reasonable use and wear excepted, as the Use Areas may now be in or in such
better condition as the Use Areas may hereafter be placed.
10.3 New Approvals and Agreements. Upon expiration or termination of this
Agreement for any reason, Licensee shall no longer have the right to use the Right-of-Way. After
such period, any right, if any, for the Private Plant to be in the Right-of-Way shall be pursuant to such
new approvals and agreements, if any, and not pursuant to this Agreement.
10.4 Confirmation of Termination. Upon expiration or termination of this Agreement for
any reason. Licensee shall provide to Licensor upon demand a confirmation of tennination of this
Agreement executed and acknowledged by Licensee and by all persons w/ho claim that they have
received from or through Licensee any interest in or right to use the Right-of-Way.
10.5 Removal of Improvements. NOTWITHSTANDING anything in this paragraph or
the remainder of this Agreement to the contrary, unless Licensor directs othenwise. Licensee shall
leave the cable, conduits, other appurtenances, and the remainder of the entire Private Plant in place
in good condition, in working order, with each cable and conduit end properly labeled and enclosed
in proper junction boxes, and in safe condition. However, to the extent Licensor gives notice
requesting the work. Licensee shall remove all of the Private Plant and restore the Use Areas to its
prior condition, or to a condition matching Licensor’s surrounding land and improvements.
Notwithstanding the preceding sentence. Licensee is not obligated to remove horizontal
underground conduit, along with cables that are buried directly in the ground without conduits. Such
work shall include revegetation and appropriate irrigation systems for revegetated areas. Title to any
and all personal property installed by Licensee upon the Right-of-Way that is not removed during
that period shall automatically vest in Licensor. Licensor shall give Licensee One Hundred Twenty
(120) days’ notice before requiring removal of the Private Plant.
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Xi. INDEMNITY AND INSURANCE
11. Insurance Responsibility. During the entire term of this Agreement, Licensee shall
insure its propeity and activities at and about the Use Areas and shall provide insurance and
indemnification as fbliows:
11.1 Insurance Required. Not later than the date of this Agreement, and at all times
thereafter when Licensee is occupying or using the Use Areas in any vray. Licensee shall obtain and
cause to be in force and effect the foliowing insurance:
11.1.1 Commercial General Liability. Commercial general liability insurance with a
limit of Five Miliion and No/100 Dollars ($5,000,000.00) for each occurrence, a limit of Five Million
and No/100 Dollars ($5,000,000.00) for products and completed operations annual aggregate, and
a limit of Five Million and No/100 Dollars ($5,000,000.00) general aggregate limit per policy year.
The policy shall cover liability arising from premises, operations, independent contractors, products,
completed operations, personal injury, bodily injury, advertising injury, and liabiiity assumed under
an “insured contracT including this Agreement. The policy will cover Licensee’s iiability under the
indemnity provisions of this Agreement. The policy shall contain a “separation of insureds” clause.
11.1.2 Automobile Liabilitv. Automobile liability insurance with a iimit of One
Million Doliars ($1,000,000) for each accident covering any and all owned, hired, and non-owned
vehicles assigned to or used in any way in connection with Licensee’s use of the Right-of-Way.
Without limitation, such insurance shall cover hazards of motor vehicle use for loading and offloading.
11.1.3 Workers’ Compensation. Such workers’ compensation and similar
insurance as is required by law and employer’s liability insurance with a minimum limit of One
Hundred Thousand Doliars ($100,000.00) for each accident. One Hundred Thousand Doliars
($100,000.00) disease for each employee. Five Hundred Thousand Dollars ($500,000.00) policy limit
for disease; All contractors and subcontractors must provide like insurance.
11.2 Poiicv Limit Escaiation. Licensor may elect by notice to Licensee to increase
the amount or type of any insurance to account for inflation, changes in risk, or any other factor that
Licensor reasonably determines to affect the pnjdent amount of insurance to be provided.
11.3 Form of All Insurance. All insurance provided by Licensee with respect to the Right-
of-Way, whether required by this Agreement or not, shall meet the following requirements:
11.3.1 “Occurrence” coverage is required. “Claims rnade" insurance is not permitted,
except for Broadcast Insurance.
11.3.2 If Licensee uses any excess insurance then such excess insurance shall be
“follow fomn” equal to or broader in coverage than the underlying insurance.
11.3.3 Policies must also cover and insure Licensee's activities relating to the
business operations and activities conducted away from the Right-of-Way.
11.3.4 Licensee must clearly show by providing copies of insurance certificates or
fornial endorsements acceptable to Licensor that all insurance coverage required by this Agreement
is provided.
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11.3.5 Licensee’s required insurance shall be pnmary insurance with respect to
claims arising out of Licensee’s operations, activities and obligations under this Agreement
11.3.6 All policies, including workers’ compensation, shall waive transfer rights of
recovery (subrogation) against Licensor and Licensor’s employees, officials, representatives, officers
and agents (all of whom, including Licensor, are collectively ‘Additional Insureds”).
11.3.7 All deductibles, retentions, or “self-insured” amounts shall be subject to the
following:
11.3.7.1 Licensee shall be solely responsible for all such amounts.
11.3.7.2 Such amounts shall not exceed in total Five Hundred
Thousand Dollars ($500,000.00) per loss. Ai such times as Licensee’s net worth is more than One
Hundred Million Dollars ($100,000,000.00), such limit shall be One Million and No/100 Dollars
($1,000,000.00).
11.3.7.3 Any self-insured exposure shall be deemed to be an insured
risk under this Agreement.
11.3.7.4 Licensee’s obligation to reimburse an insurer after the Insurer
defends and pays a claim is not a deductible, retention or “seff-lnsured” amount for purposes of this
paragraph.
11.3.7.5 Licensee shall provide to the beneficiaries of all such amounts
no less insurance protection than if such self-insured portion was fully insured by an insurance
company of the quality and caliber required hereunder.
11.3.7.6 The right to self-insure is limited and specific to Licensee and
does not extend to Licensee’s contractors or others.
11.3.8 All required policies except workers’ compensation must include Licensor and
the other Additional Insureds as additional insureds. Licensee shall cause coverage for Additional
Insureds to be incorporated into each insurance policy by endorsement with respect to claims arising
out of Licensee’s operations, activities and obligations under this Agreement.
11.3.9 Licensee shall provide Licensor with at least thirty (30) days prior notice of
any cancellation.
11.4 Insurance Certificates. Licensee shall evidence all required insurance by furnishing
to Licensor certificates of insurance upon inception of this Agreement and with each change in
insurance coverage. Certificates must evidence that the policy described by the certificate is in full
force and effect and that the policy satisfies each requirement of this Agreement applicable to the
policy. For example, certificates must evidence that Licensor and the other Additional Insureds are
additional insureds. Certificates must be in a form acceptable to Licensor. Licensee shall provide
updated certificates at Licensor’s request.
11.5 Acceptable Insurers. All insurance policies shall be issued by insurers acceptable
to Licensor. At a minimum, all insurers shall be duly licensed (or qualified unlicensed non-admitted
insurer) by the State of Arizona, Department of Insurance. At a minimum, all insurers shall have and
maintain an A.M. Best, Inc. rating of B++ 6.
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11.6 No Representation of Coverage Adequacy. By requiring insurance herein,
Licensor does not represent that coverage and limits will be adequate to protect Licensee. Licensor
reserves the right to review any and all of the insurance policies and/or endorsements dted in this
Agreement but has rio obligation to do so. Failure to demand such evidence of full compliance with
the Insurance requirements set forth in this Agreement or failure to identify any insurance deficiency
shall not relieve Licensee from, nor be constmed or deemed a waiver of. Licensee’s obligation to
maintain the required insurance at all times.
11.7 Indemnity. In addition to all other indemnities and other obligations hereunder, to
the fullest extent permitted by law, throughout the term of this Agreement and until all obligations and
performances under or related to this Agreement are satisfied and all matters described in this
paragraph are completely resolved. Licensee (and all other persons using, acting, working or
claiming through or for Licensee or this Agreement (if they or their subcontractor, employee or other
person or entity hired or directed by them participated in any way in causing the claim in question))
shall jointly and severally indemnify, defend and hold hamnless Licensor and all other Additional
Insureds for, from and against any and all claims or harm related to Licensee's use of the Right-of-
Way or the rights granted to Licensee with respect to the Right-of-Way or Licensee’s exercise of its
rights under this Agreement (the “Indemnity”). Without limitation, the Indemnity shall include and
apply to any and all allegations, demands, judgments, assessments, taxes, impositions, expenses,
proceedings, liabilities, obligations, suits, actions, claims (including without limitation claims of
personal injury, bodily injury, sickness, disease, death, property damage, destruction, loss of use,
financial harni, or other impairment), damages, losses, expenses, penalties, fines or other matters
(together with all attorney fees, court costs, and the cost of appellate proceedings and all other costs
and expenses of litigation or resolving the claim) that may arise in any manner out of any use of the
Right-Of-Way or other property related to this Agreement or any actions, acts, errors, mistakes or
omissions relating to work or services in the performance of or related to this Agreement, including
without limitation any injury or damages or Cause of action claimed or caused by any employees,
contractors, subcontractors, tenants, subtenants, agents or other persons upon or using the Right-
of-Way or sunounding areas related to this Agreement under the authority of Licensee, including
without limitation, claims, liability, harm or damages for which the actions or inactions of the Licensor
or any other Additional Insured or anyone for whose mistakes, errors, omissions or negligence
Licensor may be liable constitute less than the primary cause of said claims, liability, harm or
damages. As a condition to Licensor’s executing this Agreement, Licensee specifically agrees that
to the extent any provision of this paragraph is not fully enforceable against Licensee for any reason
whatsoever, this paragraph shall be deemed automatically refonned to the minimal extent necessary
to cause it to be enforceable to the fullest extent permitted by law. The Indemnity shall also include
and apply to any environmental injury, personal injury or other liability relating to Licensee’s use of
Licensor’s real property under this Agreement. Notwithstanding the foregoing, the Indemnity does
not apply to:
11.7.1 Claims for which the negligence or intentionally wrongful acts of Licensor are
the primary cause of the claims.
11.7.2 Claims that the law prohibits from being imposed upon the indemnitor.
11.8 Risk of Loss. Licensee assumes the risk of any and all loss, damage or claims
related to Licensee’s use of the Right-of-Way or other property of Licensor, Licensee or third parties
throughout tiie teno hereof. Licensee shall be responsible for any and all damage to Its property and
equipment related to this Agreement.
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11.9 Insurance to be Provided bv Others. Licensee shall cause Its contractors or other
persons ocojpying, working on or about, or using the Right-of-Way pursuant to this Agreement to
be covered by their own or Licensee’s insurance in the amounts and coverages required by this
Agreement and conforming to the other requirements of this Agreement.
XII. CONDEMNATION
12. Condemnation. The following shali govern any condemnation of any part of or
interest in the Use Areas and any Conveyance to Licensor or another condemnor in avoidance or
settlement of condemnation or a threat of condemnation;
12.1 Termination for Condemnation. This Agreement shall terminate as to the part
taken on the date that is the earlier of the date title vests in the condemnor, or the date upon
which the condemnor is let into possession.
12.2 Powerto Condemn. Licensee acknowledges that Licensor and others from
time-to-time rhay use the power to condemn the Use Areas or any interest therein or rights thereto.
Licensor has not relinquished any right of condemnation or eminent domain over the Use Areas.
Licensor does not warrant that Licensor will not condemn the Use Areas during the term of this
Agreement, but Licensor does not presently have intentions to condemn the Use Areas.
XIII. DAMAGE TO USE AREAS
13. Damage to Use Areas. In the event of damage to or destruction of the Private Plant
by fire, explosion, the elements, the public enemy, or other casualty. Licensee shall commence
restoring the casualty damage within thirty (30) days. Licensee shall complete the restoration
work within one hundred and twenty (120) days after commencing the restoration work.
Licensee’s restoration work shall be subject to the plan approval process and all other
requirements for Licensee’s Improvements, Licensee shall perform all restoration work at
Licensee’s sole cost and expense. Licensee shall provide to Licensor no later than the tenth day of
each month a written report of the progress of the restoration work.
XIV. LICENSEE’S RECORDS
14. Licensee’s Records. During the entire term of this Agreement, Licensee shall keep
records and prpvide information to Licensor as follows:
14.1 Scope of Infonnation. Unless otherwise specified, all of Licensee’s recordkeeping
and disclosure obligations under this article include and are limited to the following cumulative topics
as reasonably determined by Licensor (collectively the “Covered Information”):
14.1.1 The status of the construction, repair or restoration of Licensee
Improvements.
14.1.2 Information relating to this Agreement or to Licensor's or Licensee’s rights or
obligations under this Agreement.
14.2 Records Inspection. Licensee shall:
14.2.1 Permit and assist Licensor and its representatives at all reasonable times and
upon reasonable notice to inspect, audit and copy Licensee’s records of Covered Information.
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14.2.2 Make the records of Covered Information (and reasonable accommodations
for Licensor’s audit and inspection) available to Licensor electronically or, if requested by Licensor,
at Licensee’s offices in Maricopa County, Arizona.
14.2.3 Cause Licensee’s employees and agents and accountants to give their full
cooperation and assistance in connection with Licensor’s access to the Covered Information.
14.3 Record Retention. Licensee shall preserve records of the Covered Information in
a secure place at Licensee’s corporate headquarters in the continental United States and available
to Licensor on request for review within the City of Scottsdale, Maricopa County, Arizona for a period
ending seven (7) years after the time period reported by the records.
14.4 Record Media Included. Licensor’s and Licensee’s rights and obligations
regarding the Covered Information apply regardless of the type of media, materials, or data
repositories that may contain the Covered Information. Licensor’s rights to the Covered Infomnation
apply regardless of whether the Covered Information is stored on recordings, notes, ledgers,
correspondence, reports, drawings, memoranda, or other repository of Covered Infonnation.
14.5 Costs of Audit. If an audit, inspection or examination discloses underpayments (or
other matters adjusted in favor of Licensor) of any nature that exceed five percent (5%) of any
payments or single payment. Licensee shall pay to Licensor Licensor’s actual cost (based on the
amount paid by Licensor, or based on reasonable charges charged by private auditors and other
service providers for comparable work if the examination is performed by Licensor’s employees) of
the examination, together with late fees, interest, and other amounts payable in connection with such
adjustments or payments. Any adjustments and/or payments due as a result of any such examination
shall be made within a reasonable amount of time (not to exceed 30 days) after Licensor gives to
Licensee notice of Licensor’s findings.
14.6 Reports. Upon not less than thirty (30) days’ notice. Licensee shall deliver to
Licensor written reports (and, if requested by Licensor, a presentation to Licensor’s governing council
or designee) covering such Covered Information as Licensor may request from time to time. Unless
Licensor has a basis for believing that Licensee might not be in compliance with this Agreement,
Licensor shall not make more than one such request covering the same information in any twelve
(12) month period.
14.7 Standards for Records. Licensee shall maintain a standard, modem system of
recordkeeping for the Covered Infonnation and shall keep and maintain proper and accurate books
and other repositories of information relating to the Covered Information.
14.8 Proprietary Information. Proprietary Information disclosed by Licensee to the
Licensor or its constituent departments shall be regarded as Proprietary as to third parties. If the
Licensor receives a request to disclose such information, the Licensor shall notify Licensee of such
request and allow Licensee a reasonable opportunity to defend its information from disclosure. Any
proprietary information that Licensee discloses to Licensor must be clearly marked as information
that Licensee deems proprietary. Information that is already in the public domain shall not be
considered Proprietary Information. If public domain information is included with Proprietary
Information on the same document, the Licensor shall only disclose those portions within the public
domain. Notwithstanding any provision in this License, Licensee acknowledges and understands
that the Licensor is subject to the disclosure requirements of Arizona’s Public Records Law (A.R.S.
§ 39-121 et. seq) and specifically that this Agreement itself must be approved by the Scottsdale City
Council in an open public meeting as required by such laws.
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XV. COMPLIANCE WITH LAW
15. Compliance with Law. Licensee shall perform its obligations under this Agreement in
accordance with all federal, state, county and local laws, ordinances, regulations or other rules or
policies as are now in effect or as may hereafter be adopted or amended. Without limiting in any way
the generality of the foregoing. Licensee shall comply with all and each of the following:
15.1 Future Municipal Legislation. Licensor has not contracted away any of its legislative
authority by this Agreement.
15.2 Applicability of Municipal Law. Without limitation. Licensee shall comply with
municipal laws as follows;
15.2.1 Licensee acknowledges that this Agreement does not constitute, and
Licensor has not promised or offered, any type of waiver of, or agreement to waive (or show any type
of forbearance, priority or favoritism to Licensee with regard to) any law, ordinance, power,
regulation, tax, assessment or other legal requirement now or hereafter imposed by the City of
Scottsdale or any other governmental body upon or affecting Licensee, the Right-of-Way or
Licensee’s use of the Right-of-Way.
15.2.2 All of Licensee’s obligations hereunder are in addition to, and cumulative
upon (and not to any extent in substitution or satisfaction of), all existing or future laws and regulations
applicable to Licensee.
15.2.3 This Agreement is not intended to diminish any performances that would be
required of Licensee by law if this Agreement had been made between Licensee and a private
citizen.
15.2.4 Licensor by this Agreement cannot and has not relinquished or limited any
right of condemnation or eminent domain over the Right-of-Way or any other property related to this
Agreement or within the Right-of-Way.
15.2.5 Licensor’s rights and remedies hereunder for Licensee’s failure to comply
with all applicable Telecommunications Laws supplement and are in addition to and do not replace
otherwise existing powers of the City of Scottsdale or any other governmental body.
15.3 Building and Other Permits. Licensee shall obtain at its own expense all building or
other permits in connection with all construction performed by Licensee, shall comply with all zoning,
building safety, fire, pavement and curb cut and restoration, and similar laws and procedures of every
description and shall pay all fees, charges and other amounts pertaining thereto.
15.4 Encroachment Permit. This Agreement constitutes an “encroachment permit" under
Chapter 47 of the Scottsdale Revised Code to the extent of allowing the Private Plant to exist on the
Right-Of-Way but not to allow any construction or other work of any description in the Use Areas or
to allow obstruction of traffic or alternation of Licensors improvements. Before performing any work
on the Right-of-Way, Licensee shall obtain the following additional encroachment permits, as
applicable;
15.4.1 Permission to Work in the Right-of-Way.
15.4.2 Permission to Alter City Improvements.
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Contract No. 2026-159-COS
15.4.3 Permission to Obstruct Traffic.
15.4.4 Any other applicable permits regarding work in the Right-of-Way.
15.5 Taxes. Liens and Assessments. In addition to ail other amounts herein
provided and to the extent consistent with applicable law, Licensee shall pay, when the same
become due and payable, all taxes and general and special fees, charges and assessments of every
description that during the term of this Agreement may be levied upon or assessed upon or with
respect to Licensee’s use of the Right-of-Way, Licensee’s operations conducted therein, any
amounts paid or other performances under this Agreement by either party, and all of Licensee’s
possessory interest in the Right-of-Way and improvements and other Licensor or Licensee property
thereon. Licensee shall pay, indemnify, defend and hold hamnless Licensor and the Right-of-Way
and all interests therein and improvements thereon from any and all such obligations, including any
interest, penalties and other expenses which may be imposed, and from any lien therefor or sale or
other proceedings to enforce payment thereof.
15.6 Change in Law. If a provision of this Agreement is affected by subsequent
legislative action, this Agreement shall continue in force to the extent possible.
15.7 Use Area Regulations.Licensor reserves the right to adopt, amend and enforce
against Licensee ordinances, rules and regulations governing the operation of the Use Areas,
Licensee’s activities therein and thereon, and the public areas and facilities used by Licensee in
connection therewith.
15.8 Permits. This Agreement does not relieve Licensee of the obligation to obtain
permits, licenses and other approvals from Licensor or other units of government that are required
for the erection, construction, reconstnjction, installation, operation or maintenance of the Private
Plant or provision of Telecommunications Services; or from compliance with applicable municipal
codes, ordinances, laws and policies, such as zoning and land use ordinances and regulations,
pavement cut and restoration ordinances and regulations, subdivision and project improvement
ordinances, curb cut permits, building permits, right-of-way permits and the like.
XVI. ASSIGNABILITY
16. Assignability. This Agreement is not assignable by Licensee (and any assignment shall be
void and vest no rights in the purported assignee) unless the assignment is made in strict compliance
with the following:
16.1 Assignments Affected. Every assignment of any of Licensee’s interest in the Flight-
of-Way or this Agreement or any of Licensee’s rights or interests hereunder is prohibited unless
Licensee first receives from Licensor notice of Licensor’s consent to the assignment. All references
in this Agreement to assignments by Licensee or to assignees shall be deemed also to apply to all
of the following transactions, circumstances and conditions and to all persons claiming pursuant to
such transactions, circumstances and conditions:
16.1.1 Any voluntary or involuntary assignment, conveyance or transfer of the Right-
of-Way or any interest therein or any rights under this Agreement, in whole or in part.
16.1.2 Any voluntary or involuntary pledge, lien, mortgage, security interest,
judgment, claim or demand, whether arising from any contract, any agreement, any work of
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Contract No. 2026-159-COS
construction, repair, restoration, maintenance or removal, or otherwise affecting Licensee's rights to
use the Right-of-Way (collectively -Liens”).
16.1.3 Any assignment by Licensee of any interest in this Agreement for the benefit
of creditors, voluntary or involuntary.
16.1.4 A Licensee Insolvency.
16.1.5 The occurrence of any of the foregoing by operation of law or otherwise.
16.1.6 The occurrence of any of the foregoing with respect to any assignee or other
successor to Licensee.
16.1.7 Affiliate Use. Any use of the Private Plant or exercise of any rights under this
Agreement by any Affiliate of Licensee shall be deemed an assignment requiring Licensor’s prior
written consent unless expressly permitted under Section 4.4 solely for the purpose of transmitting
data over the Private Plant. No Affiliate arrangement that results in an Affiliate having effective
operational control over the Private Plant or directing its constmction or expansion shall be deemed
pemnitted under Section 4.4^ regardless of how such arrangement is structured.
16.2 Pre-aoDroved Assignments. Subject to certain conditions hereafter stated.
Licensor hereby consents to certain assignments (the “Pre-approved Assignments"). Only the
following assignments are Pre-approved Assignments:
16.2.1 Complete Sale of Private Plant. Licensee's complete assignment of all
of Licensee’s rights and Interests in the Right-of-Way and this Agreement to a single assignee who
meets all of the following requirements, as determined by Licensor in Licensor’s reasonable
discretion (a “Qualified Operator"):
16.2.1.1 The assignee has experience, management, credit standing
and financial capacity and other resources equal to or greater than Licensee’s and adequate to
successfully perform under this Agreement.
16.2.1.2 The assignee is experienced in the management and
operation of similar projects.
16.2.1.3 The assignee assumes all of Licensee’s obligations relating to
this Agreement.
16.2.1.4 The assignee has a net worth erf not less than One Billion and
No/IOd Dollars ($1,000,000,000.00).
16.2.2 Stock Transfers. The transfer of publicly traded stock, regardless of
quantity.
16.2.3 Merger, The merger or consolidation of Licensee with another entity
that is a Qualified Operator.
16.2.4 Common Ownership Transfer.Licensee’s complete assignment of all of
Licensee’s rights and interests in the Right-of-Way and this Agreement to single assignee who is
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Contract No. 2026-159-COS
and remains either a wholly owned subsidiary of Licensee (or a wholly owned subsidiary of a wholly
owned subsidiary of such named entity).
16.3 Limitations on Assignments. Licensor’s consent to any assignment, including
without limitationi Pre-approved Assignments, is not effective until the following conditions are
satisfied;
16.3.1 Except for the sale of stock. Licensee shall provide to Licensor a complete
copy of the document assigning this Agreement.
16.3.2 Each assignee must execute an assumption of this Agreement in form
acceptable to Licensor.
16.3.3 Each Pre-approved Assignment must satisfy all other requirements of this
Agreement pertaining to assignments.
16.4 Assignment Remedies. Any assignment without Licensor’s consent shall be
void and shall not result in the assignee obtaining any rights or interests in, under or related to this
Agreement. Licensor may, in its sole discretion and in addition to all other remedies available to
Licensor under this Agreement or othenvise, and in any combination, terminate this Agreement,
collect Fee Payment from the assignee and/or declare the assignment to be void, all without
prejudicing any other right or remedy of Licensor under this Agreement. No cure or grace periods
shall apply to assignments prohibited by this Agreement or to enforcement of any provision of this
Agreement,against an assignee who did not receive Licensor’s, consent.
16.5 Effect of Assignment. Prior to any assignment, each assignee must execute an
assumption of this Agreement in form acceptable to Licensor. No action or inaction by Licensor shall
be deemed a waiver of the prohibition on assignments or any other provision of this Agreement, or
the acceptance of the assignee, sublicensee or occupant as Licensee, or a release of Licensee from
the further performance by Licensee of the provisions of this Agreement. Consent by Licensor to an
assignment shall not relieve Licensee from obtaining Licensor’s consent to any further assignment.
No assignment shall release Licensee from any liability hereunder.
16.6 Unity of Assignment. Any assignment must cover Licensee’s entire interest in the
Private Plant and this Agreement. All of Licensee’s rights under this Agreement must at all times
remain in the hands of a single person or entity so that Licensor is only dealing with a single Licensee
as to this Agreement and the Private Plant.
16.7 Change of Control. For purposes of this Agreement a “Change of Control” means
any transaction or series of transactions, whether voluntary or involuntary, that results in any person
or entity other than Licensee’s direct or indirect parent entity as of the Effective Date, or a Wholly
owned subsidiary of such parent entity, acquiring, directly or indirectly, (a) fifty percent (50%) or more
of the ownership interests in Licensee, or (b) the power to direct or cause the direction, of the
management and policies of Licensee. A Change of Control shall be deemed an assignment of this
Agreement requiring Licensor’s prior written consent under this Section. Any proposed Change of
Control shall be subject to the same Qualified Operator requirements applicable to assignments
under this Agreement. Licensee shall provide Licensor with written notice prior to the closing of any
proposed Change of Control, together with such infonnation as Licensor may reasonably request to
evaluate whether the proposed transferee meets the Qualified Operator standard. Any Change of
Control effected without Licensor's prior written consent shall be void and shall constitute an Event
of Default under this Agreement.
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Contract No. 2026-159-COS
16.8 Enforceability after Assignment. No consent by Licensor shall be deemed to be
a novation. Licensor’s consent to any assignment does not in any way expand or modify this
Agreement or waive, diminish or modify any of Licensor’s rights or remedies under this Agreement.
This Agreement shall be enforceable against Licensee and each successor, partial or total, and
regardless of the method of succession, to Licensee’s interest hereunder. Each successor having
actual or constructive notice of this Agreement shall be deemed to have agreed to the preceding
sentence.
16.9 Grounds for Refusal. Except for the Preapproyed Assignments, no assignment of
this Agreement by Licensee is contemplated or bargained for. Without limitation. Licensor has the
right to impose upon any consent to assignment such conditions and requirements as Licensor may
deem appropriate.
16.10 Form of Assignment. Any assignment shall be by agreemerit in form and
content acceptable to Licensor. Without limitation, any assignment shall specify and require that each
assignee acquiring any interest under this Agreement shall assume and be bound by and be
obligated to perfonn the terms and conditions of this Agreement.
16.11 Consent to Assignments. Licensee shall attach to each Pre-approved
Assignment a copy of Licensee’s notice to Licensor of the Pre-approved Assignment and other
required document. Licensee shall attach to each other assignment, a copy of Licensor's notice to
Licensee of Licensor’s consent to the assignment. This Agreement shall continue to be enforceable
according to its temis in spite of any provisions of any documents relating to an assignment
16.12 Assignment Fee. Licensee shall pay to Licensor in advance the sum of Three
Thousand Five Hundred Dollars ($3,500) as a nonrefundable fee for legal, administrative and other
expenses related to every Pre-approved Assignment (other than the sale of publicly traded stock) or
to any request for a consent to assignment, whether or not Licensor grants such request.
XVII. MISCELLANEOUS
17. Miscellaneous. The following additional provisions apply to this Agreement:
17.1 Amendments. This Agreement may not be amended except by a formal writing
executed by all of the parties.
17.2 Time of Essence. Time is of the essence of each and every provision of this
Agreement.
17.3 Sunrival of Liabilitvi All obligations of Licensee and Licensor hereunder and all
warranties and indemnities of Licehsee hereunder shall survive termination of this Agreement for
any reason.
17.4 Severability. If any provision of this Agreement shall be ruled by a court or agency
of competent jurisdiction to be invalid or unenforceable for any reason, then:
17.4.1 The invalidity or unenforceability of such provision shall not affect the validity
of any remaining provisions of this Agreement.
17.4.2 This Agreement shall be automatically reformed to secure to the parties the
benefits of the unenforceable provision, to the maximum extent consistent with law.
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Contract No. 2026-159-COS
17.5 Conflicts of Interest. No officer, representative or erriployee of Licensor shall have
any direct or indirect interest in this Agreement, nor participate in any decision relating to the
Agreement that is prohibited by law.
17.6 No Partnership. This Agreement and the transactions and performances
contemplated hereby shall not create any sort of partnership, joint venture or similar relationship
between the parties.
17.7 Nonliability of Officials and Employees. No official, representative or employee
of Licensor shall be personally liable to any party, or to any successor in interest to any party, in the
event of any default or breach by Licensor or for any amount which may become due to any party or
successor, or wjth respect to any obligation of Licensor or otherwise under the terms of this
Agreement or related to this Agreement.
17.8 Notices. Notices hereunder shall be given in vmtihg delivered to the other party
or mailed by registered or certified mail, return receipt requested, postage prepaid addressed to;
If to Licensor City Manager
City of Scottsdale
7447 E. Indian School Road
Scottsdale, AZ 85251
Copy to: Wireline Telecommunications License Admiriistrator
City of Scottsdale
7447 E. Indian School Rd.
Scottsdale, AZ 85251
Copy to: City Attorney
City of Scottsdale
3939 N. Drinkwater Blvd.
Scottsdale, AZ 85251
If to Licensee: Forged Fiber 37, LLC
(except for invoices) Attn: Bill Boards
1200 17th Street, 10th Floor
wiiliam.soards@forQedfiber37.e0m
Copy to: Forged Fiber 37, LLC
208 S. Akard St, Suite 3105.07
Dallas, TX 75202
FF37 Right of Wav@ForaedFiber37.com
Invoices to: Forged Fiber 37, LLC
Jeffrey Marek
208 S. Akard St
Dallas, TX 75202
ieffrev.marek@foraedfiber37.com
Copy to: FF37 Right of Wav@ForaedFiber37.com
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Contract No. 2026-159-COS
By notice from time to time, a person may designate any other street address within Maricopa
County, Arizona as its address for giving notice hereunder. Service of any notice by mail shall be
deemed to be complete three (3) days (excluding Saturday, Sunday and legal holidays) after the
notice is deposited in the United States mail.
17.9 Integration. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior agreement understanding,
negotiation, draft agreements, discussion outlines, con^spondence, memoranda and representation
regarding the Right-of-Way.
17.10 Construction Whenever the context of this Agreement requires, the singular shall
include the plural, and the masculine shall include the feminine. This Agreement was negotiated on
the basis that it shall be construed according to its plain meaning and neither for nor against any
party, regardless of their respective roles in preparing this Agreement. The terms of this Agreement
were established in light of the plain meaning of this Agreement and this Agreement shall therefore
be interpreted according to its plain meaning and without regard to rules of interpretation, if any,
which might otherwise favor Licensee.
17.11 Funding. This subparagraph shall control notwithstanding any provision of this
Agreement or any exhibit or other agreement or document related hereto. If funds necessary to fulfill
Licensor’s obligations under this Agreement are not appropriated by the Scottsdale City Council,
Licensor may temninate this Agreement, by notice to Licensee. Licensor shall use best efforts to give
notice of such a temiination to Licensee at least thirty (30) days prior to the end of Licensor’s then
current fiscal period. Termination in accordance with this provision shall not constitute a breach of
this Agreement by Licensor. No person will be entitled to any compensation, damages or other
remedy from Licensor if this Agreement is tenuinated pursuant to the terms of this subsection.
17.12 Paragraph Headings. The paragraph headings contained herein are for
convenience in reference and not intended to define or limit the scope of any provision of this
Agreement.
17.13 No Third-Party Beneficiaries. No person or entity shall be a third-party beneficiary to
this Agreement or shall have any right or cause of action hereunder. Licensor shall have no liability
to third parties for any approval of plans. Licensee’s construction of improvements. Licensee’s
negligence. Licensee’s failure to comply with the provisions of this Agreement (including any
absence or inadequacy of insurance required to be carried by Licensee), or otherwise as a result of
the existence of this Agreement Nothing in this paragraph shall be construed to limit any rights or
remedies Licensor may have utider applicable law against any person or entity whose conduct,
ownership, or control of Licensee gives rise to liability for Licensee’s obligations under this
Agreement
17-14 Exhibits. All Exhibits specifically stated to be attached hereto as specified
herein are hereby incorporated into and made an integral part of this Agreement for all purposes.
17.15 Attorneys’ Fees. If any actiorr, suit or proceeding is brought by either party
hereunder to enforce this Agreement or for failure to observe any of the covenants of this Agreement
or to vindicate or exercise any rights or remedies hereunder, the prevailing party in such proceeding
shall be entitled to recover from the other party such prevailing party’s reasonable attorneys’ fees
and other reasonable litigation costs.
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Contract No. 2026-159-COS
17.16 Choice of Law. This Agreement shall be governed by the internal laws of the State of
Arizona without regard to choice of law rules. Licensor has not waived its claims procedures as
respects this Agreement. Exclusive proper venue for any action r^arding this Agreement shall be
Maricopa County Superior Court or a Federal district court sitting in Maricopa County. City and
Lessee consent to personal jurisdiction in such courts.
17.17 Approvals and Inspections. All approvals, reviews and inspections by Licensor
under this Agreement or otherwise are for Licensor's sole benefit and not for the benefit of Licensee,
its contractors, engineers or other consuKante or agents, or any other person.
17.18 No Partnership. This Agreement and the transactions and performances
contemplated hereby shall not create any sort of partnership, joint venture or similar relationship
between the parties.
17.19 Recording. This Agreement shall not be recorded.
17.20 Statutory Cancellation Right. |n addition to its other rights hereunder. Licensor shall
have the rights specified in A.R.S. § 38-511.
17.21 Reservation of Rights. Without limitation of the foregoing, there is hereby reserved
to each of Licensor and Licensee every right and privilege granted to each such party under
applicable law, and each party, by the execution and delivery of this Agreement, shall not be deemed
in any way to waive, relinquish, release or abrogate any such lawful rights and privileges.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Contract No. 2026-159-COS
EXECUTED as of the Effective Date.
LICENSEE: ^RGEMEiBER^lLp,
a Delaware limited liability company
c
Authorized Representative Signature
Kevin Marvin ____________
Name
Senior Executive Director_________
Title
State of .)
)ss.
County of J
The foregoing instrument was acknowledged before me this 10^^ day of
2026 by Kevin Marvin, Senior Executive Director of Forged Fiber 37, LLC, a Delaware limited
liability^mpany. .
^ • y o/Z-TP^
Notary Public ^
My commission expires: OV /30 /Z-Q 2-^______ . (SEAL)
Jason B Horton
state of Texas
NotaryPublic
Commission No. 135519164
- — My Conunission Expires 0800/2029
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Gontract No. 2026^159-COS
EXECUTED as of the Effective Date.
UCENSOR: CITY OF SCOTTSDALE,
an Arizona municipal corporation
Lisa Borowsky, Mayor
ATTEST:
Ben Lane, City Clerk
APPROVED AS TO FORM:
Luis^. Santaella, Cit^^torney
By: Jennifer Fernandez, Stenior Assistant City Attorney
REVIEWED BY:
^finPeffeault, PlariningrSeni^ Director, Planning and Development Services
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Contract No. 2026-159-005
TABLE OF EXHIBITS
Exhibit Paragraph Description
A B Map showing initial boundaries of Use Areas under this Agreement
B 3.8.3 Standards for letters of credit and fbmis of letter and draft
C 4.3 List of equipment allowed
19484406 Table of Exhibits
Page 1 of 1

Contract No. 2026-159-COS
EXHIBtTA
Map showing initial boundaries of Use Areas under this Agreement
Licensee to submit plans to Planning & Development Department for routes and
route extensions.
19484406 ExhibitA
Page 1 of 1

Contract No. 2026-159-COS
EXHIBIT B
Standards for Letters of Credit
In addition to any other requirements imposed upon a letter of credit (the “Letter of Credif) issued
pursuant to this Agreement, each Letter of Credit shall meet and be governed by the following
additional standards and requirements:
1. Letter of Credit Requirements. The Letter of Credit shall be printed on Bank Safety Paper.
The following terms and no others shall be stated on the face of the Letter of Credit:
1.1 The Letter of Credit is clean, unconditional, and irrevocable.
1.2 The Letter of Credit is payable to City upon presentation of the City’s draft.
1.3 City may make partial draws upon the Letter of Credit.
1.4 The Letter of Credit is conditioned for payment solely upon presentation of a sight
draft and a copy of the Letter Of Credit.
1.5 Within ten (10) days after City’s draft on the Letter of Credit is honored. City must
make the original of the Letter of Credit available to the issuer |n Maricopa County, Arizona upon
which the issuer may endorse its payments.
1.6 The issuer specifies a telefax number, email address, and street address at which
City may present drafts on the Letter of Credit.
1.7 The Letter of Credit is valid until a specified date.
1.8 The Letter of Credit will be automatically renewed for successive one (1) year
periods, unless at least one hundred twenty (120) days prior to expiration the issuer notifies City
in writing, by either registered or certified mail, that issuer elects not to renew the Letter of Credit
for the additional period. In the event of such notification, any then unused portion of the Letter of
Credit shall be available by draft On or before the then current expiration date.
1.9 The Letter of Credit is otherwise subject to the most recent edition of the Uniform
Customs and Practices for Documentary Credits, published by the Iritemational Chamber of
Commerce.
1.10 The Letter of Credit need not be transferable.
2. Approved Forms. The form of the Letter of Credit and of drafts upon the Letter of Credit
shall be as follows:
2.1 Except as approved iri writing by City’s Chief Financial Officer or designee, the
form of the Letter of Credit shall be in the form set out bejow.
2.2 Except as approved in writing by City’s Chief Financial Officer or designee, the
fonn of drafts upon the Letter of Credit shall be in the form set out below.
3. Issuer Requirements. The issuer of the Letter of Credit shall meet all of the following
requirements:
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Contract No. 2026-159-COS
3.1 The issuer shall be a federally insured financial institution with offices in Maricopa
County, Arizona, at which drafts upon the Letter of Credit may be presented.
3.2 The issuer shall be a member of the New York Clearing House Association or a
commercial bank or trust company satisfactory to City.
3.3 The issuer shall have a net worth of not less than $1 billion.
19484406 Exhibit B
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Contract No. 2026-159-COS
Form of Letter of Credit
Date ..20_
Letter of Credit No.:
To: City Treasurer From:
City of Scottsdaie
7447 E. Indian School Rd.
Suite 210
Scottsdale, Arizona 85251
To Whom It May Concern:
We hereby establish our clean, unconditional and irrevocable Letter of Credit in your fevor at the
request and for the account of _______________________________ _ ____ ___________in
the aggregate amount of______ ^______________ _____________($________________),
available upon presentation of your draft in the form attached hereto as Schedule 1.
We vynll honor each draft presented to us at our above office in compliance >vith the terms of this
Letter of Credit. Partial draws are permitted. Each draft must be accompanied by a copy of this Letter
of Credit. Within ten (10) days after we honor your draft, you must make the original of this Letter of
Credit available to us in Maricopa County, Arizona upon vtrhich we may endorse our payment. Drafte
may be presented by any of the following means:
1. By email to:.
2. By hand or overnight courier service delivery to:
City of Scottsdale
7447 E. Indian School Road, Suite 215
Scottsdale. AZ 85251
This Letter of Credit is valid until 20_ and shall thereafter be
automatically renewed for successive one (1) year periods, unless at least one hundred twenty (120)
days prior to expiration we notify you in writing, by either registered or certified mail, that we elect not
to renew the Letter of Credit for such additional period. In the event of such notification, any then
unused pwrtion of the Letter of Credit shall be available upon your presenting to us your draft on or
before the then current expiration date.
This Letter of Credit is subject to the most recent edition as of the date of this Letter of Credit of the
Uniform Customs and Practices for Documentary Credits published by the International Chamber of
Commerce. This Letter of Credit is not assignable.
Bank Name: ____________________________
Bank Officer’s Signature: ___________________________
Bank Officer’s Printed Name: _________
Bank Officer's Title: ____________________________
Bank Officer’s Phone No.: ____________________________
19484406 Exhibit B
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Contract No. 2026-159-COS
SCHEDULE 1
Form of Draft on Letter of Credit
Date .20
Letter of Credit No.:
To:
From: City Treasurer
City of Scottsdale
Suite 210
7447 E. Indian School Road
Scottsdale, Arizona 85251
To Whom It May Concern:
Pursuant to your Letter of Credit No.______ the City of Scottsdale hereby demands cash
payment in the amount of_____________________________________________________
($_________ )•
The City’s preferred payment method is wire transfer. Please contact the City Treasurer’s Office
for wiring instructions at 480-312-2427.
If such deposit cannot be accomplished immediately for any reason, please make your payment
in the form of a cashier’s check issued by your institution and delivered to me at the address listed
above.
I certify that I am the City Treasurer of the City of Scottsdale.
If there is any imperfection or defect in this draft or its presentation, please inform me immediately
at 480-312-2427 so that I can correct it. Also, please immediately notify the City Attorney at 480-
312-2405.
Thank you.
City of Scottsdale, City Treasurer
19484406 Exhibit B
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Contract No. 2026-159-COS
EXHIBIT C
List of Equipment Allowed
1. Permitted Equipment. The foliowing Licensee equipment is allowed:
1.1 Horizontal signal conductors (which includes fiber optic cables).
1.2 Junction boxes, splice enclosures, handholes, and manholes.
1.3 Signal repeaters.
1.4 Signal amplifiers.
1.5 Underground conduits enclosing signal conductors.
1.6 Backup batteries.
2. Prohibited Equipment. No other licensee equipment is allowed. Without limitation,
the following are expressly prohibited:
2.1 Antennas.
2.2 Electrical generators.
2.3 Any cabinets or other objects, other than signal lines, that are visible above
ground unless the City has approved the equipment pursuant to Section 3,
below.
3. Approved Eoubment. Licensee shall not install above ground equipment (“Visible
Equipmenf) upon the Right-of-Way unless Licensor has first approved the Visible
Equipment as follows;
3.1 All Visible Equipment that Licensee installs upon the use Area from time to
time must be of a color included in a palette of colors designated by Licensor
from time to time. Licensor shall give Licensee ninety (90) days notice of any
change in the approved palette.
3.2 Licensee may give Licensor notice proposing additional Visible Equipment for
Licensor to approve. Any such notice shall include textual and graphical
specification (such as catalog pages) of the Visible Equipment Licensee
proposes. Licensor shall respond within thirty (30) days of apy such notice.
Licensor shall give Licensee ninety (90) days notice before removing any
approved Visible Equipment from the list of approved Visible Equipment.
3.3 No visible Equipment shall be deemed approved by Licensor until Licensor
stamps the information “APPROVED ONLY FOR PURPOSES OF EXHIBIT
“C” OF THE WIRED TELECOMMUNICATIONS RIGHT-OF-WAY LICENSE
AGREEMENT,” and Licensor’s project manager initials and dates the stamp.
The starnp used to Stamp plans shall contain such words as Licensor may
choose from time to time.
19484406 Exhibit C
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31073929.2