HomeMy WebLinkAboutRes 2026-22�Eso�uTioN No. 2ozs-zz
A RES�LUTIDN �F THE MAY�R AN❑ C�l1NCIL OF THE T�WN
�F F�LJIVTAIN HILLS, ARIZ�NA, AMEN�IIVG THE T�WN'S
WlRELESS FACI�ITIES STANDRRD TEF2M5 AND CdNDfT10NS.
WHEAREAS: The Tawn Council adopted Resolution 2�18-18 on February �0, 2�18, adopti�g a
set of documents go�erning the placement and use af Town rights-of-ways for use hy small cell
wireless facilities; and
WHEREAS: Resolutian 2018-18 included a document titled: Wireless �acrlities Standard Terms
and Condrfions; and
WHEREAS: A r�vi�w af the adopted Wireless Facrlities 5fandard Terms arrd Carrdrirans
document found that the submittal requirements contained in Sec. 6.9.� were no# consistent with
the Towns �urrent requiremenfs a revisian was de#ermined to be necessary.
ENACTMENTS:
NOW THEREFORE B� IT RESQLVE❑ BY THE MAY�R AN❑ T�WN COUNCIL OF
FDUNTAIN HI�LS, ARIZONA, as follows:
S�CTlnN 1. The recita€s above are here6y in�orporated as if fully se# forth herein.
SECTlON 2. That certain documen# entitled "Wireless Facrlities Standard Terms and C�i�ditior�s"
attached hereto as �xhibit A is hereby adopted.
PASS�❑ AND AD�PTED by the Mayor and Council of the Fountain Hills, Maricopa County,
Arizona, this �th day of �ctober, 2�2F.
F�R THE TOWN �F FC]LJNTAIN HILLS:
����
Gerry M. edel, Mayar
ATTESTED T�:
�
., � � � . - �j��a 'R �.�e.�[�C
Beve n Ben �r, 7awn Clerk
�n
REVIEWED BY:
_`
Rachael Goo wi , Tawn Manager
APPR�VE S TQ FQRM:
�+
Town Attorney
�:t:[I3��►
WIRELESS FACILITIES STANDARO TERMS AND CONDITIDNS
The Common Council of the Town af Fa�n#ain Hills ["Town") has adopted the
fa4iowing re�iials, terms and �anditivns �cvllectively, the "Terms"} to govern the use of
Town owned rig�t-of-way far th� placement af wireless facifities by a Wireless Pro�ider
as defined by the Arizana Revised Statutes, Section 9-591, et. s�q. These Terms are
effective as af , 2�_, and may be amended only upan approval of the Tawr�
Coun�il.
RECITALS
a. Tawn owns the public street and alley rights-af-way and public utility easements
within the houndaries vf the Town of Fountain H�IIs that are designed for use iay
utility compa�ies for installatian, ❑per�ation and repair of water, el�ctricai and
ather utiiities �Oursuant ta franchise, licenses or ather agreements �etween utility
campanies ar�d Town (collectively the "Right-of-way"},
b. Town is the awner of certain street I#ghts and traffic signais �individually a"Utility
Pole" ar callecti�e�y "Utility Poles"} lo�ated in the Right-of-way (as hereinafter
defined�.
c. Pursuant tv A,R.S. 9-591, et seq., ane vr m�re Wireless Providers may desire tv
establish an�! ❑perate a ne#wark of 5mall Wireless Facilities ta enhanGe wireless
service cvverage within the Tawn.
d. Town anficipates that one or more Wirel�ss Praviders may desire ta instail 5mall
Wireless Facilities ❑n the Town's Utility Poles, install new and replacement lJtility
Poles capable of s�pparting Small Wireless Facilities, and in certain cases and
whe�e p�rmitt�d by the Town's Cade, install vther Small Wirefess Facilities ar
m�nopale towers in the Right-af-way.
e. Wireless Pro�iders ag�ee to comp�y with the Town's Right-af-way use
requireme�ts as pravided in these T�rms. Furthermore, Wireless Prvviders
agree tv fife the appropriate appli�ations and secure the apprapriate licenses an�
p�rmits requir�d by the Town for p�acement vf Wireless Fa�ilities within the
Town's boundaries.
Town LJtility Poles approveci for Small Wireless Facilities s�all reta�n their prirnary
gv�ernrnentai purpose, and use af the Right-of-way by Wireless Praviders shall
nat interfere with t�re Towr�'s use thereaf. Th� primary purpos� vf these Terms is
ta protect the heal#h, safety and welfare ❑f t�e public, and to protect the value ❑f
and p}�ysical infegrity of pu�li��y-awned prvperty and asse#s.
g. 6ecause Town's existing streetfight poles and traffic signal pales are not
Re��iseci ID.G.202(i
designed to safely suppvrt the additiana4 weight and stress ❑f Wireless Facilities,
Wireless 5ervice Pra�iders shall be required ta provide poles designe� to
suppart these facilit{es to re�4ace existing poles priar ta attaching Wireless
F�a�ilifies.
TERMS
❑EFINITI�NS. F�r the purpases of the Terms:
"Antenna" means �ammunicativns equipment that transmits ar receives
efectromagnetic radio frequency signals and that is used in pro�iding
wireless services.
"Application Fee" means the Town's �ncraachment permit applicatian,
re�iew and other fees related t❑ the issuan�e af the permit.
"Base Use Fee" means the amount that the Company shall pay to Tawn
for each year of this license far use of Tawn Right-vf-way and Tawn-
owned Pole, as set ouf in th� current fee schedule.
"Communicatians EquipmenY' means any and all electraniG equipment at
the 5mal� Vllireless Facility locafion that pracesses and transports
infarmation fram th� antennas ia the Wireless Provider's network.
"Competing Users" means entities ihat awn the water pipes, cables and
wir�s, pa�em�nt, and ather facilities whi�h may �e Ivcated within the
Right-of-way. The Competing Us�rs include withaut limitation, the Tawn,
th� 5tat� af Arizana and i#s political su�divisiflns, the publi�, and all
manner of utility companies and o#her existing vr future users ❑f the LJse
Areas.
"En�raachment Permit" means a permit issued pursuant t❑ Chapter 15 of
the Ffluntain Hiils Town Cade allowir�g a a utility pole, monopole, small
wirekess facility ❑r wireless support stru�ture to be placed in the Tvwn's
Right-af-way pursuant to the Wireless Provider's License Agre�ment.
"FCC' means fhe Fed�ral Cammunicativns Cammissivn,
"FCC Rules" means ali applicabie radio frequency emissians laws and
regulations.
"FC� DET Bulletin 55" means the FCC's af�ice ❑f Engineering &
Techna�ogy Builetin 65 that includes ihe FCC Radia Frequen�y Exposure
Guide}ines.
K�� �5�a i a.�.zo2�
"�icense Agreement" means the license in�arparating these T�rms €or
Wireless Praviders tv install and operate Wireless Facilities in the Town's
Right-of-way.
"Monapole" means a wir�l�ss sup�ort structure that is not mare than farty
inches in diameter at the ground leve� and that has all of the wireless
facilities mour�ted vn the pale or �antained inside of the pal�.
"RF" means radio frequency.
"RF Letter" means a letter at�esting ta the Wireless Provider's compliance
with FCC RF exposure guidelines fram the Wireless Provi�er's senivr
internal engineer.
"Right-af-way" as defined fQr wireless sites in A.R.S. §9-591 ��8} means
th� area on, belvw or abvve a pu�l�c roadway, highway, street, sidewalk,
alley, ❑r utility easement. Right-of-way does nvt include a Federal
Interstate Highway, a state highway ar stat� raute under the jurisdiction of
t�e Department of Transportation, a private easement, pro�erty that is
owned iay a spe�ial taxing district, ar a utility easement that does nat
autharize the deploym�nt sough# by the wEreless pr�vider.
"5ite ❑ocum�nts" means the depiction af the use area, schematic plans
and map shawing location ❑f the installation of the Wireless Fac�lity in the
Right-of-way, inc#uding but not limited ta the title r�pvrt of the use area,
vicinity map, site plan, elevatiQns, technicai specifications and the cubic
feet of the non-antenna wireless equipment.
"Small Wireless Facility" as defined in A.R.S. §9-59�(19�, means a
Wireless Facility that mee#s bvth ❑f the following qualifications:
a. Ali antennas are located inside an enclasure of nat more t�an six
��} cuhi� feet in vvlume or, in the �ase of an antenna that has
�x�as�d elements, th� antenna and all ❑f the antenna's �xpased
elements cauld fit within an imaginary enclvsure af not mflre than
six �6} cubic feet ir� volume.
Ala other wireiess equipment associated wEth t�e facility is
cumulativefy not mvre than twenty-eight {�8} cubic �eet ir� volume,
or fifty (5Q} cubic feet in �olume tf the equipment was graund
mounted before the efFective date of this se�tivn. The follawing
#ypes af assv�iated ancillary equipment are not inciuded in the
calculatian of equipment volume pursuant fo this subdivision:
An electric meter.
Re�•iseci I a.�.2�2fi
ii. Concealment �lements.
iii. A telecommuni�ations demarcakian bax.
iv. Grvunding equipment.
�. A power transfer switch.
�i. A cutaff swi#ch.
vii. Vertical �a�le runs for the �onnect�on af power and
❑th�r services.
"Suppl�mental Par�ef Agreemenf" means an agreemen# autharizing the
Wireless Pravider ta use property �utside af the Town's Right-�f-way,
whether awned by the Town ar a third-party.
"Third Party Areas" means the p�rtions af the Right-af-way, such as canal
crossings or other areas that for any reason have �imited Right-�f-way
dedications or that have regulatory use restrictions impos�d by a third
party.
"Vivlation L1se Fee" means the types af fees that the Tawn has avai�able
to rem�dy certain breaches of the License Agreement i�y a Wireless
Provider.
"Wireless Facility" as defined in A.R.S. §9-59� [22}:
a. Means �quipment at a fixed location that enables wireless
communicativns between user equipment and a cvmmunicatians
netwark, in��uding both af the following:
Equipment associated with wireless �ommunicativns.
ii. Radio transceivers, antennas, caaxial or fiber-vptic
cables, regular and ba�kup power supplies and
cvmparable equipment, regardless of teci�nvlvgical
configuratian.
b. Includ�s smafl wireless facilities.
�. Dves nat incl�de the structure ❑r im�ro�ements an, under or within
which the equipment is collacated, wire�ine backhau# facilities,
caaxial ar fiber-optic that is beiween wi�el�ss support stru�tures or
utility p�les or caaxial or fi�er-optic cable that is ❑th�rwise not
immediately adjacent to, or directiy associated wit�, an antenna.
Re��ised l [}.(�.2L1?f�
d. Does nat include Wi-Fi radi❑ equipment described in 5ection g-
50�, Subsectivn I or m�cro�ell equipment d�scribed in Section 9-
5$4, 5ubsection E.
"Wireless Infrastru�ture Pro�id�r" as defined in A,R.S, §9-591(23} means
any person that is autharized to }�ro�ide telecommunications servi�e in this
state and that builds vr installs wireless cflmmunicativns transmissivn
equipment, wireless faci�iti�s, utility poles ar monopales but that is nat a
wireless service provider. Wireless Infrastructure Pravia�er daes nvt
include a special taxing district.
"Wireless Pravider" as defined in A.R.S. §g-591 [24� means a Cahle
�peratar, Wireless Infrastru�ture Prvvider ar Wireless 5er�ic�s Pra�ider.
"Wirekess Pravider's impravements" means all improvements installed by
the Wireless Pravider, including, but nat limited to: a�l elements of the
Wireless Facility, all screening elements, any landscaping plants flr
materials, and any other elements prov�ded by the Wireless Pro�ider in
the approved License Agreement.
"Wireless 5ervi�es" as defined in A.R.S. §9-591 �25} means any s�rvices
that are provided ta the public and tha# use licensed or unlicensed
spectrum, w�ether at a fixed locatian or mobife, using wireless facilities.
"Wireless 5ervices Provider" as defi�ed in A.R.S. §9-591(25} means a
person that pravides wireless services. Wireless 5ervi�es Pro�ider do�s
nat include a special taxing district.
"Wireless 5uppart 5tructure" as defined ir� A.R.S. §9-59� �27j:
a) Means:
A fre�standing structur�, such as a m�nopale.
4i. A tower, either guyed or self-supparting.
iii. A sign vr billbaard.
iv. Any ather existing ar propvsed s�rucfure designed to
support ar capable of supporting small wireless
fa�ilities.
�. Does no# in�fude a ufility pol�.
2. 1J5� AREAS.
Re��ise[l 1 ff.5.?026
Upon appro�al af a License Agreement, Tawn grants ta Wireless Servi�e
Pra�ider the right ta install Wireless Facilities in the Town's Right-af-way upon
issuance of an Encrvachment Permit f�r each Use Area as set farth belaw:
�,1 Limitations. Natwithstanding anything herein t� the con#rary, the Use
Areas include and are limited to or�1y certain areas that Wireless Provider is
permitted tv exclusively use and a�cupy (the "Exclusi�e Ar�a"} and �ertain
ar�as tha# Wireless Pro�ider is permitted ta use an a shared basis {the
"5hared Area"}. The Llse Areas are defined by the Baundary Plan.
2.2 Use Areas Boundary. The LJse Areas is the smallest geometric
shape that in�ludes fhe Exclusive Areas and the 5hared Areas. The Use
Areas exclude other parts of the 5treet Parcel ❑r and a11 other land. Wireless
Pr��ider shall nat ❑��upy or use any ather portion af the 5treet Parcel or
adjvining lands. An apprvved �.icense Agreement or any associated
Encraachment Permit[s} does not allow any use by Wireless Prvvider of land
outside the Street Parcel. If any partion af Wire�ess Provider's work,
impro�ement or equipm�nt is ta be lacated on other land, thert such wark,
improvements and equipment are prohibited unless Wireless Pravider firsf
abtains from the awner af said land {including Town, if applicable} a
Supplemental Parcel Agreement allowing such work, improvements and
equipment.
2,3 Exclusi�e Ar�as. The Ex�lusive Areas ar� limited to the faliowing, if
and as defined by the Boundary Plan:
2.3.1 The land area definea� as °En�fosure" 4n the Boundary
Plan to be used by Wireless Pro�ider sa�ely fo� the enclosure
housing the electranic ground equipment shown ❑n the 5ite Pian
�the "Enclasure"}, 5uch area is confined to the actual area
❑ccupied by th� ext�rior stru�ture and the interiar of the
enclosure. ff the Boundary Plan daes nvt shaw a clearly defined
and carrectly labeled "Enclasure" area, then na enclosure ar�a
is available for Wireless Pra�ider's use and any enclosure far
Wireiess Pravider's use must be Iacated ❑utside fhe 5treet
Parcel and authorized by a 5upplemental Par�el Ag�eement.
2.3.2 The area ❑n the Pole defined as "Antennas" an t�e
goundary Plan tv be used by Wir�less Pro�ider solely for
maunting #he Ant�nnas. 5uch area is confined to fhe Town
approved elevatior�s and lacatians actually accupied by the
Antennas and their supporting �rackets. If #he E3oundary Plan
does nat shaw a clearly d�fined and carrectly labeled "Antennas"
area, t�en n❑ main antennas area is available far Wireless
Provider's use and any main ant�nnas for Wireless Pra�ider's
use must be located autside the 5treet Parcel and authorized by
a Supplemental Parcef Agreemenf.
r����s5�ti ia.�.2oz�
2.4 5har�d Areas. 5hared Areas are limited to #he following areas, if and
as defined by the Baundary Plan:
2.4.1 A motor ��hicle Parking space �the "Parking Space"} at
the "Parking Space" locatian des�ribed an the Boundary Plan tv
be used by Wire�ess Pro�ider sale�y for parking a servic� vehi�le
to service the Communications Equipment and far ingress ar�d
egress ta that Par�Cing Space.
2.�4.� No temporary construction area is provided �y these
T�rms, an appro��d License Agreement or Encraachment
Permit. Wireless Provider must o�tain fram Tvwn a separate
written dacument giving Wireless Pravider perrnissiar� to wark in
the Right-of-way, as described elsewhere herein.
2.4.3 Ar� underground cable raute �ttte "Signal Route"j
fa�eled as #he "5ignal Raute" des�ribed vn the Boundary Plan
from #he Enclasure to #he Ant�nna to be used by Wirel�ss
Provider solely for undergraund radio frequency lines �etween
the Enclosure and the Antenna. Natwithstanding the preceding
sentence, the portian of the 5ignal Raute upon the Pole shall not
be undergraund but shall be within the Pvle. If the Boundary Plan
daes nat shaw a clearly defined and carrectly labeled "5ignal
Raute" area, then na signal route area is available for Wireless
Provider's use and any signal raute for Wir�less Pro�ider's use
must be separately authorized by Tawn.
2.5 Pvwer and Telephflne 5ervi�e. N�thing herein grants permissiQn for
Wireless Provider ta use any porti�n af pawer, telephvne vr ❑ther service
routes, if any. Wireless Prv�ider a�knawledges tha# use of th� public street
R�ght-af-way or public utility easements fvr these purpvses, if any, is
go�erned by Town's normal Right-of-way rules and palicies, and by the
franchise agreements b�tw�en the Town and the electrical and telephone
service prQviders.
2.6 Rights in Adjacent Land. Wireless Pravider's rights are expressly
limited t❑ the real praperty defined as the "Use Areas" an issued
Encr�ach�nent Permit. Without lim�tatian, in the e�ent any public Right-of-
way ar ather pu�Olic vr priva#e prvperty at vr adjacent to the LJse Areas is
awned, d�dicate�, ahandaned vr otherwise acquired, us�d, improved or
disposed of by Town, such praperty shall not accrue ta Wireless Provider but
shall be the Tvwn's prvperty and nat subject to the Use Areas.
2.7 Variatian in Area. In the event the LJse Areas consist of more or less
than any stated area, Wireless Pravider's obligatians hereunder shall nat he
increased or diminished.
l�c��iscd lU.fi.2U?6
2.8 Cvndition of Title. Wireless Provid�r shal� not have power to amend,
madify, terminate ar oth�rwise change the Site �ocuments ar create new
5it� ❑a�uments.
2.8.1 Tawn does not warrant its own vr any ather person's
title tv ar rights ta use the Use Areas or any other property.
2.8.2 Wirefess Pr��ider shall pay, indemnify, defend and
hald harmless Tawn and its agents and representatives ❑f, fram
and against any and afl claims, demands, damages, expenses,
interest ar penalties of any kind ar nature whatsoever, including
attorneys', arbitrators' and ex�erts' fees and cvurt casts that
arise fram or relate to Wireless Provider's non-compliance wi#h
the Site Docum�nts.
2.9 Conditian of Use Areas. The Use Areas are �eing made available in
an "as is" condition withaut any express or implied warranties of any kind,
includir�g with�ut limitatian any warranties or representations as to their
conditivn vr fitness far any use.
2.1� N� Real Praperty lnterest. Notwithstanding any pro�ision hereaf ta
the cvntrary, ar�d notwithstanding any negotiation, corresp�ndence, course
of performance or dealing, or ather statements vr acts by or between the
parties, Wireless Pravider's rights h�rein are limited ta use and occupation
af the LJse Areas far the Permitted Uses.
2.� 1 Limi#ed Righ#s in L1se Areas. Wireiess Pra�ider's rights in the Use
Areas are limited to the SpECIf�C rights ex�ressly granted in WIfE`IE`55
Provider's appraved License Agreemer�t.
2.12 R�s�rved Right and Competing lJsers and Activities.
N�iwithstanding anything herein to the cantrary, Town specifically reserves
to itself and excludes from ar�y Encroachment Permit a non-exclusi�e
delegabfe right (the "Reserved Right"} ❑ver #he entire Use Areas for alk
manner of real and personal improvements and far str�ets, sid�walks, trails,
landscaping, utilities and e�ery other land use ❑f e�ery description. Withaut
limitation:
2.12.� Competing Llsers. Wireless Pravider ac�epts the risk
that Town and ❑thers �the "C�mpeting llsers"} may nvw vr in the
fufure install their facilities in the �se A�eas in locations that
make parts af the Right-vf-way unavailable far Wireless
Pro�ider's use.
2.12.2 Cvmp�ting AGti�ities. Wir�l�ss Pro�ider accepts the
risk that there may now or in the future exist up�n the Llse Areas
Re�•iseti 10.G.202G
all manner af work and im�Orv�emer�ts upvn the Use Areas [the
"Campeting Acti�ifies"}. The Campeting Acti�ities include
without limitatian any and all laying canstruction, erection,
installation, use, ❑perat'tvn, repair, re�alacement, remo�al,
relaGation, raising, lowering, widening, realigning or ather
dealing with any or all of the fal[awing, whether abave, upon or
below the surface of the LJse Areas and wheth�r occasioned by
existing ar praposed uses of the Righ#-af-way or existing or
pr�pased uses ❑f adj4ining ar nearby land:
2.12.2.1 All manner af streets, alleys, 51Ci@W�IICS,
trails, ways, traffic control devices, subways,
tunnels, irains and gates of every description, and
a11 manner ❑f vther #ransportativn fa�ilities and their
appurtenances.
2.12.2.2 All manner of pipes, wires, cables,
conduits, sewers, pumps, val�es, switches,
conduc#vrs, �onnectors, poles, supparts, access
points and guy wsres ❑f every descriptian, and al!
manner vf ❑ther u#iiity fa�ilities and their
appurtenances.
2.12.2.3 All manner a# drains, bridges, viadu�ts,
overpasses, underpasses, culverts, markir�gs,
balconies, porches, overhangs and other
en�rva�hments af every des�ription and all manner
of oth�r faci�ities and th�ir appurtenances.
2. � 2.2.4 All other uses ❑f the Right-of-way that
T�wn may permi# from time ta time.
2.12.3 Town's Rights Cumulative. All af Town's Reserved
Rights under variaus prvvisians af the License Agreement, these
Terms and Encroachment P�rmits shall be cumulative ta each
other.
2.�2.4 Use Priarities. These Terms da not grant to Wireless
Pravider ar esta�Olish far Wireless PrvvEder any ex�lusi�e rights
or priarity in fa�ar of Wireless Provider ta use the Use Areas.
Wireless Pro�ider shail not obstruct vr intertere with vr prevent
any Cam�et�ng User frvm using #he L1se Areas.
2.1 �.5 Regulation. Tvwn shall hav� full autharity t❑ regulate
us� of the Use Areas and to resol�e competing demands and
preferences re�arding use of the Use Areas and tv require
Wireless Pro�ider to cao�Oerate and participate in impl�menting
Revised 1(l.fi.2U?6
such resalutions. Withvut IFmitation, Town may take any ar a41 of
the fallawing into a��vunt in regulating use of the LJse Areas:
�.12.5.1 A11 timing, public, v�oerativnal, financia!
and a#f�er fact�rs affecting existing and future
prvposals, r�eeds and plans for Competing Activities.
2. � 2.5.2 All other factars Town may �ansider
relevant, whether ar nat mentioned in the License
Agreement, these Terms and Encroachment
Permit(sj.
2.12.5.3 Differing regulatory regimes ar laws
applicable #o claim�d rights, public benefits,
community needs and all ather factors relating t❑
Campeting LJsers ar�d Cvmpeting A�tivities.
2.12.6 Communications Equiprrsent Relocation. Upon one
hundred eighty (� 80} days' notice fram Town, Wireless Pro�ider
shall temporarily or permanently re�acate or fltherwise modify the
Cammunicatians Equipment R�locatian (the "Relocatian Wark"j
as follows:
2.1 �.�.1 Wireless Prvvider s#�all perform the
Relocation Work at its own expense when required
hy Tawn's town manager or designee.
2.12.6.� The Re�v�ation Work in�ludes all work
determined by Tvwn to be necessary ta
accommoafate C�mpeting Acti�ities, including
withaut limitatian tempararily or permanentfy
remo�ing, protecting, suppvrting, disGonne�ting or
relvcating any partian af the Cammunicati�ns
Eq�ipment.
2.12.6.3 Tawn may perfarm any part ❑f the
Relacatian Work that has nat been performed within
the allvtted time. Wirefess Prvvider shall reimburse
Town for its actual casts in perfiarming any
Relocation Work. Town has n❑ ❑bligation to move
Wireless Pravider's, Town's or athers' facilities.
�.12.�.4 Town and not Wireless Pravioler shall be
entitled to use any vf Wireless Pravider's facifities
that are abandaned �n �lace or that are not relocated
❑n Tvwn's request.
ite� ised l a.G.zC12G
2.�2.6.5 All Relocatian Wark shall be subject to
and comply with all other �ravisivns of the License
Agreement.
2.12.7 Disrupfian by Campeting Us�rs. Neither Town nor any
agent, cantractor or employee of Town s�ali be liable to Wireless
Pravider, its ��stamers or third parties for any service disruption
❑r for any oti��r harm caused them or the Communicatians
Equipment due to Competing LJsers ar Competing Activities.
2. ��.8 Emergency Disruption hy Tawn. Tawn may remove,
alter, tear vuf, re�acate vr damage portians af the
Communications Equipm�nt in the case ❑f fire, disaster, ❑r other
emergencies if Tawn's town manager ar designee deems such
activn tv be reasona�ly necessary under the �ircumstances. in
such event, neither Town nor any agent, contractar or emplayee
vf Town shall he liable ta Wire4ess Provider ❑r its �ustamers ar
third parties for any harm so caused to them or the
Communicatians Equipment. When practicaa, Tawn shall consult
wi#h Wireless Provider in advance ta assess the necessity of
such actions ar�d to minimize to the extent practical under the
circumstan�es damage to and disruption af aperatian of the
Communicatians Equipment. In any event, Town shall inform
Wireless Pro�ider after such actians. Wireless Provider's w�rk
ta r�pair ❑r restare the �ammunicatia�s Equipment shall be
Reloca#ian Work.
2.12.3 Public Safety. If the Communscations Equipment or
any vther Wireless Prvvider equipment, imprv�ements ar
acfivities present any immediate hazard or impediment to the
p�biic, ta Tawn, ta Town's equipment or facilities, to other
improvements ❑r activities within ❑r withaut the LJse Areas, ar
Town's abiiity to safely and conveniently operate the Rig�t-of-
way or perform Tawn's utility, public safety or other pubfi� health,
safefy and welfare functions, then Wireless Pra�ider shall
immedia#ely remedy the hazard, comply wi#h Town's requests to
secure the Street Parcel, and otherwise cvvperate with Tflwn at
na expense tv Tvwn fv remvve any such hazard ar impediment.
Wireless Pro�ider's wo�k crews shall repart the Use Areas wi#hin
faur {4) hvurs of any request by Town under this paragraph �the
"R� 5afety Paragraph"},
2.13 Third Party Permissian. There may �e pvrtians of #h� Rigk�t-vf-way
ar vther areas that far any reason have limited Right-of-way dedicatians or
that have regulatary use restrictians imposed by a third party ("Third Party"}.
Areas suhject to such restrictions or regulations by Third Parties are r�ferred
ta as "Third Party Areas° and communications equipment may nat be buiit
Ftt� is�d io.r�.2a2�
withaut permission from the Third Party ❑r Third Parti�s that ha�e property
rights or regulatary authority a�er a specific Third Party Area. Wireless
Pra�ider's right to use any L1se Areas sha11 be suspended, but nvt its
abligatians with respect there#o, during any period that a Third Par#y
Permissian is not in effect.
3. ❑URAT'IfJN; EXTENSI�NS.
3.1 Term. Th� ariginal term ❑f each License Agreement shalk be far a
period of ten (1 a} years �ommencing vn the effective date stated therein
("lnitial Term"]. The Term af any associated En�roachment Permits issued
to Wireless Pravider shall be the same as Wirefess Pro�ider's appro�ed
License Agreement.
3.2 Extensians. The term af the License Agr��m�nt may be extended
far on� (� } additional ten {10} year period ("Exter�sion Term°} subje�t to
cansent by Town and Wireless Pravider, w�ich either may withhold in its sole
and absalute discretian. Both Tawn and Wsreless Pra�ider s�all be deemed
ta have elected to extend unless Town �r Wireless Pro�ider, respecti�e�y,
gives nvtice to the cvntrary ta the other at least ninety {9�} days prior ta the
end af the initial Term.
3.3 Holding �ver. in any circumstance whereby Wirel�ss Pravider wou�d
remain in possessivn or o�cupancy vf the Use Areas after the expiratian of
fhis License Agreement (as exte�ded, if applicable�, such holding over shall
no# be deemed t❑ vpera#e as a renewal vr extensivn ❑f the License
Agreement or Encraa�hm�nt Permits, �ut shall anfy create a use right fram
mvnth ta month that may be terminated at any time by Town upan thirty (34}
days' notice ta Wireless Provider, or by Wireless Provid�r upon sixty ���}
days' n�tice ta Town.
3.4 Town's Right ta Cancel. Notwithstanding anythir�g cantained herein
tfl the contrary, Tawn shall have the unconditiQna€ right, with or withaut
�ause, ta terminate any Encrvachment Permit far reasons including iout not
limited to street widening, Right-of-way abandonment, or develapmenf that
may impact the locatian af the site, upon one hundred eighty (18Q� days'
prior written nvtice given at any time after the first one hundred eighty �18a}
days.
3.5 Wireless Pravider's Righf ta Cancel. Wireless Pravider shail ha�e
the unilaterai right to terminate any License Agreement withaut �ause upon
thiKy �30} days' priar written nvtice. Wireless Pro�ider has nv right tv
terminate any time after an event ❑f default hy Wireless Pra�ider has
occurred �flr an event has occurred t�at wauld become a default a�ter
passage of time vr giving ❑f noti�e},
Re� ised I C1.62f126
3.6 Removal and Res#vration Dbligatians. Upon expiration or
terminati�n af any Li�ens� Agreement or Encroachment Permit, ❑r any
abandonmenf of any Wireless Faciiities, Wireless Provider sha11 remave its
Wireless Facilities frvm the Rigf�t-af-way, at is sole �vst and �x�ense as
prQvided in Sectian � 2.4 h�reto.
4. WIRELE55 PRC)V1D�R'S PAYME;R'"["5
Wireless Pravider shall make payments ta Town as fvllows:
4.1 LJse Fee Items. Wireless Prvvider shall pay to T�wn �ach af the
foflawing se�arate and cumulative amaunts (collectively the "LJse Fees"}:
4.1.� An annual amount �the "Base Use Fee"},
4.1.2 An amount (the "Appli�ativn Fee"� based an Wireless
Provider's application and permif r��iew and other costs as set
aut befow.
4.�.3 An amaunt [the "Vialatian Llse Fee"} hased �n certain
breaches by Wireless Provider ❑f the Li�ense Agreement as set
❑�t belvw.
4.1.�4 All oth�r amounts required by th� License Agreement.
4.2 gase Use F�e Amaunt. The am�unt of Base Use Fee Wireless
Provider shall pay to Town for ea�h year af this Agreement shall be the total
vf all appli�able fee lin� items far wireless communicatians facilities
[including withaut limitatian "antenna base fee" and "gr�und equipment fee",
as appli�abEe} as set auf in the then current fee schedule as it may be
am�nded from time to time by Town's t�wn councif.
4.3 Appli�ation Fee Amaunt. The amount of fh� Applicafian Fee for
5mall Wireless Facilities under A.R.S. � 9-592 shall be 5even Hundred Fifty
Dallars t$75�.a�} and the Applicativn Fee far wireless sites under A.R.S. §
9-594 shall be �ne Thausand Dallars [$1 Qd�.00}. Nothing herein shall
prev�nt the Town fram charging any �ther applicable fees ordinarily ci�arged
hy the Tawn fvr review vf plans, issuance of permits, ar�d inspection af
W3reless Pravider'S wark upan fh� Use Areas {including, without limitatior�,
encraachment permits, trafFic control fees, technalogy fees} as set out in the
then �urreni fee schedule as it may be amended frvm time tv time by Town's
town cauncil.
4.4 lJse Fees Cumulativ�. All items af Use Fees shall be cumulative and
separate from each other.
Re��ised f 0.b.2026
4.5 Use Fee Schedule. Pravider shall pay all Llse Fees at the times and
in the amounts specified �y Tawn's nvrmal prv�esses. Town's failure ta
callect any item of the lJse Fees does nat waive Wir�less Pro�ider's liabifity
for suc� Use Fee, nor shall such failure be deemed a waiver �y the Tawn to
collect such L1se Fee th�reafter.
4.6 Letter of Credit. The Ini#ia4 Letter of Credit amaunt shal� be bas�d
upon the Wireless Pro�ider's gaod faith projectian af the number af sites ta
be canstructed withi� the Town ❑f Fountain Nills during #he current �alendar
year. The Initial Letter vf Credit shall be re�eived by the Town before any
cor�structiar� and encraachment permits are issued as follaws:
4.E.� The amaunt of the le#ter af credit shall be as follaws:
Thirty Thousand Dollars ($30,OOfl.OD} for up tv ten (1 �} wireiess
sites; 5ixty Thousand D�Ilars ($�O,Q�D} farel�v�n (11 } to twenty
[2fl} wireless sites; One Hur�dred Five Th4usand Dvllars
[$1 D5,0�0� fvr twenty one �21 } to thirty five �35} wireless sites;
�ne Hundred Eighty T�ousand Dvllars �$18�,�0�} for thirty six
[35} to sixty (6fl} wireless sites; Three Hundred Thvusand
❑allars {$3�O,OQO} for sixty one (61 } tv on� hundred �1 D�}
WIfEI25S 51t25; Four Hundred Fifty Th�usand ❑ollars ($45a,QDOj
for ane hundred one �1 Q1 } to one hundred fifty (� 5Q} wir�l�ss
sites; Six Hundred Seventy Five Thousand ❑ollars [$675,OD�}
for one h�ndred fifty ane {151 }#a two hundred twenty five ��25}
wireless sites; ❑ne Milfian Fifty Thousand Dollars ($'1,�50,�OQ}
for twv hundred twenty six [226} to three hundred fifty (35a}
wireless sites; ❑ne Million F�ive Hundred Thvusand ❑aliars
($1,500,�00} far three hundred #i{ty ane {351} to five hundred
�5a�} wireless sites; Tw❑ Million Twv Hundred Fifty Thausand
Dallars �$2,25a,���} for five hundred one �501 ] to se�en
hur�dred fifty [750} wireless sites; and Three Million Dollars
�$3,afla,a�Dy far seven hundred fifty one [751 } to one ti�flusand
(1,���} wireless sites. If #he number af Wireless Provider's
wireless sites is more than one thausand [1,OaD), the Three
Million Dollar ($3,�aa,aD�} letter ❑f credit shall remain in effect
and the letter of credit �ar the wireless sites in �xcess of an�
thausand sites shal� be caiculated using the schedule pravided
in this suhse�tion.
�4.6,2 The Tvwn wi11 determine at least ance annually if the
number of Wireless Pro�ider's wireless sites thaf ar� licensed
require that the letter af cre�it be upgraded to a hig�er amflunt.
If Towr� requires a new letter of credit, i# shall pravide fvrmal
natic� in writing to th� Wireless Pro�id�r. The Wir�l�ss Pro�ider
must proviafe the new �etter ❑f credit within 45 �ays of receiving
written nvtice.
x����5�{i �a.�.zo2�
4.6.3 The letter o� credit is a security depasit for Wireless
Pravider's perfarmance af all af its obligations under thes�
Terms withir� the Tvwn of Fountain Hills.
4.6.4 The lett�r of �redit shall meet the requirements listed
an Exhibit "B" attached hereto.
4.6.5 Wireless Pro�ider shall provide and maintain the ietter
of �redit during the entire ferm af th� License Agreemen# as
fallaws:
4.5.5.1 Wireless Provider shall �ause the original
letter af �redit tv he deli�ered ta Tawn's
❑evelapment 5ervices Directar.
4.6.5.2 Wireless P�-ovider shall pay all costs
associated with the fetter of credit, regardless of the
reasan or manner su�h costs are required.
4.5.5.3 Within ten (1 Q} �usiness days after Town
gi�es Wireless Provider notice that Tawn has drawn
an the letter of credit, Wir�less Provider shall cause
the letter af credit ta be replenished t❑ its priar
amvunt.
4.5.6 Tvwn may draw vn the letter vf cr�dit upon any Ev�nt
of ❑efault, and in the fallawing circumsfances whefher �r nat
they are an Event af Default:
4.6.E.� Wireless Pravider faiis to cause the letter
vf �redit tv f�e renew�d, �xtended, increased in
amount ar ❑therwise maintained as required by
these Terms.
4.5.6.2 Wireless Provider fails to make monetary
payments as required by these Terms.
4.6.6.3 The issuer of the fetter flf �redit fails fo
immediately hanor a draft vn the letter af credit ar
atherwise repudiat�s or fails to honor the letter af
cr�dit.
4.6.7 Tvwn shall also have such additional rights regarding
t�e letter af credit as may be provided elsewhere in the License
Agreement.
Re��ised i4.C.202G
4.7 Late Fees. Any fee payable under this Agreement is deemed paid
only when Town ac#ually receives govd �ash payment. Shauld any f�� not
�e paid an or before the date due, a late f�e shall be added ta the amount
due in the amount of the grea#er of ten percent �1 �°Ia} vf the amount due, or
One Hundred �ollars ($�fla.a0}. Furthermare, any fee that is not tim�ly paid
s�all accrue simple interest at the rate of one and one-half percent (1 '/2 °Io]
per m�nth from the date the amount first came due until paid, Wireless
Provider expressly agrees that the foregaing repr�s�nt �air and reasanable
estimates by Tawn and Wireless Pravider of Tawn's costs (such as
accounting, administrative, legal and pra�essing casts, etc.} in the ��ent of
a delay in payment flf the fee. Tawn shall ha�� the righ# ta allocate payments
re�ei�ed fram Wir�less Provid�r among Wireless Provider's abligatians.
4.8 Fee Amaunts Cumulative. Afl amounts payable by Wireless Provider
hereunder or under any tax, assessment or other existing ar future
ordinance, law ar other canfract ar at�ligatians to the Tawn of Fauntain Hills
or the State of Arizona shall be cumulative and payable in additivn tv each
ather payment required hereunder, and such am�unts sha11 not be credited
toward, substituted for, or setoff against ea�h ❑ther in any manner.
S. USE RESTF�ICTIONS.
Wireless Provider's use and occupation vf the LJse Areas shall in all respe�ts
�onform to all and each af the following cumulative provisions:
5.1 Permitt�d Llses. Wireless Pro�ider shal! use the �se Areas soleiy
for the Permifted Uses and shal� condu�t nv other acti�ity at or fram the Use
Ar�as without Tawn's prior written consent, which may t�e withheld in Tawn's
s�le and absolufe discretion.
5.2 Enclosure Llse. Wireless Pr�vider shall use the Enclosure salely for
iocating utility ca�inets and housing the CammuniGativns Equipment used
for the Antennas.
5.3 Small Wireless Facility. Wireless Provider may install a Smafl
Wireless Facility, as d�fined in A.R.S. 9-591 �19}, to be limited to:
5.3.� All an#ennas, including the antenna's exposed
elements, are facafed inside an enclosure of not mare than six
[6} �ubic feet in valume, and
5.3.2 All ather wireless equipm�nt associat�d with the faGifity
is cumu�ati�ely not mare than twenty-eight [28} cubic fee# in
v�lume.
Revise�i 1D.6.2D26
5.3.3. The following ancillary equipment is not included in the
equipment volume: electri� meter, cancealment elements,
telecom demarcation bax, grounding equipment, pawer transfer
switch, cutoff switch, and verticai cable runs.
5.4 Communicatians �peratians Restri�tion. Pursuant to A.R.S. g-
592(F)t3}, Wireless Pr�vider shall nat instail, operate, ar all�w the use ❑f
equipment, methodology ar tecY�nvlogy that interferes ar is IikeEy to int�rfere
with the optimum effective use vr operation af Town's �xisting or future fire,
emerge�cy ar vther cvmmunications equipment, methodology ortechnvlvgy
{i.e., �oic� or ather data carrying, receiving vr #ransmitting equipment}. If
such interFerence shauld occur, Wireless Provider shall immediately
dis�ontinue using #he equipment, methodalogy or technolagy that causes the
interference unfil Wireless Provider takes ��rrective measures ta alter the
Communicativns Equipment #o eliminate such interferen�e. Any su�h
corrective measur�s shall be made at nv cost t❑ Town. Wireless Prv�ider
shall gi�e to Tawn advance written nati�e containing a list af the radi�
frequencies Wireless Provider is using at the LJse Areas and shall give
adva��� written natice ta Town of any change in frequencies.
5.5 �th�r Equipment. Wireless Prvvider shall nvt disturb ❑r a#herwise
interfere with any ❑ther antennas or other equipment Tawn ❑r an authorized
thErd party may have already installed or may yet install upan the 5treet
Parcel.
5.6 Signs. All signage is prohibited except in compliance with the
fallawing r�c�uirements:
5.6.1 Wireless Provider shali install and thereaf�er maintain
the follawing signs and ather markings as reasonably
determined by Town from time to time:
5.6. �.1 AI� signs and markings required far safe
use of the Llse Areas by Town, Wireless PrQvider
and other persons wh❑ may be at the Use Areas at
any tim� far any reason.
5.6.1.2 Any signage Tawn may request directing
parking, deliveries and vther vehicles and ather
users tv carnply with this License Agreement.
5.6.1.3 Warning signs listing only Wireless
Prvvider's name, permanent business address,
telephone number, emergency telephvne number,
and any infvrmatian r�quir�d by law.
Re� ised 1 Q.f�.2U2(�
5,6,� Ail signage not expressly allowed by these Terms is
prahibited.
5.6.3 The lacatian, size, cantent and style vf ea�h sign shall
be subject ta the pr�visians af the applicable sign ❑rdinance and
shall comply with Town's sign pr�grams as the same may
change from time to time. Wire�ess Provider shall u�adate signs,
at Wireless Provider's sole �os# and expense, as requi�ed ta
comply with changes in the applicable sign vrdinance and
T�wn's sign pragrams.
5.6.4 Wireless Provider shall design, make, instali and
maintain all signage in a firsf class, professionaf manner withaut
broken panels, faded or �eeling paint ar other damage. Tow�
reserves the right to re�uire Wireless Prvvider to instal�, at
Wireless Pra�ide�-'S CDSt, new or updated signage if the existing
signage is not compliant with this Agreement.
5.6.5 Wireless Provider shall b�ar all casts pertaining to the
ere�tion, installatian, operation, maintenance, replacement and
remo�al af all signs inc�uding, but not limited to, the appli�atian
far and obtaining of any required sign, �uilding or ather permits
regardiess ❑f the reason for any such activity, even if such
a�tivity is required by Town pursuant ta t�ese Terms.
5.5.5 The requirements af this paragraph appiy to all signs,
designs, monuments, decals, graphics, pasters, banners,
markings, and other manner af signage.
5.7 Wirefess Pravider's Lighting. Ex�ept for security iighting f�mporarily
aperated with Tvwn's appraval frvm time to time, Wireless Provider shall not
a�erate autdaor lights at t�e Llse Areas.
5.8 Noise. Except during canstruc#ian permitted under the L.icense
Agreement and f4r burglar alarms and vther safety devices, ❑utdaor foud
speakers, sirens ar ❑ther devices far making noise are prohibited. All
equipm�nt shall be operated so that saund coming therefram is campl'tant
with Section 1�-1-7 af the Tawn Cade and daes not ex�eed the ambient
noise level at the baundary of the 5tr�et Parcel. The preceding sentence
daes not apply to use of normal, praperly mainta�ned canstruct#on eq�ipment
used as permi#ted foy the approved License Agreement or permit issued to
Wireless Provider by the Town, ta infrequent use af equipment that is as
guiet ar quieter than a typical well maintained gasofine pvwered passenger
autamobile, to use ❑f an air conditianing unit that is �a noisi�r #han a typical
we11 maintained residential air c�nditioning �nit.
x�� �s��i in.r.zoz�
5.9 Limited A��ess. It is Wireless Provider's and nat Tawn's
respvnsibility to k��p unauthorized persans from accessing the
Cammunications E�uipment and the Exclusi�e Areas.
5.10 Standards 4f Service. Wireless Pravider shal! op�rafe the Use Areas
in a first-�lass manner, and shal! keep the lJse Areas attracti�ely maintained,
❑rderiy, �I�an, neat and tidy at all times. Wireless Provider shall nat allow
any person ar persans in or abvut the LJse Areas related to Wireless
Prvvider's ❑perations who shall fail t❑ be clean, courteaus, efficient and neat
in app�arance.
5.11 Wireless Pravider's Agent. Wireless Provider shall at ail times r�tain
an call available ta Town by telephvne an ac#ive, qualifi�d, campetent and
experienced person #o supervise all activiti�s u�an the Use Areas and
ap�ration of the Cammunications Equi�ment. Wireless Prvvider's ager�t
shall be autharized ta represent and act for Wir�less Pravider in matters
pertaining to all emergencies and the day-ta-ciay aperation af the Right-af-
way and ali ather matters affecting a Li�ense Agreement ar EnGroachment
Permit. Wirel�ss Pro�ider shall also pro�ide natice to Town of the name,
street address, elec#ranic mail address, and regular and afterhvurs
telephone number of a persan ta handle Wireless Provider`s affairs and
emergencies at #he Right-�f-way. Any change shal! be given in writing to
Tawn's ❑evelvpment 5ervi�es Director in the manner stat�d for not�ces
required herein.
5.12 Caordination
ather Right-vf-way
�vordinate and pFan
by these Terms.
Me�tings. Wireless Pro�ider shall meet wifh Town and
users from time ta time as requested by Town to
construcfian an th� Llse Areas and all matiers affected
5.13 Taxic 5ubstances. Wireless Prvvider's a�tiviti�s upon or a�aut t�e
LJse Areas sha11 be subject tv the fvllvwing regarding any hazardaus or toxic
substances, waste or materials or any substance now or hereafter subject to
regulatian under the Comprehensive Environmental R�sponse
Com�ensativn and Liability A�t, 42 U.S.C. §§ 960� , et seq., the Arizana
Hazardvus Waste Manag�ment A�t, A.R.S. §§ 49-9D1, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 69�1, et seq., the
TQxi� 5ubstances Cantrol Act, 15 1J.5.C. §§ 2501, et seq., or any other
fecleral, state, county, or local law pertaining to hazardQus suk�stan�es,
waste ❑r tvxic suhstar�ces and their reporting requirements �COI�ECtIVEI]I
"TOxtC SUbStaC]CES��]:
5.13.� Wireless Prvvider understands fh� hazards pr�sented
to persans, property and the environm�nt by dealing with Taxic
Su�stances. Tawn has made n❑ warranties as to whether the
�se Areas �antain actual ❑r presumed asbestas or oth�r Toxic
Substanc�s.
Re�ised lU.b.2U26
5.13.2 Within twenty-four {�4} hours after disco�ery by
Wireless Pro�ider of any Taxic 5ubstances, W�reless Provider
shall report such Toxic Substances ta T4wn in writing. Within
faurteen {14j days thereafter, Wireless Pravider shall pro�ide
Tawn with a written repart of the nature and extent �f such toxic
substances faund by Wireless Provider.
5.13.3 �isturbance oi Toxic 5ubstances. Prior ta ur�dertaking
any constructian �r other signifi�ant wvrk, Wireless Pravider
shall cause the Use Areas to be inspected to pre�ent
disturbance af poiential asbestos ❑r ❑ther Taxi� Substances.
Prior ta any wark of any des�riptivn that bears a material risk vf
disturkaing potential ��E]�5t05 ❑r other T�xic 5u�stanc�s,
Wireless Pro�ider shall cause the contractor or vther persan
performing such wark ta gi�� to Tawn written notice by the
method described in these Terms to the effect that the person
will inspect for Taxtc 5ubstan�es, wiil not disturb Tvxic
Substances, and will indemnify, defend and hald Tawn harmless
against any disturbance in Toxic 5ubstan�es in the course af the
contractor's ar vther persan's work. Wirefess Pro�i�er shall
cause any an-site ar �ff-site storage, inspecfian, treatment,
transpvrtatian, disposal, handling, or at�er work in�ol�ing Toxic
Substances by Wireiess Provider in connection wit� the Use
Areas ta be perf�rmed by persans, equipment, fa�ilifies and
oth�r resources wha are at all #imes properly and lawfully
trained, au�h�rized, license�, permifted and otherwise qualified
tv perform such services. Wireless Provid�r shall pramptly
deli�er to Tawn copies ❑f al! reparts or ather infarmation
regarding Taxic Substances.
5.14 Required �peration. During the entire term of t�e �icense
Agr�ement and asso�iated En��oachment Permit�s}, and any renewals vr
extensions thereof, Wireless Pro�ider shall acti�ely and continuously
aperate the Communications Equipment twenty-four {24} hours per day,
sev�n �7} days per week, far the Permitted Uses. Nafwithstanding anything
contained in this {�aragraph to the contrary, the ❑peration requirements ❑f
this paragraph shall be effective commencing an #he completion of the
Praject and shall Gonfinu� through the date the License Agre�men#
terminates or expires for any reason. In the event of relacation of the
Communi�atians Equipment or damage ta the Use Areas severe enough
that the Communi�ations Eguipme�t cannot reasona�ly be operated during
repairs, the operatian requirements ❑f this paragraph shall be suspended
during the time specified by these Terms for accompEishing repair af such
damage ar relocation of fhe Cammuni�ations Equipment. Wireiess Pra�id�r
may fempararily cease operating the Cammunications Equipment for shorf
perivds necessary to test, repair, service or upgrade the Cvmmunications
Re�ised Ifl.C,Zi]26
Equipment. Nv#withstanding the foregoing to the cantrary, any suspension
in operations, whether or not authorized pursuant to the License Agreement,
shall nol serve to extend any Term of the License Agreement.
5.15 Actians by �thers. Wireless Pro�id�r shall be responsiE�le to ensure
campsian�e with the License Agreement by al! persons using the Right-of-
way through �r under Wireless Prvvider.
6, 1�4�1RE:I.I�SS I'HUVIl�1�:K'� IMPRDVEMENTS.
RII af Wirefess Pravider`s imprvvements and other �anstruGtian wark whefher or
nvt s�e�'tfi�ally described herein upon ar r�lafed to the LJse Areas {coilecti�efy
"Wireless Pro�ider's Improve�nents"j shall comply with the fotlowing:
5.1 Wireless Pravider's Impra�ements. Wireless Pravider's
Impravements in�lude withaut limitatian, a!I madifiGation, replacement,
repairs, installatian, canstru�tion, grading, structural, �tility, lighting,
pl�mbing, sewer or other alteratians, parking ❑r traffic afteratiflns, remova�,
demolition or o#her cumulati�ely significant construction or similar wark of
any description and all instaliation or alteration af the Communicatior�s
Equipment.
6.2 Zanir�g and 5imilar Appro�al Process. The zoning processes,
building permit processes, Right-o�-way management palicies and similar
regulatary requirements that apply to Wireless Pra�ider's Impravements are
campletely separate from the plans approvaG processes set forth in these
Terms. Wireless Pravider's satisfaction Qf any requirement set forth these
Terms does not substitute for �omplianc� with any regulatory requir�ment.
Wireless Pro�ide�'s satisfaction of any regulatory requirement does nat
substitute for �ampliance witM ar�y requirem�nt af these Terms. Wireless
Prvvider must make al� submittals and communi�atians regarding the
requirements of these Terms thraugh Tvwn's Develapment 5ervices
Dire�tar and not ti�rvugh ather staff. Wir�l�ss Pra�ider shall b� respansible
to dir�c#ly abtain all necessary perm�ts and approvals fr�m any and all
ga�ernmental or other entities having standing ar jurisdiction aver the L1se
Areas. Wireless Prvvider �aears sole r�sponsibility to comply with all
stipulations and canditions that are required in order to secure such rezoning
ar�d other approvals. Notwiths#anding anything in this paragraph tv the
�or�trary, ta #he ext�nt r�gulatory requirements and requirements of these
Terms are identical, compliance with regulatory requirements shall c�nstitute
compliance with these Terms and vice versa.
5.2.� Batching 5ites fvr Appraval. ❑nly sites that da nvt
have a new ar a replacement pole requir�d far the antennas, and
da nvt ha�e any underground cables, conduit, and foundations,
are elfgible far bat�h pro�essing af the a�plicat�vns.
x�� �5�d i a.�.zo2r�
6.3 Relativnship ❑f Plans Approval to Regulatory Processes. Wireless
Provider's submissian of plans under these Terms, Town's approval of plans
for purposes of these Terms, and the plans approval proc�ss herein shall be
se�arate and independent af all devefapment, zoning, design review and
other regulatory or simiiar plans submittal and appraval pracesses, all of
whi�h shall �vntinue to ap�Oly as provided under state law, in addition to the
requirem�nts af these Terms and its appravals. BUILDING P�RMITS,
Z�NING CLEARRNCES, OR ANV DTHER G�VERNMENTAL REVIEWS
�R ACTI4NS DD NOT C�NSTITUTE APPROVAL �F ANY PLANS F�R
PURPOSES �F THE LICENSE AGREEMENT.
5.4 Town's Fixtures and Praperty. Wireless Provider shall not remove,
alter or damage in any way any improvements or any persvnal property of
Tawn upvn the Use Areas withaut Town's priar written appro�al. In aIl cases,
Wireless Pra�ider will repair ar�y damage �r ❑ther alteration ta Tawn's
prgperty �aused by Wireless Pra�ider or its �vntractars, employees ar
agents tv as good ❑r better co�ditian than existed befare the damage vr
alteration.
6.5 ❑esign Requirements. All Wireless PrQvider's Impro�ements shall
cam�Oly with th� following design requiremenfs:
fi.5.1 Ail Wireless Provider's Improvements shall be
contained entire�y wifhir� the Use Areas anc� with�ut any
encroachment or dependence up�n any other property, �xce�t
for permftted utility service.
5.5.2 Any changes tv utility facilities shall be strictly limited to
the LJse Areas, shall not affecf utilities used by Town or any
authorized users thereaf, and shall be undertaken i�y Wireless
Provider at its sole cost and expense.
6.5.3 The Antennas and vther Cammunications Equiprnent
shall b� prop�rly designed, installed and maintained s� as not to
create a risk of damage ta the Pale, tv persons ar praperty upon
vr using the 5treet Parcel or Town's ❑ther property.
6.5.4 To the exten# requested by Town, Wireless Pro�id�r's
�alans shall in�lude a description ❑f construction methads
employed to address enviranmentaE issues affecting or affected
�y t#�e LJse Areas and pratect other fa�ilities at the 5treet Parc�f
and surraunding prop�rties.
6.5.5 All specifications set forth in the Town of Fauntain
Hills's Design 5tandards far Small Wireless �acilities in the
Right-af-Way, attached here to as Exhi�it "A."
Re�ised lC].b.20?6
5.6 A�proval Required. Wireless Pra�ider shall not canstruct any
Wireless Provider's Impra��m�nts (including wark on adjacent public 4ands,
if appli�able} without having first received an executed �.i��nse Agreemen#,
written plans approval from Town and any and a!I permits deemed necessary
by the Town. Such �vnsent requiremenf shall apply to all impra�ements,
furnishings, equipment, fixtures, pai�t, wall treatments, utilities of every
descriptian, communicatiorts cabfing and other constructi�n wark of any
descriptivn as descri��d in alE plans heretafore or hereafier defivered by
Wireless Pro�ider to Tawn. 5uch cvnsent requirement does not apply to
w�rk to the Gommunications Equipment confined completely inside the
Enclvsure and not �isible, audible, or otherwise discernible outside the
EnGlosure.
6,7 Effect of Plans Approval. Wireless Provider shall su�mit engineering
and constru�tion plans to the Tvwn for review and approval. Tawn's
apprflval vf plans submitted shall be far purpases �f these Terms only and
shall canstitute irrevocable a�proval [but vnly at the level ❑f detail af the
applicable stage of the review process} of the matters plainly shown on the
plans approved. Town shall not reject subsequent plans to the extent the
matter ta which Town vbjects was plainly shown on plans previausly
appra��d by Town. However, Town is nat preclu��d fram ❑bjecting to
matters not previously appraved, changes to plans, matters not previaus�y
cleariy dis�{osed on appro�ed plans, or refinements vr implementation of
matters previflusly approved.
6.8 Plans Required. Wireless Pro�ider's design of all Wireless
Pro�ider's Improvements shall accur in three stages culminating in final
w�rking ca�structi�n documents far the Wireless Pra�ider's Im�ravements
(the "Final Plans"). The three stages ar�, in arder ❑f submissivn and in
increasing arder of detail, as fallows:
6.8.1 Conceptual plans showing the general layaut,
locatiflns, e{evatians, canfiguration, and capacities of all
significant improvements, topographicaf features, pedestrian
and vehicular ways, builaiings, utilities, and ather features
significantly affecting the appearance, design, fun�tion or
a�aeratior� of �ach element af Wireless Pravider's Imprvvemen#s.
6.8.2 Preliminary plans s�owing all surface finishes and
treatments, finished elevations, general internal and �xt�rnal
design (including without limitatian colors, textures and
materials}, mechanical, corr►municafians, electri�al, plumbing
and other utilify systems, building materials, landscaping and all
other efements r�ec�ssary prior ta preparation of finai working
constru�tion dvcuments and showing campliance wifh all
FLevised 1�.6.20?fi
requirements af these Terms. The preliminary plans shall snaw
all detail necessary prior to preparatson af Final Plans.
5.8.3 Final Plans. In addition to the infarmation that Town
required far Preliminary plans, the Fina� Plans shaal include a title
repart far the LJse Area and the Shared L1se Area, engineering
design documents for the pole foundation, pole structura!
design, and ather generally required engineering specifi�ativns
far cvnstruction drawings ar "CD" �lans far permits,
5.9 Approval Pracess. The fol�vwing procedure shall go�ern Wirel�ss
Pr��ider's submission to Town af ali plans far Wireless Provider's
Impro�ements, it�cluding any prvposed changes by Wlrefess Prvvider ta
previously apprvved plans:
G,9.1 All plans Wireiess Pravider s�bmits under these Terms
shail shaw design, appearance, �apacity, �iews, and ❑ther
infarmatian reasanably deem�d necessary by Town for a
�omplete understanding of the wvrk propvsed, all in detail
reasonably deemed appropriate by Town far the level vf plans
requir�d herein.
6.9.2 Wireless Pravider shall deii�er alk plans submissi�ns
far nvn-regulatory appra�als re�uired herein directly #o Tawn's
Development 5ervices �irectvr and shall clearly label the
submissions tfl indicate that they are submitted pursuant ta the
Terms and nat far �uilding permits, zflning ar other approvals.
Each submittal of plans by Wireless Provider f�r Town's review
shall be submitted using the Town's ele�troni� applicatifln
pra��ss.
5.9.3 All canstructE�n plans shafl be prepared by qualified
registered prafessianal engineers.
6.9.4 Town and Wireless Pravider shall endeavor to resolve
design and canstructian issues to their mutual satisfa�tian but,
in the ever�t of an impasse for any reasan or how���r arising, in
light of Town's awnership and other �s�s af the Use Areas, and
as a cvnditivn vf Tawn's entering into a License Agreement ar
issuir�g an Encroachment Permit, final d�cision authority
regarding all design and �onstru�tian issues shall rest with
Town.
5.9.5 All Wireless Pra�ider's Improvements shall comply with
all requirements af �aw, any applicable insurance contracts and
these Terms.
Revised I�.l�.20?6
�.1 Q Cvst of Wireless Pravider Improvements. All Wireless Provider's
Impro�ements shall be designed and �onstru�ted by Wireless Pravider at
Wireless Provider's sole cost and expense, including withvut limitativn any
alteratian ar ❑ther change ta Tawn's equipmen# or ❑ther impravements ar
property that may occur. In na event shall Town be obligated to campensate
Wireless Prvvider in any manner for any ❑f Wireless Pra�ider's
Imprv�ements ❑r ather wark pravided by Wireless Pr��ider during or related
t❑ the term of arry appr�ved License Agreement and Encrvachment
Permit�s}, Wireless Prv�id�r shall timely pay far all labor, materials, work,
and all prafessional and other services related ti�ereta and shall pay, protect,
indemnify, defend and hold harmless Town and TQwn's emplayees, officers,
cantracfors and agents against all claims related tv such it�ms. Wireless
Pravider shall bear the cast of all wvrk required from time ta time to cause
the �se Areas and Town's adjoining praperty [if dire�tly affe�ted by Wirel�ss
Pro�ider's work} to comply with Ivcal �aning rufes, the Americans with
Disabilities Act, fouilding codes and all similar rules, regulatians and other
laws if such wark is required because vf woric performed by Wireless
Provide�, by Wire�ess Pravider's use af the Use Areas, or by any exercise af
the rights granted tv Wireless Pro�ider under this License Agreemenf ar
associated Encroachment Permit�s},
6.� � 4mprovement Quality. Any and all work perf�rmed ❑n the lJse Areas
by Wireless Provider shall be performed in a workman-fike manner meeting
❑r exceeding the best practices ❑f similar fa�ilities in Maricopa Caunty,
Arizona, and shall �e diligently pursued to complet�on and in canfarmance
with alf building �odes and similar rules. All of Wireless Pra�ider's
Improvements shall be high quality, safe, fire resistant, modern in design,
and attra�tive in appearance, all as appr��ed by Tvwn thrvugh the plans
apprvva� prvicesses des�ribed in these Terms in addition ta any zoning,
building code ar other regulatvry pracesses that may apply.
8.12 Ownership of Wireless Prvvider's Impra�ements. Ail Wireless
Provider's Impravements {including without limitatian pvles and lig�ts}
except th� Communications Equipment shall be and become part of the real
property af Tawn as the same is cvnstructed or instalied.
6.�3 Damage ❑uring Work. Upvn p�rforming any wark upon the Right-
af-way, Wireless Provider shali simultaneously restvre the Right-of-way ta
its prior candition, as dire�ted by Tawn and r�pair any holes, mounting
surFaces or oiher damage whafsae�er ta the Right-of-way. Such wark shall
in�lude revegetativn and appropriate irrigation systems far revegetated
areas.
6.14 Replacemenf P�le. If Town ap�Ora�es a Wireless Pro�ider pra�osa�
t� install Antennas on a Tawn awned pale, then in addition t❑ the other
requirements, the following shall apply:
Re��ised l U.6.202G
G.12.1 Wireless Provider shall provide and de�iver to Town a
replacement pole, in�luding mast arm, s❑ that a replacement is
immediately a�ailahle ta Town in case the ariginal pale is
damaged.
6.12.2 lf T�wn uses a replacement pale, then Wireless
Pr�vider shall provide another replac�m�n# pole.
5.12.3 Upan installation of a replac�ment pole, the Town will
determine if the original pale, mast arm�s}, signal head{s}, and
light fixture�s� shall be delivered by Wire�ess Prvvider to the
Town's Carporation Yard ❑r if the Wireless Provider shall
oiEspase of the ❑riginal pole, mast arm, signal head and light
fixture.
6.12.4 All perf�rmance under ihis paragraph shall be at
Wireless Provider's �xp�nse. Town owns the ariginal pole and
all replacement pales.
�.15 Coardination with Encraachment Permit. The Street ParGel is
located in Town's public street Right-of-way. Wireless Pra�ider shall obtain
encraachm�nt permits at Wireless Pravider's expense as follaws:
5.15.1 Wireless Provider st�ail perform no construGtion work
in the Right-of-way without ❑btaining fr�m Town a permit givin�
permissian to work in the Right-af-way.
6.15.2 Wireless Provider shali nat alter ar modify its ant�nnas,
wireless equipment ar any improvements withaut su�mitting
plans or drawings af the praposed alteration ar modificatian to
Tawn and obtaining approval frvm Tawn's ❑evelaprnent
5ervices �irector.
fi,15,3 Wireless Pro�ider shall r�at perform any wgrk an its vwn
ant�nnas ❑r wireless equipment withaut first o�taining from
Town an en�roa��ment permit giving it �ermissian tv work in the
Right-of-way.
G,15.�4 Wirel�ss Pro�ider shall nat in any way ❑bstruct
pedestrian ar vehicular traffic within the Right-of-way without first
obtaining fram Tawn a permit giving permission to o�struct
traffic.
6.�� Time for Cvmpletivn. Wireless Provider shall diligently and
expedi#iously �ursue to cample#ion the constrt�ctian af all appraved Wireless
Provider's Impro�ements. Wireless Prvvider shall �omp��t� construction of
all Wire4ess Provider's Improvements na lat�r than ane hundred eighty [180}
Re�ised 10.G.202fi
days of permit issuance unless Tawn and Wireless Provider agree ta extend
this periad vr a delay is caused by a lack af commercial pvwer af the site. !f
Town, in its sole �xaminafian �f the canstruction activity at a site, determines
that Wireless Prvvider has nat substanfially performed construction at a site
within vne hundred �ighty �180} days of the perm3t issuance date, Town may
require the Wireless Provider ta cease �anstruction and resubmit th� site for
approval.
6.17 Constru�tian NatifiGation. Town may esfablish requirements fflr
natification of near�y residents and praperty owr�ers priar ta canstr�ction.
6,18 Work T�me and Manner Restrictians. All installativn, construction,
maintenance, inspe�tivn, repair and ather work of any kind shall be dane in
a manner that dves nvt disrupt traffic (exc�pt in compliance with apprapriate
permits} or nearby land uses. Without limitatian, su�� work shall be dane in
compliance with applicable Tawn paiicies and dir�ctions from time tfl time,
taking into accour�t th� various sensiti�ities of traffic, tourism, events,
adjoining land uses, ❑ther Right-of-way uses, and all ather n�eds and
cancerns that are likely to be affec#�d �y Wireless Pravider's wvrk.
k1= �AFETY FOR TOWN'S EMPL�YEES.
Priar ta performing any work on a wireless site in the Right-of-way, an employ�e
or autharized agent vf the Town wifl canta�t Wireless Pro�id�r's Network
�perativns ��nter �the N�C"} whose infarmafion shall be Iv�ated vn the ground
equipment ar on the pole. The Tvwn's emplayee or agent shall id�ntify himself
❑r herself as an emplvyee ar age�t of Tawn and the need for the RF to be turned
off at the site for a specified period t❑ perform maintenance or repair wark at the
site. Upon campletion vf the work, the Town's employee shall contact the N�C
and inform them that the site may activate the RF signals.
Fur�herm�re, as Town's employ��s, ag�nts, and representatives must have
uninterrupted and saf� ac�ess to the Rigf�t-af-way and all structures lacated
th�reon, Wireless Pravider must cvmply with at least one vf t�e following safety
pr�tocols:
7.1 Pravide access ta a"kili switch" for each wireless site thaf the Tawn's
emplvyees, agents, ar representatfves can use to turn aff alE power ta the
Wire�ess Pra�ider's Facifities while T�wn's wark is perfvrmed af the lacation.
7.2 Within 24 haurs ai a request, agree t❑ send a te�hnician with an RF
manitor to canfirm that all RF emitting equipment has, in fact, been
deacti�at�d, and to install all appropriate I�ckout tags and devi�es.
MAINTENANC:E ANI] LiTILITIES.
Rc�•iscd 10.G.202[i
Ex�ep# as expressly provided belaw, Wireiess Pravider shall be salely
responsible for all maintenance, repair and utilities far t�e Llse Areas during the term of
an appr�ve�k License Agreement and asso�iated Encroachment Permit(s}. Withaut
limitation, Wireless Pro�ider shall perform the follawing:
8.1 Maintenance bv Tawn. Town has na maintenance ar repair
❑bligatEans for the Cammunicativns Equipm�nt or ather UVireless Pravider's
fmpra�em�nts.
8,2 Maintenance bv Wireless Provider. Wireless Provider shall at all
times repair and maintain the Use Areas at Wireless Provider`s sole expense
in a first-class, sound, cl�an, safe and aftractive manner, m�eting or
exc��ding the manner af maintenance at first class comparable facilities in
Maricopa County, Arizana, as determined in Tawn's reasonable discretion.
The pre�eding sentenc� do�s not require Wireiess �'rovider to repair or
maintain Tawn's facilities at the L1se Area unless such work is attributahle in
whale vr in part to Wireless Pra�ider's use of the LJse Areas.
8.3 Utilitv 5ervic�. Wir�less Provider shall cantra�t for and pay alf
charges, fees, deposits and ❑ther amaun#s for �lectricity and telephane and
at�er data cammunication service to the Use Areas at the rates applica�le
ther�to. Wireless Pra�fder shall use no 4ther utilities at the Llse Areas, un less
otherwise authorized by Tawn.
8.4 Lltilitv Interruptions. Tvwn is not responsi�le for any interruption ❑f
utilities to or upvn the Use Areas ar ather difficu3ties re4ated tv utilities at the
lJse Areas.
8.5 Riqht of Inspectian. Tawn shal! be enfitled to inspect all canstruction,
re�onstructian ar installation wark and ta make such tests as it deems
necessary to ensure compliance with the terms herein and any applicable
laws and reg�lativr�s. All Tvwn plans reviews, inspectians, standards and
ather rights and a�tions with relatian to Wireless Provider's Imprv�ements
are for Tawn's sale and exclusive benefit and neither Wirel�ss Pro�ider nor
any other person shall rely thereon or have any rights related theret�. The
preceding sent�nc� daes not pre�ent Wireless Pravider fram relying on
consents, permits or approvals Town may grant bas�d an Tawn's plans,
re�iews, and inspections. This right of access is ir� addition t❑ access rights
for Tawn inspectors ar other employees and vfficers acting within their legal
autharity.
8.� Canstruction Notifi�atian. Town may establish requirements far
Wirel�ss Provide� t❑ notify nearby residenfs privr ta �vnstruGtion.
8.7 Blue 5take. Wireless Provider shall register with and comply with
the Iocal glue 5take program.
Revised 1�.G.2�?b
9. 13k1;ACFI BY WIRELESS PR(�V[i7�R,
Wireless Provider shall camply wi#h, perform and do each obligatian required of
Wirekess Pravider h�rein and shall cause a!I persons using the Use Areas
thraugh or under Wireless Pravider or thes� Terms ta do the same. Wireless
Provider's failure ta da sa shall be a material brea�h by Wireless Provider flf
these Terms.
9.1 Events ❑f �efault, All License Agreements and EncroaGhment
Permits are approved upon fhe candition that each and e�ery ane of the
fallawing ev�nts herein shall ioe deemed an "Event of Default° by W'treless
P�ovider af Wireless Provider's material obliga#i�ns under these Terms:
9.1.� If Wireless Provider shall �e in arrears jn the payment
af Use Fe� and shall nat cure such arrearage within ten (1 ��
days after Town has notifi�d Wireless Provider o# such
acrearage.
9.1.2 If Wireless Pravidsr sha�l fail to operate the
Communications Equi�ment (except during spec�fi� perivds
expressly excused h�r�in} far a period vf five �5} consecuti�e
days or a tatal af thirty �3�} days within any twelve �12} mvnth
perivd.
9.1.3 If Wir�l�ss Provider shall fail ta maintain any insurance
required under these Terms. Notwithstanding the pre�eding
sentence, such faiiure shall nat be a default if, within ten ['��}
days after natice from Town, Wireless Prvvider provid�s to Town
the required insurance and the required evidence thereof. 5uch
insurance musf cover th� past far a period adequate that ther�
is no gap in the insurance coverage required �y these Terms.
9,1.�4 If the Wireless Pravider's right to use a Utility Pale
expires ❑r is terminated far any reason.
9.� .5 If Wireless Pravid�r does nQt �ommence and difigently
pursue tv �ompl�tion each reguired stage vf constru�tion of the
site within the times required herein. The times specified for
cancluding ea�h stage of reqt�ired �onstructivn have been
established far �nough in advance, and have taken into accaunt
the likelihoad of canstruction delays, so that no cure period is
provided.
9.1.6 If Wireless Provid�r shall �e the su�ject af a valuntary
or involuntary bankruptcy, receivership, insalvency ar similar
Revised I D,G.2Q2f�
proce�ding ar if ar�y assignment of any af Wireless Pro�ider's or
such other person's property shall be made for the benefit of
creditars ❑r if Wireless Pravider or such ❑ther persan dies or is
nvt r�gularfy paying its de�Ots as they cvme due (cv{lecti�ely a
"Wireless Provider Insalvency"}.
9.1.7 If the issuer af any letter of credit shall fail for any
reasan ta timely and fully honar any request by Tawn for funds
ar other perfarmanc� under the instrument and Wireless
Provider fails t❑ cause the issuer, �r some other pers�n, ta honor
the request within ten {1�} days after Tawn natifies Wireless
Pro�ider that such requesf has nat heen honvred.
9.�.8 If Wireless Provider shall faif ta abtain ar maintain any
licenses, permfts, or other governmental appravals p�rtainir�g to
the Right-of-way or timely pay any taxes pertaining t❑ the Right-
of-way and does nat cure such failur� within thirty �3�} days.
9.1.9 If Town shali be expased tv any lia�ilify, obligation,
damage, �ast, �xpense, or ❑ther claim af any description,
whether ar nvt asserted, unless Wir�less Pra�ider gi�es
immediate nvtice to Town ❑f Wireless Pra�ider's commitment ta
indemnify, defend and hvld Tawn harmless against such claim,
and Wireless Pro�ider does in fact pramptly cammence and
�antinue ta indemr�ify, defend and hald Tawn harmless against
such claim.
9.�.1a If Wireless Pro�ider shall fail to meet its obligations
under the RF Saf�ty Paragraph.
9.1,11 I� Wireless Pro�ider shall engage in a pattern of
repeated failure �ar neglect} ta timely dv �r perform or o�serve
any prflvision �ontained herein. After Towr� has on�e gi�en
notice of any failure hy Wireless Pravider ta compiy with its
o�ligations sef forth in these Terms, the fallawing shall canstitute
a repeated failure by Wireless Pravider ta comply with such
pro�isian:
h. 9. "f .11. � Another failure to comply with any
provisian af these Terrrts during the €olfowing thir#y
�30} day period.
9.1.11.� Three (3} ❑r
any pra�isian of these
day periad.
mor� failures fo camply with
Terms during any ninety {9Q}
9.� .1 �.3 5ix �6} or rnvre failures ta cvmply with
Revised 14.C.z02b
any provisian of these Terms during any twelve {'12}
month period.
9.1.1Z If Wireless Pravider shall fail tv vr neglect to timeiy and
cvmpletely do or perform or observe any other pravisigns herein
and such failure �r neglect shall continue for a p�riad of thirty
�3fl} days after Tawn has natified Wireless Provider in writing ❑f
such failure �r neglect.
9.2 �vwn's Remedies. Llpon the ❑ccurrence of any Event of Default vr
at any tim� thereafter, Town may, at its optign and from time ta time, exer�ise
at Wireless Pr�vider's expense any or all or any cambination of the fallowing
�umulati�e remedies in any arder and repetitively at Tflwn'S DjJtlDil:
9.�.1 Terminate the License Agreement ar any or all
Encroachment Permits due to Wire�ess Prvvider's breach or #or
any other reason, howev�r, such termination daes not terminate
Wlf£IE55 Pro�ider's abligations arising during the time
simultaneous with or priar to vr the terminativn, and in no way
termina#�s any of Wireless Pravider's liability related ta any
breach ❑f these Terms.
9.2.2 Pay ar perfarm, far Wireless Provider's account, in
Wireless Pravider's name, and at Wirel�ss Prvvider's expense,
any ❑r all payments ar perfarman�es r�quired hereunder to be
�aaid or performed by Wireless Provider.
9,2,3 Ahate at Wireiess Provider's expense any violativn vf
these Terms.
9.2.4 Notwithstanding anything under these Terms to the
cantrary, unilaterally and wifhout Wiref�ss Provider's or any
a#her person's consent ar appraval, draw upon, withdraw or
�therwise realize upon vr abtain the value af any letter of credit,
es�rvwed funds, insuran�e polic�es, or ather deposits, sureties,
bonds or other funds ❑r security hsld by Tvwn or pledged ❑r
atherwise abligated to Tvwn by Wireless Pr�vid�r ar by any third
party {whether ❑r nat sp�cifical�y mentioned herein} and use the
prace�ds far any remedy permitted by these Terms.
9.2.5 Require an additional security deposit adequate in
Tawn's s�ie discretion t❑ prote�t Tawn and the Right-of-way.
9.2.6 Require ihat the Wireless Pravider remedy any and all
vi�latians and pay any and all autstanding fees in fuli �before
accepting applications for new Encroachment Permits},
1Ze� iserl i 0.fi.2026
9,�.7 Assert, exercise ar o#herwise pursue at Wireless
Pro�ider's expense any a�d all other rights or remedies, legai vr
equitable, to whi�h Town may be entitled, subject anly ta the
limitation set out belaw on Town's ability ta callect mar►ey
damages in light �f the Vialation Use Fee.
9.3 Vialatian Use Fee. Wireless Pravider and Town agrse that Wireless
Pravider's failure ta camply with the provisians her�in will result in damages
tv Town, including but nat limited ta expenses related to administrative �osts,
staff time, field work and inspections, legal services, et�. Wireless Pra�ider's
failure to comp�y with th� pro�isions her�in will result in damages in an
amount that is and will be impracticable to determine. Therefore, the parties
have agreed that Wireless Provider shall pay the Vivfation lJse Fee set vut
helaw in accordance with the fallawing [the "Viofatian Fee Pravisians"}:
9.3.'� Violation Use Fee is only int�nd�d t� remedy damages
that Town suffers kaecause of Wireless Provider's breach of this
Agreement. Wireless Pro�i�er's payment vf Vialation llse Fee
does nat in any way ex�use any breach �y Wireless Pr�vider of
these Terms or limit in any way Town's obtaining any other legal
or equitable remedy pravided by these Terms or atherwise �or
su�h breach. For example, Wireless Provider's v�ligatEvn tv pay
Vivlation L1se F�ee d�es not in any way defract from Wirel�ss
Pro�id�r's ind�mnity and insurance obligatians under these
Terms, which shall apply ac�ording #a their terms in additian to
Wireless Provid�r's abligation ta pay Vialation Use Fee.
9.3.2 Town may el�ct ta draw upon the letter of credit ta
callect the Vialatian LJse Fee.
9.3.3 The Violation Fee Provisions and the amvunt of the
Violatian Use Fee per day or part #hereof are as fallows:
9.3.3.1 The amvunt af 5ix Hundred Dollars
($6�0.00} �er day for Wireless Pravider's failure to
properly restore the publi� Right-of-way vr to carrect
related violations of s�ecifi�atians, code, ordinance
or standards within ten �1fl� business days after
Tawn's natice to �orrect 5UCi1 defects. 5uch
Violation L1se Fee shall be in additian to any cast #he
Tawn may incur fo resfore the Right-of-way or
correct #he vialatian.
9.3.3.2 The amount ❑f Five Hur�dred ❑ollars
($S�Q,a�} per instance af ar�y afh�r actiar� or non-
action by the Wireless Pravider contrary ta these
Re�•ised lU.fi.2U26
Terms h�rein and that is not cured after three [3}
business days' notice.
9.3.4 Vialati�n Use Fees shall be assessed as fvlfows:
9.3.4.1 If Town determines that Wireless
Pravider is liahle fvr Vialation LJse Fee, then Town
shall issue to Wireless Provider a no#ice af Town's
assessir�g a Vifllativn L1se Fee. The nvtice shall set
forth the nature of the violation and the am�unt of
the assessment.
9.3.4.2 Wireless Prvvider shall pay the Vivla#ion
Use F�e� within ten (1 Q} days after Town's no#ice.
H�we�er, if the Vialation Use Fee amaunt exceeds
Fi�e Thausand Dollars {$5,a�0}, then the fallawing
sfi�all apply:
9.3.4.2.� Wireless Pravider shall have thirty
(3dj days after the nfltice to pay the
Violation Use Fe� ar give Town notice
contesting the assertian af
noncampliance.
9.4 Reimhursement af Town's Expenses. Wireless Provider shall pay to
Tflwn within thirty �3�} days after TQwn's demand any and all amounts
expended or incurred by Tawn in performing Wireless Pravider's obligati�ns
�up�n Wireless Provider's failure to perform the same after notice fram
Tawn) together with interest therean at the rate of twel�e percent {12°Io} per
annum fram the date expended or in�urred by Town.
1 Q. BREAC:H BY T[��h�N.
Natwithstanding anyfhing in these Terms fa the cantrary, if Town at a�y time is
required ta pay fv Wireless Pro�ider any amvunt ❑r render any performance,
such amount or perFormance is �ot due until thirty [3D} days af#er notice by
Wireless Pravialer to Tawr� that the amaunt has �ecvme payable or fhat the
perfvrmance is due. In the event a cur� �annot be efFect�d d�ring that period,
Tawn shall nat be irt defaulf sa long as Town commences cure during the periad
and �iligentiy prase�utes the cure to campletion pravided such �ure must be
�vmpleted within sixty �6a} days after the noti�e.
1�.1 Riqht ta 5etoff and Credit. In addition t❑ its other rights and remedies
Town shall have the right to setaff and cr�dit from time t� time and at any
time, any and all amaunts due from Wireless Provider to Town, whether
Itr� iseci 10.G.?U?fi
pursuant to these Terms herein or atherwise, against any surn which may �e
due fr�m Town to Wireless Prvvider.
11. NQN-'GWAIVI;R.
Wireless Provider acknowledges Wirefess Provider's un��nditianal obligation ta
camply with these Terms herein. Na failure by Town to demand any
perfvrmance required vf Wireless Pravider under these Terms herein, and no
acceptance by Town of any imperfect or partial performances under t�ese Terms
herein, shall excuse su�h perfarmance or impair in any way Town's ability to
insist, prospectively and retraactively, upon �ull campliance with these Terms
herein. Nv a��eptance by Town af lJse Fe� payments ❑r other performances
hereunder shall be deemed a compromise or settlement of any right Town may
have for additianal, different or further payments ❑r perfvrmances as pro�ided for
in fhese Terms. Any waiver by Town vf any breac� ❑f canditian or covenant
her�ir� contained to be kept an� pertarmed by Wireless Provider shalf nat he
deemed or considered as a c�ntinuing wai�er and shall not operate t❑ �ar or
atherwise prevent 7awn from deGlaring a default for any breach or su��eeding ar
contin�ing breach either ❑f the same c4ndition or co�enant ar otherwis�. No
statement, bill ar notice by Tvwn or Wir�l�ss Provider concerning payments or
ather perfarmanc�s due h�reunder, �r failure by Tflwn tv demand any
performance hereunder, shall excuse Wir�l�ss Pra�ider from campliance with its
❑bligations nor estvp Town (ar ❑therwise impair Town's ability} ta af any time
correct suc� notice andlar insist prospectively and retraactivefy upon full
�ompliance with #h�e Lic�nse Agreement. N� waiver of any description
�INCLIJDING ANY WAIVER DF THIS SENTENC� DR PARAGRAPH} shall be
effective against Tvwn unless made in writing by a duly authorized representati�e
of Tvwn specifically identifying the particular pr��ision being waived ar�d
sp�cifically s#ating the scope of fhe waiver. WIRELESS PR�VI�ER
E}CPRESSLY DfSCLAIMS AND SHALL N�T HAVE THE RIGHT T� RELY �N
ANY SUPP�SE❑ WAIVER OR OTHER CHANGE nR MnDIFICATIaN,
1NHETHER BY IN�RD �R C�N�IJCT ❑R OTHERWISE, N�T C�NF�RMING
Ta THIS PARAGRAPH.
12, TERMINATION.
The follflwing prflvisions shall apply at #he expirati�n of the term ar earlier
termination of �ach License Agreement and Encroachmenf Permit:
'i2.� 5ur�iving flbligafians. Expiration ❑r terminatian ❑f a License
Agreement or Encraachment Permit daes nat terminate Wireless Provider's
vbliga#ians exisfing ar arising prior to or simultaneous with, or attribu#able ta,
the termination or events leading t� �r accurring before terminatian.
CteF°ised 1�.62026
12.2 ❑eli�ery of Possessian. Wireless Prvvider shall cease using the Use
Areas associated with the expired ❑r terminated License Agreement ❑r
Encraachment Permit. Wireless Pra�ider shall, withvut demand, peaGeably
and quietly quit and deliver up the L1se Areas to Tawn thoroughly cleaned,
in goad repair with the Use Areas maintained and repaired and in as gaad
order and cflnditian, reasanable use and wear excepted, as the Use Areas
now are ❑r in such better cvnditiar� as the Use Areas may hereafter be
placed.
12.3 Can#irmatian vf T�rmination. Upon expiration or terminatian of a
Li��nse Agreement ar En�roachment Permit for any reason, Wireless
Pro�ider shall provide t❑ Tawn upan d�mand recordable disciaimers
covering the LJse Areas executed and acknawledged hy Wireless Provi�er
and by all persans claiming through this Lic�nse Agreement, Encroachment
Permit or Wireless Pravid�r any interest in or right ta use ti�e Use Areas.
12.4 Remvval ❑f Impravements. Wir�l�ss Pro�ider shall remove all
Communicativns Equipment and restore the Use Areas includ�ng Lltilify Pole,
mast arms, iuminaires, or wire�ess support structure to its priar condition, or
to a candition mat�hing Town's surrounding land and improvements, as
dire�ted by Town, at Wireless Prflvider's expense privr ta narma3 expiratian
of the term vf a License Agre�ment or Enc�oachment Permit; ar within sixty
�5Q} days aft�r early termination af a License R�reement ar Encroachment
Permit. Without limitativn, su�h wark shall include revegetation and
apprapriate irrigatian systems for revegetated areas. Notwithstanding
anything in ti�e License Agreement and these Terms to the contrary, Town
may ele�t to requi�e Wireless Pro�ider ta lea�e any ar all �onstru�tion or
ather items �except the Communications Eo�uipment} in plac�, and all such
items shall be vwned foy Tvwn. lJnless Tawn directs ❑therwise, afl wiring,
pipes and �anduits shall �e left in good and safe cvndition, in warking order,
with each end properly labeled ar�d enclased in proper jun�tian boxes.
� 2.5 Prior Improvements. This article also applies ta any improvements
that Wireless Pravider may have made to fhe Llse Areas.
i�. ��sukA�rc�.
During the entire term of any License Agreerr�ent ar En�roachment Permit,
Wireless Provider shall insure its property and activities at and abaut the LJse
Areas and shall pra�ide insurance and indemnificatian as follvws:
�3.1 Insurance Required. Not later than the date ❑f this License
Agreement, and at aIl times thereafter wher� Wireless Provider is accupying
vr using the lJse Areas in any way, Wireless Provider shall abtain and cause
t❑ be in farce and effect the following insuran�e:
Re� ised 1 U.6.2U2G
13.� .1 Commercial General Liability. Commer�ial general
liability insurance with a limit af Ten Million and No11 flD Dollars
($10,OOQ,DD0.0�} far each ❑��urrence, a limit af Ten Million and
Na11 �� Dollars �$10,QOQ,QQO.dflj far products and �ampleted
vperations annual aggregate, and a limit of Ten Million and
Na1140 �ollars [$10,��a,�0�.�a} gen�ral aggregate limit per
pvli�y year. The palicy shall co�er liability arising from premises,
❑perations, independent cantra�tars, products, campleted
❑perativns, persanal injury, badily injury, advertising injury, and
liability assumed under an "insured cvntract" in�luding this
License Agreement. The palicy wifl co�er Wireless Prvvider's
liability under the indemnity provisions set f�rth in these Terms.
The pvlicy shajl contain a"se�aratian vf insured's" �lause.
13.1.2 Autom�biie �iability. Autamabile liabilsty insuran�e with
a limit ❑f Dne Miliian Dallars ($1,Qd0,OQQ} for each v��urrenGe
cavering any and a11 owned, hired, and nan-owned �ehicles
assigned t❑ ar used in any way in connectian with Wireless
Pravider's use Of fhe Right-of-way. Withaut limitation, such
insurance shall caver hazards of mvtvr vehicl� use for loading
and vff Ivading.
13.1.3 Workers' �ampensation. Such workers' �flm�Oensation
and similar insurance as is required by law and employer's
liability insurance with a minimurr� limit of One Hundred
Thousand Dollars ($1 Q0,000} fo� each a��ident, �ne Hundred
Thousand Dollars t$1�0,000} disease far each employee, Five
Hundred Thvusand Dol�ars �$500,afla] pfllicy limit far disease.
All cantractars and subcantra�tars must prvvide like insurance.
13.1.4 5pecial Risk Property. LJnless wai�ed by Town in
writing, afl risk property insurance Gvv�ring damage to or
destruction vf all real and pers�nal impravements #o the Right-
vf-way, inc�uding withaut limitation, all impro�ements existing
upor� the Right-of-way prior to this Lic�nse Agreement or
hereafter canstructed in an amour�t equal t❑ full repla�ement
�ost af all su�h impr�vements. 5uch insurance shall be s�ecial
causes a� I055 policy form �minimally including perils af fire,
lightning, explosion, windstorm, hail, smvk�, airGraft, v�hicles,
riof, civil commafion, thef#, vandalism, maliciaus mischief,
c�llapse and flavd�. Coverage shall include pollutant �lean up
and remavaf with minimum limits coverage vf Fiffy-Thousand
❑ollars ($5d,000.00}.
� 3.� .5 Dther insuran�e. Any ❑ther insurance Town may
reasvnably requ�re far the protection af Tawn and Tvwn's
employees, afficials, representatives, Offi�ers and agents (a!I of
Revised 10.6.2D?6
wf�om, including Tawn, are collectively "Additianal insureds"},
the Right-of-way, surrounding property, Wireless Pro�ider, or fhe
a�tivities �arried ❑n or alaout the Right-of-way. Such ins�rance
shall be limited to insurance a reasvr�able pers�n awning,
leasing, designing, canstru�ting, accupying, or operating similar
facilities might reasanably purchase.
13.2 Policy Limit Escalation. Town may elect �y notice to Wireless
Provider ta in�rease the amount or type of any insurance to a�caunt far
inflation, �hanges in risk, or any v#her factar that Town reasanably
determines ta affect the prudent amount af insurance to be provided.
13.3 Form ❑f All lnsuran�e. All insurance provided by Wireless Provider
with respect ta the Right-of-way, whether required in these Terms ar not,
sha�l meet the fallowing requirements:
13.3.1 "�ccurren�e" co�erage is required.
�3.3.2 If Wirel�ss Pro�id�r uses any excess insurance then
such excess insurance shall be "follaw farm" equal t� or broader
in ca�erage than the underlying insurance.
13.3.3 Polici�s must also co�er and insure Wireless
Provider's activities relating ta the business operations and
acti�ities conduct�d away from the Rig1�t-of-way.
13.3.4 Within five {5} business days of re�eiving a wriften
request from the Town, Wireless Provider shall pravide �apies
❑f insurance certificates, insuran�e pvli�ies, farmal
endorsements or ❑ther documentafion acceptable to Town that
afl insurance coverage required herein is provided.
13.3.5 Wireless Pravider's insurance shall �e primary
ir�surance with respe�t to claims arising ❑ut ot W�reless
Provider's operations, activities and obligations set forti� in these
Terms.
13.3.6 All pali�ies, including workers' c�mpensation, shall
waive fransfer rights af re�o�ery (subrogation} against Tawn,
and the ❑ther Additional lnsureds.
13.3.7 All ded�ctibles, retentions, ar "self-insured" amounts
shall be su�ject t❑ the fallowing:
13.3.7.1 Wireless Pravider sf�all be salely
respvnsible far any self-insurance amaunt ❑r
deductib€e.
Re� ised ] 0.6.2D26
13.3.7.2 5uch amounts shall nat exc�ed in t�tal
�ne Hundred Thousand Dvllars �$1 ��,�D�,��} per
Ioss. At su�h times as Wireless Pro�ider's net worth
is mare than ❑ne Hundred Million Dollars
[$1 a0,��a,a�D.aQ}, such limit shall be �ne Millivn
and No110D ❑allars �$1,OQO,OOa.OD�.
13.3.7.3 Any self-insured exposure shall be
deemed to be an �nsured risic under this License
Agreement.
13,3,7.4 Wireless Provider shall provide to the
beneficiaries af all such amaunts no less insurance
protection than if such self-insured pvrtion was fully
insured by ar� insuranc� company of the quali#y and
caliber required hereunder.
13.3.7.5 The right t❑ self-insure is limited and
specific ta Wireless Prvvider and does not extend to
Wireless Pravider's cantractors ar athers.
13.3.8 All paficies except workers' cam�ensation must name
Town and the other Ad�itional Insureds as additional insureds.
Wir�}ess Pravider shafi cause caverage for AdditiQnal tnsureds
to be incorporated into ea�h insuran�e palicy by endvrsement
with respect t� �laims arising out af Wireless Provider's
operations, acti�ities and obligations under the License
Agreement.
� 3.3.9 AjI j7QIICi�S must r�quire the insurer to provide Town
with at least thirty (3D] days' prior notice ❑f any cancellatian. The
ir�surer's duty ta notify Town ❑f changes in coverage shall n�t
in�lude phrases such as "endeavor to" ar "but failur� to mail such
notice shall impase no obligation or liability af any kind upon the
campany, its a�ents ar representatives."
13.3.1 Q All policies sha11 require ti�at nvtices be given tv Town
in the manner specified far natices to Town set farth in the
Li�ense A�reement and these Terms.
� 3.4 InsuranGe Certifi�af�s. Wireless Provider shall e�idence aIl
insurar�ce by furnishing to Tawn certificates af insuran�� annualfy and with
each change in insurance caverage. Certifi�ates must eviden�e that the
policy described by the certificate is in full force and effect and that the policy
satisfies eac� requirement af these Terms applicable t❑ the poficy. For
exam�le, certificates must evidence that Tvwn and the other Additianai
Reviseci iD.G.202C
lnsureds are additional insureds. Certificates must aiso �e in an industry
standard farm reasonably a�ceptable to Tawn, Wireless Pro�ider shall
provEde updated certifi�ates at Tawn's r�quest.
13.5 Acceptahle Insurers. All insurance policies shall be l55L12d by
insurers acceptabfe t� Town. At a minimum, all insurers shall be duly
licensed (or quali€ied unli�ensed non-admitted insurer} by the State af
Arizvna, Departm�nt of Insuran�e. At a minimum, ail insurers shall have and
maintain an A.M. Best, Inc. rating ❑f B++ �,
13.E No Representatian af Coverage Adequacy. By requiring insurance
herein, Tow� dves nat represent that co�erage and limits wil� be adequate
to prvtect Wirei�ss Pra�ider. Town reser�es the right to review any and all
of the insurance palicies andlor endorsements cited in these Terms but has
no obligatian t❑ do so. F�ailure to demand such e�idenc� af full compliance
with the insurance requirements set fvrth in these Terms or failure to identify
any insuran�e defi�ien�y shall nvt relieve Wireless Pra�ider from, nor be
cvnstrued or deemed a wai�er ❑f, Wir�less Provider's o�ligation ta maintain
ti�e required insuran�e at all times.
�3.7 Risk of Lass. Wireless Prv�ider assumes the risk of any and all loss,
damage or claims related ta Wireless Provider's use af the Right-af-way ❑r
ather property ❑f Tvwn, Wireless Provider ar third parties thraughout the term
of any l.icense Agreemenf ar Encraachment Permit. Wireless Provider shall
be r�sponsible for any and all damage to its property and equipment related
ta the License Agreement vr Encroachment Permit.
13.8 insurance fa be Provid�d by Others. Wireless Provicler shall cause
its contrac#ars ar oth�r persans occupying, working on or abaut, or using the
Right-of-way pursuant to these Terms to be covered by their awn ❑r Wireless
Provider's insurance as requir�d i�y these Terms. The required policy limits
for commer�ial general liability insurance provided by such persflns shall be
�ne Mi}lian ❑ollars [$� ,Qa0,a00} for each vc�urrence, �ne Millivn Dvllars
{$1,a0D,��D} far products and �ompleted ❑perati�ns annua� aggregate, and
Two 1111iflion ❑ollars ($2,a00,�Ofl} general aggregate iimit per poli�y year. This
paragraph does not apply ta persons who dv nvt a�#ually perfarm physiGal
labar in the R�ght-af-way (such as Wirefess Provider's consulting design
engineers}.
14. INDEMNITY.
In adcfition ta all ather indemnit�es and otk�er obfigatians hereunder, ta the fullest
extent permitted by law, throughvut the term of any LiGense Agreement vr
�ncrvachment Permit and until all abligations and p�rformances under or related
ta fhe Lic�ns� Agre�men# (including these Te�ms} are satisfied and all matters
described in this Paragraph are �ampletely r�solved, Wireless Prvvider and all
l�e� ised 10.G.2�2G
❑ther persons using, acting, working or claiming through or fvr Wireless Provider
(if they or their subcontractar, emplvyee or vther person or en#ity hir�d or
directed by them participated in any way in causing the �laim in question} shafE
jointly and severally indemnify, defend and hold harmless Town and all vt4�er
Additional Insureds far, from and against any and all �iaims ar harrr-� related to
Wireless Prvvider's use af the Right-of-way or th� rights granted to Wireless
Provider with respect to the Right-af-way a� Wireless Pravider's exercise af its
rights under these Tsrms {the "Indemnity"}. Withaut limi#afion, the Indemnity shal!
in�lude and app�y ta any and ail allegatians, demands, judgments, assessments,
taxes, imp�sitians, expenses, prac�edings, liabilities, obligativns, suits, actians,
claims {in��uding without �imitatian �laims of persanal injury, bodily injury,
sickness, disease, death, property damage, destruction, lass of use, finan�ial
harm, or other impairment}, damages, lossesr expenses, penalties, fines or ath�r
matters {together with all atiorney f��s, court cos#s, and the cost ❑f appeilate
p�a�eedings and a�l other costs and expenses of litigatian or resvlving the claim}
that may arise in any manner vut of any �se of the Right-af-way ar afher property
pursuant ta any �ic�nse Agreeme�t ar Encroachment Permit or any a�tians,
acts, errars, mistakes or amissivns relating to wvrk ❑r services in the
performance of ar related to the LiGense Agreement, including without limitatian
any injury ❑r damages or cause of actian claimed or caused by any emplvyees,
contractors, subcor�trac#vrs, tenants, subtenants, agents or oth�r persons upan
or using the Right-of-way or surrounding areas related tQ Wireless Pravider's
exercise o� its rights under this License Agreement, in�luding withaut lirnifation,
claims, liability, harm ar damages caus�d in part by Town or any ather Addifional
Insur�d ar anyane far whose mistakes, errars, omissions or negligence Wireless
Provider or Town may be liable �coliectively, "Claims"}, As a conditian to Town's
appravai of any License Agreement or Encroachment Permit, Wireless Provider
specificalfy agrees that ta the extent any provision af this paragraph is nat fully
enfvr�eable against Wireless Provider for any reason whatsoever, this Paragrap�
shall he deemed aut�matically reformed ta the min�mal extent n�cessary to
cause it ta be er�fflrceabEe to the fullest extent permitted by law. Th� Indemnity
shall als❑ include and apply to any en�ironmental injury, persvnal injury ar ather
lia�ility relating to Wireless Pravid�r's use vf real praperty under the Li�ense
Agreement ar any EncroaGhment Permits. Notwithstanding th� foregoing, the
Indemnity does n�t ap�ly to Claims arising only from #he sofe grass negligence vr
intentionally wrongful acts vf Town vr #v Claims #hat the law prahibits fram being
imposed upan the indemnitar.
I �, C'(7NI3EM1�'ATIt7N.
The following shall govern any cvndemnatian of any part af or interest in the Use
Areas and any con�eyance to Town or another condemnor in avvidance or
settlement of condemnation ❑r a threat af condemnation:
15.1 Termination for Candemnation. The Encroachment Permit for the
lJse Area shall terminate vn the date (the "Candemnation ❑at�"} #hat is the
Re.•ised 10.G.242G
earlier af the date title vests in the �ondemnor, or the date upon which the
candemn�r is let into possession. Natwithstanding the faregving, if Town
reasonably determines that the Use Areas cantinue to be suitable for
Wireless Pra�ider #o conduct th� P�rmitted Uses, Town may slect to cause
the Encroachment Permit to cantinue ta remain in effect as ta the part of fhe
Use Areas not taken and the Use Fee shall nat he reduced ar abated.
Ne�erthel�ss, if Wireless Pro�ider reasanably determines that the Use Areas
are not suitable for Wireless Provider to canduct the Permitted Llses, then
the Encrva�hment Permit shall terminate.
15.2 Candemnatian Proc�eds. Wireless Provider hereby �55f�C15 and
transfers to Town Wireless Pravider's entire interest in a11 candernnation
damages, interest, severance damages, and any other payments or
pra�eeds af any kind relating to the condemnatiar� �callectively the
"Candemnation Proceeds"}. Wireless Pravider shall execute and deliver to
Town assignments or �ther instruments reques#�d by Town can€irming such
assignment and transfer. Wireless Provider sha11 immediately pay tv Town
any Candemnatian Praceeds Wireless Pro�id�r may receive. The
Candemnation Prace�ds sha#I not incfude rel�cation benefits, if any,
awarded specifically to Wireless Pravider t❑ cQver expenses of relvcating
Wireless Pra�ider's business lo�ated at #he Llse Areas at the time af the
condemnation, or any compensation s�ecifically awarded ta Wireless
Pravider for any taking of the Communications Equipment itself. Any repair,
relocation or similar costs relating to the C�mmunications Equipment shall
be borne by Wireless Pravider.
15.3 Power #o Candemn. Wireless Pro�ider acknowledg�s that Town and
others frvm time-ta-time may use the pvwer to condemn the Llse Areas �r
any inter�st therein ❑r rights thereto. Town has not relinquished any right of
condemnation ❑r eminent domain over the Use Areas. Tawn does not
warrant that Town will not candemn the Use Areas during the term af this
License Agreement, buf Town does nat presentfy have intentivns tv
candemn the LJse Areas.
1 G. 17AMAGr T(7 [7R DESTktICTI[7N [7F USE AF�EAS.
The fallowing prvvisians shall gvvern damage to or des#ruction of the lJs� Areas by fire,
flvod, explvsian, the elements, the public enemy, ar ❑ther casually �colle�tively
"Casualty Damage"j:
�5.1 Damage to Wireless Pravider's Improvements. Wireless Provider
shaEl commence restaring the Casualty �ama�� to Wireless Prv�id�r's
Impravements within thirty [3�} days after any Casua[ty Damage occurs.
Wir�l�ss Pro�ider shail camplete the restoratian wark within thirty �3a} days
after commen�ement. Such work shall be su�Oject ta the plans appraval
procsss and all ❑ther requirements fvr Wireless Pravid�r's Improvements.
lte�•ised 1D.G.2D�6
Wireless Provider shall perForm all restoration wvrk at Wireless Pravider's
sole cost and expense.
16.2 Monthly Rsstaration Wark Repart. Wireless Pr�vid�r shalf provide
ta Town no lafer than the tenth day of each month a writien narrative repart
of the pragress �f the restaratian wark.
17. WIRELE55 PRUVI�ER'S REC�RDS.
❑uring the entire term of any License Agreement, Wireless Pro�ider shall keep
records and provide informatian to Town as foflows:
� 7.� Scape af Infarmatian. lJnless ❑therwise speeified, ail vf Wireless
Prvvider's recvrdkee�ing and disclasure obligations under this articl� are
limit�d to the fQllowing (collectively #he "Co�ered Information"):
� 7.1.1 The status ❑f the construction, repair or restarativn vf
Wireless Provider Improvements.
17.1.2 Information indi�ating whether Town or Wireless
Provider is in compiiance with the terms herein.
�7.2 Records Inspection. At Wireless Provider's expense, Wireless Pravider
shall:
17.2.1 Permit ar�d assist Town and its representati�es u�on
twenty-one [2� } days' natice ta inspect, audit, and copy Wirefess
Provider's recards af Cavered Enformatian.
17.2.2 Make the recards of Covered lnformatian [and
r�asQnahle accommadations for Tawn's audit and inspectian}
ava4lable to Town at Wireless Pravider's offices in Maricopa
County, Arizona.
17.2.3 Cause Wireless Pro�rider's emplayees and agents and
a��ountants to give their full covpera#ivn and assistan�� in
cvnnecti�n with Tvwn's a��ess ta the Cov�red Informat�an.
17,3 Re�ard Ret�ntion. Wireless Prvvider shall {areser�e recards of the
Covered Information in a secure place at Wireless Pravider's corporate
headquarters in the cantinental Llnited States for a period ending seven �7}
years afier the time period reported by the rec�rds.
17.4 Recard Media lncluded. Tawn's and Wireless Pra�ider's rights and
obligatians regarding the Covered Infarmafion apply regardless of the fyp� of
media, materials, ar data r�posi#ories that may contain the Covered
Informatian. Tawn shall have access tQ Cv�ered �nformatian �antained,
withaut limitatian, in re�vrds, books, papers, documents, recordings, computer
Ite� ised I D.G.20�G
data, canfra�ts, lags, nates, ledgers, correspondence, reports, drawings, and
memaranda, and any and all other sources, records a�d rep�sitories ❑f
Cavered Informatian.
17.5 Reports. Wireless Pravider shall deliver ta Tawn written reports (and,
if request�d by Town, a presenta#ian to Tawn's governing council ❑r designee}
cavering su�h Cavered In�ormatian as Town may request from time t❑ time.
17.5 S#andards for Recvrds. Wireless Pravider shall maintain a standard,
madern system af recvrdkeeping fvr the Covered Infvrmatian and shall keep
and maintain proper and ac�urat� baoks and ❑ther repasitories of information
re�ating t❑ the Cavered Infvrmatian.
18, C;4M['L[ANCE; WT"1'H LAVi�,
Wireiess Pravider shall perform its obligations under the License Agreement
(in�luding #h�se Terms } and any Encraa�hment P�rmit in accordan�e with all
federal, state, county and I�ca! laws, ordinances, regulations or �ther rules ❑r
poli�ies as are now in effe�t ar as may hereaf#er �e advpted vr amended.
Withaut lirniting in any way the generality of ti�e foreg�ing, WEreless Provider
shal! �omply with ail and ea�h ❑f the fflllowing:
18.1 Applicahifity o� Municipal Law. Without limitation, Wirefess Prvvider
shall c�mply with municipal laws as follows:
18.�.1 Wireless Provider acknawledges nathing set f�rth
herein or by approva4 of a License Agreement or issuance of an
Encroa�hment Permit constitutes, and Tawn has not promised
ar affered, any type ❑f waiver vf, ❑r agreement to waive �or shnw
any type af for�earanc�, priority ❑r favaritism tv Wireless
Provider with regard ko] any law, ordinance, power, regulation,
tax, assessment ar vther legal requirement now or hereafter
imposed hy the Tawn af Fountain Hills vr any other
gavernmental body upan or affecting Wireless Pra�ider, the Use
Areas, vr the 5treet Parcel vr Wireless Provider's use of the Use
Areas, the 5treet Parcel ar the Right-of-way.
'i 8.1.2 All of Wir�less Pravider's obligations hereunder are in
aciditian ta, and cumulative upan {and not t❑ any exfent in
substitution or satisfactivn vf}, all existing or future laws and
regulatians applicai�le to Wir�less Pro�id�r.
�$.1.3 Town by appro�ing this Licens� Agreement or any
Encroachment Permit cann�t, and has nat, relinquish�d or
limited any right af condemnation vr eminent dflmain vver the
r�z.���za i o.� znz�
Right-of-way or any ❑th�r p�-oper#y related ta the License
Agreement ❑r Encraachment Permit, or within the Right-af-way.
� 8.1.4 The approva! of this License Agreement flr issuance af
any Encroa�hment Permit cannat and daes not impair Town's,
power to enact, ap�ly ❑r enforce any laws ❑r regulations, or
exercise any governmental powers affecting in any way Wireless
Pro�ider, th� Use Ar�as, th� Stre�t Parcel, ❑r th� RFght-of-way.
18.1.5 Town's rights and remedies under this License
Agreement and any Encroachment Permit for Wireless
Pravider's failure tv camply with ail applicable laws supplement
and are in additian to and do nat replace afherwise existir�g
p�wers of the Tawn of Fauntain Hills or ar�y otner gavernmental
bady.
18.1.6 Wirel�ss Pra�ider's rights under tk�is License
Agr��ment and any Encraachment Permit ar� furth�r subject to
all present and future buiiding restrict��ns, regulations, zaning
laws, and all ordinances, resalutivns, rules and orders af all
bvdies, bureaus, �ommissians and bvdies of any munici�al,
�aunty, state, vr federal authvrity, naw ❑r hereafter ha�ing
jurisdic#ion over the Use Areas ar Wireless Pravider's use
thereaf. Wireless Provider shall c�mply with all of the fvregving.
18.2 Radia Frequ�ncy �ompliance Requirements. Wireless Pra�ider
shall document, repart and confirm its compliance with Federal
Cammunications Cammissivn {"FCC"} Radiv �requency Expas�re
Guidelines (FCC �ET gulletin 65j and all other applicable radia frequency
emissions laws and regulations in effect from time ta time �callectivefy, tre
"FCC Rul�s"] as fallows:
18.2.1 Wireless Pravider shall �ause its seniar internaf
engineer respansible far compiian�e with t�e FCC Rules ta
deliver to Town a writfen letter (the "R� Letter"}, �5 f0II0W5:
18.2.1.1 The RF Letter shall attest that Wireless
Prvvider's operativn vf the Communi�ations
Equip�-nent is in �ompliance with the FCC Rufes. A
statement from Wireless Provider declaring
exemptivn fram reparting t❑ FCC is r�ot acceptable
to comply witi� the requir�m�nts of t�is �aragraph.
18.2.� Wireless Pro�ider shall maintain recards �f radia
frequency measurements and Cammunications Equipment
performance in a��ordance with the FCC Rules.
Re� ised 1 U.6.2U2G
18.2.3 Wireless Pravider shall also e�idence and demonstrate
its compliance with the FCC Rules in such manner and at such
intervals as the Town of Fauntain Hills Zaning ❑rdinance and
o#her applicable laws and regulatior�s may mandate.
18.3 lJse Area Regulatians. Town r�serves the right to adopt, amend and
enfarce against Wireless Pr�vider rules and regulatiflns gaverning the
operativn vf #he 5treet Par�el, ir��iuding the Use Areas, Wtreless Pravider's
activities th�rein and thereon, and th� public areas and facilities used by
Wireless Prnvider in connection therewith.
18.4 Taxes, Liens and Assessments. In additivn t❑ all ather amounts
herein prQvided and ta the extent �onsistent with applicabl� iaw, Wireless
Prvvider shall pay, wh�n the same �ecom� due and paya�le, all taxes and
general and specia� fees, charges and assessments af every descriptian thaf
during the #erm af any 1�icense Agreemenf or En�roachment Permit may foe
le�ied upan ar assessed upan or with respect ta Wireless Pravider's use of
the Right-of-way, the ❑peratians cvnducted therei�, any amounts paid ar
ather performances requir�d by these Terms by ei#her party, and a11
p�ssessory interest in the Right-of-way and Wireiess Pra�ider's
improvements and afher prvperty therean. Wireless Pro�ider shall pay,
indemnify, defend and hald harm3ess Town frvm any and all such
abligativns, in�luding any interest, penalties and ather exp�nses which may
be impased, and from any li�n th�r�for or sale or other praceedings t❑
enfvr�e paymen# thereaf.
18.5 Permits. Nvthing in these Terms relieves Wireless Pra�ider of the
obligativn to abtain permifs, licenses and other approvals from Town ar other
units of government that are required for the erectivn, canstru�tion,
reconstructivn, installativn, operation or mai�t�nance ❑f the
CammuniGations Equipm�nt ar pro�ision af felecommunications servi�es; ar
from campliance with applicable municipal cades, vrdinar��es, laws and
policies, such as zaning and land use vrdinanc�s and regulatians, pavement
cut and restoratian ardinances and regulations, subdivisian and praje�t
improvement ardinances, curb cut permits, building permits, Right-vf-way
permits, enGraachment permits, traffic control permits and the like.
19. ASSIGNABILITY.
The License Agreement ar En�raachment Permit(s} are nat assignable by
Wireiess Provider �ar�d any assignment shail be void ar�d �est no rights in the
purparted assignee} unless the assignment is made ir� strict campliance with th�
follawing:
19.1 Assignments Affected. Every assignment of any of Wireless
Pro�ider's interest in the Right-of-way, the Li�ense Agreement,
Itcviscd 10.G.202G
�ncroa�hment Permit(s} ar these T�rms ❑r any of Wire3ess Provider's rights
or inter�s#s hereunde� is prahibited �nless Wireless Pravider first receives
fram Tawn natice af Tawn's consent ta the assignment, where Town's
�onsent ta suGh assignment nat to be unreasonably withheid, �Q�diti�ned,
or delayed. All �eferences in these Terms to assignments by Wireless
Provider ar to assignees shali be deemed also to a�ply ta all of the following
transactions, circumstanc�s and c�nditians and ta all persans �laiming
pursuan# to such transactions, circumstances and conditions:
19.1.� Any valuntary ar involuntary assignmer�f, cor�veyan�e
ar transfer of Wireless Provider's right to use the Right-af-way
under this License Agreement or any interest or rights vf Tvwn
under this License Agreement, in whvle or in part.
19.1.2 Any voluntary ar involuntary pledge, lien, mortga�e,
se�urity interest, judgment, cfaim �r demand, whether arising
frQm any contract, any agreement, any wark flf �onsfru�tion,
repair, restoration, maintenance ar remvval, ❑r otherwise
affecting Wireless Provider's rights ta use the R�ght-af-way
{collectively "�iens"},
19.1.3 Any assignmer�# by Wireless Provider of any int�r�st in
the License Agreement �r En�roachment Permit(s} far the
benefit af creditars, voluntary or involuntary.
19.1.4 A Wireless Provider Insolv�ncy.
19.1.5 The v�currence af any of the for�going by a�eratian of
1aw or atherwise.
19.1.6 The occurren�e ❑f any of the foregoing with respect to
any assignee ar other successar to Wireless Provider.
19.� Pre-apprvved Assignments. 5ubject tv �erfain conditions hereaft�r
stated, Town h�reby �ansents to �ertain assignments [ti�e "Pre-appro�ed
Assignments"}. Only the fallowing assignments are Pre�approved
Assignments:
�9.�.1 Cvmplete Assignment af License Agreemen# and
Encroachment Permits. Wirefess Pro�ider's complete
assignment of all of Wirel�ss Provider's rights and Interests in
the Right-af-way, the approved Li�ense Agreement and aIl
En�roachment Permits t❑ a single assignee w�o meets all of #he
fallawing requirerr��nts, as determined kay Town in Town's
reasonable discretian (a "Qualified Dperatar"}:
it���[S�d �a.�.zo2�
19.2.1.1 The assignee has experien�e,
management, credit standing and financia! capacity
and other resources equal to or gr�ater than
Wireless Provider's and adequate ta successfully
perf�rm the abligations set farth herein.
� 9.2.1.2 The assjgnee is experienced in the
management and op�ration ❑f simiiar projects.
� 9.2.1.3 The assignee assum�s all ❑f Wireless
Pravider's abligations herein.
19.2.1.4 The assignee has a net wvrth af nat less
than Fifty Million and No110� ❑ollars
�$5Q,a0a,��d.OQ}.
19.2.2 5tock Transfers. The transfer of publi�ly traded stock,
regardfess of quantity.
19.2.3 Merger. The merger vr consolidatian Of V�II1"EI�55
Pro�ider wtth anvther entity that is a Qualifed �pera#or.
19.2.4 Comman awnership Transfer. Wireless Prvvider's
complete assignment of all af Wireless Pro�id�r's rights and
interests in the Right-of-way, the ap�roved License Agreement
and �n�rvachm�nt Permits to single assignee wh❑ is and
remains a wholly ❑wned subsidiary ❑f Wireless Pravider's safe
awner as vf the dat� of #he License Agreement {ar a wholly
owned su�sidiary af a wi�ally ❑wned subsidiary vf Wireless
Pravider's sole vwner as of the date of the License Agreement},
19.3 �imitatians ❑n Assignments. Town's consent to any assignment,
including without limitativn, Pre-appraved Assignments, is not effective until
the €allawing conditians are satisfted:
19.3.� Except far the sale af stack, Wir�l�ss Pra�ider shall
pravide ta Town a cvmplet� copy of the documer�t assigning its
interests, or other such dacumentativn acceptable tv the Town.
19.3.2 Each asssgnee must execute an assumption of the
License Agreements andlar the Encroachment Permits in form
acceptable to Tawn.
19.3.3 �ach Pre-approved Assignment must satisfy all vther
requirements of these Terms pertaining tv assignments.
x����5��t io.r�.zo2�
19.4 Assignment Remedies. Any assignmer�t without Town's cvnsent
shall he vaid and shall not result in the assignee obtaining any rights ar
interests. Tawn may, in its sole discretion and in addition to al4 ❑ther
remedies available t� Tawn und�r th�se Terms or ❑therwise, and �n any
cvmbinatian, terminate any and all ❑f the License Agreement and
Encroachment Permits, callect Use Fees from the assignee ar�dlor declare
the assignment tv be vaid, all without prejudicing any ❑t�er right or remedy
vf Tawn under these Terms. NQ cure ❑r gra�e perivds shall apply fo
assigr�ments prahibited under these Terms or ta enforcement of any
provision under thes� Terms agair�st an assignee whv did not reGeive
Tvwn's cansent.
19.5 Effect of Assignment. PriQr to any effec#i�e assignment, each
assignee must execute an assumption of each License Agreement and
Encraachm�nt Permit in the form attached hereta as Exhibit "�." No action
❑r inacti�n by Tawn shall be deemed a wai��r of the prohibitian on
assignments ❑r any vther pro�ision herein, or #he acceptancs of the
assignee, Wireless Prvvider or occupant as Wireless PrQvider, ar a release
❑f Wireless Provid�r from the furth�r p�rformance by Wireless Provider vf
the prvvisions af th�se Terms. Cansent by T�wn to an assignment shall nvt
relie�e Wireless Prvvidsr from obtaining Town's consent to any further
assignment. Nv assignment shall release Wireless Provider fram any liabili#y
hereunder.
19.6 Enfa�ceability after Assigr�ment. No cansent by Town shall be
deemed ta he a navatian. Town's cansent to any assignment does not in any
way expand or modify the terms set forth in these Terms vr waive, diminish
or modify any of Tawn's rights ar r�m�dies under the License Agreement or
any Encrvachm�nt Perrnit. The terms set forth in ihese Terms shall be
enforceable against Wireless Prvvider and ea�h successar, partia! or total,
and regardless ❑f the methvd af succ�ssion, to Wireless Pra�ider`s interest
hereunder. Each successor having a�tual ar cvnstructive natice of the
License Agreement, these Terms or any Encroachment Permit shall be
deemed to have agreed to the preceding sentence.
19.7 Grounds far Refusal. Except far the Preapproved Assignments, nv
assignment of the License Agreement or any En�roachment Permit 1ay
Wir�less Pro�ider is cantemplated ar �argained far, Withaut limita#ian, Town
has the right ta impose upan any consent ta assignment such conditians and
requirements as Town may deem apprvpriate.
19.8 �ans�nt to Asssgnments. Wireless Provider shall attac#� tv ea�h Pre-
apprflved Assignment a capy of Wireless Pra�ider's noti�e to Town of the
Pre-approved Assignment ar�d other required documents. Wireless Pr4vider
shall atta�h fo each other assignment, a copy af Town's nvtice tv Wireless
Provider of Tawn's cansent to the assignment. These T�rms shall conti�ue
x��•�5�� io.r�.2ozU
to be enfarceable accvrdin� #o its terms in sp�te af any pravisions af any
documents relating to an assignment.
� 9.9 Assignment Fee. Wireless Pravider shal� pay ta Town in advance
the sum ❑f Five Hundred ❑olfars [$5fl0} as a n�nrefundahle f�� for legal,
administrative and other expenses related to every Pre-approved
Assignment (ather than the sale of �ublicly traded stack) Qr t❑ any request
far a cor�sent ta assignment, whether ❑r nvt Town grants such request.
20. MISCELLANEC7lJ5.
T�� foliowing additional pravisions apply tv these Terms:
20.1 Amendmer�ts. These Terms may nat be amended except by a formal
writing executed by all af the parties.
2a.2 Dates. Any reference to a year shaiE refer to a calendar year unless
a fiscal year is specifcally stated. Sunday, Saturday and Arizona legal
holi�ays are halidays for purposes af the Li�ense Agr�ement and issued
Encroachment Permits.
2a.3 Time af Essence. Time is of the essen�e of eaci� and ev�ry pro�isian
af the License Agreement and issued Encraachment Permits.
20.4 Severability. If any pravisivn vf these Terms sh�all be ruled by a�aurt
ar agency vf cvmpetent jurisdictivn to �e in�alid or unenfar�eable far any
reasan, then:
�fl.2.1 The invalidiiy or unenfarc�ability af such pro�isian shall
nvt affect the �alic€ity of any rernaining provisions afihese Terms.
2�.2.2 These Terms shall be automatically re€armed tv secure
to the parties the benefits of the unenfvrceable pro�isian, ta th�
maximum extent cansist�nt with law.
�fl.5 Conflicts ❑f Interest. No officer, represen#ati�� or �mplayee of Tawn
shall have any direct or indir�ct interest in the License Agreement or any
EnGraachment Per�it, r�ar participate in any decision relating ta the License
Agreement ar a�y �ncrvachment Permit that is prohibited by law.
Natwithstanding t�� faregoing, pursuar�t to A.R.S. § 38-5� 1 r the Tvwn af
Fauntatn Hills may cancel the License A�reement gr any �ncraa�hment
Permit, without penalty ar further vbligation, if any persan significantly
involved in initiating, nego#iating, securing, drafting or creating the License
Agreemen# ar associated Encraachment Permits an behalf vf the Tvwn is,
at any time while the Li�ense Agreement vr Encroachment Permits is in
R���S�a i�.�.2o2c�
effect, ar any extension thereof, an employee, agent ar consultant ta
Wireless Provider in any capa�ity.
20.6 Na Partnership. The transactians and p�rfarmances con#emplated
h�reby shall not create any sart of partnership, joint venture vr similar
relationship between the parties.
20.7 Nonliability of Dfficials and Employees. No afficial, representative ❑r
employee of T�wn shall be personaliy liabl� t❑ any party, ar to any suc�essar
in int�rest to any party, in the event of any default or breach by Town ❑r fflr
any amaunt whi�h may be�ame due to any party or successar, or with
respeGt ta any a�ligation af Town ar ❑therwise under the terms ❑f any
License Agreement or related ta any License Agreement ❑r Encrvachmen#
Permit.
2a.8 Nvtices. Notic�s hereunder shall be giv�n in writing delivered ta the
other party or mailed by r�gist�r�d ❑r c�rtified mail, return re�eipt requested,
postage prepaid ar a nationai a�ernight ex�ress cvurier (such as Federal
Express ❑r LJPS} t❑ the addresses set farth in the Licens� Agreement and fo
the Town as foilaws:
If to Tawn: Town af Fauntain Hills
'E�705 E. Avenu� of the Fauntains
Fauntain Hills, AZ 852E8
Attn: T�wr� Manager
Copy to: Tawn of fivur�tain Hills
16705 E. A�enue of the Fauntains
Fountain Hi[Is, AZ 85�68
Attn: ❑evelopment 5ervices ❑irectvr
Re��ised 10.62Q2fi
Town ❑f Fauntai� Hilis
15705 E. Avenue of the Fountains
Ffluntain Hills, AZ 85268
Attn: Tawn Att�rney
gy notice from time to tim�, a person may designate any ather street
address within Maricopa Caunty, ArizQna as its address far giving natice
h�r�und�r. 5ervic� of any nvtic� (i} if by registered or certified ail shall be
deemed ta �e complete three �3} days [excluding Fridays, Saturday,
Sunday and lega! holidays� after the notice is depasited in the lJnited
5tates mail ar �ii} �f by ❑�ernight caurier upon receipt.
20.9 Canstructian. Whenever th� context of these Terms requires herein
the singular shall include the plural, and the masculine shall include the
feminine.
2a.1 � Funding. This subparagraph shall cont�-ol natwithstanding any
provision of th� Lic�nse Agreement or any exhibit ar other agreement or
dacument related hereto. If funds necessary to fulfiil Town's abligations
under the Li�ense Agreement or any Encroachment Permit are not
apprapriated by the Tawn af Fauntain Hills Town Cvuncil, Town may
terminate the License Agreement or any Encraachm�nt P�rmit, �y na#ice ta
Wireless Provider. Town shall use best efforts to give notice of su�h a
termination ta Wireless Prvvider at least thirty �30} days priar tv the end af
Town's then c�rr�nt fiscal period. Termination in accardance with this
provisian shall nat canstitute a�rea�h af the Li�ense Agreement flr
Encroachment Permit by Town. N❑ p�rson will be entitled to any
compensatian, damages or other remedy from Tvwn if the License
Agreement vr any Encraa�hment Permit is terminated pursuant to the terms
af this subsectian.
2D.11 Paragraph Neadings. The paragraph headings contained herein are
far cflnvenience in reference and nat intended t❑ define ❑r Eimit the scope of
any �rovision af fhe License Agreement.
2�,1� N❑ Third Party Benefi�iaries. Nv person or entity s�all %e a third
party ��neficiary ta the LiGense Agreem�nt ❑r shall have any right ar cause
of action hereunder. Town shall have n❑ liability to third parties for any
approval af plans, Wireless Provider's constru�tion of �mpravemen#s,
Wtreless Provid�r's negligenc�, Wireless Pravider's failure to comply with
the provis�ons ❑f these Terms [including any absence ar inadequacy of
insurance required to �e carried by Wireless Pro�id�r}.
2D.13 Exhibits. All Exhibits specifi�ally stat�d to b� attached hereto as
specified herein ar� hereby incorpo�-at�d info and made an integraR part af
tf�e Li�ense Agreement for all purposes.
it��>>S�a io.t�.2o?��
2�,14 Attarneys' Fees. �f any ac#ion, suit or proceedir�g is hrought by either
party hereunder to enfor�e ihe �icense Agreement or any issued
Encroachment Permit or for failure ta observe any af the covenants of the
L.i�ense Agreement, these Terms or any issued Enc�oa�hmeni Permit, ❑r #o
vindicate or exercise any rights or remedies hereunder, the prevailing party
in su�h proceeding shall be entitled to r�co��r from the ❑ther party such
pre�aifing party's reasonable attarneys' fees and other reasonahle litigation
costs (as determinea� by the cvurt (and nat a jury} in such praceeding}.
2a.�5 Appro�als and Inspections. All appra�als, re�iews and inspectians
loy Town are far Town's sole benefit and not far #he benefit af Wireless
Provider, its contractars, engineers ❑r other cflnsultants ar agents, or any
ather persan.
20.1fi Legal Vllorkers. If and ta the extent A.R.S. § 41-4401 is applicable,
Wireless Provider shall camply with laws regarding workers as fallows:
2�.1E.3 Wireless Pro�ider warrants to Tawn that Wireless
Pro�ider and al{ its subcantra�tors wiil �omply with all federal
immigrativn laws and regula#ians that relate ta their employees
and that Wireless Prflvider and all its sulocontractars naw comply
with the E-Verify Prvgram under A.R.S. § 23-214(A}.
2Q.�6.2 A breach af the foregving warranty by Wireless
Provider shall be deemed a material breach of th� Li��nse
Agreem�nt and any issued Encroachment Permit #hat is subject
ta penalties up to and in�luding terminativn af this License
Agreement and any issu�d Encroachment Perrriits.
2D.16.3 Town retains the legal right to insp�ct the pap�rs ❑f any
emplvyee ❑f Wireless Pra�id�r ❑r any subcontractor who works
on a Llse Area pursuant to License Agreement and any
Encroachment Permit tv ensure that they ar the subcontra�tor is
�amplying with the warranty given abo�e.
20.16.4 Town may c�nduct randvm verification of Wtreless
Pro�ider's and its su�cantractvrs' employment records tv ensure
campliance with the warranty given above.
20.16.5 Wireless Provider shall indemnify, defend and hald
Tawn harml�ss for, from and against all lasses and liabifities
arising from any and a€I violations of the warranty given ab�ve.
Itevised 1fJ.G.2D2C