Wyyerd Connect LLC

WIRED TELECOMMUNICATIONS LICENSE AND
RIGHT-OF-WAY USE AGREEMENT

This Wired Telecommunications License and Right-of-Way Use Agreement (“Agreement”) is
entered into this 14 day of Ockdoer _, 2021 by and between the City of El Mirage, an Arizona
municipal corporation (“City”) and Wyyerd Connect LLC, a Delaware limited liability company

(‘Licensee’).

RECITALS

WHEREAS, City owns public street and alley right-of-way and public utility easements within
the boundaries of the City of El Mirage;

WHEREAS, Licensee has obtained from the Arizona Corporation Commission (“ACC”) a
Certificate of Convenience and Necessity (“CC&N”) in Arizona Corporation Commission matter T-
21087A-19-0300, dated June [8], 2021 (the “Certificate”;

WHEREAS, Licensee desires the authorization to install, operate, maintain and repair cable
containing bundles of multiple optical fibers, within the City rights-of-way for the purpose of providing
fiber-to-the-premise networks and fiber-based services, as authorized by the Arizona Corporation
Commission, subject to the requirements of this Agreement;

WHEREAS, Licensee is a Competitive Local Exchange Carrier (CLEC) and will primarily install,
operate, maintain, and repair fiber-to-the-premise networks and fiber-based services to homes,
residences, and government agencies (including municipal facilities, schools, and police and fire
departments), including telephony services, internet/broadband services, and end-to-end fiber-based
services. While not its primary business focus, Licensee may also provide ancillary fiber-based services
to enterprise and wholesale customer segments (non-residential or non-governmental customers):

WHEREAS, City and Licensee agree that for purposes of this Agreement, Licensee’s business
and operations are considered Telecommunications Services;

WHEREAS, City is empowered to regulate its streets, alley and public utility easements, and to
grant, renew, deny, amend and terminate licenses for and otherwise regulate the installation, operation,
repair, and maintenance of facilities within the City’s boundaries pursuant to the El Mirage City Code
including El Mirage City Code Section 151.002, and by virtue of federal (47 U.S.C. § 253) and state
statutes (including A.R.S. §§ 9-581, 9-582, and 9-583), by the City’s police powers, its authority over
City’s public right-of-way, and its other governmental powers and authority;

WHEREAS, City desires to reserve rights to construct, use, and allow others to construct and
use all manner of additional improvements in the right-of-way, while granting Licensee a license to
install, operate, maintain and repair Fiber Optic Cable within the City’s right-of-way;

WHEREAS, Licensee agrees to provide and maintain accurate maps showing the location of all
Fiber Optic Cable owned or used by Licensee in the City right-of-way, and to comply with such other
mapping requirements as City may establish from time to time;

WHEREAS, Licensee will secure the appropriate licenses, encroachments and other permits
required by the City for the placement of its Conduit Systems, Fiber Optic Networks, and related facilities

within City right of way;

WHEREAS, Licensee has agreed to comply with public property use requirements that City has
and may establish from time to time.

NOW THEREFORE, for and in consideration of the foregoing, the amounts hereinafter to be paid
by Licensee, and the covenants and agreements contained herein to be kept and performed by
Licensee, and for other good and valuable consideration, the City hereby grants to Licensee a
telecommunication license and permission to use the public right-of-way pursuant to the terms and

conditions set forth herein.

DEFINITIONS

Cable Services shall have the same meaning as defined in Chapter 151 of the El Mirage City Code,
herein incorporated by this reference, and in A.R.S. § 9-581. Cable Services are not a

Telecommunications Service.
Conduit means pipes made of varying materials designed to protect buried Fiber Optic Cables.

Conduit System means any combination of Conduits, ducts, inner-ducts, manholes, and hand holes —
all joined to form an integrated whole.

Dark Fiber means Fiber Optic Cables that have not been connected to transmission equipment or
otherwise part of a Fiber Optic Network. Dark Fiber sales and leasing is not a Telecommunications

Service.

Facilities means the plant, equipment, and property used in the provision of communication and
Telecommunication Services and not owned by the City, including poles, wires, pipe, Conduit,
pedestals, antenna, Fiber Optic Cables, and other appurtenances placed in, on, or under the ROW.

Fiber Optic Cable means a cable containing bundles of optical fibers used to carry optical signals.
Fiber Optic Cables may be part of a Fiber Optic Network.

Fiber Optic Network means a communication system consisting of an optical transmitter used to
convert an electrical signal into an optical signal to send into an optical fiber, Fiber Optic Cables routed
through conduits and buildings, amplifiers, and an optical receiver to recover the signal as an electrical
signal. A Fiber Optic Network contains Fiber Optic Cables and is used for the purpose of

Telecommunications Services.

Gross Revenues means all cash, credits, property of any kind or nature, or other consideration, less
related bad debt not to exceed one and one-half per cent annually, that is received directly or indirectly
by the Licensee, its affiliates, subsidiaries or parent or any person, firm or corporation in which the
Licensee has a financial interest or that has a financial interest in the telecommunications provider and
that is derived from the Telecommunications Services provided in the area of jurisdiction. Gross
revenues include all revenue from charges for Telecommunications Services to subscribers and all
charges for installation, removal, connection or reinstatement of equipment necessary for a subscriber
to receive Telecommunications Services, and any other receipts from subscribers derived from
operating the telecommunications system to provide Telecommunications Services, including receipts
from forfeited deposits, sale or rental of equipment to provide Telecommunications Services, late
charges, interest and sale of program guides. Gross revenues also include all income the Licensee
receives from the lease of its facilities located in the public streets, roads and alleys, unless services
that the lessee provides over the leased facilities are subject to a transaction privilege tax of the
licensing authority. Gross revenues do not include revenues from fees, taxes or other fees or charges

that the Licensee collects and pays to any governmental authority, any increase in the value of any
stock, security or asset, or any dividends or other distributions made in respect of any stock or securities.

Right-of-Way (“ROW”) means the roads, streets, highways, and alleys and all other dedicated public
rights-of-way and public utility easements of the City.

Telecommunications means the transmission of information, between or among points specified by a
user, of the user's choosing, without change in the form or content of the information as sent and
received. Telecommunications does not include commercial mobile radio services, pay phone services,
interstate services, Cable Services, information services, or the sale or leasing of Dark Fiber for

transmission purposes.

Telecommunications Services means the offering of Telecommunications for a fee directly to the
public or to such users as to be effectively available directly to the public. Telecommunications Services
does not include commercial mobile radio services, pay phone services, interstate services, Cable
Services, information services, the sale or leasing of Dark Fiber for transmission purposes, or the sale

or leasing of Conduit.

AGREEMENT

1. LICENSE; TERM

1.1. License; Route. The City hereby grants to Licensee a non-exclusive, revocable license to use
the designated portion of the ROW (“Route”) subject to and conditioned upon Licensee's full,
timely, complete, and faithful performance of ali obligations required under this Agreement. Such
use of the Route will be for the sole purpose of operating and maintaining a wired network as
described in this Agreement. The Route will be occupied by Licensee’s Conduit System, Fiber
Optic Network, plant, equipment, and property used in the provision of communication and
Telecommunication Services, including poles, wires, pipe, Conduit, pedestals, antenna, Fiber
Optic Cables, and other appurtenances placed in, on, or under the ROW (collectively, the
“Licensee's Facilities”) and is as reflected on the map (i.e. use area) in Exhibit A, incorporated
herein and made a part hereof by this reference. For the avoidance of doubt, under no
circumstances shall the Route include any other property other than the ROW. Licensee may
request modification or expansion of the Route by submitting all required permits for construction
to the City. Any modifications or expansions to the Route shall be governed by the terms and
conditions of this Agreement and must be approved in writing by the City. Any modifications or
expansions shall become part of the Route. Licensee shall not use any portion of the ROW that
is abandoned by the City or removed from the City’s legal boundaries or for any purpose other
than that expressly stated this Agreement.

1.2. Term; Effective Date. This Agreement is effective the date the last party signs (“Effective Date”)
and shall remain in effect for five (5) years from the Effective Date (“Term”), unless sooner
terminated. No provision of this Agreement may be construed to grant any automatic extension,
renewal, or replacement thereof.

1.2.1. Holdover. If Licensee’s Facilities remain in the Route, and Licensee continues to use
such Licensee’s Facilities beyond the expiration of the Term, the Agreement shall be
considered to be in a “Holdover Term,” subject to the terms and conditions of this
Agreement. Such Holdover Term, however, shall not exceed sixty (60) days beyond the
expiration of the Term, and no permits will be issued to Licensee by the City until a new
license agreement has been approved by the City Council.

1.3.

1.4,

1.5.

1.6.

1.7.

1.8.

1.2.2. Failure by Licensee to have a valid license to use the Route or other ROW by the
expiration of the Holdover Term shall result in immediate withdrawal and revocation of
any existing permits issued by the City to Licensee. If, however, Licensee has timely filed
its application and is in active negotiations with the City prior to the expiration of the
Agreement, the City may, in its discretion, grant, extend, or take no action on permits
issued to Licensee prior to the expiration of the Agreement.

Renewal. The parties may extend the Term of this Agreement for up to three (3) additional five
(5) year periods upon the mutual written consent of both parties. Such renewal must be agreed
to within one-hundred eighty (180) days prior to the termination of the initial Term of the
Agreement. Licensee understands that the City may adopt future code amendments or fee
schedules relating to use of the ROW, which may become applicable to this Agreement upon its
initial or subsequent renewal. Licensee acknowledges the right of the City to adopt and
implement such lawful code amendments and/or fee schedules.

Amendments. This Agreement may amended only in writing and with the written approval of
both parties, except as described herein.

No Real Property Interest. Notwithstanding any provision in this Agreement 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 in the Route is limited to the
license rights created by this Agreement, which creates a revocable (subject to the terms and
provisions herein), non-exclusive license in the Route. The City and Licensee do not by this
instrument intend to create a lease, easement or other real property interest. Licensee shall have
no real property interest in the Route or any portion of the ROW. Licensee's rights hereunder are
subject to all covenants, restrictions, easements, agreements, reservations and encumbrances
upon, and all other conditions of title to, the Route. Licensee's rights hereunder are further subject
to all present and future building restrictions, regulations, zoning laws, ordinances, resolutions
and orders of any local, state or federal agency, now or hereafter having jurisdiction over the
Route or Licensee's use thereof.

“AS-IS” Condition. Licensee is responsible for the study and inspection of the Route to be used
pursuant to this Agreement and for determining the fitness for use intended by Licensee. The
City expressly disclaims all warranties of merchantability or fitness for a particular purpose or
absence of hazardous conditions associated with the Route and the ROW. Licensee accepts the
Route and ROW in “AS-IS” condition, without representation or warranty of any kind by the City,
its officers, agents, or employees, and subject to all applicable laws governing the use of the
Route for the permitted uses allowed by this Agreement.

Mapping Requirement. Licensee shall maintain as-built drawings of Licensee's Facilities located
within the Route and furnish a copy to the City using as-builts in pdf and AutoCAD. Upon
completion of new or relocation construction of Licensee’s Facilities in the Route, Licensee shall
create and maintain precise, up-to-date maps of any of Licensee's Facilities and the Route using
as-builts in pdf and AutoCAD and will make this information available to the City.

Dark Fiber. To the extent Licensee occupies the ROW with empty Conduit and/or Dark Fiber
and/or uses the ROW to provide services other than the Telecommunication Services as defined
by this Agreement and A.R.S. § 9-581, such use or occupation of the ROW is subject to the
terms and conditions of this Agreement and any applicable fees, permits, and laws.

1.9.

Cable System. If Licensee obtains or seeks federal, state, or local approval to provide Cable
Services over Licensee's Facilities within the City, this Agreement shall remain in effect
according to its terms, and Licensee shall continue to pay any fee required by this Agreement,
regardless of any legal or regulatory provisions, permits or other processes or rules that might
now or hereafter provide otherwise. This Agreement does not allow Licensee to provide one-way
transmissions by anyone directly to customers or any other type of video programming or other
programming or transmission within the City that may be subject to a cable television license or
franchise within the City’s boundaries.

1.9.1. Licensee shall not use Licensee's Facilities to provide Cable Services, cable television, or
for open video service without the proper formal authorization by the City in separate
agreements.

1.9.2. Licensee may enter into User Contracts, as defined in Section 3.8, to allow third-parties
to use Licensee's Facilities for Cable Services, cable television, or for open video service
only if the third-party has previously entered into the proper agreements with the City that
allows the third-party to conduct such activities.

2. USE OF THE ROW; PERMITS

2.1.

2.2.

2.3,

Maintenance of Licensee's Facilities. Licensee shall be solely responsible for all maintenance,
repair, and operation of all utilities for Licensee's Facilities under this Agreement. Licensee shall
at all times repair and maintain Licensee's Facilities and the Route at Licensee’s sole expense
in a sound, clean, safe manner, meeting or exceeding the best industry practices.

Liability for Licensee’s Work. For purposes of this Agreement, whenever work is done in the
ROW or adjacent to the ROW as part of any work Licensee is performing in the ROW, Licensee
agrees that it is solely responsible for the acts, errors, omissions, and any negligence of any or
all persons, firms, partnerships, corporations, associations or other organization, or a
combination of any of them, including any subcontractor hired and/ or used by Licensee, that
performs services or provides goods relating to this Agreement and that the obligations of this
Agreement are imposed on both Licensee and any of Licensee's contractors (and any
subcontractors used thereunder), who will be considered Licensee’s representatives and for
whom Licensee will be responsible.

Licensee and its employees, agents, contractors, and representatives shall comply with all ROW
use requirements, including the following:

2.3.1. Licensee shall ensure that Licensee's Facilities are constructed, installed, operated,
repaired, and/or maintained in accordance with the El Mirage City Code and established
practices with respect to the ROW, including obtaining the proper permits prior to
commencing any work and following all terms and conditions of such permits.

2.3.2. Licensee’s use of the ROW shall be according to plans approved by the City Engineer,
provided that such approval of plans shall not be unreasonably withheld or delayed.

2.3.3. Licensee's Facilities to be constructed, installed, operated, maintained, upgraded, and/or
removed shall be located or relocated as to interfere as little as possible with traffic or
other authorized uses within the ROW. Any phases of construction and/or installation
relating to traffic control, backfilling, compaction, paving, and/or location or relocation of
Licensee's Facilities shall be subject to regulation by the City Engineer.

2.4.

2.5.

2.6.

2.7.

2.8.

2.9.

2.3.4. Provided such guidelines do not conflict with State and Federal law, the City may issue
reasonable policy guidelines to all Telecommunications Services licensees/permittees to
establish procedures for determining how to control the issuance of engineering permits
to multiple licensees/permittees for the same one-mile segments of the ROW. Licensee
agrees to cooperate with the City in establishing such policies with procedures established
by the City Manager or his/her designee to coordinate the issuance of multiple engineering
permits in the same one-mile segments of the ROW.

2.3.5. Licensee and its employees, agents, contractors, and representatives are subject to the
City's exercise of its police, regulatory, and other governmental powers as the City now
has or may later obtain, and a license or other agreement may not waive application of
the same. The City shall have continuing jurisdiction and supervision over any facilities
located within or on the ROW Licensee's Facilities. Daily administrative, supervisory, and
enforcement responsibilities are hereby delegated and entrusted to the City Manager or
his/her designee to interpret, administer, and enforce the provisions of this Agreement.

Permits before Construction/Installation. Licensee may not install, construct, locate, or attach
any Licensee's Facilities to any property within the City, including the ROW, until Licensee has
applied for and received approval for permits from the City Engineer. Licensee shall be solely
responsible for any and all acts, errors, omissions, and negligence of Licensee's contractors (and
any subcontractors used thereunder) who are involved in the design, installation, construction,
maintenance, repair, location, relocation, and/or any other activity involving Licensee’s Facilities
subject to this Agreement. Licensee and Licensee’s contractors (and any subcontractors used
thereunder) shall comply with all provisions of the El Mirage City Code, including off-site
construction regarding streets and sidewalks and other applicable City and/or Maricopa County
regulations. All rights hereunder are granted under the express condition that the City shall have
the power at any time to impose lawful restrictions and limitations upon, and to make regulations
as to Licensee's use of the ROW as may be deemed best for the public interest, safety, or
welfare, to the same extent that such restrictions and limitations are applied to all non-
governmental occupants/users of the ROW.

Details/Specifications for Permits. Licensee shall submit all applicable permit applications
together with the details, plans, and specifications for City review and approval, and pay all
applicable application, review, and inspection fees, prior to any and all construction work to be
performed pursuant to this Agreement.

Stipulations. Licensee and its contractors shall abide by all stipulations of all licenses and permits
issued.

Permits for Relocation. If Licensee desires to change the location of any portion of Licensee's
Facilities from the initial permit application(s), Licensee shall apply for and obtain approval for an
amendment to the permit prior to installation or construction, which approval shall not be
unreasonably withheld or delayed.

Criteria for Approval. The City will approve or deny applications based on the availability of space
at the location(s) sought by Licensee, safety, and other considerations in accordance with the El
Mirage City Code, the City’s practices, applicable ROW construction regulations, and other

applicable laws.

Construction Standards. All of Licensee's Facilities placed in the ROW shall be constructed
using industry standard boring and trenching construction methods. Other material placed in the

2.10.

2.11.

2.12.

2.13.

2.14.

ground may include concrete manholes, generally 4x4x4, pull boxes/handholes (#7s and #9s)
and HDPE couplings and elbows, fiber optic cable, splice cases, tracer wire, grounding material,
mule tape, jet string and conduit plugs. Licensee and/or its contractors shall install new Conduit
and access points (e.g. manholes, pull boxes) using industry standard practices and in full
compliance with the Uniform Standard Specifications for Public Works Construction sponsored
and distributed by the Maricopa Association of Governments (“MAG”) as amended from time to
time, the City’s supplements to MAG, and the City’s Engineering Design & Development
Standards Manual (“DDSM’).

2.9.1. Aerial Facilities. In accordance with theDDSM, Licensee may place Fiber Optic Cables
above ground along the Route where there are existing aerial/aboveground facilities. If
such existing aerial/aboveground facilities are subsequently relocated underground,
Licensee shall relocate its then-existing aerial/aboveground Fiber Optic Cables
underground in those locations and locate any new Fiber Optic Cables underground in
those locations.

Written Approval for Changes. Licensee shall obtain written approval from the City Engineer or
its designee if Licensee desires to change any components of any Licensee's Facilities, which
approval shall not be unreasonably withheld, delayed, or denied.

Work Restrictions/Requirements. Licensee shall comply with and ensure that its contractors
comply with the City of El Mirage Traffic Control Plan Policy (“El Mirage TCP Policy”), as
amended from time to time, herein incorporated by this reference. All of Licensee’s work under
this Agreement shall follow the El Mirage TCP Policy, which includes defined road types,
allowable hours of work and holiday/event restrictions, and other work requirements and
restrictions. The City will provide the El Mirage TCP Policy as requested, or which may be found
on the City of El Mirage website.

Right to Inspect. The City shall have the right, but not the obligation, to inspect all construction
and/or installation work performed subject to the provisions of this Agreement and to make such
tests occur as the City deems necessary to meet the City’s standards, the El Mirage TCP Policy,
the MAG Uniform Standard Specifications and Standard Details for Public Works Construction,
and any and all applicable City supplements thereto.

Common Installations. Licensee shall reasonably coordinate the installation of Licensee's
Facilities with other utilities and the City to accommodate opportunities for common installation.
Nothing herein shall require Licensee to incur any material additional expense to accommodate
common installations.

Boring: Street Openings. Although the exact placement and location of Licensee’s Facilities shall
be determined by the City through the permitting process, Licensee has expressed its intent and
the City has expressed its desire to have such Licensee's Facilities installed outside of the paved
street area whenever such location is feasible and reasonable. If Licensee intends to place
Licensee’s Facilities by directional boring under such streets when feasible and reasonable, said
bore profiles based on vacuum pothole information shall be part of the engineered plans to be
submitted to the City. Arterial streets shall not be bored, unless approved by the City Engineer
in writing. In the event that a street opening in the pavement cannot be avoided, Licensee agrees
to pay a fee in accordance with the City’s Development Services Fee Schedule, as amended
from time to time, and the El Mirage City Code (including trenching permit fees and fees for
excavation in paved streets) as amended from time to time.

2.15.

2.16.

2.17.

2.18.

2.19.

2.20.

2.21.

Dedicated Personnel. Licensee shall provide and identify a representative (project manager)
who shall be the contact person for the City during any construction periods.

Adjacent Property-Owners. Licensee shall provide written notice to adjacent property-owners,
or other individuals or entities having lawful control of adjoining property, of any activity by
Licensee that may interfere with access to such adjoining property during construction activities
or other operations, except to the extent that this requirement to maintain access is waived in
writing by the adjacent property-owner or other individual or entity having lawful control of such
adjoining property. If an emergency requires activity without such written notice, Licensee shall
use commercially reasonable efforts to provide timely actual notice to the adjacent property-
owner or other individual or entity having lawful control of such adjoining property. Upon request,
Licensee shall promptly provide the City with the documentation of such permission from such

affected property owner.

Opening/Alteration. Whenever Licensee or Licensee’s contractors (and any subcontractors used
thereunder) shall cause any opening or alteration to be made for any purpose in any public
streets or public places, the opening or alteration shall be completed and restored with due
diligence and due haste, but not more than seven (7) business days following completion of
Licensee's work which necessitated such opening or alteration, weather permitting. Licensee
shall upon the completion of the opening or alteration, restore the property, improvements or
landscaping disturbed by Licensee or Licensee’s contractors (and any subcontractors used
thereunder) to a condition substantially comparable to the condition before the opening or
alteration and the restoration shall be performed with due diligence within a reasonably prompt

time.

Restoration. After any work, installation, repair, maintenance, replacement, or relocation work
performed in the Route, Licensee shall restore all disturbed areas of the Route, affected ROW,
and any affected surrounding property to the same condition or better than existed immediately
prior to the commencement of the installation, repair, maintenance, replacement or relocation
work. Such restoration includes repair and/or replacement to the City’s standards, rules, and
policies (as amended from time to time) all pavement, sidewalks, curbs, landscaping, or other
City improvements that may be disturbed or damaged by Licensee's activities or work under this

Agreement.

Clean; Removal of Debris. Licensee and/or its contractors shall, during construction and upon
completion of the work, remove all temporary construction facilities, debris, and unused materials
provided for in the work, and put the work site, the Route, and the ROW in a safe, neat, and

clean condition.

Safety. Licensee and its contractors shall be solely and completely responsible for the conditions
of any job site, including safety of all individuals (including employees) and property, during
performance of the work. This requirement shall apply continuously and is not limited to normal
working hours. The safety provisions herein shall conform to all applicable federal (including
OSHA), state (including ADOSH), and local laws, ordinances, codes, and regulations. Where
any of these are in conflict, the stricter requirement shall be followed. Licensee’s failure to
thoroughly familiarize itself with the aforementioned safety provisions shall not relieve Licensee

from compliance with these provisions.

Traffic Control. Licensee shall comply with the following traffic control requirements:

2.22.

2.21.1,

2.21.2.

2.21.3,

2.21.4

2.21.5.

2.21.6.

Licensee's traffic control shall comply with the City of El Mirage Traffic Control Plan Policy,
herein incorporated by this reference. Licensee shall follow the guidelines contained in
the latest editions of the Manual on Uniform Traffic Control Devices (“MUTCD”), herein
incorporated by this reference, and the City of Phoenix Traffic Barricade Manual, herein
incorporated by this reference. Licensee shall additionally comply with any special
provisions herein.

At the time of the pre-construction conference, Licensee shall designate an individual who
is well qualified and experienced in construction traffic control and safety, to be
responsible for implementing, monitoring, and altering traffic control measures as
necessary to ensure that traffic is carried through the work area in an effective manner
and that motorists, pedestrians, bicyclists, and workers are protected from hazards and
accidents. At the same time, the City shall designate a representative who will be
responsible for ensuring that all traffic control and traffic control alterations are
implemented per the traffic control specifications as defined in the approved traffic control

plan.

Licensee shall have the full responsibility and liability for traffic control for a prcject.
Licensee shall submit a traffic control plan (“Traffic Control Plan") to Engineering for
approval not less than five (5) business days prior to beginning work under this
Agreement. The Traffic Control Plan shall include all motor vehicles, bicyclists, and
pedestrians. Licensee shall not begin construction until the Traffic Control Plan is
approved by the City. An approved Traffic Control Plan shall be maintained onsite during
all phases of construction; otherwise, construction will cease until the Traffic Control Plan
is approved. During construction it may be necessary to alter traffic control as approved
by Engineering. Alterations to traffic control shall be in accordance with City of El Mirage
Traffic Control Plan Policy, the latest edition of the MUTCD, and/or the latest edition of the
City of Phoenix Traffic Barricade Manual. The most restrictive manual shall apply.
Licensee shall pay any and all applicable Temporary Traffic Control fees.

In the event Licensee or Licensee’s contractors (and any subcontractors used thereunder)
damages any traffic signal equipment, traffic signal conduit, loop detectors, and/or circuits,
Licensee shall have repaired immediately at its expense by an electrical contractor that
has had traffic signal experience and who is pre-approved by the City. Any damage
repaired by the City will be billed to Licensee at cost.

Licensee shall notify all adjacent and/or affected residents and/or businesses in advance
of any street, alley, sidewalk, and driveway closures per the Traffic Control Plan Policy so
that they can make suitable arrangements to have all vehicles moved to a satisfactory
location outside the closed area.

Pedestrian access shall be maintained along the length of the project at all times per the
requirements of the ADA and as approved by Engineering.

Arizona 811. Licensee and Licensee’s contractors (and any subcontractors used thereunder)
shall comply with A.R.S. §§ 40-360.21 through 40-360.32 and participate as a member of Arizona
811 with the necessary records and persons to provide location service of Licensee’s Facilities
upon receipt of a locate call or as promptly as possible, but in no event later than two (2) working
days. A copy of the agreement or proof of membership shall be filed with the City Engineer.

2.23. Compliance with Laws. Licensee shall comply with all applicable laws as amended from time to

time including the El Mirage City Code, Arizona law, and federal law in the exercise and
performance of its rights and obligations under this Agreement. If it is necessary for Licensee to
comply with any law or regulation of the Federal Communications Commission (“ECC”) or the
ACC to engage in the business activities anticipated by this Agreement, Licensee shall comply
with such laws or regulations. Provided, however, no such law or regulation of the FCC or ACC
shall enlarge or modify any of the rights or duties granted by this Agreement without a written
modification to this Agreement.

3. NON-EXCLUSIVITY; THIRD-PARTY CONTRACTS

3.1.

3.2.

3.3.

3.4.

Non-Exclusive. This Agreement and license are non-exclusive and nothing herein shall prevent
the City from granting like or similar privileges to any other individual or entity.

City's Control of ROW. Any and all rights granted to Licensee shall be subject to the prior and
continuing right of the City to use and manage the ROW exclusively or concurrently with any
individuals and/or entities and to manage the City’s own conduit, fiber optic cables, or facilities.
The City shall have full authority to regulate, ona non-discriminatory basis, use of the Route and
the ROW and to resolve competing demands and preferences regarding use of the Route and
the ROW and to require Licensee to cooperate and participate in implementing such resolutions.
Without limitation, the City may take any or all of the following into account in regulating use of
the Route and the ROW:

3.2.1, All timing, public, operational, financial, and other factors affecting existing and future
proposals, needs, and plans for Competing Activities, as defined in Section 3.6;

3.2.2. All other factors the city may consider relevant, whether or not mentioned in this
Agreement; and/or

3.2.3. Differing regulatory regimes and/or laws applicable to claimed rights, public benefits,
community needs, and all other factors relating to Competing Activities, as defined in
Section 3.6.

Accommodate City’s Activities. Nothing in this Agreement shall be construed to prevent the City
from abandoning, altering, improving, repairing, or maintaining its facilities and/or the ROW, and
for that purpose to require Licensee, at no expense to the City, to remove, relocate, or abandon
in place Licensee's Facilities in order to accommodate the activities of the City. The City shall
not be liable for lost revenues sustained by Licensee, however caused, because of damage,
modification, alteration, or destruction of Licensee’s Facilities in the ROW, when such costs or
lost revenues result from the construction, operation, and/or maintenance of City facilities and/or
the ROW, provided that the activities resulting in such costs or lost revenues are conducted in
accordance with applicable laws and regulations.

City’s Authority. There is hereby reserved to the City every right, authority and power required
pursuant to this Agreement to be herein reserved or provided by any lawful ordinance or law,
and Licensee by its execution of this Agreement agrees to be bound thereby and to comply with
any lawful action or lawful requirements of the City in its exercise of such rights, authority or
power, heretofore or hereinafter enacted or established. Neither the granting of any agreement
or license nor any provision hereof shall constitute a waiver or bar to the exercise of any lawful
governmental right, authority or power of the City.

3.5.

3.6.

3.7.

3.8.

3.9.

Interference with Communications Operations. Licensee shall not install, operate, or allow the
use of any equipment, methodology, or technology that may or would interfere with the optimum
effective use or operation of the City's existing or future fire, emergency, or other communications
equipment, methodology, or technology. Licensee shall be responsible to ensure compliance
with this requirement by all persons using the Route through or under Licensee. 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 fully and permanently cease such interference or alter the Route

Competing Activities. Licensee accepts the risk that there may exist, now or in the future, all
manner of work and improvements upon the ROW (“Competing Activities”). Competing Activities
include construction, erection, installation, use, operation, repair, replacement, removal,
relocation, raising, lowering, widening, or realigning, whether above, upon, or below the surface
of the ROW and whether occasioned by the existing or proposed uses of the ROW or existing or
proposed uses of adjoining or nearby land, (i) all manner of streets, sidewalks, alleys, trails,
ways, and traffic control devices of every description, (ii) all manner of other transportation
facilities and their appurtenances, (iii) all manners of pipes, wires, cables, conduits, sewers,
storm drains, pumps, valves, switches, conductors, connectors, poles, supports, access points
and guys of every description, (iv) all manner of other utility facilities and their appurtenances,
(v) all manner of canals, drains, bridges, underpasses, culverts and other encroachments of
every description and all manner of other facilities and their appurtenances, and (vi) all other
uses of the ROW that the City may permit from time to time.

Subordinate Rights. Any right or privilege claimed pursuant to this Agreement by Licensee for
any use of the ROW shall be subordinate to: (i) any prior or subsequent lawful occupancy or use
thereof by the City or any other governmental entity; (ii) any prior lawful occupancy or use thereof
by any other individual or entity; and (iii) any prior easements therein, provided however, that
nothing herein shall extinguish or otherwise interfere with the property rights established
independent of this Agreement. Licensee shall not obstruct, impede, disrupt, or interfere with or
prevent any Competing Activities or any person or entity that has prior or subsequent rights to
use the Route and/or ROW.

Third-Party Contracts. Licensee may enter into contracts with third-parties (“ROW Users”) in the
ordinary course of Licensee's business for use of Licensee’s Facilities within the Route, subject
to this Agreement. Such contracts (“User Contracts”) are subject to all terms and conditions of
this Agreement, including the following:

3.8.1. No ROW User shall transmit data over Licensee’s Fiber Optic Network, use Licensee’s
Facilities, or use the Route for any purpose, except under a User Contract with Licensee;

3.8.2. ROW Users shall not perform any construction, maintenance, repair, or any other work in
the ROW, unless a ROW User has a separate agreement with the City to do so; and

3.8.3. Identities of ROW Users shall be disclosed to the City, upon reasonable request, but will
be deemed proprietary and confidential if consistent with Arizona public records laws.

Disruption by Others. The City and its officials, agents, employees, or contractors shall not be
liable to Licensee or its customers, the ROW Users, or other contractors for any service
disruption or for any other harm caused to them or the Route due to Competing Activities.

3.10. Compliance with Agreement. Licensee shall cause all persons and/or entities using the ROW

through or under Licensee or this Agreement to comply with all terms and conditions of this
Agreement. Licensee is responsible for any and all violations of this Agreement by persons
and/or entities using the ROW through or under Licensee or this Agreement.

4. FEES

4.1.

4.2.

4.3.

City’s Right of Fair and Reasonable Compensation. By entering into this Agreement, neither
party waives any current or future rights reserved under the law or the Telecommunications Act
of 1996, including those rights pursuant to Section 253(c) that reserve the City’s right to manage
the ROW and to require fair, non-discriminatory and reasonable compensation from Licensee for

use of the ROW.

Licensee's Payments. Licensee shall pay to the City each of the following separate and
cumulative amounts (collectively, the “Licensee Payment’):

4.2.1. An amount (the “Annual Fee Payment”) based on Licensee’s use of the Route to provide
interstate telecommunications services as such services are defined by ARS. § 9-
583(C)(2), for any leasing/licensing of fiber to third-parties, the placement or
leasing/licensing of empty conduit, the placement or leasing/licensing of any dark fiber,
and/or as otherwise described in section 4.3.

4.2.2. An amount (the “Permit Fee Payment”) based on Licensee’s permit review and other costs
as set out below.

4.2.3. An amount (the “Violation Fee Payment”) based on certain breaches by Licensee of this
Agreement as set out below.

4.2.4. An amount (the “Transaction Privilege Tax”) based on any qualifying services under the
El Mirage Tax Code.

4.2.5. All other amounts required by this Agreement.

Annual Fee Payment Amount. The amount of the Annual Fee Payment shall be eighty-nine
cents ($0.89) per linear foot of permitted or installed trench in the ROW.

4.3.1. Within ten (10) days after the Effective Date, and on each annual anniversary of the
Effective Date, Licensee will report to the City the amount of linear feet of trench permitted
or installed in the ROW or on other City-owned property. The Annual Fee Payment for the
coming year is calculated by multiplying the current annual per linear foot fee, as adjusted
by annual CPI under section 4.6 for the year of payment, by the linear footage of trench
permitted or installed in the ROW or on other City-owned property. The City must receive
the Annual Fee Payment before the City will issue any new encroachment permits for
additional facilities or equipment in the ROW or other City-owned property.

4.3.2. The Annual Fee Payment shall be adjusted annually as set forth in this Section.
Commencing on the first anniversary of the Commencement Date (being the start of Year
2), and during the Term on each anniversary thereafter, the adjusted fee payment amount
shall be the Annual Fee Payment established for the immediately preceding Year as
increased by the percentage increase, if any, in the CPI-U (as defined below) from the
Base Year 1st Half (as defined below) to the Current Year 1st Half (as defined below).

4.4,

4.5.

4.3.3.

4.3.4.

The "CPI-U" means the Consumer Price Index, All Items, for All Urban Consumer,
Phoenix Area, published by the Bureau of Labor Statistics of the United States
Department of Labor (the “Bureau”). The period from January to June immediately
preceding the then-current anniversary of the Commencement Date shall be the “Current
Year 1st Half,” and the period from January to June for the year before that shall be “Base
Year 1st Half.” (For example, if the Commencement Date were September 1, 2019 and
the increase in the Annual Fee Payment were being calculated for the Year beginning
September 1, 2020, then the increase would be the increase in the CPI-U from 1st Half
2019 to 1st Half 2020). In no event may the adjusted fee be less than the Annual Fee
Payment for the prior year. If the Bureau ceases publishing the Consumer Price Index, or
materially changes the method of its computation or other features thereof, the City shall
substitute therefore a comparable index that is reasonably acceptable to both parties and
is based upon changes in the cost of living or purchasing power of the consumer dollar
published by any governmental agency, responsible financial periodical, trade
association, or educational institution. For example, which shall be used only as an

example:

Linear Foot Fee
1st Half 2019 2020 %
Adjusted
YEAR CPI-U Fee Fee of change
2020 145.122 x 089 = o9t 28%

2019 141.214

In the event Licensee cancels or returns a permit and does not construct or install the
Licensee's Facilities approved by such a permit, the fees Licensee previously paid for the
respective permit may be applied as a credit to a future Annual Fee Payment or may be
refunded to Licensee by the City.

Notwithstanding the above, Licensor and Licensee agree that the Annual Fee Payment
shall not be greater than an amount equal to five percent (5%) of Licensee's Gross
Revenues during each computation period for the Annual Fee Payment; however, such
5% annual cap shall only apply once Licensee has paying customers in the Route which
are deemed Gross Revenues. Until Licensee has such paying customers that would be
deemed Gross Revenues under this Agreement, Licensee will be subject to the Annual
Fee Payment in full with no cap. If at any time Licensee no longer has paying customers
or otherwise does not receive any Gross Revenues subject to the 5% cap, the Annual Fee
Payment shall resume with no cap until such a time that Licensee again has applicable
paying customers. The City shall have the right, at any time, to require written
documentation to show that Licensee obtains paying customers; Licensee shall promptly
comply with providing such documentation.

Appropriate Taxes. Licensee shall pay any applicable city, county and state transaction privilege
and use taxes. Such taxes are in addition to any non-tax amounts owed by Licensee pursuant

to this Section.

Permit Fee Payment Amount. Licensee shall pay all applicable construction permit fees,

including charges for encroachment permit applications, issuance, inspection, testing, plan

4.6.

4.7.

4.8.

review, and any other fees adopted by the City and applicable to persons doing work or
encroaching in the ROW.

Adjustments. All fixed dollar amounts stated in this Agreement shall be automatically adjusted
upward annually on July 1st. The adjustment shall be made on the basis of changes in the United
States Consumer Price Index for all Urban Consumers (CPI-U), Phoenix Area, all items,
published by the United States Bureau of Labor Statistics (the "Cost of Living Index"). The
amount of each adjusted amount shall be calculated as described in Section 4.3.2. This
computation is expressed by the following formula:

Current Year ist Half

X CurrentAmount = Adjusted Fee
Base Year Ist Half

provided, that in no event shall any amount be adjusted downward from any previous period. If
the Cost of Living Index has not been published on any adjustment date, the City shall have the
right to estimate the Cost of Living Index and to make the adjustments based on such estimate,
subject to adjustment when the actual figures become known. If such Cost of Living Index shall,
for any reason whatsoever, not be published or readily identifiable at the adjustment date, an
index published by any state or federal agency or an index, formula or table accepted generally
by the real estate profession shall be used as chosen by the City in the City's reasonable
discretion. Any delayed adjustment shall be effective retroactively. For example, which shall be

used only as an example:

Fee for Failure to properly restore public ROW

1st Half 2019 2020 %
Adjusted
YEAR CPI-U Fee Fee of change
2020 145.122 y g0000 = 61660 28%

2019 141.214

Licensee Payments Cumulative. All items of Licensee Payments shall be cumulative and
separate from each other.

Licensee Payment Schedule. Except as specifically provided elsewhere for Violation Fee
Payment, Licensee shall pay all Licensee Payments on the following schedule:

4.8.1. Licensee shall pay Annual Fee Payment by the anniversary date of each year of this
Agreement.

4.8.2. Licensee shall pay Permit Fee Payment at the times and in the amounts specified by the
City’s normal processes for permitting, including construction permits, encroachments,
issuances, inspections, testing, plan review, and other processes applicable to persons
doing work or encroaching in the ROW.

4.8.3. Allother Fee Payment shall be payable quarterly in arrears on the last calendar 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.

4.9.

4.10.

4.11.

Fee Payment Amount Report. Each installment of Licensee Payment, other than Permit Fee
Payment, shall include a report showing the manner in which each component of the Licensee
Payment was calculated. The report shall summarize the transactions giving rise to the License

Payment.

Damage Fees. Licensee shall pay all reasonable costs associated with any damage caused by
Licensee or its subcontractors, employees, or agents to the ROW or other public property.

Violation Fee Payment. During the Term of this Agreement, the City may suffer certain money
damages in the form of administrative cost and inconvenience, disharmony among Competing
Activities, and general inconvenience in ROW use by the City, Competing Activities, and the
public as a result of an uncured violation of this Agreement by Licensee (“Inconvenience Costs”).
Assessing the actual damages for these Inconvenience Costs may be impracticable to
determine. In lieu of paying the actual damages for these Inconvenience Costs, the City may
assess Violation Fee Payments against Licensee to cover the damages that caused the
Inconvenience Costs and is as described in Section 4.11.1. The Violation Fee Payments will be
assessed with the processes described in Section 4.11.2. The Violation Fee Payments are only
intended to remedy the Inconvenience Costs that the City suffers. Licensee's payment of
Violation Fee Payment does not in any way excuse any breach by Licensee of this Agreement,
limit in any way the City's obtaining any other legal or equitable remedy provided by this
Agreement or otherwise for such breach or relieve or detract from Licensee's indemnity and
insurance obligations under this Agreement, which shall apply according to their terms. If the
City determines to exercise any other legal or equitable remedy provided by this Agreement or
otherwise, City may not, in addition to such remedy, assess a Violation Fee Payment. Except
for any failure to properly restore the public ROW under 4.11.1.1, or other violation of this
Agreement by Licensee that in the City’s sole determination may impact the health, safety, or
welfare of the public, City shall use reasonable efforts to notify Licensee of any violation of this
Agreement and permit Licensee an opportunity to cure such violation in accordance with the
applicable cure period in this Agreement or as otherwise agreed by City.

4.11.1. The Violation Fee Payments per calendar day or part thereof are as follows:

4.11.1.1. The amount of Six Hundred Dollars ($600.00) per calendar day for Licensee's
failure to properly restore the public ROW or to correct related violations of
specifications, code, ordinance or standards within ten (10) calendar days after the
City's notice to correct such defects except where such curative efforts by Licensee
are precluded by a force majeure event. Such Violation Fee Payment shall be in
addition to any cost the Licensor may incur to restore the ROW or correct the

violation.

4.11.1.2. Following a ten (10) day notice to cure, the amount of Two Hundred Fifty Dollars
($250.00) per calendar day for each failure to make Licensee's books and records
available as required by this Agreement.

4.11.1.3. The amount of Five Thousand Dollars ($5,000.00) for any unauthorized partial or
total assignment of this Agreement.

4.11.1.4. The amount of Five Hundred Dollars ($500.00) per instance of any other action or
non-action by the Licensee in violation of this Agreement that causes
Inconvenience Costs and that is not cured after three (3) calendar days’ notice.

4.11.2. Process for assess a Violation Fee Payment:

4.11.2.1. If the City determines that Licensee is liable for Violation Fee Payment, then the
City shall issue to Licensee a notice of the City's assessing a Violation Fee
Payment. The notice shall set forth the nature of the violation and the amount of
the assessment.

4.11.2.2. Licensee shall have ten (10) calendar days after receipt of the notice to pay the
Violation Fee Payment or provide the City written objection contesting the assertion
of noncompliance.

4.11.2.3. If Licensee fails to respond to the notice, Licensee shall pay the Violation Fee
Payment.

4.11.3. Except as may be expressly stated in this Section 4, no cure period applies to the accrual
of Violation Fee Payment.

4.11.4, Licensee may elect to draw upon the letter of credit to collect the Violation Fee Payment

4.12. Deadlines for Annual Fees. For any annual payment(s) owed, Licensee shall make such
payment(s) to the City within ten (10) business days of the Effective Date and by the anniversary
of the Effective Date for the duration of the Term.

4.13. Late Fees. Licensee agrees that if it fails to pay any amounts owed to the City by the time
prescribed for payment, Licensee shall pay interest on the amounts owed at the rate of one

percent (1%) per month.

4.14. Requirement of Insurance, Performance Bond, and Letter of Credit. Prior to any work being
performed in the ROW, Licensee shall secure all performance bond requirements in this
Agreement and provide the City with all insurance requirements prior to the commencement of
any work, including all certificates of insurance required by this Agreement.

4.15. Performance Bond.

4.15.1. Prior to receiving any permit to construct, install, maintain or perform any work on public
property, Licensee shall cause to be filed and maintain until completion of the
construction, a faithful performance bond in favor of City in the sum of One Hundred
Thousand Dollars ($100,000.00) or 125% of the amount of the construction costs
(whichever is greater) to guarantee that Licensee shall observe, fulfill and perform each
and every term of this Agreement. In case of any breach of any condition of this
Agreement, any amount of the sum of the bond, up to the whole thereof, may be forfeited
to compensate the City for any damages it may suffer by reason of such breach. Said
bond shall be acknowledged by Licensee, as principal, and shall be issued by a surety
with an AM Best rating of A-VII or better for the last four quarters. The City and Licensee
agree that the process and procedure for drawing upon, curing, and replenishing the
performance bond shall be the same as set forth below for the security fund.

4.15.2. If Licensee has completed the above construction and requests that the bond be released,
the City must inspect and approve the construction prior to such release. However, a

performance bond will be required for each subsequent or additional construction project
and/or work on public property.

4.16. Letter of Credit.

4.17.

4.16.1.

4.16.2.

4.16.3,

4.16.4.

4.16.5,

Prior to applying for any permit to construct, install, maintain or perform any work in the
ROW which requires a construction permit from the City pursuant to applicable El Mirage
City Codes, Licensee shall provide either a cash deposit into a suitable interest-bearing
account, established by the City, or a domestic irrevocable standby letter of credit, in the
sum of not less than Fifty Thousand Dollars ($50,000.00) as security for the faithful
performance by it of all the provisions of this Agreement, and compliance with all orders,
permits and directions of any agency of the City having jurisdiction over its acts or defaults
under the Agreement and license issued pursuant thereto, and the payment by the
Licensee of any claims, liens and taxes due the City which arise by reason of the
construction, operation or maintenance of the Fiber Optic Network (the “security fund”).
The City shall have the full power of withdrawal of funds from the account or letter of credit
except that all interest accrued shall be payable to the Licensee on demand. No
withdrawals shall be made from the security fund without the prior written approval of the
City Engineer and ten (10) days' prior written notice of intent to withdraw to Licensee.

Within twenty (20) days after notice to Licensee that any amount has been withdrawn by
the City from the security fund, Licensee shall deposit a sum of money or present to the
City an additional irrevocable letter of credit sufficient to restore such security fund account
to the original amount.

If Licensee: (i) fails, within ten (10) business days of a notice of intent to draw on the
security fund, to either dispute the notice in writing or to pay the City any taxes or fees
due and unpaid or any damages, costs or expenses which City shall be compelled to pay
by reason of any act or default of Licensee in connection with this Agreement; or (ii) fails,
within thirty (30) days of such notice of failure from the City to dispute the notice in writing,
or comply with any provision of this Agreement which the City reasonably determines can
be remedied by an expenditure of funds from the security fund; the City may immediately
withdraw the amount thereof from the security fund. Upon such withdrawal, the City shall
notify Licensee of the amounts and date thereof.

The rights reserved to the City, with respect to the security fund, are in addition to all other
rights of the City whether reserved by this Agreement or authorized by law, and no action,
proceeding or exercise of a right with respect to such security fund shall affect any other
right City may have.

Licensee shall be entitled to the return of such security fund, or portion thereof, as remains
on deposit at the expiration of the term of the Agreement or upon termination of the
Agreement at an earlier date, provided that there is then no outstanding default on the
part of the Licensee. Any funds that the City erroneously or wrongfully withdraws shall be
returned to Licensee without interest within thirty (30) business days of such a
determination.

In Kind. This Agreement does not currently require any in-kind payment to City by Licensee.
However, if Licensee has not paid any fees required under Section 4, the Parties may agree in
writing to new in-kind payments to offset to any fees not paid by Licensee to the extent permitted

by law. This subsection imposes no obligation on the City to agree to offset any fees in this
Agreement or in any future agreement.

. Audits. The City shall have the right to audit or otherwise inspect any and all customer contracts,

subleases, sublicenses, or otherwise subcontracts, including without limitation, all ROW User
agreements with Licensee, to the extent reasonably necessary to confirm compliance with this
Agreement, including proper payment of all fees under this Section 4. The City may conduct such
audits as often as reasonably necessary to justify the necessary payments, but no less than one
(1) time per annual term, beginning on the Effective Date.

5. RELOCATION

5.1.

5.2.

5.3.

5.4.

5.5,

Licensee shall relocate, at no expense to the City, any of Licensee's Facilities, or other
encroachment installed or maintained in, on or under any public place or ROW, as may be
necessary to facilitate any public purpose or any City or other governmental project whenever
directed to do so by City. Such relocations shall be accomplished in accordance with the
directions from City and shall be pursuant to the same terms and conditions as the initial
installation allowed pursuant to this Agreement and any applicable issued permits. Within ninety
(90) days after service of notice by the City, Licensee shall remove the designated portions of
Licensee's Facilities, or in the event that, by the nature of the removal such removal cannot be
performed within the ninety-day period, Licensee shall take reasonable steps to remove
Licensee's Facilities and diligently prosecute the removal to completion, and, if requested,
restore the sidewalks and other ROW to a condition comparable to the condition before the
construction of the public improvement at no cost and expense to the City.

Licensee agrees to obtain a permit as required by this Agreement prior to removing, abandoning,
relocating, or reconstructing any portion of Licensee’s Facilities on public property or ROW.
Notwithstanding the foregoing, the City understands and acknowledges there may be instances
when Licensee is required to make repairs that are of an emergency nature or in connection with
an unscheduled disruption of Licensee’s Facilities. Licensee will maintain any annual permits
required by the City for such maintenance and emergency repairs. Licensee will notify the City
before the repairs and will apply for and obtain the necessary permits in a reasonable time after

notification.

If the City performs any part of the necessary relocation or removal work that has not been done
within the time required by the City, it shall be entitled to seek payment for such actual relocation
costs by drawing upon the letter of credit or security fund required by this Agreement pursuant
to Section 4.16 or the performance bond pursuant to Section 4.15.

The City has no obligation to relocate or otherwise move Licensee's Facilities, any City-owned
facilities, Conduit, or Fiber Optic Cables, ROW Users’ Facilities, or any other Facilities of persons
or entities lawfully using the ROW. The City shall require that third parties be responsible for
relocation work of Licensee’s prior existing Licensee Facilities in the ROW not necessitated by

the City.

Any relocation work performed by Licensee or its contractors shall be subject to and comply with
this Agreement.

6. DAMAGE TO PUBLIC PROPERTY

6.1.

6.2.

6.3.

6.4.

In addition to any indemnity obligation under this Agreement, whenever the installation, use,
maintenance, removal, or relocation of any of Licensee's Facilities is required or permitted
hereunder, and such installation, removal, or relocation damages or disturbs the surface or
subsurface of any ROW or public property or any public improvement that may be located
thereon, therein, or thereunder, however such damage or disturbance was caused, Licensee, at
its sole cost and expense, shall promptly restore the surface or subsurface of the ROW or public
property and/or repair or replace the surface, subsurface and/or public improvement therein, or
thereunder, in as good a condition as before in accordance with applicable laws, normal wear
and tear excepted, reasonably satisfactory to the City Engineer. If Licensee does not repair the
damage or disturbance as just described, then City shall have the option, upon ten (10) business
days’ prior written notice to Licensee, to perform or cause to be performed such reasonable and
necessary work on behalf of Licensee and to charge Licensee for the actual costs incurred by
the City at City’s standard rates.

Notwithstanding the notice provision above, in the event of a public emergency, the City shall
have the right to immediately perform, without prior written notice to Licensee, such reasonable
and necessary work on behalf of Licensee to repair and return public property to a safe and
satisfactory condition in accordance with applicable laws, normal wear and tear excepted,
reasonably satisfactory to the City Engineer. The City shall provide written notice to Licensee of
the repairs as soon as practicable after the work has begun. Licensee agrees that any damage
to City fiber, conduit, or other property must be replaced or repaired and restored with new or
like-new materials. If the City performs any part of the necessary repairs, relocation and/or
removal work, it shall be entitled to seek payment for such repairs and/or relocation and/or
removal costs from Licensee and may draw upon the performance bond and/or letter or credit or
security fund required by this Agreement in full or partial satisfaction of such costs, if payment is
not made by Licensee as required by Section 6.3 below.

Upon the receipt of a demand for payment by the City, Licensee shall, within thirty (30) days,
reimburse the City for such costs.

For any pavement cuts by Licensee, Licensee agrees to restore the pavement.

7. PENALTIES FOR VIOLATION OF TERMS

7.1.

7.2.

The City’s Remedies. The City may pursue any remedy at law, including injunctive relief, civil
trespass, and withholding other City permits and authorizations until Licensee complies with the
terms of this Agreement or any applicable law. Such City remedies are cumulative and may be
pursued in the alternative. The City’s remedies set forth in this Agreement are not exclusive.
Except as otherwise set forth in this Agreement, election of one remedy by the City, including
assessment of Violation Fee Payments, does not preclude the use of other remedies.

Licensee's Remedies. Licensee sole remedy for any breach or threatened breach of this
Agreement by the City shall be an action for equitable, injunctive or declarative relief or voluntary
termination of this Agreement pursuant to Section 8.6 below.

8. TERMINATION

8.1.

The City Manager has the authority to terminate, subject to Licensee's right to notice and cure
where provided, this Agreement.

8.2.

8.3.

8.4.

Immediate Termination. The City may terminate this Agreement upon thirty (30) days’ notice
and Licensee’s failure to remedy any of the following to the reasonable satisfaction of the City:

8.2.1. Licensee ceases doing business in the City:

8.2.2. 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 regularly paying its debts as they come due (collectively a "Licensee

Insolvency");

8.2.3. Licensee fails to keep the Certificate in effect following any right of appeal or due process
of the ACC;

8.2.4. Licensee fails to maintain any insurance required by this Agreement:

Cure of Defect; Termination. The following instances are defects in performance by Licensee
shall be deemed instances of “Default” by Licensee:

8.3.1. Licensee fails to comply with the material terms and conditions of this Agreement or
applicable law, including failing to maintain any insurance, security fund, or performance
bond;

8.3.2. Licensee fails to make payments to the City in the amounts and at the times specified in
this Agreement;

8.3.3. Licensee fails to comply with the El Mirage TCP Policy and any other construction, design,
or other related requirement under this Agreement;

8.3.4. Licensee fails to construct in the designated, approved path of the Route;

8.3.5. Licensee fails to provide the current, accurate as-built plans and maps showing the Route,
including all of Licensee’s Facilities in the Route; and

8.3.6. Licensee fails to obtain or maintain the required licenses, permits, or other approvals
pertaining to the ROW or timely pay any taxes pertaining to the ROW.

Curing Default. The City may terminate this Agreement if Licensee does not cure the defect in
performance, as listed as Section 8.3 as instances of Default, within sixty (60) days (or such
longer period of time as the City determines is reasonably necessary to cure) following the City’s
written notice of Licensee’s defective performance. Upon the occurrence of Default or at any time

thereafter, the City may do any of the following:

8.4.1. Pay or perform for Licensee's account, in Licensee’s name, and at Licensee’s expense,
any and all payments or performances required to be paid or performed by Licensee;

8.4.2. Require an additional security deposit adequate in the City’s sole discretion to protect the
City and the ROW in light of Licensee’s history of performance under this Agreement;

8.4.3. Abate at Licensee's expense any violation of this Agreement; and/or