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RIGHT OF WAY OCCUPANCY LICENSE
This Right of Way Occupancy License Agreement (the “License Agreement” or
“Agreement”), is issued on _______, 2026 by the City of Mesa (hereinafter called ”Licensor“ or
”City”'), an Arizona municipal corporation, to Vero Fiber Networks, LLC, a telecommunications
company (hereinafter called "Licensee" or “Vero”).
A.
WHEREAS, Licensee has applied to the City for a License for the installation,
placement, operation and maintenance of an underground dark fiber optic network system in, on,
under, upon, along and across “Public Highways” (as that term is defined in A.R.S. § 9-581)
within the City;
B.
WHEREAS, by such authority as may be conferred by state and federal law, the
Mesa City Charter, and Mesa City Code, the City is issuing this License; and
C.
WHEREAS, pursuant to Resolution No. __________ , the City Council has duly
authorized the City Manager or his designee to execute a license with Licensee to construct,
install, operate, and maintain a Communications Network (as defined below) in, on, under, upon,
along and across certain Public Highways within the City.
D.
WHEREAS, if used in this Agreement, "Party'' means either Licensor or Licensee
and "Parties" means both Licensor and Licensee.
NOW, THEREFORE, the Licensor hereby grants to the Licensee the License (as defined
in Section 2.1) as follows:
SECTION 1. Definition of Terms. Unless otherwise defined herein, the terms, phrases, words
and their derivatives found in this License Agreement shall have the meaning defined in Title 9,
Chapter 14, Sections 1-3 of the Mesa City Code as amended from time to time. Unless the
context requires otherwise, the term “including” shall mean “including but not limited to” or
“including without limitation.”
“Cabinets” means above ground enclosures placed within the Public Highway for the
protection of active and passive equipment for the provision of service throughout the
Communications Network.
“Chambers” means underground enclosures placed within the Public Highway
facilitating access to the active and passive equipment for the provision of service throughout the
Communications Network.
“Communications Network” means all parts of Licensee’s dark fiber optic network
under and above ground in the City, including the fiber optic cable and its component parts and
appurtenances, and the other cables, wires, components, facilities, Cabinets, ducts, conduits,
connectors, Chambers, manholes, manhole covers, pedestals, splitters, attachments, and other
property, equipment, components, materials, apparatus and appurtenances to the fiber optic
network.
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“Home” means a residential single-family dwelling, or a residential single dwelling unit
located within a Multiple Dwelling Unit, located within the Use Area.
“Multiple Dwelling Unit” means an apartment building or other building containing
more than four dwelling units located within the Use Area.
“Premises” means a Home, Multiple Dwelling Unit, office or other building located
within the Use Area.
“Use Area” means the legal boundaries of the City as of the Effective Date, and any
additions or subtractions to the City legal boundaries, by annexation or other legal means.
SECTION 2. License Granted.
2.1
There is hereby granted to Licensee a revocable and non-exclusive license to
erect, construct, repair, maintain, replace, operate, lease, install, remove, reconstruct, and
upgrade the Communications Network in, on, under, upon, along and across the Public
Highways within the Use Area, and to make the Communications Network available to Premises
within the Use Area for the purpose of providing a dark fiber network to be lit by Licensee’s
customers, subject to the applicable provisions of this License Agreement, the City Charter, City
Code, and any future amendments to the City Charter or City Code, together with all applicable
laws and reasonable regulations of any regulatory agency having competent jurisdiction (the
“License”). Licensee shall have the right, subject to City approval of the applicable permits,
which approval shall not be unreasonably withheld, delayed, or conditioned, to determine the
final engineering design including but not limited to depth, width, and height, of all equipment
and other parts of the Communications Network, provided the proposed design and construction
is consistent with the City of Mesa Engineering & Design Standards
2.1.1
For the purposes of the License, Communications Network does not include a
''Multichannel Video System" as defined below.
2.1.2 Multichannel Video System includes:
(a)
A "cable system," as such term is defined in Title VI of the Federal
Communications Act of 1934, providing service within the City;
(b)
An "open video system," as such term is defined in Title VI of the Federal
Communications Act of 1934 and implementing regulations, providing
service within the City;
(c)
Any other system providing Multichannel Video Service within the City,
where such service is transmitted in whole or in part via wires or lines that
are in or cross any Public Highways, public streets or public utility
easements within the City. The preceding sentence shall apply whether the
provider owns, leases or otherwise obtains the right to use such wires or
lines, including wires or lines of a telecommunications provider used
pursuant to tariff or otherwise for such purpose;
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(d)
Any other system providing Multichannel Video Service within the City
where a license or similar permission or approval from City is required
under applicable law; and
(e)
For purposes of this License, "Multichannel Video Service" means
multiple channels of video programming where some or all of the video
programming is generally considered comparable to programming
provided by a television broadcast station or by a direct to home satellite
service.
2.2
Any privilege claimed under this License by Licensee in any Public Highway
shall be subordinate to any prior or subsequent occupancy or use by City and shall be
subordinate to any prior lawful occupancy or use by any other entity, and shall be subordinate to
any prior easements; provided, however, that nothing in this License shall extinguish or
otherwise interfere with property rights established independently of this License Agreement.
2.3
There is hereby reserved to City every right and power which is required to be
herein reserved or provided by any ordinance, the Mesa City Code or the Mesa Charter, and
Licensee, by its acceptance of this License Agreement, agrees to be bound thereby and to comply
with any action or requirements of City in its exercise of such rights or powers, heretofore or
hereafter enacted or established and exercised in its sole discretion, except those actions or
requirements which have been found to be unlawful under state or federal law. Neither the
granting of any License Agreement nor any provision hereof shall constitute a waiver or bar to
the exercise of any governmental right or power of City.
2.4
Except as otherwise set forth in this License Agreement, the Communications
Network and all of its parts and components which are installed and constructed by Licensee in
the License Area shall at all times be and remain the property of Licensee.
2.5
Licensee shall comply with any applicable law or regulation of the Federal
Communications Commission (“FCC”) or the Arizona Corporation Commission (“ACC”) to
engage in business activities associated with use of the Public Highways; 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 License Agreement without a written modification to this License Agreement.
2.6
This License Agreement does not allow one-way transmissions by anyone directly
to customers or any other type of video programming or other programming or transmissions,
any one or more of which are subject to a uniform video service license. For purposes of this
License Agreement, “telecommunications” means the transmission, between or among points
specified by the user, of information of the user's choosing, without change in the form or
content of the information as sent and received. The term does not include commercial mobile
radio services or cable services as defined by Arizona Revised Statutes § 9-581.
2.7
The City will comply with all applicable laws and act in accordance with its
standard procedures in reviewing and processing all applications for permits submitted under this
License. If Licensee desires greater control over the speed of the permitting process, then
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Licensee may, by separate agreement, request that City engage independent consultants to work
alongside City staff, and who may be dedicated solely to the processing of Licensee’s
applications, public relations services, and inspections.
SECTION 3. Construction, Maintenance, Relocation, and Conditions.
3.1 The Communications Network constructed, installed, operated, leased, repaired,
replaced, removed, abandoned, or maintained pursuant to this License Agreement shall be
constructed, installed, operated, leased, repaired, replaced and maintained in accordance with the
City of Mesa’s Engineering & Design Standards and all other applicable codes, regulations,
policies, and standards, whether mandated by the City, State of Arizona or any other
governmental entity with jurisdiction over the Public Highways and, at a minimum, consistent
with the terms of this License Agreement. Public Highways under the control of the City shall
be used according to plans approved by the City Engineer or their designee. Prior to the
installation, construction, maintenance, abandonment, replacement, extension or relocation of
any portion of the Communications Network authorized herein, Licensee shall apply for and
obtain from City a Right-of-Way Permit pursuant to Title 9, Chapters 1 and 2 of the Mesa City
Code for such work on the Communications Network. City shall issue such permits to Licensee
on such conditions as are lawful and reasonable to ensure compliance with the terms and
conditions of this License Agreement. All work performed under this License Agreement shall
be done in compliance with Right of Way Improvement Standards, the Uniform Standard
Specifications and Details for Public Works Construction sponsored and distributed by the
Maricopa Association of Governments (“MAG”) as amended, City amendments to MAG, Mesa
Standard Details and Specifications, Mesa’s Approved Product List and Technical
Specifications, Mesa’s Construction Material Field Testing Handbook, and Occupational Safety
and Health Administration (“OSHA”) regulations, as all of which may be amended from time to
time. Licensee shall retain an independent testing company, approved by City in its reasonable
discretion without undue condition or delay, to test all materials that will be used to remediate
City and third-party facilities, and which are subject to materials testing pursuant MAG, the City
amendments to MAG, and Mesa’s Construction Material Field Testing Handbook.
3.1.1
Except as otherwise provided by this License Agreement, or permitted by
the City, all of Licensee's installations and Communications Network within the City's Public
Highways, except for above ground facilities, and Cabinets, shall be underground and shall meet
the specifications set forth in a City-issued permit.
3.1.2
The Licensee's installation of the Communications Network shall be in
accordance with the City of Mesa Engineering & Design Standards and as set forth in a City-
issued permit. Where possible installation and relocation of the Communications Network shall
be coordinated with other utilities to accommodate opportunities for common trench installation.
Participation in joint trench efforts is strongly encouraged, but shall not be mandatory.
3.2
The Communications Network to be constructed, installed, operated, leased,
repaired, replaced, maintained, upgraded and removed under this License, shall be so located as
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to interfere as little as reasonably possible with traffic or other authorized uses within Public
Highways. Licensee shall provide engineering designs to the City, including intended locations
of the Communications Network, prior to construction in accordance with City's permitting
process. The Parties agree to cooperate in the selection of suitable sites for the Communications
Network. Nevertheless, those phases of construction and installation relating to traffic control,
backfilling, compaction and paving, as well as the location or relocation of the Communications
Network shall be subject to reasonable regulation by the City Engineer or designee and the
City’s permitting process.
3.2.1
Licensee shall submit the Right-of-Way Permit together with the details,
plans and specifications for City review and consideration, and pay all lawfully applicable
application, review, traffic barricading, remediation material testing (in accordance with Section
3.1) and inspection fees prior to any and all construction work performed pursuant to the rights
granted under this License Agreement including the installation, operation, maintenance,
location and attachment of any and all of the Communications Network. The proposed locations
of Licensee's planned initial installation of its Communications Network including related
facilities or equipment shall be depicted more specifically on engineering drawings provided to
City with the submittal of the plans and specifications during the permitting process. If Licensee
desires to change the location of any part of the Communications Network, including any related
facilities or equipment, from the location set forth in the initial Right-of Way Permit or Right-of-
Way Encroachment Application(s), Licensee shall apply for a new permit prior to any relocation
or construction. Such permits referred to in this Section 3.2.1 shall be identified by City log
number and referenced as a summary of its Communications Network whenever and wherever
such records are maintained.
3.2.2
Licensee shall maintain as-built drawings of the Communications
Network, and shall furnish electronic or hard copies, as requested by the City. Licensee shall
cooperate with City to furnish such information in an electronic mapping format compatible with
the then-current City electronic mapping format using the approved City datum. Licensee shall
notify the City within thirty (30) working days if it abandons any portion of its Communications
Network or installs additional facilities.
3.2.3
The Licensee shall comply with Arizona Revised Statutes §§ 40-360.21 et
seq. by participating as a member of the Arizona Blue Stake Center (or other appropriate
organization selected by the City) with the necessary records and persons to provide the location
and identity of Licensee's underground facilities upon receipt of a locate call or as promptly
thereafter as possible, but in no event later than two (2) working days after receipt of a locate
call. A copy of Licensee’s membership shall be submitted to the City upon request.
3.3
If Licensee damages, disturbs, or alters the surface or subsurface of any Public
Highway or adjoining public property, any public improvement, landscaping, or property of
third-parties, then Licensee shall promptly, at its own expense, and in a manner reasonably
acceptable to the City, repair and restore the damage or disturbance to a condition substantially
comparable to its prior state. In the event Licensee is unaware of the damage or unaware that the
repair is unacceptable to the City, the City shall give Licensee notice and allow the Licensee the
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opportunity to repair. If Licensee fails to complete such repair within a reasonable time or in a
manner reasonably acceptable to the City, then the City may perform such repair and Licensee
shall pay all the actual, reasonable, and fully documented direct costs expended to complete the
repair. It is hereby acknowledged that City policy requires that severed City-owned fiber must be
completely replaced to nearest previously existing splice point. Any trimming of trees by the
Licensee in the Public Highways shall be subject to such regulation as the City Engineer or
designee may establish to protect the public health, safety, and convenience.
3.4
In the event of a public emergency, City shall have the right to sever, disrupt, or
dig-up facilities of Licensee, after reasonable efforts have been made, given the constraints of
such public emergency, (i) to contact Licensee prior to any such action; and (ii) to reasonably
avoid severing, disrupting or digging up the facilities of Licensee. City shall, where reasonable,
work with Licensee in responding to the emergency.
3.5
Licensee shall be solely responsible for all repairs, maintenance, and adjustments,
and damage to the Communications Network and City shall have no obligation to repair such
damage—except where the damage is caused by the sole and exclusive actions of the City or its
agent. Excluding relocations reasonably requested by the City and repairs or maintenance to the
Communications Network, Licensee shall not relocate, materially modify, or materially alter the
Communications Network components any time after issuance of the permit(s), except upon
City’s written approval, which approval will not be unreasonably withheld, delayed, or
conditioned.
3.6
Licensee shall bear the entire cost of timely relocating its Communications
Network facilities located within Public Highways, the relocation of which is necessitated by the
construction of public improvements by or on behalf of the City. If Licensee is required to
relocate its Communications Network facilities due to the construction of a public improvement
City shall provide Licensee with sixty (60) calendar days' notice before any required action of
Licensee to relocate affected portions of the Communications Network and shall cooperate with
Licensee to identify a replacement and alternative location within the Public Highways for the
relocation of affected portions of the Communications Network. Licensee shall promptly
remove the designated portions of the Communications Network. Licensee, at its sole cost and
expense, shall restore all public and private property damaged by Licensee's removal and
relocation of the Communications Network to a condition substantially comparable to the
condition before removal and relocation of the Communications Network. City will make
reasonable efforts to design and construct projects pursuant to this section so as to minimize
relocation expenses to Licensee, and shall entertain a reasonable request to support existing
facilities in place. If Licensee fails to relocate as required herein, the Licensee shall reimburse
City for actual and reasonable direct damages and costs incurred by City as a result of such
delays.
3.7
The License granted herein is only for Licensee for the purpose of constructing,
maintaining and operating the Communications Network. Transfer of the License or any interest
therein or control of the Communications Network is subject to the provisions of Section 9
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(Transferability of License), infra. A material consideration of City in granting this License to
Licensee is Licensee's experience, reputation, knowledge, and business track record.
3.7.1
This License Agreement further authorizes Licensee to do the following:
(a)
In its ordinary course of business to lease to or contract with others for use
of all or part of the Communications Network, as distinguished from selling
telecommunications services carried on the Communications Network. Any entity
selling telecommunications services on the Communications Network must obtain a
telecommunications license from the City.
(b)
To lease or provide wholesale access to fiber or conduit that are part of the
Communications Network to others that have contracts, franchises or other agreements
with City to use its public property within the City (an “Existing Third-Party ROW
User”), without further prior consent of City, provided that Licensee notifies the City of
the identity of the Existing Third-Party ROW User.
3.7.2
The Licensee agrees that if Licensee leases or licenses the Communications
Network facilities to others for any other use, then Licensee shall condition the effectiveness of
such upon the lessee/licensee applying for and obtaining from the City any required
authorization for such use, including, if required, a telecommunications services license, or any
other license that the City may require. Additionally, should Licensee’s lessees/licensees self-
perform any work on the Communications Network within the Public Highways, then Licensee
shall require that such lessee/licensee provide an indemnification of the City to the same extent
required of Licensee in this Agreement.
3.7.3
Licensee agrees and will take reasonable actions to inform entities delivering
telecommunications services over the Communication Network that Mesa City Code Section 9-
14-2(A) requires persons using Licensee's facilities to obtain a telecommunication license if such
person constructs, installs, operates or maintains telecommunication facilities within the Public
Highways.
3.8
Licensee shall maintain a local agent within Maricopa County, who is familiar
with Licensee's facilities and who is responsible for satisfying the information needs of City and
other public rights-of-way users. Licensee shall be available to staff employees of any City
department having jurisdiction over Licensee's activities twenty-four (24) hours a day, seven (7)
days a week, regarding problems or complaints resulting from the installation, operation,
maintenance, or removal of its Communications System. Licensee will provide the City’s Right
of Way Manager with emergency contacts before submitting for permits. The Licensee will
inform City’s Right of Way Manager promptly of any changes to its agent’s contact information.
3.9
City may examine the business records of Licensee as permitted under applicable
law, but in any event only during reasonable times and following no less than thirty (30) days’
prior written notice, and only to the extent reasonably necessary to ensure compliance with the
fees owed under this License Agreement or applicable tax laws. Licensee will keep business
records reflecting its [revenues used to calculate fees paid] for at least two (2) years.
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3.10
Data Deliverable. Within 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 format for the
electronic files shall be ESRI file geodatabase or shapefile format. The data shall be provided in
NAD_1983_HARN_StatePlane_Arizona_Central_FIPS_0202_Feet_Intl
(WKID:
2868
Authority: EPSG) or another mutually agreed upon format. Licensee shall supply GIS 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 Right of Way
Manager, permittee 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.
3.11
Construction of the System. Licensee will use commercially reasonable efforts to
commence construction on or before a date that is twenty-four (24) months after the Effective
Date (the “Construction Commencement Deadline”); provided, however, in the event of a
Force Majeure Event, the Construction Commencement Deadline shall be extended by the time
impact resulting from the Force Majeure Event, as defined in Section 20. In addition, following
construction commencement, Licensee annually shall provide City with a construction forecast
for the upcoming three-year period. Both Parties recognize and agree that Licensee cannot
guarantee the Construction Commencement Deadline as many elements are outside of its
control, but Licensee will keep the City informed of the progress of its schedule at reasonable
intervals.
SECTION 4. Fees and In Lieu Payment.
4.1
Licensee shall pay the greater of, $5,000.00 per year or, all lawful compensation
and taxes required by the Mesa City Code, including without limitation, the Annual ROW
Underground Conduit Fee, all required application and permit fees, and the applicable fees under
the City’s Schedule of Fees and Charges, as may be amended from time to time.
4.2
Licensee may provide in-kind material or services in lieu of payment of the
Annual ROW Underground Conduit Fee.
SECTION 5. Indemnification and Assumption of Risk.
5.1
In addition to the indemnity requirements set forth in Mesa City Code Section 9-
14-3(D)(4), Licensee shall defend, indemnify and hold harmless City, its Mayor and
Councilmembers, officers, agents, employees, boards, and commissions (collectively, including
City, “City Indemnitees”) from and against all third-party claims, demands, damages, losses and
expenses of any nature (including an award of attorneys’ fees), sustained by the City Indemnities
on account of any suit, judgment, execution, claim or demand whatsoever arising out of or
resulting from the acts or omissions of Licensee, its customers, officers, agents, employees,
contractors, successors or assigns (collectively, “Licensee and its Agents”), or the performance
of work by Licensee and its Agents pursuant to this License or the installation, operation, or
maintenance of the Communications Network, whether or not any act or omission complained of
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is authorized, allowed or prohibited by this License (each, a “Claim”), except to the extent such
Claim arises due to the sole and active negligence or willful misconduct of the City Indemnitees.
The amount and type of insurance coverage requirements set forth in this License will not be
construed as limiting the scope of the indemnity stated in this section. In the event of any Claim
specified in this section, the City Indemnitees shall give reasonable, prompt notice to Licensee of
such Claim. Failure of the City Indemnitees to timely give such notice to Licensee shall relieve
Licensee of its indemnity obligations hereunder only to the extent Licensee is actually prejudiced
or damaged by such failure. Licensee shall have reasonable control of the defense of any action
or litigation of a Claim and all negotiations for the settlement or compromise of the same, except
that Licensee may not make any non-monetary settlement or compromise without the City
Indemnitees’ consent, which consent shall not be unreasonably withheld or delayed. The City
Indemnitees shall cooperate with Licensee in the defense and settlement of any Claim at
Licensee’s expense. No City Indemnitee shall take any action to settle, to compromise or
otherwise to make any payment, admission, or statement to or for the benefit of any third-party
claimant without Licensee's written consent.
5.2
For the avoidance of doubt, Licensee’s customers shall be considered third parties
for purposes of Section 5.1, and the Parties acknowledge that Licensee shall indemnify City
Indemnitees against any suit, judgment, execution, claim or demand whatsoever from its
customers, so long as it is alleged to arise or result from the installation, operation, maintenance,
repair, or condition of any facilities authorized under this Agreement including the
Communications Network, the delivery of services over the Communications Network, or the
condition of public or private property altered as a result of Licensee’s activities.
5.3
Notwithstanding any other provision of, or limitation in, this Agreement to the
contrary, if pursuant to A.R.S. § 41-194.01 the Attorney General determines that this Agreement
violates any provision of state law or the Constitution of Arizona and City and Licensee are not
able (after good faith attempts) to modify the Agreement so as to resolve the violation with the
Attorney General within thirty (30) days of notice from the Attorney General pursuant to and
under the provisions of A.R.S. § 41-194.01(B)(1), this Agreement shall automatically terminate
at midnight on the thirtieth (30th) day after receiving such notice from the Attorney General, and
upon such termination the Parties shall have no further obligations under this Agreement.
Additionally, if the Attorney General determines that this Agreement may violate a provision of
state law or the Constitution of Arizona under A.R.S. § 41-194.01(B)(2), and the Arizona
Supreme Court requires the posting of a bond under A.R.S. § 41-194.01(B)(2), City shall be
entitled to terminate this Agreement, except if Licensee posts such bond; and provided further,
that if the Arizona Supreme Court determines that this Agreement violates any provision of state
law or the Constitution of Arizona, City may terminate this Agreement and the Parties shall have
no further obligations hereunder.
5.3
Licensee shall assume the risk of, and hereby relinquishes any claim of any kind
whatsoever against City in connection with. any final, non-appealable order or determination by
a court of competent jurisdiction that City lacked the statutory authority under Arizona law to
issue this License.
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5.4
The Parties agree that if a regulatory body or a court of competent jurisdiction
should determine by a final, non-appealable order or determination that City did not have the
authority to issue a License to Licensee under Arizona law, then this License shall be considered
a revocable permit with a mutual right in either Party to terminate without cause upon giving
sixty (60) days’ notice to the other. In such an event, the requirements and conditions of such
revocable permit shall be the same requirements and conditions as set forth in this License
except for conditions relating to the term of the License and right of termination. If this License
shall be considered a revocable permit as provided herein, the Licensee acknowledges the
authority of the City Council under Title 9 of the Mesa City Code to issue a revocable permit and
the power to revoke as provided herein.
SECTION 6. Performance Bond, Permitting, and Insurance.
6.1
Prior to applying for any permit to construct, install, maintain or perform any
work under this License Agreement, Licensee shall take either one of the following actions:
6.1.1 Either Licensee shall provide City with a performance bond in the amount
of one hundred thousand dollars ($100,000) naming City as obligee and guaranteeing
Licensee’s faithful performance of its obligations under this Agreement, and the
performance bond will remain in full force during the term of this License Agreement; or
6.1.2
Licensee shall deposit into a suitable interest-bearing account, established
by the Licensor, and the Licensee shall maintain on deposit through the term of this
License, the sum of not less than One Hundred Thousand Dollars ($100,000.00) (the
“Security Fund"), as security for the faithful performance by it of all the provisions of
this License, and compliance with all permits of any agency of the Licensor having
jurisdiction over its acts or defaults under the License issued pursuant thereto, and the
payment by the Licensee of any claims, liens and taxes due the Licensor which arise by
reason of the construction, operation or maintenance of the facilities. Licensor shall have
the full power of withdrawal of funds from the Security Fund 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 or his/her
designee and prior written notice of intent to withdraw to Licensee. If Licensee elects the
Security Fund option, then:
6.1.2.1
Within thirty (30) days after notice to Licensee that any amount
has been withdrawn by the Licensor from the Security Fund
pursuant to Subsection 6.1.2 above, the Licensee shall deposit a
sum of money sufficient to restore the Security Fund to the original
amount. Licensee grants to Licensor, to the broadest extent
allowed under law, all rights of setoff and recoupment with regard
to the funds in the Security Fund and the bond with regard to any
claims, counterclaims, or other rights of the City arising under or
related to this License.
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6.1.2.2
If the Licensee fails, within ten (10) days of a notice of intent to
withdraw from the Security Fund, to pay to the Licensor any taxes
or fees due and unpaid; or fails to repay to the Licensor, within
such ten (10) days of such notice, any damages, costs or expenses
which the Licensor shall be compelled to pay by reason of any act
or default of the Licensee in connection with this License; or fails,
within thirty (30) days of such notice of failure by the Licensor to
comply with any provision of the License which the Licensor
reasonably determines can be remedied by an expenditure of the
Security Fund, then the Licensor may immediately withdraw the
amount thereof, with interest from the Security Fund. Upon such
withdrawal, the Licensor shall notify the Licensee of the amount
and date thereof.
6.1.2.3
The Licensee shall be entitled to the return of the Security Fund, or
portion thereof, as remains on deposit at the expiration of the term
of the License, or upon termination of the License 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, with interest of 1.0% per
month, within thirty (30) calendar days of notice of such a
determination.
6.1.2.4
The rights reserved to the Licensor with respect to the Security
Fund are in addition to all other rights of the Licensor whether
reserved by this License or authorized by law, and no action,
proceeding or exercise of a right with respect to such Security
Fund shall affect any other right the Licensor may have.
6.2
Before the start of construction or repair work (other than emergency repairs)
within Public Highways or other City-controlled property (where allowed by separate
agreement), plans showing the proposed location of facilities to be constructed in relation to the
location of other known adjacent conduit and facilities, shall be submitted to the City for its
review and consideration. These plans shall be prepared and submitted in accordance with the
City's process for securing a permit for utility construction in the Public Highways. At the time
of construction, the Licensee or its contractor shall obtain and pay for a Right-of-Way Permit.
During construction, the City will inspect and test all trenching, backfilling and other related
items and if the City incurs costs not covered by the permit fees, then Licensee shall reimburse
the City its actual, reasonable and documented inspection costs, including material testing.
6.3
Licensee shall pay the City Engineering Department the amount billed monthly
for the actual fully documented direct cost of the City's inspection and review services incurred
during the previous month due to construction activities of the Licensee in the Public Highways
and that was not paid during the permit process (the “Monthly Reimbursable Amounts”). The
amount shall be due within thirty (30) days of receipt of the monthly billing. Licensee shall have
the right during regular office hours to examine and to make copies of the City accounting
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records on time and cost incurred for inspection services provided to Licensee for work in the
Public Highways. City represents and warrants that such costs are and will be limited to the
actual costs incurred by the City in fulfilling its obligations under the Agreement.
6.4
Insurance. General Requirements.
6.4.1
Licensee, at its own expense, shall carry and maintain insurance of the
types and amounts required in this section with companies possessing a current AM Best, Inc.
rating of A-- or better and legally authorized to do business in the State of Arizona with policies
and forms reasonably satisfactory to City.
6.4.2
All insurance required herein shall be maintained in full force and effect
until all work or services required to be performed under the terms of this Agreement is
satisfactorily completed and formally accepted. Failure to do so may, at the sole discretion of
City, constitute a material breach of this Agreement and may result in termination of this
Agreement.
6.4.3 The failure to renew any of the insurance policies required pursuant to this
Agreement prior to their expiration shall constitute a breach of this License Agreement.
6.4.4
All insurance policies, except Workers' Compensation required by this
Agreement shall name, to the fullest extent permitted by law for claims arising out of the
performance of this Agreement, City, its agents, representatives, officers, directors, officials and
employees as additional insureds.
6.4.5
Licensee's insurance shall be primary insurance over any insurance
available to the City and as to any claims resulting from this Agreement, it being the intention of
the Parties that the insurance policies so effected shall protect both Parties and be primary
coverage for any and all losses covered by the described insurance. The insurance provided by
Licensee shall not require contribution from, any other insurance or self-insurance maintained by
the City or the City’s agents, representatives, officials, officers, directors or employees.
6.4.6
The insurance policies, except Workers' Compensation, shall contain a
waiver of transfer rights of recovery (subrogation) against City, its agents, representatives,
officers, directors, officials and employees for any claims arising out of the Licensee's acts,
errors, mistakes, omissions, work or service.
6.4.7
The insurance policies may provide coverage requiring deductibles, but
payment of such deductibles shall be assumed by and shall be the sole responsibility of the
Licensee.
6.4.8
Licensee will provide City with notice of cancellation of any policy
required above in accordance with policy provisions.
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6.4.10 In the event that claims in excess of the insured amounts provided herein
are filed by reason of any operations under this Agreement, the amount of excess of such claims,
or any portion thereof, may be withheld from the Security Fund.
6.5
Proof of Insurance; Certificates of Insurance.
6.5.1
Prior to commencing work or services under this Agreement, Licensee
shall furnish to City Certificates of Insurance issued by Licensee's insurer(s), as evidence that
policies providing the required coverages, conditions and limits required by this Agreement are
in full force and effect and obtain from the City's Risk Management Division approval of such
Certificates of Insurance.
6.5.2
If a policy does expire during the life of this Agreement, a renewal
certificate must be sent to the City within five (5) business days of the expiration date.
6.5.3
All Certificates of Insurance shall identify the policies in effect on behalf
of the Licensee, their policy period(s), and limits of liability. Coverage shown on the Certificate
of Insurance must coincide with the requirements in the text of the Agreement documents.
Information required to be on the Certificate of Insurance may be typed on the reverse of the
Certificate and countersigned by an authorized representative of the insurance company.
6.5.4 City reserves the right to request and to review at a mutually agreeable
location, within ten (10) working days, copies of any or all of the herein required insurance
policies and/or endorsements. City shall not be obligated, however, to review same or to advise
Licensee of any deficiencies in such policies and endorsements, and such receipt shall not relieve
Licensee from, or be deemed a waiver of City's right to insist on, strict fulfillment of Licensee's
obligations under this Agreement.
6.6
Required Coverage.
6.6.1
Such insurance shall protect Licensee from claims set forth below which
may arise out of or result from the operations of Licensee under this Agreement and for which
Licensee may be legally liable, whether such operations be by the Licensee or by a
sub-consultant or subcontractor or by anyone directly or indirectly employed by any of them, or
by anyone for whose acts any of them may be liable. Coverage under the policy will be at least
as broad as Insurance Services Office, Inc. Form CG00010413 or equivalent thereof including,
but not limited to, severability of interest and waiver of subrogation clauses.
6.6.2
Claims for damages because of bodily injury, sickness or disease, or death
of any person other than the Licensee's employees.
6.6.3
Claims for damages, because of injury to or destruction of tangible
property, including loss of use resulting therefrom.
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6.6.4
Claims involving contractual liability insurance applicable to the
Licensee’s obligations of indemnification.
6.7
Commercial General Liability – Minimum Coverage Limits.
6.7.1
Any combination between general liability and excess general liability
alone amounting to a minimum of $5,000,000.00 per occurrence and an aggregate of
$10,000,000.00 in coverage will be acceptable. The Commercial General Liability additional
insured endorsement shall be as broad as the Insurance Services, Inc.’s (ISC) Additional Insured,
Form B, CG 2010, or equivalent, and shall include coverage for Licensee’s operations and
products, and completed operations.
6.8
Worker’s Compensation and Employer’s Liability.
6.12.1 Licensee shall maintain Worker’s Compensation insurance to cover
obligations imposed by federal and state statutes having jurisdiction over Licensee’s employees
engaged in the performance of the work or services; and Employer’s Liability insurance of not
less than $1,000,000 for each accident, $1,000,000 disease coverage for each employee, and
$1,000,000 disease policy limit. In case any work is subcontracted, Licensee’s will require the
subcontractor to provide worker’s compensation and Employer’s Liability to at least the same
extent as required by Licensee.
6.9 Automobile Liability.
6.9.1
Licensee shall maintain Commercial/Business Automobile Liability
insurance with a combined single limit for bodily injury and property damage of not less than
$1,000,000 each occurrence with respect to any owned, hired, and non-owned vehicles assigned
to or used in performance of the Licensee’s work. Coverage shall be at least as broad as coverage
code 1, “any auto” (Insurance Service Office, Inc. Policy Form CA 0011293, or equivalent).
SECTION 7. Confidential Information.
7.1
Proprietary information disclosed by the Licensee means all information
regarding the Communications System, including plans, drawings, designs, conceptual
renderings, cost information, specifications, photographs, reports, manuals, and other documents
(“Proprietary Information”). Proprietary Information shall include, but not be limited to, any
customer lists, financial information, technical information, or other information clearly
identified as confidential pertaining to the services provided by Licensee to its customers.
7.2
Proprietary Information disclosed by Licensee to the City or its constituent
departments shall be regarded as proprietary as to third parties. If the City receives a request to
disclose Proprietary Information, City shall notify Licensee of the request and allow Licensee a
reasonable opportunity to defend its information from disclosure.
7.3
Notwithstanding any provision in this License, the Licensee acknowledges and
understands that Licensor is a political subdivision of the State of Arizona and is subject to the
disclosure requirements of Arizona’s Public Records Law (A.R.S. §§ 39-121 et seq.).
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SECTION 8. Term and Licensee Abandonment of the Facilities.
8.1
The rights, privileges and License granted herein shall become effective upon the
mutual execution of this Agreement by the Parties (the “Effective Date”) and shall continue and
exist for an initial term of five (5) years from the Effective Date unless sooner revoked or
canceled as provided in Section 11.1 below. Pursuant to the conditions of A.R.S. §9-583(G) and
Mesa Code 9-14-1, so long as Licensee is not in default hereunder, this License Agreement shall
automatically renew at the end of each five-year term. If Licensee elects to not renew this
Agreement and within six months fails to either: i) execute another license permitting it to
remain within the Public Highways, or ii) provide evidence of transfer of the Communications
Network to another entity, then the system will be deemed abandoned and shall become the
property of the City, unless the Licensee is negotiating with the City in good faith to execute
another license or to find a mutually agreeable disposition of the Communications Network.
8.2
In the event the City revises the City of Mesa Engineering & Design Standards in
a manner that prohibits, restricts, or materially alters the methods of construction that Licensee
plans to use to construct its Communications System, and if Licensee can show that such change
materially and adversely impacts its ability to continue building its Communications System or
to complete construction of the Communications System, then Licensee may either: (i):
terminate this License and cease operations within the City; or (ii) cease construction of new
portions of the Communications System, in which case Licensee shall have no further obligation
to continue construction pursuant to the timeline in Section 3.11, but may continue to operate the
portion of the Communication System completed to that point. In the event Licensee chooses to
discontinue construction, but to continue operations pursuant to (ii), above, Licensee shall not
reengage construction of new facilities unless and until it agrees to a new construction schedule
approved in writing by the City Engineer. In order to exercise either option under this Section
8.2, Licensee shall first provide the City with at least thirty (30) days’ written notice.
8.3
If the Licensee abandons use of all or any part of its Communications System
under or pursuant to the License, or upon cancellation, revocation or termination of the privilege
herein granted, Licensee shall notify the City and may, subject to the City’s approval,
permanently abandon the improvements in place. In lieu of permanent abandonment, the City
may require Licensee to the reasonable satisfaction of the City and without cost or expense to the
City, to promptly remove its above ground facilities and to restore the Public Highways to a
reasonable condition under the supervision of the City. Pursuant to 8.1, upon permanent
abandonment, if the City does not require removal, the Licensee shall submit to the City a
proposal and instruments for transferring ownership to the City or, with the City’s concurrence,
to another entity. Any such facilities which are not removed as required by the City within one
hundred eighty (180) days of either such date of termination or revocation of this License or the
date the City issued a permit authorizing removal, whichever is later, then the facilities shall
automatically become the property of the City. If abandoned, Licensee must notify the Arizona
Blue Stake Center of such abandonment and shall record the abandonment consistent with
Arizona Revised Statutes §§ 40-360.21 et seq.
SECTION 9. Transferability of License.
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9.1 Assignment. Except as set forth below, neither Party may assign or transfer its rights or
obligations under this Agreement, in whole or part, to a third party, without the written
consent of the other Party. Any agreed upon assignee will take the place of the
assigning Party, and the assigning Party will be released from all of its rights and
obligations upon such assignment.
9.1.2
Notwithstanding the foregoing, Licensee may at any time, on written notice to
City, assign this Agreement or any or all of its rights and obligations under this
Agreement:
9.1.2.1 to any Affiliate (as defined below) of Licensee;
9.1.2.2 to any successor in interest of Licensee’s business operations in the City
in connection with any merger, acquisition, or similar transaction if
Licensee determines after a reasonable investigation that the successor in
interest has the resources and ability to fulfill the obligations of this
Agreement; or
9.1.2.3 to any purchaser of all or substantially all of Licensee’s Network
Facilities in Municipality if Licensee determines after a reasonable
investigation that the purchaser has the resources and ability to fulfill the
obligations of this Agreement.
9.2 Following any assignment of this Agreement to an Affiliate, Licensee will remain
responsible for such Affiliate’s performance under the terms of this Agreement. For
purposes of this section, (a) “Affiliate” means any Person that now or in the future,
directly or indirectly controls, is controlled with or by, or is under common control
with Licensee; and (b) “control” means, with respect to: (i) a U.S. corporation, the
ownership, directly or indirectly, of fifty percent (50%) or more of the voting power to
elect directors thereof, or (ii) a non-U.S. corporation, if the voting power to elect
directors thereof is less than fifty percent (50%), the maximum amount allowed by
applicable law; and (iii) any other Person, fifty percent (50%) or more ownership
interest in said Person, or the power to direct the management of such Person.
SECTION 10. Nonexclusive License.
This License grant is not exclusive, and nothing herein contained shall be construed to
prevent the City from granting other like or similar grants or privileges to any other person, firm
or corporation. Nor shall the License deny or lessen the powers and privileges granted the City
under the Constitution and laws of the State of Arizona; provided, however, that upon issuance
of the applicable permit by the City, the area actually used by Licensee for installation of the
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Communications Network shall be for the exclusive use of the Communications Network during
the Term, subject to the terms and conditions of this Agreement.
SECTION 11. Revocation of License.
The License granted hereunder may be revoked by the Licensor prior to expiration of the
then-current Term if any one of the following events occurs:
i.
The Licensee fails to comply with the material terms and conditions of the
License or applicable law and does not remedy or cure such failure to
comply as provided by Section 12;
ii.
The Licensee is or becomes insolvent or is a party to a voluntary
bankruptcy, reorganization, or receivership case or proceeding, makes an
assignment for the benefit of creditors, is subject to other actions by
creditors that, in the reasonable, good faith opinion of the City, threaten
the financial viability of Licensee as a going concern, or if there is any
similar action that affects Licensee’s capability to perform its obligations
under this License; or
iii.
The Licensee is the subject of a petition for involuntary bankruptcy not
dismissed within sixty (60) days.
SECTION 12. Breach; Rights and Remedies; Termination.
12.1
Licensee Breach or Default. In the event the City believes that Licensee has not
complied with or is otherwise in default of any material term of this Agreement, the City shall
promptly notify Licensee in writing with specific details regarding the exact nature of the alleged
noncompliance or default (a “City Breach Notice”). The failure to promptly provide such notice,
however, shall not act as a waiver of any rights and remedies of City hereunder unless and only
to the extent that the Licensee is materially prejudiced by such failure.
12.1.1 Licensee’s Right to Cure or Respond. Licensee shall have forty-five (45)
days from its receipt of a City Breach Notice (the “Initial Licensee Cure Period”) to
either:
i.
respond to the City, contesting the assertion of noncompliance or
default and in such event the Parties shall use commercially
reasonable efforts to promptly resolve such contest, but in the
event the Parties are unable to resolve such contest within thirty
(30) days of Licensee’s response, City may proceed to enforce any
of the remedies set forth in Section 12.1.2 ; or
ii.
cure an actual default or noncompliance; provided, however, in the
event that the default is curable but due to the nature of the default
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18
or noncompliance, such default or noncompliance cannot be cured
within the Initial Licensee Cure Period, then so long as Licensee
initiates reasonable steps to remedy and continuously and
diligently uses all reasonable efforts to cure such default or
noncompliance promptly and notifies the City of the steps being
taken and the projected date that they will be completed, the Initial
Licensee Cure Period shall be extended for a reasonable amount of
time to permit such cure but not to exceed ninety (90) days from
Licensee’s receipt of a City Breach Notice (the “Extended
Licensee Cure Period” and together with the Initial Licensee Cure
Period, the “Licensee Cure Period”). If Licensee is unable to cure
the default during the Initial Licensee Cure Period or Extended
Licensee Cure Period (whichever is applicable), then City may
proceed to enforce any of the remedies set forth in Section 12.1.2.
12.1.2 City Rights and Remedies.
i.
If Licensee fails to cure any actual noncompliance or default as
provided in Section 12.1.1 within the applicable Cure Period, the
City may take any or all of the following actions:
a.
terminate this License;
b.
seek special action or other similar relief (whether
characterized as mandamus, injunction or otherwise), requiring
Licensee to undertake and to fully and timely address or to
enjoin any construction or activity undertaken by Licensee
which is not in accordance with the terms of this Agreement;
c.
seek indemnity (including but not limited to filing an action for
damages) arising under Licensees indemnity or duty to hold
harmless obligations set forth in Section 5, or seek damages for
failure to restore property under Sections 3.3, 3.6, or 8.2; or
d. enforce its rights given under any bond or similar financial
assurance given or provided by or for the benefit of Licensee or
City pursuant to this Agreement.
ii.
Notwithstanding anything to the contrary in this Agreement, in no
event shall the City be permitted to terminate this Agreement if the
City has an uncured breach or default under this Agreement.
12.2
City Breach or Default. In the event Licensee believes that the City has not
complied with or is otherwise in default of any material term of this License, Licensee shall
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19
promptly notify the City in writing with specific details regarding the exact nature of the alleged
noncompliance or default (a “Licensee Breach Notice”). The failure to promptly provide such
notice, however, shall not act as a waiver of any rights and remedies of Licensee hereunder
unless and only to the extent that the City is materially prejudiced by such failure.
12.2.1 City’s Right to Cure or Respond. The City shall have forty-five (45) days
from its receipt of a Licensee Breach Notice (the “City Cure Period”) to:
i.
respond to Licensee, contesting the assertion of noncompliance or
default and in such event the Parties shall use commercially
reasonable efforts to promptly resolve such contest, but in the
event the Parties are unable to resolve such contest within thirty
(30) days of City’s response, Licensee may proceed to enforce any
of the remedies set forth in Section 12.2.1; or
ii.
cure an actual default or noncompliance; provided, however, in the
event that the default is curable but due to the nature of the default
or noncompliance, such default or noncompliance cannot be cured
within the City Cure Period, then so long as City initiates
reasonable steps to remedy and continuously and diligently uses all
reasonable efforts to cure such default or noncompliance promptly
and notifies the Licensee of the steps being taken and the projected
date that they will be completed, the City Cure Period shall be
extended for a reasonable amount of time to permit such cure but
not to exceed ninety (90) days from City’s receipt of a Licensee
Breach Notice (the “Extended City Cure Period”). If City is
unable to cure the default during the City Cure Period or Extended
Licensee Cure Period (whichever is applicable), then Licensee may
proceed to enforce any of the remedies set forth in Section 12.2.2.
12.2.2 Licensee Rights and Remedies. If the City fails to cure any actual
noncompliance or default as provided in Section 12.2.1 within the applicable Cure
Period, Licensee’s sole and exclusive remedies shall be limited to any or all of the
following, as applicable:
(i)
file a special action or seek other similar relief (whether
characterized as mandamus, injunction or otherwise), requiring
City to undertake and to fully and timely perform its obligation
under this Agreement;
(ii)
an action for damages for repairs to its Communications Network
as set forth in Section 3.5, in applicable; and
(iii)
in the event of the breach of, noncompliance with or default under
any material term of this Agreement, terminate this Agreement and
seek recovery of termination-related attorneys fees.
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12.2.3 Termination by Licensee. Licensee may terminate this Agreement for
convenience upon one hundred eighty (180) days’ written notice to City.
Notwithstanding anything to the contrary in this Agreement, in no event shall the
Licensee be permitted to terminate this Agreement if the Licensee has an uncured
breach or default under this Agreement.
12.3 Limitation of Liabilities:
12.3.1 The City and its officers, agents, elected or appointed officials, employees,
departments, boards and commissions shall not be liable to Licensee or to its
affiliates or customers for any interference with or disruption in the operation of
Licensee’s Communications System or the provision of services, or for any
damages arising out of Licensee’s use of the Public Highways.
12.3.2 Except where explicitly permitted by the terms of this License Agreement,
City and Licensee each waives its respective right to seek and recover
consequential (including lost profits or harm to business), indirect, incidental,
reliance, exemplary, special, beneficial, numerical, punitive or similar damages
from the other.
SECTION 13. Acceptance of License Terms and Conditions.
13.1
This License shall not become effective until after approval by the City Council,
execution by the City Manager, and Licensee’s written acceptance thereof shall have been filed
with the City Clerk of the City. By entering into this License, the Licensee covenants and agrees
to perform and be bound by each and all terms and conditions imposed by the City Charter, Code
of the City, and this License.
13.2
The Licensee acknowledges and accepts the right of the City to issue a License
and Licensee agrees it shall not now or at any time hereafter challenge this right to issue the
License in any way or in any City, state or federal court.
13.3
The Licensee has reviewed the Licensor's ability to grant a License and accepts
such a License as the City may now be legally able to grant.
13.4
In the event of conflict between the terms and conditions of the License and the
authority under which the City can grant a license or permission to use the streets and public
ways as set forth in applicable law, the applicable law shall control.
13.5
Nothing in this License shall be deemed to waive the requirement of the various
codes, ordinances and regulations of the City.
13.6
The Licensee shall have no recourse whatsoever against the City’s officers,
elected or appointed officials boards, commissions, agents or employees for any loss, cost,
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21
expense, or damage arising out of any actions taken in their official capacities pursuant to this
Agreement.
SECTION 14. Partial Invalidity.
14.1
If any section, paragraph, clause, phrase or provision of this License Agreement
shall be adjudged invalid or unconstitutional, or superseded by other lawful authority including
any state or federal, legislative, regulatory or administrative authority having jurisdiction thereof,
the same shall not affect the validity of this License as a whole or any part of the provisions of
this License other than the part superseded or adjudged to be invalid or unconstitutional.
14.2
The Parties agree that this License is intended to satisfy the requirements of all
applicable laws, administrative guidelines, rules, order and ordinances. Accordingly, any
provision of this License which conflicts with any such applicable law shall be invalid and
unenforceable, whether occurring before or after execution of this License, it being the intention
of the parties: (i) to preserve their respective rights and remedies under all applicable laws; and
(ii) that the execution of this License does not constitute a waiver of any rights or obligations by
either party under any applicable law. In the event that a provision is invalid and unenforceable,
all other provisions shall remain in full force and effect. Both the City and Licensee expressly
reserve all rights they may have under law to the maximum extent possible; neither the Licensor
nor the Licensee shall be deemed to have waived any rights they may now have or may acquire
in the future by entering into this License.
SECTION 15. Notices.
All notices, requests, demands, claims and other communications permitted or required to be
given pursuant to this License must be in writing and shall be deemed duly given and received (i)
if personally delivered, when so delivered; (ii) if mailed, three (3) business days after having
been sent by registered or certified mail, return receipt requested, postage prepaid and addressed
to the intended recipient as set forth below; (iii) if sent through an overnight delivery service in
circumstances to which such service guarantees next day delivery, the day following being so
sent; or (iv) if sent via e-mail, at the time sent:
If to the City:
City of Mesa
Right of Way Manager
P.O. Box 1466
Mesa, AZ 85211-1466
Email: lori.greco@mesaaz.gov
With a copy to:
Mesa City Attorney
20 E. Main Street
Mesa, AZ 85201
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Email: Attorney.info@mesaaz.gov
If to Licensee:
Vero Fiber Networks, LLC, Attn. Law Dept.,
P.O. Box 1110,
Boulder, CO 80306
Email: Kcollins@veronetworks.com
Either Party may from time to designate any other address for this purpose by written notice to
the other Party in the manner set forth above.
SECTION 16. Entire Agreement and Amendment.
This License Agreement constitutes the entire agreement of the Parties regarding the matters set
forth herein and may be amended or modified only by a written instrument signed by an
authorized representative of each Party, except that Licensor may modify this License
Agreement as necessary to comply with applicable laws and regulations. In the event that an
amendment in this License Agreement is necessary in order for the Parties to comply with
applicable laws and regulations, each Party must use good faith efforts to amend the License
Agreement to effect such compliance. This License Agreement will be fairly interpreted in
accordance with its terms and conditions and not for or against either Party.
SECTION 17. Governing Law: Arizona Legal Requirements.
This License will be governed by, enforced and construed in accordance with the laws of the
State of Arizona and applicable federal law and any Party bringing a claim hereunder may bring
such claim only in the Superior Court of Maricopa County, Arizona or the United States District
Court for the District of Arizona, as applicable. The Parties hereby irrevocably designate these
courts as the only courts of proper jurisdiction and venue for any actions or proceedings relating
to this Agreement and waive any objections or defenses relating to jurisdiction with respect to
such action or proceeding. Each Party consents to service of process under the statutes and rules
applicable to the Superior Court of Maricopa County, Arizona and the United States District
Court for the District of Arizona The forum selected for any proceeding or suit in law or equity
arising from or incident to this License Agreement shall be Maricopa County, Arizona. The
Parties acknowledge the following Arizona statutes applicable to this Agreement and any terms
required to be in this Agreement based on such statutes are deemed included herein: A.R.S. § 38-
511 (cancellation of political subdivision contracts); A.R.S. § 42-17106 (expenditures limited to
budgeted purposes); A.R.S. § 35-393.01 (Israel boycott divestments); and A.R.S. § 38-504
(conflict of interest – prohibited acts).
SECTION 18. Attorneys' Fees.
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The prevailing Party in any litigation arising out of this License Agreement shall be entitled to
the recovery of its reasonable attorneys' fees, court costs and other litigation related costs and
fees from the other Party.
SECTION 19. Force Majeure.
Except as otherwise expressly set forth in this License, the Parties will not be held in default
under, or in breach or noncompliance with, the provisions of this License, nor suffer any
enforcement or penalty relating to noncompliance or default (including termination, cancellation
or revocation of this Agreement), where such noncompliance or alleged defaults occurred or
were caused by any of the following events (each a “Force Majeure Event”): labor strike, riot,
war, earthquake, flood, hurricane, health crisis, pandemic, drought, tornado, unusually severe
weather conditions, or other act of nature, labor disputes, failure of utility service necessary to
construct the Communications Network, governmental, administrative or judicial order, or other
event that is beyond the Parties’ reasonable control. Force Majeure Events also include work
delays caused by waiting for (i) utility providers to service or monitor their own utility
infrastructure on which Licensee’s fiber optic cable and/or equipment may be deployed, as well
as unavailability of materials and/or reasonably qualified labor to perform the work or (ii) third
parties’ acts or omissions within the Public Highway which materially interfere with the Parties’
ability to perform its obligations under this Agreement.
SECTION 20. Preservation of State Shared Revenues.
Notwithstanding any other provision of, or limitation in, this License Agreement to the contrary,
if pursuant to A.R.S. § 41-194.01 the Arizona Attorney General determines that this License
Agreement violates any provision of state law or the Constitution of Arizona (including but not
limited to A.R.S. § 42-6201 et seq.), City and Licensee shall use all and best faith efforts to
modify the License Agreement so as to fulfill each Parties’ obligations in the License Agreement
while resolving the violation with the Arizona Attorney General. If within thirty (30) days of
notice from the Attorney General pursuant to and under the provisions of A.R.S. § 41-
194.01(B)(1), City and the Licensee cannot agree to modify this License Agreement so as to
resolve the violation with the Attorney General, this License Agreement shall automatically
terminate at midnight on the thirtieth (30th) day after receiving such notice from the Attorney
General, and upon such termination the Parties shall have no further obligations under this
License Agreement. Additionally, if the Arizona Attorney General determines that this License
Agreement may violate a provision of state law or the Constitution of Arizona under A.R.S. §
41-194.01(B)(2), and requires the posting of a bond under A.R.S. § 41-194.01(B)(2), City shall
be entitled to terminate this License Agreement, except if Licensee posts such bond, if required;
and provided further, that if the Arizona Supreme Court, determines that this License Agreement
violates any provision of state law or the Constitution of Arizona, City may terminate this
License Agreement and the Parties shall have no further rights, interests, or obligations in this
License Agreement or claim against the other Party for a breach or default under this License
Agreement.
SECTION 21. Representations and Warranties.
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21.1
Subject to the limitations set forth in Sections 14 and 21, the City represents and
warrants to Licensee that, as of the date of the execution of this License Agreement, to the best
of its knowledge: (a) it has full authority (including the authority required by any applicable law,
ordinance, rule or regulation) to enter into and perform this License Agreement and the
execution, delivery and performance of this License Agreement and the consummation of the
transactions contemplated hereby and thereby are within the right, power and authority of the
City and have been duly authorized by all necessary action on the part of City, (b) this License
Agreement has been duly executed and delivered by the City and it constitutes a legal, valid and
binding agreement of the City enforceable against the City in accordance with its terms (except
as enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and by general principles of
equity) and (c) the execution and delivery of this License Agreement by the City and its
performance hereunder and thereunder does not violate any law, ordinance, rule, or regulation
applicable to the City.
21.2
Licensee represents and warrants to the City that: (a) it has full authority to enter
into and perform this Agreement and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby and thereby are within the power
and authority of Licensee and have been duly authorized by all necessary action on the part of
Licensee, (b) this Agreement has been duly executed and delivered by Licensee and it constitutes
a legal, valid and binding agreement of Licensee enforceable against Licensee in accordance
with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
principles of equity) and (c) the execution and delivery of this Agreement by Licensee and its
performance hereunder and thereunder will not violate any law, rule, or regulation applicable to
Licensee.
21.3
OTHER THAN THE EXPLICIT REPRESENTATIONS AND WARRANTIES
MADE BY LICENSEE TO CITY UNDER THIS AGREEMENT, LICENSEE MAKES NO
REPRESENTATIONS OR WARRANTIES TO THE CITY OR ANY PERSON WITH
RESPECT TO THE SYSTEM (OR THE COMPONENTS THEREOF) AND HEREBY
DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR
UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE
OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT
THAT LICENSEE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY
IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE
THE MINIMUM PERMITTED UNDER SUCH LAW.
SECTION 22. No Waiver.
No delay, failure or waiver of either Party's exercise or partial exercise of any right or remedy
under this License Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise
affect such right or remedy.
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SECTION 23. No Third Party Beneficiaries.
This License Agreement is intended to be for the sole benefit of City and Licensee, and there
shall be no third-party beneficiaries of this License or any provisions hereof. Nothing in this
Agreement shall confer on any person or entity, other than City and Licensee, any rights, benefits
or remedies under or by reason of this License Agreement.
SECTION 24. No Rights to the Communications Network.
The City expressly agrees that, except as expressly set forth in this License Agreement, it does
not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the
Communications Network, throughout the term of this License Agreement. Licensee shall, at all
times, retain title to and ownership of the Communications Network and all future extensions of
the Communications Network, and shall have the right to lease or license the Communications
Network or parts thereof to providers of internet, data, voice, video and other services.
SECTION 25. Construction.
Each of the Parties acknowledge that each Party to this License Agreement has been represented
by counsel in connection with this Agreement. Legal or equitable principles that might require
the construction of this Agreement or any provision hereof against the Party drafting this
Agreement shall not apply in any construction or interpretation of this Agreement and is
expressly waived. In the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.
SECTION 26. Waiver.
No provision of this Agreement may be waived unless such waiver is in writing and signed by
the Party against whom the waiver is to be effective. No failure or delay by a Party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
SECTION 27. Survival.
The rights and obligations of the Parties under Sections 6, 7, 8, 19, 22, 27, and any other
obligations which reasonably should survive expiration or other termination or completion of this
License Agreement shall remain in full force for a period of three (3) years following any such
termination, expiration or completion except that if an action is brought by any Party prior to the
expiration of three (3) years following any termination, expiration or completion of this
Agreement, the provisions of this License Agreement that are the subject of such action shall
survive until any settlement, judgment or order resulting from such action is fully satisfied.
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26
SECTION 28. Severability.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other term or provision of this
Agreement (which other terms and provisions shall remain in full force and effect) or invalidate
or render unenforceable such term or provision in any other jurisdiction. Upon such
determination that any term or other provision is invalid, illegal or unenforceable, the Parties
hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of
the Parties as closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest extent possible.
SECTION 29. Counterparts.
This Agreement may be signed in any number of counterparts, each of which will be deemed an
original, with the same effect as if the signatures were upon the same instrument. A signed copy
of this Agreement delivered by facsimile, e-mail or other means of electronic transmission
(including PDF) shall be deemed to have the same legal effect as delivery of an original signed
copy of this Agreement.
(Signature Page Follows)
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28
CITY:
CITY OF MESA, a municipal corporation
By:
__________________________________
City Engineer
Date:
__________________________________
STATE OF ARIZONA
)
)SS
County of Maricopa
)
The
foregoing
instrument
was
acknowledged
before
me
this
_____
day
of
__________________, 2024, ____________________, City Engineer of CITY OF MESA, a
municipal corporation, on behalf of the corporation.
____________________________________
Notary Public
My Commission Expires:
____________________