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FIBER ACCESS AGREEMENT
This Fiber Access Agreement (“Agreement”) is made as of the ____ day of ________ 2026
(the “Commencement Date”) by and between the City of Mesa, an Arizona municipal
corporation (“Mesa”), and the City of Apache Junction, an Arizona municipal corporation
(“Apache Junction”). Mesa and Apache Junction may be referred to herein individually as a
“Party” or collectively as “the Parties”.
RECITALS
WHEREAS Apache Junction has requested access to two (2) strands of single-mode fiber optic
cable from Mesa’s existing fiber optic infrastructure (the “Mesa Network”) for the purpose of
establishing connectivity to the Maricopa Association of Governments-supported Regional
Community Network; and
WHEREAS Mesa has available capacity within the Mesa Network in locations that are both
accessible and suitable for Apache Junction’s needs; and
WHEREAS Mesa desires to assist Apache Junction in the interest of promoting public safety
within the region; and
WHEREAS given the nexus between Apache Junction’s proposed use of the Mesa Network
and the interests of public safety, Mesa is willing to allow access to the needed strands free of
charge.
AGREEMENT
NOW THEREFORE, in consideration of the promises, the mutual covenants, terms and
conditions herein contained, Mesa and Apache Junction do hereby mutually covenant and
agree as follows:
1.
Definitions: For the purpose of this Agreement, the following terms when used
herein shall have the following meaning:
1.1.
“Loaned Fiber” means unlit optical fiber cable strands for which the user plans
to attach equipment to transmit data.
1.2.
“Apache Junction Facilities” means all facilities, including but not limited to
fiber optic cables, equipment, and all associated hardware, owned and/or
utilized by Apache Junction, that occupy and use the Mesa Network.
1.3.
“Mesa Network” means the optical fiber strands, innerduct, conduit, building
entrance facilities, associated appurtenances, and capacity owned by the Mesa
and located throughout the rights-of-way of Mesa.
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2.
Scope of Use:
2.1.
Loaned Fibers. Subject to the terms and conditions of this Agreement, Mesa
hereby grants to Apache Junction a non-exclusive grant to use two (2) strands
of single-mode fiber optic cable in the Mesa Network (the “Loaned Fibers”)
as depicted on Exhibit A and further identified in Exhibit B, on the condition
Apache Junction shall be in compliance with all of the covenants, terms, and
conditions of this Agreement. Apache Junction shall comply with all
applicable ordinances, statutes and regulations of local, state and federal
government agencies. At no point shall Apache Junction assume any
ownership interest in the Loaned Fibers. This grant is subject to the right of
Mesa to occupy and use the public rights-of-way, public utility easements,
private property, and any other property in and on which the Mesa Network
is located. Mesa shall designate the location of the Apache Junction
Facilities on the Mesa Network. Nothing in this Agreement shall be deemed
to grant, convey, or vest with Apache Junction an interest or estate in the
Mesa Network or any land, including but not limited to any fee, leasehold,
easement or franchise.
2.2.
Installation and Maintenance:
2.2.1.
Apache Junction’s Facilities shall be
installed and
maintained in accordance with the requirements and specifications
of MAG Standards, Mesa Amendments to MAG, Building
Industry Consulting Service International (“BICSI”), the then
current editions of the National Electrical Code (“NEC”) and the
National Electrical Safety Code (“NESC”), each of which are
incorporation by reference in this Agreement, and the rules and
regulations of the Occupational Safety and Health Act of 1970
(“OSHA”), and in compliance with any lawful rules or orders now
in effect or that may hereafter be adopted by Mesa or other
authority having jurisdiction.
2.2.2.
Apache Junction hereby acknowledges and agrees that it shall
be solely responsible for all costs associated with the procurement
and installation of all materials, all associated labor, and any
related services necessary to establish and maintain the connection
of the Regional Community Network from Mesa’s Transportation
Management Center (“TMC”) to the Apache Junction facility for
the life of this Agreement. This obligation includes, but is not
limited to, the design, construction, implementation, testing,
maintenance, and any ancillary activities required to facilitate full
integration with the Mesa TMC infrastructure. Apache Junction
shall ensure compliance with all applicable standards, such as
M66, Division 27, City of Mesa APL and Telecommunications
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industry standards.
2.2.3.
Apache Junction shall be responsible for ensuring the direct
physical path for the connection and the fusion splicing to be
performed at Ironwood Drive and Elliot Road. Apache Junction
is responsible for any professional services required to perform
this work. Any necessary outside physical plant connectivity must
be coordinated with Mesa. Mesa staff is responsible for all other
fiber connections. All such work shall be completed by August
25, 2026.
2.2.4.
Mesa shall be responsible for maintenance of the Mesa
Network in accordance with applicable laws, including but not
limited to, A.R.S. §§ 40-360.21 through 40-360.32, and will continue
to blue stake its own facilities in compliance with state law.
2.3.
Additional Fibers. Upon request, and if capacity is available, Mesa may loan
additional fibers to Apache Junction during the remainder of the Term of
this Agreement so long as Apache Junction is not in material breach of this
Agreement. All requests by Apache Junction for additional fibers shall be
made in writing to Mesa’s Right of Way Manager and its Director of Innovation
and Technology.
2.4.
Removal at End of Term. Upon expiration or termination of this Agreement,
Mesa shall determine whether Apache Junction’s Facilities shall be removed
or remain in place. If Mesa determines that the Apache Junction Facilities
shall be removed, then Mesa shall notify Apache Junction, and Apache
Junction shall, within thirty (30) calendar days of such notification, remove
its facilities under the direction of Mesa.
2.5.
Agreements with Third Parties. Nothing in this Agreement shall act as a
limitation, restriction, or prohibition on Mesa from entering into agreements
with other parties concerning the use, maintenance, or operation of the Mesa
Network. Apache Junction acknowledges that such an agreement with a
third party may require the rearrangement of the Apache Junction Facilities.
Apache Junction agrees that, in such event, Apache Junction will cooperate
in good faith with such rearrangement work; provided, however, that Mesa
shall give Apache Junction thirty (30) calendar days written notification of
such intent to rearrange any impacted Apache Junction Facilities.
3.
Term and Termination:
3.1.
This Agreement shall commence on the Commencement Date and shall
continue for an initial term of three (3) years. The initial term may be
extended automatically for not more than two additional three (3) year
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terms.
3.2.
Either Party may terminate this Agreement without cause, provided that the
Party gives the other Party ninety (90) calendar days’ prior written notice of
termination. Either Party may terminate this Agreement for cause upon
thirty (30) calendar days’ prior written notice if the other Party fails to cure
an Event of Default, as described in Section 9, below.
4.
Fees:
4.1.
In the interest of public safety and in light of the benefit that the Regional
Community Network may provide to Mesa’s own citizens, Mesa has agreed
to allow Apache Junction to use the Mesa Network under the terms of this
Agreement free of charge.
5.
Relocation:
5.1.
Mesa may, at its sole cost and expense, and upon reasonable notice to
Apache Junction, relocate, repair, or remove portions of the Mesa Network,
including the Loaned Fiber. In all cases, Apache Junction shall bear the costs
incurred in any rearrangement, relocation, modification, or alteration of any
Apache Junction Facility.
5.2.
In the event of an emergency (as determined by Mesa in its sole and absolute
discretion), Mesa may relocate, modify, or alter the Loaned Fibers and/or
Mesa Network without prior notice to Apache Junction. In such event, as
soon as reasonably practicable thereafter and not later than seventy-two (72)
hours after having taken such action, Mesa will advise Apache Junction in
writing of the emergency work performed or the action taken with respect
to any emergency modification or alteration of the Loaned Fibers and/or
Mesa Network.
6.
Limitations of Use:
6.1.
Apache Junction shall use the Mesa Network only for the purpose of the
transmission of data. If Apache Junction uses the Loaned Fibers and/or any
other portion of its facilities to transmit or facilitate the transmission of
commercial video services, then Apache Junction shall apply for a cable
license and pay all fees associated with such services required under
applicable law.
6.2.
Apache Junction shall not unreasonably interfere with any other party’s
permitted use or access to the Mesa Network. Apache Junction shall, at its
own expense, maintain any equipment it utilizes to access the Mesa Network
pursuant to this Agreement in good repair and in a manner that prevents such
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conflict or interference.
6.3.
Apache Junction is prohibited from accessing the telecommunications
infrastructure, the transmission pathway, or any Mesa electric or other utility
facility. Only personnel authorized by Mesa will be allowed to connect the
Apache Junction Facilities to, or disconnect the Apache Junction Facilities
from, the Mesa Network.
7.
Indemnity:
7.1.
To the fullest extent permitted by law , Apache Junction shall indemnify,
defend and hold harmless Mesa, its City Council, officers, employees, and
agents from and against any and all demands, claims, injuries, losses, or
liabilities of any nature, including death or injury to any person, property
damage, or any other loss and including without limitation all damages,
penalties, fines and judgments, associated investigation and administrative
expenses and defense costs, including, but not limited to reasonable
attorney’s fees, courts costs and costs of alternative dispute resolution,
arising in whole or in part out of, or resulting in any way from or in
connection with the performance of this Agreement. Apache Junction’s
obligations under this Section apply regardless of whether liability is caused
or contributed to by any negligent (passive or active) act or omission Mesa,
except that Apache Junction shall not be obligated to indemnify for liability
arising from the sole negligence or willful misconduct of Mesa. The
provisions of this Section survive the expiration or termination of this
Agreement.
8.
Damage or Destruction:
8.1.
In the event of a total or partial destruction of substantially all of the Apache
Junction Facilities, or any part thereof, where such casualty occurs as a result
of an event of Force Majeure, whether or not such casualty is covered under
a policy of insurance carried by Apache Junction, this Agreement may be
terminated at the option of Apache Junction, or Apache Junction may, at its
sole cost and expense, commence and complete as soon as practicable the
repair or restoration of the damaged Apache Junction Facilities, or any part
thereof, to substantially the same condition immediately before the event of
destruction.
8.2.
In the event of a total or partial destruction of the Mesa Network, or any part
thereof, including the Loaned Fibers, where such casualty occurs as a result
of an event of Force Majeure, whether or not such casualty is self-insured
or covered under a policy of insurance carried by Mesa, this Agreement may
be terminated at the option of Mesa, or Mesa may, at its sole cost and
expense, commence and complete as soon as practicable the repair or
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restoration of the damaged Mesa Network, or any part thereof, including the
Loaned Fibers, to substantially their same condition immediately before the
event of destruction. If Mesa elects to terminate this Agreement, Mesa shall
be relieved of any obligation to Apache Junction, and Apache Junction shall
be released from its obligations under this Agreement.
9.
Default:
9.1.
Events of Default: The occurrence of any of the following shall constitute
an Event of Default of this Agreement:
(i)
Failure to perform, observe or comply with any covenant, term or
condition of the Agreement that either Party is required to observe or
perform.
(ii)
Assignment or transfer of Apache Junction’s interest in the
Agreement, voluntarily or by operation of law.
(iii)
Assignment or transfer of Apache Junction’s assets for the benefit of
Apache Junction’s creditors.
(iv)
Filing of a petition in bankruptcy or a petition for reorganization or
other arrangement relating to the bankruptcy, insolvency, or
receivership of Apache Junction and/or its assets, unless the same is
dismissed within one hundred eighty (180) calendar days of the filing
thereof.
(v)
Any representation or warranty of either Party that shall prove to
have been incorrect, false, or misleading in any material respect when
made.
9.2.
Remedies for Default: The non-defaulting Party may terminate the
Agreement upon the occurrence of an Event of Default caused by the
defaulting Party, if the defaulting Party fails to cure the Event of Default
within the period of time specified below. In an Event of Default of a
financial nature, the defaulting Party shall cure the default within fourteen
(14) calendar days of receipt of the notice of default. In the Event of Default
of a non-financial nature, the defaulting Party shall cure the default within
thirty (30) calendar days of receipt of the notice of default. A failure to cure
an Event of Default within the specified period of time shall constitute a
material breach of the Agreement.
9.3.
Obligation to Perform: The termination of the Agreement due to an uncured
Event of Default shall not relieve the defaulting Party of its obligation to
perform its obligations, including the payment of the fees, prior to the
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effective date of termination.
10.
Damages:
10.1. Notwithstanding any other provision of this Agreement, neither Mesa nor
Apache Junction shall be liable to the other for any consequential,
incidental, indirect, liquidated, or special damages, or for lost revenues or
lost profits to any person arising out of this Agreement or the performance
or nonperformance of any provision of this Agreement, even if such Party
has been informed of the possibility of such damages.
11.
Representations and Warranties:
11.1. Mesa makes no representations, warranties, covenants, or assurances:
(i)
with respect to the design, construction, durability or suitability of the
Mesa Network, or any part thereof, whether express or implied;
(ii)
with respect to the nature or accuracy of the description, location or
measurement of the Mesa Network or any part thereof; or
(iii)
that Mesa will increase or decrease the number of dark fibers constituting
any part of the Mesa Network at any time during the term of this
Agreement.
11.2. Apache Junction represents and warrants that:
(i)
it is in compliance with all applicable laws, rules, regulations and
tariffs relating to its activities covered by this Agreement;
(ii)
it has the requisite power and authority to carry on the business it now
conducts; and
(iii)
the execution, delivery and performance of its obligations under the
Agreement have been duly authorized.
12.
Assignment:
12.1. Restrictions on Assignment: Except as otherwise provided in this Agreement,
Apache Junction may not sell, assign, sublease or otherwise transfer in whole
or in part (whether voluntarily or by action of law), directly, indirectly, or
contingently this Agreement or any interest in this Agreement to any third
party.
13.
Waiver:
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13.1. The consent of a Party to any act or omission of the other Party shall not be
deemed to imply consent to or constitute a waiver of a default or breach of
any term or condition of the Agreement or a continuing waiver of a
subsequent default or breach of the same or different term or condition, nor
shall any custom or practice which may arise between the Parties in the
administration of the Agreement be construed to waive or lessen the right of
a Party to insist upon full performance of the other Party in strict compliance
with the covenants, terms and conditions of the Agreement. No payment,
partial payment, acceptance or partial acceptance by Mesa will operate as a
waiver on the part of Mesa of any of its rights under the Agreement.
14.
Notices:
14.1. All notices hereunder must be in writing and shall be deemed validly given
if delivered personally or if sent by certified mail, return receipt requested,
by commercial overnight delivery service, or by electronic transmission,
addressed as follows (or any other address that the Party to be notified may
have designated to the sender by like notice):
If to COM:
Right of Way Manager
20 N. Center St.
Mesa, AZ 85211
Telephone: 480-644-2503
If to Apache Junction: ______________________
City of Apache Junction
Doug Wirthgen
300 East Superstition Boulevard
Apache Junction, AZ 85119
15.
Binding Effect:
15.1. This Agreement shall extend to and bind the heirs, personal representatives,
successors and assigns of the Parties.
16.
Complete Agreement; Amendments:
16.1. This Agreement constitutes the entire agreement and understanding of the
Parties and supersedes all offers, negotiations, and other agreements of any
kind. There are no representations or understandings of any kind not set
forth in this Agreement. Any modification of or amendment to this
Agreement must be in writing and executed by both Parties. Each Party and
its counsel have reviewed the Agreement. Accordingly, the normal rules of
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construction to the effect that any ambiguity will be resolved against the
drafting Party will not be employed in the construction and interpretation of
the Agreement.
17.
No Third Party Beneficiaries:
17.1. This Agreement is for the sole benefit of the Parties and their respective
permitted successors and assigns and shall not be construed as granting
rights to any person or entity other than the Parties or imposing on either
Party obligations to any person or entity other than a Party.
18.
Governing Law; Venue:
18.1. This Agreement shall be construed in accordance with the laws of the State
of Arizona. Trial of any action regarding any dispute regarding this
Agreement and/or any Proposal will be vested in the state courts of
Maricopa County, Arizona.
19.
City Charter and Code:
19.1. This Agreement is subject to the fiscal provisions of the Charter of the City
of Mesa. The Agreement will terminate without any penalty: (i) at the end
of any fiscal year in the event that funds are not appropriated for the
following fiscal year; or (ii) at any time within a fiscal year in the event that
funds are only appropriated for a portion of the fiscal years and funds for
Mesa obligations are no longer made available. This provision will take
precedence in the event of a conflict with any other term or condition of the
Agreement
20.
Conflict of Interest Statute:
20.1. This Agreement is subject to, and may be terminated by, the Parties in
accordance with, the provisions of A.R.S. § 38-511.
21.
Severability:
21.1. If any term of this Agreement is found to be void or invalid, such invalidity
shall not affect the remaining terms of this Agreement, which shall continue
in full force and effect.
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IN WITNESS WHEREOF, Consultant and City have executed this Agreement as of the date first
set forth above.
CITY OF APACHE JUNCTION, an Arizona municipal corporation
By:
_______________________________________
Its:
_______________________________________
Date: _______________________________________
APPROVED AS TO FORM:
___________________________
R. Joel Stern
City Attorney
CITY OF MESA, an Arizona municipal corporation
By:
__________________________________
City Engineer
Date: __________________________________
APPROVED AS TO FORM:
___________________________
Jim Smith
City Attorney
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Exhibit “A”
Exhibit “B”
Proposed Route and Design for the
Loaned Fibers and Apache Junction Facilities
Location(s) Where Services are Performed.
The proposed two (2) fiber strands, route is approximately 23 miles. It will originate at the
intersection of Ironwood Drive and Elliot Road (northeast quadrant), extending through
Signal Butte Water Treatment Plant and terminating at East Mesa Service Yard (East
Tower) utilizing City of Mesa Department of Innovation and Technology fiber. From this
termination point, the fiber path will cross connect to City of Mesa Intelligent
Transportation Systems (ITS) fiber and extend the two strands at the East Mesa Service
Yard (Transportation Building Signal Shop), and then to the 6th Street Service Yard
(Transportation Building) ending at the Regional Community Network (RCN) switch
located in the Computer Room of the Transportation Management Center (TMC).
A) Ironwood Dr and Elliot Rd – Apache Junction is responsible for fusion splice of two (2)
strands;
B) Signal Butte Water Treatment Plant – City DoIT to install one (1) duplex fiber jumper;
C) East Mesa Service Yard (East Tower) - City DoIT to install one (1) duplex fiber jumper
D) East Mesa Service Yard (Signal Shop) – City ITS Group (Transportation Department)
to install one (1) duplex fiber jumper;
E) 6th Street Service Yard (Transportation Building) - City ITS Group (Transportation
Department) to install one (1) duplex fiber jumper; and
F) Transportation Management Center (TMC) - City ITS Group (Transportation
Department) to install one (1) duplex fiber jumper.