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Home My WebLink About2022 06.21 Ciity Council Regular AgendaCity Council Meeting City of Apache Junction, Arizona Agenda Meeting location: City Council Chambers at City Hall 300 E. Superstition Blvd Apache Junction, AZ 85119 apachejunctionaz.gov Ph: (480) 982-8002 City Council Chambers7:00 PMTuesday, June 21, 2022 A.CALL TO ORDER B.INVOCATION AND PLEDGE OF ALLEGIANCE C.ROLL CALL D.CONSENT AGENDA The council may, at this time, take single action on any or all items listed as consent agenda items. These may include, but are not limited to, acceptance of agenda, acceptance of minutes, appointments, acceptance of resignations and adoption of certain resolutions and other items which do not require a public hearing. The consent agenda is a timesaving device of which the mayor and city council is to receive documentation on these items from the city manager for their review prior to the meeting. Any member of the council may remove any item from the consent agenda for discussion and cause a separate vote on the matter later in the agenda. 1.22-350 Consideration of acceptance of agenda. Sponsors:Jennifer Pena 2.22-351 Consideration of approval of minutes of the regular meeting of June 7, 2022. Sponsors:Jennifer Pena CCMIN_2022.06.07Attachments: 3.22-327 Consideration of proposed agreement with Trevor O'Tool, artist selected by the City's Public Art Commission, for the design and installation of public art for the Dutchman Dog Park, in an amount not to exceed $60,000.00. Sponsors:Rudy Esquivias AGREEMENT TO PURCHASE ARTWORKAttachments: 4.22-372 Consideration of approval of a telecommunications license and right-of-way use agreement between the City of Apache Junction and Intrepid, LLC network services. Sponsors:Doug Wirthgen Intrepid Staff Memo 06202022 Intrepid ROW Agr 06072022 Attachments: Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 June 21, 2022City Council Meeting Agenda 5.22-374 Consideration of approval of a telecommunications license and right-of-way use agreement between the City of Apache Junction and Accipiter Communications, Inc., doing business as Zona Wyyerd and Wyyerd Connect, LLC doing business as Zona Wyyerd Network Services and doing business as Wyyerd Fiber. Sponsors:Doug Wirthgen Wyyerd Staff Memo 06202022 Wyyerd ROW Agr 06032022 Attachments: 6.22-378 Consideration of approval of the First Amendment to the City of Apache Junction Bulk Fuel Agreement with Southern Counties Oil, doing business as SC Fuels, increasing the contract payment for the remainder of the term retroactively from May 1, 2022 through September 30, 2022 in an amount not to exceed $360,000. Sponsors:Mike Wever City Council Memo- First Amendment Bulk Fuel 06-13-22 Bulk Fuel First Amendment - Draft 3 - 10-3-17 Agreement for Bulk Fuel w-Southern Counties Oil Co. dba SC Fuels Apache Junction City 22 Bulk Fuel First Amendment signed Attachments: 7.22-381 Consideration of approval on a third amendment to the License Agreement with Tyler Technologies, Inc. for utility billing software. The total cost for the implementation and one (1) year maintenance/support of the utility billing software is $143,228.00 plus 20% for contingencies in the amount of $28,645.60, for a total not to exceed $171,873.60. The Water Utilities Community Facilities District (City of Apache Junction) will reimburse the city for these expenses. Sponsors:Anna McCray Apache Junction, AZ Amend 061422 WUCFD Tyler Tech Staff Memo Attachments: 8.22-379 Consideration of approval of the City of Apache Junction's Public Safety Personnel Retirement System (PSPRS) Pension Funding Policy. Sponsors:Leslie DeReche PSPRS Memo Pension policy FY 2022-2023 Attachments: 9.22-384 Consideration of approval of Resolution 22-24, City of Apache Junction Financial Policies , which establishes the framework for City of Apache Junction’s overall fiscal planning and management. The policies are reviewed annually to assure the highest standards of fiscal management. Sponsors:Leslie DeReche Resolution 22-24 Financial Policies City of Apache Junction Financial Policies FY22-23 Attachments: Page 2 City of Apache Junction, Arizona Printed on 6/17/2026 June 21, 2022City Council Meeting Agenda E.AWARDS, PRESENTATIONS AND PROCLAMATIONS Awards, presentations from other organizations, proclamations issued by the mayor, and acknowledgement of distinguished guests and visitors, and staff presentation of receipt of grant or donated funds are permitted at this time. 10.22-318 Presentation of 25-year Service Award to Jamie Sullivan, of the Apache Junction Parks and Recreation Department. Sponsors:Liz Langenbach F.REGIONAL INTERGOVERNMENTAL UPDATES The mayor or any member of council may at this time present a brief summary of any regional intergovernmental updates. However, no discussion shall take place on such items except for clarifying comments related to substance, time and location. G.CITY MANAGER'S REPORT The city manager, members of city staff or those individuals designated by the manager may present information pertinent to items under consideration or information related to the operation of the city. There shall however be no discussion at this time except for clarification inquiries. 11.22-353 City Manager's Report. Sponsors:Bryant Powell 12.22-370 Presentation and discussion with Braden Biggs regarding the Apache Junction Centennial. Sponsors:Bryant Powell 13.22-352 Announcement of current events. Sponsors:Al Bravo H.PUBLIC HEARINGS Public hearings required by applicable law shall be conducted by the council and any person shall be given the opportunity to speak. All remarks shall be addressed to the council as a whole and not to any member thereof. Such remarks shall be limited to five (5) minutes unless additional time is granted by the mayor. This time limitation shall not apply to applicants and their agents appearing before the council. I.OLD BUSINESS The council shall consider any business that has been previously considered and which is still unfinished to include those items previously postponed or tabled. No member of the public shall be permitted to speak on these items unless invited to do so by the mayor after first submitting a written request-to-speak form with the city clerk. J.NEW BUSINESS The council shall consider any business not yet considered. No member of the public shall be permitted to speak on these items unless invited to do so by the mayor after first submitting a written request-to-speak form with the city clerk. Page 3 City of Apache Junction, Arizona Printed on 6/17/2026 June 21, 2022City Council Meeting Agenda 14.22-361 Discussion and consideration for approval of Fiscal Year 2022-2023 Health and Human Services funding contracts between the City of Apache Junction and the Superstition Community Food Bank in the amount of $30,000, the Boys and Girls Club of the Valley in the amount of $11,580, the Genesis Project in the amount of $22,800, A New Leaf in the amount of $5,760, Apache Junction Community Development Corporation in the amount of $6,260 and the Salvation Army in the amount of $3,600. Sponsors:Jennifer Pena A New Leaf AJ CDC Boys and Girls Club Food Bank Genesis Attachments: K.COUNCIL DIRECTION TO STAFF This item allows the mayor and city council to direct staff on specifically listed matters. L.SELECTION OF MEETING DATES, TIMES, LOCATIONS, AND PURPOSES 15.22-354 Executive Session at 6:00 P.M. for Tuesday, July 5th, in the city council conference room located at 300 E. Superstition Boulevard in Apache Junction, Arizona and other meetings scheduled if necessary. Sponsors:Jennifer Pena M.CALL TO PUBLIC At this time the public has the privilege to address the council with requests, communications, comments or suggestions relating to city business. All speakers must have already submitted a written “Request to Speak” form to the city clerk no later than the conclusion of the city manager’s report portion of the agenda. If there is a group speaking on the same item, they should select a spokesperson. All such remarks shall be addressed to the council as a whole and not to any member thereof. The mayor is authorized to ask a speaker to stop speaking and leave the podium or to adjourn the meeting if anyone becomes disorderly, uncivil, makes personal attacks or continues to speak about items that are not within the jurisdiction of the city after being warned such issues are beyond the jurisdiction of the city to act. The council may not answer questions of the speaker, discuss the matter with one another, but may, at the conclusion: 1) respond to criticism by a speaker; 2) ask the city manager to review a matter; 3) ask the city manager to place the matter on a future agenda. Each speaker must approach the podium, speak into the microphone, provide their name and address. There is a three (3) minute time limit per speaker. Page 4 City of Apache Junction, Arizona Printed on 6/17/2026 June 21, 2022City Council Meeting Agenda N.ADJOURNMENT Copies of this agenda and additional information on any of the items listed above may be obtained from the City Clerk's office located at 300 E Superstition Blvd, Apache Junction, AZ 85119, Monday through Thursday from 7:00a-6:00p, excluding holidays. The City of Apache Junction invites and welcomes people of all abilities to use our programs, sites and facilities. Specific requests may be made by contacting the Human Resources Office at (480) 474-2617 or TDD (480) 983-0095. The Apache Junction City Council may vote to go into Executive Session for legal advice on any item listed on this agenda pursuant to A.R.S. § 38-431.03(A)(3); this notice is given pursuant to A.R.S. § 38-431.02 to the members of the City Council and the public. Page 5 City of Apache Junction, Arizona Printed on 6/17/2026 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-350 Agenda Item No. 1. Agenda Date: 6/21/2022 Sponsor: Jennifer Pena In Control: City Council MeetingIndex: Consideration of acceptance of agenda. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-351 Agenda Item No. 2. Agenda Date: 6/21/2022 Sponsor: Jennifer Pena In Control: City Council MeetingIndex: Consideration of approval of minutes of the regular meeting of June 7, 2022. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Meeting location: City Council Chambers at City Hall 300 E. Superstition Blvd Apache Junction, AZ 85119 apachejunctionaz.gov Ph: (480) 982-8002 City of Apache Junction, Arizona Meeting Minutes City Council Meeting 7:00 PM City Council ChambersTuesday, June 7, 2022 CALL TO ORDERA. Mayor Wilson called the meeting to order at 7:02 p.m. INVOCATION AND PLEDGE OF ALLEGIANCEB. Vice Mayor Rizzi gave the invocation and Councilmember Johnson led the meeting attendees in the Pledge of Allegiance. ROLL CALLC. Mayor Wilson Vice Mayor Rizzi Councilmember Evans Councilmember Heck Councilmember Johnson Councilmember Nesser Councilmember Schroeder Present:7 - Staff in Attendance: Bryant Powell, City Manager Matt Busby, Assistant City Manager Anna McCray, Assistant to City Manager Joel Stern, City Attorney Jennifer Pena, City Clerk Evie McKinney, Deputy City Clerk Michael Pooley, Police Chief Leslie DeReche, Finance Director Al Bravo, Public Information Officer Liz Langenbach, Parks & Recreation Director CONSENT AGENDAD. Vice Mayor Rizzi moved, seconded by Councilmember Nesser to accept and approve the Consent Agenda. Yes:Mayor Wilson, Vice Mayor Rizzi, Councilmember Evans, Councilmember Heck, Councilmember Johnson, Councilmember Nesser and Councilmember Schroeder 7 - No:0 1.22-321 Consideration of acceptance of agenda. Page 1City of Apache Junction, Arizona June 7, 2022City Council Meeting Meeting Minutes 2.22-322 Consideration of approval of minutes of the regular meeting of May 17, 2022. 3.22-346 Consideration of approval of minutes of the special meeting of May 16, 2022. 4.22-316 Consideration of proposed agreement with HDA Architects for architectural and engineering services for the expansion of the Apache Junction multigenerational center in an amount of $133,800.00 plus a contingency of $15,000, for a total not to exceed $148,800.00. 5.22-339 Approval of first amendment to the professional services agreement with Central Arizona Council on Developmental Disabilities for senior transportation services. 6.22-340 Approval of professional services agreement with Pinal-Gila Council for Senior Citizens to provide the meal portion of the community's senior services. 7.22-344 Consideration of award of contract with Motorola Solutions, Inc. via an Arizona State Contract #CTR046830 for the purchase of five (5) replacement consoles for the police telecommunications (911) dispatch center in the amount not to exceed $612,702.70. The contract pricing and scope of work includes hardware, software, installation/implementation and tax. The consoles will be paid for by American Rescue Plan Act funds. AWARDS, PRESENTATIONS AND PROCLAMATIONSE. REGIONAL INTERGOVERNMENTAL UPDATESF. Mayor Wilson announced he attended the Pinal County Transportation Authority meeting recently, where they continue to discuss the transportation tax that was approved by the voters in 2017 and went into effect April of 2018. Later the tax was ruled invalid by the Arizona Supreme Court stating it was illegal to have a two-tier sales tax structure. The tax was expected to raise more than $640 million over 20 years to fund new and widened highways and other transportation projects. At previous council meetings Mayor Wilson commented on discussions held by Pinal Regional Transportation Authority and talks on how the taxes will be paid back to the taxpayers. The following information and link is provided from the Arizona Dept. of Revenue website for taxpayers benefit and summarizes Mayor Wilson's comments related to this tax. ADOR Statement on Pinal County Transportation Tax Refunds - With the Arizona Supreme Court’s invalidation of the two-tiered Pinal County transportation tax on March 8, 2022, ADOR is aware that taxpayers have questions about what actions they should take to seek a refund of monies paid since April 1, 2018. As our agency works toward a solution that allows claimants to easily request payments, here are a few details on our plan: Taxpayers will be able to submit electronic requests for monies paid toward the invalidated tax while it was in effect (i.e., April 2018 through March 2022 TPT filing periods). The requests will allow taxpayers to indicate whether they wish to opt in or opt out of receiving these monies. Page 2City of Apache Junction, Arizona June 7, 2022City Council Meeting Meeting Minutes ADOR will process electronic requests for the invalidated tax entirely separately from standard TPT refund requests. As such, to avoid delays and errors in handling, please do not attempt to submit requests for the invalidated tax using such methods. Taxpayers will be able to request all monies that they paid in since the April 1, 2018, effective date of the invalidated tax. Under current law, ADOR anticipates that taxpayers will have until April 9, 2026, to timely submit their electronic requests. Taxpayers should not attempt to amend their filings for these periods to self-correct for reporting and paying the invalidated tax. Such actions will likely result in unanticipated and unwanted consequences for both ADOR and taxpayers. ADOR greatly appreciates your continued patience. Please remember to follow AZDOR.gov for the latest news and updates on this process as they become available. Mayor Wilson stated he attended and spoke at the Apache Junction High School graduation ceremony. Mayor Wilson mentioned that June 6, was the anniversary of D-Day, the landing at Normandy. He reminded everyone that those who have served and continue to serve in our military may suffer from PTSD and to be mindful. He spoke of a family member with PTSD. CITY MANAGER'S REPORTG. 8.22-325 City Manager's Report. City Manager Bryant Powell announced the Citizen Leadership Institute graduates were in attendance and the Mayor would be presenting their certificates shortly. 9.22-345 Announcement of current events. Public Information Officer Al Bravo announced the following: - Earth Heart Park & the Community Garden summer hours: - Thursdays from 5:30 - 7:30 pm - Saturdays from 6:30 - 8:30 am. - Fencing to protect the gardens was recently installed, the materials were donated by Kabat's Frontier Ace Hardware - July 4th fireworks will be held at the Apache Junction High School, location will be moved slightly to the South. Gates open at 6:00 pm and fireworks start at 8:30 pm. 10.22-347 Formal presentation by mayor of certificates of graduation to the graduates of the 22nd Citizen Leadership Institute (CLI). Mayor Wilson congratulated the 22nd graduating class of the Citizens Leadership Institute and presented each of them with their certificate. PUBLIC HEARINGSH. OLD BUSINESSI. NEW BUSINESSJ. Page 3City of Apache Junction, Arizona June 7, 2022City Council Meeting Meeting Minutes 11.22-303 Presentation, discussion and consideration of Resolution No. 22-19, adopting the tentative budgets and estimates of assessments of the Apache Junction Street Light Improvement Districts for Fiscal Year 2023. Councilmember Evans moved, seconded by Councilmember Schroeder that Resolution No. 22-19, adopting the tentative budgets and estimates of assessments of the Apache Junction street light improvement districts listed in “exhibit A” be approved. Yes:Mayor Wilson, Vice Mayor Rizzi, Councilmember Evans, Councilmember Heck, Councilmember Johnson, Councilmember Nesser and Councilmember Schroeder 7 - No:0 Finance Director Leslie DeReche stated this is an annual item for Council. This sets the annual budget for the city's street light districts and once adopted the assessors office will be notified so the taxes for each district are collected. COUNCIL DIRECTION TO STAFFK. SELECTION OF MEETING DATES, TIMES, LOCATIONS, AND PURPOSESL. 12.22-326 Executive Session at 6:00 P.M. for Monday, June 20th and Executive Session at 6:00 P.M. for Tuesday, June 21st in the city council conference room located at 300 E. Superstition Boulevard in Apache Junction, Arizona and other meetings scheduled if necessary. Councilmember Nesser moved, seconded by Vice Mayor Rizzi that an Executive Session at 6:00 P.M. for Monday, June 20th and an Executive Session at 6:00 P.M. for Tuesday, June 21, 2022 be held in the city council conference room located at 300 E. Superstition Boulevard, Apache Junction, Arizona, respectively; and other meetings if necessary. Yes:Mayor Wilson, Vice Mayor Rizzi, Councilmember Evans, Councilmember Heck, Councilmember Johnson, Councilmember Nesser and Councilmember Schroeder 7 - No:0 CALL TO PUBLICM. There were no requests to speak. ADJOURNMENTN. Mayor Wilson adjourned the meeting at 7:20 p.m. ACCEPTED THIS DAY OF , 2022, BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA. SIGNED AND ATTESTED TO THIS DAY OF , 2022. WALTER “CHIP” WILSON Page 4City of Apache Junction, Arizona June 7, 2022City Council Meeting Meeting Minutes Mayor ATTEST: JENNIFER PEÑA City Clerk CITY COUNCIL MINUTES CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the regular meeting of the City Council of the City of Apache Junction, Arizona, held on the __________ day of _____________________, 2022. I further certify that the meeting was duly called and held and that a quorum was present. Dated this day of , 2022. JENNIFER PEÑA City Clerk Page 5City of Apache Junction, Arizona Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-327 Agenda Item No. 3. Agenda Date: 6/21/2022 Sponsor: Rudy Esquivias In Control: City Council MeetingIndex: Consideration of proposed agreement with Trevor O'Tool, artist selected by the City's Public Art Commission, for the design and installation of public art for the Dutchman Dog Park, in an amount not to exceed $60,000.00. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 1 AGREEMENT TO PURCHASE ARTWORK BETWEEN THE CITY OF APACHE JUNCTION AND TREVOR O’TOOL THIS AGREEMENT is made as of June 21, 2022 (“Effective Date”), by and between the City of Apache Junction, an Arizona municipal corporation (“City”), and Trevor O’Tool (“Artist”). The City and Artist may be referred to collectively as “Parties” or in the singular as a “Party”. RECITALS A. The City has an Art in Public Places (“APP”) program as set forth in the Apache Junction City Code, Volume II, Land Development Code, Chapter 1 Zoning Ordinance, Article 1-13, Design Standards, Article 1-14-4, Art in Public and Private Developments, which requires at least one percent of the total construction costs for eligible projects to be spent on artworks in public places. The City is charged with the duty of providing for the nature, selection, and placement of these artworks. B. Through the APP program, funds have been allocated for the selection, design, purchase and placement of artwork (“Work”) to be located in the Dutchman Dog Park (“Park”), with the street address of 247 E. Superstition Boulevard, Apache Junction, Arizona (“Location”) and which application is in substantial conformance with Artist’s Design Proposal (“Proposal”). C. The Artist was selected through a competitive selection process. On February 23, 2022, the Artist submitted a proposal which included a checklist of required documents. On May 9, 2022, the Artist was recommended by the Public Art Commission to the City Council and then was approved by the Council on June 21, 2022. NOW, THEREFORE, City retains Artist to perform, and Artist agrees to complete the work in accordance with the terms and conditions as set forth below: 1. Definition of “Work.” As used in this Agreement, unless the context otherwise requires: “Work” means the work of art as ultimately conceived, designed, fabricated, transported, delivered and installed by the Artist, after consultation with the staff of the City. The Work includes all physical components of the complete artwork, including but not limited to, associated engineered foundations, bases, mounting brackets or devices, and all other miscellaneous components necessary to complete the fabrication and installation of the artwork. 2. Terms of Contract. This Agreement will be in effect from June 21, 2022 to June 21, 2023. 2 3. Artist’s Preliminary Design Proposal. On or before August 21, 2022, the Artist shall submit to the City a Preliminary Design Proposal. 4. Artist’s Final Design. On or before November 21, 2022, the Artist will, under this Agreement, prepare the final design (the “Final Design”) and itemized budget (the “Budget”) statement adhering to the originally approved Preliminary Design Proposal. 5. Expectation of Final Design. Once the Final Design, the construction documents, and the Budget have been approved by the City with a notice to proceed, the Artist shall not modify any approved Work without the prior written further approval of the City. The Artist may, if the Artist decides is necessary, present to the City, in writing, for further review and approval, any recommended material changes to the scope, design, color, size, material or texture of the Work. A change shall be deemed material if it alters the form, fit, or function of the Work, or modifies its dimensions by more than five percent (5%). 6. Purchasing Materials, Fabrication, Installation and Delivery. Upon final written approval of the Final Design and Budget, the Artist shall commence fabrication, installation and delivery of the Work, subject to the terms and conditions set forth in Exhibit “A”. The Artist agrees to fabricate, install, and deliver the Work consistent with the approved Final Design and Budget. 7. Time of Performance. Time is of the essence in this Agreement and Artist shall dedicate such time and effort as is necessary to fulfill Artist’s obligations to completely finish and install the Work to the satisfaction of City within the timelines set forth in the Project Schedule specified in Exhibit “B”. Failure to do so will be a material breach of contract, however, the Work may be delayed by circumstances described in Section 25 of this Agreement. City shall make its staff and contractors reasonably available to Artist for consultation and assistance in order to achieve the purposes of this Agreement. 8. Fee Schedule/Manner of Payment. Artist shall be paid according to the fee schedule and manner of payment set forth in Exhibit “C”, which is attached and incorporated by reference. 9. Post-Installation/Maintenance Requirements. The Artist shall provide information on the Work requested by City staff for its registration files including but not limited to technical and post-installation maintenance information in the format provided in Exhibit “D”, copyright registration information, updated biographical information, and a descriptive statement regarding the Work. 10. Documentation of Work. Artist shall provide to the City 20 high resolution (300 dots per inch (“dpi”) minimum) professional quality digital images from 3 various angles documenting the final installed Work. Additional images of not less than 3 megabit (200 dpi minimum) are required documenting the processes of the Work’s fabrication and installation in Phases 2, 3 and 4 in Exhibit “A”. No less than 20 images per each Phase is required. Artist shall also provide City with a complete schedule for maintenance of the Work in the form reflected in Exhibit “D” hereto. 11. Artist’s Representations and Warranties. A. Work Free from Defects. The Artist represents and warrants to the City that the fabrication and installation of the Work will be performed in a workman like manner and that the Work will be free of defects in workmanship or materials, including inherent vice (tendency in physical defects to deteriorate because of the fundamental stability of the components of which they are made), and that the Artist will, at the Artist’s own expense, remedy any defects due to faulty workmanship or materials, which appear within a period of three (3) years from the date the Work is finally accepted by the City. The foregoing warranty is conditional, and shall be voided, by the failure of the City to maintain the Work in accordance with the Artist’s specifications and the applicable conservation standards. The foregoing warranty also does not include repair of damage caused by external forces such as weather and other Acts of God, vandalism, neglect, civil unrest, war, riots, or acts of third parties outside the Artist’s control. Any and all such repairs completed by the Artist shall be free of defects in material and workmanship for the balance of the initial warranty period or ninety (90) days, whichever is longer. B. Restoration of Work Site. Artist agrees and warrants that, within 30 calendar days after the Work is accepted by the City, Artist shall restore the Work site (including the entire area affected by the fabrication and installation of the Work) to a state and condition that is substantially similar to that which existed when the Work was begun. Artist further agrees and warrants that, within the period specified herein, Artist shall repair or replace, as is determined necessary by City, and to the reasonable satisfaction of City, all property (real, personal, or otherwise), which has been damaged, injured or otherwise adversely affected by the acts or omissions of Artist, Artist’s agents, contractors, or employees. Artist shall be solely responsible for all expenses and costs which may be necessary to comply with the requirements of this paragraph, and City shall have no responsibility or liability therefor. C. Infringement and Copyright Indemnity. Artist warrants that the Work is original and solely the product of Artist’s own creative effort and does not infringe the rights, including copyrights, of any person or entity. Artist also agrees to protect, defend, indemnify, and hold city, its mayor and councilmembers, officers, agents and employees harmless from any action, claim, suit or liability based on a claim that work performed under 4 this Agreement by Artist, or Artist’s agents or Artist’s subcontractors, constitutes an infringement of any patent, copyright, trademark, trade name, or other proprietary right of any party. D. Originality of Work. Artist also warrants that, unless otherwise stipulated in writing, the Work is original, that it is an edition of one (1), and that Artist shall not sell, license, perform or reproduce a substantially similar copy of the Work without the prior written consent of City. However, nothing contained herein shall prevent the Artist from creating future works in Artist’s style and manner of working. The Artist sh all not reference or reproduce the Work, or any portion thereof, in a way which reflects poorly upon, disparages, or discredits the City or the Work. E. Maintenance. The Artist represents and warrants to the City that, except as against force majeure, or acts of third parties, the Work will not require maintenance substantially in excess of that described in the maintenance recommendations, to be provided by the Artist to the City in the form of Exhibit “D”. F. Work Free from Hazards. The Artist represents and warrants to the City that the Work will not contain sharp points or edges which the City deems a danger to the public and agrees to cooperate in making or permitting adjustments to the Work, if necessary, to eliminate any hazards which become apparent within one (1) year of the date the Work is finally accepted by the City. If the appearance of such hazards or the City’s determination of a hazard does not relate to a breach of Artist’s warranty pursuant to subsection A above, then the City shall compensate the Artist at rates to be mutually agreed for the work to be performed pursuant to this subsection. G. Liens or Encumbrances. The Artist represents and warrants to the City that the Work is solely the result of the artistic efforts of the Artist and that it will be installed free and clear of any liens, claims, or other encumbrances of any type or from any source whatsoever. H. Compliance with all Laws. In performing services under this Agreement, Artist shall comply with all applicable federal, state, and local laws and regulations, including without limitation applicable state and federal occupational safety and health acts and regulations, and acquisition of all licenses, permits, or approvals that are legally required for Artist to provide any services under this Agreement. I. Applicable Law: Any and all disputes arising under any contract resulting from this Call or otherwise in connection with this Request for Qualifications (RFQ), shall be governed according to the laws of the State of Arizona, and the Respondent submitting an RFQ response agrees that the venue for any action brought to enforce provisions of a contract resulting from this Call shall be in the State of Arizona. 5 J. Non-waiver of Liability: The City, as a public entity supported by tax monies, in execution of its public trust, cannot agree to waive any lawful or legitimate right to recover monies lawfully due it. Therefore, any Respondent submitting a Call response agrees that it will not insist upon or demand any statement whereby the City agrees to limit in advance or waive any right the City might have to recover actual lawful damages in any court of law under applicable Arizona law. Legal Worker Requirements: The City is prohibited by A.R.S. § 41-4401 from awarding a contract to any Respondent who fails, or whose subcontractors fail, to comply with A.R.S. § 23-214(A). Therefore, any Respondent that enters into a contract with the City as a result of this Call agrees that: 1. The Respondent and each subcontractor it uses warrants their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. § 23-214, Subsection A. 2. A breach of warranty under paragraph 1 shall be deemed a material breach of the contract and is subject to penalties up to and including termination of the contract. 3. The City retains the legal right to inspect the papers of the Artist or subcontractor employee(s) who work(s) on the contract to ensure that the Respondent or subcontractor is complying with the warranty under Paragraph 1. K. Authority. Artist warrants that it has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. L. Survival. The representations and warranties in this section shall survive the expiration or sooner termination of this Agreement. 12. Performance Made Impossible. In the event it shall become impossible for the Artist to complete the Work because of illness or injury, this Agreement may be terminated at the sole discretion of City, and, in such event, all completed work, materials, and supplies related to the Work shall be delivered to City and shall, along with the Final Design Proposal, become City's sole property. City shall thereafter have no obligation to make any additional or further payments to Artist, and Artist shall have no further or additional claims against City with respect to the Work or such portion thereof as may be completed, or the Final Design Proposal, or with respect to any matter whatsoever pertaining to, affected by, or embodied in this Agreement. 6 13. Acceptance of Work. A. Title to the Work shall pass to the City upon written notice to the Artist of the City’s final acceptance of the Work, including its installation. City agrees to accept the completed Work unless: (1) The Work was not completed in substantial conformance with the Final Design Proposal or other requirements of Exhibit “B”; or (2) The Work as completed, or any portion thereof does not conform to a reasonable standard of artistic or technical quality. City shall provide its reasons for this finding to Artist in writing no later than ten (10) calendar days after Artist has tendered the Work to the City for City’s acceptance. B. Upon the City’s refusal to accept the Work for the reasons stated in Sections 13(A)(1) or 13(A)(2), City shall have the right to: 1) request that Artist corrects the deficiencies in the Work within 40 calendar days; or 2) terminate this Agreement and recover all sums previously paid to Artist. Both remedies shall be independent and cumulative and in addition to any other remedy available to the City at law or equity. Enforcement of one such remedy shall not be exclusive, nor shall it be deemed an election of such remedy to the exclusion of any other or further remedy. However, nothing contained herein shall limit City’s available remedies at law and equity. C. No payments to Artist shall be deemed as a waiver of City’s right to refuse to accept the Work. 14. Transfer of Title to Work. Title to the Work shall remain with Artist until City has accepted the Work as completed and it is installed to the satisfaction of City except as otherwise indicated in Section 12 above. When City has so certified and provided a written Letter of Acceptance, title shall transfer to City. Artist shall bear all risk of loss of the Work until title has been transferred to City, including obtaining any necessary insurance to insure the Work, and City agrees to inspect Work and accept Work within thirty (30) calendar days of Artist notification of completion, unless the provisions of Section 13(A)(1) or 13(A)(2) apply. 15. City Maintenance of Work. Upon transfer of title of the Work to the City, City agrees to reasonably ensure that the Work is properly maintained and protected. City agrees that it will not intentionally destroy damage, alter, modify, or change the Work in any way. If an alteration should occur, either intentionally or unintentionally, the Work will no longer be represented as the creation of the Artist without the Artist’s written permission. City shall have the right to move or remove the Work from display or deaccession (deaccession means to permanently take the art out of the collection), in 7 City’s sole determination. In the event it becomes necessary to change the placement of the Work, City shall confer with Artist concerning placement, although the ultimate placement of the Work is solely within the City’s discretion. 16. Repair and Restoration of Work. The City shall make minor or emergency repairs without the Artist’s approval or consultation, provided such repairs or restoration work is performed to the satisfaction of the City. It is the policy of City to consult with the Artist regarding repairs whi ch are undertaken during the Artist’s lifetime when practical. To facilitate consultation, the Artist will notify the City of any change in the Artist’s permanent addresses. If the Artist is unable or unwilling to perform any necessary repairs, the City will cause to have such work performed at the City’s own expense. In the event repair of the Work is required, City may give the Artist the opportunity to perform the repairs for a reasonable fee. In the event Artist refuses to make the repairs for such fee, City may arrange for repairs by another qualified person. When emergency repairs are necessary to prevent the loss of or further damage to the Work, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not constitute an artistic alteration. City shall thereafter notify Artist as soon as is practical. 17. Work Authorship. Artist shall retain the copyright to the Work and the right to claim authorship of the Work. City shall ensure that Artist’s name is publicly displayed on, at, or, near the Work. In the event the Work is substantially damaged or altered, City shall no longer represent the Work to be the Work of Artist if Artist gives written notice to City that Artist denies authorship of the Work on the grounds stated in this paragraph. 18. Artist Payment of Contractors and Employees. In the event Artist hires or contracts with employees, subcontractors, or material suppliers, Artist shall pay these employees, subcontractors, or material suppliers out of the payments made to Artist by City for completion of the phase of work for which the employees, subcontractors, or material suppliers provided labor or materials and provide proof of payment to the City prior to completion of the next phase of work. In the case of nonpayment of wages or other amounts due the employees, subcontractors, or material suppliers herein, City may withhold from Artist out of payments due a sum sufficient to pay such persons the amounts owed by Artist absent evidence satisfactory to the City of a legal basis for such nonpayment. All subcontractors shall be properly licensed pursuant to the applicable law. Before performing any work, each subcontractor shall provide to the City and Artist evidence that the subcontractor has workers’ compensation insurance coverage. 19. Indemnity. Artist shall defend, hold harmless and indemnify City, its mayor, councilmembers, agents, officers and employees, from and against any and all claims, actions, damages, costs, liabilities, demands, losses, 8 judgments, penalties and expenses of every type and description, including, but not limited to, any fees and/or costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Claims”), including but not limited to Claims arising from personal injury or death, damage to personal, real or intellectual property or the environment, contractual or other economic damages, or regulatory penalties, that arise out of, pertain to or relate to any negligent act or omission, recklessness or willful misconduct of Artist, their subcontractors or agents, and their respective officers and employees, in connection with performance of or failure to perform this Agreement, whether or not such Claims are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage or expense to the extent arising from the sole negligence or willful misconduct of City, its subcontractors or agents, and their respective officers and employees. The existence or acceptance by City of any of the insurance policies or coverages described in this Agreement shall not affect or limit any of City’s rights under this section, nor shall the limits of such insurance limit the liability of Artist. The provisions of this section shall survive any expiration or termination of this Agreement. 20. Insurance. During the entire term of this Agreement, Artist shall maintain the insurance coverage described in this section. Full compens ation for all premiums that Artist is required to pay for the insurance coverage described herein shall be included in the compensation paid to Artist under this Agreement. No additional compensation will be provided for Artist’s insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City. It is understood and agreed by the Artist that their liability to the City shall not in any way be limited to or affected by the amount of insurance coverage required or carried by the Artist in connection with this Agreement. A. Minimum Scope & Limits of Insurance Coverage. (1) Commercial General Liability Insurance, providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage and personal injury, arising out of activities performed by or on behalf of Artist, its sub-consultants, and subcontractors, products and competed operations of Artist, its sub-consultants, and sub-contractors, and premises owned, leased, or used by Artist, its sub-consultants, and subcontractors, with limits of not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) combined. The policy shall provide contractual liability and 9 products and completed operations coverage for the term of the policy. (2) Automobile Liability Insurance, providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per accident. The policy shall provide coverage for owned, non- owned and/or hired autos as appropriate to the operations of the Artist. No automobile liability insurance shall be required if Artist completes the following certification: “I certify that a motor vehicle will not be used in the performance of any Work or services under this agreement.” ________ (Artist initials) (3) Workers’ Compensation Insurance with statutory limits, and Employers’ Liability Insurance, with limits of not less than one million dollars ($1,000,000). The Worker’s Compensation policy shall include a waiver of subrogation in favor of the City. If no work or services will be performed on or at City facilities or City property, the City representative may waive this requirement by selecting the option below: Workers’ Compensation waiver of subrogation in favor of the City is not required ______ (City representative initials). No Workers’ Compensation insurance shall be required if Artist completes the following certification: “I certify that my business has no employees, and that I do not employ anyone. I am exempt from the legal requirements to provide Workers' Compensation insurance.” _________ (Artist initials) B. Additional Insured Coverage. (1) Commercial General Liability Insurance: The City, its elected officials, employees, agents and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of activities performed by or on behalf of Artist, its sub-consultants, and subcontractors; products and completed operations of Artist, its sub- consultants, and subcontractors; and premises owned, leased or used by Artist, its sub-consultants, and subcontractors. 10 (2) Automobile Liability Insurance: The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability. C. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: (1) Artist’s insurance coverage, including excess coverage, shall be primary insurance as respects City, its elected officials, employees, agents and volunteers. Any insurance or self- insurance maintained by City, its elected officials, employees and volunteers shall be in excess of Artist’s insurance and shall not contribute with it. (2) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected officials, employees, agents and volunteers. (3) Coverage shall state that Artist’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. (4) City will be provided with thirty (30) calendar days written notice of cancellation or material change in the policy language or terms. D. Verification of Coverage (1) Artist shall furnish City with a certificate of insurance and required endorsements evidencing the insurance required within twenty (20) calendar days after execution of this agreement to the City Attorney. Copies of policies shall be delivered to the City within twenty (20) calendar days upon demand. Certificates of insurance shall be signed by an authorized representative of the insurance carrier. (2) The City may terminate this Agreement if the certificates of insurance and endorsements required have not been provided to the City Attorney within twenty (20) calendar days of this Agreement. The City may withhold payments to Artist and/or terminate the Agreement if the insurance is canceled or Artist otherwise ceases to be insured as required herein. 11 E. Subcontractors. Artist shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in subparagraph A, above. 21. Copyright. Artist expressly reserves every right available to Artist, at common law or under the Federal Copyright Act. Artist authorizes the City to make, and to authorize the making of, photographs and other two - dimensional reproductions of the Work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following are among those deemed to be reproductions for non-commercial purposes: brochures and pamphlets pertaining to the City; City-purchased advertising that promotes programs and services of the City; reproduction in exhibition catalogues, books, photographs, postcards, posters, and calendars; in art magazines, art books and art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides and film strips not intended for a mass audience; and television from stations operated for educational purposes or on programs for educational purposes from all stations, and depictions on social media or other electronic medium. 22. Waiver of VARA Rights. Artist waives any and all rights Artist may have with respect to The Work under the federal Visual Artists Rights Act (“VARA”) of 1990 (17 U.S.C. §§ 106A and 113(d)), and any other local, state, federal or international laws that convey rights of the same nature or any other typ e of moral right protecting the integrity of works of art. 23. Location of Work. The final location of the Work shall be determined by the City Council. 24. Representatives. Any notices or demands from the Parties shall be in writing and served either personally or by first-class mail. Service shall be conclusively deemed made at the time of personal service or the time of deposit in the mail, return receipt requested. Any notice or demand shall be given to the following addressees: City Representative: Artist: Rudy Esquivias, DSD Director Trevor O’Tool 300 E. Superstition Blvd. 1445 E. Hampton Street Apache Junction, AZ 85119 Tucson, AZ 85719 480-474-5083 928-208-7836 resquivias@apachejunctionaz.gov Artist shall notify the City Representative in writing of any change of mailing address, email address and phone number. Failure to do so shall constitute a waiver of Artist’s rights under this Agreement during the time of the omission. 12 25. Excuse from Performance. A. In the event Artist’s performance of any of its obligations or undertakings under this Agreement are delayed, interrupted, or prevented by an act of God, unforeseen conditions, unusually severe weather, or occurrences that are beyond the control of the Parties to this Agreement, Artist shall be excused from any further performance for whatever period of time after the occurrence necessary to remedy the effects of that occurrence. Artist shall notify City in writing within ten (10) calendar days after any occurrence described in this section that may delay Artist’s performance. City shall amend the Project Schedule when, in its determination and sole discretion, Artist’s performance has been excused, and the delay or interruption has resulted in a material change in the time for performance. B. In the event the installation site is not adequately prepared for receipt of the Work as scheduled, or delivery or installation is delayed due to a material failure on the part of the City or its subcontractors, then the City shall promptly act to address the problem(s) identified by Artist. If such an event occurs, timelines for performance by Artist shall be extended as needed in the sole discretion of the city, provided, that none of the delays are caused in whole or in part by Artist. Site preparation by City shall not include site measurements, which shall be the sole responsibility of Artist. 26. Press Releases. Artist shall not make any public information release in connection with services performed under this Agreement without the prior written permission of the City. 27. Tax Implications and Consequences. The City makes no representations as to the tax consequences associated with the payment of funds related to this Agreement, and any determination related to this issue is the sole responsibility of the Artist. Artist acknowledges consulting with its own tax advisors regarding this transaction or having had an opportunity to do so prior to signing this Agreement. Artist acknowledges the City cannot provide advice regarding the tax consequences or implications for payment made in exchange for the Work or related services. 28. Exhibits. All exhibits referenced in this Agreement are attached and are by this reference incorporated as if set forth fully herein. 29. Entire Agreement. This Agreement and any attachments represent the entire agreement between City and Consultant and supersede all prior negotiations, representations or agreements, either express or implied, written or oral. It is mutually understood and agreed that no alteration or 13 variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the Parties hereto. Written and signed amendments shall automatically become part of the supporting documents, and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 30. Severability. City and Consultant each believe that the execution, delivery, and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall r etroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments, and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 31. Waiver. Neither City’s acceptance of, or payment for, any work performed by Artist, nor any waiver by the Parties of any default, breach or condition precedent, shall be construed as a waiver of any provision of this Agreement, nor as a waiver of any other default, breach or condition precedent or any other right hereunder. No waiver shall be effective unless it is in writing and signed by the City. 32. Attorney Fees and Enforcement Thereof. Parties will bear their own costs and attorney fees incurred in connection with this Agreement, and any enforcement thereof. 33. Independent Contractor Status. The Artist is an independent contractor, and no relationship of employer-employee shall exist between Artist and the City for any purpose whatsoever. Artist shall not be entitled to any benefits payable to employees of the City. Artist shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as agents or to bind City to any obligations whatsoever. 34. Enforcement of Agreement. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Arizona. Venue of any litigation arising out of or connected with this Agreement shall lie exclusively in the state trial court or located in Pinal County in the State of 14 Arizona, and the Parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts. The Parties waive any rights to change of venue. 35. Dispute Resolution. If any dispute is submitted to a third party for resolution, all fees, expenses, and costs connected therewith shall be borne jointly and equally by City and Artist. The previous sentence notwithstanding, each Party shall bear its own attorneys’ fees and costs. 36. Assignment/Delegation Prohibited. The expertise and experience of Artist is a material consideration for this Agreement. Artist shall not assign/delegate any right or obligation pursuant to this Agreement. Any attempted or purported assignment/delegation shall be void and of no effect and shall be considered a material breach of contract. 37. Binding Effect. All rights and obligations of Artist pursuant to this Agreement shall be personal to Artist and shall terminate upon either the legal disability or incompetence of Artist or upon the death of Artist, except the rights provided to Artist under copyright laws. 38. Term; Termination. A. This Agreement shall become effective on the Effective Date set forth on the first page of the Agreement and shall continue in effect until the Parties have fully performed their respective obligations under this Agreement, unless sooner terminated as provided herein. B. City shall have the right to terminate this Agreement at any time by giving a written notice of termination to Artist. If City gives such notice of termination, Artist shall immediately cease rendering services pursuant to this Agreement. If City terminates this Agreement: (1) Artist shall, not later than five (5) calendar days after such notice of termination, deliver to City copies of all information prepared pursuant to this Agreement. (2) City shall pay Artist the reasonable value of services rendered by Artist prior to termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Artist, had the Agreement not been terminated. In this regard, Artist shall furnish to City such financial information as, in the judgment of the City, is necessary for City to determine the reasonable value of the services rendered by Artist. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity. 15 39. Conflict of Interest Statute: This Agreement is subject to, and may be terminated by City in accordance with, the provisions of A.R.S. § 38-511. 40. Political Activities: Artist and Artist’s employees are prohibited from engaging in any partisan political activity with respect to candidates for local political office beyond the private expression of opinion, registering as a member of a political party, circulating and signing nomination petitions, soliciting any contributions in cash or services to support a candidate, and voting in any special, primary or general election. Artist shall not engage in any partisan political activity of any kind or solicit any contribution in cash or services to support any candidate for public office. If Artist or Artist employee engages in said activities, they shall make it clear that they are doing so in their personal and private capacity. In this section, “local political office” means the Mayor and Council offices for the City of Apache Junction. 16 IN WITNESS WHEREOF, Artist and City have executed this Agreement as of the day and year first above stated. ARTIST: __________________________________ Trevor O’Tool CITY OF APACHE JUNCTION An Arizona municipal corporation By:_________________________________ Walter “Chip” Wilson, Mayor APPROVED AS TO FORM: _______________________________ Joel Stern, City Attorney ATTEST: _______________________________ Jennifer Pena, City Clerk 17 STATE OF ARIZONA ) ) COUNTY OF ______________) The foregoing was subscribed and sworn to before me on this______day of_________________, 2022, by Trevor O’Tool. ____________________________ Notary Public My Commission Expires: _________________________ STATE OF ARIZONA ) ) COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me on this______day of_________________, 2022, by Walter “Chip” Wilson, as Mayor of the City of Apache Junction, Arizona, an Arizona municipal corporation. ____________________________ Notary Public My Commission Expires: _________________________ 18 EXHIBIT “A” PURCHASING MATERIALS, FABRICATION, INSTALLATION AND DELIVERY 1. Artist Completion of the Work. Artist shall purchase, at Artist’s sole expense, all labor, supplies, materials, equipment, and other items required to design, fabricate, deliver, and install an exterior artwork (“Work”) to the satisfaction of City and in substantial conformance with Artist’s Final Design. 2. Review of Fabrication. City staff shall have access to review the Work in progress, at regular intervals, to allow the City to confirm that the fabrication is consistent with the approved Final Design. The Artist shall make such access available to City staff during reasonable business hours of the City. 3. Phases to be Completed by Artist. Artist shall not commence performance of any Phase identified in this Exhibit “A” until Artist receives a written “Notice to Proceed” from the City for each Phase. All work shall be performed in accordance with the Project Schedule specified below. Artist shall complete the following phases: A. Phase 1: Purchasing Material, Supplies, Permits and report with invoice. B. Phase 2: 50% Completion of Work. After receipt of City’s Notice to Proceed, Artist shall fabricate the Work to 50% completion, in accordance with all Final Proposal drawings and Construction Drawings approved by the City. City shall have the right to view the Artist’s Work in progress, at a mutually agreeable time and/or require the Artist to send images documenting the progress. This phase will not be complete until City approves 50% completion in writing, to City’s reasonable satisfaction. The Artist shall submit photo-documentation and report with invoice. C. Phase 3: Fabrication of Work to 100% Completion. After receipt of City’s Phase 3 Notice to Proceed, Artist shall fabricate the Work to 100% completion, in accordance with all Final Proposal drawings and Construction Drawings approved by the City. City shall have the right to view the Artist’s Work in progress, at a mutually agreeable time and/or require the Artist to send images documenting the progress. This phase will not be complete until City approves 100% completion in writing, to City’s reasonable satisfaction. The Artist shall submit photo-documentation and report with invoice. D. Phase 4: Deliver and Complete Installation of Work. After receipt of City’s Phase 4 Notice to Proceed, Artist will install the Work at the specific location as described in the Final Design and in accordance with the installation methods approved by the City. Artist is responsible for the cost 19 and installation of any lighting and any structural support, footing, or base required for the Work. Artist shall provide City with a written list of the workers, vehicles, and equipment to be involved in installation at least 30 calendar days in advance of installation. Artist shall perform the installation in such a manner that it shall not constitute a private or public nuisance. Artist installation shall not cause damage or destruction to facilities, equipment or other property of the City or adjoining property owners, and Artist shall reimburse City for any such damage or destruction. Upon completion of installation, Artist shall restore the installation site, as specified in Section 11(B) of the Agreement. This phase will not be complete until City approves the installation in writing, to City’s reasonable satisfaction. Artist must submit a minimum of 20 high resolution digital images (no less than 20 megabytes) of the fabrication and installation of the Work, and the completed Work to City. The Artist shall submit photo- documentation and report with invoice. E. Phase 5: Technical and Maintenance report. Once the Work has been fabricated and installed, and all services have been completed by the Artist as required by this Agreement, the Artist shall submit a Technical and Maintenance Report in the format of Exhibit “D” to the City Representative, accompanied by 20 high-resolution professional digital images (no less than 20 megabytes) illustrating several views and details, substantiating the completion of the installed Work. This report is required to secure final approval and acceptance of the Work by the City. Upon receipt of the City the Artist shall submit the invoice. F. Phase 6: Acceptance of Work. Artist will submit proof of all Final and Special Inspection Documents. Title to the Work shall pass to the City upon written notice to the Artist of the City’s final acceptance of the Work, including its installation, at which time the Artist shall submit the final invoice. G. Phase 7: Public Presentation of Completed Work. If asked, Artist will deliver one public lecture regarding the Work within one year of installation on a date and under conditions to be mutually determined by the Artist and City Representative. The Artist may, as part of this Agreement, be required by the city with reasonable advance notice, to discuss the Work with the general public and/or press/media representatives in special meetings scheduled for this purpose. 20 EXHIBIT “B” PROJECT SCHEDULE Project Schedule. Artist must complete the Phases referenced in this Exhibit within the Project Schedule specified below unless the Parties agree to modify this schedule through a written amendment to this Agreement. Phase Start Committed Date 1 Receipt of City’s Notice to Proceed - Purchasing Material, Supplies, Permits On or before November 2022 2 Receipt of City’s Notice to Proceed - Fabrication of Artwork to 50% Completion On or before January 2023 3 Receipt of City’s Notice to Proceed - Fabrication of Artwork to 100% Completion On or before March 2023 4 Receipt of City’s Notice to Proceed - Delivery and Completed Installation of Artwork On or before April 2023 5 Technical and Maintenance Report On or before May 2023 6 Acceptance of Completed Work, inclusive of installation On or before June 2023 7 Public Presentations, if required On or before June 2023 21 EXHIBIT “C” FEE SCHEDULE AND MANNER OF PAYMENT 1. Artist’s Compensation. The total of all fees paid to Artist for the performance of all services set forth in this contract, including normal revisions (hereafter the “Services”), shall not exceed the total sum of $60,000. In the event Artist incurs costs in excess of this not-to-exceed amount, Artist shall pay such excess from Artist’s own funds. City shall not be required to pay any part of such excess and Artist shall not have any claim against City on account of any cost overruns. If the City approves any modification of the Final Design or Construction Drawings which results in cost savings such as, but not limited to, the deletion of an element of the Work, the substitution of lesser quality, quantity and/or cost materials with no offsetting upgrade of other materials, or the reduction in the Work’s size, the cost savings attributable to the modification will not be paid to the Artist. 2. Payments to Artist. Payments to Artist shall be made within 30 calendar days after City’s receipt of Artist’s invoices. Except for the initial payment upon execution of the Agreement, all payments will be made to Artist after City’s written approval of each Phase. Artist shall be responsible for the cost of supplying all documentation necessary to verify the billings to the satisfaction of City. All invoices must contain an itemized description of the services performed under that invoice. No payment shall be made if Artist is in default of this Agreement or if any Phase is not completed to the satisfaction of City. City shall be the sole determiner of when a Phase has been completed to its satisfaction. All invoices shall be emailed to the City Representative identified in Section 24 of the Agreement. Artist agrees that City has no obligations regarding commissions or any agreement with galleries or agents with whom the Artist may have contracted, and City is not responsible for paying Artist’s sales tax on materials. 3. Internal Revenue Service. The City shall report payments made to Artist in a 1099 form submitted annually to the Internal Revenue Service during the term of the Agreement. The Artist shall be responsible for payment of federal and state income taxes on any net income arising from this Agreement. 4. Taxes. Artist shall pay, when and as due, any and all taxes incurred as a result of Artist’s compensation hereunder, including estimated taxes, and shall provide City with proof of the payment upon request. 22 5. Expenses. All expenses incurred on behalf of the Work in accordance with the Budget shall be paid by the Artist and are included in the basic fee above. Expenses shall include transportation-related expenses, room and board during the Artist work-related trips to Apache Junction, insurance, consultant fees, telephone, mail, photocopying and material expenses incurred to prepare the site, and fabricate, transport and install the Work. 6. Fee Schedule. Artist shall be paid for the performance of the Work and related Services according to the following fee schedule: An amount not to exceed ($10,000) of the total Budget Phase Design Phase Services performed Payment Amount EXECUTED CONTRACT by both parties – City’s Notice to Proceed 1 Upon receipt of Project Timeline, Development & Engineering Plan, Budget $5,000.00 2 Upon receipt of Updated Final Presentation Materials; presentation $3,000.00 An amount not to exceed ($50,000) of the total Budget Phase Fabrication/Installation Services performed Payment Amount 1 City’s written approval of the Final Design and Budget - Purchasing Material, Supplies, Permits $12,000.00 2 City’s written approval of Fabrication of Artwork to 50% Completion $7,000.00 3 City’s written approval of - Fabrication of Artwork to 100% Completion $5,000.00 4 City’s written approval of - Delivery and Completed Installation of Artwork $8,000.00 5 City’s written approval of – Technical and Maintenance Report $5,000.00 6 City’s written Acceptance of Work – transfer of title $5,000.00 7 Upon receipt of Public Presentation of completed and installed Work $10,000.00 7. Additional Services. “Additional Services” are those services related to the scope of services of Artist but not anticipated at the time of execution of this Agreement. Additional Services shall be provided 23 only when an amendment authorizing the Additional Services is approved by City in accordance with City’s amendment procedures. City reserves the right to perform any Additional Services with its own staff or to retain other consultants to perform the Additional Services. 8. Accounting Records of Artist. During performance of this Agreement and for a period of three (3) years after completing all Services and Additional Services hereunder, Artist shall maintain all accounting and financial records related to this Agreement, including, but not limited to, records of Artist costs for all Services and Additional Services performed under this Agreement, in accordance with generally accepted accounting practices, and shall keep and make the records available for inspection and audit by representatives of the City upon reasonable written notice. 24 EXHIBIT “D” POST INSTALLATION MAINTENANCE REQUIREMENTS FORMAT FOR TECHNICAL AND MAINTENANCE RECORD I. GENERAL INFORMATION: Artist Collaborators Title of artwork Dimensions (H x W x D) (please provide in both inches and centimeters; record height first, then width, then depth if needed or diameter; if a work is irregular or circular in shape, state as such in parenthesis; if work involves multiple pieces, measure the significant parts as well as the whole; measure the work separately from the frame or pedestal; include the dimensions of the frame or pedestal.) Date completed Location General Description Copy of any construction or As-Built Plans Fabricator(s) II. ARTWORK INFORMATION (in-depth information for overall project and for each individual element) Medium and Description of Materials (include materials thickness, welding rod alloy or joint material, casting alloy, wax body, glass or fiber type) Special Methods Utilized in Execution of Artwork (welding or joint method, technique or construction method - attach fabrication drawings) Material Finish (glaze, paint color and type, sanding grit, tool pattern, patina, surface sealer) Installation Method(s) (foundation installation structure, bolt/pin size, grout) Placement of artwork (cautions regarding sunlight, heat, etc.) III. VENDORS/PARTS/STORAGE (include supplier’s name, address and phone number, description for all components of project, attach copies of manufacturer specifications whenever possible) IV. REGULAR MAINTENANCE SCHEDULE (include cleaning agents and recommended cleaning procedure, yearly maintenance schedule for the entire piece and recommended procedure to check any electrical or mechanical parts that are integrated in this work) V. SPECIAL CONSIDERATIONS AND/OR ADDITIONAL PERTINENT INFORMATION Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-372 Agenda Item No. 4. Agenda Date: 6/21/2022 Sponsor: Doug Wirthgen In Control: City Council MeetingIndex: Consideration of approval of a telecommunications license and right-of-way use agreement between the City of Apache Junction and Intrepid, LLC network services. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Apache Junction Information Technology (IT) Department DATE: June 20, 2022 TO: Honorable Mayor and City Councilmembers THROUGH: Bryant Powell, City Manager FROM: Doug Wirthgen, IT Director SUBJECT: Intrepid Telecommunications and Rights-of-Way License Agreement The City of Apache Junction was approached by Intrepid, an internet service provider (“ISP”), requesting to provide broadband services to city residents, businesses, and the city itself. Negotiations for this telecommunications license agreement have been successful. Attached are the agreed upon terms. Intrepid will secure the appropriate licenses, encroachment, and other permits required by the city for the placement of its facilities in the city’s streets/rights-of-way. State law requires all fiber providers be treated in a competitively neutral and non-discriminatory manner. Below is a typical fiber installation in city rights-of-way. Intrepid agrees to provide and maintain accurate maps showing the location of all facilities owned or used by Intrepid under the license agreement. Staff recommends approval of the license agreement. TELECOMMUNICATIONS LICENSE AND RIGHT-OF- WAY USE AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND INTREPID, LLC NETWORK SERVICES THIS WIRED TELECOMMUNICATIONS LICENSE ("LICENSE") AND RIGHT-OF- WAY USE AGREEMENT ("Agreement") is dated this day of , 2022, by and between the City of Apache Junction, an Arizona municipal corporation ("City" and/or “Licensor”) and BIF IV Intrepid OpCo LLC, a Delaware limited liability company (collectively "Intrepid" and/or "Licensee"), the City and Intrepid being referred to individually as a “Party” or collectively as the “Parties”. RECITALS A) Intrepid has submitted to the Arizona Corporation Commission an application for a certificate of convenience and necessity to provide intrastate telecommunications services. B) Intrepid desires the ability to be able to install future Facilities within the Public Right-of-Way and/or operate, maintain and repair those Facilities within a portion of the Public Right-of-Way, subject to the requirements of this License and Agreement. C) Intrepid seeks an agreement to use the Public Right-of-Way for telecommunication and Non-Telecommunication Services. D) Intrepid also desires to obtain from the City a telecommunications license to provide Telecommunication Services. E) City is authorized to regulate its streets, alley and public utility easements, and to grant, renew, deny, amend and terminate licenses for and otherwise regulate the installation, operation and maintenance of such Facilities within the City's boundaries or cause the relocation of Facilities at Licensee’s sole expense pursuant to Apache Junction City Code, Vol. I, Chapter 13, and by virtue of federal (47 U.S.C. § 253) and state statutes (including, but not limited to A.R.S. §§ 9-581, 9-582, and 9-583), by the City's police powers, its authority over Public Right-of-Way, and its other governmental powers and authority. F) City wants to reserve rights to construct, use and allow others to construct and use additional improvements in the Public Right-of-Way. G) Intrepid agrees to provide and maintain accurate maps showing the location of all Facilities owned or used by Intrepid on Public Right-of-Way within City, and to comply with reasonable mapping requirements as City may establish from time to time. 2 H) Intrepid will secure the appropriate licenses, encroachment and other permits required by the city code for the placement of its Facilities placed in the City's boundaries. I) Intrepid has agreed to comply with public property use requirements that City has established and may reasonably establish from time to time in accordance with state and federal laws. AGREEMENT NOW THEREFORE, for and in consideration of the foregoing, the amounts hereinafter to be paid by Intrepid, and the covenants and agree ments contained herein to be kept and performed by Intrepid, and for other good and valuable consideration, the City hereby grants to Intrepid a telecommunication license ("License") and permission to use the Public Right-of-Way pursuant to the terms and conditions set forth herein. SECTION 1. DEFINITIONS ACC: the Arizona Corporation Commission. A.R.S.: Arizona Revised Statutes. Backbone: a high-speed fiber optic cable network that interconnects smaller, independent networks and is the through-portion of a fiber optic cable transmission network (not the spurs that branch off). Cable: cable bundles containing one or more fiber optic strand(s). Call: the operations required to set up or establish, maintain, and terminate or release a connection through a switched or voice-over-internet protocol telephone network in support of a communication between two or more stations, a call comprises a sequence of events that begins when an end user at an originating station initiates a call request to a switch that may work in conjunction with other switches to establish a connection to an end user at a destination station, and concludes when one party (user) terminates the connection. Claim(s): losses, charges, damages, suits, actions, payments, judgments, demands, expenses and costs, including, but not limited to, attorney's fees incurred through all appeals. Coarse Wavelength Division Multiplexing or ("CWDM”): a variation of WDM that carries four or more wavelengths per fiber that is designed for short to medium haul networks (regional and metropolitan areas). Commercial Mobile Radio Services: two-way voice commercial mobile radio service as defined by the FCC in 47 U.S.C. § 157. 3 Common Carrier: a company offering domestic or foreign communication by wire or radio or the domestic or foreign transmission of energy to the general public on a non-discriminatory basis. Conduit: a pipe of either metal, ceramic or plastic that is intended to house and protect buried Cables. Conduit System: any combination of Ducts, Conduits, manholes and handholes joined to form an integrated whole. Contractor: any agent, person, firm, partnership, corporation, association or other organization, or a combination of any of them, or any subcontractor hired by Intrepid representatives that performs services or provides goods relating to this Agreement. Dark Fiber: fiber optic strands that are not connected to transmission equipment owned by Licensee. Dense Wavelength Division Multiplex or ("DWDM”): is a variation of WDM but with much higher bandwidth and density. Duct: a single enclosed tube, pipe or channel for enclosing and carrying cables, wires, and other facilities, but is not a Conduit or Conduit system. Equipment: any tangible asset used to install, repair, or maintain Facilities in any ROW. Facilities: the plant, equipment, and property used in the provision of communication and telecommunication services and not owned by the City, including but not limited to poles, wires, pipe, conduits, pedestals, antenna, junction boxes, manholes, hand holes, connecting equipment, electronic transmitting equipment and other appurtenances placed in, on, or under Public Highways. FCC: the Federal Communications Commission. Fiber Optic Network: a communication system consisting of an optical transmitter to convert an electrical signal into an optical signal to send into the optical fiber, a cable containing bundles of multiple optical fibers that is routed through underground conduits and within buildings and related electronic transmission equipment. Information Service: has the same meaning as set forth in 47 U.S. Code § 153 (24), as amended. Inner-Duct: a pathway created by subdividing a Duct into smaller flexible ducts within a Duct. 4 Intrastate Call: a Call that originates and terminates in the State of Arizona. Interstate Call: a Call that originates in one state, territory, possession of the United States, or the District of Columbia and terminates in a different state, territory, possession of the United States, or the District of Columbia or in a different country than the United States. Interstate Telecommunications Services Provider: a Telecommunications Corporation that places underground or above ground Facilities in the Public Highway for interstate telecommunications services. Interstate Traffic: a communication or transmission that originates in any state, territory, possession of the United States, or the District of Columbia and terminates in another state, territory, possession, or the District of Columbia. Manhole: an enclosure, usually below ground level and entered through a hole on the surface covered with a cast iron or concrete cover, which personnel may enter and use for the purpose of installing, operating and maintaining Cable in a Conduit. Multichannel Video System: includes: A. A "Cable System," as defined at 47 C.F.R. § 76.5(a); B. An "Open Video System," is as defined by 47 C.F.R. § 76.1500(a); C. Any other system providing Multichannel Video Programming Services within the City, where the service is transmitted in whole or in part via wires or lines that are in or cross any ROW within the City, regardless of whether the provider owns, leases or otherwise obtains the right to use the wires or lines, including wires or lines of a telecommunications provider used pursuant to tariff or otherwise for that purpose; provided that any over-the-top video streaming services utilized by Intrepid customers but not provided by or billed to them by Intrepid or its affiliates, is not considered a Multichannel Video Programming Services; D. Any other system providing Multichannel Video Programming Services within the City where a license or similar permission or approval from the City is required under applicable law. For purposes of this License, "Multichannel Video Programming Services" means multiple channels of video programming where some or all of the video programming is generally considered comparable to programming provided by a television broadcast station or by a direct to home satellite service; provided that any over-the-top video streaming services utilized by Intrepid’s customers but not provided by or billed to them by Intrepid or its affiliates, is not considered a Multichannel Video Programming Services Multichannel Video Programming 5 Services specifically includes, but is not limited to, "cable service" as the term is used in Title VI of the Federal Communications Act of 1934. Non-Telecommunications Services: includes Information Services and leasing of physical facilities such as Dark Fiber and Conduit as long as all authority has been approved in compliance with applicable federal and state law and city codes. Parties: collectively the City of Apache Junction and Intrepid. Party: individually the City of Apache Junction or Intrepid. Person: any natural person or legally-established entity. Point of Presence or (“POP”): a telecommunications facility where network equipment is located to be used to connect customers to a Backbon e. Provider: a Telecommunications Corporation that constructs, installs, operates or maintains telecommunications Facilities in the City Public Highways. Public Emergency: any condition which, in the sole opinion of City officials, poses an immediate threat to the lives or property of the citizens or others caused by any natural or man-made disaster, including but not limited to, storms, floods, fire, accidents, explosions, major water main breaks, hazardous material spills, etc. Public Highway: the publicly-owned or controlled roads, streets and alleys and all other dedicated public ROWs and any public utility easement (“PUE”) of the City. Public Service Corporation: a corporation engaged in furnishing gas, oil, or electricity for light, fuel, or power; or water , fire protection, or other public purposes; or in furnishing, for profit, hot or cold air or steam for heating or cooling purposes; or engaged in collecting, transporting, treating, purifying and disposing of sewage through a system, for profit; or in transmitting messages or furnishing public telegraph or telephone service, and all corporations other than municipal, operating as common carriers (however, a message transmitting company is only a public service corporation if it is a common carrier). Public Utility Easement or (“PUE”): an easement or other real property right that is granted dedicated, reserved or otherwise conveyed for the use of utility facilities, regardless of the language used in creating such right, and regardless of the inclusion of other authorized uses. Public Right-of-Way or ("ROW”): an area of land, which by deed, conveyance, agreement, easement, dedication, usage or process of law, is reserved or dedicated to the City for public purposes, including, but not limited to, street, roadway, highway, alley, public utility, pedestrian walkway, bikeway, or drainage. 6 Service Lateral: an underground facility that is used to transmit, distribute, or furnish communications from a common source to an end-use customer. Telecommunications: the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received, but does not commercial mobile radio services, pay phone services, interstate services, cable services, or the leasing of dark fiber for transmission purposes. Telecommunications Corporation: any Public Service Corporation to the extent that it provides telecommunications services in Arizona. Telecommunications Services: the offering of telecommunications for a fee directly to the public, or to such users as to be effectively available directly to the public, regardless of the facilities used. Users: unrelated or unaffiliated third parties of Intrepid that are leasing Intrepid's Facilities. Wavelength Division Multiplexer or ("WDM”): a device that combines optical signals from multiple different single-wavelength end devices onto a single fiber. SECTION 2. PERMISSION TO USE PUBLIC RIGHT-OF-WAY 2.1 Grant and Acceptance of License and Agreement. Subject to the provisions of this Agreement, the Apache Junction City Code, and Arizona and federal law, City hereby grants to Intrepid permission to use the designated portions of the ROW set- forth on Exhibit "A", as may be amended from time to time by agreement of both Parties, subject to and conditioned upon Intrepid's full, timely, complete and faithful performance of all obligations to be performed or required hereunder by Intrepid, and Intrepid hereby accepts the terms and conditions of this License and Agreement. 2.2 Conditions of Grant: Permitted Uses. Intrepid's use and occupation of the ROW shall in all respects conform to all and each of the following provisions: 2.2.1 Permitted Uses. Intrepid shall use the portions of the ROW solely for the uses allowed under this License and Agreement and shall not conduct or allow to be conducted by any person under Intrepid’s control any other activity at or from those designated portions of the ROW where it has permission to be. The permitted uses of the ROW are limited to the following: 2.2.1.1 Constructing, maintaining, repairing and operating the Facilities as described in this Agreement for the provision of Services and the leasing of Facilities. 7 2.2.1.2 To the extent that any Fiber Optic Networks within the route within the City carry intrastate and/or interstate Calls as referenced by A.R.S. §§ 9-582 and 9-583, the City hereby grants Intrepid a revocable and nonexclusive License to run concurrently with the term of this Agreement. The permission granted herein shall be limited to the Fiber Optic Network routes identified in the map submitted to the City as part of Intrepid's application and to future expansions or extensions that are done by Intrepid in accordance with Section 12. 2.2.1.3 Such additional related uses for which City may give consent from time to time. Such additional uses may only be conducted following City's giving to Intrepid written notice of such consent. City may terminate or impose conditions and limitations on such consent from time to time in City's sole and absolute discretion by giving subsequent written notice to Intrepid. 2.3 Prohibited Uses. 2.3.1 All other uses of the ROW by Intrepid are prohibited except as permitted in Section 2.2.1 of this Agreement Intrepid will not allow third parties to use the Facilities for any use that Intrepid itself does not have the authority under this License and Agreement in connection with the use of the Facilities. 2.3.2 The License granted by this Agreement does not allow Intrepid to provide one-way transmissions by itself or anyone else directly to customers or any other type of video programming or other programming or transmission that may be subject to a cable television or video services system license. This License does not allow a Multichannel Video System and/or the providing of Multichannel Video Programming Services and the Parties agree that a separate agreement will be needed in order for Intrepid to have such a system or to provide such services. 2.4 Facilities Limited. The authority to install and construct any Conduit System and/or Fiber Optic Networks on City property granted herein authorizes Intrepid only to install such Fiber as is necessary to construct and operate the infrastructure described in this Agreement in order to provide the authorized services and does not authorize Intrepid to install or construct any Facilities not expressly provided for in this Agreement. 2.5 Empty Conduit. To the extent that Intrepid occupies the ROW solely with empty conduit and/or leased dark fiber and/or uses the City's ROW to provide services other than Telecommunication Services as defined by A.R.S. § 9-581 or Information Services, such use and/or occupation of the ROW is subject to the terms and conditions of this Agreement and any applicable fees, permits and laws. 2.5.1 Intrepid warrants and represents to the City that at the time of the execution of this Agreement, it is not leasing Dark Fiber or Conduit to third 8 party Users within the Public Rights-of-Way. In the future, should Licensee lease any of its Dark Fiber or Conduits to Users, Intrepid shall notify the City within forty-five (45) calendar days of the location and footage of such leased Dark Fiber or Conduit route(s), and the Users of each such leased facility, and shall be in compliance at all times with Section 4.3 below. 2.6 Compliance with Laws. Intrepid shall comply with all applicable laws as amended from time to time, including but not limited to, the Apache Junction City Code and Arizona and federal law in the exercise and performance of its rights and obligations under this Agreement. If it is necessary for Intrepid to comply with any law or regulation of the FCC or the ACC to engage in the business activities anticipated by this Agreement, Intrepid shall comply with such laws or regulations as a condition precedent to exercising any rights granted by this Agreement, provided however, no such law or regulation of the FCC or ACC shall enlarge or modify any of the rights or duties granted by this Agreement without a prior written modification to this Agreement. Notwithstanding any other provision of this License, a violation of Intrepid’s obligations under this Section 2.6 may result in termination of this License by the City after procedural and substantive due process have been afforded by the City to Intrepid. SECTION 3. NON-EXCLUSIVE RIGHTS/PRIORITY RIGHTS 3.1 Non-Exclusive License. This License is not exclusive. Nothing herein contained shall be construed to prevent City from granting other like or similar grants or privileges to any other person, firm or corporation. When the terms in this License are specific, they will not deny or lessen the powers and privileges granted City under the Constitution and laws of the State of Arizona or the laws and regulations of the United States existing at commencement of this License or at any time thereafter. 3.2 Subject to City's Use or Occupancy. Any and all rights granted to Intrepid shall be subject to the prior and continuing right of City to use the ROW exclusively or concurrently, with any other person or persons, and to manage City's own facilities, include rights granted to the City in the Apache Junction City Code subsequent to the execution of this License. Any and all rights to occupy the ROW granted to Intrepid shall also be subject to all deeds, easements, PUEs, dedications, conditions, covenants, restrictions, encumbrances, and claims to title which may affect public property. Nothing in this License shall be construed to grant, convey, create or vest a perpetual real property interest in land to Intrepid, including any fee or leasehold interest, easement, or any franchise rights. 3.3 Subject to Others' Use or Occupancy. Any right or privilege claimed pursuant to this Agreement by Intrepid for any use of any public ROW shall be subordinate to: A) any prior or subsequent lawful occupancy or use thereof by the City or any other governmental or City-permitted person; B) any prior lawful occupancy or use thereof by any other person; C) any subsequent lawful occupancy or use thereof by any other person in a manner that does not at the time of grant 9 violate Intrepid’s rights under this License; and D) to any prior easements therein, provided however, that nothing herein shall extinguish or otherwise interfere with property rights established independently of this Agreement. 3.4 Rights Reserved to City. There is hereby reserved to City every right and power required pursuant to this Agreement to be herein reserved or provided by any lawful ordinance and Intrepid by its execution of this Agreement agrees to be bound thereby and to comply with any lawful action or lawful requirements of the City in its exercise of such rights or power, heretofore or hereinafter enacted or established. Neither the granting of any Agreement nor any provision hereof shall constitute a waiver or bar to the exercise of any lawful governmental right or power of City. 3.5 City's Modification Rights. Nothing in this Agreement shall be construed to prevent the City from adding to, abandoning, altering, improving, repairing, replacing, realigning, expanding, reducing, or maintaining its Facilities and/or the ROW itself, and for that purpose to require Intrepid, at no expense to the City, to promptly remove, relocate, or at the City’s sole option abandon in place Intrepid's Facilities in order to accommodate the health and safety activities of the City. The City shall not be liable for lost revenues sustained by Intrepid or any party contracting with Intrepid, however caused. SECTION 4. NOTICE OF OTHER USERS 4.1 Third Party Contracts. Intrepid may enter into contracts with Users in the ordinary course of Intrepid's business for use of the Conduit Systems, Dark Fiber, and/or Fiber Optic Networks within the portions of the ROW subject to this Agreement. Such contracts ("User Contracts") shall be subject to all requirements and provisions of this Agreement and the following: 4.1.1 Intrepid shall not allow any person to transmit voice, video or data over the Fiber Optic Networks or otherwise use the Conduit System(s) except under an unexpired and valid User Contract with Intrepid, which contract(s) shall be made available for City inspection upon request. 4.1.2 Intrepid and any person under its control, authority or direction shall not perform any construction, maintenance, repair or other work of any kind in the ROW related to the Fiber Optic Networks, Dark Fiber, or Conduit System(s) without having first securing all City-required encroachment, traffic, and any other health and safety permits, and the identity of such Users must be disclosed to the City upon request but such information will be considered Confidential and Proprietary under Section 31.2.3. All User Contracts shall prohibit such Users from performing any construction, maintenance, repair or other work of any description in the ROW related to the Fiber Optic Networks, Dark Fiber, or Conduit System(s), unless such Users have an agreement with the City. 10 4.1.3 In the event the User Contract provides for the User to construct, install, operate or maintain any portion of the Fiber Optic Networks, Dark Fiber, or Conduit System(s) within the route in the ROW, no such arrangement shall proceed until the User enters into an Agreement with the City for use of the City's ROW. 4.2 Intrepid Responsible For Users. Intrepid shall take prudent and timely steps to ensure that all persons using the ROW through or under Intrepid or this Agreement to comply with this Agreement. Intrepid is responsible for any violations of this Agreement by persons using the ROW through or under Intrepid or this Agreement for whom Intrepid may be legally liable. 4.3 Dark Fiber Leases. Should Intrepid lease Dark Fiber or Conduit to a User within the ROW, Intrepid shall inform the City within forty-five (45) calendar days of the location and length of the Dark Fiber or Conduit route that is being leased through an indefeasible right of use agreement or similar contractual arrangement. Pursuant to Section 21.2.4 of this Agreement, a pro-rated ROW use fee will be calculated from the date the Dark Fiber or Conduit is leased to a User to the anniversary date of the Agreement and such amount will be added on to the annual fee that will be due on the anniversary date of the Agreement. This additional footage will be added to any current leased Dark Fiber or Conduit footage and used in the calculation of the total annual fee owed on the anniversary date of this Agreement. Identification of the User will be kept confidential to the extent allowed by law. If there is a public records request for such information, City will contact Intrepid to allow it an opportunity to seek judicial relief to prevent the disclosure of the Lessee's identity. SECTION 5. DESCRIPTION OF THE SERVICES AND ROUTES 5.1 Intrepid's Authorized Uses. Intrepid intends to use its Fiber Optic Network to provide data and Internet services and point to point broadband services. 5.2 Intrepid's Certification of Convenience and Necessity. Intrepid Application for a Certificate of Convenience and Necessity filed the Arizona Corporation Commission on January 18, 2022, in Docket No. T-21179A-22-0015, seeks authority to provide point to point telecommunication services in Arizona. SECTION 6. REGULATORY CONDITIONS RELATING TO PUBLIC RIGHT-OF-WAY USAGE For purposes of this Agreement, whenever work is done in the ROW relating to any of the Facilities, Intrepid agrees that it is solely responsible for the acts, errors, omissions, and any negligence of any or all of its Contractors and that the obligations of Sections 6 and 7 are imposed on both Intrepid and any of its Contractors, who will be considered Intrepid's agents and for whom Intrepid will be responsible. Intrepid will ensure that Intrepid and its agents comply with ROW use requirements as follows: 11 6.1 Registration. Intrepid agrees to register with the City by completing an application or renewal application form and paying the applicable application fee. 6.2 Notice of Changes. Intrepid shall file a proposed amendment to the registration before it makes any change that would render the registration information incomplete or inaccurate. A change of Intrepid's name or address must be filed at least ten (10) calendar days prior to the date the change becomes effective; a change in the telephone number must be filed ten (10) calendar days before the change becomes effective. 6.3 Facilities Construction. Intrepid is completely responsible for ensuring that its Facilities are constructed, installed, operated and/or maintained in accordance with the Apache Junction City Code and established practices with respect to such ROW and easements such as the proper permits being applied for prior to commencing any work and that the terms and conditions of such permits are strictly followed. 6.4 Plan Approval. Intrepid's use of the ROW and easements under the control of the City shall be according to plans and permit conditions approved by the City Engineer, provided that such approval shall not be unreasonably withheld or delayed. Permit application and inspection fees shall apply to each such Intrepid permit application to use the ROW. 6.5 Interference Minimized. The Facilities to be constructed, installed, operated, maintained, upgraded and removed hereunder, shall be so located or relocated as directed by the City Engineer as to not interfere with public health and safety, traffic, ROW maintenance and modifications, or other authorized uses within said ROW and easements. Any phases of construction and/or installation relating to traffic control, backfilling, compaction and paving, as well as the location or relocation of said Facilities shall be subject to regulation by the City Engineer. 6.6 City's Reserved Powers. Intrepid and its agents shall be subject to the City's exercise of such police, regulatory and other powers as it now has or may later obtain, and Intrepid may not waive the application of the same. City shall have continuing jurisdiction and supervision over any Facilities located within or on ROW. Daily administrative, supervisory, and enforcement responsibilities shall be delegated and entrusted to the City Manager or his or her designee to interpret, administer and enforce the provisions of this License and Agreement. SECTION 7. PLAN APPROVAL, PERMITS, AND INSPECTION 7.1 Required Approvals. No Facilities shall be installed, constructed, located on, or attached to any property within the City until Intrepid has applied for and received approval for permits from the City Engineer. Intrepid shall be solely responsible for any and all acts, errors, omissions and negligence of its Contractor(s) who are involved in the installation, construction, maintenance, repair, location, relocation and any other activity involving Intrepid's Facilities subject to this License and 12 Agreement. Additionally, Intrepid and its Contractor(s) shall comply with all other provisions of the Apache Junction City Code, regarding streets and sidewalks, and other applicable City and/or Maricopa or Pinal County regulations. All rights hereunder are granted under the express condition that the City shall have the power at any time to impose lawful restrictions and limitations upon, and to make regulations as to Intrepid's use of the public ROW as may be deemed best for the public interest, safety, or welfare to the same extent that such restrictions and limitations are applied to all non-governmental users of the public ROW. 7.2 Permits: Licenses. Intrepid shall submit the applicable permit application(s) together with the details, plans and specifications and traffic control plans for City review and approval by the City Engineer, and pay all applicable application, review and inspection fees prior to any and all construction work performed pursuant to the rights granted under this Agreement. Intrepid and/or its Contractor(s) shall abide by all stipulations of all licenses and permits issued. If Intrepid desires to change the location of any portion of the Conduit System(s) and/or Fiber Optic Network(s), including any related Facilities or equipment, from that set forth in the initi al permit application, Intrepid shall apply for and obtain approval for an amendment to the permit prior to installation or construction. 7.3 Multiple Permit Policy. The City may issue reasonable policy guidelines to all licensees/users of its ROW to establish procedures for determining how to control issuance of engineering permits to multiple licensees/users for the same one-mile segments of the ROW. Intrepid agrees to cooperate with the City in establishing such policy and comply with the procedures established by the City Engineer or designee to coordinate the issuance of multiple engineering permits in the same one-mile segments. 7.4 Approval: Denial. City will approve or deny such applications based on the availability of space at the location sought by Intrepid, safety and other considerations in accordance with the City's code, applicable ROW construction regulations and other applicable law. Intrepid and/or its Contractor(s) agree to comply with the terms of any City-issued licenses and permits. 7.5 Construction Standards. Any new Conduit or other Facilities placed in the ROW will be constructed using industry standard horizontal directional drilling and trenching construction methods. Conduit route, depth, trench dimensions, and fill and cap requirements are as determined by the City’s Director of Public Works is required to be twenty-four (24) inches to thirty-six (36) inches for dry utilities and at least eighteen (18) inches horizontal from wet utilities but where the Director determines that greater depth or separation are required for infrastructure safety, then those changed requirements shall apply . Other material placed in the ground may include concrete manholes, generally 4x4x4, pull boxes/handholes and high- density polyethylene (“HDPE”) couplings and elbows, fiber optic cable, splice cases, tracer wire, grounding material, mule tape, jet string and conduit plugs. Intrepid and/or its Contractor(s) will install any new Conduit and access points (manholes/pullboxes) using industry standard practices and in full compliance with 13 Uniform Standard Specifications and Details for Public Works Construction sponsored and distributed by the Maricopa Association of Governments as amended (hereinafter referred to as "MAG"), any City's supplements to MAG, and the City of Apache Junction encroachment and other permit regulations, including but not limited to any and all data conduit standards on file with the city engineer and IT director. All construction activities including, but not limited to trenching barrier safety support, shall strictly follow all state and federal occupational safety and health regulations. 7.6 System Component Changes. If Intrepid desires to change the components of any of the Fiber Optic Network and such change would require Intrepid to obtain a permit, written approval of such change must be obtained from the City Engineer pursuant to the City's permitting process. 7.7 Specifications. The City shall have the right to inspect all construction or installation work performed subject to the provisions of this License and to make such tests as it shall find necessary to meet City standards and the MAG Uniform Standard Specifications and Details for Public Works Construction to ensure compliance with the terms of this License and other pertinent provisions of law. 7.8 New System Installation. Any new Conduit system(s) and/or Fiber Optic Network(s) shall be installed as agreed upon by Intrepid and the City. If portions of this project will take place on the major arterial streets in City, Intrepid and City will work to minimize the inconvenience to the citizens of City and others who use those major arterial streets impacted by the project by developing segments of the project to be completed in sequence. 7.9 Non-Interference. Any Conduit systems and/or Fiber Optic Network(s) to be constructed, installed, operated and maintained under this Agreement shall be located or relocated so as to not interfere with traffic, existing facilities of other utilities or other authorized users over, under or through said Public Highway. Intrepid shall not install, operate, or allow the use of Equipment, methodology or technology that may or would unreasonably interfere with the optimum effective use or operation of City's existing or future fire, emergency or other communications equipment, methodology or technology (i.e., voice or other data carrying receiving or transmitting equipment). If such unreasonable interference should occur, Intrepid shall immediately discontinue using the equipment, methodology or technology that causes the interference until Intrepid takes corrective measures to alter the Fiber Optic Network(s) to eliminate such interference. Any such corrective measures shall be made at no cost to City. Intrepid shall be responsible to ensure compliance with this Agreement by all persons using the ROW through or under Intrepid or this Agreement. 7.10 Co-location & City Conduit. Intrepid's installation of the Facilities shall be reasonably coordinated with other utilities and the City to accommodate opportunities for common installation along with Intrepid's route as set forth in this Agreement. Provided there is sufficient advance notice during the permitting 14 process, Intrepid shall allow the City to either add conduit for the City's benefit during Intrepid's installation or Intrepid shall ins tall conduit for the City's benefit during Intrepid's installation. The City shall pay Intrepid the cost of all materials for such installation. Nothing herein shall require Intrepid to incur any additional expense to accommodate common installations. All installations of cable and/or fiber shall be in Conduit or innerduct as reasonably approved by the City Engineer. 7.11 Facility Location Street Opening. Although the exact placement and location of any additional Facilities shall be determined by the City thro ugh the permit process, Intrepid has expressed its intent and the City Engineer has expressed his or her desire to have any Facilities installed outside of the paved street areas whenever such location is feasible and reasonable. Further, if it is the inte nt and desire of Intrepid for the Conduit System to be placed by horizontal directional drilling under such streets when feasible and reasonable, bore profiles based on vacuum pothole information shall be part of the engineered plans submitted to the City. Arterial streets shall not be bored unless approved by the City Engineer. In the event that a street opening in new pavement or resurfaced pavement cannot be avoided, a non-discriminatory, reasonable surcharge fee solely as determined by the City Engineer to cover damages and early deterioration will be assessed when Intrepid is cutting new or resurfaced pavements less than ten (10) years old. 7.12 Intrepid Representative. Intrepid shall also identify and provide a 24-7 telephone number and email address for a representative, such as a project manager, who shall be the contact person for the City for construction periods. 7.13 Neighbor Notification. Prior to the start of any construction work, Intrepid shall provide written notice to the businesses and/or residences adjacent to the work being done. 7.13.1 If an emergency requires activity without such written notice, Intrepid shall use reasonable best efforts to provide timely actual notice to the owners or other persons having lawful control of the adjoining property. Upon request, Intrepid shall promptly furnish to City documentation of such permission from such other affected property owner. 7.14 Opening or Alteration. Whenever Intrepid or its Contractors shall cause any opening or alteration to be made for any purpose in any public streets, or public places, the opening or alteration shall be completed and restored with due diligence within seven (7) business days or any other such time as required by the City Engineer. Intrepid shall upon the completion of the opening or alteration, restore the property, improvements or landscaping disturbed by Intrepid or its Contractors to a condition substantially comparable to the condition before the opening or alteration and the restoration shall be performed with due diligence within a reasonably prompt time. Intrepid is solely responsible for guarding and protecting the public health and safety during any opening, alteration, or restoration and if traffic control is needed shall only use Apache Junction Police Officers as coordinated through the police chief. 15 7.15 Traffic Control. 7.15.1 All traffic shall be regulated in accordance with MAG and applicable City policies and regulations. 7.15.2 At the time of the pre-construction conference, Intrepid shall designate an American Traffic Safety Services Association (“ATSSA”) certified individual who is well qualified and experienced in construction traffic control and safety, to be responsible for implementing, monitoring, and altering traffic control measures as necessary to insure that traffic is carried through the work area in an effective manner and that motorists, pedestrians, bicyclists, and workers are protected from hazard and accidents. As noted above in Section 7.14, only Apache Junction Police Officers shall be used for traffic control. 7.15.3 Intrepid shall have the full responsibility and liability for traffic control for work performed by Intrepid or their Contractors. Intrepid shall submit a Traffic Control Plan to the City Engineer for approval as part of the ROW encroachment permit application. It shall be noted that Traffic under this Agreement shall include all motor vehicles, bicyclists, and pedestrians. Intrepid shall not begin construction until the Traffic Control Plan is approved by the City Engineer. An approved Traffic Control Plan shall be maintained onsite during all phases of construction, otherwise construction will cease until the Traffic Control Plan is approved. 7.15.4 During construction it may be necessary to alter traffic control as approved by City Engineer. Alterations to traffic control shall be in accordance with the latest edition of Part VI of the Manual on Uniform Traffic Control Devices: "Traffic Control for Streets and Highway Construction and Maintenance Operations"; or City regulations or policies. The most restrictive requirements shall apply. Intrepid shall pay any and all applicable barricade fees. 7.15.5 City will make no payment for traffic control. The cost for any fees shall be Intrepid's sole responsibility. 7.15.6 In the event Intrepid or its Contractor(s) damages any traffic signal equipment, traffic signal conduit, loop detectors and/or circuits, it shall immediately notify the City Engineer and have the damage repaired immediately at its sole expense by an electrical Contractor that has had traffic signal experience and which is pre-approved by the City Engineer. Any damage caused by Intrepid or its Contractor(s) or subcontractors that is repaired by the City will be billed to Intrepid at cost which may include a management fee reflecting the City time consumed by staff in connection to such damage. 16 7.15.7 Intrepid shall notify all adjacent or affected residents or businesses at least forty-eight (48) hours in advance of any street, alley, sidewalk, and driveway closures so that the recipients of said notices can make suitable arrangements to have all vehicles moved to a satisfactory location outside the closed area. 7.15.8 Pedestrian access shall be maintained along the length of the project at all times per the requirements of the Americans with Disability Act (“ADA”) and as approved by City Engineer. 7.15.9 Speed limits shall be strictly enforced. 7.16 Clean Up. Intrepid and/or its Contractor(s) shall, during construction and upon completion of the work, remove all temporary construction facilities, debris, construction marks, and unused materials provided for in the work, and put the work site and public ROW in a safe, neat and clean condition as it was before the commencement of the work. 7.17 Safety. Intrepid and Intrepid's Contractor(s) shall be solely and completely responsible for the conditions of any job site where the infrastructure is being placed, including safety of all persons (including employees) and property during performance of the work. This requirement shall apply continuously and not be limited to normal working hours. Safety provisions shall conform to all applicable federal (including “OSHA”), state, county, and local laws, ordinances, codes, and regulations. Where any of these are in conflict, the more stringent requirement shall be followed. Intrepid's failure to thoroughly familiarize itself with the aforementioned safety provisions shall not relieve Intrepid from compliance with these provisions. 7.18 Blue Stake. Intrepid and its Contractor(s) shall comply with A.R.S. §§ 40- 360.21 through 40-360.32 by participating as a member of the Arizona Blue Stake Center with the necessary records and persons to provide location service of Intrepid's Facilities upon receipt of a locate call or as promptly as possible, but in no event later than two working days. A copy of the agreement or proof of membership shall be filed with the City Engineer. SECTION 8. HAZARDOUS SUBSTANCES 8.1 Applicable Law. Intrepid's and its Contractor(s)' activities upon or about the ROW shall be subject to the following regarding any hazardous or toxic substances, waste or materials, or any substance now or hereafter subject to regulation under the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et. seq., the Arizona Hazardous Waste Management Act, A.R.S. §§ 49-901, et. seq., the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et. seq., or the Toxic Substances Control Act, 15 U.S.C. § 2601, et. seq., or any other federal, state, county or local law pertaining to hazardous substances, waste or toxic substances and their reporting requirements (collectively "Toxic Substances"). 17 8.2 Toxic Substance Restrictions. Intrepid and/or its Contractor(s) shall not produce, dispose, transport, treat, use or store any Toxic Substances upon or about the ROW. The prohibitions of the preceding sentence only shall not apply to: 8.2.1 Ordinary gasoline, diesel fuel or other fuels or lubricants necessary for ordinary use in motor vehicles and ordinary construction machinery permitted upon the ROW. Such materials must be properly and lawfully contained in ordinary quantities in ordinary tanks and receptacles that are permanently installed in such vehicles and machinery, or small portable tanks that are being used for fueling permitted construction machinery. 8.2.2 Electric backup batteries. 8.3 Disposal. Intrepid and/or its Contractor(s) shall dispose of any Toxic Substances away from the ROW as required by law and as reasonably required by City. 8.4 Use Restriction. Intrepid and/or its Contractor(s) shall not use the ROW in a manner inconsistent with regulations issued by the Arizona Department of Environmental Quality (“ADEQ”), or in a manner that would require a permit or approval from the ADEQ or any other governmental agency. The preceding sentence does not prohibit ordinary permits for control of dust during construction permitted by this Agreement. 8.5 Indemnification/Defense/Hold Harmless. In addition to and without limitation of any other indemnities or obligations, Intrepid shall pay, indemnify, defend and hold City, its elected officials, appointees, agents, and employees harmless against any loss or liability incurred by reason of any Toxic Substance on or affecting the portion of the ROW used that is attributable to or directly caused by Intrepid, its Contractor(s) or anyone using the ROW under this Agreement. 8.6 Notice of Toxic Substances. Intrepid and/or its Contractor(s) shall immediately notify City of any Toxic Substance at any time discovered or existing upon the ROW. Intrepid is not responsible for Toxic Substances that may exist at the ROW if Intrepid's Contractors and/or any other persons using the ROW under this Agreement did not do any of the following: (A) participate in the Toxic Substance coming to the ROW; (B) fail to immediately report the known Toxic Substance to City; (C) participate in spreading or otherwise disturbing the Toxic Substance; or (D) exacerbate the effects of the Toxic Substance or the difficulty or cost of dealing with the Toxic Material. 8.7 Acknowledgement. Intrepid understands the hazards presented to persons, property and the environment by dealing with Toxic Substances. Intrepid acknowledges the possibility that the ROW may contain actual or presumed asbestos and other Toxic Substances containing materials. 18 8.8 Notice of Violation. For any violation by Intrepid and/or by its Contractor(s) of this Agreement pertaining to Toxic Substances, Intrepid shall immediately give the City Engineer written notice reporting such violation and disclose the specific steps Intrepid is taking to remediate each such violation. SECTION 9. ON-CALL ASSISTANCE A person (not a recording or otherwise automated system) who works for Intrepid shall be available to staff employees of any City department having jurisdiction over Intrepid's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the installation, operation, maintenance, or removal of its Network. City may contact by telephone the responsible person at Intrepid at the following phone number (866) 371-1860 regarding such problems or complaints, and may use that number in order to reach Intrepid at any time for any emergency matter. Intrepid shall use reasonable efforts to respond to any issues within the time frames specified in its service level agreements. Intrepid shall make arrangements with a local entity to handle any necessary problems or complaints that require a physical presence. SECTION 10. MAPPING REQUIREMENT 10.1 As-Built Drawings. Intrepid shall maintain As-Built Drawings of its Facilities located within the ROW and furnish a copy both electronically (or in a mapping format compatible with the then-current City electronic mapping format as specified by the City) on an annual basis or upon reasonable request by the City. Intrepid shall create and maintain maps of any of its Conduit System and/or Fiber Optic Network routes, new routes, and any above ground equipment located in the ROW and precise and verifiable horizontal and vertical location information and will make this information available to the City. Intrepid will also provide surface-location marking and locating wire of and in all of Intrepid's Facilities that are located underground within any ROW. Such information shall be provided to the City within ten (10) calendar days of installation and subsequent modifications or relocations. The information provided by Intrepid under this section will be accurate to the best of Intrepid's knowledge. Intrepid shall make every reasonable effort to provide accurate and useful information. Intrepid shall be permitted to remove any information from the drawings provided hereunder that is not required by the City Engineer for the City's purposes for the maintenance of public health and safety. 10.2 Failure to Provide Updates. If complete updates are not provided in a compatible format, Intrepid shall pay the actual, reasonable costs the City incurs to update the City's electronic mapping format due to the location or relocation of Intrepid's Facilities. However, before the City incurs any cost to convert updates provided by Intrepid, it will notify Intrepid that it cannot access the updates that have been provided. If within fourteen (14) calendar days, Intrepid has not either provided compatible updates or provided the City an agreeable date by which such updates will be received by City, City will convert the incompatible updates unilaterally at 19 Intrepid expense, which upon presentation of the cost invoice, shall pay within one week. 10.3 Incorrect Format Records. In the event Intrepid fails to supply records in the City specified format and there is a cost to the City in converting Intrepid provided files, Intrepid will be responsible for the conversion costs and will pay such costs within thirty (30) calendar days of the date of the bill from the City invoicing the amount due. However, before the City incurs any cost to convert Intrepid -provided files, it will notify Intrepid that it cannot access the records that have been provided. If within fourteen (14) calendar days, Intrepid has not either provided compatible records or provided the City an agreeable date by which such records will be received by City, City will convert the incompatible records unilaterally. 10.4 Confidentiality. The files and drawings provided by Intrepid to the City shall be considered confidential and subject to the restrictions in Section 31 below and disclosed as a public record only to the extent required by A.R.S. § 39 -126.01. SECTION 11. RELOCATION 11.1 Relocation. Intrepid shall timely relocate, at no expense to the City, any Facilities or other encroachment installed or maintained in, on or under any public place or ROW, as may be necessary to facilitate any public purpose whenever directed to do so by the City Engineer. Such relocations shall be accomplished in accordance with the directions from the City Engineer and shall be pursuant to the same terms and conditions as the initial installation allowed pursuant to this License and any applicable issued permits. Within ninety (90) calendar days after service of notice by the City, Intrepid shall remove the designated portions of the Facilities, or in the event that, by the nature of the removal such removal cannot be performed within the ninety (90) calendar-day period, Intrepid shall take reasonable steps to remove the Facilities and diligently prosecute the removal to completion, and, if requested, restore the sidewalks and other ROW to a condition comparable to the condition before the construction of the public improvement at no cost and expense to the City. City agrees to cooperate with Intrepid to identify alternate locations where available within the ROW. 11.2 Permits. Intrepid agrees to obtain all permits as required by this Agreement and the City of Apache Junction Code prior to removing, abandoning, relocating or reconstructing of any portion of its Conduit System(s) or Fiber Optic Network(s) on public property or ROW. Notwithstanding the foregoing, City understands and acknowledges there may be instances when Intrepid is required to make repairs that are of an emergency nature or in connection with an unscheduled disruption of the Facilities. Intrepid will maintain any annual permits required by the City for such maintenance and emergency repairs. If a traffic control plan cannot be submitted prior to an emergency repair, Intrepid may proceed with such repair but acknowledges that it is responsible for implementing a traffic control plan in accordance with the requirements of Section 7.15 above, including the sp ecific requirements in Section 7.15.4, and assumes all risk for such repair. Intrepid will 20 notify the City Engineer before the repairs and will apply for necessary permits within three (3) calendar days after notification. 11.3 City Self-Help. If the City needs to perform any part of the necessary relocation or removal work that has not been done within the time required by the City, it shall be entitled to seek payment for such relocation costs by drawing upon the letter of credit or security fund required by this Agreement pursuant to Section 25. 11.4 Intrepid Consent. Except as otherwise provided herein, City shall not, without the prior written approval of Intrepid, intentionally alter, remove, relocate or otherwise interfere with any portion of Intrepid's Facilities. Any written approval required shall be promptly reviewed and processed by Intrepid and shall not be unreasonably withheld. SECTION 12. EXPANSION OR EXTENSION OF THE CURRENT USE AREA 12.1 Approval Required. Any further expansion and/or extension of Intrepid's Fiber Optic Network and or empty Conduit placement shall require written approval from a representative of the City Engineer pursuant to the City's permitting process. 12.2 Expansions Governed by this Agreement. Intrepid agrees that such further expansions and/or extensions shall be at all times governed by the terms and conditions of this Agreement. Intrepid shall obtain all required permits in connection with any such expansion or extension. 12.3 Required Information. Upon request for an encroachment permit, requests for expansions and/or extensions should identify the route, number of conduits, size of conduits, fiber count and intended use. SECTION 13. DAMAGE TO PUBLIC PROPERTY 13.1 Duty to Restore Damage. In addition to any indemnity obligation under this License and Agreement, whenever the installation, use, maintenance, removal, or relocation of any of Intrepid's Facilities is required or permitted under this Agreement, and such installation, removal or relocation damages or disturbs the surface or subsurface of any ROW or public property or the public improvement located thereon, therein, or thereunder, however such damage or disturbance was caused, Intrepid, at its sole cost and expense, shall promptly restore the surface or subsurface of the ROW or public property and/or repair or replace the surface, subsurface and/or public improvement therein, or thereunder, in as good a condition as before in accordance with applicable laws, satisfactory to the City Engineer. If Intrepid does not repair the damage or disturbance as just described, then City shall have the option, upon ten (10) calendar days prior written notice to Intrepid, to perform or cause to be performed such reasonable and necessary work on behalf of Intrepid and to charge Intrepid for the proposed costs to be incurred or the actual costs incurred by the City at City's standard rates. 21 13.2 Emergency Restoration. Notwithstanding the notice provision above, in the event of a Public Emergency as declared by the City, Pinal or Maricopa counties, State of Arizona, or the government of the United States, the City shall have the right to immediately perform, without prior written notice to Intrepid, such reasonable and necessary work on behalf of Intrepid to repair and return public propert y to a safe and satisfactory condition in accordance with applicable laws, and in a manner reasonably satisfactory to the City Engineer. The City shall provide written notice to Intrepid of the repairs as soon as practicable after the work has begun. Intrepid agrees that any severed City-owned Conduit and/or fiber must be completely repaired or replaced to the nearest splice point. If the City needs to perform any part of the necessary repairs, relocation and/or removal work, Intrepid shall pay the City for such repairs, relocation and/or removal. In the event that Intrepid does not promptly pay for such emergency City repairs, the City may: a) draw upon a bond and/or letter of credit or security fund required by this Agreement in full or partial satisfaction of such costs if payment is not made by Intrepid as required by Section 13.3 below; or b) terminate this License and refer such collection to an appropriate agent or agency. 13.3 Demand and Reimbursement. Upon the receipt of any demand for payment by City, Intrepid shall, within thirty (30) calendar days, reimburse City for any costs due or owed under this Agreement. Failure to make timely payment shall be a material event of default upon which the City may terminate this License. 13.4 Restoration. For any pavement cuts by Intrepid, Intrepid agrees to restore the pavement to its original condition which existed before the work commenced on the project. SECTION 14. PUBLIC EMERGENCY DISRUPTION BY CITY City shall have the right, because of a Public Emergency or Intrepid’s failure to timely take actions required after notice by the City Engineer, to sever, disrupt, remove, tear out, dig-up or otherwise damage and/or destroy Facilities of Intrepid without any prior notice to Intrepid, if the action is deemed necessary for the maintenance of public health and safety by either the City Manager, Fire Chief, Police Chief, City Engineer, or Public Works Director or designee. In such event, neither the City nor any elected or appointed member of the City, or any City contractor or any employee or volunteers of City shall be liable to Intrepid, its Contractors or its customers or their parties for any harm so caused to them or the Facilities, unless such damages are caused by City's gross negligence or willful misconduct. When practical and if possible, City will consult with Intrepid in advance to assess the necessity of such actions and to minimize to the extent practical under the circumstances damage to and disruption of operation of the Fiber Optic Networks. City shall inform Intrepid of any actions taken. Intrepid shall be responsible for repair at its sole expense of any of its Facilities damaged pursuant to any such action taken by City. 22 SECTION 15. PUBLIC SAFETY/PUBLIC EMERGENCY 15.1 Hazards. If any of Intrepid's Facilities or activities present any immediate hazard or impediment to the public, to the City, to other improvements or activities within or outside of the route area(s), or to City's ability to safely and conveniently operate the ROW or perform City's utility, public safety and/or other public health, safety and welfare functions, then Intrepid shall immediately remedy the hazard, comply with City's request to secure the route area, and otherwise coope rate with City at no expense to City to remove any such hazard or impediment. 15.2 Public Emergency. In the event of a Public Emergency, neither the City nor any agent, Contractor or employee of the City shall be liable to Intrepid or its Contractors or its customers or other third parties for any harm so caused to them by the reasonable actions of the City or its agents, Contractors or employees in responding to such public emergency, unless such damages are caused by City's gross negligence or willful misconduct. When practical and if possible, City will consult with Intrepid in advance to assess the necessity of such actions and to minimize, to the extent practical under the circumstances, damage to and disruption of either the public property involved or the Facilities involved. SECTION 16. CONTRACTORS 16.1 Licensing. Any Contractors performing construction work within the ROW or public easements shall comply with licensing requirements of the Arizona General Contractors. All Licensee employees, contractors and subcontractors shall carry an identification card bearing their name and photograph and Licensee's logo or name, or the name or logo of Licensee's contractor or subcontractor and Licensee and its contractors or subcontractors persons shall obtain a busines s license from the City of Apache Junction City Clerk’s Office and pay the then current annual business license fee and any annual renewal fee. Intrepid is responsible for monitoring compliance with this business license requirement. 16.2 Coverage. Intrepid represents and warrants all independent Contractors maintain coverages in the same manner as stated herein for Intrepid. SECTION 17. LEGAL WORKERS If, and to the extent A.R.S. § 41-4401 is applicable to this Agreement, Intrepid shall comply with laws regarding workers as follows: 17.1 Warranty of Compliance. Intrepid warrants to City that Intrepid and all of its Contractors will comply with all federal immigration laws and regulations that relate to their employees and that there is compliance with the E-Verify Program under A.R.S. § 23-214(A). 23 17.2 Breach of Warranty. A breach of the foregoing under Section 17.1 warranty by Intrepid shall be deemed a material breach of this Agreement that is subject to penalties up to and including termination of this Agreement. 17.3 Inspection of Records. City retains the legal right to inspect the papers of any employee of Intrepid Contractor who works pursuant to this Agreement to ensure that they are complying with the warranty given above. 17.4 Violations. Intrepid shall indemnify, defend and hold City its elected officials, appointees, agents, and employees harmless for, from and against all losses and liabilities arising from any and all violations of the warranty given above. SECTION 18. EFFECTIVE DATE AND VALIDITY OF AGREEMENT 18.1 Effective Date. This Agreement is effective starting on the day the last Party signs and has their signature notarized. 18.2 Representation and Validity. Intrepid shall acknowledge that as a condition of acceptance of this Agreement, Intrepid had the opportunity to consult with its own attorneys about its rights and obligations regarding the Agreement. Intrepid has reviewed City's authority to execute and enforce this Agreement and has reviewed all applicable law, both federal and state, and, after considering same, Intrepid acknowledges and accepts the right and authority of City to execute this Agreement and to enforce the terms herein. SECTION 19. Initial Term of Agreement and Renewal Periods The Initial Term of this License and Agreement shall be five years and shall commence at 12:01 a.m. on the Effective Date and shall terminate at 11 :59 p.m. on the fifth anniversary of the Effective Date unless sooner terminated as set forth in this Agreement. Five-year renewal periods are permissible as long as Licensee complies with all applicable laws. SECTION 20. Modification, Renewal, Extension 20.1 Renewal Process. If Intrepid wishes to renew its License and continue using the ROW, then at least one hundred eighty days (180) calendar days prior to the expiration of this License and Agreement, Intrepid shall apply to the City for a new License and Agreement in accordance with the then existing federal, state, and local laws. 20.2 Renewal Fee. Intrepid shall pay to City the applicable fee at the time of the submission of the application. 20.3 Agreement Changes. City shall have the right to renegotiate any of the terms from the prior agreement that may be required by ap plicable federal, state or local law or regulations. Intrepid understands that the City may adopt future code 24 amendments and/or fee schedules relating to Facilities located within the ROW, which may replace in its entirety the current fees and other costs imposed upon Intrepid under this Agreement. Intrepid acknowledges the right of the City to adopt and implement such lawful code amendments and/or fee schedules. 20.4 Holdover Term. If Intrepid's Facilities remain in the ROW, and Intrepid continues to use such Facilities beyond the expiration of the license term, the License shall be considered to be in a "Holdover Term," subject to the terms and conditions of this Agreement and Intrepid shall pay the annual fees multiplied by one hundred seventy-five percent (175%) (the “Holdover Licensee Fee Multiplier”). Such Holdover Term, however, shall not exceed sixty (60) calendar days beyond the expiration of the term and no permits will be issued to Intrepid by the City until a new License has been approved by the City. The City, in its sole and exclusive judgment, may waive the Holdover Licensee Fee Multiplier only if it determines that bona fide negotiations for a successor/renewal agreement are underway. Either Party may terminate such negotiations upon written notice to the other Party, and at such time the Holdover Licensee Fee Multiplier shall automatically apply if not already in effect. 20.5 Expiration of Holdover Term. Failure by Intrepid to have a valid License and Agreement to use the ROW by the expiration of the Holdover Term shall result in immediate withdrawal and revocation of any existing permits issued by the City to Intrepid and the liquidated damages amount set forth in Section 33 shall apply. If, however, Intrepid has timely filed its application and is in active negotiations with the City prior to the expiration of the License and Agreement, the City may, in its discretion, grant, extend, or take no action on permits issued to Intrepid prior to the expiration of the Agreement. SECTION 21. PAYMENTS 21.1 No Rights Waived. By entering into this Agreement, neither party waives any current or future rights reserved under then-current state or federal laws and regulations. 21.2 Payments to City. Intrepid shall be solely responsible for payments to City as follows: 21.2.1 Application Fee. Intrepid shall pay City an application fee in the amount of Three Thousand Five Hundred and 00/100 Dollars ($3,500.00) which shall be due at the time of the submittal of the application. 21.2.2 Transaction Privilege Tax. Intrepid will owe transaction privilege tax on any qualifying services under Apache Junction City Code and shall communicate directly with the City Clerk’s Office for processing. 21.2.3 ROW Usage Fee for Provision of Interstate Telecommunication Services. A Fiber Optic Network in the ROW that carries Interstate Traffic 25 between and among Intrepid's interstate points of presence exclusive of the Fiber Optic Network used by the local network and the portion of the interstate network that carries intrastate calls is subject to an annual fee based on the number of linear feet of trench in the ROW. The annual fee for this Agreement is Three Dollars and Eighteen Cents ($3.18) per linear foot (hereinafter, the “Annual Fee”), which shall be adjusted annually as provided in Section 21.2.3.1. 21.2.3.1 Commencing on the first anniversary date of this Agreement and continuing through the fifth year of the term, the linear foot fee shall be escalated annually each July 1 based on the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index-All Urban Consumers, West Region for All Items (“CPI”). If there is no increase in the CPI, the fee shall remain what it was for the prior year. 21.2.3.2 Intrepid warrants and represents that it has no route within Apache Junction that currently provides solely interstate telecommunication services exclusive of facilities used by the local network and the portion of the interstate network that carries intrastate calls. If and when there are portions of Intrepid's routes that provide interstate telecommunication services exclusive of facilities used by the local network and the portion of the interstate network that carries intrastate calls, Intrepid will immediately notify the City Engineer of the location and footage of such route(s) and pay a pro-rated linear foot fee that is due for the length of such route(s). At the next anniversary date of the Agreement, the yearly fee for such additional footage will be added to the current annual fee. 21.2.3.3 Upon each anniversary of this Agreement, any fee owed will be adjusted as provided by Section 21.2.3.1 above, and payment made by as required by Section 21.3. 21.2.4 Compensation for Use of ROW. Intrepid agrees to pay an annual fee for the portion of the ROW solely used by Intrepid for Dark Fiber or Conduit leasing to Users and any other uses other than: (a) those conforming to the definition of Telecommunication Services as defined in A.R.S. § 9-581; and (b) Internet access. Unless a different calculation for fair and reasonable compensation is agreed to by the City, the fee will be calculated at the same linear foot rate as in Section 21.2.3 above. Upon each anniversary of this Agreement, any monetary fee will be adjusted as provided by Section 21.2.3.1 above, and payment made by as required by Section 21.3. Fees based on linear feet of Public Right-of-Way under Sections 21.2.3 and 21.2.4 shall not apply to any time period during which Intrepid is providing in-kind services to the City under Section 22. 26 21.2.4.1 Intrepid warrants and represents that at the time of the execution of this Agreement, it is not leasing Dark Fiber or Conduit to third party Users within the ROW. In the future, should Intrepid lease any of its Dark Fiber or Conduits to a third-party User, Intrepid shall comply with Section 4.3 above and pay a pro-rated linear foot fee that is due for the length of ROW used solely for such services in accordance with Section 21.2.4, unless a different calculation for fair and reasonable compensation is agreed to by the City, or unless Intrepid is providing in-kind services to the City under Section 22. 21.3 Annual Payments. For any undisputed portions of annual payment(s) owed, Intrepid shall make such payment(s) to the City within thirty (30) calendar days of the effective date of this Agreement and by the anniversary of such effective date thereof for the duration of the term. 21.4 Arrearage. As of the date of this Agreement, the City agrees that Intrepid has paid all amounts due and no further amounts are owed except as to permit application and inspection fees as set out within this Agreement. 21.5 Permit Fees. Intrepid shall pay all applicable construction permit fees to place Facilities in the ROW, which includes charges for encroachment permit applications, issuance, inspection, testing, plan review and any other fees adopted by City and applicable to persons doing work and/or encroaching in the City's ROW pursuant to Apache Junction City Code. 21.6 Damage Fees. Intrepid shall pay any reasonable costs associated with any damage caused to the ROW or public property. 21.7 Prorated Fees. Within thirty (30) calendar days after the issuance of a permit for the installation of additional footage of Conduit(s), if such installation subjects Intrepid to an annual fee pursuant to Section 21.2.3 or Section 21.2.4 above (if applicable), Intrepid will pay a prorated portion of the annual fee, as adjusted, per linear foot for that section of its expanded route. The prorated annual fee shall be determined by multiplying the annual footage fee, as adjusted, for the year of payment, by a fraction, the numerator of which is the number of full months between the month installation and the next following anniversary date of this Agreement and the denominator of which is twelve (12). 21.7.1 In the event Intrepid cancels or returns a permit and does not construct or install Facilities, which had been approved by such a permit, the footage fees previously paid for ROW or public property used or occupied by Intrepid shall be applied as a credit toward any annual fee or refunded to Intrepid by City. 21.8 Checks. Any checks should be sent with appropriate descriptive payment information to: 27 City of Apache Junction Attn: City Manager 300 E. Superstition Blvd. Apache Junction, Arizona 85119 21.8.1 The City’s deposit of any funds received from Intrepid does not waive any right of the City to thereafter challenge the amount or calculation method of such funds or the timeliness of Intrepid’s payment. 21.9 Interest. Intrepid agrees that if it fails to pay any amounts owed to the City by the time prescribed for payment, Intrepid shall pay interest on the amounts owed, at the greater of the: (a) rate of one percent (1%) per month or; (b) highest interest allowed by law. SECTION 22. IN-KIND PAYMENT IN LIEU OF FEES OWED Future in-kind services or facilities may be negotiated in a separate agreement between the Parties, which may include discount terms for encroachment permits or linear foot rates, but such terms shall be negotiated in a completely neutral and non-discriminatory basis as per A.R.S. § 9-583(B). SECTION 23. TAXES Intrepid shall pay any applicable city, county and state transaction privilege and use tax. Such taxes are in addition to any non-tax amounts owed by Intrepid pursuant to Section 21. Intrepid waives taxpayer confidentiality under A.R.S. Title 42 and consents to the disclosure of any and all information reported on Intrepid's transaction privilege tax returns by authorizing and allowing the City's tax collector to release such information to the City Manager or designees. Nothing in this Agreement is intended to alter, amend, modify or expand the taxes and fees that may lawfully be assessed on Intrepid's business activities under this License under applicable law. SECTION 24. PERFORMANCE BOND 24.1 Bond Requirements. Prior to receiving any permit to construct, install, maintain or perform any work on public property that requires a permit from the City pursuant to applicable City codes, Intrepid shall cause to be filed and maintain until either completion of the construction or termination of this Agreement as determined by Intrepid, a faithful performance bond in favor of City in the amount of the greater of: (a) One Hundred Thousand Dollars ($100,000); or (b) the amount of the construction costs as determined by the City Engineer to guarantee that Intrepid shall observe, fulfill and perform each and every term of this Agreement. In case of any breach of any condition of this Agreement, any amount of the bond, up to the whole thereof, may be forfeited to compensate City for any damages it may suffer by reason of such breach. Said bond shall be acknowledged by Intrepid, as principal, and shall be issued by a surety licensed to conduct business in the State of Arizona 28 with an AM Best rating of A-VII or better for the last four quarters. City and Intrepid agree that the process and procedure for drawing upon, curing, and replenishing the performance bond shall be the same as set forth below for the security fund and/or letter of credit. 24.2 Bond Release. If Intrepid has completed the above construction and wants the bond released, the City will need to inspect and approve the construction prior to such release. However, a performance bond will be required for each subsequent or additional construction project and/or work on public property. 24.3 One Year Warranty Period. Intrepid shall also provide a warranty bond for 10% of the performance bond value to cover construction failures that arise during the one-year period after acceptance of the improvements. SECTION 25. SECURITY FUND 25.1 Deposit Required. Upon application for use of the ROW, but no later than five (5) calendar days before this Agreement is submitted to the City approval, Intrepid shall provide either a cash deposit or domestic irrevocable standby letter of credit to the City Engineer in the initial amount of Fifty Thousand Dollars ($50,000) as a security fund that is in a form as approved by the City Attorney. Said cash deposit or letter of credit shall be maintained with the City for the term of this Agreement as security for the faithful performance by Intrepid of all the provisions of this Agreement, and compliance with all lawful orders, permits and directions of any department or office of the City having jurisdiction over its acts or defaults under this Agreement and any permit issued pursuant thereto, and the payments by Intrepid of any fees, claims, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the Facilities. Upon material default that remains uncured (after written notice) for greater than thirty (30) calendar days the City shall have the full power of withdrawal of funds from the cash deposit put into the security fund account or letter of credit except that all interest accrued on any cash deposit shall be payable to Intrepid on demand. No withdrawals shall be made from the security fund account without the prior written approval of the City Manager and sixty (60) calendar days prior written notice of intent to withdraw to Intrepid. 25.2 Withdrawal. Within twenty (20) calendar days after notice to Intrepid that any amount has been withdrawn by City from the security fund account or letter of credit, Intrepid shall deposit a sum of money sufficient to restore such security fund account to the original amount or present to the City an additional irrevocable letter of credit in said amount so that the total amount of funds available to the City is Fifty Thousand Dollars ($50,000). 25.3 Restoration of Deposit Amounts. If Intrepid fails, within ten (10) calendar days of a notice of intent to draw on either the security fund account or on the letter of credit, to: a) dispute the notice in writing; or b) pay City any taxes or fees due and unpaid; or c) fails to repay to City, within such ten (10) calendar days of such notice, any damages, costs or expenses which City shall be compelled to pay by reason of 29 any act or default of Intrepid in connection with this Agreement; or d) fails, within thirty (30) calendar days of such notice of failure by City to dispute the notice in writing, or comply with any provision of this Agreement which City reasonably determines can be remedied by an expenditure of funds from the cash deposit in the security fund account or letter of credit, City may immediately withdraw the amount thereof, with interest from the security fund account. Upon such withdrawal, City shall notify Intrepid of the amounts and date thereof. 25.4 Rights Reserved. The rights reserved to City, with respect to the security fund account and/or letter of credit, are in addition to all other rights of City whether reserved by this Agreement or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund account or letter of credit shall affect any other right City may have. SECTION 26. INSURANCE 26.1 Minimum Limits of Insurance. Intrepid shall at all times during the term of this Agreement, at its own cost and expense, carry and maintain for the mutual benefit of the City and Intrepid, general public liability insurance against claims for bodily injury, death or property damage, products/completed operations and personal and advertising injury, which insurance shall cover claims as may be occasioned by the operations, act, omission or negligence of Intrepid or its officers, agents, representatives, employees or servants during all times that this License and Agreement is in effect. Insurance limits are inclusive of umbrella coverage. Intrepid shall maintain limits no less than those stated herein for each type of insurance. 26.2 General Requirements. Intrepid's insurance of the types and amounts required in this section shall be from companies possessing a current A.M. Best, Inc. rating of A-VII, or better and legally authorized to do business in the State of Arizona. 26.2.1 All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Agreement is satisfactorily completed and formally accepted. Failure to do so may, at the sole discretion of City, constitute a material breach of this Agreement and may result in termination of this Agreement. 26.2.2 The insurance coverage, except workers' compensation and professional liability, required by this Agreement, shall name City, its agents, appointees, elected officials, and employees, as additional insureds, and shall specify that insurance afforded Intrepid shall be primary insurance, and that any self-insured retention and/or insurance coverage carried by City or its employees shall not contribute to the coverages provided by Intrepid. This provision and the naming of the City and others noted above as additional insured parties shall not be construed as giving rise to responsibility or liability of the City for applicable deductible amounts under such policy(ies). 30 26.2.3 The insurance policies shall contain a waiver of tr ansfer rights of recovery (subrogation) against City, its agents, appointees, elected officials and employees for any claims arising out of Intrepid 's acts, errors, mistakes, omissions, work or service. 26.2.4 The insurance policies may provide coverage, which contain deductibles or self-insured retentions. Such deductible and/or self-insured retention shall be assumed by and be for the account of, and at the sole risk of Intrepid who shall be solely responsible for the deductible and/or self- insured retention. The amounts of any self-insured retentions shall be noted on the Certificate of Insurance. Self-insured retentions of up to One Million Dollars ($1,000,000) shall be accepted. 26.2.5 Upon receipt of notice from its insurer(s) Intrepid shall provide the City with thirty (30) calendar days prior written notice of cancellation of any coverage required herein. 26.2.6 Intrepid shall be responsible for ensuring that the City is notified within the above noted time period of the occurrence of any reduction in the insurance coverage amounts, cancellation or expiration of any of the policies as required by this License and Agreement. 26.2.7 Intrepid shall require all Contractors and subcontractors to obtain and maintain substantially the same insurance with substantially the same limits as required of Intrepid. 26.2.8 City reserves the right to periodically review said insurance limits to ensure coverage based on market and risk requirements throughout the effective term of this Agreement. 26.3 Proof of Insurance-Certificates of Insurance. 26.3.1 Upon execution of this Agreement, Intrepid shall furnish to City Certificates of Insurance issued by Intrepid's agent or broker, as evidence that policies providing the required coverages, conditions and limits required by this Agreement are in full force and effect and obtain from the City's Risk Management Division approval of such Certificates. Such certificate(s) shall include the endorsement listing the City as an Additional Insured pursuant to Section 26.2.2. 26.3.2 If a policy does expire during the life of this Agreement, a renewal certificate must be sent to the City prior to the expiration date. 26.3.3 All Certificates of Insurance shall identify the required policies in effect on behalf of Intrepid, their policy period(s), and limits of liability. Coverage shown on the Certificate of Insurance must coincide with the requirements in the text of the Agreement documents. Information required to 31 be on the Certificate of Insurance may be typed on the reverse of the Certificate and countersigned by an authorized representative of the insurance carrier or agent. Copies of the initial Certificate of Insurance and any and all subsequent renewals that are required under this Agreement shall be sent to: City of Apache Junction Attn: City Attorney 300 E. Superstition Blvd. Apache Junction, Arizona 85119 26.3.4 The initial Certificate of Insurance shall be provided to the City Attorney no later than ten (10) calendar days after execution of this Agreement, and subsequent renewal certificates are due every six (6) months thereafter, or if issued on an annual basis, within ten (10) calendar days after the anniversary of the Effective Date. 26.4 Required Coverage. 26.4.1 Such insurance shall protect Intrepid from claims set forth below that may arise out of or result from the operations of Intrepid under this Agreement and for which Intrepid may be legally liable, whether such operations be by Intrepid or by a consultant or Contractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts Intrepid may be legally liable. Coverage under the policy will be at least as broad as Insurance Services Office, Inc., policy form CG 00 01 10 01 and CG 20 37 07 04 or equivalent thereof, including but not limited to severability of interest and waiver of subrogation clauses; 26.4.2 Claims for damages because of bodily injury, sickness or disease, or death of any person other than the Intrepid's employees; 26.4.3 Claims for damages insured by usual personal and advertising injury liability coverage; 26.4.4 Claims for damages, because of injury to or destruction of tangible property, including loss of use resulting therefrom; 26.4.5 Claims involving contractual liability insurance applicable to Intrepid's obligations under the Indemnification Agreement. 26.5 Commercial General Liability - Minimum Coverage Limits. The Commercial General Liability insurance required herein shall be written for not less than Five Million Dollars ($5,000,000) limits of liability. Any combination between general liability and excess general liability alone amounting to a minimum of Fi ve Million Dollars ($5,000,000) per occurrence and an aggregate of Ten Million Dollars ($10,000,000) in coverage will be acceptable. The Commercial General Liability 32 additional insured endorsement shall be as broad as the Insurance Services, lnc.'s (“ISO”) Additional Insured, Form B, CG 20 10 10 01 and CG 20 37 07 04, and shall include coverage for Intrepid 's completed operations and products. 26.6 Worker's Compensation and Employer's Liability. Intrepid shall maintain Worker's Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Intrepid's employees engaged in the performance of the work or services; and Employer's Liability insurance of not less than One Million Dollars ($1,000,000) for each accident, One Million Dollars ($1,000,000) disease coverage for each employee, and One Million Dollars ($1,000,000) disease policy limit. In case any work is subcontracted, Intrepid will require the Contractor to provide Worker's Compensation and Employer's Liability to at least the same extent as required of Intrepid. 26.7 Automobile Liability. If Intrepid owns and/or operates vehicles in Arizona, Intrepid shall maintain Commercial/Business Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than Five Million Dollars ($5,000,000) each occurrence with respect to any owned, hired, and non-owned vehicles assigned to or used in performance of the Intrepid's work. Coverage shall be at least as broad as c overage Symbol 1, "any auto", (Insurance Service Office, Inc. Policy Form CA 0001 0306, or any replacements thereof). Such insurance shall include coverage for pollution for upset/overturn/collision of the automobile(s) and loading and offloading hazards if hazardous substances, materials or wastes are to be transported and a MCS 90 endorsement shall be included with coverage limits of Five Million Dollars ($5,000,000) per accident for bodily injury and property damage. For automobile liability insurance, c ontractors may require limits usual and customary for the operations but no less than One Million Dollars ($1,000,000). SECTION 27. INDEMNITY 27.1 Generally. Intrepid acknowledges that it has liability for any and all of its Facilities installed in the public ROW and for its use of the ROW and for its exercise of its rights under this License and Agreement directly or through its Contractor(s), except to the extent of intentional acts or gross negligence on the part of the City. To the fullest extent permitted by law, Intrepid, shall defend, indemnify and hold harmless the City, or its agents, appointees, elected officials, and employees, individually and collectively, from and against any and all Claims as defined in Section 1 arising out of or alleged to have resulted from or materially related to the acts, errors, mistakes, omissions of Intrepid, its employees, agents, or any tier of Contractors or any other person for whose acts, errors, mistakes, or omissions Intrepid may be legally liable and from any Claims or amounts arising or recovered under workers compensation laws or any other law, bylaw, or ordinance, order or decree related to any failure on the part of Intrepid, its agent, employees or representatives to fulfill Intrepid's obligations under this Agreement, whether resolution of the above Claim(s) proceeds to judgment or not. The provisions of this paragraph shall survive termination of this Agreement. This indemnification applies 33 even if the party seeking damages makes a claim against the City or brings a claim against the City based on vicarious liability or non-delegable duty. 27.2 Defense Costs. Intrepid further agrees to indemnify and hold harmless the City, its agents, appointees, elected officials, and employees from and against all costs, damages, and expenses incurred by the City, its agents, appointees, elected officials, and employees in the defense of any litigation brought by third parties challenging the right of the City to enter into this Agreement with Intrepid under City or other applicable law. 27.3 Tender of Defense. In the event that any notice of claim is served or litigation is commenced and serviced upon the City, City shall tender the defense of the litigation to Intrepid, who shall immediately defend the litigation using legal counsel reasonably acceptable to City. Intrepid shall have the right to retain counsel of its own choice reasonably acceptable to City, to settle all or any part of the litigation on terms acceptable to Intrepid (and, where such terms directly obligate or affect City, acceptable to City). Intrepid agrees to keep the Apache Junction City Attorney informed of the status and progress of all litigation involving the C ity that has been tendered to Intrepid or its insurance carrier. 27.3.1 Notice. The Parties shall promptly notify each other in writing of any claims, demands, or lawsuits which may involve the City and provide copies of all relevant accident reports, incident reports, statements or other documents relevant to or which may lead to relevant materials or information, in the possession of the other party, its employees, agents, subcontractors, and/or others, promptly upon request. 27.3.2 Relevant Information. Both Parties agree to make their employees, agents, and Contractors available to the other party to gather any relevant information relating to an incident in which claims, demands, or lawsuits arise from. 27.4 Construction of Interpretation. It is the purpose of this section to provide maximum indemnification to City under the terms and conditions expressed and, in the event of a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the indemnification of the City and others listed above in Section 27.1 by Intrepid against any and all Claims. The sole exception shall be an express determination by a court of competent jurisdiction upon full adjudication of the case that the damages arose only from City's sole gross negligence or intentional acts. Only in this event may Intrepid then commence an action against City for damages related to that portion judicially determined to be City's fault. 27.5 Survival. The provisions of Section 27 shall be and remain a binding right and obligation of the City and Intrepid. It is the intent of Intrepid and the City upon the effective date of this Agreement that this Section serves as any such declaration and shall be a binding obligation of and inure to the benefit of Intrepid and the City and 34 their respective successors and assigns, if any. Any failure by Intrepid to indemnify the City and others listed above in Section 27.1 as required under this Section 27 shall be considered a material breach of this License and Agreement. Notwithstanding anything to the contrary herein, Intrepid shall not be obligated to indemnify the City on any provision of this Agreement that is later determined to be invalid. Moreover, any provision of this Agreement that by their sense and context survive the expiration or termination of this Agreement shall also survive. 27.6 Insurance No Limit. The amount and type of insurance coverage requirements set forth in this Agreement will in no way be construed as limiting the scope of the indemnity in this Section 27. 27.7 Reformation. As a condition to Licensor's executing this Agreement, Intrepid specifically agrees that to the extent any provision of this paragraph is not fully enforceable against Intrepid for any reason whatsoever, this paragraph shall be deemed automatically reformed to the minimal extent necessary to cause it to be enforceable to the fullest extent permitted by law. SECTION 28. LIMITATION OF LIABILITY 28.1 Limitation. The City and its agents, appointees, elected officials and employees, shall not be liable to Intrepid or to its affiliates or customers for any interference with or disruption in the operations of Intrepid 's Fiber Optic Networks or the provision of services, or for any damages arising out of or materially related to Intrepid's use of the ROW, except to the extent of intentional misconduct or gross negligence on the part of the City its agents, appointees, elected officials or employees. 28.2 No Liability for Agreement Enforcement. Intrepid also agrees that it shall have no recourse whatsoever against the City or its agents, appointees, elected officials, or employees for any loss, costs, expense or damages arising out of or materially related to any provision or requirement of the City because of the enforcement of this License and Agreement. 28.3 Assumption of Risk. Intrepid shall assume the risk of, and hereby relinquishes any claim against the City in connection with any final, non -appealable determination by a court of competent jurisdiction that the City lacked the current statutory authority under Arizona law to issue this License. SECTION 29. ASSIGNMENT AND TRANSFERABILITY OF LICENSE AND AGREEMENT 29.1 Personal to Intrepid. This License is personal to Intrepid. 29.2 Transfer or Assignment to Related Entity. Notwithstanding the foregoing, Intrepid may transfer or assign this Agreement to any affiliated entity under common corporate control, or to the surviving entity in the event of a merger or acquisition of 35 Intrepid without City's prior consent. Intrepid shall however give notice to the City of any such transfer or assignment. 29.3 Transfer or Assignment to Unrelated Entity. Any transfer or assignment for reasons other than provided for in Section 29.2 above shall require the City's prior consent, which shall not be unreasonably withheld, conditioned, or delayed provided that Intrepid agrees that it will provide reasonable documentation about the proposed transfer or assignment, and (i) such proposed transferee or assignee is demonstrated to the City’s reasonable satisfaction to be legally, technically, and financially capable of performing each, any, every duty and obligation it is required to perform in this Agreement or (ii) in the case where there is change in the direct or indirect ownership of Licensee and where the License remains with Licensee, Licensee demonstrates to the City’s reasonable satisfaction that Licensee remains legally, technically, and financially capable of performing each, any, every duty and obligation under this Agreement. 29.4 Transfer or Assignment Conditions. In making a determination as to whether to approve a transfer or assignment, the City may consider the following: 29.4.1 Whether Intrepid is in compliance with its License and Apache Junction City Code and if not, the proposed transferee's commitment and demonstrated legal, technical, or financial ability to cure such noncompliance. 29.4.2 Whether the proposed transfer or assignment would result in an evasion of other applicable provisions of law or impair lawful contracts. 29.4.3 The effect of the transfer or assignment on the City's interests. 29.5 Acceptance by Assignee. No application for a transfer or assignment of a license shall be granted unless the proposed transferee or assignee agrees in writing that it will abide by and accept all terms of the License and the Apache Junction City Code and that it will assume all obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of Intrepid under Chapter 31A of the Apache Junction City Code and this License for all purposes, including renewal. 29.6 Approval not Waiver. Approval of the City of a transfer or assignment of this License does not constitute a waiver or release of any of the rights of the City, whether arising before or after the date of the transfer or assignment. 29.7 Transfer or Assignment Remedies. When consent is required, any transfer or assignment without City's consent shall be void and shall not result in the transferee or assignee obtaining any rights or interests in, under or related to this License and Agreement. City may, in its sole discretion and in addition to all other lawful remedies available to City under this Agreement or otherwise, and in any 36 combination, terminate this Agreement, collect any fees owed from Intrepid and/or declare the transfer or assignment to be void, all without prejudicing any other right or remedy of City under this Agreement. No cure or grace periods shall apply to transfers or assignments prohibited by this Agreement or to enforcement of any provision of this Agreement against an assignee who did not receive City's consent. 29.8 Transfer or Assignment Fee. Intrepid shall pay to City in advance the sum of Three Thousand Five Hundred and 00/100 Dollars ($3,500) as a nonrefundable fee for legal, administrative and other expenses related to every transfer (other than the sale of publicly traded stock or transfer to any affiliate entity under common corporate control or to the surviving entity in the event of a merger or acquisition of Intrepid) or to any request for a consent to transfer or assignment, whether or not City grants such request. Where such transfer fee is insufficient to allow the City to fully fund the processing of such transfer or assignment request, Intrepid shall deposit with the City such additional funds as may be required to complete the processing of the transfer or assignment request. 29.9 Legal, Technical and Financial Capability. In the case where there is a change in the direct or indirect ownership of Licensee, and where the License remains with Licensee, Licensee must demonstrate to the City’s reasonable satisfaction that Licensee independently is and remains legally, technically, and financially capable of performing each, any, every duty and obligation under this Agreement. SECTION 30. NO THIRD-PARTY BENEFICIARIES No person or entity shall be a third-party beneficiary to this Agreement or shall have any right or cause of action hereunder. City shall have no liability to third parties for any approval of plans, Intrepid's construction of improvements, Intrepid's negligence, Intrepid's failure to comply with the provisions of this Agreement (including any absence or inadequacy of insurance required to be ca rried by Intrepid), or otherwise as a result of the existence of this Agreement. SECTION 31. INTREPID'S RECORDS 31.1 Recordkeeping. During the entire term of this License and Agreement, Intrepid shall keep records and provide information to City regarding the following: 31.1.1 The status of the construction, repair, location or relocation of Intrepid's facilities. 31.1.2 Information relating to any Fiber Optic Networks on portions of the route that are not exempt from a fee imposed for occupation of the ROW. 31.1.3 Information relating to this License and Agreement and/or to City's or Intrepid's rights or obligations under this License and/or Agreement. 37 31.2 Record Form. Intrepid shall make available to City the requested reports or records in the formats in which they are customarily prepared by Intrepid. 31.3 Inspection. If necessary for the City to determine Intrepid's compliance with the terms of this License and Agreement or other applicable law, Intrepid shall provide relevant documentation as requested by the Cit y and respond to questions in a format and time period to be decided by the Parties based on the nature of the request. Such records shall be available to City at Intrepid's offices in Maricopa County, Arizona or delivered electronically as may be acceptab le to City. Intrepid shall also require its employees, agents, and accountants to give their cooperation and assistance in connection with City's access to such records. 31.3.1 Such documentation must include information on the type of services Intrepid is offering its customers (but not necessarily information disclosing any particular service being provided to a specific customer) and/or the financial information used in calculating any payments or taxes due to the City under this Agreement. If Intrepid determines that in order to respond to City's request for documentation, it must reasonably provide Proprietary Information, Intrepid shall so mark such documentation as "Confidential." 31.3.2 Proprietary Information disclosed by Intrepid to the City or its constituent departments shall be regarded as Proprietary as to third parties. If the City receives a request to disclose such information, the City shall notify Intrepid of such request and allow Intrepid a reasonable opportunity to defend its information from disclosure. 31.3.3 Information that is already in the public domain shall not be considered Proprietary Information. If public domain information is included with Proprietary Information on the same document, the City shall only disclose those portions within the public domain. 31.3.4 Notwithstanding any provision in this License, Intrepid acknowledges and understands that the City is subject to the disclosure requirements of Arizona's Public Records Law (A.R.S.§ 39-121 et. seq.). 31.4 Reports. Upon request and subject to any necessary confidentiality requirements, Intrepid shall provide to City copies of any communications and reports submitted by Intrepid to the FCC or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters directly affecting enforcement of this Agreement. SECTION 32. PENALTIES FOR VIOLATION OF TERMS 32.1 Cumulative Remedies. City may pursue any remedy at law, including but not limited to injunctive relief, civil trespass, and withholding other City permits and authorizations until Intrepid complies with the terms of the License, Agreement or 38 the applicable law. Such remedies are cumulative and may be pursued in the alternative. 32.2 No Special Damages. Neither party will be liable under this Agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy. SECTION 33. NOTICE OF VIOLATION; RIGHT TO CURE OR RESPOND 33.1 Notice of Violation. In the event that the City believes that Intrepid has not complied with the terms of this Agreement, the City shall informally discuss the matter with Intrepid. If these discussions do not lead to r esolution of the issue, the City shall notify Intrepid in writing of the exact nature of the alleged non-compliance. Intrepid shall have thirty (30) calendar days from receipt of the notice of violation: 33.1.1 to respond to the City, contesting the assertion of noncompliance; 33.1.2 to cure such default; or 33.1.3 if, by nature of default, such default cannot be cured within the thirty (30) calendar day period, initiate reasonable steps to remedy such default and notify the City of the steps. 33.2 Cure and Liquidated Damages. Intrepid understands and agrees that failure to comply with any time and performance requirements in this Agreement or the requirements of the Apache Junction City Code or other requirements under federal or state law in instances in which any suc h non-compliance, and the ability to cure the same, are solely within the control of Intrepid, will result in damage to the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay or nonperformance; therefore, the Parties hereby agree to the liquidated damages specified below for instances in which any such non-compliance, and the ability to cure the same, are solely within the control of Intrepid. The following amounts per day or part thereof may be chargeable to the security fund for the following concerns: 33.2.1 Each failure to properly restore the ROW or to correct related violations of specifications, code ordinance or standards within fifteen (15) calendar days of having been notified by the City to correct such defects - Five Hundred Dollars ($500) per day. Such amount is in addition to any cost the City may incur to restore the ROW or correct the violation. 33.2.2 Each failure to make Intrepid's books and records available as required by this Agreement and such failure continues for fifteen (15) calendar days after receipt of notice of failure to provide from the City - Two Hundred Fifty Dollars ($250) per day. 39 33.2.3 Any unauthorized partial or total transfer or assignment of this Agreement under Section 29.3 - One Thousand Dollars ($1,000) per day but no more than $30,000 for a single occurrence. 33.2.4 Each material instance of any action or non-action by Intrepid contrary to the terms of this Agreement that is not cured after thirty (30) calendar days' notice - Five Hundred Dollars ($500) per day. 33.2.5 Failure to provide a valid Certificate of Insurance as required by Section 26.2.2 that is not cured after five (5) calendar days' notice - Fifty Dollars ($50) per day. 33.3 Assessment. If the City Engineer concludes that Intrepid may be liable for liquidated damages, the City Engineer shall issue to Intrepid a Notice of Intention to Assess Liquidated Damages and allow Intrepid an opportunity to cure in the time period specified in Sections 33.2.1 through 33.2.5. The Notice shall set forth the nature of the violation and the amount of the proposed assessment. Intrepid shall pay the liquidated damage amount within ten (10) business days of receipt or the City shall deduct the amount from the security fund. 33.3.1 If, however, the liquidated damages exceed Five Thousand Dollars ($5,000), then the following shall apply: 33.3.2 Intrepid shall have thirty (30) calendar days of receipt of such notice to pay the liquidated damage amount or give City notice contesting the assertion of noncompliance. 33.3.3 In the event that Intrepid contests the City's assertion of violation or fails to respond to the City's notice of intent to assess liquidated damages, City Manager shall schedule a hearing to determine whether the liquidated damages were properly assessed. City shall provide Intrepid with at least five (5) calendar days' notice of such hearing, which shall specify the time, place and purpose of the hearing. At the hearing, Intrepid will be given the opportunity to be heard and present evidence. If the result of the hearing is that Intrepid is responsible for the liquidated damage amount, then the amount determined at the hearing will be due ten (10) calendar days after the hearing decision is announced. 33.3.4 Intrepid may appeal the outcome of the hearing to Pinal County Superior Court pursuant to A.R.S. § 12-901. Such appeal must be taken timely, otherwise, the outcome of the hearing shall be final and conclusive. SECTION 34. REVOCATION/TERMINATION 34.1 Early Termination. The License granted hereunder may be revoked and/or the Agreement terminated prior to its date of expiration by the City for the following reasons: 40 34.1.1 Intrepid fails to comply with the material terms and conditions of the Agreement or applicable law, including but not limited to failing to maintain any insurance, security fund, letter of credit, and/or a performance bond. 34.1.2 Intrepid fails to make payments in the amounts and at the time specified in this Agreement after a final determination that the payments were owed, including but not limited to transaction privilege taxes and business licenses of Intrepid and its agents and contractors. 34.1.3 Intrepid ceases doing business in the City. 34.1.4 Intrepid fails to provide current, accurate as-built plans and maps showing the location of all Facilities installed or constructed in the City. 34.1.5 Intrepid is or becomes insolvent or is a party to a voluntary or involuntary bankruptcy, reorganization, or receivership case or proceeding, makes an assignment for the benefit of creditors, is subject to other actions by creditors that, in the reasonable, good faith opinion of the City, threaten the financial viability of Intrepid as a going concern, or if there is any similar action that affects Intrepid's capability to perform its obligations under this License and/or Agreement. 34.1.6 Intrepid fails to obtain or maintain any licenses, permits, or other governmental approvals pertaining to the ROW or timely pay any taxes pertaining to the ROW. 34.1.7 A court has issued an injunction that in any way prevents or restrains Intrepid's use of any portion of the ROW and remaining in force for a period of at least thirty (30) consecutive calendar days. 34.2 Cure Period. Before terminating the Agreement under Sections 34.1.1, 34.1.2, 34.1.4, and 34.1.5, the City Manager or a designee, shall gi ve prior written notice to Intrepid of the defect in performance and give Intrepid sixty (60) calendar days within which to cure the defect in performance. If, by nature of the default under 34.1.5 or 34.1.6, where such default cannot be cured within the 60-day period, Intrepid shall have additional time as may be necessary to perform or comply as long as Intrepid commences performance or compliance within such 60-day period and diligently proceeds to cure such defect in performance; provided, however, tha t such defect shall be cured within 90 days, unless otherwise agreed to by the Parties in writing. 34.3 Misconduct. The City need not provide a thirty (30) calendar day cure period prior to termination if the City finds that the defect in performance under the Agreement is due to intentional misconduct, is a violation of civil law or regulation 41 or criminal law, or is a part of a pattern of repeated and persistent violations where Intrepid has already had notice and opportunity to cure. 34.4 Manager Authority. The City Manager has the authority to terminate, subject to Intrepid's right to notice and cure where provided, this License and/or Agreement. 34.5 Hearing Prior to Revocation of License. Prior to the revocation or refusal to renew the License, the City will hold a hearing if requested by Intrepid. 34.6 Termination by Mutual Agreement. This License and/or Agreement may be terminated prior to its date of expiration by Intrepid by providing the City with ninety (90) calendar days written notice and only upon making arrangements satisfactory with the City Engineer to remove all Intrepid's Facilities from public property and the ROW, unless the City Engineer agrees in writing to allow Intrepid to abandon part or all of its Facilities in place. If the City Engineer agrees to allow Intrepid to abandon its Facilities in place, the ownership of such Facilities, including everything permitted by City to be abandoned in place, shall transfer to City and Intrepid shall cooperate to execute any documents necessary to accomplish such transfer within thirty (30) calendar days of such allowance of abandonment. 34.7 Equipment Removal. Notwithstanding anything in Section 34.6 above, upon termination of this Agreement, Intrepid shall remove all of its optical repeaters, DWDM and CWDM multiplexers, and related equipment within thirty (30) calendar days. SECTION 35. NON-USE/ABANDONMENT OF THE FACILITIES 35.1 Removal or Abandonment. An "Abandoned Facility" will mean a Facility no longer in service or physically disconnected from a portion of the operating Facility or from any other Facility that is in use or still carries service. If Intrepid ceases to provide services or abandons use of any of its Facilities, upon cancellation or termination of the Agreement, Intrepid shall notify the City within thirty (30) calendar days from the cancellation or termination notice date, and may, subject to the City's approval, permanently abandon the Facilities in place. In such event, the City, at its option, may acquire ownership of the Facilities . In lieu of permanent abandonment, the City may require Intrepid, to the reasonable satisfaction of the City and without cost or expense to the City, to promptly remove the Facilities and to restore the public property and ROW to a reasonable condition under the supervision of the City. 35.2 City Property. Upon permanent abandonment, if the City does not require removal, Intrepid shall submit to the City a proposal and instruments for transferring ownership to the City. Any such Facilities, which are not removed as required by the City within thirty (30) days of either such date of termination or cancellation or of the date the City issued a permit authorizing removal, whichever is later, automatically shall become the property of the City. Intrepid will notify the Arizona Blue Stake Center to record the Facilities that have been abandoned. 42 35.3 Title to Property. Title to any and all personal property installed by Intrepid upon the ROW that is not removed during the period set forth in Section 35.2 shall automatically vest in City. 35.4 Ongoing Use. Nothing in Section 35.1 shall be deemed to require Intrepid to remove Facilities that the Intrepid uses for the provision of services other than Telecommunications Services or Interstate Telecommunications Services, so long as such use of Facilities for the provisions of the ongoing other services is authorized by the City pursuant to this Agreement. SECTION 36. CANCELLATION FOR CONFLICT OF INTEREST Pursuant to A.R.S. § 38-511, City may cancel this Agreement within three (3) years after its execution without penalty or further obligation if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement is, at any time while the Agreement or an extension of the Agreement is in effect, an employee or agent of any other party to this Agreement in any capacity or a consultant to any other party of this Agreement with respect to the subject matter of the Agreement. The cancellation shall be effective when Intrepid receives written notice of the cancellation, unless the notice specifies a later time. SECTION 37. GRATUITIES City may, by written notice, terminate this Agreement, in whole or in part, if City determines that employment or a gratuity was offered or made by Intrepid or a representative of Intrepid to any officer or employee of City for the purpose of influencing the outcome of the procurement or securing the Agreement, an amendment to the Agreement, or favorable treatment concerning the Agreement, including the making of any determination or decision about Agreement performance. City, in addition to any other rights or remedies, shall be entitled to recover exemplary damages in the amount of three times the value of the gratuity offered by Intrepid. SECTION 38. CONDEMNATION 38.1 Generally. The following shall govern any condemnation of any part of or interest in the area used and/or occupied by Intrepid and any conveyance to City or another condemner in avoidance or settlement of condemnation or a threat of condemnation: 38.1.1 Termination for Condemnation. This agreement shall terminate as to the portion taken on the date that is the earlier of the date title vests in the condemner, or the date upon which the condemner is let into possession. 38.1.2 Power to Condemn. Intrepid acknowledges that City and others from time to time may sue and exercise its power to condemn the area used by Intrepid or any interest therein or rights thereto. 43 38.1.2.1 City reserves the right of condemnation or eminent domain over the area used and/or occupied by Intrepid. City does not warrant that it will not condemn the area(s) used and/or occupied by Intrepid during the term of this Agreement, but City does not presently have intentions to condemn such area(s). 38.1.2.2 City also reserves the right through its powers of eminent domain to acquire all or any portion of the Facilities owned by Intrepid in accordance with the applicable conditions set forth in the Arizona Revised Statutes. However, under no circumstances shall any valuation be made for any right or privilege granted by this Agreement should the City acquire the property of Intrepid. SECTION 39. NOTICE 39.1 All notices, which shall or may be given pursuant to this Agreement, shall be in writing and transmitted through the U.S. certified or registered mail, postage prepaid, by means of prepaid private national overnight delivery systems addressed as follows: CITY OF APACHE JUNCTION: City of Apache Junction Attention: City Manager 300 E. Superstition Blvd. Apache Junction, Arizona 85119 Phone: (480) 474-5066 With copy to: City of Apache Junction Attention: City Attorney 300 E. Superstition Blvd. Apache Junction, Arizona 85119 Phone: (480) 474-5105 INTREPID: Intrepid Fiber Networks Attention: Patrick Hildebrand 2033 11st. Suite 5 Boulder, CO 80302 (866) 371-1860 Invoices to: BIF IV Intrepid Opco, LLC 44 Brookfield Place Attention: Tony Ding 250 Vesey St. New York, NY 10281-1052 39.2 Notices shall be deemed sufficiently given and served upon the other party upon actual delivery or actual refusal and must be given by Certified U.S. Mail Return Receipt Requested or by a national overnight carrier with delivery signature required, or by personal delivery to the proper address shown in Section 39.1. 39.3 Either party may from time to time designate any other address for this purpose by written notice to the other party in the manner set forth above. 39.4 Intrepid shall notify the City within ten (10) calendar days of any change in mailing address. SECTION 40. GOVERNING LAW The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees (inclusive of professional services/meals/lodging/ transportation), court costs, and transcript fees. SECTION 41. COMPETITIVE NEUTRALITY The Parties understand and agree that the City's administration of its Public Highways and the use of them by providers of telecommunications services must be administered on a competitively neutral and nondiscriminatory basis. Accordingly, the terms of any agreement with other similarly situated providers shall, taken as a whole, be competitively neutral and nondiscriminatory when compared to this Agreement. SECTION 42. PARTIAL INVALIDITY If any section, paragraph, subdivision, clause, phrase or provision of this Agreement shall be adjudged invalid or unenforceable, or is preempted by federal or state laws or regulations, the same shall not affect the validity of this Agreement as a whole or any part of the provisions of this Agreement other than the part adjudged to be invalid, unenforceable or preempted. 45 SECTION 43. NO WARRANTY 43.1 As to License. The issuance of a license, permit or other authorization by the City is not a representation or warranty that such license, permit, or authorization is a legally sufficient substitute for a franchise, and is not a representation of warranty that a franchise is not required. 43.2 As to ROW. Intrepid acknowledges and agrees that City does not warrant the condition or safety of its ROW or the premises surrounding the same, and Intrepid hereby assumes all risks of any damage, injury or loss of any nature whatsoever caused by or in connection with the use of any City ROW. SECTION 44. NON-WAIVER Neither party shall be excused from complying with any of the terms and conditions of this Agreement by any failure of the other party upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. SECTION 45. REMEDIES NOT EXCLUSIVE The remedies set forth in this License and Agreement are not exclusive. Election of one remedy does not preclude the use of other remedies. SECTION 46. FORCE MAJEURE Neither City nor Intrepid, as the case may be, shall be considered not to have performed its obligations under this Agreement in th e event of enforced delay (an “Enforced Delay”) due to causes beyond its control and without its fault or negligence or failure to comply with Applicable Laws, including, but not restricted to, acts of God, fires, floods, epidemics, pandemics, quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of subcontractors or materialmen due to such causes, acts of a public enemy, war, terrorism or act of terror (including but not limited to bio-terrorism or eco-terrorism), nuclear radiation, blockade, insurrection, riot, labor strike or interruption, extortion, sabotage, or similar occurrence or any exercise of the power of eminent domain any governmental body on behalf of any public entity, or a declaration of moratorium or similar hiatus directly affecting the Project (whether permanent or temporary) by any public entity. In no event will Enforced Delay include any delay resulting from general economic or market conditions, unavailability for any reason of particular tenants or purchasers of portions of the Project, labor shortages, unavailability of financing, or the unavailability for any reason of particular contractors, subcontractors, vendors, investors or lenders desired by Intrepid in connection with the Project. Intrepid agrees that Intrepid alone will bear all risks of delay which are not Enforced Delay. In the event of the occurrence of any such Enforced Delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for a period of the Enforced Delay; provided, however, that the Party seeking the benefit of the provisions of this Section shall, within thirty (30) calendar 46 days after such Party knows or should know of any such Enforced Delay, first notify the other Party of the specific delay in writing and claim the right to an extension for the period of the Enforced Delay; and provided further that in no event shall a period of Enforced Delay exceed ninety (90) calendar days. SECTION 47. DISPUTE RESOLUTION In the event of a dispute between the Parties to this Agreement regarding a provision of this Agreement, a Party's performance of its obligations as stated in this Agreement or any other matter governed by the terms of this Agreement, the Parties will meet in good faith to attempt to resolve the dispute. If the Parties fail to resolve the dispute, then the Parties may agree that the dispute may be resolved through mediation. If mediation is agreed to by the disputing Parties, the disputing Parties shall mutually agree upon the services of one mediator whose fees and expenses shall be borne equally by the disputing Parties. If the dispute is not resolved within a reasonable time, the disputing Parties shall be free to use other remedies such as litigation to resolve the dispute. SECTION 48. EXHIBITS All Exhibits referred to in this Agreement and any addenda, attachments, and schedules which may, from time to time, be referred to in any duly executed amendment to this Agreement are by such reference incorporated in this Agreement and shall be deemed a part of this Agreement. SECTION 49. SURVIVAL OF LIABILITY All obligations of Intrepid and City hereunder and all warranties and indemnities of Intrepid hereunder shall survive termination of this Agreement. SECTION 50. ENTIRE AGREEMENT This Agreement and any attachments represent the entire agreement between City and Intrepid and supersede all prior negotiations, representations or agreements, either express or implied, written or oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto. Written and signed amendments shall automatically become part of the supporting documents, and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. SECTION 51. MODIFICATION OR AMENDMENT This Agreement cannot be modified or amended except in writing signed by both Parties and approved by the city council. 47 SECTION 52. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement and each provision hereof. Any delay in performance by either Party shall constitute a material breach unless excused by Enforced Delays/Force Majeure as described in Section 46. SECTION 53. PROHIBITION TO CONTRACT WITH LICENSEES WHO ENGAGES IN BOYCOTT OF THE STATE OF ISRAEL. The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with Licensees who engage in boycotts of the State of Israel. Should Licensee under this Agreement engage in any such boycott against the State of Israel, this Agreement shall be deemed automatically terminated by operation of law. Any such boycott is a material breach of contract. [Signatures on following page] 1 This Agreement executed this "7�` day of�r , 20 ZZ. LICENSEE: BIF IV Intrepid OpCo LLC, a Delaware limited li ility company BY. Title:�ahs-(TUc�� '►�;�cc o� LICENSOR: City of Apache Junction, an Arizona municipal corporation By: Walter "Chip" Wilson Title: Mayor ATTEST: Jennifer Pena City Clerk APPROVED AS TO FORM: R. Joel Stern City Attorney 48 STATE OF k1tftct ) A ) ss. COUNTY OFM i ) L� The foregoing was subscribed and sworn to before me this day of 0V"t , 202�1-, byL6t t A. M«ccKtuw as L-,(- e of BIF IV Intrepid OpCo LLC, a Delaware limited liability ccrnpany. Notary Public / My Commission Expires: I LUCERO DUENAZ Notary ftk-State of Arum MAaICOFA COUNTY Comdosion#696195 Expk Jewry 19,2026 STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this day of , 20 , by Walter "Chip" Wiison, as Mayor of the City of Apache Junction, Arizona, an Arizona municipal corporation. Notary Public My Commission Expires: 49 50 EXHIBIT A Map of Use Areas The map contained within this Exhibit is considered confidential and proprietary by Intrepid. The map will be kept on file in the City Engineer’s office and will be released publicly only pursuant to Section 31 of this Agreement. Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-374 Agenda Item No. 5. Agenda Date: 6/21/2022 Sponsor: Doug Wirthgen In Control: City Council MeetingIndex: Consideration of approval of a telecommunications license and right-of-way use agreement between the City of Apache Junction and Accipiter Communications, Inc., doing business as Zona Wyyerd and Wyyerd Connect, LLC doing business as Zona Wyyerd Network Services and doing business as Wyyerd Fiber. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Apache Junction Information Technology (IT) Department DATE: June 20, 2022 TO: Honorable Mayor and City Councilmembers THROUGH: Bryant Powell, City Manager FROM: Doug Wirthgen, IT Director SUBJECT: Wyyerd Telecommunications and Rights-of-Way License Agreement The City of Apache Junction was approached by Wyyerd, an internet service provider (“ISP”), requesting to provide broadband services to city residents, businesses, and the city itself. Negotiations for this telecommunications license agreement have been successful. Attached are the agreed upon terms. Wyyerd will secure the appropriate licenses, encroachment, and other permits required by the city for the placement of its facilities in the city’s streets/rights-of-way. State law requires all fiber providers be treated in a competitively neutral and non-discriminatory manner. Below is a typical fiber installation in city rights-of-way. Wyyerd agrees to provide and maintain accurate maps showing the location of all facilities owned or used by Wyyerd under the license agreement. Staff recommends approval of the license agreement. 1 TELECOMMUNICATIONS LICENSE AND RIGHT-OF- WAY USE AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND ACCIPITER COMMUNICATIONS, INC., D/B/A/ ZONA WYYERD AND WYYERD CONNECT, LLC D/B/A ZONA WYYERD NETWORK SERVICES AND D/B/A WYYERD FIBER THIS WIRED TELECOMMUNICATIONS LICENSE ("LICENSE") AND RIGHT-OF- WAY USE AGREEMENT ("Agreement") is dated this day of , 2022, by and between the City of Apache Junction, an Arizona municipal corporation ("City" and/or “Licensor”) and Accipiter Communications, Inc. dba Zona Wyyerd, a Nevada corporation and Wyyerd Connect, LLC dba Zona Wyyerd Network Services and dba Wyyerd Fiber, a Delaware limited liability company (collectively "Wyyerd Fiber" and/or "Licensee"), the City and Wyyerd Fiber being referred to individually as a “Party” or collectively as the “Parties”. RECITALS A) Accipiter Communications, Inc. holds a certificate of convenience and necessity from the Arizona Corporation Commission dated October 11, 1995 (Decision No. 59346) and Wyyerd Connect, LLC holds a certificate of convenience and necessity from the Arizona Corporation Commission dated June 24, 2021 (Decision No. 78050). B) Wyyerd Fiber seeks an agreement to use the Public Right-of-Way for telecommunication and Non-Telecommunication Services. C) Wyyerd Fiber also desires to obtain from the City a telecommunications license to provide Telecommunication Services. D) City is authorized to regulate its streets, alley and public utility easements, and to grant, renew, deny, amend and terminate licenses for and otherw ise regulate the installation, operation and maintenance of such Facilities within the City's boundaries or cause the relocation of Facilities at Licensee’s sole expense pursuant to Apache Junction City Code, Vol. I, Chapter 13, and by virtue of federal (47 U.S.C. § 253) and state statutes (including, but not limited to A.R .S. §§ 9-581, 9-582, and 9-583), by the City's police powers, its authority over Public Right-of-Way, and its other governmental powers and authority. E) City wants to reserve rights to construct, use and allow others to construct and use additional improvements in the Public Right-of-Way. F) Wyyerd Fiber agrees to provide and maintain accurate maps showing the location of all Facilities owned or used by Zona Wyyerd on Public Right-of-Way within City, and to comply with reasonable mapping requirements as City may establish from time to time. 2 G) Wyyerd Fiber will secure the appropriate licenses, encroachment and other permits required by the city code for the placement of its Facilities placed in the City's boundaries. H) Wyyerd Fiber has agreed to comply with public property use requirements that City has established and may reasonably establish from time to time in accordance with state and federal laws. AGREEMENT NOW THEREFORE, for and in consideration of the foregoing, the amounts hereinafter to be paid by Wyyerd Fiber, and the covenants and agreements contained herein to be kept and performed by Wyyerd Fiber, and for other good and valuable consideration, the City hereby grants to Wyyerd Fiber a telecommunication license ("License") and permission to use the Public Right-of-Way pursuant to the terms and conditions set forth herein. SECTION 1. DEFINITIONS ACC: the Arizona Corporation Commission. A.R.S.: Arizona Revised Statutes. Backbone: a high-speed fiber optic cable network that interconnects smaller, independent networks and is the through-portion of a fiber optic cable transmission network (not the spurs that branch off). Cable: cable bundles containing one or more fiber optic strand(s). Call: the operations required to set up or establish, maintain, and terminate or release a connection through a switched or voice-over-internet protocol telephone network in support of a communication between two or more stations, a call comprises a sequence of events that begins when an end user at an originating station initiates a call request to a switch that may work in conjunction with other switches to establish a connection to an end user at a destination station, and concludes when one party (user) terminates the connection. Claim(s): losses, charges, damages, suits, actions, payments, judgments, demands, expenses and costs, including, but not limited to, attorney's fees incurred throug h all appeals. Coarse Wavelength Division Multiplexing or ("CWDM”): a variation of WDM that carries four or more wavelengths per fiber that is designed for short to medium haul networks (regional and metropolitan areas). Commercial Mobile Radio Services: two-way voice commercial mobile radio service as defined by the FCC in 47 U.S.C. § 157. 3 Common Carrier: a company offering domestic or foreign communication by wire or radio or the domestic or foreign transmission of energy to the general public on a non-discriminatory basis. Conduit: a pipe of either metal, ceramic or plastic that is intended to house and protect buried Cables. Conduit System: any combination of Ducts, Conduits, manholes and handholes joined to form an integrated whole. Contractor: any agent, person, firm, partnership, corporation, association or other organization, or a combination of any of them, or any subcontractor hired by Wyyerd Fiber representatives that performs services or provides goods relating to this Agreement. Dark Fiber: fiber optic strands that are not connected to transmission equipment owned by Licensee. Dense Wavelength Division Multiplex or ("DWDM”): is a variation of WDM but with much higher bandwidth and density. Duct: a single enclosed tube, pipe or channel for enclosing and carrying cables, wires, and other facilities, but is not a Conduit or Conduit system. Equipment: any tangible asset used to install, repair, or maintain Facilities in any ROW. Facilities: the plant, equipment, and property used in the provision of communication and telecommunication services and not owned by the City, including but not limited to poles, wires, pipe, conduits, pedestals, antenna, junction boxes, manholes, hand holes, connecting equipment, electronic transmitting equipment and other appurtenances placed in, on, or under Public Highways. FCC: the Federal Communications Commission. Fiber Optic Network: a communication system consisting of an optical transmitter to convert an electrical signal into an optical signal to send into the optical fiber, a cable containing bundles of multiple optical fibers that is routed through underground conduits and within buildings and related electronic transmission equipment. Information Service: has the same meaning as set forth in 47 U.S. Code § 153 (24), as amended. Inner-Duct: a pathway created by subdividing a Duct into smaller flexible ducts within a Duct. 4 Intrastate Call: a Call that originates and terminates in the State of Arizona. Interstate Call: a Call that originates in one state, territory, possession of the United States, or the District of Columbia and terminates in a different state, territory, possession of the United States, or the District of Columbia or in a different country than the United States. Interstate Telecommunications Services Provider: a Telecommunications Corporation that places underground or above ground Facilities in the Public Highway for interstate telecommunications services. Interstate Traffic: a communication or transmission that originates in any state, territory, possession of the United States, or the District of Columb ia and terminates in another state, territory, possession, or the District of Columbia. Manhole: an enclosure, usually below ground level and entered through a hole on the surface covered with a cast iron or concrete cover, which personnel may enter and use for the purpose of installing, operating and maintaining Cable in a Conduit. Multichannel Video System: includes: A. A "Cable System," as defined at 47 C.F.R. § 76.5(a). B. An "Open Video System," is as defined by 47 C.F.R. § 76.1500(a). C. Any other system providing Multichannel Video Programming Services within the City, where the service is transmitted in whole or in part via wires or lines that are in or cross any ROW within the City, regardless of whether the provider owns, leases or otherwise obtains the right to use the wires or lines, including wires or lines of a telecommunications provider used pursuant to tariff or otherwise for that purpose; provided that any over-the-top video streaming services utilized by Wyyerd Fiber’s customers but not provided by or billed to them by Wyyerd Fiber or its affiliates, is not considered a Multichannel Video Programming Services; D. Any other system providing Multichannel Video Programming Services within the City where a license or similar permission or approval from the City is required under applicable law. For purposes of this License, "Multichannel Video Programming Services" means multiple channels of video programming where some or all of the video programming is generally considered comparable to programming provided by a television broadcast station or by a direct to home satellite service ; provided that any over-the-top video streaming services utilized by Wyyerd Fiber’s customers but not provided by or billed to them by Wyyerd Fib er or its affiliates, is not considered a Multichannel Video Programming Services. Multichannel Video Programming 5 Services specifically includes, but is not limited to, "cable service" as the term is used in Title VI of the Federal Communications Act of 1934. Non-Telecommunications Services: includes Information Services and leasing of physical facilities such as Dark Fiber and Conduit as long as all authority has been approved in compliance with applicable federal and state law and city codes . Parties: collectively the City of Apache Junction and Wyyerd Fiber. Party: individually the City of Apache Junction or Wyyerd Fiber. Person: any natural person or legally established entity. Point of Presence or (“POP”): a telecommunications facility where network equipment is located to be used to connect customers to a Backbone. Provider: a Telecommunications Corporation that constructs, installs, operates or maintains telecommunications Facilities in the City Public Highways. Public Emergency: any condition which, in the sole opinion of City officials, poses an immediate threat to the lives or property of the citizens or others caused by any natural or man-made disaster, including but not limited to, storms, floods, fi re, accidents, explosions, major water main breaks, hazardous material spills, etc. Public Highway: the publicly owned or controlled roads, streets and alleys and all other dedicated public ROWs and any public utility easement (“PUE”) of the City. Public Service Corporation: a corporation engaged in furnishing gas, oil, or electricity for light, fuel, or power; or water , fire protection, or other public purposes; or in furnishing, for profit, hot or cold air or steam for heating or cooling purposes; or engaged in collecting, transporting, treating, purifying and disposing of sewage through a system, for profit; or in transmitting messages or furnishing public telegraph or telephone service, and all corporations other than municipal, operating as common carriers (however, a message transmitting company is only a public service corporation if it is a common carrier). Public Utility Easement or (“PUE”): an easement or other real property right that is granted dedicated, reserved or otherwise conveyed for the use of utility facilities, regardless of the language used in creating such right, and regardless of the inclusion of other authorized uses. Public Right-of-Way or ("ROW”): an area of land, which by deed, conveyance, agreement, easement, dedication, usage or process of law, is reserved or dedicated to the City for public purposes, including, but not limited to, street, roadway, highway, alley, public utility, pedestrian walkway, bikeway, or drainage. 6 Service Lateral: an underground facility that is used to transmit, distribute, or furnish communications from a common source to an end-use customer. Telecommunications: the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received, but does not commercial mobile radio services, pay phone services, interstate services, cable services, or the leasing of dark fiber for transmission purposes. Telecommunications Corporation: any Public Service Corporation to the extent that it provides telecommunications services in Arizona. Telecommunications Services: the offering of telecommunications for a fee directly to the public, or to such users as to be effectively available directly to the public, regardless of the facilities used. Users: unrelated or unaffiliated third parties of Wyyerd Fiber that are leasing Wyyerd Fiber’s Facilities. Wavelength Division Multiplexer or (“WDM”): a device that combines optical signals from multiple different single-wavelength end devices onto a single fiber. SECTION 2. PERMISSION TO USE PUBLIC RIGHT-OF-WAY 2.1 Grant and Acceptance of License and Agreement. Subject to the provisions of this Agreement, the Apache Junction City Code, and Arizona and federal law, City hereby grants to Wyyerd Fiber permission to use the designated portions of the ROW set-forth on Exhibit “A”, as may be amended from time to time by agreement of both Parties, subject to and conditioned upon Wyyerd Fiber’s full, timely, complete and faithful performance of all obligations to be performed or required hereunder by Wyyerd Fiber, and Wyyerd Fiber hereby accepts the terms and conditions of this License and Agreement. 2.2 Conditions of Grant: Permitted Uses. Wyyerd Fiber’s use and occupation of the ROW shall in all respects conform to all and each of the following provisions: 2.2.1 Permitted Uses. Wyyerd Fiber shall use the portions of the ROW solely for the uses allowed under this License and Agreement and shall not conduct or allow to be conducted by any person under Wyyerd Fiber’s control any other activity at or from those designated portions of the ROW where it has permission to be. The permitted uses of the ROW are limited to the following: 2.2.1.1 Constructing, maintaining, repairing and operating the Facilities as described in this Agreement for the provision of Services and the leasing of Facilities. 7 2.2.1.2 To the extent that any Fiber Optic Networks within the route within the City carry intrastate and/or interstate Calls as referenced by A.R.S. §§ 9-582 and 9-583, the City hereby grants Wyyerd Fiber a revocable and nonexclusive License to run concurrently with the term of this Agreement. The permission granted herein shall be limited to the Fiber Optic Network routes identified in the map submitted to the City as part of Wyyerd Fiber’s application and to future expansions or extensions that are done by Wyyerd Fiber in accordance with Section 12. 2.2.1.3 Such additional related uses for which City may give consent from time to time. Such additional uses may only be conducted following City's giving to Wyyerd Fiber written notice of such consent. City may terminate or impose conditions and limitations on such consent from time to time in City's sole and absolute discretion by giving subsequent written notice to Wyyerd Fiber. 2.3 Prohibited Uses. 2.3.1 All other uses of the ROW by Wyyerd Fiber are prohibited except as permitted in Section 2.2.1 of this Agreement Wyyerd Fiber will not allow third parties to use the Facilities for any use that Wyyerd Fiber itself does not have the authority under this License and Agreement in connection with the use of the Facilities. 2.3.2 The License granted by this Agreement does not allow Wyyerd Fiber to provide one-way transmissions by itself or anyone else directly to customers or any other type of video programming or other programming or transmission that may be subject to a cable television or video services system license. This License does not allow a Multichannel Video System and/or the providing of Multichannel Video Programming Services and the Parties agree that a separate agreement will be needed in order for Wyyerd Fiber to have such a system or to provide such services. 2.4 Facilities Limited. The authority to install and construct any Conduit System and/or Fiber Optic Networks on City property granted herein authorizes Wyyerd Fiber only to install such Fiber as is necessary to construct and operat e the infrastructure described in this Agreement in order to provide the authorized services and does not authorize Wyyerd Fiber to install or construct any Facilities not expressly provided for in this Agreement. 2.5 Empty Conduit. To the extent that Wyyerd Fiber occupies the ROW solely with empty conduit and/or leased dark fiber and/or uses the City's ROW to provide services other than Telecommunication Services as defined by A.R.S. § 9-581 or Information Services, such use and/or occupation of the ROW is subject to the terms and conditions of this Agreement and any applicable fees, permits and laws. 8 2.5.1 Wyyerd Fiber warrants and represents to the City that at the time of the execution of this Agreement, it is not leasing Dark Fiber or Conduit to third party Users within the Public Rights-of-Way. In the future, should Licensee lease any of its Dark Fiber or Conduits to Users, Wyyerd Fiber shall notify the City within forty-five (45) calendar days of the location and footage of such leased Dark Fiber or Conduit route(s), and the Users of each such leased facility, and shall be in compliance at all times with Section 4.3 below. 2.6 Compliance with Laws. Wyyerd Fiber shall comply with all applicable laws as amended from time to time, including but not limited to, the Apache Junction City Code and Arizona and federal law in the exercise and performance of its rights and obligations under this Agreement. If it is necessary for Wyyerd Fiber to comply with any law or regulation of the FCC or the ACC to engage in the business activities anticipated by this Agreement, Wyyerd Fiber shall comply with such laws or regulations as a condition precedent to exercising any rights granted by this Agreement, provided however, no such law or regulation of the FCC or ACC shall enlarge or modify any of the rights or duties granted by this Agreement without a prior written modification to this Agreement. Notwithstanding any other provision of this License, a violation of Wyyerd Fiber’s obligations under this Section 2.6 may result in termination of this License by the City after procedural and substantive due process have been afforded by the City to Wyyerd Fiber. SECTION 3. NON-EXCLUSIVE RIGHTS/PRIORITY RIGHTS 3.1 Non-Exclusive License. This License is not exclusive. Nothing herein contained shall be construed to prevent City from granting other like or similar grants or privileges to any other person, firm or corporation. When the terms in this License are specific, they will not deny or lessen the powers and privileges granted City under the Constitution and laws of the State of Arizona or the laws and regulations of the United States existing at commencement of this License or at any time thereafter. 3.2 Subject to City's Use or Occupancy. Any and all rights granted to Wyyerd Fiber shall be subject to the prior and continuing right of City to use the ROW exclusively or concurrently, with any other person or persons, and to manage City's own facilities, include rights granted to the City in the Apache Junction City Code subsequent to the execution of this License. Any and all rights to occupy the ROW granted to Wyyerd Fiber shall also be subject to all deeds, easements, PUEs, dedications, conditions, covenants, restrictions, encumbrances, and claims to title which may affect public property. Nothing in this License shall be construed to grant, convey, create or vest a perpetual real property interest in land to Wyyerd Fiber, including any fee or leasehold interest, easement, or any franchise rights. 3.3 Subject to Others' Use or Occupancy. Any right or privilege claimed pursuant to this Agreement by Wyyerd Fiber for any use of any public ROW shall be subordinate to: A) any prior or subsequent lawful occupancy or use thereof by the City or any other governmental or City-permitted person; B) any prior lawful 9 occupancy or use thereof by any other person; C) any subsequent lawful occupancy or use thereof by any other person in a manner that does not at the time of grant violate Wyyerd Fiber’s rights under this License; and D) to any prior easements therein, provided however, that nothing herein shall extinguish or otherwise interfere with property rights established independently of this Agreement. 3.4 Rights Reserved to City. There is hereby reserved to City every right and power required pursuant to this Agreement to be herein reserved or provided by any lawful ordinance and Wyyerd Fiber by its execution of this Agreement agrees to be bound thereby and to comply with any lawful action or lawful requirements of the City in its exercise of such rights or power, heretofore or hereinafter enacted or established. Neither the granting of any Agreement nor any provision hereof shall constitute a waiver or bar to the exercise of any lawful governmental right or power of City. 3.5 City's Modification Rights. Nothing in this Agreement shall be construed to prevent the City from adding to, abandoning, altering, improving, repairing, replacing, realigning, expanding, reducing, or maintaining its Facilities and/or the ROW itself, and for that purpose to require Wyyerd Fiber, at no expense to the City, to promptly remove, relocate, or at the City’s sole option abandon in place Wyyerd Fiber 's Facilities in order to accommodate the health and safety activities of the City. The City shall not be liable for lost revenues sustained by Wyyerd Fiber or any party contracting with Wyyerd Fiber, however caused. SECTION 4. NOTICE OF OTHER USERS 4.1 Third Party Contracts. Wyyerd Fiber may enter into contracts with Users in the ordinary course of Wyyerd Fiber 's business for use of the Conduit Systems, Dark Fiber, and/or Fiber Optic Networks within the portions of the ROW subject to this Agreement. Such contracts ("User Contracts") shall be subject to all requirements and provisions of this Agreement and the following: 4.1.1 Wyyerd Fiber shall not allow any person to transmit voice, video or data over the Fiber Optic Networks or otherwise use the Conduit System(s) except under an unexpired and valid User Contract with Wyyerd Fiber, which contract(s) shall be made available for City inspection upon request. 4.1.2 Wyyerd Fiber and any person under its control, authority or direction shall not perform any construction, maintenance, repair or other work of any kind in the ROW related to the Fiber Optic Networks, Dark Fiber, or Conduit System(s) without having first securing all City-required encroachment, traffic, and any other health and safety permits, and the identity of such Users must be disclosed to the City upon request but such information will be considered Confidential and Proprietary under Section 31.2.3. All User Contracts shall prohibit such Users from performing any construction, maintenance, repair or other work of any description in the ROW 10 related to the Fiber Optic Networks, Dark Fiber, or Conduit System(s), unless such Users have an agreement with the City. 4.1.3 In the event the User Contract provides for the User to construct, install, operate or maintain any portion of the Fiber Optic Networks, Dark Fiber, or Conduit System(s) within the route in the ROW, no such arrangement shall proceed until the User enters into an Agreement with the City for use of the City's ROW. 4.2 Wyyerd Fiber Responsible for Users. Wyyerd Fiber shall take prudent and timely steps to ensure that all persons using the ROW through or under Wyyerd Fiber or this Agreement to comply with this Agreement. Wyyerd Fiber is responsible for any violations of this Agreement by persons using the ROW through or under Wyyerd Fiber or this Agreement for whom Wyyerd Fiber may be legally liable. 4.3 Dark Fiber Leases. Should Wyyerd Fiber lease Dark Fiber or Conduit to a User within the ROW, Wyyerd Fiber shall inform the City within forty-five (45) calendar days of the location and length of the Dark Fiber or Conduit route that is being leased through an indefeasible right of use agreement or similar contractual arrangement. Pursuant to Section 21.2.4 of this Agreement, a pro-rated ROW use fee will be calculated from the date the Dark Fiber or Conduit is leased to a User to the anniversary date of the Agreement and such amount will be added on to the annual fee that will be due on the anniversary date of the Agreement. This additional footage will be added to any current leased Dark Fiber or Conduit footage and used in the calculation of the total annual fee owed on the anniversary date of this Agreement. Identification of the User will be kept confidential to the extent allowed by law. If there is a public records request for such information, City will contact Wyyerd Fiber to allow it an opportunity to seek judicial relief to prevent the disclosure of the Lessee's identity. SECTION 5. DESCRIPTION OF THE SERVICES AND ROUTES 5.1 Wyyerd Fiber 's Authorized Uses. Wyyerd Fiber intends to use its Fiber Optic Network to provide local and long-distance telecommunications services, data and Internet services, and point to point broadband services. 5.2 Wyyerd Fiber's Certification of Convenience and Necessity. Accipiter Communications, Inc. holds a certificate of convenience and necessity from the Arizona Corporation Commission dated October 11, 1995 (Decision No. 59346) and Wyyerd Connect, LLC holds a certificate of convenience and necessity from the Arizona Corporation Commission dated June 24, 2021 (Decision No. 78050). SECTION 6. REGULATORY CONDITIONS RELATING TO PUBLIC RIGHT-OF-WAY USAGE For purposes of this Agreement, whenever work is done in the ROW relating to any of the Facilities, Wyyerd Fiber agrees that it is solely responsible for the acts, errors, 11 omissions, and any negligence of any or all of its Contractors and that the obligations of Sections 6 and 7 are imposed on both Wyyerd Fiber and any of its Contractors, who will be considered Wyyerd Fiber's agents and for whom Wyyerd Fiber will be responsible. Wyyerd Fiber will ensure that Wyyerd Fiber and its agents comply with ROW use requirements as follows: 6.1 Registration. Wyyerd Fiber agrees to register with the City by completing an application or renewal application form and paying the applicable application fee. 6.2 Notice of Changes. Wyyerd Fiber shall file a proposed amendment to the registration before it makes any change that would render the registration information incomplete or inaccurate. A change of Wyyerd Fiber's name or address must be filed at least ten (10) calendar days prior to the date the change becomes effective; a change in the telephone number must be filed ten (10) calendar days before the change becomes effective. 6.3 Facilities Construction. Wyyerd Fiber is completely responsible for ensuring that its Facilities are constructed, installed, operated and/or maintained in accordance with the Apache Junction City Code and established practices with respect to such ROW and easements such as the proper permits being applied for prior to commencing any work and that the terms and conditions of such permits are strictly followed. 6.4 Plan Approval. Wyyerd Fiber's use of the ROW and easements under the control of the City shall be according to plans and permit conditions approved by the City Engineer, provided that such approval shall not be unreasonably withheld or delayed. Permit application and inspection fees shall apply to each such Wyyerd Fiber permit application to use the ROW. 6.5 Interference Minimized. The Facilities to be constructed, installed, operated, maintained, upgraded and removed hereunder, shall be so located or relocated as directed by the City Engineer as to not interfere with public health and safety, traffic, ROW maintenance and modifications, or other authorized uses within said ROW and easements. Any phases of construction and/or installation relating to traffic control, backfilling, compaction and paving, as well as the location or relocation of said Facilities shall be subject to regulation by the City Engineer. 6.6 City's Reserved Powers. Wyyerd Fiber and its agents shall be subject to the City's exercise of such police, regulatory and other powers as it now has or may later obtain, and Wyyerd Fiber may not waive the application of the same. City shall have continuing jurisdiction and supervision over any Facilities located within or on ROW. Daily administrative, supervisory, and enforcement responsibilities shall be delegated and entrusted to the City Manager or his or her designee to interpret, administer and enforce the provisions of this License and Agreement. 12 SECTION 7. PLAN APPROVAL, PERMITS, AND INSPECTION 7.1 Required Approvals. No Facilities shall be installed, constructed, located on, or attached to any property within the City until Wyyerd Fiber has applied for and received approval for permits from the City Engineer. Wyyerd Fiber shall be solely responsible for any and all acts, errors, omissions and negligence of its Contractor(s) who are involved in the installation, construction, maintenance, repair, location, relocation and any other activity involving Wyyerd Fiber's Facilities subject to this License and Agreement. Additionally, Wyyerd Fiber and its Contractor(s) shall comply with all other provisions of the Apache Junction City Code, regarding streets and sidewalks, and other applicable City and/or Maricopa or Pinal County regulations. All rights hereunder are granted under the express condition that the City shall have the power at any time to impose lawful restrictions and limitations upon, and to make regulations as to Wyyerd Fiber's use of the public ROW as may be deemed best for the public interest, safety, or welfare to the same extent that such restrictions and limitations are applied to all non -governmental users of the public ROW. 7.2 Permits: Licenses. Wyyerd Fiber shall submit the applicable permit application(s) together with the details, plans and specifications and traffic control plans for City review and approval by the City Engineer, and pay all applicable application, review and inspection fees prior to any and all construction work performed pursuant to the rights granted under this Agreement. Wyyerd Fiber and/or its Contractor(s) shall abide by all stipulations of all licenses and permits issued. If Wyyerd Fiber desires to change the location of any portion of the Conduit System(s) and/or Fiber Optic Network(s), including any related Facilities or equipment, from that set forth in the initial permit application, Wyyerd Fiber shall apply for and obtain approval for an amendment to the permit prior to installation or construction. 7.3 Multiple Permit Policy. The City may issue reasonable policy guidelines to all licensees/users of its ROW to establish procedures for determining how to control issuance of engineering permits to multiple licensees/users for the same one-mile segments of the ROW. Wyyerd Fiber agrees to cooperate with the City in establishing such policy and comply with the procedures established by the City Engineer or designee to coordinate the issuance of multiple engineering permits in the same one-mile segments. 7.4 Approval: Denial. City will approve or deny such applications based on the availability of space at the location sought by Wyyerd Fiber, safety and other considerations in accordance with the City's code, applicable ROW construction regulations and other applicable law. Wyyerd Fiber and/or its Contractor(s) agree to comply with the terms of any City-issued licenses and permits. 7.5 Construction Standards. Any new Conduit or other Facilities placed in the ROW will be constructed using industry standard horizontal directional drilling and trenching construction methods. Conduit route, depth, trench dimensions, and fill 13 and cap requirements are as determined by the City’s Director of Public Works is required to be twenty-four (24) inches to thirty-six (36) inches for dry utilities and at least eighteen (18) inches horizontal from wet utilities but where the Director determines that greater depth or separation are required for infrastructure safety, then those changed requirements shall apply . Other material placed in the ground may include concrete manholes, generally 4x4x4, pull boxes/handholes and high- density polyethylene (“HDPE”) couplings and elbows, fiber optic cable, splice cases, tracer wire, grounding material, mule tape, jet string and conduit plugs. Zona Wyyerd and/or its Contractor(s) will install any new Conduit and access points (manholes/pull boxes) using industry standard practices and in full compliance with Uniform Standard Specifications and Details for Public Works Constructi on sponsored and distributed by the Maricopa Association of Governments as amended (hereinafter referred to as "MAG"), any City's supplements to MAG, and the City of Apache Junction encroachment and other permit regulations, including but not limited to any and all data conduit standards on file with the city engineer and IT director. All construction activities including, but not limited to trenching barrier safety support, shall strictly follow all state and federal occupational safety and health regulations. 7.6 System Component Changes. If Wyyerd Fiber desires to change the components of any of the Fiber Optic Network and such change would require Wyyerd Fiber to obtain a permit, written approval of such change must be obtained from the City Engineer pursuant to the City's permitting process. 7.7 Specifications. The City shall have the right to inspect all construction or installation work performed subject to the provisions of this License and to make such tests as it shall find necessary to meet City standards and the MAG Uniform Standard Specifications and Details for Public Works Construction to ensure compliance with the terms of this License and other pertinent provisions of law. 7.8 New System Installation. Any new Conduit system(s) and/or Fiber Optic Network(s) shall be installed as agreed upon by Wyyerd Fiber and the City. If portions of this project will take place on the major arterial streets in City, Wyyerd Fiber and City will work to minimize the inconvenience to the citizens of City and others who use those major arterial streets impacted by the project by developing segments of the project to be completed in sequence. 7.9 Non-Interference. Any Conduit systems and/or Fiber Optic Network(s) to be constructed, installed, operated, and maintained under this Agreement shall be located or relocated so as to not interfere with traffic, existing facilities of other utilities or other authorized users over, under or through said Public Highway. Wyyerd Fiber shall not install, operate, or allow the use of Equipment, methodology or technology that may or would unreasonably interfere with the optimum effective use or operation of City's existing or future fire, emergency or other communications equipment, methodology or technology (i.e., voice or other data carrying receiving or transmitting equipment). If such unreasonable interference should occur, Wyyerd Fiber shall immediately discontinue using the equipment, methodology or 14 technology that causes the interference until Wyyerd Fiber takes corrective measures to alter the Fiber Optic Network(s) to eliminate such interference. Any such corrective measures shall be made at no cost to City. Wyyerd Fiber shall be responsible to ensure compliance with this Agreement by all persons using the ROW through or under Wyyerd Fiber or this Agreement. 7.10 Co-location & City Conduit. Wyyerd Fiber's installation of the Facilities shall be reasonably coordinated with other utilities and the City to accommodate opportunities for common installation along with Wyyerd Fiber's route as set forth in this Agreement. Provided there is sufficient advance notice during the permitting process, Wyyerd Fiber shall allow the City to either add conduit for the City's benefit during Wyyerd Fiber's installation or Wyyerd Fiber shall install conduit for the City's benefit during Wyyerd Fiber's installation. The City shall pay Wyyerd Fiber the cost of all materials for such installation. Nothing herein shall r equire Wyyerd Fiber to incur any additional expense to accommodate common installations. All installations of cable and/or fiber shall be in Conduit or innerduct as reasonably approved by the City Engineer. 7.11 Facility Location Street Opening. Although the exact placement and location of any additional Facilities shall be determined by the City through the permit process, Wyyerd Fiber has expressed its intent and the City Engineer has expressed his or her desire to have any Facilities installed outside of the paved street areas whenever such location is feasible and reasonable. Further, if it is the intent and desire of Wyyerd Fiber for the Conduit System to be placed by horizontal directional drilling under such streets when feasible and reasonable, bore profiles based on vacuum pothole information shall be part of the engineered plans submitted to the City. Arterial streets shall not be bored unless approved by the City Engineer. In the event that a street opening in new pavement or resurfaced pavement cannot be avoided, a non-discriminatory, reasonable surcharge fee solely as determined by the City Engineer to cover damages and early deterioration will be assessed when Wyyerd Fiber is cutting new or resurfaced pavements less than ten (10) years old. 7.12 Wyyerd Fiber Representative. Wyyerd Fiber shall also identify and provide a 24-7 telephone number and email address for a representative, such as a project manager, who shall be the contact person for the City for construction periods. 7.13 Neighbor Notification. Prior to the start of any construction work, Wyyerd Fiber shall provide written notice to the businesses and/or residences adjacent to the work being done. 7.13.1 If an emergency requires activity without such written notice, Wyyerd Fiber shall use reasonable best efforts to provide timely actual notice to the owners or other persons having lawful control of the adjoining property. Upon request, Wyyerd Fiber shall promptly furnish to City documentation of such permission from such other affected property owner. 15 7.14 Opening or Alteration. Whenever Wyyerd Fiber or its Contractors shall cause any opening or alteration to be made for any purpose in any public streets, or public places, the opening or alteration shall be completed and restored with due diligence within seven (7) business days or any other such time as required by the City Engineer. Wyyerd Fiber shall upon the completion of the opening or alteration, restore the property, improvements or landscaping disturbed by Wyyerd Fiber or its Contractors to a condition substantially comparable to the condition before the opening or alteration and the restoration shall be performed with due diligence within a reasonably prompt time. Wyyerd Fiber is solely responsible for guarding and protecting the public health and safety during any opening, alteration, or restoration and if traffic control is needed shall only use Apache Junction Police Officers as coordinated through the police chief. 7.15 Traffic Control. 7.15.1 All traffic shall be regulated in accordance with MAG and applicable City policies and regulations. 7.15.2 At the time of the pre-construction conference, Wyyerd Fiber shall designate an American Traffic Safety Services Association (“ATSSA”) certified individual who is well qualified and experienced in construction traffic control and safety, to be responsible for implementing, monitoring, and altering traffic control measures as necessary to insure that traffic is carried through the work area in an effective manner and that motorists, pedestrians, bicyclists, and workers are protected from hazard and accidents. As noted above in Section 7.14, only Apache Junction Police Officers shall be used for traffic control. 7.15.3 Wyyerd Fiber shall have the full responsibility and liability for traffic control for work performed by Wyyerd Fiber or their Contractors. Wyyerd Fiber shall submit a Traffic Control Plan to the City Engineer for approval as part of the ROW encroachment permit application. It shall be noted that Traffic under this Agreement shall include all motor vehicles, bicyclists, and pedestrians. Wyyerd Fiber shall not begin construction until the Traffic Control Plan is approved by the City Engineer. An approved Traffic Control Plan shall be maintained onsite during all phases of construction, otherwise construction will cease until the Traffic Control Plan is approved. 7.15.4 During construction it may be necessary to alter traffic control as approved by City Engineer. Alterations to traffic control shall be in accordance with the latest edition of Part VI of the Manual on Uniform Traffic Control Devices: "Traffic Control for Streets and Highway Construction and Maintenance Operations"; or City regulations or policies. The most restrictive requirements shall apply. Wyyerd Fiber shall pay any and all applicable barricade fees. 16 7.15.5 City will make no payment for traffic control. The cost for any fees shall be Wyyerd Fiber's sole responsibility. 7.15.6 In the event Wyyerd Fiber or its Contractor(s) damages any traffic signal equipment, traffic signal conduit, loop detectors and/or circuits, it shall immediately notify the City Engineer and have the damage repaired immediately at its sole expense by an electrical Contractor that has had traffic signal experience and which is pre-approved by the City Engineer. Any damage caused by Wyyerd Fiber or its Contractor(s) or subcontractors that is repaired by the City will be billed to Wyyerd Fiber at cost which may include a management fee reflecting the City time consumed by staff in connection to such damage. 7.15.7 Wyyerd Fiber shall notify all adjacent or affected residents or businesses at least forty-eight (48) hours in advance of any street, alley, sidewalk, and driveway closures so that the recipients of said notices can make suitable arrangements to have all vehicles moved to a satisfactory location outside the closed area. 7.15.8 Pedestrian access shall be maintained along the length of the project at all times per the requirements of the Americans with Disability Act (“ADA”) and as approved by City Engineer. 7.15.9 Speed limits shall be strictly enforced. 7.16 Clean Up. Wyyerd Fiber and/or its Contractor(s) shall, during construction and upon completion of the work, remove all temporary construction facilities, debris, construction marks, and unused materials provided for in the work, and put the work site and public ROW in a safe, neat and clean condition as it was before the commencement of the work. 7.17 Safety. Wyyerd Fiber and Wyyerd Fiber's Contractor(s) shall be solely and completely responsible for the conditions of any job site where the infrastructure is being placed, including safety of all persons (including employees) and property during performance of the work. This requirement shall apply continuously and not be limited to normal working hours. Safety provisions shall conform to all applicable federal (including “OSHA”), state, county, and local laws, ordinances, codes, and regulations. Where any of these are in conflict, the more stringent requirement shall be followed. Wyyerd Fiber's failure to thoroughly familiarize itself with the aforementioned safety provisions shall not relieve Wyyerd Fiber from compliance with these provisions. 7.18 Blue Stake. Wyyerd Fiber and its Contractor(s) shall comply with A.R.S. §§ 40-360.21 through 40-360.32 by participating as a member of the Arizona Blue Stake Center with the necessary records and persons to provide location service of Wyyerd Fiber's Facilities upon receipt of a locate call or as promptly as possible, but 17 in no event later than two working days. A copy of the agreement or proof of membership shall be filed with the City Engineer. SECTION 8. HAZARDOUS SUBSTANCES 8.1 Applicable Law. Wyyerd Fiber's and its Contractor(s)' activities upon or about the ROW shall be subject to the following regarding any hazardous or toxic substances, waste or materials, or any substance now or hereafter subject to regulation under the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et. seq., the Arizona Hazardous Waste Management Act, A.R.S. §§ 49-901, et. seq., the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et. seq., or the Toxic Substances Control Act, 15 U.S.C. § 2601, et. seq., or any other federal, state, county or local law pertaining to hazardous substances, waste or toxic substances and their reporting requirements (collectively "Toxic Substances"). 8.2 Toxic Substance Restrictions. Wyyerd Fiber and/or its Contractor(s) shall not produce, dispose, transport, treat, use or store any Toxic Substances upon or about the ROW. The prohibitions of the preceding sentence only shall not apply to: 8.2.1 Ordinary gasoline, diesel fuel or other fuels or lubricants necessary for ordinary use in motor vehicles and ordinary construction machinery permitted upon the ROW. Such materials must be properly and lawfully contained in ordinary quantities in ordinary tanks and receptacles that are permanently installed in such vehicles and machinery, or small portable tanks that are being used for fueling permitted construction machinery. 8.2.2 Electric backup batteries. 8.3 Disposal. Wyyerd Fiber and/or its Contractor(s) shall dispose of any Toxic Substances away from the ROW as required by law and as reasonably required by City. 8.4 Use Restriction. Wyyerd Fiber and/or its Contractor(s) shall not use the ROW in a manner inconsistent with regulations issued by the Arizona Department of Environmental Quality (“ADEQ”), or in a manner that would require a permit or approval from the ADEQ or any other governmental agency. The preceding sentence does not prohibit ordinary permits for control of dust during construction permitted by this Agreement. 8.5 Indemnification/Defense/Hold Harmless. In addition to and without limitation of any other indemnities or obligations, Wyyerd Fiber shall pay, indemnify, defend and hold City, its elected officials, appointees, agents, and employees harmless against any loss or liability incurred by reason of any Toxic Substance on or affecting the portion of the ROW used that is attributable to or directly caused by Wyyerd Fiber, its Contractor(s) or anyone using the ROW under this Agreement. 18 8.6 Notice of Toxic Substances. Wyyerd Fiber and/or its Contractor(s) shall immediately notify City of any Toxic Substance at any time discovered or existing upon the ROW. Wyyerd Fiber is not responsible for Toxic Substances that may exist at the ROW if Wyyerd Fiber's Contractors and/or any other persons using the ROW under this Agreement did not do any of the following: (A) participate in the Toxic Substance coming to the ROW; (B) fail to immediately report the known Toxic Substance to City; (C) participate in spreading or otherwise disturbing the Toxic Substance; or (D) exacerbate the effects of the Toxic Substance or the difficulty or cost of dealing with the Toxic Material. 8.7 Acknowledgement. Wyyerd Fiber understands the hazards presented to persons, property and the environment by dealing with Toxic Substances. Wyyerd Fiber acknowledges the possibility that the ROW may contain actual or presumed asbestos and other Toxic Substances containing materials. 8.8 Notice of Violation. For any violation by Wyyerd Fiber and/or by its Contractor(s) of this Agreement pertaining to Toxic Substances, Wyyerd Fiber shall immediately give the City Engineer written notice reporting such violation and disclose the specific steps Wyyerd Fiber is taking to remediate each such violation. SECTION 9. ON-CALL ASSISTANCE A person (not a recording or otherwise automated system) who works for Wyyerd Fiber shall be available to staff employees of any City department having jurisdiction over Wyyerd Fiber's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the installation, operation, maintenance, or removal of its Network. City may contact by telephone the responsible person at Wyyerd Fiber at the following phone number (602) 692-0068 regarding such problems or complaints and may use that number in order to reach Wyyerd Fiber at any time for any emergency matter. Wyyerd Fiber shall use reasonable efforts to respond to any issues within the time frames specified in its service level agreements. Wyyerd Fiber shall make arrangements with a local entity to handle any necessary problems or complaints that require a physical presence. SECTION 10. MAPPING REQUIREMENT 10.1 As-Built Drawings. Wyyerd Fiber shall maintain As-Built Drawings of its Facilities located within the ROW and furnish a copy both electronically (or in a mapping format compatible with the then-current City electronic mapping format as specified by the City) on an annual basis or upon reasonable request by the City. Wyyerd Fiber shall create and maintain maps of any of its Conduit System and/or Fiber Optic Network routes, new routes, and any above ground equipment located in the ROW and precise and verifiable horizontal and vertical loca tion information and will make this information available to the City. Wyyerd Fiber will also provide surface-location marking and locating wire of and in all of Wyyerd Fiber's Facilities that are located underground within any ROW. Such information shall be provided to the City within ten (10) calendar days of installation and subsequent modifications 19 or relocations. The information provided by Wyyerd Fiber under this section will be accurate to the best of Wyyerd Fiber's knowledge. Wyyerd Fiber shall make every reasonable effort to provide accurate and useful information. Wyyerd Fiber shall be permitted to remove any information from the drawings provided hereunder that is not required by the City Engineer for the City's purposes for the maintenance of public health and safety. 10.2 Failure to Provide Updates. If complete updates are not provided in a compatible format, Wyyerd Fiber shall pay the actual, reasonable costs the City incurs to update the City's electronic mapping format due to the location or relocation of Wyyerd Fiber's Facilities. However, before the City incurs any cost to convert updates provided by Wyyerd Fiber, it will notify Wyyerd Fiber that it cannot access the updates that have been provided. If within fourteen (14) calendar days, Wyyerd Fiber has not either provided compatible updates or provided the City an agreeable date by which such updates will be received by City, City will convert the incompatible updates unilaterally at Wyyerd Fiber expense, which upon presentation of the cost invoice, shall pay within one week. 10.3 Incorrect Format Records. In the event Wyyerd Fiber fails to supply records in the City specified format and there is a cost to the City in converting Wyyerd Fiber provided files, Wyyerd Fiber will be responsible for the conversion costs and will pay such costs within thirty (30) calendar days of the date of the bill from the City invoicing the amount due. However, before the City incurs any cost to convert Wyyerd Fiber-provided files, it will notify Wyyerd Fiber that it cannot access the records that have been provided. If within fourteen (14) calendar days, Wyyerd Fiber has not either provided compatible records or provided the City an agreeable date by which such records will be received by City, City will convert the incompatible records unilaterally. 10.4 Confidentiality. The files and drawings provided by Wyyerd Fiber to the City shall be considered confidential and subject to the restrictions in Section 31 below and disclosed as a public record only to the extent required by A.R.S. § 39-126.01. SECTION 11. RELOCATION 11.1 Relocation. Wyyerd Fiber shall timely relocate, at no expense to the City, any Facilities or other encroachment installed or maintained in, on or under any public place or ROW, as may be necessary to facilitate any public purpose whenever directed to do so by the City Engineer. Such relocations shall be accomplished in accordance with the directions from the City Engineer and shall be pursuant to the same terms and conditions as the initial installation allowed pursuant to this License and any applicable issued permits. Within ninety (90) calendar days after service of notice by the City, Wyyerd Fiber shall remove the designated portions of the Facilities, or in the event that, by the nature of the removal such removal cannot be performed within the ninety (90) calendar-day period, Wyyerd Fiber shall take reasonable steps to remove the Facilities and diligently prosecute the removal to completion, and, if requested, restore the sidewalks and other ROW to a condition 20 comparable to the condition before the construction of the public improvement at no cost and expense to the City. City agrees to cooperate with Wyyerd Fiber to identify alternate locations where available within the ROW. 11.2 Permits. Wyyerd Fiber agrees to obtain all permits as required by this Agreement and the City of Apache Junction Code prior to removing, abandoning, relocating or reconstructing of any portion of its Conduit System(s) or Fiber Optic Network(s) on public property or ROW. Notwithstanding the foregoing, City understands and acknowledges there may be instances when Wyyerd Fiber is required to make repairs that are of an emergency nature or in connection with an unscheduled disruption of the Facilities. Wyyerd Fiber will maintain any annual permits required by the City for such maintenance and emergency repairs. If a traffic control plan cannot be submitted prior to an emergency repair, Wyyerd Fiber may proceed with such repair but acknowledges that it is responsible for implementing a traffic control plan in accordance with the requirements of Section 7.15 above, including the specific requirements in Section 7.15.4, and assumes all risk for such repair. Wyyerd Fiber will notify the City Engineer before the repairs and will apply for necessary permits within three (3) calendar days after notification. 11.3 City Self-Help. If the City needs to perform any part of the necessary relocation or removal work that has not been done within the time required by the City, it shall be entitled to seek payment for such relocation costs by drawing upon the letter of credit or security fund required by this Agreement pursuant to Section 25. 11.4 Wyyerd Fiber Consent. Except as otherwise provided herein, City shall not, without the prior written approval of Wyyerd Fiber, intentionally alter, remove, relocate or otherwise interfere with any portion of Wyyerd Fiber's Facilities. Any written approval required shall be promptly reviewed and processed by Wyyerd Fiber and shall not be unreasonably withheld. SECTION 12. EXPANSION OR EXTENSION OF THE CURRENT USE AREA 12.1 Approval Required. Any further expansion and/or extension of Wyyerd Fiber's Fiber Optic Network and or empty Conduit placement shall require written approval from a representative of the City Engineer pursuant to the City's permitting process. 12.2 Expansions Governed by this Agreement. Wyyerd Fiber agrees that such further expansions and/or extensions shall be at all times governed by the terms and conditions of this Agreement. Wyyerd Fiber shall obtain all required permits in connection with any such expansion or extension. 12.3 Required Information. Upon request for an encroachment permit, requests for expansions and/or extensions should identify the route, number of conduits, size of conduits, fiber count and intended use. 21 SECTION 13. DAMAGE TO PUBLIC PROPERTY 13.1 Duty to Restore Damage. In addition to any indemnity obligation under this License and Agreement, whenever the installation, use, maintenance, removal, or relocation of any of Wyyerd Fiber's Facilities is required or permitted under this Agreement, and such installation, removal or relocation damages or disturbs the surface or subsurface of any ROW or public property or the public improvement located thereon, therein, or thereunder, however such damage or disturbance was caused, Wyyerd Fiber, at its sole cost and expense, shall promptly restore the surface or subsurface of the ROW or public property and/or repair or replace the surface, subsurface and/or public improvement therein, or thereunder, in as good a condition as before in accordance with applicable laws, satisfactory to the City Engineer. If Wyyerd Fiber does not repair the damage or disturbance as just described, then City shall have the option, upon ten (10) calendar days prior written notice to Wyyerd Fiber, to perform or cause to be performed such reasonable and necessary work on behalf of Wyyerd Fiber and to charge Wyyerd Fiber for the proposed costs to be incurred or the actual costs incurred by the City at City's standard rates. 13.2 Emergency Restoration. Notwithstanding the notice provision above, in the event of a Public Emergency as declared by the City, Pinal or Maricopa counties, State of Arizona, or the government of the United States , the City shall have the right to immediately perform, without prior written notice to Wyyerd Fiber, such reasonable and necessary work on behalf of Wyyerd Fiber to repair and return public property to a safe and satisfactory condition in accordance with applicable laws, and in a manner reasonably satisfactory to the City Engineer. The City shall provide written notice to Wyyerd Fiber of the repairs as soon as practicable after the work has begun. Wyyerd Fiber agrees that any severed City-owned Conduit and/or fiber must be completely repaired or replaced to the nearest splice point. If the City needs to perform any part of the necessary repairs, relocation and/or removal work, Wyyerd Fiber shall pay the City for such repairs, relocation and/or removal. In the event that Wyyerd Fiber does not promptly pay for such emergency City repairs, the City may: a) Wyyerd Fiber draw upon a bond and/or letter of credit or security fund required by this Agreement in full or partial satisfaction of such costs if payment is not made by Wyyerd Fiber as required by Section 13.3 below; or b) terminate this License and refer such collection to an appropriate agent or agency . 13.3 Demand and Reimbursement. Upon the receipt of any demand for payment by City, Wyyerd Fiber shall, within thirty (30) calendar days, reimburse City for any costs due or owed under this Agreement. Failure to make timely payment shall be a material event of default upon which the City may terminate this License. 13.4 Restoration. For any pavement cuts by Wyyerd Fiber, Wyyerd Fiber agrees to restore the pavement to its original condition which existed before the work commenced on the project. 22 SECTION 14. PUBLIC EMERGENCY DISRUPTION BY CITY City shall have the right, because of a Public Emergency or Wyyerd Fiber’s failure to timely take actions required after notice by the City Engineer, to sever, disrupt, remove, tear out, dig up or otherwise damage and/or destroy Facilities of Wyyerd Fiber without any prior notice to Wyyerd Fiber, if the action is deemed necessary for the maintenance of public health and safety by either the City Manager, Fire Chief, Police Chief, City Engineer, or Public Works Director or designee. In such event, neither the City nor any elected or appointed member of the City, or any City contractor or any employee or volunteers of City shall be liable to Wyyerd Fiber, its Contractors or its customers or their parties for any harm so caused to them or the Facilities, unless such damages are caused by City's gross negligence or willful misconduct. When practical and if possible, City will consult with Wyyerd Fiber in advance to assess the necessity of such actions and to minimize to the extent practical under the circumstances damage to and disruption of operation of the Fiber Optic Networks. City shall inform Wyyerd Fiber of any actions taken. Wyyerd Fiber shall be responsible for repair at its sole expense of any of its Facilities damaged pursuant to any such action taken by City. SECTION 15. PUBLIC SAFETY/PUBLIC EMERGENCY 15.1 Hazards. If any of Wyyerd Fiber's Facilities or activities present any immediate hazard or impediment to the public, to the City, to other improvements or activities within or outside of the route area(s), or to City's ability to safely and conveniently operate the ROW or perform City's utility, public safety and/or other public health, safety and welfare functions, then Wyyerd Fiber shall immediately remedy the hazard, comply with City's request to secure the route area, and otherwise cooperate with City at no expense to City to remove any such hazard or impediment. 15.2 Public Emergency. In the event of a Public Emergency, neither the City nor any agent, Contractor or employee of the City shall be liable to Wyyerd Fiber or its Contractors or its customers or other third parties for any harm so caused to them by the reasonable actions of the City or its agents, Contractors or employees in responding to such public emergency, unless such damages are caused by City's gross negligence or willful misconduct. When practical and if possible, City w ill consult with Wyyerd Fiber in advance to assess the necessity of such actions and to minimize, to the extent practical under the circumstances, damage to and disruption of either the public property involved or the Facilities involved. SECTION 16. CONTRACTORS 16.1 Licensing. Any Contractors performing construction work within the ROW or public easements shall comply with licensing requirements of the Arizona General Contractors. All Licensee employees, contractors and subcontractors shall carry an identification card bearing their name and photograph and Licensee's logo or name, or the name or logo of Licensee's contractor or subcontractor and Licensee 23 and its contractors or subcontractors persons shall obtain a business license from the City of Apache Junction City Clerk’s Office and pay the then current annual business license fee and any annual renewal fee. Wyyerd Fiber is responsible for monitoring compliance with this business license requirement. 16.2 Coverage. Wyyerd Fiber represents and warrants all independent Contractors maintain coverages in the same manner as stated herein for Wyyerd Fiber. SECTION 17. LEGAL WORKERS If, and to the extent A.R.S. § 41-4401 is applicable to this Agreement, Wyyerd Fiber shall comply with laws regarding workers as follows: 17.1 Warranty of Compliance. Wyyerd Fiber warrants to City that Wyyerd Fiber and allof its Contractors will comply with all federal immigration laws and regulations that relate to their employees and that there is compliance with the E - Verify Program under A.R.S. § 23-214(A). 17.2 Breach of Warranty. A breach of the foregoing under Section 17.1 warranty by Wyyerd Fiber shall be deemed a material breach of this Agreement that is subject to penalties up to and including termination of this Agreement. 17.3 Inspection of Records. City retains the legal right to inspect the papers of any employee of Wyyerd Fiber Contractor who works pursuant to this Agreement to ensure that they are complying with the warranty given above. 17.4 Violations. Wyyerd Fiber shall indemnify, defend and hold City its elected officials, appointees, agents, and employees harmless for, from and against all losses and liabilities arising from any and all violations of the warranty given above. SECTION 18. EFFECTIVE DATE AND VALIDITY OF AGREEMENT 18.1 Effective Date. This Agreement is effective starting on the day the last Party signs and has their signature notarized. 18.2 Representation and Validity. Wyyerd Fiber shall acknowledge that as a condition of acceptance of this Agreement, Wyyerd Fiber had the opportunity to consult with its own attorneys about its rights and obligations regarding the Agreement. Wyyerd Fiber has reviewed City's authority to execute and enforce this Agreement and has reviewed all applicable law, both federal and state, and, after considering same, Wyyerd Fiber acknowledges and accepts the right and authority of City to execute this Agreement and to enforce the terms herein. 24 SECTION 19. Initial Term of Agreement and Renewal Periods The Initial Term of this License and Agreement shall be five years and shall commence at 12:01 a.m. on the Effective Date and shall terminate at 11:59 p.m. on the fifth anniversary of the Effective Date unless sooner terminated as set forth in this Agreement. Five-year renewal periods are permissible as long as Licensee complies with all applicable laws. SECTION 20. Modification, Renewal, Extension 20.1 Renewal Process. If Wyyerd Fiber wishes to renew its License and continue using the ROW, then at least one hundred eighty days (180) calendar days prior to the expiration of this License and Agreement, Wyyerd Fiber shall apply to the City for a new License and Agreement in accordance with the then existing federal, state, and local laws. 20.2 Renewal Fee. Wyyerd Fiber shall pay to City the applicable fee at the time of the submission of the application. 20.3 Agreement Changes. City shall have the right to renegotiate any of the terms from the prior agreement that may be required by applicable federal, state or local law or regulations. Wyyerd Fiber understands that the City may adopt future code amendments and/or fee schedules relating to Facilities located within the ROW, which may replace in its entirety the current fees and other costs imposed upon Wyyerd Fiber under this Agreement. Wyyerd Fiber acknowledges the right of the City to adopt and implement such lawful code amendments and/or fee schedules. 20.4 Holdover Term. If Wyyerd Fiber's Facilities remain in the ROW, and Wyyerd Fiber continues to use such Facilities beyond the expiration of the license term, the License shall be considered to be in a "Holdover Term," subject to the terms and conditions of this Agreement and Wyyerd Fiber shall pay the annual fees multiplied by one hundred seventy-five percent (175%) (the “Holdover Licensee Fee Multiplier”). Such Holdover Term, however, shall not exceed sixty (60) calendar days beyond the expiration of the term and no permits will be issued to Wyyerd Fiber by the City until a new License has been approved by the City. The City, in its sole and exclusive judgment, may waive the Holdover Licensee Fee Multiplier only if it determines that bona fide negotiations for a successor/renewal agreement are underway. Either Party may terminate such negotiations upon written notice to the other Party, and at such time the Holdover Licensee Fee Multiplier shall automatically apply if not already in effect. 20.5 Expiration of Holdover Term. Failure by Wyyerd Fiber to have a valid License and Agreement to use the ROW by the expiration of the Holdover Term shall result in immediate withdrawal and revocation of any existing permits issued by the City to Wyyerd Fiber and the liquidated damages amount set forth in Section 33 shall apply. If, however, Wyyerd Fiber has timely filed its application and is in active negotiations with the City prior to the expiration of the License and Agreement, the City may, in 25 its discretion, grant, extend, or take no action on permits issued to Wyyerd Fiber prior to the expiration of the Agreement. SECTION 21. PAYMENTS 21.1 No Rights Waived. By entering into this Agreement, neither party waives any current or future rights reserved under then-current state or federal laws and regulations. 21.2 Payments to City. Wyyerd Fiber shall be solely responsible for payments to City as follows: 21.2.1 Application Fee. Wyyerd Fiber shall pay City an application fee in the amount of Three Thousand Five Hundred and 00/100 Dollars ($3,500.00) which shall be due at the time of the submittal of the application. 21.2.2 Transaction Privilege Tax. Wyyerd Fiber will owe transaction privilege tax on any qualifying services under Apache Junction City Code and shall communicate directly with the City Clerk’s Office for processing. 21.2.3 ROW Usage Fee for Provision of Interstate Telecommunication Services. A Fiber Optic Network in the ROW that carries Interstate Traffic between and among Wyyerd Fiber's interstate points of presence exclusive of the Fiber Optic Network used by the local network and the portion of the interstate network that carries intrastate calls is subject to an annual fee based on the number of linear feet of trench in the ROW. The annual fee for this Agreement is Three Dollars and Eighteen Cents ($3.18) per linear foot (hereinafter, the “Annual Fee”), which shall be adjusted annually as provided in Section 21.2.3.1. 21.2.3.1 Commencing on the first anniversary date of this Agreement and continuing through the fifth year of the term, the linear foot fee shall be escalated annually each July 1 based on the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index-All Urban Consumers, West Region for All Items (“CPI”). If there is no increase in the CPI, the fee shall remain what it was for the prior year. 21.2.3.2 Wyyerd Fiber warrants and represents that it has no route within Apache Junction that currently provides solely interstate telecommunication services exclusive of facilities used by the local network and the portion of the interstate network that carries intrastate calls. If and when there are portions of Wyyerd Fiber's routes that provide interstate telecommunication services exclusive of facilities used by the local network and the portion of the interstate network that carries intrastate calls, Wyyerd Fiber will immediately notify the City Engineer of the location and footage of such route(s) and pay a pro- 26 rated linear foot fee that is due for the length of such route(s). At the next anniversary date of the Agreement, the yearly fee for such additional footage will be added to the current annual fee. 21.2.3.3 Upon each anniversary of this Agreement, any fee owed will be adjusted as provided by Section 21.2.3.1 above, and payment made by as required by Section 21.3. 21.2.4 Compensation for Use of ROW. Wyyerd Fiber agrees to pay an annual fee for the portion of the ROW solely used by Wyyerd Fiber for Dark Fiber or Conduit leasing to Users and any other uses other than: (a) those conforming to the definition of Telecommunication Services as defined in A.R.S. § 9-581; and (b) Internet access. Unless a different calculation for fair and reasonable compensation is agreed to by the City, the fee will be calculated at the same linear foot rate as in Section 21.2.3 above. Upon each anniversary of this Agreement, any monetary fee will be adjusted as provided by Section 21.2.3.1 above, and payment made by as required by Section 21.3. Fees based on linear feet of Public Right-of-Way under Sections 21.2.3 and 21.2.4 shall not apply to any time period during which Wyyerd Fiber is providing in-kind services to the City under Section 22. 21.2.4.1 Wyyerd Fiber warrants and represents that at the time of the execution of this Agreement, it is not leasing Dark Fiber or Conduit to third party Users within the ROW. In the future, should Wyyerd Fiber lease any of its Dark Fiber or Conduits to a third-party User, Wyyerd Fiber shall comply with Section 4.3 above and pay a pro-rated linear foot fee that is due for the length of ROW used solely for such services in accordance with Section 21.2.4, unless a different calculation for fair and reasonable compensation is agreed to by the City, or unless Wyyerd Fiber is providing in-kind services to the City under Section 22. 21.3 Annual Payments. For any undisputed portions of annual payment(s) owed, Wyyerd Fiber shall make such payment(s) to the City within thirty (30) calendar days of the effective date of this Agreement and by the anniversary of such effective date thereof for the duration of the term. 21.4 Arrearage. As of the date of this Agreement, the City agrees that Wyyerd Fiber has paid all amounts due and no further amounts are owed except as to permit application and inspection fees as set out within this Agreement. 21.5 Permit Fees. Wyyerd Fiber shall pay all applicable construction permit fees to place Facilities in the ROW, which includes charges for encroachment permit applications, issuance, inspection, testing, plan review and any other fees adopted by City and applicable to persons doing work and/or encroaching in the City's ROW pursuant to Apache Junction City Code. 27 21.6 Damage Fees. Wyyerd Fiber shall pay any reasonable costs associated with any damage caused to the ROW or public property. 21.7 Prorated Fees. Within thirty (30) calendar days after the issuance of a permit for the installation of additional footage of Conduit(s), if such installation subjects Wyyerd Fiber to an annual fee pursuant to Section 21.2.3 or Section 21.2.4 above (if applicable), Wyyerd Fiber will pay a prorated portion of the annual fee, as adjusted, per linear foot for that section of its expanded route. The prorated annual fee shall be determined by multiplying the annual footage fee, as adjusted, for the year of payment, by a fraction, the numerator of which is the number of full months between the month installation and the next following anniversary date of this Agreement and the denominator of which is twelve (12). 21.7.1 In the event Wyyerd Fiber cancels or returns a permit and does not construct or install Facilities, which had been approved by such a permit, the footage fees previously paid for ROW or public property used or occupied by Wyyerd Fiber shall be applied as a credit toward any annual fee or refunded to Wyyerd Fiber by City. 21.8 Checks. Any checks should be sent with appropriate descriptive payment information to: City of Apache Junction Attn: City Manager 300 E. Superstition Blvd. Apache Junction, Arizona 85119 21.8.1 The City’s deposit of any funds received from Wyyerd Fiber does not waive any right of the City to thereafter challenge the amount or calculation method of such funds or the timeliness of Wyyerd Fiber’s payment. 21.9 Interest. Wyyerd Fiber agrees that if it fails to pay any amounts owed to the City by the time prescribed for payment, Wyyerd Fiber shall pay interest on the amounts owed, at the greater of the: (a) rate of one percent (1%) per month or; (b) highest interest allowed by law. SECTION 22. IN-KIND PAYMENT IN LIEU OF FEES OWED Future in-kind services or facilities may be negotiated in a separate agreement between the Parties, which may include discount terms for encroachment permits or linear foot rates, but such terms shall be negotiated in a completely neutral and non-discriminatory basis as per A.R.S. § 9-583(B). SECTION 23. TAXES Wyyerd Fiber shall pay any applicable city, county and state transaction privilege and use tax. Such taxes are in addition to any non-tax amounts owed by Wyyerd Fiber 28 pursuant to Section 21. Wyyerd Fiber waives taxpayer confidentiality under A.R.S. Title 42 and consents to the disclosure of any and all information reported on Wyyerd Fiber's transaction privilege tax returns by authorizing and allowing the City's tax collector to release such information to the City Manager or designees. Nothing in this Agreement is intended to alter, amend, modify or expand the taxes and fees that may lawfully be assessed on Wyyerd Fiber's business activities under this License under applicable law. SECTION 24. PERFORMANCE BOND 24.1 Bond Requirements. Prior to receiving any permit to construct, install, maintain or perform any work on public property that requires a permit from the City pursuant to applicable City codes, Wyyerd Fiber shall cause to be filed and maintain until either completion of the construction or termination of this Agreement as determined by Wyyerd Fiber, a faithful performance bond in favor of City in the amount of the greater of: (a) One Hundred Thousand Dollars ($100,000); or (b) the amount of the construction costs as determined by the City Engineer to guarantee that Wyyerd Fiber shall observe, fulfill and perform each and every term of this Agreement. In case of any breach of any condition of this Agreement, any amount of the bond, up to the whole thereof, may be forfeited to compensate City for any damages it may suffer by reason of such breach. Said bond shall be acknowledged by Wyyerd Fiber, as principal, and shall be issued by a surety licensed to conduct business in the State of Arizona. with an AM Best rating of A-VII or better for the last four quarters. City and Wyyerd Fiber agree that the process and procedure for drawing upon, curing, and replenishing the performance bond shall be the same as set forth below for the security fund and/or letter of credit. 24.2 Bond Release. If Wyyerd Fiber has completed the above construction and wants the bond released, the City will need to inspect and approve the construction prior to such release. However, a performance bond will be required for each subsequent or additional construction project and/or work on public property. 24.3 One Year Warranty Period. Wyyerd Fiber shall also provide a warranty bond for 10% of the performance bond value to cover construction failures that arise during the one-year period after acceptance of the improvements. SECTION 25. SECURITY FUND 25.1 Deposit Required. Upon application for use of the ROW, but no later than five (5) calendar days before this Agreement is submitted to the City approval, Wyyerd Fiber shall provide either a cash deposit or domestic irrevocable standby letter of credit to the City Engineer in the initial amount of Fifty Thousand Dollars ($50,000) as a security fund that is in a form as approved by the City Attorney. Said cash deposit or letter of credit shall be maintained with the City for the term of this Agreement as security for the faithful performance by Wyyerd Fiber of all the provisions of this Agreement, and compliance with all lawful orders, permits and directions of any department or office of the City having jurisdiction over its acts or 29 defaults under this Agreement and any permit issued pursuant thereto, and the payments by Wyyerd Fiber of any fees, claims, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the Facilities. Upon material default that remains uncured (after written notice) for greater than thirty (30) calendar days the City shall have the full power of withdrawal of funds from the cash deposit put into the security fund account or letter of credit except that all interest accrued on any cash deposit shall be payable to Wyyerd Fiber on demand. No withdrawals shall be made from the security fund account without the prior written approval of the City Manager and sixty (60) calendar days prior written notice of intent to withdraw to Wyyerd Fiber. 25.2 Withdrawal. Within twenty (20) calendar days after notice to Wyyerd Fiber that any amount has been withdrawn by City from the security fund account or letter of credit, Wyyerd Fiber shall deposit a sum of money sufficient to restore such security fund account to the original amount or present to the City an additional irrevocable letter of credit in said amount so that the total amount of funds available to the City is Fifty Thousand Dollars ($50,000). 25.3 Restoration of Deposit Amounts. If Wyyerd Fiber fails, within ten (10) calendar days of a notice of intent to draw on either the security fund account or on the letter of credit, to: a) dispute the notice in writing; or b) pay City any taxes or fees due and unpaid; or c) fails to repay to City, within such ten (10) calendar days of such notice, any damages, costs or expenses which City shall be compelled to pay by reason of any act or default of Wyyerd Fiber in connection with this Agreement; or d) fails, within thirty (30) calendar days of such notice of failure by City to dispute the notice in writing, or comply with any provision of this Agreement which City reasonably determines can be remedied by an expenditure of funds from the cash deposit in the security fund account or letter of credit, City may immediately withdraw the amount thereof, with interest from the security fund account. Upon such withdrawal, City shall notify Wyyerd Fiber of the amounts and date thereof. 25.4 Rights Reserved. The rights reserved to City, with respect to the security fund account and/or letter of credit, are in addition to all other rights of City whether reserved by this Agreement or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund account or letter of credit shall affect any other right City may have. SECTION 26. INSURANCE 26.1 Minimum Limits of Insurance. Wyyerd Fiber shall at all times during the term of this Agreement, at its own cost and expense, carry and maintain for the mutual benefit of the City and Wyyerd Fiber, general public liability insurance against claims for bodily injury, death or property damage, products/completed operations and personal and advertising injury, which insurance shall cover claims as may be occasioned by the operations, act, omission or negligence of Wyyerd Fiber or its officers, agents, representatives, employees or servants during all times that this License and Agreement is in effect. Insurance limits are inclusive of umbrella 30 coverage. Wyyerd Fiber shall maintain limits no less than those stated herein for each type of insurance. 26.2 General Requirements. Wyyerd Fiber's insurance of the types and amounts required in this section shall be from companies possessing a current A.M. Best, Inc. rating of A-VII, or better and legally authorized to do business in the State of Arizona. 26.2.1 All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Agreement is satisfactorily completed and formally accepted. Failure to do so may, at the sole discretion of City, constitute a material breach of this Agreement and may result in termination of this Agreement. 26.2.2 The insurance coverage, except workers' compensation and professional liability, required by this Agreement, shall name City, its agents, appointees, elected officials, and employees, as additional insureds, and shall specify that insurance afforded Wyyerd Fiber shall be primary insurance, and that any self-insured retention and/or insurance coverage carried by City or its employees shall not contribute to the coverages provided by Wyyerd Fiber. This provision and the naming of the City and others noted above as additional insured parties shall not be construed as giving rise to responsibility or liability of the City for applicable deductible amounts under such policy(ies). 26.2.3 The insurance policies shall contain a waiver of transfer rights of recovery (subrogation) against City, its agents, appointees, elected officials and employees for any claims arising out of Wyyerd Fiber's acts, errors, mistakes, omissions, work or service. 26.2.4 The insurance policies may provide coverage, which contain deductibles or self-insured retentions. Such deductible and/or self-insured retention shall be assumed by and be for the account of, and at the sole risk of Wyyerd Fiber who shall be solely responsible for the deductible and/or self- insured retention. The amounts of any self-insured retentions shall be noted on the Certificate of Insurance. Self-insured retentions of up to One Million Dollars ($1,000,000) shall be accepted. 26.2.5 Upon receipt of notice from its insurer(s) Wyyerd Fiber shall provide the City with thirty (30) calendar days prior written notice of cancellation of any coverage required herein. 26.2.6 Wyyerd Fiber shall be responsible for ensuring that the City is notified within the above noted time period of the occurrence of any reduction in the insurance coverage amounts, cancellation or expiration of any of the policies as required by this License and Agreement. 31 26.2.7 Wyyerd Fiber shall require all Contractors and subcontractors to obtain and maintain substantially the same insurance with substantially the same limits as required of Wyyerd Fiber. 26.2.8 City reserves the right to periodically review said insurance limits to ensure coverage based on market and risk requirements throughout the effective term of this Agreement. 26.3 Proof of Insurance-Certificates of Insurance. 26.3.1 Upon execution of this Agreement, Wyyerd Fiber shall furnish to City Certificates of Insurance issued by Wyyerd Fiber's agent or broker, as evidence that policies providing the required coverages, conditions and limits required by this Agreement are in full force and effect and obtain from the City's Risk Management Division approval of such Certificates. Such certificate(s) shall include the endorsement listing the City as an Additional Insured pursuant to Section 26.2.2. 26.3.2 If a policy does expire during the life of this Agreement, a renewal certificate must be sent to the City prior to the expiration date. 26.3.3 All Certificates of Insurance shall identify the required policies in effect on behalf of Wyyerd Fiber, their policy period(s), and limits of liability. Coverage shown on the Certificate of Insurance must coincide with the requirements in the text of the Agreement documents. Information required to be on the Certificate of Insurance may be typed on the reverse of the Certificate and countersigned by an authorized representative of the insurance carrier or agent. Copies of the initial Certificate of Insurance and any and all subsequent renewals that are required under this Agreement shall be sent to: City of Apache Junction Attn: City Attorney 300 E. Superstition Blvd. Apache Junction, Arizona 85119 26.3.4 The initial Certificate of Insurance shall be provided to the City Attorney no later than ten (10) calendar days after execution of this Agreement, and subsequent renewal certificates are due every six (6) months thereafter, or if issued on an annual basis, within ten (10) calendar days after the anniversary of the Effective Date. 26.4 Required Coverage. 26.4.1 Such insurance shall protect Wyyerd Fiber from claims set forth below that may arise out of or result from the operations of Wyyerd Fiber under this Agreement and for which Wyyerd Fiber may be legally liable, 32 whether such operations be by Wyyerd Fiber or by a consultant or Contractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts Wyyerd Fiber may be legally liable. Coverage under the policy will be at least as broad as Insurance Services Office, Inc., policy form CG 00 01 10 01 and CG 20 37 07 04 or equivalent thereof, including but not limited to severability of interest and waiver of subrogation clauses. 26.4.2 Claims for damages because of bodily injury, sickness or disease, or death of any person other than the Wyyerd Fiber's employees. 26.4.3 Claims for damages insured by usual personal and advertising injury liability coverage. 26.4.4 Claims for damages, because of injury to or destruction of tangible property, including loss of use resulting therefrom. 26.4.5 Claims involving contractual liability insurance applicable to Wyyerd Fiber's obligations under the Indemnification Agreement. 26.5 Commercial General Liability - Minimum Coverage Limits. The Commercial General Liability insurance required herein shall be written for not less than Five Million Dollars ($5,000,000) limits of liability. Any combination between general liability and excess general liability alone amounting to a minimum of Five Million Dollars ($5,000,000) per occurrence and an aggregate of Ten Million Dollars ($10,000,000) in coverage will be acceptable. The Commercial General Liability additional insured endorsement shall be as broad as the Insurance Services, lnc.'s (“ISO”) Additional Insured, Form B, CG 20 10 10 01 and CG 20 37 07 04 and shall include coverage for Wyyerd Fiber's completed operations and products. 26.6 Worker's Compensation and Employer's Liability. Wyyerd Fiber shall maintain Worker's Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Wyyerd Fiber's employees engaged in the performance of the work or services; and Employer's Liability insurance of not less than One Million Dollars ($1,000,000) for each accident, One Million Dollars ($1,000,000) disease coverage for each employee, and One Million Dollars ($1,000,000) disease policy limit. In case any work is subcontracted, Wyyerd Fiber will require the Contractor to provide Worker's Compensation and Employer's Liability to at least the same extent as required of Wyyerd Fiber. 26.7 Automobile Liability. If Wyyerd Fiber owns and/or operates vehicles in Arizona, Wyyerd Fiber shall maintain Commercial/Business Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than Five Million Dollars ($5,000,000) each occurrence with respect to any owned, hired, and non-owned vehicles assigned to or used in performance of the Wyyerd Fiber's work. Coverage shall be at least as broad as coverage Symbol 1, "any auto", (Insurance Service Office, Inc. Policy Form CA 0001 0306, or any replacements thereof). Such insurance shall include coverage for pollution for 33 upset/overturn/collision of the automobile(s) and loading and offloading hazards if hazardous substances, materials or wastes are to be transported and a MCS 90 endorsement shall be included with coverage limits of Five Million Dollars ($5,000,000) per accident for bodily injury and property damage. For automobile liability insurance, contractors may require limits usual and customary for the operations but no less than One Million Dollars ($1,000,000). SECTION 27. INDEMNITY 27.1 Generally. Wyyerd Fiber acknowledges that it has liability for any and all of its Facilities installed in the public ROW and for its use of the ROW and for its exercise of its rights under this License and Agreement directly or through its Contractor(s), except to the extent of intentional acts or gross negligence on the part of the City. To the fullest extent permitted by law, Wyyerd Fiber, shall defend, indemnify and hold harmless the City, or its agents, appointees, elected officials, and employees, individually and collectively, from and against any and all Claims as defined in Section 1 arising out of or alleged to have resulted from or materially related to the acts, errors, mistakes, omissions of Wyyerd Fiber, its employees, agents, or any tier of Contractors or any other p erson for whose acts, errors, mistakes, or omissions Wyyerd Fiber may be legally liable and from any Claims or amounts arising or recovered under workers compensation laws or any other law, bylaw, or ordinance, order or decree related to any failure on the part of Wyyerd Fiber, its agent, employees or representatives to fulfill Wyyerd Fiber's obligations under this Agreement, whether resolution of the above Claim(s) proceeds to judgment or not. The provisions of this paragraph shall survive termination of this Agreement. This indemnification applies even if the party see king damages makes a claim against the City or brings a claim against the City based on vicarious liability or non-delegable duty. 27.2 Defense Costs. Wyyerd Fiber further agrees to indemnify and hold harmless the City, its agents, appointees, elected officials, and employees from and against all costs, damages, and expenses incurred by the City, its agents, appointees, elected officials, and employees in the defense of any litigation brought by third parties challenging the right of the City to enter into this Agreement with Wyyerd Fiber under City or other applicable law. 27.3 Tender of Defense. In the event that any notice of claim is served or litigation is commenced and serviced upon the City, City shall tender the defense of the litigation to Wyyerd Fiber, who shall immediately defend the litigation using legal counsel reasonably acceptable to City. Wyyerd Fiber shall have the right to retain counsel of its own choice reasonably acceptable to City, to settle all or any part of the litigation on terms acceptable to Wyyerd Fiber (and, where such terms directly obligate or affect City, acceptable to City). Wyyerd Fiber agrees to keep the Apache Junction City Attorney informed of the status and progress of all litigation involving the City that has been tendered to Wyyerd Fiber or its insurance carrier. 34 27.3.1 Notice. The Parties shall promptly notify each other in writing of any claims, demands, or lawsuits which may involve the City and provide copies of all relevant accident reports, incident reports, statements or other documents relevant to or which may lead to relevant materials or information, in the possession of the other party, its employees, agents, subcontractors, and/or others, promptly upon request. 27.3.2 Relevant Information. Both Parties agree to make their employees, agents, and Contractors available to the other party to gather any relevant information relating to an incident in which claims, demands, or lawsuits arise from. 27.4 Construction of Interpretation. It is the purpose of this section to provide maximum indemnification to City under the terms and conditions expressed and, in the event of a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the ind emnification of the City and others listed above in Section 27.1 by Wyyerd Fiber against any and all Claims. The sole exception shall be an express determination by a court of competent jurisdiction upon full adjudication of the case that the damages arose only from City's sole gross negligence or intentional acts. Only in this event may Wyyerd Fiber then commence an action against City for damages related to that portion judicially determined to be City's fault. 27.5 Survival. The provisions of Section 27 shall be and remain a binding right and obligation of the City and Wyyerd Fiber. It is the intent of Wyyerd Fiber and the City upon the effective date of this Agreement that this Section serves as any such declaration and shall be a binding obligation of and inure to the benefit of Wyyerd Fiber and the City and their respective successors and assigns, if any. Any failure by Wyyerd Fiber to indemnify the City and others listed above in Section 27.1 as required under this Section 27 shall be considered a material breach of this License and Agreement. Notwithstanding anything to the contrary herein, Wyyerd Fiber shall not be obligated to indemnify the City on any provision of this Agreement that is lat er determined to be invalid. Moreover, any provision of this Agreement that by their sense and context survive the expiration or termination of this Agreement shall also survive. 27.6 Insurance No Limit. The amount and type of insurance coverage requirements set forth in this Agreement will in no way be construed as limiting the scope of the indemnity in this Section 27. 27.7 Reformation. As a condition to Licensor's executing this Agreement, Wyyerd Fiber specifically agrees that to the extent any provision of this paragraph is not fully enforceable against Wyyerd Fiber for any reason whatsoever, this paragraph shall be deemed automatically reformed to the minimal extent necessary to cause it to be enforceable to the fullest extent permitted by law. 35 SECTION 28. LIMITATION OF LIABILITY 28.1 Limitation. The City and its agents, appointees, elected officials and employees, shall not be liable to Wyyerd Fiber or to its affiliates or customers for any interference with or disruption in the operations of Wyyerd Fiber's Fiber Optic Networks or the provision of services, or for any damages arising out of or materially related to Wyyerd Fiber's use of the ROW, except to the extent of intentional misconduct or gross negligence on the part of the City its agents, appointees, elected officials or employees. 28.2 No Liability for Agreement Enforcement. Wyyerd Fiber also agrees that it shall have no recourse whatsoever against the City or its agents, appointees, elected officials, or employees for any loss, costs, expense or damages arising out of or materially related to any provision or requirement of the City because of the enforcement of this License and Agreement. 28.3 Assumption of Risk. Wyyerd Fiber shall assume the risk of, and hereby relinquishes any claim against the City in connection with any final, non -appealable determination by a court of competent jurisdiction that the City lacked the current statutory authority under Arizona law to issue this License. SECTION 29. ASSIGNMENT AND TRANSFERABILITY OF LICENSE AND AGREEMENT 29.1 Personal to Wyyerd Fiber. This License is personal to Wyyerd Fiber. 29.2 Transfer or Assignment to Related Entity. Notwithstanding the foregoing, Wyyerd Fiber may transfer or assign this Agreement to any affiliated entity under common corporate control, or to the surviving entity in the event of a merger or acquisition of Wyyerd Fiber without City's prior consent. Wyyerd Fiber shall however give notice to the City of any such transfer or assignment. 29.3 Transfer or Assignment to Unrelated Entity. Any transfer or assignment for reasons other than provided for in Section 29.2 above shall require the City's prior consent, which shall not be unreasonably withheld, conditioned, or delayed provided that Wyyerd Fiber agrees that it will provide reasonable documentation about the proposed transfer or assignment, and such proposed transferee or assignee is demonstrated to the City’s reasonable satisfaction to be legally, technically, and financially capable of performing each, any, every duty and obligation it is required to perform in this Agreement. 29.4 Transfer or Assignment Conditions. In making a determination as to whether to approve a transfer or assignment, the City may consider the following: 29.4.1 Whether Wyyerd Fiber is in compliance with its License and Apache Junction City Code and if not, the proposed transferee's commitment and 36 demonstrated legal, technical, or financial ability to cure such noncompliance. 29.4.2 Whether the proposed transfer or assignment would result in an evasion of other applicable provisions of law or impair lawful contracts. 29.4.3 The effect of the transfer or assignment on the City's interests. 29.5 Acceptance by Assignee. No application for a transfer or assignment of a license shall be granted unless the proposed transferee or assignee agrees in writing that it will abide by and accept all terms of the License and the Apache Junction City Code and that it will assume all obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of Wyyerd Fiber under Chapter 31A of the Apache Junction City Code and this License for all purposes, including renewal. 29.6 Approval not Waiver. Approval of the City of a transfer or assignment of this License does not constitute a waiver or release of any of the rights of the City, whether arising before or after the date of the transfer or assignment. 29.7 Transfer or Assignment Remedies. When consent is required, any transfer without City's consent shall be void and shall not result in the transferee obtaining any rights or interests in, under or related to this License and Agreement. City may, in its sole discretion and in addition to a ll other lawful remedies available to City under this Agreement or otherwise, and in any combination, terminate this Agreement, collect any fees owed from Wyyerd Fiber and/or declare the transfer to be void, all without prejudicing any other right or remed y of City under this Agreement. No cure or grace periods shall apply to transfers or assignments prohibited by this Agreement or to enforcement of any provision of this Agreement against an assignee who did not receive City's consent. 29.8 Transfer Fee. Wyyerd Fiber shall pay to City in advance the sum of Three Thousand Five Hundred and 00/100 Dollars ($3,500) as a nonrefundable fee for legal, administrative and other expenses related to every transfer (other than the sale of publicly traded stock or transfer to any affiliate entity under common corporate control or to the surviving entity in the event of a merger or acquisition of Wyyerd Fiber) or to any request for a consent to transfer, whether or not City grants such request. Where such transfer fee is insufficient to allow the City to fully fund the processing of such transfer request, Wyyerd Fiber shall deposit with the City such additional funds as may be required to complete the processing of the transfer request. 29.9 Legal, Technical and Financial Capability. In the case where there is a change in the direct or indirect ownership of Licensee, and where the License remains with Licensee, Licensee must demonstrate to the City’s reasonable satisfaction that Licensee independently is and remains legally, technically, and 37 financially capable of performing each, any, every duty and obligation under this Agreement. SECTION 30. NO THIRD-PARTY BENEFICIARIES No person or entity shall be a third-party beneficiary to this Agreement or shall have any right or cause of action hereunder. City shall have no liability to third parties for any approval of plans, Wyyerd Fiber's construction of improvements, Wyyerd Fiber's negligence, Wyyerd Fiber's failure to comply with the provisions of this Agreement (including any absence or inadequacy of insurance required to be carried by Wyyerd Fiber), or otherwise as a result of the existence of this Agreement. SECTION 31. ZONA WYYERD'S RECORDS 31.1 Recordkeeping. During the entire term of this License and Agreement, Wyyerd Fiber shall keep records and provide information to City regarding the following: 31.1.1 The status of the construction, repair, location or relocation of Wyyerd Fiber's facilities. 31.1.2 Information relating to any Fiber Optic Networks on portions of the route that are not exempt from a fee imposed for occupation of the ROW. 31.1.3 Information relating to this License and Agreement and/or to City's or Wyyerd Fiber's rights or obligations under this License and/or Agreement. 31.2 Record Form. Wyyerd Fiber shall make available to City the requested reports or records in the formats in which they are customarily prepared by Wyyerd Fiber. 31.3 Inspection. If necessary for the City to determine Wyyerd Fiber's compliance with the terms of this License and Agreement or other applicable law, Wyyerd Fiber shall provide relevant documentation as requested by the City and respond to questions in a format and time period to be decided by the Parties based on the nature of the request. Such records shall be available to City at Wyyerd Fiber's offices in Maricopa County, Arizona or delivered electronically as may be acceptable to City. Wyyerd Fiber shall also require its employees, agents, and accountants to give their cooperation and assistance in connection with City's access to such records. 31.3.1 Such documentation must include information on the type of services Wyyerd Fiber is offering its customers (but not necessarily information disclosing any particular service being provided to a specific customer) and/or the financial information used in calculating any payments or taxes due to the City under this Agreement. If Wyyerd Fiber determines that in order to respond to City's request for documentation, it must reasonably 38 provide Proprietary Information, Wyyerd Fiber shall so mark such documentation as "Confidential." 31.3.2 Proprietary Information disclosed by Wyyerd Fiber to the City or its constituent departments shall be regarded as Proprietary as to third parties. If the City receives a request to disclose such information, the City shall notify Wyyerd Fiber of such request and allow Wyyerd Fiber a reasonable opportunity to defend its information from disclosure. 31.3.3 Information that is already in the public domain shall not be considered Proprietary Information. If public domain information is included with Proprietary Information on the same document, the City shall only disclose those portions within the public domain. 31.3.4 Notwithstanding any provision in this License, Wyyerd Fiber acknowledges and understands that the City is subject to the disclosure requirements of Arizona's Public Records Law (A.R.S.§ 39-121 et. seq.). 31.4 Reports. Upon request and subject to any necessary confidentiality requirements, Wyyerd Fiber shall provide to City copies of any communications and reports submitted by Wyyerd Fiber to the FCC or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters directly affecting enforcement of this Agreement. SECTION 32. PENALTIES FOR VIOLATION OF TERMS 32.1 Cumulative Remedies. City may pursue any remedy at law, including but not limited to injunctive relief, civil trespass, and withholding other City permits and authorizations until Wyyerd Fiber complies with the terms of the License, Agreement or the applicable law. Such remedies are cumulative and may be pursued in the alternative. 32.2 No Special Damages. Neither party will be liable under this Agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy. SECTION 33. NOTICE OF VIOLATION; RIGHT TO CURE OR RESPOND 33.1 Notice of Violation. In the event that the City believes that Wyyerd Fiber has not complied with the terms of this Agreement, the City shall informally discuss the matter with Wyyerd Fiber. If these discussions do not lead to resolution of the issue, the City shall notify Wyyerd Fiber in writing of the exact nature of the alleged non- compliance. Wyyerd Fiber shall have thirty (30) calendar days from receipt of the notice of violation: 33.1.1 to respond to the City, contesting the assertion of noncompliance; 39 33.1.2 to cure such default; or 33.1.3 if, by nature of default, such default cannot be cured within the thirty (30) calendar day period, initiate reasonable steps to remedy such default and notify the City of the steps 33.2 Cure and Liquidated Damages. Wyyerd Fiber understands and agrees that failure to comply with any time and performance requirements in this Agreement or the requirements of the Apache Junction City Code or other requirements under federal or state law in instances in which any such non-compliance, and the ability to cure the same, are solely within the control of Wyyerd Fiber, will result in damage to the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay or nonperformance; therefore, the Parties her eby agree to the liquidated damages specified below for instances in which any such non-compliance, and the ability to cure the same, are solely within the control of Wyyerd Fiber. The following amounts per day or part thereof may be chargeable to the security fund for the following concerns: 33.2.1 Each failure to properly restore the ROW or to correct related violations of specifications, code ordinance or standards within fifteen (15) calendar days of having been notified by the City to correct such defects - Five Hundred Dollars ($500) per day. Such amount is in addition to any cost the City may incur to restore the ROW or correct the violation. 33.2.2 Each failure to make Wyyerd Fiber's books and records available as required by this Agreement and such failure continues for fifteen (15) calendar days after receipt of notice of failure to provide from the City - Two Hundred Fifty Dollars ($250) per day. 33.2.3 Any unauthorized partial or total transfer or assignment of this Agreement under Section 29.3 - One Thousand Dollars ($1,000) per day but no more than $30,000 for a single occurrence. 33.2.4 Each material instance of any action or non-action by Wyyerd Fiber contrary to the terms of this Agreement that is not cured after thirty (30) calendar days' notice - Five Hundred Dollars ($500) per day. 33.2.5 Failure to provide a valid Certificate of Insurance as required by Section 26.2.2 that is not cured after five (5) calendar days' notice - Fifty Dollars ($50) per day. 33.3 Assessment. If the City Engineer concludes that Wyyerd Fiber may be liable for liquidated damages, the City Engineer shall issue to Wyyerd Fiber a Notice of Intention to Assess Liquidated Damages and allow Wyyerd Fiber an opportunity to cure in the time period specified in Sections 33.2.1 through 33.2.5. The Notice shall set forth the nature of the violation and the amount of the proposed assessment. 40 Wyyerd Fiber shall pay the liquidated damage amount within ten (10) business days of receipt or the City shall deduct the amount from the security fund. 33.3.1 If, however, the liquidated damages exceed Five Thousand Dollars ($5,000), then the following shall apply: 33.3.2 Wyyerd Fiber shall have thirty (30) calendar days of receipt of such notice to pay the liquidated damage amount or give City notice contesting the assertion of noncompliance. 33.3.3 In the event that Wyyerd Fiber contests the City's assertion of violation or fails to respond to the City's notice of intent to assess liquidated damages, City Manager shall schedule a hearing to determine whether the liquidated damages were properly assessed. City shall provide Wyyerd Fiber with at least five (5) calendar days' notice of such hearing, which shall specify the time, place and purpose of the hearing. At the hearing, Wyyerd Fiber will be given the opportunity to be heard and present evidence. If the result of the hearing is that Wyyerd Fiber is responsible for the liquidated damage amount, then the amount determined at the hearing will be due ten (10) calendar days after the hearing decision is announced. 33.3.4 Wyyerd Fiber may appeal the outcome of the hearing to Pinal County Superior Court pursuant to A.R.S. § 12-901. Such appeal must be taken timely, otherwise, the outcome of the hearing shall be final and conclusive. SECTION 34. REVOCATION/TERMINATION 34.1 Early Termination. The License granted hereunder may be revoked and/or the Agreement terminated prior to its date of expiration by the City for the following reasons: 34.1.1 Wyyerd Fiber fails to comply with the material terms and conditions of the Agreement or applicable law, including but not limited to failing to maintain any insurance, security fund, letter of credit, and/or a performance bond. 34.1.2 Wyyerd Fiber fails to make payments in the amounts and at the time specified in this Agreement after a final determination that the p ayments were owed, including but not limited to transaction privilege taxes and business licenses of Wyyerd Fiber and its agents and contractors. 34.1.3 Wyyerd Fiber ceases doing business in the City. 34.1.4 Wyyerd Fiber fails to provide current, accurate as-built plans and maps showing the location of all Facilities installed or constructed in the City. 41 34.1.5 Wyyerd Fiber is or becomes insolvent or is a party to a voluntary or involuntary bankruptcy, reorganization, or receiv ership case or proceeding, makes an assignment for the benefit of creditors, is subject to other actions by creditors that, in the reasonable, good faith opinion of the City, threaten the financial viability of Wyyerd Fiber as a going concern, or if there is any similar action that affects Wyyerd Fiber's capability to perform its obligations under this License and/or Agreement. 34.1.6 Wyyerd Fiber fails to obtain or maintain any licenses, permits, or other governmental approvals pertaining to the ROW or timely pay any taxes pertaining to the ROW. 34.1.7 A court has issued an injunction that in any way prevents or restrains Wyyerd Fiber's use of any portion of the ROW and remaining in force for a period of at least thirty (30) consecutive calendar days. 34.2 Cure Period. Before terminating the Agreement under Sections 34.1.1, 34.1.2, 34.1.4, and 34.1.5, the City Manager or a designee, shall give prior written notice to Wyyerd Fiber of the defect in performance and give Wyyerd Fiber sixty (60) calendar days within which to cure the defect in performance. If, by nature of the default under 34.1.5 or 34.1.6, where such default cannot be cured within the 60-day period, Wyyerd Fiber shall have additional time as may be necessary to perform or comply as long as Wyyerd Fiber commences performance or compliance within such 60-day period and diligently proceeds to cure such defect in performance; provided, however, that such defect shall be cured within 90 days, unless otherwise agreed to by the Parties in writing. 34.3 Misconduct. The City need not provide a thirty (30) calendar day cure period prior to termination if the City finds that the defect in performance under the Agreement is due to intentional misconduct, is a violation of civil law or regulation or criminal law or is a part of a pattern of repeated and persistent violations where Wyyerd Fiber has already had notice and opportunity to cure. 34.4 Manager Authority. The City Manager has the authority to terminate, subject to Wyyerd Fiber's right to notice and cure where provided, this License and/or Agreement. 34.5 Hearing Prior to Revocation of License. Prior to the revocation or refusal to renew the License, the City will hold a hearing if requested by Wyyerd Fiber. 34.6 Termination by Mutual Agreement. This License and/or Agreement may be terminated prior to its date of expiration by Wyyerd Fiber by providing the City with ninety (90) calendar days written notice and only upon making arrangements satisfactory with the City Engineer to remove all Wyyerd Fiber's Facilities from public property and the ROW, unless the City Engineer agrees in writing to allow Wyyerd Fiber to abandon part or all of its Facilities in place. If the City Engineer agrees to allow Wyyerd Fiber to abandon its Facilities in place, the ownership of 42 such Facilities, including everything permitted by City to be abandoned in place, shall transfer to City and Wyyerd Fiber shall cooperate to execute any documents necessary to accomplish such transfer within thirty (30) calendar days of such allowance of abandonment. 34.7 Equipment Removal. Notwithstanding anything in Section 34.6 above, upon termination of this Agreement, Wyyerd Fiber shall remove all of its optical repeaters, DWDM and CWDM multiplexers, and related equipment within thirty (30) calendar days. SECTION 35. NON-USE/ABANDONMENT OF THE FACILITIES 35.1 Removal or Abandonment. An "Abandoned Facility" will mean a Facility no longer in service or physically disconnected from a portion of the operating Facility or from any other Facility that is in use or still carries service. If Wyyerd Fiber ceases to provide services or abandons use of any of its Facilities, upon cancellation or termination of the Agreement, Wyyerd Fiber shall notify the City within thirty (30) calendar days from the cancellation or termination notice date, and may, subject to the City's approval, permanently abandon the Facilities in place. In such event, the City, at its option, may acquire ownership of the Facilities. In lieu of permanent abandonment, the City may require Wyyerd Fiber, to the reasonable satisfaction of the City and without cost or expense to the City, to promptly remove the Facilities and to restore the public property and ROW to a reasonable condition under the supervision of the City. 35.2 City Property. Upon permanent abandonment, if the City does not require removal, Wyyerd Fiber shall submit to the City a proposal and instruments for transferring ownership to the City. Any such Facilities, which are not removed as required by the City within thirty (30) days of either such date of termination or cancellation or of the date the City issued a permit authorizing removal, whichever is later, automatically shall become the property of the City. Wyyerd Fiber will notify the Arizona Blue Stake Center to record the Facilities that have been abandoned. 35.3 Title to Property. Title to any and all personal property installed by Wyyerd Fiber upon the ROW that is not removed during the period set forth in Section 35.2 shall automatically vest in City. 35.4 Ongoing Use. Nothing in Section 35.1 shall be deemed to require Wyyerd Fiber to remove Facilities that the Wyyerd Fiber uses for the provision of services other than Telecommunications Services or Interstate Telecommunications Services, so long as such use of Facilities for the provisions of the ongoing other services is authorized by the City pursuant to this Agreement. SECTION 36. CANCELLATION FOR CONFLICT OF INTEREST Pursuant to A.R.S. § 38-511, City may cancel this Agreement within three (3) years after its execution without penalty or further obligation if any person significantly 43 involved in initiating, negotiating, securing, drafting or creating this Agreement is, at any time while the Agreement or an extension of the Agreement is in effect, an employee or agent of any other party to this Agreement in any capacity or a consultant to any other party of this Agreement with respect to the subject matter of the Agreement. The cancellation shall be effective when Wyyerd Fiber receives written notice of the cancellation unless the notice specifies a later time. SECTION 37. GRATUITIES City may, by written notice, terminate this Agreement, in whole or in part, if City determines that employment or a gratuity was offered or made by Wyyerd Fiber or a representative of Wyyerd Fiber to any officer or employee of City for the purpose of influencing the outcome of the procurement or securing the Agreement, an amendment to the Agreement, or favorable treatment concerning the Agreement, including the making of any determination or decision about Agreement performance. City, in addition to any oth er rights or remedies, shall be entitled to recover exemplary damages in the amount of three times the value of the gratuity offered by Wyyerd Fiber. SECTION 38. CONDEMNATION 38.1 Generally. The following shall govern any condemnation of any part of or interest in the area used and/or occupied by Wyyerd Fiber and any conveyance to City or another condemner in avoidance or settlement of condemnation or a threat of condemnation: 38.1.1 Termination for Condemnation. This agreement shall terminate as to the portion taken on the date that is the earlier of the date title vests in the condemner, or the date upon which the condemner is let into possession. 38.1.2 Power to Condemn. Wyyerd Fiber acknowledges that City and others from time to time may sue and exercise its power to condemn the area used by Wyyerd Fiber or any interest therein or rights thereto. 38.1.2.1 City reserves the right of condemnation or eminent domain over the area used and/or occupied by Wyyerd Fiber. City does not warrant that it will not condemn the area(s) used and/or occupied by Wyyerd Fiber during the term of this Agreement, but City does not presently have intentions to condemn such area(s). 38.1.2.2 City also reserves the right through its powers of eminent domain to acquire all or any portion of the Facilities owned by Wyyerd Fiber in accordance with the applicable conditions set forth in the Arizona Revised Statutes. However, under no circumstances shall any valuation be made for any right or privilege granted by this Agreement should the City acquire the property of Wyyerd Fiber. 44 SECTION 39. NOTICE 39.1 All notices, which shall or may be given pursuant to this Agreement, shall be in writing and transmitted through the U.S. certified or registered mail, postage prepaid, by means of prepaid private national overnight delivery systems addressed as follows: CITY OF APACHE JUNCTION: City of Apache Junction Attention: City Manager 300 E. Superstition Blvd. Apache Junction, Arizona 85119 Phone: (480) 474-5066 With copy to: City of Apache Junction Attention: City Attorney 300 E. Superstition Blvd. Apache Junction, Arizona 85119 Phone: (480) 474-5105 ZONA WYYERD: Wyyerd Fiber Scott Beer, General Counsel 5600 Arapaho Ave., Suite 200 Boulder, Colorado 80303 Invoices to: Wyyerd Fiber Attention: Tim Gentry 5600 Arapaho Ave., Suite 200 Boulder, Colorado 80303 39.2 Notices shall be deemed sufficiently given and served upon the other party upon actual delivery or actual refusal and must be given by Certified U.S. Mail Return Receipt Requested or by a national overnight carrier with delivery signature required, or by personal delivery to the proper address shown in Section 39.1. 39.3 Either party may from time to time designate any other address for this purpose by written notice to the other party in the manner set forth above. 45 39.4 Wyyerd Fiber shall notify the City within ten (10) calendar days of any change in mailing address. SECTION 40. GOVERNING LAW The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees (inclusive of professional services/meals/lodging/ transportation), court costs, and transcript fees. SECTION 41. COMPETITIVE NEUTRALITY The Parties understand and agree that the City's administration of its Public Highways and the use of them by providers of telecommunications services must be administered on a competitively neutral and nondiscriminatory basis. Accordingly, the terms of any agreement with other similarly situated providers shall, taken as a whole, be competitively neutral and nondiscriminatory when compared to this Agreement. SECTION 42. PARTIAL INVALIDITY If any section, paragraph, subdivision, clause, phrase or provision of this Agreement shall be adjudged invalid or unenforceable or is preempted by federal or state laws or regulations, the same shall not affect the validity of this Agreement as a whole or any part of the provisions of this Agreement other than the part adjudged to be invalid, unenforceable or preempted. SECTION 43. NO WARRANTY 43.1 As to License. The issuance of a license, permit or other authorization by the City is not a representation or warranty that such license, permit, or authorization is a legally sufficient substitute for a franchise, and is not a representation of warranty that a franchise is not required. 43.2 As to ROW. Wyyerd Fiber acknowledges and agrees that City does not warrant the condition or safety of its ROW or the premises surrounding the same, and Wyyerd Fiber hereby assumes all risks of any damage, injury or loss of any nature whatsoever caused by or in connection with the use of any City ROW. 46 SECTION 44. NON-WAIVER Neither party shall be excused from complying with any of the terms and conditions of this Agreement by any failure of the other party upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. SECTION 45. REMEDIES NOT EXCLUSIVE The remedies set forth in this License and Agreement are not exclusive. Election of one remedy does not preclude the use of other remedies. SECTION 46. FORCE MAJEURE Neither City nor Wyyerd Fiber, as the case may be, shall be considered not to have performed its obligations under this Agreement in the event of enforced delay (an “Enforced Delay”) due to causes beyond its control and without its fault or negligence or failure to comply with Applicable Laws, including, but not restricted to, acts of God, fires, floods, epidemics, pandemics, quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of subcontractors or materialmen due to such causes, acts of a public enemy, war, terrorism or act of terror (including but not limited to bio-terrorism or eco-terrorism), nuclear radiation, blockade, insurrection, riot, labor strike or interruption, extortion, sabotage, or similar occurrence or any exercise of the power of eminent domain any governmental body on behalf of any public entity, or a declaration of moratorium or similar hiatus directly affecting the Project (whether permanent or temporary) by any public entity. In no event will Enforced Delay include any delay resulting from general economic or market conditions, unavailability for any reason of particular tenants or purchasers of portions of the Project, labor shortages, unavailability of financing, or the unavailability for any reason of particular contractors, subcontractors, vendors, investors or lenders desired by Wyyerd Fiber in connection with the Project. Wyyerd Fiber agrees that Wyyerd Fiber alone will bear all risks of delay which are not Enforced Delay. In the event of the occurrence of any such Enforced Delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for a period of the Enforced Delay; provided, however, that the Party seeking the benefit of the provisions of this Section shall, within thirty (30) calendar days after such Party knows or should know of any such Enforced Delay, first notify the other Party of the specific delay in writing and claim the right to an extension for the period of the Enforced Delay; and provided further that in no event shall a period of Enforced Delay exceed ninety (90) calendar days. SECTION 47. DISPUTE RESOLUTION In the event of a dispute between the Parties to this Agreement regarding a provision of this Agreement, a Party's performance of its obligations as stated in this Agreement or any other matter governed by the terms of this Agreement, the Parties will meet in good faith to attempt to resolve th e dispute. If the Parties fail to resolve the dispute, then the Parties may agree that the dispute may be resolved through 47 mediation. If mediation is agreed to by the disputing Parties, the disputing Parties shall mutually agree upon the services of one mediator whose fees and expenses shall be borne equally by the disputing Parties. If the dispute is not resolved within a reasonable time, the disputing Parties shall be free to use other remedies such as litigation to resolve the dispute. SECTION 48. EXHIBITS All Exhibits referred to in this Agreement and any addenda, attachments, and schedules which may, from time to time, be referred to in any duly executed amendment to this Agreement are by such reference incorporated in this Agreement and shall be deemed a part of this Agreement. SECTION 49. SURVIVAL OF LIABILITY All obligations of Wyyerd Fiber and City hereunder and all warranties and indemnities of Wyyerd Fiber hereunder shall survive termination of this Agreement. SECTION 50. ENTIRE AGREEMENT This Agreement and any attachments represent the entire agreement between City and Wyyerd Fiber and supersede all prior negotiations, representations or agreements, either express or implied, written or oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto. Written and signed amendments shall automatically become part of the supporting documents, and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. SECTION 51. MODIFICATION OR AMENDMENT This Agreement cannot be modified or amended except in writing signed by both Parties and approved by the city council. SECTION 52. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement and each provision hereof. Any delay in performance by either Party shall constitute a material breach unless excused by Enforced Delays/Force Majeure as described in Section 46. SECTION 53. PROHIBITION TO CONTRACT WITH LICENSEES WHO ENGAGES IN BOYCOTT OF THE STATE OF ISRAEL. The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with Licensees who engage in boycotts of the State of Israel. Should Licensee under this Agreement engage in any such boycott against the State of Israel, this Agreement shall be deemed automatically terminated by operation of law. Any such boycott is a material breach of contract. This Agreement executed this day of , 20 LICENSEE: Accipiter Communications, Inc. dba Zona Wyyerd, a Nevada corporation By: ill Title: S✓ �o I=i Wyyerd Connect, LLC dbaZona Wyyerd Network Services and d/b/a Wyyerd Fiber, a Delaware limited liability company By: Titi G� y Title: LICENSOR: City of Apache Junction, an Arizona municipal corporation By: Walter "Chip" Wilson Title: Mayor ATTEST: Jennifer Pena City Clerk APPROVED AS TO FORM: R. Joel Stern City Attorney 48 STATE OF a U ) COUNTY OF J�j Vd _. ss. ) The foregoing was subscribed and sworn to before me this day of , Vr4- 20 Q�-, by as of Accipiter Communications, Inc. dbaZona Wyyerd, Nevada corporation. Notary Public My Commission Expires: PICHEL"JACKSON NOTARY PUBLIC-STATE OF COLORADO Notary ID#20194016660 M Commission Expires 5/1l2023 STATE OF� ) ) ss. COUNTY OF 1 <�O ) The foregoing was subscribe_ and sw rn to before me this day of 20 -, by as SV :Vnaft of Wyyerd Connect, LLC dbaZona Wyyerd Network(j6ervices and dbaWyyerd Fiber , a Delaware limited liability company. No ary Pu 'c My Commission Expires: E ICHELLEJAr,KSON UBLIC-STATE OF COLORADO ary ID#20194016660mission Expires 511/2023 STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this day of , 20 , by Walter "Chip" Wilson, as Mayor of the City of Apache Junction, Arizona, an Arizona municipal corporation. Notary Public My Commission Expires: 49 50 EXHIBIT A Map of Use Areas The map contained within this Exhibit is considered confidential and proprietary by Wyyerd Fiber. The map will be kept on file in the City Engineer’s office and will be released publicly only pursuant to Section 31 of this Agreement. Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-378 Agenda Item No. 6. Agenda Date: 6/21/2022 Sponsor: Mike Wever In Control: City Council MeetingIndex: Consideration of approval of the First Amendment to the City of Apache Junction Bulk Fuel Agreement with Southern Counties Oil, doing business as SC Fuels, increasing the contract payment for the remainder of the term retroactively from May 1, 2022 through September 30, 2022 in an amount not to exceed $360,000. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 A HF ti Public Works Department e J Home of the Superstition Mountains .M Date: June 13, 2022 To: Mayor and Members of the City Council Through: Bryant Powell, City Manager Mike Wever, Public Works Director From: Heather Hodgman, Administrative Services Manager_' Subject: First Amendment with Southern Counties Oil Company dba SC Fuels The city entered into a professional services agreement with Southern Counties Oil Company (SC Fuels)to provide bulk fuel for citywide needs on October 1, 2017, with the annual amount of$500,000. The agreement with SC Fuels is for a period of one (1)year with the option to renew for four(4)additional one-year periods. Staff respectfully requests entering into the first amendment between the city and SC Fuels beginning May 1, 2022, until September 30, 2022. Pricing per gallon is based on the daily Oil Price Information Service (OPIS) rate and due to nationwide inflation, the price per gallon is increasing. Over the past six (6) months the city has an average usage 4,110 gallons of Diesel and 7,750 gallons of Unleaded. Today's current price for Diesel is $5.29 and Unleaded is $5.18, however, SC Fuels is anticipating the price to be at least$6.25 and Unleaded $6.00 a gallon. The city anticipates an increase of$360,000 for the remainder of this agreement. 575 E. Baseline Avenue, Apache Junction, AZ 85219 • Voice(480) 982.1055 • FAX (480) 983-5752 or(480) 982-8005 FIRST AMENDMENT TO CITY OF APACHE JUNCTION AGREEMENT FOR BULK FUEL WITH SOUTHERN COUNTIES OIL COMPANY DBA SC FUELS THIS AMENDMENT is made and entered into this day of ____________, 2022, (“the Execution Date”) by and between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation (“City”), and SOUTHERN COUNTIES OIL COMPANY, DBA SC FUELS, a California corporation (“Contractor”), sometimes collectively referred to as the “Parties” or individually as the “Party”. RECITALS A. On October 3, 2017, the Parties entered into an Agreement (the “Agreement”) for Bulk Fuel (the “Agreement”) under which City hired Contractor to provide and deliver bulk supply of red dyed diesel, clear diesel, unleaded gasoline and E85 gasoline on the terms and conditions set forth in the Agreement. B. In § 3 Payments, of the Agreement, the annual dollar contract amount was capped at $500,000. C. Due to national gasoline prices exceeding even the wildest imagination of economists, the § 3 cap has already been reached, leaving approximately five months before the contract is to terminate. D. Staff has estimated approximately 4,110 gallons of diesel fuel and 7,750 gallons of unleaded fuel will be needed for the next five months with a projected average price over this period to be $6.25 a gallon for diesel fuel and $6.00 a gallon for unleaded fuel, for a total estimated added cost of $360,000 for the remainder of the term of contract. E. This payment increase preserves the contractual obligations between the Parties until October. AGREEMENT NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree to amend the June 14, 2022, Agreement as follows: A. Section 3, Payments, shall be modified as follows: Retroactive from May 1, 2022 through September 30, 2022, the total payment shall not exceed $360,000. 2 B. Except as expressly amended herein, all other terms and provisions of the Agreement shall remain in full force and effect until the Agreement is terminated. IN WITNESS WHEREOF, the Parties have caused this Amendment to be signed by their duly authorized representatives as of the day and year first above written. SOUTHERN COUNTIES OIL COMPANY, DBA SC FUELS, a California corporation By: Its: CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation By: Chip Wilson Its: Mayor ATTEST: Jennifer Pena City Clerk APPROVED AS TO FORM: R. Joel Stern City Attorney AGREEMENT FOR BULK FUEL BETWEEN THE CITY OF APACHE JUNCTION AND SOUTHERN COUNTIES OIL COMPANY DBA SC FUELS THIS AGREEMENT made and entered into by and between the CITY OF APACHE JUNCTION("City"),an Arizona municipal corporation, and SOUTHERN COUNTIES OIL COMPANY DBA SC FUELS, a California Limited Partnership("Contractor'), both of which may be hereinafter referred to collectively as the "Parties"or individually as a "Party",for the Project entitled "Bulk Fuel." RECITALS A. In response to City's Notice Inviting Bid Proposals dated July 20, 2017, any addendums applicable hereto, Contractor submitted a proposal dated August 10, 2017, in which Contractor asserted its willingness,ability and qualifications to provide work and service(hereinafter referred to as the"Work")for the Project. B. City has complied with the public bidding requirements under Arizona Revised Statues Title 34 and Apache Junction City Code Article 3-7. C. City and Contractor desire to set forth herein their respective responsibilities and the manner and temps upon which Contractor shall render the Work. AGREEMENT NOW,THEREFORE, City retains Contractor to perform, and Contractor agrees to render the services in accordance with the terms and conditions set forth as follows: 1. PROJECT DESCRIPTION: Contractor shall do and perform or cause to be done and performed in a good workmanlike manner,the Work in accordance with the contract documents as fully described in the Notice Inviting Bid Proposals for Project No. RFP No. PW 2017-24 which includes required specifications in Exhibit A. All deliveries shall occur within 1 city work day after receipt of a telephonic order as specified in the RFP. 2. PRICES: Prices shall be governed under Exhibit A for the performance of the Work under the contract documents. 3. PAYMENTS: Payment will be made by the City within thirty(30)calendar days after completion and acceptance of the material. Total amount of this Agreement shall not exceed five hundred thousand dollars and no cents($500,000). 4. QUANTITY: All'unguaranteed"quantities stated in the Agreement are subject to adjustment as dictated by the City requirements. Guaranteed quantities at variance with stated bid quantities may be purchased as required during the term of the Agreement. 5. CONTRACT TERM: The Term of this Contract shall be from October 2, 2017 through October 1, 2018. City has the option to renew the Contract for four(4)additional one-year periods if mutually agreeable. If the contract is renewed, the total length of the contract shall not exceed five(5)years from the original date of award of Contract. City reserves the right to 1 unilaterally extend any of the one-year(1) periods by thirty-one(31) days. This provision does not limit the liability of the Contractor for actual damages sustained by the City as a result of any breach of contract or warranty by the Contractor. 6. LABOR AND MATERIALS: Unless otherwise provided in the contract documents, Contractor shall provide, pay and insure under the requisite laws and regulations for all labor, materials, equipment, tools and machinery, utilities, transportation, other facilities and services necessary for the proper execution and completion of the Work whether temporary or permanent, and whether or not incorporated or to be incorporated in the Work. 7. BUSINESS AND PRIVILEGE TAX LICENSE AND PAYMENT OF PRIVILEGE AND USE TAXES? Contractor represents and warrants that any license necessary to perform the work under this Agreement is current and valid. Contractor understands that the activity described herein constitutes"doing business in the City of Apache Junction"and Contractor agrees to obtain a business license pursuant to Article 8-2 of the Apache Junction City Code,Vol. I, and keep such license current during the term of this Agreement. Contractor also acknowledges that the tax provisions of the Apache Junction Tax Code, Chapter 8A, may also apply and if so, shall obtain a transaction privilege tax license and/or other licenses as may be required by the city code. Any activity by subcontractor within the corporate city limits will invoke the same licensing regulations on any subcontractors, and Contractor ensures its subcontractors will obtain any and all applicable licenses. If there are taxable activities, a business license shall be converted to a transaction privilege tax license by the Contractor and any subcontractors through the city clerk's office. Further, Contractor agrees to pay all applicable privilege and use taxes that are applicable to the activities, products and services provided under this Agreement. 8. SUB-CONTRACTORS: All Subcontractors shall be identified by Contractor prior to award of Agreement. Contractor shall make no substitutions for any Subcontractor, person or entity previously selected without the approval of City. 9. INDEPENDENT CONTRACTOR: Contractor shall at all times during Contractor's performance of the services retain Contractor's status as an independent Contractor. Contractor's employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes, or provide workers compensation or unemployment insurance for or on behalf of them or Contractor. Contractor shall supervise and direct the delivery of the materials using its best skill and attention. Except as provided in this Agreement, Contractor shall be solely responsible for all means, methods, techniques, sequences and procedures, and for coordinating all portions of the work required by the contract documents. Contractor shall be responsible to City for the acts and omissions of its employees. 10. INDEMNIFICATION: To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability, including but not limited to, demands, claims, actions, fees, costs and expenses, including attorney and expert witness fees, arising from or connected with or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Contractor, its agents, employees, or any tier of Contractor's subcontractors in the performance of this Agreement. Contractor's duty to defend, hold harmless and indemnify City, its special districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease,death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by an Contractor's acts, errors, mistakes, omissions,work or services in the performance of this Agreement including any employee of Contractor, any tier of Contractor's subcontractor or any other person for whose acts, errors, mistakes, omissions, work or services Contractor may be legally liable. 11. ENFORCED DELAYS (FORCE MAJEURE): Neither City nor Contractor, as the case may be, shall be considered not to have performed its obligations under this Agreement in the event of enforced delay(an "Enforced Delay") due to causes beyond its control and without its fault or negligence or failure to comply with all state and federal laws, including, but not restricted to, acts of God, fires, floods, epidemics, pandemics, quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of subcontractors or materialmen due to such causes, acts of a public enemy, war, terrorism or act of terror (including but not limited to bio-terrorism or eco-terrorism), nuclear radiation, blockade, insurrection, riot, labor strike or interruption, extortion, sabotage, or similar occurrence or any exercise of the power of eminent domain of any governmental body on behalf of any public entity, or a declaration of moratorium or similar hiatus(whether permanent or temporary) by any public entity directly affecting the Work. In no event will Enforced Delay include any delay resulting from unavailability for any reason of labor shortages, or the unavailability for any reason of particular consultants, subcontractors,vendors or investors desired by Contractor in connection with the Work. Contractor agrees that Contractor alone will bear all risks of delay which are not Enforced Delay. In the event of the occurrence of any such Enforced Delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for a period of the Enforced Delay; provided, however,that the Party seeking the benefit of the provisions of this Section shall, within thirty(30)calendar days after such Party knows or should know of any such Enforced Delay,first notify the other Party of the specific delay in writing and claim the right to an extension for the period of the Enforced Delay; and provided further that in no event shall a period of Enforced Delay exceed ninety(90)calendar days. 12. GOVERNING LAW AND VENUE: The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorneys'fees, necessary witness fees and court costs to be determined by the court in such action. 13. INSURANCE: Contractor, at its own expense, shall purchase and maintain the minimum insurance and other additional requirements set forth herein. All insurance required herein shall be maintained in full force and effect until all Work or service required to be performed under the terms of the Agreement is satisfactorily completed and formally accepted;failure to do so may, at the sole discretion of the City constitute a material breach of this Agreement. Contractor's insurance shall be primary insurance as respect to City, and any insurance or self- insurance maintained by City shall not contribute to it. Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect coverage afforded under the insurance policies to protect City. The insurance policies, except Workers Compensation, shall contain waiver of transfer rights of recovery(subrogation) against City, its agents, officers, officials and employees for any claims arising out of Contractor's acts, errors, mistakes, omissions, Work or services. The insurance policies may provide coverage which contains deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to City under such policies. Contractor shall be solely responsible for the deductible and/or self-insured retention and City, at its option, may require Contractor to secure payment of such deductibles or self-insured retentions by a Surety Bond or an irrevocable and unconditional letter of credit. City reserves the right to request and to receive within ten (10)working days, certified copies of any or all of the herein required insurance policies and/or endorsements. City shall not be obligated, however,to review same or to advise Contractor of any deficiencies in such policies and endorsements, and such receipt shall not relieve Contractor from, or be deemed a waiver of City's right to insist on strict fulfillment of Contractor's obligations under this Agreement. The insurance policies, except Workers Compensation, required by this Agreement, shall name City, its agent, officers, officials and employees as additional insured parties. REQUIRED COVERAGE Commercial General Liability Contractor shall maintain Commercial General Liability insurance with a limit of not less than $1,000,000 for each occurrence with a $2,000,000 Products/Completed Operations Aggregate and a $2,000,000 General Aggregate Limit. The policy shall include coverage for bodily injury, broad form property damage, personal injury, products and completed operations and blanket contractual coverage including, but not limited to, the liability assumed under the indemnification provisions of this Agreement which coverage will be at least as broad as Insurance Service Office, Inc. Policy Form CG 00011-93 or any replacement thereof. In addition, automobile liability coverage of at least$1 million per occurrence or a combined single limit of at least $1,000,000 is required. The auto liability policy should contain endorsements for hired autos, non-owned autos and scheduled vehicles, as applicable to the Contractor's business. Such policy shall contain a severability of interest provision, and shall not contain a sunset provision or commutation clause, nor any provision which would serve to limit third party action over claims. The Commercial General Liability additional insured endorsement shall be at least as broad as the Insurance Service Office Inc.'s Additional Insured, Form CG 20101185, and shall include coverage for Contractor's operations and products and completed operations. If required by this Agreement, if Contractor sublets any part of the Work, services or operations, Contractor shall purchase and maintain, at all times during prosecution of the Work, services or operations under this Agreement, City and Contractor's Protective Liability insurance policy for bodily injury and property damage, including death,which may arise in the prosecution of the Work, service or operations under this Contract Coverage shall be on an occurrence basis with 4 a limit not less than $1,000,000 per occurrence, and the policy shall be issued by the same insurance company that issues Contractor's General Liability insurance. Workers Compensation Contractor shall carry Workers Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of Contractor's employees engaged in the performance of the Work or services; and Employer's Liability insurance of not less than$100,000 for each accident, $100,000 disease for each employee, and $500,000 disease policy limit. In case any Work is subcontracted, Contractor will require subcontractor to provide Workers Compensation and Employer's Liability to at least the same extent as required of Contractor. CERTIFICATE OF INSURANCE Prior to commencing Work or services under this Agreement, Contractor shall furnish the City with Certificates of Insurance, or formal endorsements as required by Agreement, issued by Contractor's insurer(s), as evidence that policies providing the required coverages, conditions and limits required by this Agreement are in full force and effect. In the event any insurance policies required by this Agreement are written on a"claims made" basis, coverage shall extend for two(2)years past completion and acceptance of the Contractor's Work or services and as evidenced by annual Certificates of Insurance,to be filed with the City Clerk of City. If a policy does expire during the life of the Agreement, a renewal certificate must be sent to City thirty(30) days prior to the expiration date. All Certificates of Insurance shall be identified with bid serial number and title. Insurance required herein shall not expire, be canceled, or materially changed without thirty(30) days' prior written notice to City. 14. SUCCESSORS &ASSIGNS: City and Contractor each bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to the partners, successors, assigns and legal representatives of such other party in respect to all covenants, agreements and obligations contained in the contract documents. Neither Party to the contract shall assign the contract or sublet it as a whole without the written consent of the other, nor shall the Contractor assign any monies due or to become due to or to become due to it without the previous written consent of City. 15. WRITTEN NOTICE: Written notice shall be deemed to have been duly served if delivered in person to the individual or member of the firm or entity, or to an office of the corporation for whom it was intended or if delivered at or sent registered or certified mail, return receipt requested, and first class postage prepaid to the last business address known to them who gives the notice. 16. SAFETY: Contractor and/or its subcontractors shall be solely responsible for job safety at all times. 17. RIGHTS& REMEDIES: The duties and obligations imposed by the contract documents and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by City or Contractor shall constitute a waiver of any right or duty afforded any of them under the contract, nor shall any action or failure to act constitute an approval of or an acquiescence to any breaches hereunder except as may be specifically agreed to in writing. 18. TERMINATION OF CONTRACT: If,for any reason,the Contractor shall fail to fulfill in a timely and proper manner his/her obligations under the contract, or if the Contractor shall violate any of the covenants, agreements, or stipulations of the contract,the City shall thereupon have the right to terminate the contract by giving written notice to the Contractor of such termination and specifying the effective date thereof. Notwithstanding the above,the Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the contract by the Contractor. The City may terminate the contract at any time by giving at least twenty-four(24) hours notice in writing to the Contractor. If the contract is terminated by the City as provided herein,the Contractor will be paid for the time expended and expenses incurred up to the termination date. 19. APPEALS: All contractual grievances shall be submitted in writing to the City Manager within five(5)calendar days after the difference of opinion or grievance occurs relating to any of the provisions of the terms of this Agreement. Within five(5) calendar days of receiving a written grievance, the City Manager shall respond in writing to the company. The City Manager's decision shall be final and binding, subject only to a further appeal in the Pinal County Superior Court pursuant to A.R S. § 12-901, et seq. 20. RECORDS: Records of Contractor's labor, payroll and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request. Contractor shall maintain records for a period of at least three(3) years after termination of this Agreement, and shall make such records available during that retention period for examination or audit by City personnel during regular business hours. 21. AMENDMENT: It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto, and that oral understandings or agreements not incorporated herein shall not be binding on the parties. 22. SEVERABILITY: City and Contractor each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable(or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or City Code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement(and any related agreements effective as of the same date) provide essentially the same rights and benefits(economic and otherwise)to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws,the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 23. TIME IS OF THE ESSENCE: Time is of the essence with respect to all provisions in this Agreement. Any delay in performance by either Party shall constitute a material breach of this Agreement. 24. CONFLICT OF INTEREST: This Agreement is subject to, and may be terminated by City in accordance with, the provisions of A.R.S. §38-511. 25. PROHIBITION TO CONTRACT WITH CONTRACTORS WHO ENGAGE IN BOYCOTT OF THE STATE OF ISRAEL: The Parties acknowledge A.R.S. §§35-393 through 35-393.03, as amended,which forbids public entities from contracting with Contractors who engage in boycotts of the State of Israel. Should Contractor under this Agreement engage in any such boycott against the State of Israel, this Agreement is automatically terminated. Any such boycott is a material breach of contract and will subject Contractor to monetary damages, including but not limited to, consequential and liquidated damages. 26. COMPLIANCE WITH FEDERAL AND STATE LAWS: Contractor understands and acknowledges the applicability of the American with Disabilities Act,the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the services performed under this Agreement. As required by A.R.S. §41-4401, Contractor hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. §23-214(A). Contractor further warrants that after hiring an employee, Contractor will verify the employment eligibility of the employee through the E-Verify program. If Contractor uses any subcontractors in performance of services, subcontractors shall warrant their compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. §23-214(A), and subcontractors shall further warrant that after hiring an employee, such subcontractor verifies the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this Agreement. Contractor is subject to a penalty of$100 per day for the first violation, $500 per day for the second violation, and$1,000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Contractor shall not be deemed in material breach of this Agreement if the Contractor and/or subcontractors establish compliance with the employment verification provisions of Sections 274A and 274E of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. §23-214(A). City retains the legal right to inspect the papers of any Contractor or subcontractor employee who works under this Agreement to ensure that the Contractor or subcontractor is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times. If state law is amended, the Parties may modify this paragraph consistent with state law. 27. LABOR & MATERIAL BOND: Contractor shall provide bond covering the payment of all obligations arising hereunder. Attached is a standard bond form which must be completed by Contractor and Contractor agrees to conform to all provisions set forth in such forms. 28. COOPERATIVE USE OF CONTRACT. The City has entered into various cooperative purchasing agreements with other Arizona government agencies, including the Strategic Alliance for Volume Expenditures"SAVE"cooperative. This contract may be extended for use by other municipalities, school districts and government agencies in the State of Arizona with the approval of the Contractor. Any such usage by other entities must be in accordance with the statutes, codes, ordinances, charter and/or procurement rules and regulations of the respective government agency. Orders placed by other agencies and payment thereof will be the sole responsibility of that agency. The City shall not be responsible for any disputes arising out of transactions made by others. IN WITNESS WHEREOF the parties hereto h ve cause thi reement to be�S igned by their duly authorized representative as of this {/day of , 20!! CONTRACTOR: SOUTHERN COUNTIES OIL DBA SC FUELS, a California Limited Partnership Edward A Wonderge/m� By: Lr • 44444"— P.8 Title: CFO CITY: CITY OF APACHE JUNCTION an Arizona municipal corporation By: Jeff Serdy Title: City Mayor ATTEST: Kathleen Connelly City Clerk APPROVED AS TO FORM: --(39 9.25 _ Richard J. Stem City Attorney e STATE OF ) ) Ss. County of ) The foregoing was subscribed a,#d sworn to before me this day of , 20_, by— as of a California Limited Partnepthip. Notary Public My Commission Expires: (seal) STATE OF ARIZONA } ss. COUNTY OF AIA(- ) The foregoing was subscribed and sworn to before me this 6 day of _ _ 20 17, by Jeff Serdy, as Mayor of the City of Apache Junction,Arizona, an Arizona municipal corporation. Not Public My Commission Expires: WNOTARY PUBLIC STATE OF ARIZONA tiAedoope County JANET R MASON COMWOWon Expires lwguet 31.202t) ,A A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange Subscribed and sworn to (or affirmed) before me on this 19th day of September , 20 1/ , by Edward A. Wondergem proved to me on the basis of satisfactory evidence to be the person(s)who appeared before me. %CAN HUONG NGUYEN MORALES NotaryPublic-California Orange County Comnussion R 2202584ature- My Comm Expires Jul 20, C-' Exhibit A COST PROPOSAL PROJECT NO. PW 2017-24 FIRM/COMPANY: Southern Counties Oil Co., a California Limited Partnership dba SC Fuels CONTACT NAME: Karen Koep ADDRESS: P.Q. Box 4159, Orange, CA 92863-4159 TELEPHONE: 805-389-3550 E L: koe k scfuels.com For purposes of this bid,the Bidder shall use this Cost Proposal Form for the OPIS daily average for August 9,2017. City of Apache.!unction Public Works Facility Delivery Address 575 E Baseline Ave Delivery accepted Monday through Thursday between the hours of 6:30 am and 4:00 pm, Arizona Standard Time. Location Traditional Differential Freight Taxes Other Total OPTS "Unguaranteed" Charges Differential em17 TOTAL. Quantity AM PRICE 575 E Baseline Item 1:+/-3,000 Ave,Apache gallons of Red -0.032 0.03922 0.17866 0 0.185880 1.7985 1.984380 Junction,AZ Dyed Diesel Fuel 85119 575 E Baseline Item 2: +/-15,000 Ave,Apache gallons of Clear -0.0355 0.03922 0.273143 0 0.276863 1.7609 2.037763 Junction,AZ Diesel Fuel 85119 575 E Baseline Item 3:+/-20,000 Ave,Apache gallons of -0.0369 0.03833 0.192929 0 0.194359 1.7104 1.904759 Junction,AZ Unleaded Fuel 85119 575 E Baseline Item 4: +/-20,000 Ave,Apache gallons of E85 0.02 0.03833 0.191960 0 .250290 1.5255 1.775790 Junction,AZ Fuel 85119 Location Guaranteed Differential Freight Taxes Other Total "Take or Pay" Charges Differential Quantity 575 E Baseline Item 1:6,000 Ave,Apache gallons of Red -0.032 0.03922 0.17866 0 0.185880 1.7985 1.984380 Junction,AZ Dyed Diesel Fuel 85118 575 E Baseline Item Y. Ave,Apache gallons of Clear -0.0355 0.273143 0.27686 1.7609 2.037763 Junction,AZ Diesel Fuel 85119 575 E Baseline Item 3:80,000 Ave,Apache gallons of -0.0369 0.03833 0.192929 0 0.194359 1.7104 1904759 Junction,AZ Unleaded Fuel 85119 575 E Baseline Item 4:30,000 Ave,Apache gallons of E85 0.02 0.03833 0.191960 0 0.250290 1.5255 1 775790 Junction,AZ Fuel 85119 Apache Junction Unified School District:Delivery Address 2535 5 Ironwood.Apache Junction Delivery accepted Monday through Thursday between the hours of 6:00 am to 4:00 pm(June to August) Delivery accepted Monday through Friday between the hours of 5:30 am to 5:30 pm(August to June), Arizona Standard Time. Location Traditional Differential Freight Taxes Other Total "Unguaranteed" Charges Differential Quan6ty 2535 S Ironwood, Item 1:+/-6,000 Apache Junction, gallons of -0.0369 0.03833 0.192929 0 0.194359 1.7104 1.904759 AZ 85119 Unleaded Fuel 2535 S Ironwood, Item 2:+/-70,000 Apache Junction, gallons of Red -0.032 0.03922 0.178660 0 0.185880 1.7985 1.984380 AZ 85119 Deg diesel fuel Location Guaranteed Differential Freight Taxes Other Total "Take or Pay" Charges Differential Quantity 2535 S Ironwood, Item 1:5,000 Apache Junction, gallons of -0.0369 0.03833 0.192929 0 0.194359 1.7104 1.904759 AZ 85119 Unleaded Fuel 2535 S Ironwood, Item 2:65,000 Apache Junction, gallons of Red -0.032 �.039220.013143 0 0.020363 1.7985 1.818863 AZ 85119 1 Dyed Diesel Fuel t fA Date 817117 Signature Karen Koep Title Manager,Bids and Contracts Printed Name FIRST AMENDMENT TO CITY OF APACHE JUNCTION AGREEMENT FOR BULK FUEL WITH SOUTHERN COUNTIES OIL CO. DBA SC FUELS THIS AMENDMENT is made and entered into this day of ____________, 2022, (“the Execution Date”) by and between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation (“City”), and SOUTHERN COUNTIES OIL Co., DBA SC FUELS, a California limited partnership (“Contractor”), sometimes collectively referred to as the “Parties” or individually as the “Party”. RECITALS A. On October 3, 2017, the Parties entered into an Agreement (the “Agreement”) for Bulk Fuel (the “Agreement”) under which City hired Contractor to provide and deliver bulk supply of red dyed diesel, clear diesel, unleaded gasoline and E85 gasoline on the terms and conditions set forth in the Agreement. B. In § 3 Payments, of the Agreement, the annual dollar contract amount was capped at $500,000. C. Due to national gasoline prices exceeding even the wildest imagination of economists, the § 3 cap has already been reached, leaving approximately five months before the contract is to terminate. D. Staff has estimated approximately 4,110 gallons of diesel fuel and 7,750 gallons of unleaded fuel will be needed for the next five months with a projected average price over this period to be $6.25 a gallon for diesel fuel and $6.00 a gallon for unleaded fuel, for a total estimated added cost of $360,000 for the remainder of the term of contract. E. This payment increase preserves the contractual obligations between the Parties until October. AGREEMENT NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable consideration, the receipt and adequ acy of which is hereby acknowledged, the Parties agree to amend the June 14, 2022, Agreement as follows: A. Section 3, Payments, shall be modified as follows: Retroactive from May 1, 2022 through September 30, 2022, the total payment shall not exceed $360,000. DocuSign Envelope ID: 05ED36BE-F9FF-4A63-98E2-BA944CD09148 2 B.Except as expressly amended herein, all other terms and provisions of the Agreement shall remain in full force and effect until the Agreement is terminated. IN WITNESS WHEREOF, the Parties have caused this Amendment to be signed by their duly authorized representatives as of the day and year first above written. SOUTHERN COUNTIES OIL CO., DBA SC FUELS, a California limited partnership By: Its: CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation By: Chip Wilson Its: Mayor ATTEST: Jennifer Pena City Clerk APPROVED AS TO FORM: R. Joel Stern City Attorney Robert W. Bollar Corporate Secretary and Vice President DocuSign Envelope ID: 05ED36BE-F9FF-4A63-98E2-BA944CD09148 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-381 Agenda Item No. 7. Agenda Date: 6/21/2022 Sponsor: Anna McCray In Control: City Council MeetingIndex: Consideration of approval on a third amendment to the License Agreement with Tyler Technologies, Inc. for utility billing software. The total cost for the implementation and one (1) year maintenance/support of the utility billing software is $143,228.00 plus 20% for contingencies in the amount of $28,645.60, for a total not to exceed $171,873.60. The Water Utilities Community Facilities District (City of Apache Junction) will reimburse the city for these expenses. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 1 AMENDMENT #5 This amendment (“Amendment”) is effective as of the date of signature of the last party to sign as indicated below (“Amendment Effective Date”), by and between Tyler Technologies, Inc. with offices at One Tyler Drive, Yarmouth, Maine 04096 (“Tyler”) and the City of Apache Junction, Arizona, with offices at 300 E. Superstition Blvd., Apache Junction, Arizona 85119 (“Client”). WHEREAS, Tyler and Client are parties to an agreement dated August 20, 2018 (“Agreement”); and WHEREAS, Tyler and Client desire to amend the terms of the Agreement as provided herein. NOW THEREFORE, in consideration of the mutual promises hereinafter contained, Tyler and Client agree as follows: 1. The items set forth in the sales quotation attached as Exhibit 1 to this Amendment are hereby added to the Agreement as of the first day of the first month following the Amendment Effective Date and, notwithstanding anything to the contrary in Exhibit 1, ending coterminous with the SaaS Term as defined in the Agreement. Payment of fees and costs for such items shall conform to the following terms: a. The annual SaaS fees payable under the Agreement shall be increased in the amount of $25,657, for the Tyler Software added herein. The first year’s annual SaaS Fees shall be invoiced on the first day of the first month following the Amendment Effective Date, prorated for the time period commencing on such date and ending concurrently with the Client’s annual SaaS Term under the Agreement. Subsequent SaaS Fees shall be invoiced in accord with the terms of the Agreement. b. Unless otherwise provided herein, services identified at Exhibit 1 and added to the Agreement pursuant to this Amendment, along with applicable expenses, shall be invoiced as provided and/or incurred. c. Fees for Hardware are due on delivery of the respective Hardware. 2. Your use of the Tyler solutions listed below includes functionality provided by a Third Party Developer, Twilio. Your rights, and the rights of any of your end users, to use said functionality are subject to the terms of the Twilio Acceptable Use Policy, available at http://www.twilio.com/legal/aup. By signing this Amendment, or accessing, installing, or using any such Tyler solution, you certify that you have reviewed, understand and agree to said terms. Tyler hereby disclaims any and all liability related to your or your end user’s failure to abide by the terms of the Twilio Acceptable Use Policy. Any liability for failure to abide by said terms shall rest solely with the person or entity whose conduct violated said terms.  Notify 2 3. The Statement of Work for Utility Billing attached hereto as Exhibit 2 is hereby incorporated into the Agreement as Exhibit E, Attachment 1. 4. This Amendment shall be governed by and construed in accordance with the terms and conditions of the Agreement. 5. Except as expressly indicated in this Amendment, all other terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the dates set forth below. Tyler Technologies, Inc. City of Apache Junction, Arizona By: By: Name: Name: Title: Title: Date: Date: Exhibit 1 1 Exhibit 1 Amendment Investment Summary The following Amendment Investment Summary details the software and services to be delivered by us to you under this Amendment. This Amendment Investment Summary is effective as of the Amendment Effective Date. Capitalized terms not otherwise defined will have the meaning assigned to such terms in the Agreement. In the event a comment in the following sales quotation conflicts with a provision of this Amendment, the provision in this Amendment shall control. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 2022-310514-W4Y9J6 CONFIDENTIAL Page 1 Quoted By:Karen Grosset Quote Expiration:09/13/22 Quote Name:City of Apache Junction - ERP - UBCIS Saas Term 1.00 Sales Quotation For: City of Apache Junction 300 E Superstition Blvd Apache Junction AZ 85119-2825 Phone: +1 (480) 474-5066 Tyler SaaS and Related Services Description Qty Imp. Hours Annual Fee Revenue Management Citizen Self Service 1 32 $ 1,683.00 Utility Billing CIS including Graphing Agent 1 128 $ 8,391.00 Utility Billing Meter Interface 1 16 $ 1,684.00 Civic Services Enterprise Service Requests 1 40 $ 2,340.00 Additional GIS Site License 1 8 $ 3,063.00 Notify includes 30,000 Msgs and 1,000 Mins per year 1 16 $ 6,000.00 Integrations 3rd Party IVR API Connector 1 16 $ 2,496.00 TOTAL 256 $ 25,657.00 Professional Services Exhibit 1 2022-310514-W4Y9J6 CONFIDENTIAL Page 2 Description Quantity Unit Price Ext Discount Extended Price Maintenance Implementation - Remote 16 $ 163.00 $ 0.00 $ 2,608.00 $ 0.00 Project Management 36 $ 163.00 $ 0.00 $ 5,868.00 $ 0.00 Self-Service Installation Fee - Tyler Hosted (Existing Clients)1 $ 3,000.00 $ 0.00 $ 3,000.00 $ 0.00 Conversions – See Detailed Breakdown Below $ 31,808.00 $ 0.00 Onsite Implementation 68 $ 195.00 $0.00 $ 13,260.00 $ 0.00 Remote Implementation 188 $ 163.00 $0.00 $ 30,644.00 $ 0.00 TOTAL $ 87,188.00 $ 0.00 3rd Party Hardware, Software and Services Description Qty Unit Price Unit Discount Total Price Unit Maint/SaaS Unit Maint/SaaS Discount Total Maint/SaaS Cash Drawer 2 $ 260.00 $ 0.00 $ 520.00 $ 0.00 $ 0.00 $ 0.00 Hand Held Scanner - Model 1950GSR 2 $ 450.00 $ 0.00 $ 900.00 $ 0.00 $ 0.00 $ 0.00 Hand Held Scanner Stand 2 $ 30.00 $ 0.00 $ 60.00 $ 0.00 $ 0.00 $ 0.00 Printer (TM-S9000II)2 $ 1,623.00 $ 0.00 $ 3,246.00 $ 0.00 $ 0.00 $ 0.00 TOTAL $ 4,726.00 $ 0.00 Summary One Time Fees Recurring Fees Total Tyler Software $ 0.00 $ 0.00 Total Annual $ 0.00 $ 25,657.00 Total Tyler Services $ 87,188.00 $ 0.00 Total Third-Party Hardware, Software, Services $ 4,726.00 $ 0.00 Summary Total $ 91,914.00 $ 25,657.00 Contract Total $ 117,571.00 Unless otherwise indicated in the contract or amendment thereto, pricing for optional items will be held For six (6) months from the Quote date or the Effective Date of the Contract, whichever is later. Customer Approval:Date: Exhibit 1 2022-310514-W4Y9J6 CONFIDENTIAL Page 3 Print Name:P.O.#: All Primary values quoted in US Dollars Detailed Breakdown of Conversions (Included in Summary Total) Description Qty Unit Price Unit Discount Extended Price Contract Mangement Content Manager Core - Utility Billing - - Backflow 1 $ 1,000.00 $ 0.00 $ 1,000.00 Content Manager Core - Utility Billing - Standard - UB Account CIDs 1 $ 1,000.00 $ 0.00 $ 1,000.00 Professional Services Content Manager Implementation (Existing Clients)16 $ 163.00 $ 0.00 $ 2,608.00 Utility Billing Utility Billing - Backflow 1 $ 1,200.00 $ 0.00 $ 1,200.00 Utility Billing - Balance Forward AR 1 $ 5,600.00 $ 0.00 $ 5,600.00 Utility Billing - Budget Billing 1 $ 3,600.00 $ 0.00 $ 3,600.00 Utility Billing - Consumption History up to 5 years 1 $ 2,000.00 $ 0.00 $ 2,000.00 Utility Billing - Flat Inventory/Containers 1 $ 3,600.00 $ 0.00 $ 3,600.00 Utility Billing - Option 2 Assessments 1 $ 1,200.00 $ 0.00 $ 1,200.00 Utility Billing - Service Orders 1 $ 2,300.00 $ 0.00 $ 2,300.00 Utility Billing - Services 1 $ 3,600.00 $ 0.00 $ 3,600.00 Utility Billing - Standard 1 $ 4,100.00 $ 0.00 $ 4,100.00 TOTAL $ 31,808.00 Exhibit 1 2022-310514-W4Y9J6 CONFIDENTIAL Page 4 Comments Client agrees that items in this sales quotation are, upon Client's signature or approval of same, hereby added to the existing agreement ("Agreement") between the parties and subject to its terms. Additionally, payment for said items, as applicable but subject to any listed assumptions herein, shall conform to the following terms: •License fees for Tyler and third party software are invoiced upon the earlier of (i) deliver of the license key or (ii) when Tyler makes such software available for download by the Client; •Fees for hardware are invoiced upon delivery; •Fees for year one of hardware maintenance are invoiced upon delivery of the hardware; •Annual Maintenance and Support fees, SaaS fees, Hosting fees, and Subscription fees are first payable when Tyler makes the software available for download by the Client (for Maintenance) or on the first day of the month following the date this quotation was signed (for SaaS, Hosting, and Subscription), and any such fees are prorated to align with the applicable term under the Agreement, with renewals invoiced annually thereafter in accord with the Agreement. •Fees for services included in this sales quotation shall be invoiced as indicated below. •Implementation and other professional services fees shall be invoiced as delivered. •Fixed-fee Business Process Consulting services shall be invoiced 50% upon delivery of the Best Practice Recommendations, by module, and 50% upon delivery of custom desktop procedures, by module. •Fixed-fee conversions are invoiced 50% upon initial delivery of the converted data, by conversion option, and 50% upon Client acceptance to load the converted data into Live/Production environment, by conversion option. Where conversions are quoted as estimated, Tyler will invoice Client the actual services delivered on a time and materials basis. •Except as otherwise provided, other fixed price services are invoiced upon complete delivery of the service. For the avoidance of doubt, where "Project Planning Services" are provided, payment shall be invoiced upon delivery of the Implementation Planning document. Dedicated Project Management services, if any, will be invoiced monthly in arrears, beginning on the first day of the month immediately following initiation of project planning. •If Client has purchased any change management services, those services will be invoiced in accordance with the Agreement. •Notwithstanding anything to the contrary stated above, the following payment terms shall apply to services fees specifically for migrations: Tyler will invoice Client 50% of any Migration Fees listed above upon Client approval of the product suite migration schedule. The remaining 50%, by line item, will be billed upon the go-live of the applicable product suite. Tyler will invoice Client for any Project Management Fees listed above upon the go-live of the first product suite. Unless otherwise indicated on this Sales quotation, annual services will be invoiced in advance, for annual terms commencing on the date this sales quotation is signed by the Client. If listed annual service(s) is an addition to the same service presently existing under the Agreement, the first term of the added annual service will be prorated to expire coterminous with the existing annual term for the service, with renewals to occur as indicated in the Agreement. •Expenses associated with onsite services are invoiced as incurred. Tyler's quote contains estimates of the amount of services needed, based on our preliminary understanding of the scope, level of engagement, and timeline as defined in the Statement of Work (SOW) for your project. The actual amount of services required may vary, based on these factors. Exhibit 1 2022-310514-W4Y9J6 CONFIDENTIAL Page 5 Tyler's pricing is based on the scope of proposed products and services contracted from Tyler. Should portions of the scope of products or services be altered by the Client, Tyler reserves the right to adjust prices for the remaining scope accordingly. Unless otherwise noted, prices submitted in the quote do not include travel expenses incurred in accordance with Tyler's then-current Business Travel Policy. Tyler's prices do not include applicable local, city or federal sales, use excise, personal property or other similar taxes or duties, which you are responsible for determining and remitting. Installations are completed remotely but can be done onsite upon request at an additional cost. In the event Client cancels services less than two (2) weeks in advance, Client is liable to Tyler for (i) all non-refundable expenses incurred by Tyler on Client's behalf; and (ii) daily fees associated with the cancelled services if Tyler is unable to re-assign its personnel. The Implementation Hours included in this quote assume a work split effort of 70% Client and 30% Tyler. Implementation Hours are scheduled and delivered in four (4) or eight (8) hour increments. Tyler provides onsite training for a maximum of 12 people per class. In the event that more than 12 users wish to participate in a training class or more than one occurrence of a class is needed, Tyler will either provide additional days at then-current rates for training or Tyler will utilize a Train-the-Trainer approach whereby the client designated attendees of the initial training can thereafter train the remaining users. Each API Toolkit or Connector comes with 8 free hours of API Development Consulting hours. Each API Bundle comes with 16 free API Development Consulting hours. Additional hours can be purchased beyond this standard offering. Standard Project Management responsibilities include project plan creation, initial stakeholder presentation, bi-weekly status calls, updating of project plan task statuses, and go-live planning activities. Content Manager Conversion Service Definition: Tyler will generally convert relevant documents and useful data from a client's legacy system as a part of the Content Manager conversion/installation process. The Investment Summary contains an estimated cost for the project based on the assumptions below and our experience in performing similar successful conversions. The Client will be billed for actual conversion services provided by Tyler.Content management conversion service is for data and images stored in a standardized database. Our estimated cost for conversion allows a finite number of documents per data source. Clients are responsible for letting us know in advance how many data sources we are converting and the number of documents to prepare our estimated costs. Each individual source of data is a unique conversion and will be priced accordingly. Clients are responsible for extracting their legacy data and providing files for Content Manager conversions. Tyler can provide detailed conversion data specification documents to Client's technical staff.The Client must adhere to the rules as stated in the Content Manager conversion data and image specifications provided to the client at the Project Kickoff. Tyler Technologies will create the file that maps the data to the images. The Client is responsible for providing the definition for how it is mapped as well as ensuring that the above image requirements are met.The conversion services fees listed in the Investment Summary are based upon the following assumptions to your response and answers you provided to our Content Manager Conversion Questionnaire. - See answers on questionnaire exhibit. Exhibit 1 2022-310514-W4Y9J6 CONFIDENTIAL Page 6 Tyler Notify SaaS services will renew automatically for additional one (1) year terms at our then-current fee unless terminated in writing by either part at least thirty (30) days prior to the end of the then-current term. Unused minutes and texts expire at the end of each annual term. Utility Billing CIS includes the Graphing Agent. Utility billing library includes: standard Utility bill, standard UB receipt, standard UB delinquent notice, standard door hanger and standard final utility bill. Quote reflects one year of SaaS fees. Upon signing, Tyler will invoice to coincide with the current SaaS term. Exhibit 1 Exhibit 2 1 Exhibit 2 Statement of Work [REMAINDER OF PAGE INTENTIONALLY BLANK] City of Apache Junction SOW from Tyler Technologies, Inc. 6/8/2022 Presented to: City of Apache Junction 300 E Superstition Blvd Apache Junction, AZ 85119 Contact: Brian Bouchard Email: Brian.Bouchard@TylerTech.com One Tyler Drive, Yarmouth, ME 04096 Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | i Table of Contents PART 1: EXECUTIVE SUMMARY ............................................................................................................... 1 Project Overview ............................................................................................................................. 1 Introduction ........................................................................................................................................ 1 Project Goals ....................................................................................................................................... 1 Methodology ....................................................................................................................................... 1 PART 2: PROJECT FOUNDATION ............................................................................................................. 3 Project Governance ......................................................................................................................... 3 Project Scope Control ...................................................................................................................... 4 Managing Scope and Project Change ................................................................................................. 4 Change Control ................................................................................................................................... 4 Change Request Management ............................................................................................................ 4 Acceptance Process ......................................................................................................................... 6 Roles and Responsibilities ................................................................................................................ 6 Tyler Roles & Responsibilities ............................................................................................................. 6 Tyler Executive Manager ............................................................................................................. 7 Tyler Implementation Manager .................................................................................................. 7 Tyler Project Manager ................................................................................................................. 7 Tyler Implementation Consultant ............................................................................................... 8 Tyler Sales ................................................................................................................................... 8 Tyler Technical Services .............................................................................................................. 8 Tyler API Services ........................................................................................................................ 9 City of Apache Junction Roles & Responsibilities ............................................................................... 9 City of Apache Junction Executive Sponsor ................................................................................ 9 City of Apache Junction Steering Committee ............................................................................. 9 City of Apache Junction Project Manager ................................................................................. 10 City of Apache Junction Functional Leads ................................................................................. 11 City of Apache Junction Power Users ....................................................................................... 12 City of Apache Junction End Users ............................................................................................ 12 City of Apache Junction Technical Lead .................................................................................... 12 City of Apache Junction Change Management Lead ................................................................ 13 PART 3: PROJECT PLAN ........................................................................................................................... 14 Project Stages ................................................................................................................................. 14 Initiate and Plan ................................................................................................................................ 15 Initial Coordination ................................................................................................................... 15 Project/Phase Planning ............................................................................................................. 16 Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | ii Infrastructure Planning ............................................................................................................. 17 Stakeholder Meeting ................................................................................................................. 18 GIS Preparation ......................................................................................................................... 19 Control Point 1: Initiate & Plan Stage Acceptance .................................................................... 20 Assess & Define ................................................................................................................................. 21 Solution Orientation.................................................................................................................. 21 Current & Future State Analysis ................................................................................................ 21 Conversion Assessment ............................................................................................................ 23 Intentionally left blank. ............................................................................................................. 24 Intentionally left blank. ............................................................................................................. 24 Control Point 2: Assess & Define Stage Acceptance ................................................................. 24 Prepare Solution ............................................................................................................................... 24 Initial System Deployment ........................................................................................................ 24 Configuration ............................................................................................................................ 25 Process Refinement .................................................................................................................. 26 Conversion Delivery .................................................................................................................. 28 Intentionally left blank. ............................................................................................................. 30 Intentionally left blank. ............................................................................................................. 30 Control Point 3: Prepare Solution Stage Acceptance ................................................................ 30 Production Readiness ....................................................................................................................... 30 Solution Validation .................................................................................................................... 30 Go-Live Readiness ..................................................................................................................... 31 End User Training ...................................................................................................................... 32 Control Point 4: Production Readiness Stage Acceptance ........................................................ 33 Production ......................................................................................................................................... 34 Go-Live ...................................................................................................................................... 34 Transition to Client Services ...................................................................................................... 35 Post Go-Live Activities ............................................................................................................... 36 Control Point 5: Production Stage Acceptance ......................................................................... 37 Close .................................................................................................................................................. 37 Phase Closeout .......................................................................................................................... 38 Project Closeout ........................................................................................................................ 39 Control Point 6: Close Stage Acceptance .................................................................................. 40 General Assumptions ...................................................................................................................... 40 Project ............................................................................................................................................... 40 Organizational Change Management ............................................................................................... 40 Resources and Scheduling ................................................................................................................ 41 Data ................................................................................................................................................... 41 Facilities............................................................................................................................................. 42 Glossary ......................................................................................................................................... 43 PART 4: APPENDICES ............................................................................................................................... 46 Conversion ..................................................................................................................................... 46 Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | iii Enterprise ERP Conversion Summary ............................................................................................... 46 Utility Billing .............................................................................................................................. 46 Utility Billing –Backflow............................................................................................................. 46 Utility Billing –Balance Forward AR ........................................................................................... 46 Utility Billing –Consumption History ......................................................................................... 46 Utility Billing –Budget Billing ..................................................................................................... 46 Utility Billing –Assessments ...................................................................................................... 46 Utility Billing –Flat Inventory/Containers .................................................................................. 47 Utility Billing – Work Orders ..................................................................................................... 47 Utility Billing –Services .............................................................................................................. 47 Additional Appendices ................................................................................................................ 48 Enterprise ERP Standard 3rd Party Data Exchange & Application Programming Interfaces ............ 48 Planning ..................................................................................................................................... 48 Validation .................................................................................................................................. 49 Project Timeline .......................................................................................................................... 50 ERP Project Timeline ......................................................................................................................... 50 Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 1 Part 1: Executive Summary Project Overview Introduction Tyler Technologies (“Tyler”) is the largest and most established provider of integrated software and technology services focused solely on the public sector. Tyler’s end-to-end solutions empower public sector entities including local, state, provincial and federal government, to operate more efficiently and connect more transparently with their constituents and with each other. By connecting data and processes across disparate systems, Tyler’s solutions transform how clients gain actionable insights that solve problems in their communities. Project Goals This Statement of Work (“SOW”) documents the methodology, implementation stages, activities, and roles and responsibilities, and project scope listed in the Investment Summary of the Agreement between Tyler and the City of Apache Junction (collectively the “Project”). The overall goals of the project are to:  Successfully implement the contracted scope on time and on budget  Increase operational efficiencies and empower users to be more productive  Improve accessibility and responsiveness to external and internal customer needs  Overcome current challenges and meet future goals  Streamlining business processes through automation, integration, and workflows  Provide a user-friendly user interface to promote system use and productivity Methodology This is accomplished by the City of Apache Junction and Tyler working as a partnership and Tyler utilizing its depth of implementation experience. While each Project is unique, all will follow Tyler’s six-stage methodology. Each of the six stages is comprised of multiple work packages, and each work package includes a narrative description, objectives, tasks, inputs, outputs/deliverables, assumptions, and a responsibility matrix. Tailored specifically for Tyler’s public sector clients, the project methodology contains Stage Acceptance Control Points throughout each Phase to ensure adherence to scope, budget, timeline controls, effective communications, and quality standards. Clearly defined, the project methodology repeats consistently across Phases, and is scaled to meet the City of Apache Junction’s complexity and organizational needs. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 2 The methodology adapts to both single-phase and multiple-phase projects. To achieve Project success, it is imperative that both the City of Apache Junction and Tyler commit to including the necessary leadership and governance. During each stage of the Project, it is expected that the City of Apache Junction and Tyler Project teams work collaboratively to complete tasks. An underlying principle of Tyler’s Implementation process is to employ an iterative model where the City of Apache Junction’s business processes are assessed, configured, validated, and refined cyclically in line with the project budget. This approach is used in multiple stages and work packages as illustrated in the graphic below. The delivery approach is systematic, which reduces variability and mitigates risks to ensure Project success. As illustrated, some stages, along with work packages and tasks, are intended to be overlapping by nature to complete the Project efficiently and effectively. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 3 Part 2: Project Foundation Project Governance Project governance is the management framework within which Project decisions are made. The role of Project governance is to provide a decision-making approach that is logical, robust, and repeatable. This allows organizations to have a structured approach for conducting its daily business in addition to project related activities. This section outlines the resources required to meet the business needs, objectives, and priorities for the Project, communicate the goals to other Project participants, and provide support and guidance to accomplish these goals. Project governance defines the structure for escalation of issues and risks, Change Control review and authority, and Organizational Change Management activities. Throughout the Statement of Work Tyler has provided RACI Matrices for activities to be completed throughout the implementation which will further outline responsibilities of different roles in each stage. Further refinement of the governance structure, related processes, and specific roles and responsibilities occurs during the Initiate & Plan Stage. The chart below illustrates an overall team perspective where Tyler and the City of Apache Junction collaborate to resolve Project challenges according to defined escalation paths. If project managers do not possess authority to determine a solution, resolve an issue, or mitigate a risk, Tyler implementation management and the City of Apache Junction Steering Committee become the escalation points to triage responses prior to escalation to the City of Apache Junction and Tyler executive sponsors. As part of the escalation process, each Project governance tier presents recommendations and supporting information to facilitate knowledge transfer and issue resolution. The City of Apache Junction and Tyler executive sponsors serve as the final escalation point. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 4 Project Scope Control Managing Scope and Project Change Project Management governance principles contend that there are three connected constraints on a Project: budget, timeline, and scope. These constraints, known as the “triple constraints” or project management triangle, define budget in terms of financial cost, labor costs, and other resource costs. Scope is defined as the work performed to deliver a product, service or result with the specified features and functions, while time is simply defined as the schedule. The Triple Constraint theory states that if you change one side of the triangle, the other two sides must be correspondingly adjusted. For example, if the scope of the Project is increased, cost and time to complete will also need to increase. The Project and executive teams will need to remain cognizant of these constraints when making impactful decisions to the Project. A simple illustration of this triangle is included here, showing the connection of each item and their relational impact to the overall Scope. A pillar of any successful project is the ability to properly manage scope while allowing the appropriate level of flexibility to incorporate approved changes. Scope and changes within the project will be managed using the change control process outlined in the following section. Change Control It may become necessary to change the scope of this Project due to unforeseeable circumstances (e.g., new constraints or opportunities are discovered). This Project is being undertaken with the understanding that Project scope, schedule, and/or cost may need to change to produce optimal results for stakeholders. Changes to contractual requirements will follow the change control process specified in the final contract, and as described below. Change Request Management Should the need for a change to Project scope, schedule, and/or cost be identified during the Project, the change will be brought to the attention of the Steering Committee and an assessment of the change will occur. While such changes may result in additional costs and delays relative to the schedule, some changes may result in less cost to the City of Apache Junction; for example, the City of Apache Junction may decide it Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 5 no longer needs a deliverable originally defined in the Project. The Change Request will include the following information:  The nature of the change.  A good faith estimate of the additional cost or associated savings to the City of Apache Junction, if any.  The timetable for implementing the change.  The effect on and/or risk to the schedule, resource needs or resource responsibilities. The City of Apache Junction will use its good faith efforts to either approve or disapprove any Change Request within ten (10) Business Days (or other period as mutually agreeable between Tyler and the City of Apache Junction). Any changes to the Project scope, budget, or timeline must be documented and approved in writing using a Change Request form. These changes constitute a formal amendment to the Statement of Work and will supersede any conflicting term in the Statement of Work. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 6 Acceptance Process The implementation of a Project involves many decisions to be made throughout its lifecycle. Decisions will vary from higher level strategy decisions to smaller, detailed Project level decisions. It is critical to the success of the Project that each City of Apache Junction office or department designates specific individuals for making decisions on behalf of their offices or departments. Both Tyler and the City of Apache Junction will identify representative project managers. These individuals will represent the interests of all stakeholders and serve as the primary contacts between the two organizations. The coordination of gaining City of Apache Junction feedback and approval on Project deliverables will be critical to the success of the Project. The City of Apache Junction project manager will strive to gain deliverable and decision approvals from all authorized City of Apache Junction representatives. Given that the designated decision-maker for each department may not always be available, there must be a designated proxy for each decision point in the Project. Assignment of each proxy will be the responsibility of the leadership from each City of Apache Junction department. The proxies will be named individuals that have the authorization to make decisions on behalf of their department. The following process will be used for accepting Deliverables and Control Points:  The City of Apache Junction shall have five (5) business days from the date of delivery, or as otherwise mutually agreed upon by the parties in writing, to accept each Deliverable or Control Point. If the City of Apache Junction does not provide acceptance or acknowledgement within five (5) business days, or the otherwise agreed upon timeframe, not to be unreasonably withheld, Tyler deems the Deliverable or Control Point as accepted.  If the City of Apache Junction does not agree the Deliverable or Control Point meets requirements, the City of Apache Junction shall notify Tyler project manager(s), in writing, with reasoning within five (5) business days, or the otherwise agreed-upon timeframe, not to be unreasonably withheld, of receipt of the Deliverable.  Tyler shall address any deficiencies and redeliver the Deliverable or Control Point. The City of Apache Junction shall then have two (2) business days from receipt of the redelivered Deliverable or Control Point to accept or again submit written notification of reasons for rejecting the milestone. If the City of Apache Junction does not provide acceptance within two (2) business days, or the otherwise agreed upon timeframe, not to be unreasonably withheld, Tyler deems the Deliverable or Control Point as accepted. Roles and Responsibilities The following defines the roles and responsibilities of each Project resource for the City of Apache Junction and Tyler. Roles and responsibilities may not follow the organizational chart or position descriptions at the City of Apache Junction, but are roles defined within the Project. It is common for individual resources on both the Tyler and City of Apache Junction project teams to fill multiple roles. Similarly, it is common for some roles to be filled by multiple people. Tyler Roles & Responsibilities Tyler assigns a project manager prior to the start of each Phase of the Project (some Projects may only be one Phase in duration). Additional Tyler resources are assigned as the schedule develops and as needs arise. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 7 Tyler Executive Manager Tyler executive management has indirect involvement with the Project and is part of the Tyler escalation process. This team member offers additional support to the Project team and collaborates with other Tyler department managers as needed to escalate and facilitate implementation Project tasks and decisions.  Provides clear direction for Tyler staff on executing on the Project Deliverables to align with satisfying the City of Apache Junction ’s overall organizational strategy.  Authorizes required Project resources.  Resolves all decisions and/or issues not resolved at the implementation management level as part of the escalation process.  Acts as the counterpart to the City of Apache Junction ’s executive sponsor. Tyler Implementation Manager  Tyler implementation management has indirect involvement with the Project and is part of the Tyler escalation process. The Tyler project managers consult implementation management on issues and outstanding decisions critical to the Project. Implementation management works toward a solution with the Tyler Project Manager or with City of Apache Junction management as appropriate. Tyler executive management is the escalation point for any issues not resolved at this level.  Assigns Tyler Project personnel.  Provides support for the Project team.  Provides management support for the Project to ensure it is staffed appropriately and staff have necessary resources.  Monitors Project progress including progress towards agreed upon goals and objectives. Tyler Project Manager  The Tyler project manager(s) provides oversight of the Project, coordination of Tyler resources between departments, management of the Project budget and schedule, effective risk, and issue management, and is the primary point of contact for all Project related items. As requested by the City of Apache Junction, the Tyler Project Manager provides regular updates to the City of Apache Junction Steering Committee and other Tyler governance members. Tyler Project Manager’s role includes responsibilities in the following areas: Contract Management  Validates contract compliance throughout the Project.  Ensures Deliverables meet contract requirements.  Acts as primary point of contact for all contract and invoicing questions.  Prepares and presents contract milestone sign-offs for acceptance by the City of Apache Junction project manager(s).  Coordinates Change Requests, if needed, to ensure proper Scope and budgetary compliance. Planning  Delivers project planning documents.  Defines Project tasks and resource requirements.  Develops initial Project schedule and Project Management Plan. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 8  Collaborates with the City of Apache Junction project manager(s) to plan and schedule Project timelines to achieve on-time implementation. Implementation Management  Tightly manages Scope and budget of Project to ensure Scope changes and budget planned versus actual are transparent and handled effectively and efficiently.  Establishes and manages a schedule and Tyler resources that properly support the Project Schedule and are also in balance with Scope/budget.  Establishes risk/issue tracking/reporting process between the City of Apache Junction and Tyler and takes all necessary steps to proactively mitigate these items or communicate with transparency to the City of Apache Junction any items that may impact the outcomes of the Project.  Collaborates with the City of Apache Junction ’s project manager(s) to establish key business drivers and success indicators that will help to govern Project activities and key decisions to ensure a quality outcome of the project.  Collaborates with the City of Apache Junction ’s project manager(s) to set a routine communication plan that will aide all Project team members, of both the City of Apache Junction and Tyler, in understanding the goals, objectives, status, and health of the Project. Resource Management  Acts as liaison between Project team and Tyler manager(s).  Identifies and coordinates all Tyler resources across all applications, Phases, and activities including development, forms, installation, reports, implementation, and billing.  Provides direction and support to Project team.  Manages the appropriate assignment and timely completion of tasks as defined in the Project Schedule, task list, and Go-Live Checklist.  Assesses team performance and adjusts as necessary.  Consulted on in Scope 3rd party providers to align activities with ongoing Project tasks. Tyler Implementation Consultant  Completes tasks as assigned by the Tyler project manager(s).  Documents activities for services performed by Tyler.  Guides the City of Apache Junction through software validation process following configuration.  Assists during Go-Live process and provides support until the City of Apache Junction transitions to Client Services.  Facilitates training sessions and discussions with the City of Apache Junction and Tyler staff to ensure adequate discussion of the appropriate agenda topics during the allotted time.  May provide conversion review and error resolution assistance. Tyler Sales  Supports Sales to Implementation knowledge transfer during Initiate & Plan.  Provides historical information, as needed, throughout implementation.  Participates in pricing activities if additional licensing and/or services are needed. Tyler Technical Services  Maintains Tyler infrastructure requirements and design document(s).  Involved in system infrastructure planning/review(s). Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 9  Provides first installation of licensed software with initial database on servers.  Supports and assists the project team with technical/environmental issues/needs.  Deploys Tyler products.  Conducts GIS Planning.  Reviews GIS data and provides feedback to the City of Apache Junction.  Loads City of Apache Junction provided GIS data into the system. Tyler API Services  Provides training in the use of the API Toolkit.  Provides consulting services in the use of the API Toolkit to the City of Apache Junction, as the City of Apache Junction builds interfaces. City of Apache Junction Roles & Responsibilities City of Apache Junction resources will be assigned prior to the start of each Phase of the Project. One person may be assigned to multiple Project roles. City of Apache Junction Executive Sponsor The City of Apache Junction executive sponsor provides support to the Project by providing strategic direction and communicating key issues about the Project and its overall importance to the organization. When called upon, the executive sponsor also acts as the final authority on all escalated Project issues. The executive sponsor engages in the Project, as needed, to provide necessary support, oversight, guidance, and escalation, but does not participate in day-to-day Project activities. The executive sponsor empowers the City of Apache Junction steering committee, project manager(s), and functional leads to make critical business decisions for the City of Apache Junction.  Champions the project at the executive level to secure buy-in.  Authorizes required project resources.  Actively participates in organizational change communications. City of Apache Junction Steering Committee The City of Apache Junction steering committee understands and supports the cultural change necessary for the Project and fosters an appreciation for the Project’s value throughout the organization. The steering committee oversees the City of Apache Junction project manager and Project through participation in regular internal meetings. The City of Apache Junction steering committee remains updated on all Project progress, Project decisions, and achievement of Project milestones. The City of Apache Junction steering committee also serves as primary level of issue resolution for the Project.  Works to resolve all decisions and/or issues not resolved at the project manager level as part of the escalation process.  Attends all scheduled steering committee meetings.  Provides support for the project team.  Assists with communicating key project messages throughout the organization.  Prioritizes the project within the organization.  Ensures the project staffed appropriately and that staff have necessary resources.  Monitors project progress including progress towards agreed upon goals and objectives.  Has the authority to approve or deny changes impacting the following areas: Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 10 o Cost o Scope o Schedule o Project Goals o City of Apache Junction Policies o Needs of other client projects City of Apache Junction Project Manager The City of Apache Junction shall assign project manager(s) prior to the start of this project with overall responsibility and authority to make decisions related to Project Scope, scheduling, and task assignment. The City of Apache Junction Project Manager should communicate decisions and commitments to the Tyler project manager(s) in a timely and efficient manner. When the City of Apache Junction project manager(s) do not have the knowledge or authority to make decisions, he or she engages the necessary resources to participate in discussions and make decisions in a timely fashion to avoid Project delays. The City of Apache Junction project manager(s) are responsible for reporting to the City of Apache Junction steering committee and determining appropriate escalation points. Contract Management  Validates contract compliance throughout the project.  Ensures that invoicing and Deliverables meet contract requirements.  Acts as primary point of contact for all contract and invoicing questions. Collaborates on and approves Change Requests, if needed, to ensure proper scope and budgetary compliance. Planning  Reviews and accepts project planning documents.  Defines project tasks and resource requirements for the City of Apache Junction project team.  Collaborates in the development and approval of the project schedule.  Collaborates with Tyler project manager(s) to plan and schedule project timelines to achieve on-time implementation. Implementation Management  Tightly manages project budget and scope.  Collaborates with Tyler project manager(s) to establish a process and approval matrix to ensure that scope changes and budget (planned versus actual) are transparent and handled effectively and efficiently.  Collaborates with Tyler project manager to establish and manage a schedule and resource plan that properly supports the project schedule as a whole and is also in balance with scope and budget.  Collaborates with Tyler project manager(s) to establish risk and issue tracking and reporting process between the City of Apache Junction and Tyler and takes all necessary steps to proactively mitigate these items or communicate with transparency to Tyler any items that may impact the outcomes of the project.  Collaborates with Tyler project manager(s) to establish key business drivers and success indicators that will help to govern project activities and key decisions to ensure a quality outcome of the project.  Routinely communicates with both the City of Apache Junction staff and Tyler, aiding in the understanding of goals, objectives, current status, and health of the project by all team members. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 11  Manages the requirements gathering process and ensure timely and quality business requirements are being provided to Tyler. Resource Management  Acts as liaison between project team and stakeholders.  Identifies and coordinates all City of Apache Junction resources across all modules, phases, and activities including data conversions, forms design, hardware and software installation, reports building, and satisfying invoices.  Provides direction and support to project team.  Builds partnerships among the various stakeholders, negotiating authority to move the project forward.  Manages the appropriate assignment and timely completion of tasks as defined.  Assesses team performance and takes corrective action, if needed.  Provides guidance to City of Apache Junction technical teams to ensure appropriate response and collaboration with Tyler Technical Support Teams to ensure timely response and appropriate resolution.  Owns the relationship with in-Scope 3rd party providers and aligns activities with ongoing project tasks.  Ensures that users have appropriate access to Tyler project toolsets as required.  Conducts training on proper use of toolsets.  Validates completion of required assignments using toolsets. City of Apache Junction Functional Leads  Makes business process change decisions under time sensitive conditions.  Communicates existing business processes and procedures to Tyler consultants.  Assists in identifying business process changes that may require escalation.  Contributes business process expertise for Current & Future State Analysis.  Identifies and includes additional subject matter experts to participate in Current & Future State Analysis.  Validates that necessary skills have been retained by end users.  Provides End Users with dedicated time to complete required homework tasks.  Acts as an ambassador/champion of change for the new process and provide business process change support.  Identifies and communicates any additional training needs or scheduling conflicts to the City of Apache Junction project manager.  Actively participates in all aspects of the implementation, including, but not limited to, the following key activities: o Task completion o Stakeholder Meeting o Project Management Plan development o Schedule development o Maintenance and monitoring of risk register o Escalation of issues o Communication with Tyler project team o Coordination of City of Apache Junction resources o Attendance at scheduled sessions o Change management activities o Modification specification, demonstrations, testing and approval assistance Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 12 o Data analysis assistance o Decentralized end user training o Process testing o Solution Validation City of Apache Junction Power Users  Participate in project activities as required by the project team and project manager(s).  Provide subject matter expertise on the City of Apache Junction business processes and requirements.  Act as subject matter experts and attend Current & Future State Analysis sessions as needed.  Attend all scheduled training sessions.  Participate in all required post-training processes as needed throughout project.  Test all application configuration to ensure it satisfies business process requirements.  Become application experts.  Participate in Solution Validation.  Adopt and support changed procedures.  Complete all deliverables by the due dates defined in the project schedule.  Demonstrate competency with Tyler products processing prior to Go-live.  Provide knowledge transfer to the City of Apache Junction staff during and after implementation.  Participate in conversion review and validation. City of Apache Junction End Users  Attend all scheduled training sessions.  Become proficient in application functions related to job duties.  Adopt and utilize changed procedures.  Complete all deliverables by the due dates defined in the project schedule.  Utilize software to perform job functions at and beyond Go-live. City of Apache Junction Technical Lead  Coordinates updates and releases with Tyler as needed.  Coordinates the copying of source databases to training/testing databases as needed for training days.  Coordinates and adds new users, printers and other peripherals as needed.  Validates that all users understand log-on process and have necessary permission for all training sessions.  Coordinates interface development for City of Apache Junction third party interfaces.  Develops or assists in creating reports as needed.  Ensures on-site system meets specifications provided by Tyler.  Assists with software installation as needed.  Extracts and transmits conversion data and control reports from the City of Apache Junction’s legacy system per the conversion schedule set forth in the project schedule. City of Apache Junction GIS  Participates in GIS planning activities.  Responsible for management and maintenance of City of Apache Junction GIS infrastructure and data. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 13  Ensures GIS data/service endpoints are in alignment with Tyler software requirements.  Provides Tyler implementation team with GIS data/service access information. City of Apache Junction Upgrade Coordination  Becomes familiar with the software upgrade process and required steps.  Becomes familiar with Tyler’s releases and updates.  Utilizes Tyler resources to stay abreast of the latest Tyler releases and updates, as well as the latest helpful tools to manage the City of Apache Junction’s software upgrade process.  Assists with the software upgrade process during implementation.  Manages software upgrade activities post-implementation.  Manages software upgrade plan activities.  Coordinates software upgrade plan activities with City of Apache Junction and Tyler resources.  Communicates changes affecting users and department stakeholders.  Obtains department stakeholder acceptance to upgrade production environment. City of Apache Junction Change Management Lead  Validates that users receive timely and thorough communication regarding process changes.  Provides coaching to supervisors to prepare them to support users through the project changes.  Identifies the impact areas resulting from project activities and develops a plan to address them proactively.  Identifies areas of resistance and develops a plan to reinforce the change.  Monitors post-production performance and new process adherence. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 14 Part 3: Project Plan Project Stages Work Breakdown Structure The Work Breakdown Structure (WBS) is a hierarchical representation of a Project or Phase broken down into smaller, more manageable components. The top-level components are called “Stages” and the second level components are called “Work Packages”. The work packages, shown below each stage, contain the high-level work to be done. The detailed Project Schedule, developed during Project/Phase Planning and finalized during subsequent stages, lists the tasks to be completed within each work package. Each stage ends with a “Control Point”, confirming the work performed during that stage of the Project has been accepted by the City of Apache Junction. *Items noted with an asterisk in the graphic above relate to specific products and services. If those products and services are not included in the scope of the contract, these specific work packages will be noted as “Intentionally Left Blank” in Section 6 of the Statement of Work. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 15 Initiate and Plan The Initiate and Plan stage involves Project initiation, infrastructure, and planning. This stage creates a foundation for the Project by identifying and establishing sequence and timing for each Phase as well as verifying scope for the Project. This stage will be conducted at the onset of the Project, with a few unique items being repeated for the additional Phases as needed. Initial Coordination Prior to Project commencement, Tyler management assigns project manager(s). Additional Project resources will be assigned later in the Project as a Project schedule is developed. Tyler provides the City of Apache Junction with initial Project documents used to gather names of key personnel, their functional role as it pertains to the Project, as well as any blackout dates to consider for future planning. the City of Apache Junction gathers the information requested by the provided deadline ensuring preliminary planning and scheduling can be conducted moving the Project forward in a timely fashion. Internally, the Tyler Project Manager(s) coordinate with sales to ensure transfer of vital information from the sales process prior to scheduling a Project Planning Meeting with the City of Apache Junction’s team. During this step, Tyler will work with the City of Apache Junction to establish the date(s) for the Project and Phase Planning session. Objectives:  Formally launch the project.  Establish project governance.  Define and communicate governance for Tyler.  Identify City of Apache Junction project team. STAGE 1 Initial Coordination Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Tyler project team is assigned A R C I I I I I I City of Apache Junctionproject team is assigned A I R I I I Provide initial project documents to the City of Apache Junction A R C C I I Gather preliminary information requested I A R C C C C Sales to implementation knowledge transfer A R I I I I I Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 16 Create Project Portal to store project artifacts and facilitate communication A R I Inputs Contract documents Statement of Work Outputs/Deliverables Completed initial project documents Project portal Work package assumptions:  Project activities begin after the agreement has been fully executed. Project/Phase Planning Project and Phase planning provides an opportunity to review the contract, software, data conversions and services purchased, identify applications to implement in each Phase (if applicable), and discuss implementation timeframes. During this work package Tyler will work with the City of Apache Junction to coordinate and plan a formal Project planning meeting(s). This meeting signifies the start of the Project and should be attended by all City of Apache Junction Project team members and the Tyler Project Manager. The meeting provides an opportunity for Tyler to introduce its implementation methodology, terminology, and Project management best practices to the City of Apache Junction’s Project Team. This will also present an opportunity for project managers and Project sponsors to begin to discuss Project communication, metrics, status reporting and tools to be used to measure Project progress and manage change. Tyler will work with the City of Apache Junction Project Team to prepare and deliver the Project Management Plan as an output of the planning meeting. This plan will continue to evolve and grow as the Project progresses and will describe how the project will be executed, monitored, and controlled. During project planning, Tyler will introduce the tools that will be used throughout the implementation. Tyler will familiarize the City of Apache Junction with these tools during project planning and make them available for review and maintenance as applicable throughout the project. Some examples are Solution validation plan, issue log, and go-live checklist. STAGE 1 Project/Phase Planning Tyler City of Apache Junction Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 17 RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t Ma n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Schedule and conduct planning session(s) A R I C C I Develop Project Management Plan A R I C C I Develop initial project schedule A R I I I I I I C C I I C I Inputs Contract documents Statement of Work Guide to Starting Your Project Outputs / Deliverables Acceptance Criteria [only] for Deliverables Project Management Plan Delivery of document Project Operational Plan Delivery of document Initial Project Schedule City of Apache Junction provides acceptance of schedule based on resource availability, project budget, and goals. Work package assumptions:  City of Apache Junction has reviewed and completed the Guide to Starting Your Project document. Infrastructure Planning Procuring required hardware and setting it up properly is a critical part of a successful implementation. This task is especially important for Tyler-hosted/SaaS deployment models. Tyler will be responsible for building the environments for a hosted/SaaS deployment, unless otherwise identified in the Agreement. Tyler will install Licensed Software on application server(s) or train the City of Apache Junction to install License Software. The City of Apache Junction is responsible for the installation and setup of all peripheral devices. Objectives:  Ensure the City of Apache Junction’s infrastructure meets Tyler’s application requirements.  Ensure the City of Apache Junction’s infrastructure is scheduled to be in place and available for use on time. STAGE 1 Infrastructure Planning Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 18 Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s (Po w e r U s e r s) De p a r t m e n t H e a d s En d U s e r s Te ch n i c a l L e a d s Provide Infrastructure Requirements and Design Document A R C C I I Initial Infrastructure Meeting A R C C C C *Schedule SaaS Environment Availability A R C I *Schedule Hardware to be Available for Installation I I A R C Schedule Installation of All Licensed Software A R C I I Infrastructure Audit A R C I C Inputs 1. Initial Infrastructure Requirements and Design Document Outputs / Deliverables Acceptance Criteria [only] for Deliverables 1. Completed Infrastructure Requirements and Design Document Delivery of Document 2. Infrastructure Audit System Passes Audit Criteria Stakeholder Meeting Communication of the Project planning outcomes to the City of Apache Junction Project team, executives and other key stakeholders is vital to Project success. The Stakeholder meeting is a strategic activity to inform, engage, gain commitment, and instill confidence in the City of Apache Junction team. During the meeting, the goals and objectives of the Project will be reviewed along with detail on Project scope, implementation methodology, roles and responsibilities, Project timeline and schedule, and keys to Project success. Objectives:  Formally present and communicate the project activities and timeline.  Communicate project expectations. STAGE 1 Stakeholder Meeting Tyler City of Apache Junction Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 19 RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e Sp o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Create Stakeholder Meeting Presentation I A R I I I I C I Review Stakeholder Meeting Presentation I C A R C Perform Stakeholder Meeting Presentation I A R I I I I C I I I I I I Inputs Agreement SOW Project Management Plan Outputs / Deliverables Acceptance Criteria [only] for Deliverables Stakeholder Meeting Presentation Work package assumptions:  None GIS Preparation GIS data is a core part of many Tyler applications. Other City of Apache Junction offices/products may also use this data and have different GIS requirements. A key focus of this preparation will be the process for developing the GIS data for use with Tyler applications. This can be an iterative process, so it is important to begin preparation early. Objectives:  Identify all City of Apache Junction GIS data sources and formats.  Tyler to understand the City of Apache Junction’s GIS needs and practices.  Ensure the City of Apache Junction’s GIS data meets Tyler product requirements. STAGE 1 GIS Preparation Tyler City of Apache Junction Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 20 RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n Se r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Initial GIS Planning Meeting A R C C C Determine all GIS Data Sources I I A R C Provide Source GIS Data I I A R C Review GIS Data and Provide Feedback A R C I C Inputs GIS Requirements Document Outputs / Deliverables Acceptance Criteria [only] for Deliverables Production Ready Map Data Meets Tyler GIS Requirements. Work package assumptions:  GIS data provided to Tyler is accurate and complete.  GIS data provided to Tyler is current.  City of Apache Junction is responsible for maintaining the GIS data. Control Point 1: Initiate & Plan Stage Acceptance Acceptance criteria for this stage includes completion of all criteria listed below. Note: Advancement to the Assess & Define stage is not dependent upon Tyler’s receipt of this stage acceptance. Initiate & Plan Stage Deliverables:  Project Management Plan  Initial Project Schedule Initiate & Plan stage acceptance criteria:  All stage deliverables accepted based on acceptance criteria previously defined  Project governance defined  Project portal made available to the City of Apache Junction  Stakeholder meeting complete  GIS Data Production Ready  Completed Infrastructure Requirements and Design Document  System Passes Infrastructure Audit (as applicable) Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 21 Assess & Define The Assess & Define stage will provide an opportunity to gather information related to current City of Apache Junction business processes. This information will be used to identify and define business processes utilized with Tyler software. The City of Apache Junction collaborates with Tyler providing complete and accurate information to Tyler staff and assisting in analysis, understanding current workflows and business processes. Solution Orientation The Solution Orientation provides the Project stakeholders a high-level understanding of the solution functionality prior to beginning the current and future state analysis. The primary goal is to establish a foundation for upcoming conversations regarding the design and configuration of the solution. Tyler utilizes a variety of tools for the Solution Orientation, focusing on City of Apache Junction team knowledge transfer such as: eLearning, documentation, or walkthroughs. The City of Apache Junction team will gain a better understanding of the major processes and focus on data flow, the connection between configuration options and outcome, integration, and terminology that may be unique to Tyler’s solution. Objectives:  Provide a basic understanding of system functionality.  Prepare the City of Apache Junction for current and future state analysis. STAGE 2 Solution Orientation Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Provide pre-requisites A R I I I I I Complete pre-requisites A R C C Conduct orientation A R I I I I I Inputs Solution orientation materials Training Plan Current & Future State Analysis The Current & Future State Analysis provides the Project stakeholders and Tyler an understanding of process changes that will be achieved with the new system. The City of Apache Junction and Tyler will evaluate current state processes, options within the new software, pros and cons of each based on current or desired state and make decisions about the future state configuration and processing. This may occur before or within the same timeframe as the configuration work Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 22 package. The options within the new software will be limited to the scope of this implementation and will make use of standard Tyler functionality. The City of Apache Junction will adopt the existing Tyler solution wherever possible to avoid project schedule and quality risk from over customization of Tyler products. It is the City of Apache Junction’s responsibility to verify that in-scope requirements are being met throughout the implementation if functional requirements are defined as part of the contract. The following guidelines will be followed when evaluating if a modification to the product is required:  A reasonable business process change is available.  Functionality exists which satisfies the requirement.  Configuration of the application satisfies the requirement.  An in-scope modification satisfies the requirement. Requirements that are not met will follow the agreed upon change control process and can have impacts on the project schedule, scope, budget, and resource availability. STAGE 2 Current & Future State Analysis Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e ad s En d U s e r s Te c h n i c a l L e a d s Current State process review A R I I I C C C C C Discuss future-state options A R C C C C C C C C Make future-state decisions (non-COTS) C C C C C A R I C C Document anticipated configuration options required to support future state A R C C C I I I I I Inputs City of Apache Junctioncurrent state documentation Solution Orientation completion Outputs / Deliverables Acceptance Criteria [only] for Deliverables Documentation that describes future-state decisions and configuration options to support future-state decisions. Delivery of document Work package assumptions: Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 23  City of Apache Junction attendees possess sufficient knowledge and authority to make future state decisions.  The City of Apache Junction is responsible for any documentation of current state business processes.  The City of Apache Junction can effectively communicate current state processes. Conversion Assessment Data Conversions are a major effort in any software implementation. Tyler’s conversion tools facilitate the predictable, repeatable conversion process that is necessary to support a successful transition to the Tyler system. The first step in this process is to perform an assessment of the existing (“legacy”) system(s), to better understand the source data, risks, and options available. Once the data has been analyzed, the plan for data conversion is completed and communicated to the appropriate stakeholders. Objectives:  Communicate a common understanding of the project goals with respect to data.  Ensure complete and accurate source data is available for review/transfer.  Map the data from the source to the Tyler system.  Document the data conversion/loading approach. STAGE 2 Data Conversion Assessment Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e ad s En d U s e r s Te c h n i c a l L e a d s Extract Data from Source Systems I C A R Review and Scrub Source Data I I I A R C I Build/Update Data Conversion Plan R C C C I I I I Inputs City of Apache Junction Source data City of Apache Junction Source data Documentation (if available) Outputs / Deliverables Acceptance Criteria [only] for Deliverables Data Conversion Plan built/updated City of Apache Junction Acceptance of Data Conversion Plan, if Applicable Work package assumptions: Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 24  Tyler will be provided with data from the Legacy system(s) in a mutually agreed upon format.  Tyler will work with the City of Apache Junction representatives to identify business rules before writing the conversion.  City of Apache Junction subject matter experts and resources most familiar with the current data will be involved in the data conversion planning effort. Intentionally left blank. Intentionally left blank. Control Point 2: Assess & Define Stage Acceptance Acceptance criteria for this Stage includes completion of all criteria listed below. Note: Advancement to the Prepare Solution Stage is dependent upon Tyler’s receipt of the Stage Acceptance. Assess & Define Stage Deliverables:  Documentation of future state decisions and configuration options to support future state decisions.  Modification specification document.  Assess & Define Stage Acceptance Criteria:  All stage deliverables accepted based on criteria previously defined.  Solution Orientation is delivered.  Conversion data extracts are received by Tyler.  Data conversion plan built. Prepare Solution During the Prepare Solution stage, information gathered during the Initiate & Plan and Assess & Define stages will be used to install and configure the Tyler software solution. Software configuration will be validated by the City of Apache Junction against future state decisions defined in previous stages and processes refined as needed to ensure business requirements are met. Initial System Deployment The timely availability of the Tyler Solution is important to a successful Project implementation. The success and timeliness of subsequent work packages are contingent upon the initial system deployment of Tyler Licensed Software on an approved network and infrastructure. Delays in executing this work package can affect the project schedule. Objectives:  All licensed software is installed and operational.  The City of Apache Junction can access the software. STAGE 3 Initial System Deployment (Hosted/SaaS)* Tyler City of Apache Junction Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 25 RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Prepare hosted environment A R I C Install Licensed Software with Initial Database on Server(s) for Included Environments A R I C Install Licensed Software on City of Apache Junction Devices (if applicable) I C A R Tyler System Administration Training (if applicable) A R I C Outputs / Deliverables Acceptance Criteria [only] for Deliverables Licensed Software is Installed on the Server(s) Software is accessible Licensed Software is Installed on City of Apache Junction Devices (if applicable) Software is accessible Installation Checklist/System Document System Passes Infrastructure Design Document (C&J – If Applicable) Work package assumptions:  The most current available version of the Tyler Licensed Software will be installed.  The City of Apache Junction will provide network access for Tyler modules, printers, and Internet access to all applicable City of Apache Junction and Tyler Project staff. Configuration The purpose of Configuration is to prepare the software product for validation. Tyler staff collaborates with the City of Apache Junction to complete software configuration based on the outputs of the future state analysis performed during the Assess and Define Stage. The City of Apache Junction collaborates with Tyler staff iteratively to validate software configuration. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 26 Objectives:  Software is ready for validation.  Educate the City of Apache Junction Power User how to configure and maintain software.  Prepare standard interfaces for process validation (if applicable). STAGE 3 Configuration Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g Co m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Conduct configuration training A R I C C Complete Tyler configuration tasks (where applicable) A R I I I Complete City of Apache Junction configuration tasks (where applicable) I C A R C Standard interfaces configuration and training (if applicable) A R C I C C C Updates to Solution Validation testing plan C C A R C C Inputs Documentation that describes future state decisions and configuration options to support future state decisions. Outputs / Deliverables Acceptance Criteria [only] for Deliverables Configured System N/A Work package assumptions:  Tyler provides guidance for configuration options available within the Tyler software. The City of Apache Junction is responsible for making decisions when multiple options are available. Process Refinement Tyler will educate the City of Apache Junction users on how to execute processes in the system to prepare them for the validation of the software. The City of Apache Junction collaborates with Tyler staff iteratively to validate software configuration options to support future state. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 27 Objectives:  Ensure that the City of Apache Junction understands future state processes and how to execute the processes in the software.  Refine each process to meet the business requirements.  Validate standard interfaces, where applicable.  Validate forms and reports, where applicable. STAGE 3 Process Refinement Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Conduct process training A R I C I C Confirm process decisions I C A R C I C Test configuration I C A R C Refine configuration (City of Apache Junction Responsible) I C A R C Refine configuration (Tyler Responsible) A R I I I Validate interface process and results I C C A R C C Update City of Apache Junction- specific process documentation (if applicable) I C A R C Updates to Solution Validation testing plan C C A R C C Inputs Initial Configuration Documentation that describes future state decisions and configuration options to support future state decisions. Solution validation test plan Outputs / Deliverables Acceptance Criteria [only] for Deliverables Updated solution validation test plan Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 28 Completed City of Apache Junction-specific process documentation (completed by City of Apache Junction) Work package assumptions:  None Conversion Delivery The purpose of this task is to transition the City of Apache Junction’s data from their source (“legacy”) system(s) to the Tyler system(s). The data will need to be mapped from the legacy system into the new Tyler system format. A well-executed data conversion is key to a successful cutover to the new system(s). With guidance from Tyler, the City of Apache Junction will review specific data elements within the system and identify / report discrepancies. Iteratively, Tyler will collaborate with the City of Apache Junction to address conversion discrepancies. This process will allow for clean, reconciled data to transfer from the source system(s) to the Tyler system(s). Reference Conversion Appendix for additional detail. Objectives:  Data is ready for production (Conversion). STAGE 3 Data Delivery & Conversion Tyler City of Apache Junction Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 29 RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t Se r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Provide data crosswalks/code mapping tool A C R I I I Populate data crosswalks/code mapping tool I C C A R C Iterations: Conversion Development A C R I I Iterations: Deliver converted data A R I I I Iterations: Proof/Review data and reconcile to source system C C C A R C C Inputs Data Conversion Plan Configuration Outputs / Deliverables Acceptance Criteria [only] for Deliverables Code Mapping Complete / Validated N/A Conversion Iterations / Reviews Complete Conversion complete, verified, and ready for final pass Work package assumptions:  The City of Apache Junction will provide a single file layout per source system as identified in the investment summary.  The City of Apache Junction subject matter experts and resources most familiar with the current data will be involved in the data conversion effort.  The City of Apache Junction project team will be responsible for completing the code mapping activity, with assistance from Tyler. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 30 Intentionally left blank. Intentionally left blank. Control Point 3: Prepare Solution Stage Acceptance Acceptance criteria for this Stage includes all criteria listed below in each Work Package. Note: Advancement to the Production Readiness Stage is dependent upon Tyler’s receipt of the Stage Acceptance. Prepare Solution Stage Deliverables:  Licensed software is installed.  Installation checklist/system document.  Conversion iterations and reviews complete. Prepare Solution Stage Acceptance Criteria:  All stage deliverables accepted based on criteria previously defined.  Software is configured.  Solution validation test plan has been reviewed and updated if needed. Production Readiness Activities in the Production Readiness stage will prepare the City of Apache Junction team for go-live through solution validation, the development of a detailed go-live plan and end user training. A readiness assessment will be conducted with the City of Apache Junction to review the status of the project and the organizations readiness for go-live. Solution Validation Solution Validation is the end-to-end software testing activity to ensure that the City of Apache Junction verifies all aspects of the Project (hardware, configuration, business processes, etc.) are functioning properly, and validates that all features and functions per the contract have been deployed for system use. Objectives:  Validate that the solution performs as indicated in the solution validation plan.  Ensure the City of Apache Junction organization is ready to move forward with go-live and training (if applicable). STAGE 4 Solution Validation Tyler City of Apache Junction Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 31 RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d Us e r s Te c h n i c a l L e a d s Update Solution Validation plan A R C C C C Update test scripts (as applicable) C C C A R C Perform testing C C C A R C Document issues from testing C C C A R C Perform required follow- up on issues A R C C C C Inputs Solution Validation plan Completed work product from prior stages (configuration, business process, etc.) Outputs / Deliverables Acceptance Criteria [only] for Deliverables Solution Validation Report City of Apache Junction updates report with testing results Work package assumptions:  Designated testing environment has been established.  Testing includes current phase activities or deliverables only. Go-Live Readiness Tyler and the City of Apache Junction will ensure that all requirements defined in Project planning have been completed and the Go-Live event can occur, as planned. A go-live readiness assessment will be completed identifying risks or actions items to be addressed to ensure the City of Apache Junction has considered its ability to successfully Go-Live. Issues and concerns will be discussed, and mitigation options documented. Tyler and the City of Apache Junction will jointly agree to move forward with transition to production. Expectations for final preparation and critical dates for the weeks leading into and during the Go-Live week will be planned in detail and communicated to Project teams. Objectives:  Action plan for go-live established.  Assess go-live readiness.  Stakeholders informed of go-live activities. STAGE 4 Go-Live Readiness Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 32 Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te ch n i c a l L e a d s Perform Readiness Assessment I A R C C I C I I I I I I Conduct Go-Live planning session A R C C C C C C C Order peripheral hardware (if applicable) I A R C Confirm procedures for Go-Live issue reporting & resolution A R I I I I C C I I I I I Develop Go-Live checklist A R C C C C I C C Final system infrastructure review (where applicable) A R C C Inputs Future state decisions Go-live checklist Outputs / Deliverables Acceptance Criteria [only] for Deliverables Updated go-live checklist Updated Action plan and Checklist for go-live delivered to the City of Apache Junction Work package assumptions:  None End User Training End User Training is a critical part of any successful software implementation. Using a training plan previously reviewed and approved, the Project team will organize and initiate the training activities. Train the Trainer: Tyler provides one occurrence of each scheduled training or implementation topic. City of Apache Junction users who attended the Tyler sessions may train additional users. Additional Tyler led sessions may be contracted at the applicable rates for training. Tyler will provide standard application documentation for the general use of the software. It is not Tyler’s responsibility to develop City of Apache Junction specific business process documentation. City of Apache Junction-led training labs using City of Apache Junction specific business process documentation if created by the City of Apache Junction can be added to the regular training curriculum, enhancing the training experiences of the end users. Objectives: Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 33  End users are trained on how to use the software prior to go-live.  The City of Apache Junction is prepared for on-going training and support of the application. STAGE 4 End User Training Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M at t e r E x p e r t s ( P o w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Update training plan A R C C I C End User training (Tyler- led) A R C C C I C C C Train-the-trainer A R C C C I C End User training (City of Apache Junction-led) C C A R I C C C Inputs Training Plan List of End Users and their Roles / Job Duties Configured Tyler System Outputs / Deliverables Acceptance Criteria [only] for Deliverables End User Training City of Apache Junction signoff that training was delivered Work package assumptions:  The City of Apache Junction project team will work with Tyler to jointly develop a training curriculum that identifies the size, makeup, and subject-area of each of the training classes.  Tyler will work with the City of Apache Junction as much as possible to provide end-user training in a manner that minimizes the impact to the daily operations of City of Apache Junction departments.  The City of Apache Junction will be responsible for training new users after go-live (exception— previously planned or regular training offerings by Tyler). Control Point 4: Production Readiness Stage Acceptance Acceptance criteria for this stage includes all criteria listed below. Advancement to the Production stage is dependent upon Tyler’s receipt of the stage acceptance. Production Readiness stage deliverables:  Solution Validation Report.  Update go-live action plan and checklist.  End user training. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 34 Production Readiness stage acceptance criteria:  All stage deliverables accepted based on criteria previously defined.  Go-Live planning session conducted. Production Following end user training the production system will be fully enabled and made ready for daily operational use as of the scheduled date. Tyler and the City of Apache Junction will follow the comprehensive action plan laid out during Go-Live Readiness to support go-live activities and minimize risk to the Project during go-live. Following go-live, Tyler will work with the City of Apache Junction to verify that implementation work is concluded, post go-live activities are scheduled, and the transition to Client Services is complete for long-term operations and maintenance of the Tyler software. Go-Live Following the action plan for Go-Live, defined in the Production Readiness stage, the City of Apache Junction and Tyler will complete work assigned to prepare for Go-Live. The City of Apache Junction provides final data extract and Reports from the Legacy System for data conversion and Tyler executes final conversion iteration, if applicable. If defined in the action plan, the City of Apache Junction manually enters any data added to the Legacy System after final data extract into the Tyler system. Tyler staff collaborates with the City of Apache Junction during Go-Live activities. The City of Apache Junction transitions to Tyler software for day-to day business processing. Some training topics are better addressed following Go-Live when additional data is available in the system or based on timing of applicable business processes and will be scheduled following Go-Live per the Project Schedule. Objectives:  Execute day to day processing in Tyler software.  City of Apache Junction data available in Production environment. STAGE 5 Go-Live Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e Ma n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Provide final source data extract, if applicable C C A R Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 35 Final source data pushed into production environment, if applicable A C R I C C C Proof final converted data, if applicable C C C A R C Complete Go-Live activities as defined in the Go-Live action plan C C C A R C I C Provide Go-Live assistance A R C C I C C I C I C Inputs Comprehensive Action Plan for Go-Live Final source data (if applicable) Outputs / Deliverables Acceptance Criteria [only] for Deliverables Data is available in production environment City of Apache Junction confirms data is available in production environment Work package assumptions:  The City of Apache Junction will complete activities documented in the action plan for Go-Live as scheduled.  External stakeholders will be available to assist in supporting the interfaces associated with the Go- Live live process.  The City of Apache Junction business processes required for Go-Live are fully documented and tested.  The City of Apache Junction Project team and subject matter experts are the primary point of contact for the end users when reporting issues during Go-Live.  The City of Apache Junction Project Team and Power User’s provide business process context to the end users during Go-Live.  The Tyler Go-Live support team is available to consult with the City of Apache Junction teams as necessary.  The Tyler Go-Live support team provides standard functionality responses, which may not be tailored to the local business processes. Transition to Client Services This work package signals the conclusion of implementation activities for the Phase or Project with the exception of agreed-upon post Go-Live activities. The Tyler project manager(s) schedules a formal transition of the City of Apache Junction onto the Tyler Client Services team, who provides the City of Apache Junction with assistance following Go-Live, officially transitioning the City of Apache Junction to operations and maintenance. Objectives:  Ensure no critical issues remain for the project teams to resolve.  Confirm proper knowledge transfer to the City of Apache Junction teams for key processes and subject areas. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 36 STAGE 5 Transition to Client Services Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t io n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Transfer City of Apache Junction to Client Services and review issue reporting and resolution processes I I A I I R I I C C C Review long term maintenance and continuous improvement A R C C C Inputs Open item/issues List Outputs / Deliverables Acceptance Criteria [only] for Deliverables Client Services Support Document Work package assumptions:  No material project issues remain without assignment and plan. Post Go-Live Activities Some implementation activities are provided post-production due to the timing of business processes, the requirement of actual production data to complete the activities, or the requirement of the system being used in a live production state. Objectives:  Schedule activities that are planned for after Go-Live.  Ensure issues have been resolved or are planned for resolution before phase or project close. STAGE 5 Post Go-Live Activities Tyler City of Apache Junction Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 37 RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Schedule contracted activities that are planned for delivery after go-live A R C C C C I C C I C C Determine resolution plan in preparation for phase or project close out A R C C C I C C I C Inputs List of post Go-Live activities Outputs / Deliverables Acceptance Criteria [only] for Deliverables Updated issues log Work package assumptions:  System is being used in a live production state. Control Point 5: Production Stage Acceptance Acceptance criteria for this Stage includes completion of all criteria listed below:  Advancement to the Close stage is not dependent upon Tyler’s receipt of this Stage Acceptance.  Converted data is available in production environment. Production Stage Acceptance Criteria:  All stage deliverables accepted based on criteria previously defined.  Go-Live activities defined in the Go-Live action plan completed.  Client services support document is provided. Close The Close stage signifies full implementation of all products purchased and encompassed in the Phase or Project. The City of Apache Junction transitions to the next cycle of their relationship with Tyler (next Phase of implementation or long-term relationship with Tyler Client Services). Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 38 Phase Closeout This work package represents Phase completion and signals the conclusion of implementation activities for the Phase. The Tyler Client Services team will assume ongoing support of the City of Apache Junction for systems implemented in the Phase. Objectives:  Agreement from Tyler and the City of Apache Junction teams that activities within this phase are complete. STAGE 6 Phase Close Out Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e Ma n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Reconcile project budget and status of contract Deliverables I A R I I C Hold post phase review meeting A R C C C C C C C C C Release phase- dependent Tyler project resources A R I I Participants Tyler City of Apache Junction Project Leadership Project Manager Project Manager Project Sponsor(s) Implementation Consultants Functional Leads, Power Users, Technical Leads Technical Consultants (Conversion, Deployment, Development) Client Services Inputs Contract Statement of Work Project artifacts Outputs / Deliverables Acceptance Criteria [only] for Deliverables Final action plan (for outstanding items) Reconciliation Report Post Phase Review Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 39 Work package assumptions:  Tyler deliverables for the phase have been completed. Project Closeout Completion of this work package signifies final acceptance and formal closing of the Project. At this time the City of Apache Junction may choose to begin working with Client Services to look at continuous improvement Projects, building on the completed solution. Objectives:  Confirm no critical issues remain for the project teams to resolve.  Determine proper knowledge transfer to the City of Apache Junction teams for key processes and subject areas has occurred.  Verify all deliverables included in the Agreement are delivered. STAGE 6 Project Close Out Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( Po w e r Us e r s) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Conduct post project review A R C C C C C C C C C Deliver post project report to City of Apache Junction and Tyler leadership I A R I I C Release Tyler project resources A R I I Inputs Contract Statement of Work Outputs / Deliverables Acceptance Criteria [only] for Deliverables Post Project Report City of Apache Junction acceptance; Completed report indicating all project Deliverables and milestones have been completed Work package assumptions: Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 40  All project implementation activities have been completed and approved.  No critical project issues remain that have not been documented and assigned.  Final project budget has been reconciled and invoiced.  All Tyler deliverables have been completed. Control Point 6: Close Stage Acceptance Acceptance criteria for this Stage includes completion of all criteria listed below. Close Stage Deliverables:  Post Project Report. Close Stage Acceptance Criteria:  Completed report indicating all Project deliverables and milestones have been completed. General Assumptions Tyler and the City of Apache Junction will use this SOW as a guide for managing the implementation of the Tyler Project as provided and described in the Agreement. There are a few assumptions which, when acknowledged and adhered to, will support a successful implementation. Assumptions related to specific work packages are documented throughout the SOW. Included here are general assumptions which should be considered throughout the overall implementation process. Project  Project activities will begin after the Agreement has been fully executed.  The City of Apache Junction Project Team will complete their necessary assignments in a mutually agreed upon timeframe to meet the scheduled go-live date, as outlined in the Project Schedule.  Sessions will be scheduled and conducted at a mutually agreeable time.  Additional services, software modules and modifications not described in the SOW or Agreement will be considered a change to this Project and will require a Change Request Form as previously referenced in the definition of the Change Control Process.  Tyler will provide a written agenda and notice of any prerequisites to the City of Apache Junction project manager(s) ten (10) business days or as otherwise mutually agreed upon time frame prior to any scheduled on-site or remote sessions, as applicable.  Tyler will provide guidance for configuration and processing options available within the Tyler software. If multiple options are presented by Tyler, the City of Apache Junction is responsible for making decisions based on the options available.  Implementation of new software may require changes to existing processes, both business and technical, requiring the City of Apache Junction to make process changes.  The City of Apache Junction is responsible for defining, documenting, and implementing their policies that result from any business process changes. Organizational Change Management Unless otherwise contracted by Tyler, City of Apache Junction is responsible for managing Organizational Change. Impacted City of Apache Junction resources will need consistent coaching and reassurance from their leadership team to embrace and accept the changes being imposed by the move to new software. An Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 41 important part of change is ensuring that impacted City of Apache Junction resources understand the value of the change, and why they are being asked to change. Resources and Scheduling  City of Apache Junction resources will participate in scheduled activities as assigned in the Project Schedule.  The City of Apache Junction team will complete prerequisites prior to applicable scheduled activities. Failure to do so may affect the schedule.  Tyler and the City of Apache Junction will provide resources to support the efforts to complete the Project as scheduled and within the constraints of the Project budget.  Abbreviated timelines and overlapped Phases require sufficient resources to complete all required work as scheduled.  Changes to the Project Schedule, availability of resources or changes in Scope will be requested through a Change Request. Impacts to the triple constraints (scope, budget, and schedule) will be assessed and documented as part of the change control process.  The City of Apache Junction will ensure assigned resources will follow the change control process and possess the required business knowledge to complete their assigned tasks successfully. Should there be a change in resources, the replacement resource should have a comparable level of availability, change control process buy-in, and knowledge.  The City of Apache Junction makes timely Project related decisions to achieve scheduled due dates on tasks and prepare for subsequent training sessions. Failure to do so may affect the schedule, as each analysis and implementation session is dependent on the decisions made in prior sessions.  The City of Apache Junction will respond to information requests in a comprehensive and timely manner, in accordance with the Project Schedule.  The City of Apache Junction will provide adequate meeting space or facilities, including appropriate system connectivity, to the project teams including Tyler team members.  For on-site visits, Tyler will identify a travel schedule that balances the needs of the project and the employee. Data  Data will be converted as provided and Tyler will not create data that does not exist.  The City of Apache Junction is responsible for the quality of legacy data and for cleaning or scrubbing erroneous legacy data.  Tyler will work closely with the City of Apache Junction representatives to identify business rules before writing the conversion. The City of Apache Junction must confirm that all known data mapping from source to target have been identified and documented before Tyler writes the conversion.  All in-scope source data is in data extract(s).  Each legacy system data file submitted for conversion includes all associated records in a single approved file layout.  The City of Apache Junction will provide the legacy system data extract in the same format for each iteration unless changes are mutually agreed upon in advance. If not, negative impacts to the schedule, budget and resource availability may occur and/or data in the new system may be incorrect.  The City of Apache Junction Project Team is responsible for reviewing the converted data and reporting issues during each iteration, with assistance from Tyler.  The City of Apache Junction is responsible for providing or entering test data (e.g., data for training, testing interfaces, etc.) Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 42 Facilities  The City of Apache Junction will provide dedicated space for Tyler staff to work with City of Apache Junction resources for both on-site and remote sessions. If Phases overlap, City of Apache Junction will provide multiple training facilities to allow for independent sessions scheduling without conflict.  The City of Apache Junction will provide staff with a location to practice what they have learned without distraction. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 43 Glossary Word or Term Definition Acceptance Confirming that the output or deliverable is suitable and conforms to the agreed upon criteria. Accountable The one who ultimately ensures a task or deliverable is completed; the one who ensures the prerequisites of the task are met and who delegates the work to those responsible. [Also see RACI] Application A computer program designed to perform a group of coordinated functions, tasks, or activities for the benefit of the user. Application Programming Interface (API) A defined set of tools/methods to pass data to and received data from Tyler software products Agreement This executed legal contract that defines the products and services to be implemented or performed. Business Process The practices, policy, procedure, guidelines, or functionality that the client uses to complete a specific job function. Business Requirements Document A specification document used to describe Client requirements for contracted software modifications. Change Request A form used as part of the Change Control process whereby changes in the scope of work, timeline, resources, and/or budget are documented and agreed upon by participating parties. Change Management Guides how we prepare, equip and support individuals to successfully adopt change in order to drive organizational success & outcomes Code Mapping [where applicable] An activity that occurs during the data conversion process whereby users equate data (field level) values from the old system to the values available in the new system. These may be one to one or many to one. Example: Old System [Field = eye color] [values = BL, Blu, Blue] maps to New Tyler System [Field = Eye Color] [value = Blue]. Consulted Those whose opinions are sought, typically subject matter experts, and with whom there is two-way communication. [Also see RACI] Control Point This activity occurs at the end of each stage and serves as a formal and intentional opportunity to review stage deliverables and required acceptance criteria for the stage have been met. Data Mapping [where applicable] The activity determining and documenting where data from the legacy system will be placed in the new system; this typically involves prior data analysis to understand how the data is currently used in the legacy system and how it will be used in the new system. Deliverable A verifiable document or service produced as part of the Project, as defined in the work packages. Go-Live The point in time when the Client is using the Tyler software to conduct daily operations in Production. Informed Those who are kept up-to-date on progress, often only on completion of the task or deliverable, and with whom there is just one-way communication. [Also see RACI] Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 44 Infrastructure The composite hardware, network resources and services required for the existence, operation, and management of the Tyler software. Interface A connection to and potential exchange of data with an external system or application. Interfaces may be one way, with data leaving the Tyler system to another system or data entering Tyler from another system, or they may be bi-directional with data both leaving and entering Tyler and another system. Integration A standard exchange or sharing of common data within the Tyler system or between Tyler applications Legacy System The software from which a client is converting. Modification Custom enhancement of Tyler’s existing software to provide features or functions to meet individual client requirements documented within the scope of the Agreement. On-site Indicates the work location is at one or more of the client’s physical office or work environments. Organizational Change The process of changing an organization's strategies, processes, procedures, technologies, and culture, as well as the effect of such changes on the organization. Output A product, result or service generated by a process. Peripheral devices An auxiliary device that connects to and works with the computer in some way. Some examples: scanner, digital camera, printer. Phase A portion of the Project in which specific set of related applications are typically implemented. Phases each have an independent start, Go-Live and closure dates but use the same Implementation Plans as other Phases of the Project. Phases may overlap or be sequential and may have different Tyler resources assigned. Project The delivery of the software and services per the agreement and the Statement of Work. A Project may be broken down into multiple Phases. RACI A matrix describing the level of participation by various roles in completing tasks or Deliverables for a Project or process. Individuals or groups are assigned one and only one of the following roles for a given task: Responsible (R), Accountable (A), Consulted (C), or Informed (I). Remote Indicates the work location is at one or more of Tyler’s physical offices or work environments. Responsible Those who ensure a task is completed, either by themselves or delegating to another resource. [Also see RACI] Scope Products and services that are included in the Agreement. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 45 Solution The implementation of the contracted software product(s) resulting in the connected system allowing users to meet Project goals and gain anticipated efficiencies. Stage The top-level components of the WBS. Each Stage is repeated for individual Phases of the Project. Standard Software functionality that is included in the base software (off- the-shelf) package; is not customized or modified. Statement of Work (SOW) Document which will provide supporting detail to the Agreement defining Project-specific activities, services, and Deliverables. System The collective group of software and hardware that is used by the organization to conduct business. Test Scripts The steps or sequence of steps that will be used to validate or confirm a piece of functionality, configuration, enhancement, or Use Case Scenario. Training Plan Document(s) that indicate how and when users of the system will be trained relevant to their role in the implementation or use of the system. Validation (or to validate) The process of testing and approving that a specific Deliverable, process, program, or product is working as expected. Work Breakdown Structure (WBS) A hierarchical representation of a Project or Phase broken down into smaller, more manageable components. Work Package A group of related tasks within a project. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 46 Part 4: Appendices Conversion Enterprise ERP Conversion Summary Utility Billing  Account Master data including previous and current customer owner information- address info, phone, fax, SSN number, FID number, account status, parcel number, location street, apartment, city, state, zip, book number, read sequence, account start and end date, EFT bank information Utility Billing –Backflow  Account information, backflow device information, backflow type, and backflow violations Utility Billing –Balance Forward AR  Account balance forward information converted as total amount due. If the City of Apache Junction’s business practices require current due and past due bills this can be broken into three balance forward bills (current balance due and up to two past due balance bills). These can be converted to one balance forward charge code or separate balance forward charge codes, and converted to the account/customer if the City of Apache Junction’s legacy data contains this information.  If late penalties will be applied in Enterprise ERP after the conversion, balance forward amounts must be converted by charge code Utility Billing –Consumption History  History of meter readings, usage, read dates, usage days, bill amounts, bill dates, read codes  Up to 5 years Utility Billing –Budget Billing  Converts information for budget average billing by account, customer and service. Legacy data must include: calculated budget amount by service; number of periods remaining until plan renews; budget plan balance/credit amount, broken out by service/customer; additional amortized amount by service. Utility Billing –Assessments  Assessments are improvement costs that are spread across to property owner  Utility Billing conversion option 4 (balance forward AR) must also be purchased in order to convert assessments Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 47 Utility Billing –Flat Inventory/Containers  Inventory for non-metered items tied to recurring service billing – flat rate is tied to inventory item(s)/item type(s) (vs consumption/usage). Trash/recycling containers, dumpsters, roll off containers, light poles, cable/internet equipment. Utility Billing – Work Orders  Work Orders data associated with accounts, including meter repairs, checks for leaky meter, reread a meter due to high reading Utility Billing –Services  Current service codes, service status, type, factor, condo units, bill cycle codes, , current deposits held on account including unpaid deposit amounts, winter usage, current meter(s) associated with service, meter readings( current and previous), meter usage (current and previous) and sales tax information. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 48 Additional Appendices Enterprise ERP Standard 3rd Party Data Exchange & Application Programming Interfaces Planning An Integration is a real-time or automated exchange of data between two systems. Standard Data Exchange tools are available to fulfill Integrations with external systems by allowing clients to get data in and out of the Tyler system. Data exchange tools can take the form of Imports and Exports, and Application Programming Interfaces (APIs)*. APIs may require additional licensing and may have some restrictions on use. Please refer to your licensing agreement for further information. Imports and Exports The City of Apache Junction and Tyler project manager(s) will work together to define/confirm which Imports and Exports are needed (if not outlined in the Agreement). Tyler will provide an Excel or ASCII file layouts for each Standard Data Exchange. APIs* Additional API licensing and data sharing agreements are required for integration with third-party applications. If APIs have been purchased, Tyler may provide integration assistance to understand API services and provide necessary support to complete the integration of Tyler software to the City of Apache Junction internal applications. Tyler will not provide any hands-on development unless expressly specified in the Agreement. It is Tyler’s responsibility to ensure the API services operate correctly. It is the Client’s responsibility to fulfill integrations using Tyler’s API services and ensure operation of the third party API services. STAGE 2 Current & Future State Analysis - Data Exchange Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n S e r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e Sp o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( S M E s ) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Review Standard or contracted Data Exchanges A R I I C C I C Define or confirm needed Data Exchanges I C C C A C C R Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 49 Validation Tyler provides training on Data Exchange(s) (for both Import and Export, and APIs*) and the City of Apache Junctiontests each Data Exchange. STAGE 3 Process Refinement – Data Exchange Validation Tyler City of Apache Junction RACI MATRIX KEY: R = Responsible A = Accountable C = Consulted I = Informed Ex e c u t i v e M a n a g e r Im p l e m e n t a t i o n M a n a g e r Pr o j e c t M a n a g e r Im p l e m e n t a t i o n C o n s u l t a n t Da t a E x p e r t s Mo d i f i c a t i o n Se r v i c e s Te c h n i c a l S e r v i c e s Cl i e n t S e r v i c e s Ex e c u t i v e S p o n s o r St e e r i n g C o m m i t t e e Pr o j e c t M a n a g e r Fu n c t i o n a l L e a d s Ch a n g e M a n a g e m e n t L e a d s Su b j e c t M a t t e r E x p e r t s ( S M E s ) De p a r t m e n t H e a d s En d U s e r s Te c h n i c a l L e a d s Train standard or contracted Data Exchange(s) processing in Tyler software A R I I C I I C Coordinate 3rd Party Data Exchange activities I I I I A C C R Test all Standard 3rd party Data Exchange(s) I I I I A C R C * API services, available thru Enterprise ERP OpenAPI Toolkits and Connectors, are not part of the core Enterprise ERP applications and are only applicable if included in the license agreement. Exhibit 2 City of Apache Junction Tyler Technologies, Inc. Page | 50 Project Timeline ERP Project Timeline The Project Timeline establishes a target start and end date for each Phase of the Project. The timeline needs to account for resource availability, business goals, size and complexity of the Project, and task duration requirements. These will be reviewed and adjusted, if needed, during the Initiate and Plan Stage. Refer to the Project Stages section of this SOW for information on work packages associated with each stage of the implementation. The following dates may be revised based on the date the Agreement is signed and further refined during the course of the project. Tyler requires up to forty-five (45) days to move from Agreement signing to the Initiate & Plan Stage. Exhibit 2 APACHE JUNCTION WATER DISTRICT 300 East Superstition Boulevard, Apache Junction, Arizona 85119 Mailing Address: P.O. Box 4768, Apache Junction, Arizona 85178-0014 Phone: (480) 982-6030 Fax: (480) 288-6623 DATE: JUNE 15, 2022 TO: HONORABLE MAYOR AND CITY COUNCILMEMBERS THROUGH: BRYANT POWELL, DISTRICT MANAGER FROM: MICHAEL LOGGINS, DISTRICT DIRECTOR SUBJECT: THIRD AMENDMENT TO LICENSE AGREEMENT WITH TYLER TECHNOLOGIES, LLC FOR MUNIS UTILITY BILLING SOFTWARE The Water Utilities Community Facilities District (WUCFD) in the City of Apache Junction has been researching utility billing software options to replace the current system in place, the AS400. The utility billing is the last remaining component of the city’s and water district’s financial software that remains with the AS400, which the city began migrating from in 2018 when they acquired the Munis Enterprise Resource Planning (ERP) system through Tyler Technologies, LLC. Currently Munis provides for the city and water district’s financials (accounts payable, accounts receivable, purchasing, vendors, contracts), human resources and payroll functions. The addition of the utility billing software will be the third phase of the Munis software project. WUCFD and city finance staff visited with three vendors (Tyler Technologies, Advanced Utility Billing and Caselle) to fully assess new utility billing software over the past three years. After careful review and thoughtful consideration WUCFD is recommending a transition to the Munis utility billing software through the city’s contract with Tyler Technologies. Staff feels the software will best accommodate the 4,500 customer billings it performs a month. The other most significant advantage is that this new utility billing software integrates with the city’s financial software as it will be under the same overarching ERP system. Other benefits include the integration with Geographical Information System (GIS) mapping data; work orders; ease in transfer of account ownership when residents move; and provides for a notification system via text, phone call or email for messaging regarding billing, shutoff notices, or water issues. Customers will still be able to pay their water utility bills through the internet, via phone or in-person. WUCFD will be using the city’s contract with Tyler Technologies, LLC as a vehicle for the procurement and implementation of the Munis utility billing software. The total cost for the implementation and one (1) year maintenance/support of the utility billing software is $143,228.00 plus 20% for contingencies in the amount of $28,645.60, for a total not to exceed $171,873.60. WUCFD will reimburse the city for these expenses. Thank you for your consideration. Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-379 Agenda Item No. 8. Agenda Date: 6/21/2022 Sponsor: Leslie DeReche In Control: City Council MeetingIndex: Consideration of approval of the City of Apache Junction's Public Safety Personnel Retirement System (PSPRS) Pension Funding Policy. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 City of Apache Junction Home of the Superstition Mountains DATE: JUNE 20, 2021 TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS THROUGH: MATT BUSBY, ASSISTANT CITY MANAGER FROM: LESLIE DERECHE, FINANCE DIRECTOR SUBJECT: PUBLIC SAFETY PERSONNEL RETIREMENT SYSTEM House Bill 2097 requires cities and towns to establish a Pension Funding Policy that will be adopted annually beginning on or before July 1, 2019. This funding policy will define how and when the City’s PSPRS payroll contributions and unfunded liability will be met. This will be the fourth year that Council has adopted this Pension Funding Policy. Staff recommends approval of this policy. City of Apache Junction Public Safety Personnel Retirement S ystem Pension Funding Policy The intent of this policy is to clearly communicate the Council’s pension funding objectives and its commitment to our employees and the sound financial management of the City and to comply with Arizona Revised Statutes Section 38-863.01. Public Safety Personnel Retirement System (PSPRS) PSPRS is administered as an agent multiple-employer pension plan. Each agency participating in the plan has an individual trust fund reflecting that agencies’ own funded ratio, contribution rate and annual actuarial valuation. The City’s police employees who are regularly assigned hazardous duty participate in the Public Safety Personnel Retirement System (PSPRS). Council formally accepts the assets, liabilities, and current funding ratio of the City’s PSPRS trust funds from the June 30, 2021, actuarial valuation, which are detailed below: Trust Fund Actuarial Valuation of Assets (AVA) Actuarial Accrued Liability (AAL) Unfunded Actuarial Accrued Liability (AAL-AVA) Funded Ratio (AVA/AAL) Apache Junction Police $18,061,688 $44,409,089 $26,346,401 40.7% PSPRS Funding Goal The City of Apache Junction plans on issuing pension obligation bonds in FY22/23 to bring the Unfunded Actuarial Liability to Zero in FY 2022-23. The estimated annual debt service will be approximately $2.5 million dollars through June 2038. Council established this goal for the following reasons: • The PSPRS trust funds represent only the City of Apache Junction’s liability • The fluctuating cost of an unfunded actuarial accrued liability (UAAL) causes strain on the City’s budget, affecting our ability to provide services • A fully funded pension is the best way to achieve taxpayer and member intergenerational equity Council has taken the following actions to achieve this goal: • Maintain annual required contribution (ARC) payment from operating revenues – Council is committed to maintaining the full ARC payment (normal cost and UAAL amortization) from operating funds. • Create and maintain a PSPRS Pension Liability reserve, equal to 10% of the outstanding debt service of the pension obligation bonds, to be used to maintain 100% funding of Actuarial Accrued Liability. • Dedicated revenue – The provisions of City Ordinance No. 1418 continued a tax rate effective September 2, 2016 of 0.2% to be used for mandatory payments to the Public Safety Personnel Retirement System and unfunded liability related to this system. This ordinance sunsets on September 1, 2026. Based on these pension funding policy decisions by Council, the City PSPRS plans are expected to maintain the goal of 100% funding. Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-384 Agenda Item No. 9. Agenda Date: 6/21/2022 Sponsor: Leslie DeReche In Control: City Council MeetingIndex: Consideration of approval of Resolution 22-24, City of Apache Junction Financial Policies , which establishes the framework for City of Apache Junction’s overall fiscal planning and management. The policies are reviewed annually to assure the highest standards of fiscal management. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 RESOLUTION NO. 22-24 PAGE 1 OF 2 RESOLUTION NO. 22-24 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, ADOPTING A CERTAIN POLICY DOCUMENT FILED WITH THE CITY CLERK AND ENTITLED ”FINANCIAL POLICIES.” WHEREAS, the City of Apache Junction (“City”) has a responsibility to ensure it handles public funds appropriately; and WHEREAS, written, adopted financial policies and internal controls are the best practice to promote sound financial management of the City and to assist council with the financial management of the City. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION ARIZONA, AS FOLLOWS: 1) That a certain policy document entitled “Financial Policies” attached hereto is hereby adopted. 2) That a certain policy document entitled “Financial Policies” as referenced above, three copies of which are on file in the office of the City Clerk, is hereby declared a public record and that said copies are ordered to remain on file with the City Clerk and are available for public use and inspection. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, THIS ____ DAY OF ________, 20__. SIGNED AND ATTESTED TO THIS ____ DAY OF ________, 20__. WALTER “CHIP” WILSON Mayor ATTEST: JENNIFER PENA RESOLUTION NO. 22-24 PAGE 2 OF 2 City Clerk APPROVED AS TO FORM: RICHARD J. STERN City Attorney City of Apache Junction Financial Policies Fiscal Year 2022/23 The following City financial policies establish the framework for City of Apache Junction’s overall fiscal planning and management. They set forth guidelines for both current activities and long-range planning. The policies are reviewed annually to assure the highest standards of fiscal management. The City Manager and the City Budget Committee have the primary role of reviewing financial actions and providing guidance to the City Council. The following policies will be affirmed and adopted per Council Resolution when the City Council adopts the final budget. The overall financial goals underlying these policies are: • Fiscal conservatism: To ensure that the City is at all times in a solid financial condition. This can be defined as: o Cash Solvency - the ability to pay bills. o Budgetary Solvency - the ability to balance the budget. o Long-run Solvency - the ability to pay future costs. o Service Level Solvency – the ability to provide needed and desired services • Flexibility: To ensure that the C is in a position to respond to changes in the economy or new service challenges without an undue amount of financial stress. • Adhering to the highest accounting and management practices as well as the financial reporting and budgeting standards established by the Government Finance Officers Association, by the Governmental Accounting Standards Board (GASB) and by other professional organizations. Operating • All departments will participate in the responsibility of meeting policy goals and ensuring long‐term financial health. Future service plans and program initiatives will be developed to reflect current policy directives, projected resources, and future service requirements. • Ongoing operating costs should be supported by ongoing, stable revenue sources as much as possible. Some corollaries to this policy are: o Fund balances should be used only for one-time expenditures, such as capital equipment and improvements or contingency accounts. o Ongoing maintenance costs should be financed through operating revenues rather than debt. o Fluctuating federal grants should not be used to finance ongoing programs. • Revenues from growth or development should be allocated to one-time costs as much as possible. • User fees and charges will be examined periodically, and changes will be approved by the City Council. • Comparison of service delivery will be made on a periodic basis to ensure that quality services are provided to citizens at the most competitive and economical cost. The review of service delivery alternatives will be performed on a periodic basis. • Addition of personnel will only be requested to meet program initiatives and policy directives; after service needs have been thoroughly examined and it is substantiated that additional staffing will result in increased net revenue or enhanced operating efficiencies. • Benefits and compensation will be administered in accordance with direction given by City Council. As part of a cost‐containment strategy, total costs for health insurance premiums will be shared between the employer and employees. Total premiums will be evaluated on an annual basis to ensure they are reasonable and competitive. Budget In accordance with Arizona state law, the City annually adopts a balanced budget. Arizona Revised Statute §42-17151 requires all estimated sources of revenue, and restricted and unrestricted unencumbered balances from the preceding fiscal year, shall equal the total of amounts proposed to be spent in the budget for the current fiscal year. The budget must include sufficient contingency appropriation provisions for expenditures related to revenues that cannot be accurately determined or anticipated when the budget is adopted. • The budget process weighs all competing requests for City resources, within expected fiscal constraints. • The budget shall be considered balanced if all sources of revenue, as estimated, are equal to, or exceed, the total of amounts proposed to be used in the operating budget for the current fiscal year, by fund. Investment • Cash and Investment programs will ensure that proper controls and safeguards are maintained. City funds will be managed in a prudent and diligent manner with an emphasis on safety of principal, liquidity, and financial return on principal, in that order. Capital Management 1. A five‐year Capital Improvement Plan (CIP) will be developed and updated annually, including anticipated spending as well as funding sources. 2. Proposed capital projects will be reviewed and prioritized by a cross‐divisional team regarding accurate costing (design, capital, and operating), prevention of existing infrastructure deterioration before the addition of new infrastructure and overall consistency with the City’s General Plan and City Council’s goals and objectives. 3. Future operating and maintenance costs associated with new capital improvements will be forecast and included in the Operating Budget. 4. Dedicated two tenths of percent (0.2%) privilege tax revenue for street improvements will be restricted to funding the planning, design, construction and acquisition costs associated with building, renovating, or enhancing capital projects for streets, highways, and traffic control. Debt Management • City Debt Service costs should not exceed five percent (5%) of the City’s current or future annual operating revenue in order to control fixed costs and ensure expenditure flexibility. Reserve Management • All fund designations and reserves will be evaluated annually for long‐term adequacy and use requirements. • The City will maintain an unreserved general fund balance of at least 20% of the budgeted operating expense if available. Financial Reporting • The City’s accounting and financial reporting systems will be maintained in conformance with all state and federal laws, generally accepted accounting principles (GAAP) and standards of the Governmental Accounting Standards Board (GASB). • Prior to the end of each fiscal year the City shall designate certified public accountants who, shall perform an independent audit of the City’s annual financial statements in accordance with generally accepted government auditing standards. The certified public accountants shall be independent of the City government, having no personal interest, direct or indirect, in the fiscal affairs of City government or any of its officers. The certified public accountants shall submit their reports to the Council. All such audit reports shall be a matter of public record. • Financial systems will maintain internal controls to monitor revenues and expenditures on an ongoing basis. Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-318 Agenda Item No. 10. Agenda Date: 6/21/2022 Sponsor: Liz Langenbach In Control: City Council MeetingIndex: Presentation of 25-year Service Award to Jamie Sullivan, of the Apache Junction Parks and Recreation Department. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-353 Agenda Item No. 11. Agenda Date: 6/21/2022 Sponsor: Bryant Powell In Control: City Council MeetingIndex: City Manager's Report. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-370 Agenda Item No. 12. Agenda Date: 6/21/2022 Sponsor: Bryant Powell In Control: City Council MeetingIndex: Presentation and discussion with Braden Biggs regarding the Apache Junction Centennial. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-352 Agenda Item No. 13. Agenda Date: 6/21/2022 Sponsor: Al Bravo In Control: City Council MeetingIndex: Announcement of current events. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-361 Agenda Item No. 14. Agenda Date: 7/5/2022 Sponsor: Jennifer Pena In Control: City Council MeetingIndex: Discussion and consideration for approval of Fiscal Year 2022-2023 Health and Human Services funding contracts between the City of Apache Junction and the Superstition Community Food Bank in the amount of $30,000, the Boys and Girls Club of the Valley in the amount of $11,580, the Genesis Project in the amount of $22,800, A New Leaf in the amount of $5,760, Apache Junction Community Development Corporation in the amount of $6,260 and the Salvation Army in the amount of $3,600. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026 AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND A NEW LEAF FOR HEALTH AND HUMAN SERVICES FOR FISCAL YEAR 2022-2023 THIS AGREEMENT is made and entered into this day of . 2022 by and between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation ("City"), and A NEW LEAF, a 501 (c) 3 non-profit organization, ("Services Provider"), under the City's human services program, collectively referred to as the "Parties" or individually as a "Party". RECITALS A. Pursuant to Apache Junction City Code, ("A.J.C.C.") Volume I, Chapter 2: Mayor, Council, and Appointed Boards and Commission, Article 2-11: Health and Human Services Commission, and Article 2-14: Requests for Financial Assistance, (See Exhibit A), the City may provide financial assistance to non- profit agencies which provide city residents, elderly, handicapped, developmentally disabled care and other public health needs. B. The Health and Human Services Commission ("the Commission") has reviewed requests for city funding as submitted by health and human services providers for fiscal year 2022-2023. C. The Commission has submitted its recommendations to the city council. D. On June 20, 2022, the city council passed and adopted the 2022-2023 fiscal year budget, which included funding for health and human services for specific health and human services providers. E. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (C)(1), (See Exhibit A) all city funds allocated or granted to any non-profit agency shall be by means of a written contract based on services and/or a program (the "Program")for the City to be in compliance with the provisions of state law relating to the use of public funds. F. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, subsection 2-14-1, Requests for Non-Profit Funding, subsection (C)(2), (See Exhibit A), all city funds allocated by the council shall only be released to the Services Provider in equal quarterly installments or quarterly payments based on a schedule of anticipated expenses, and no subsequent quarterly allocation shall be released to the Services Provider until such time the receiving agency has provided all required documentation for the previous quarter along with satisfactory evidence of compliance with the scope of work ("SOW") pursuant to this Agreement. 1 G. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (B), (See Exhibit A), the Services Provider must submit on a quarterly basis a detailed accounting of the performance and accomplishments within the SOW. AGREEMENT NOW, THEREFORE, in consideration of payment of public funds in exchange for health and human services to qualified recipients, both Parties agree to the terms and conditions set forth below as well as the Recitals set forth above: 1. SERVICES PROVIDER'S DUTIES: Services Provider agrees to perform the following SOW in connection with the Program: A. Provide to city residents the following: 1. Basic human needs through food distribution 2. Counseling Services for domestic violence victims 3. Create safety plans with clients 4. Various support services for domestic violence victims 5. Provide general and legal advocacy services 6. Provide resources of other support services and community resources B. Provide such programs and activities to residents of the city. C. Comply with all provisions of A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), and all other applicable city ordinances; submit contract proposal for fiscal year 2023-2024 to City on or before January 31, 2023. D. File with City all documentation for the previous quarter no later than the 15th day following the end of the quarter. City offices are open Monday through Thursday 7:00 a.m. to 6:00 p.m. City offices are closed Fridays, weekends and legal holidays. Quarter 1: July 1 thru September 30 Quarter 2: October 1 thru December 31 Quarter 3: January 1 thru March 31 Quarter 4: April 1 thru June 30 E. Submit to City typed or computer-generated quality reports; designate 2 one primary and one secondary person as coordinators for the record keeping and disbursement of funds; assign one primary and one secondary person who shall monitor compliance and review reports. Such persons shall be responsible for submitting accurate reports to the Commission staff liaison and provide the names, email, and telephone numbers of the primary and secondary contact persons immediately upon the signing of this Agreement. Changes to the primary or secondary person(s) shall be reported in writing to the Commission staff liaison within five (5) City working days following such change. F. All reports shall be sent by an approved electronic method either email or another form as identified by the commission, no other means shall be accepted. The Commission staff liaison will prescribe the format in which such reports shall be prepared and submitted. Any reports not prepared in accordance with this section shall be deemed rejected and shall constitute a breach of contract. A list of reporting requirements shall be noted in the format attached hereto (See Exhibit B). G. Funds are distributed on a reimbursable quarterly basis after the submittal of a quarterly report which outlines expenditures and activities completed as stipulated in the SOW and as confirmed by the City. Any funds disbursed by Services Provider in violation of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or this Agreement, shall be reimbursed to City. H. File the quarterly report and required documentation by the deadline set forth in § C above or risk disqualification for health and human services funding for fiscal year 2023-2024. Failure to file the quarterly report and required documentation by the deadlines set forth in § C above shall result in the immediate termination of this Agreement. I. Maintain a listing with the community information and referral service that supports Pinal County and the Apache Junction area during the Term of this Agreement. Services Provider shall also be represented at the Apache Junction Community Resource Center once monthly, during Project Connect events, and the annual Health and Wellness Expo. J. Services Provider's failure to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of this Agreement shall result in automatic termination of this Agreement. K. Any Services Provider staff responsible for the preparation of the required reports or requests for reimbursement shall be familiar with the terms and requirements of this Agreement in order to avoid processing errors. 3 2. COMPENSATION: In accordance with the terms and conditions of this Agreement, City shall compensate Services Provider for its services as follows: A. A total of$5,760 for fiscal year 2022-2023 for SOW performance. B. Compensation shall be in equal quarterly payments of$1,440. No quarterly payment shall be released until Services Provider has provided all the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the terms and conditions of this Agreement. The deadline for receipt of such documentation is set forth in § 1 (C) above, and failure to comply with this deadline shall result in forfeiture of claim to the funds and will result in automatic termination of the Agreement. C. In accordance with the recommendations of the Commission and its subsequent acceptance by the Apache Junction city council, should any of the agencies receiving fiscal year 2022-2023 human services funding be unable to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor• Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of their respective Agreement, any unused funds shall be retained in City's general fund. D. In accordance with the recommendations of the Commission, representatives of the Services Provider identified in § 1 (C) above shall attend a mandatory training meeting at a time, date, and location to be scheduled by the staff liaison to the Commission in order to review terms and reporting requirements of this Agreement. The Services Provider representatives shall be those individuals who are responsible for compiling the information and filing the required quarterly reports. Failure of attendance by these critical representatives shall result in automatic termination of this Agreement. 3. TERM: This Agreement shall be effective beginning July 1, 2022, through June 30, 2023. 4. SERVICES PROVIDER BILLING: Services Provider shall bill City in the manner specified in § 2 above. 5. CITY'S STANDARD OF PERFORMANCE: City shall furnish the Services Provider with all data, information and other supporting services as may be required. 6. SERVICES PROVIDER'S STANDARD OF PERFORMANCE: While performing the services, Services Provider shall exercise the reasonable professional care and skill customarily exercised by reputable members of Services Provider's profession practicing in the Phoenix Metropolitan Area and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. 4 Services Provider shall be responsible for all errors and omissions Services Provider commits in the performance of this Agreement. 7. NOTICES: All notices to the other party required under this Agreement shall be in writing and sent by first class certified mail, postage prepaid, return receipt requested, addressed to the following personnel: If to City: Jennifer Pena, City Clerk City of Apache Junction 300 E. Superstition Boulevard Apache Junction, AZ 85119 If to Services Provider: Michael Hughes, Agency Director A New Leaf 868 E. University Dr. Mesa, AZ 85203 8. TERMINATION: This Agreement may be terminated by either Party for any reason upon fifteen (15) calendar days written notice. In the event this Agreement is terminated for any reason prior to the completion of the full period of performance as stated herein, City shall be liable to Services Provider for those verifiable costs incurred by Services Provider which are in accordance with the original proposal, only up to the date of such termination and not thereafter. 9. SUBCONTRACTORS: Services Provider shall perform all services set forth in the SOW as in § 1 above and shall not use subcontractors. 10. RECORDS: Records of Services Provider's labor, payroll, and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request. Services Provider shall maintain records for a period of at least two (2)years after termination of this Agreement and shall make such records available during that retention period for examination or audit by City personnel during regular business hours. 11. RIGHT OF CITY TO CONTRACT WITH OTHERS: Nothing in this Agreement shall imply City is obligated to obtain the services described herein with only this particular Services Provider. 12. INDEMNIFICATION: To the fullest extent permitted by law, Services Provider shall defend, indemnify, and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability, including but not limited to, demands, claims, actions,fees, costs and expenses, including attorney and expert witness fees, arising from or connected or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Services Provider, its agents, and employees. 5 Services Provider's duty to defend, hold harmless and indemnify City, its special districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by a Services Provider's acts, errors, mistakes, omissions, work program or services in the performance of this Agreement including any employee of Services Provider. 13. WAIVER OF TERMS AND CONDITIONS: The failure of City to insist in any one or more instances on performance of any of the terms or conditions of this Agreement or to exercise any right or privilege contained herein shall not be considered as thereafter waiving such terms, conditions, rights or privileges, and they shall remain in full force and effect. 14. INDEPENDENT CONTRACTOR: Services Provider shall at all times during Services Provider's performance of the services retain Services Provider's status as independent contractor. Services Provider's employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes or provide workers' compensation or unemployment insurance for or on behalf of them or Services Provider. 15. APPLICABLE LAW AND VENUE: The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a dght or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees and court costs. 16. OWNERSHIP OF RECORDS AND REPORTS: All files, reports, documents, information, and data prepared or assembled by Services Provider under this Agreement shall be and remain the property of City and shall be forwarded to City at any time City requires such papers but is subject to two (2) year retention schedule set forth in section 10 above. 17. CITY LICENSE REQUIRED: Services Provider represents and warrants that any license necessary to perform the work under this Agreement is current and valid. Services Provider understands that the activity described herein constitutes "doing business in the City of Apache Junction" and Services Provider agrees to obtain a non-profit license pursuant to Chapter 8 of the Apache Junction City Code, Vol. I, and keep such license current during the Term of this Agreement. 6 Services Provider also acknowledges that the tax provisions of the City of Apache Junction Tax Code may apply and, if so, shall obtain a tax privilege license through the Arizona Department of Revenue. 18. ASSIGNMENT & DELEGATION: This Agreement has been entered into based upon the reputation, expertise, and qualifications of Services Provider. Neither Party to this Agreement shall assign its rights or interest in the Agreement, either in whole or in part nor any monies due to or become due to it. In addition, all duties set forth herein are non-delegable. 19. ENTIRE AGREEMENT: This Agreement and any attachments represent the entire Agreement between City and Services Provider and supersede all prior negotiations, representations, or Agreements, either express or implied, written or oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto. Written and signed amendments shall automatically become part of the supporting documents,and shall supersede any inconsistent provision therein; provided, however,that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 20. SEVERABILITY: City and Services Provider each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed Agreement (and any related Agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 21. CONFLICTS OF INTEREST:This Agreement is subjectto,and may be terminated by City in accordance with, the provisions of A.R.S. §38-511. 22. POLITICAL ACTIVITIES: As a community service-based organization, Services Provider is a non-political organization. Its employees are prohibited from engaging in any partisan political activity with respect to candidates for political office beyond the private expression of personal opinion, registering as a member of a political party, signing nomination petitions and voting in any special, primary or general election. No board member, officer or employee of Services Provider shall solicit any contribution in cash or services from any Services Provider employee to support any candidate for public office. No board member or officer shall use the name of Services Provider, or use their affiliation with Services Provider, to engage 7 in any partisan political activity or form of lobbying, of any kind or to solicit any contribution in cash or services to support any candidate for public office. If a board member or officer should engage in said political candidate activities,they shall make it clear that they are doing so in their personal and private capacity, and are not associated with Services Provider in any way, while engaging in said activity. The functions and activities of Services Provider are non-political with respect to candidates for political office.Therefore, all board members,officers and employees will refrain from engaging in any partisan political activity or any form of lobbying, of whatsoever type or nature, while attending or participating in Services Provider function or event. This includes the circulation or signing of nomination petitions or soliciting any contributions in cash or services from anyone to support any candidate for public office. The above prohibition on lobbying includes communicating with commission members and councilmembers for the purpose of gaining an advantage in receiving health and human services funding. 23. COMPLIANCE WITH FEDERAL AND STATE LAWS: Services Provider understands and acknowledges the applicability of the American with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the SOW.As required by A.R.S. §41-4401, Services Provider hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. § 23-214(A). Services Provider further warrants that after hiring an employee, Services Provider will verify the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this Agreement. Services Provider is subject to a penalty of$100 per day for the first violation, $500 per day for the second violation, and $1,000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Services Provider shall not be deemed in material breach of this Agreement if the Services Provider establishes compliance with the employment verification provisions of§§ 274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. § 23-214(A). City retains the legal right to inspect the papers of any Services Provider who works under this Agreement to ensure that the Services Provider is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times. If state law is amended, the Parties may modify this paragraph consistent with state law. 24. TIME OF ESSENCE: Time is of the essence of this Agreement and each provision hereof. 25. CONDITIONAL APPROVAL: The Parties understand and acknowledge this Agreement is approved on a conditional basis pending Services Provider's timely filing of complete and correct reports for the 4th quarter of the previous fiscal year (if prior year's funding was provided by City). The 4th quarter reports shall be filed within the deadlines established by the prior Agreement and must contain the required information as set forth in the prior Agreement. 8 26. PROHIBITION TO CONTRACT WITH SERVICES PROVIDER WHO ENGAGE IN BOYCOTT OF THE STATE OF ISRAEL• The Parties acknowledge A.R.S. §§ 36-393 through 36-393.03,as amended,which forbids public entities from contracting with a contractor or organization who engage in boycotts of the State of Israel. Should Services Provider under this Agreement engage in any such boycott against the State of Israel, this Agreement is automatically terminated. Any such boycott is a material breach of contract and will subject Services Provider to monetary damages,including but not limited to, consequential and liquidated damages. IN WITNESS WHEREOF,the parties have caused this Agreement to be signed by their duly authorized representative as of the day and year first above written. SERVICES PROVIDER: A NEW LEAF,a 501(c)3 non-profit organization By: Print Name, Kl I; Nc ccha,� Title: CITY: CITY OF APACHE JUNCTION.-on-Arizona municipal corporation By:Walter"Chip"Wilson Mayor ATTEST: JENNIFER PE RA City Clerk APPROVED AS TO FORM: 6-0 4`2 RICHARD J. STERN City Attorney 9 STATE OF ARIZONA ) ss. COUNTY OF PINAL ) Zhe��f'o1re by was sui�sarrib�and sworn to befpre,rne this aq day of�ft� �. as of A New Leaf,a 601(o)$non-profit orga`ri zation. My Commission Expires: Notary Publio Jt�.rLQ )(0, oXOoL'� �'� +' •• catf Brine A EAL pyciewski NpTl+Ry PUUL.g RIZONA MARIGQj'AC�NB COMM it t My Comm Expi es June 16.2023 SU OF RIZONA ) COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this day of, 20 ,by Chip Wilson,as Mayor of the City of Apache Junction, Arizona,an Arizona municipal corporation. Notary Public My Commission Expires: 10 EXHIBIT A Apache Junction City Code 06-10-2019 ARTICLE 2-14: REQUESTS FOR FINANCIAL ASSISTANCE 2-14-1 REQUESTS FOR NON-PROFIT FUNDING. (A) Required documentation. Any non-profit agency submitting a request for an allocation or grant of city funds shall submit to the city specific documentation including, but not limited to, the following: A copy of the agency's most recent audit report; a certified copy of the agency's most recent financial statement; detailed expenditure statements in order to provide a detailed accounting of all funds previously received from the city; complete information on the source and amount of funding received from all other sources such as non-governmental agencies, membership fees and dues, and private contributions; client service information as it applies to residents of the city; proof of non-profit status as determined by the Internal Revenue Service; proof of corporate status to include copies of by-laws and articles of incorporation; the source and amount of funding received from other governmental agencies; the names and addresses of current board members; and any other documentation as may be deemed necessary by the city. (B) Reporting requirements. Any non-profit agency receiving an allocation or grant of city funds shall be required to submit to the city, on a quarterly basis, a detailed accounting of the expenditure of city funds for the previous quarter, a written report outlining the agency's performance and accomplishments within the scope of work outlined in their contractual agreement with the city, and any other documentation as may be deemed necessary by the city in order to determine the agency's compliance with the provisions of the contract. (C) Contract required;procedure for distribution of funds. (1) All city funds allocated or granted to any non-profit agency shall be by means of a written contract based upon services to be provided to or work to be performed on behalf of the city and its residents in compliance with the provisions of Arizona Revised Statutes regarding the use of public funds. (2) All city funds allocated or granted under the provisions of this section shall be released in equal quarterly installments or quarterly payments based upon a schedule of anticipated expenses which has been approved by the Mayor and Council. No subsequent quarterly allocation or grant shall be released until such time that the receiving agency has provided all of the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the scope of work stipulated in their contract with the city. (D) Submittal of requests for funding. All funding requests submitted by non-profit agencies for the allocation or grant of city funds shall be submitted to the City Clerk's office during the month of January of each year. Requests so submitted shall not be subject to city funding unless approved by the Council and only following adoption of a final budget for the subsequent fiscal year. (Ord. 659, passed 11-3-1998) § 2-14-2 REQUESTS FOR FINANCIAL ASSISTANCE. All requests for financial assistance shall comply with the following stipulations and conditions: (A) All requests shall be filed by or on behalf of a valid, non-profit organization as qualified by the Internal Revenue Service and as registered with the Arizona Secretary of State, Arizona Corporation Commission or other appropriate state office. The registration shall be current and documentation of such status and registration shall be provided at the time of the request. This article shall not apply to governmental or quasi-governmental jurisdictions; 1 (B) All requests shall be submitted to the City Clerk during the month of January of each year in order to be eligible for consideration in conjunction with the subsequent fiscal year budget; (C) All requests received in accordance with division (B) above shall be referred to the appropriate city board or commission for purposes of review and recommendation to the Council; and (D) In those instances where a request is due to catastrophic circumstances or when the public health, safety and welfare is at risk, the requirements of this article may be waived by action of the Council. It is preferable, however, even in such instances, for the request to receive a review and recommendation from the appropriate city board or commission. (Prior Code, Art. 2-14) 2 EXHIBIT B a Health and Human Services FY 2022-2023 Funding ,.+,� EXHIBIT B REPORTING REQUIREMENTS AJ PERFORMANCE REPORT/SCHEDULE OF COMPLETION Page 1 of 1 Recipient ANew Leaf ate Contract Noble No HIBC FY 22123 Contract Period.July 1,2022 to June 30,2023 Quarter No Activity Intervention Services Recipient Address 868E University Dr., Mesa,AZ 85203 Non-profit Contact Person 01 Michael Hughes Fax Phone Email Contact Person=2 Phonel Email I Zip Code City Staff Ijennifer Pena Emaill IPenaVapachelunctronaz qoy I County Pmal Indicate adherence to contract or schedule changes.Due by the 19th of each quarter for the preceeding quarter's activities. Scope of Work(SOW)Agreement Schedule Contract Date Complete Yes1No Modification Date Please provide a brief description of activities performed this three month period. Include occurrences that caused variation from schedule changes to plans,unforeseen circumstances,etc.Please be specific.Finally,answer questions at narrative section A.,B.,C.&D. Quarterly Narrative: A.:of cer t ica t es of completion B travel and curriculum receipts C-of trainuigs held D-of attendees E r of agency partners attending Insert Contact Person Nameielectronicsignature Recipient Authorized Signature Date ITitle 1 AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND APACHE JUNCTION COMMUNITY DEVELOPMENT CORPORATION FOR HEALTH AND HUMAN SERVICES FOR FISCAL YEAR 2022-2023 THIS AGREEMENT is made and entered into this day of , 2022 by and between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation ("City"), and APACHE JUNCTION COMMUNITY DEVELOPMENT CORPORATION, a 501 (c) 3 non-profit organization, ("Services Provider"), under the City's human services program, collectively referred to as the "Parties" or individually as a "Party". RECITALS A. Pursuant to Apache Junction City Code, ("A.J.C.C.") Volume I, Chapter 2: Mayor, Council, and Appointed Boards and Commission, Article 2-11: Health and Human Services Commission, and Article 2-14: Requests for Financial Assistance, (See Exhibit A), the City may provide financial assistance to non- profit agencies which provide city residents, elderly, handicapped, developmentally disabled care and other public health needs. B. The Health and Human Services Commission ("the Commission") has reviewed requests for city funding as submitted by health and human services providers for fiscal year 2022-2023. C. The Commission has submitted its recommendations to the city council. D. On June 20, 2022, the city council passed and adopted the 2022-2023 fiscal year budget, which included funding for health and human services for specific health and human services providers. E. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (C)(1), (See Exhibit A) all city funds allocated or granted to any non-profit agency shall be by means of a written contract based on services and/or a program (the "Program")for the City to be in compliance with the provisions of state law relating to the use of public funds. F. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, subsection 2-14-1, Requests for Non-Profit Funding, subsection (C)(2), (See Exhibit A), all city funds allocated by the council shall only be released to the Services Provider in equal quarterly installments or quarterly payments based on a schedule of anticipated expenses, and no subsequent quarterly allocation shall be released to the Services Provider until such time the receiving agency has provided all required documentation for the previous quarter along with satisfactory evidence of compliance with the scope of work ("SOW") pursuant to this Agreement. 1 G. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (B), (See Exhibit A), the Services Provider must submit on a quarterly basis a detailed accounting of the performance and accomplishments within the SOW. AGREEMENT NOW, THEREFORE, in consideration of payment of public funds in exchange for health and human services to qualified recipients, both Parties agree to the terms and conditions set forth below as well as the Recitals set forth above: 1. SERVICES PROVIDER'S DUTIES: Services Provider agrees to perform the following SOW in connection with the Program: A. Provide to city residents assistance with clean-up of property under code compliance violations, assist with various revitalization projects, assist with Make a Difference Day, an annual event in coordination with the AJ Parks & Recreation department and partner with Master Gardeners Association to revitalize Botanical Walk at Silly Mountain. B. Provide such programs and activities to residents of the city. C. Comply with all provisions of A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), and all other applicable city ordinances; submit contract proposal for fiscal year 2023-2024 to City on or before January 31, 2023. D. File with City all documentation for the previous quarter no later than the 15u day following the end of the quarter. City offices are open Monday through Thursday 7:00 a.m. to 6:00 p.m. City offices are closed Fridays, weekends and legal holidays. Quarter 1: July 1 thru September 30 Quarter 2: October 1 thru December 31 Quarter 3: January 1 thru March 31 Quarter 4: April 1 thru June 30 E. Submit to City typed or computer-generated quality reports; designate one primary and one secondary person as coordinators for the record keeping and disbursement of funds; assign one primary and one secondary person who shall monitor compliance and review reports. Such persons shall be responsible for submitting accurate reports to the Commission staff liaison and provide the names, email, and telephone 2 numbers of the primary and secondary contact persons immediately upon the signing of this Agreement. Changes to the primary or secondary person(s) shall be reported in writing to the Commission staff liaison within five (5) City working days following such change. F. All reports shall be sent by an approved electronic method either email or another form as identified by the commission, no other means shall be accepted. The Commission staff liaison will prescribe the format in which such reports shall be prepared and submitted. Any reports not prepared in accordance with this section shall be deemed rejected and shall constitute a breach of contract. A list of reporting requirements shall be noted in the format attached hereto (See Exhibit B). G. Funds are distributed on a reimbursable quarterly basis after the submittal of a quarterly report which outlines expenditures and activities completed as stipulated in the SOW and as confirmed by the City. Any funds disbursed by Services Provider in violation of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or this Agreement, shall be reimbursed to City. H. File the quarterly report and required documentation by the deadline set forth in § C above or risk disqualification for health and human services funding for fiscal year 2023-2024. Failure to file the quarterly report and required documentation by the deadlines set forth in § C above shall result in the immediate termination of this Agreement. I. Maintain a listing with the community information and referral service that supports Pinal County and the Apache Junction area during the Term of this Agreement. Services Provider shall also be represented at the Apache Junction Community Resource Center once monthly, during Project Connect events, and the annual Health and Wellness Expo. J. Services Provider's failure to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor. Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of this Agreement shall result in automatic termination of this Agreement. K. Any Services Provider staff responsible for the preparation of the required reports or requests for reimbursement shall be familiar with the terms and requirements of this Agreement in order to avoid processing errors. 2. COMPENSATION: In accordance with the terms and conditions of this Agreement, City shall compensate Services Provider for its services as follows: 3 A. A total of$6,260 for fiscal year 2022-2023 for SOW performance. B. Compensation shall be in equal quarterly payments of$1,565. No quarterly payment shall be released until Services Provider has provided all the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the terms and conditions of this Agreement. The deadline for receipt of such documentation is set forth in § 1 (C) above, and failure to comply with this deadline shall result in forfeiture of claim to the funds and will result in automatic termination of the Agreement. C. In accordance with the recommendations of the Commission and its subsequent acceptance by the Apache Junction city council, should any of the agencies receiving fiscal year 2022-2023 human services funding be unable to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of their respective Agreement, any unused funds shall be retained in City's general fund. D. In accordance with the recommendations of the Commission, representatives of the Services Provider identified in § 1 (C) above shall attend a mandatory training meeting at a time, date, and location to be scheduled by the staff liaison to the Commission in order to review terms and reporting requirements of this Agreement. The Services Provider representatives shall be those individuals who are responsible for compiling the information and filing the required quarterly reports. Failure of attendance by these critical representatives shall result in automatic termination of this Agreement. 3. TERM: This Agreement shall be effective beginning July 1, 2022, through June 30, 2023. 4. SERVICES PROVIDER BILLING: Services Provider shall bill City in the manner specified in § 2 above. 5. CITY'S STANDARD OF PERFORMANCE: City shall furnish the Services Provider with all data, information and other supporting services as may be required. 6. SERVICES PROVIDER'S STANDARD OF PERFORMANCE: While performing the services, Services Provider shall exercise the reasonable professional care and skill customarily exercised by reputable members of Services Provider's profession practicing in the Phoenix Metropolitan Area and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. Services Provider shall be responsible for all errors and omissions Services Provider commits in the performance of this Agreement. 7. NOTICES: All notices to the other party required under this Agreement shall be in writing and sent by first class certified mail, postage prepaid, return receipt 4 requested, addressed to the following personnel: If to City: Jennifer Pena, City Clerk City of Apache Junction 300 E. Superstition Boulevard Apache Junction, AZ 85119 If to Services Provider: Dave Waldron, Chairman AJ CDC 300 E. Superstition Blvd. Apache Junction, AZ 85119 8. TERMINATION: This Agreement may be terminated by either Party for any reason upon fifteen (15) calendar days written notice. In the event this Agreement is terminated for any reason prior to the completion of the full period of performance as stated herein, City shall be liable to Services Provider for those verifiable costs incurred by Services Provider which are in accordance with the original proposal, only up to the date of such termination and not thereafter. 9. SUBCONTRACTORS: Services Provider shall perform all services setforth in the SOW as in § 1 above and shall not use subcontractors. 10. RECORDS: Records of Services Provider's labor, payroll, and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request. Services Provider shall maintain records for a period of at least two (2)years after termination of this Agreement and shall make such records available during that retention period for examination or audit by City personnel during regular business hours. 11. RIGHT OF CITY TO CONTRACT WITH OTHERS: Nothing in this Agreement shall imply City is obligated to obtain the services described herein with only this particular Services Provider. 12. INDEMNIFICATION: To the fullest extent permitted by law, Services Provider shall defend, indemnify, and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability, including but not limited to, demands, claims, actions,fees, costs and expenses, including attorney and expert witness fees, arising from or connected or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Services Provider, its agents, and employees. Services Provider's duty to defend, hold harmless and indemnify City, its special districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by a Services Provider's acts, errors, mistakes, omissions, work program or services in the performance of this Agreement including any employee of Services Provider. 5 13. WAIVER OF TERMS AND CONDITIONS: The failure of City to insist in any one or more instances on performance of any of the terms or conditions of this Agreement or to exercise any right or privilege contained herein shall not be considered as thereafter waiving such terms, conditions, rights or privileges, and they shall remain in full force and effect. 14. INDEPENDENT CONTRACTOR: Services Provider shall at all times during Services Provider's performance of the services retain Services Provider's status as independent contractor. Services Provider's employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes or provide workers' compensation or unemployment insurance for or on behalf of them or Services Provider. 15. APPLICABLE LAW AND VENUE: The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees and court costs. 16. OWNERSHIP OF RECORDS AND REPORTS: All files, reports, documents, information, and data prepared or assembled by Services Provider under this Agreement shall be and remain the property of City and shall be forwarded to City at any time City requires such papers but is subject to two (2) year retention schedule set forth in section 10 above. 17. CITY LICENSE REQUIRED: Services Provider represents and warrants that any license necessary to perform the work under this Agreement is current and valid. Services Provider understands that the activity described herein constitutes "doing business in the City of Apache Junction" and Services Provider agrees to obtain a non-profit license pursuant to Chapter 8 of the Apache Junction City Code, Vol. I, and keep such license current during the Term of this Agreement. Services Provider also acknowledges that the tax provisions of the City of Apache Junction Tax Code may apply and, if so, shall obtain a tax privilege license through the Arizona Department of Revenue. 18. ASSIGNMENT & DELEGATION: This Agreement has been entered into based upon the reputation, expertise, and qualifications of Services Provider. Neither Party to this Agreement shall assign its rights or interest in the Agreement, either in whole or in part nor any monies due to or become due to it. In addition, all duties set forth herein are non-delegable. 6 19. ENTIRE AGREEMENT: This Agreement and any attachments represent the entire Agreement between City and Services Provider and supersede all prior negotiations, representations, or Agreements, either express or implied, written or oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto. Written and signed amendments shall automatically become part of the supporting documents,and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 20. SEVERABILITY: City and Services Provider each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed Agreement (and any related Agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 21. CONFLICTS OF INTEREST: This Agreement is subject to, and may be terminated by City in accordance with, the provisions of A.R.S. § 38-511. 22. POLITICAL ACTIVITIES: As a community service-based organization, Services Provider is a non-political organization. Its employees are prohibited from engaging in any partisan political activity with respect to candidates for political office beyond the private expression of personal opinion, registering as a member of a political party, signing nomination petitions and voting in any special, primary or general election. No board member, officer or employee of Services Provider shall solicit any contribution in cash or services from any Services Provider employee to support any candidate for public office. No board member or officer shall use the name of Services Provider, or use their affiliation with Services Provider, to engage in any partisan political activity or form of lobbying, of any kind or to solicit any contribution in cash or services to support any candidate for public office. If a board member or officer should engage in said political candidate activities,they shall make it clear that they are doing so in their personal and private capacity, and are not associated with Services Provider in any way, while engaging in said activity. The functions and activities of Services Provider are non-political with respect to candidates for political office.Therefore, all board members,officers and employees will refrain from engaging in any partisan political activity or any form of lobbying, of whatsoever type or nature, while attending or participating in Services Provider function or event. This includes the circulation or signing of nomination petitions or 7 soliciting any contributions in cash or services from anyone to support any candidate for public office. The above prohibition on lobbying includes communicating with commission members and councilmembers for the purpose of gaining an advantage in receiving health and human services funding. 23. COMPLIANCE WITH FEDERAL AND STATE LAWS: Services Provider understands and acknowledges the applicability of the American with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the SOW.As required by A.R.S. §41-4401, Services Provider hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. § 23-214(A). Services Provider further warrants that after hiring an employee, Services Provider will verify the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this Agreement. Services Provider is subject to a penalty of$100 per day for the first violation, $500 per day for the second violation, and $1,000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Services Provider shall not be deemed in material breach of this Agreement if the Services Provider establishes compliance with the employment verification provisions of§§274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. § 23-214(A). City retains the legal right to inspect the papers of any Services Provider who works under this Agreement to ensure that the Services Provider is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times. If state law is amended, the Parties may modify this paragraph consistent with state law. 24. TIME OF ESSENCE: Time is of the essence of this Agreement and each provision hereof. 25. CONDITIONAL APPROVAL: The Parties understand and acknowledge this Agreement is approved on a conditional basis pending Services Provider's timely filing of complete and correct reports for the 4th quarter of the previous fiscal year (if prior year's funding was provided by City). The 4th quarter reports shall be filed within the deadlines established by the prior Agreement and must contain the required information as set forth in the prior Agreement. 26. PROHIBITION TO CONTRACT WITH SERVICES PROVIDER WHO ENGAGE IN BOYCOTT OF THE STATE OF ISRAEL: The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with a contractor or organization who engage in boycotts of the State of Israel. Should Services Provider under this Agreement engage in any such boycott against the State of Israel, this Agreement is automatically terminated. Any such boycott is a material breach of contract and will subject Services Provider to monetary damages, including but not limited to, consequential and liquidated damages. 8 IN WITNESS WHEREOF,the parties have caused this Agreement to be signed by their duly authorized representative as of the day and year first above written. SERVICES PROVIDER: APACHE JUNCTION COMMUNITY DEVELOPEMNT CORPORATION, a 501(c)3 non-profit organization 0 By: 00- Print Name: 7t—_)Ax� F UJ as d Title: 0_kc&,r CITY: CITY OF APACHE JUNCTION, an Arizona municipal corporation By:Waiter"Chip"Wilson Mayor ATTEST: JENNIFER PENA City Clerk APPROVED AS TO FORM: b-2?2Z RICHARD J. STERN City Attorney STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this 29 day of 20� , by-000 V1-61yi0jS WnldKbvl as Choi of Apache Junction Community Development Corporation, a 501(c)3 non-profit organization. 9 organization. 0 My Commission Expires: Donna F.Scruggs Notary Public-ARIZONA PINAL COUNTY Wy - Commission No.624193 °+_-' My Commission Expires 03M3I2026 STATE OF ARIZONA ) ) SS. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this day of, 2Q -,., by Chip Wilson, as Mayor of the City of Apache Junction, Arizona, an Arizona municipal corporation. Notary Public My Commiss;on Expires: 10 EXHIBIT A Apache Junction City Code 06-10-2019 ARTICLE 2-14: REQUESTS FOR FINANCIAL ASSISTANCE 2-14-1 REQUESTS FOR NON-PROFIT FUNDING. (A) Required documentation. Any non-profit agency submitting a request for an allocation or grant of city funds shall submit to the city specific documentation including, but not limited to, the following: A copy of the agency's most recent audit report; a certified copy of the agency's most recent financial statement; detailed expenditure statements in order to provide a detailed accounting of all funds previously received from the city; complete information on the source and amount of funding received from all other sources such as non-governmental agencies, membership fees and dues, and private contributions; client service information as it applies to residents of the city; proof of non-profit status as determined by the Internal Revenue Service; proof of corporate status to include copies of by-laws and articles of incorporation; the source and amount of funding received from other governmental agencies; the names and addresses of current board members; and any other documentation as may be deemed necessary by the city. (B) Reporting requirements. Any non-profit agency receiving an allocation or grant of city funds shall be required to submit to the city, on a quarterly basis, a detailed accounting of the expenditure of city funds for the previous quarter, a written report outlining the agency's performance and accomplishments within the scope of work outlined in their contractual agreement with the city, and any other documentation as may be deemed necessary by the city in order to determine the agency's compliance with the provisions of the contract. (C) Contract required;procedure for distribution of funds. (1) All city funds allocated or granted to any non-profit agency shall be by means of a written contract based upon services to be provided to or work to be performed on behalf of the city and its residents in compliance with the provisions of Arizona Revised Statutes regarding the use of public funds. (2) All city funds allocated or granted under the provisions of this section shall be released in equal quarterly installments or quarterly payments based upon a schedule of anticipated expenses which has been approved by the 'Mayor and Council. No subsequent quarterly allocation or grant shall be released until such time that the receiving agency has provided all of the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the scope of work stipulated in their contract with the city. (D) Submittal of requests for funding. All funding requests submitted by non-profit agencies for the allocation or grant of city funds shall be submitted to the City Clerk's office during the month of January of each year. Requests so submitted shall not be subject to city funding unless approved by the Council and only following adoption of a final budget for the subsequent fiscal year. (Ord. 659, passed 11-3-1998) § 2-14-2 REQUESTS FOR FINANCIAL ASSISTANCE. All requests for financial assistance shall comply with the following stipulations and conditions: (A) All requests shall be filed by or on behalf of a valid, non-profit organization as qualified by the Internal Revenue Service and as registered with the Arizona Secretary of State, Arizona Corporation Commission or other appropriate state office. The registration shall be current and documentation of such status and registration shall be provided at the time of the request. This article shall not apply to governmental or quasi-governmental jurisdictions; 1 (B) All requests shall be submitted to the City Clerk during the month of January of each year in order to be eligible for consideration in conjunction with the subsequent fiscal year budget; (C) All requests received in accordance with division (B) above shall be referred to the appropriate city board or commission for purposes of review and recommendation to the Council; and (D) In those instances where a request is due to catastrophic circumstances or when the public health, safety and welfare is at risk, the requirements of this article may be waived by action of the Council. It is preferable, however, even in such instances, for the request to receive a review and recommendation from the appropriate city board or commission. (Prior Code, Art. 2-14) 2 EXHIBIT B D� Health and Human Services FY 2022-2023 Funding ✓' "' EXHIBIT B REPORTING REQUIREMENTS AJ PERFORMANCE REPORT/SCHEDULE OF COMPLETION Page I of I Recipient Community Development Corporation Date Contract NolFlle No.I•IFISC FY 22/23 Contract Period:July 1,2022 to June 30,2023 Quarter No Activity To enhance the physical image of Apache]unction Recipient Address 300 E Superstition Blvd,Apache Junction,AZ 85119 Non-profit Contact Person#1 Dave Waldron Fax Phone Email Contact Person a2 Phonel Ema d Zip Code City Staff Jennifer Pena Email I tPena(&apachetunct2M goy I County Pmal Indicate adherence to contract or schedule changes.Due by the 19th of each quarter for the preceeding quarter's activities. Scope of Work(SOM Agreement Schedule Contract Date Complete Yes/No Modification Date Please provide a brief description of activities performed this three month period. Include occurrences that caused variation from schedule changes to plans,unforeseen circumstances,etc.Please be specific.Finally,answer questions at narrative section A.,B.,C.&D. Quarterly Narrative: A.4 of certicates of completion B.travel and curriculum receipts C.r of trainings held D.=of attendees F_ ofagency partners attending Insert Contact Person Name/electronic signature Recipient Authorized Signature Date Title 1 AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND THE BOYS AND GIRLS CLUB OF THE VALLEY FOR HEALTH AND HUMAN SERVICES FOR FISCAL YEAR 2022-2023 THIS AGREEMENT is made and entered into this day of , 2022 by and between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation ("City"), and THE BOYS AND GIRLS CLUB OF THE VALLEY, a 501 (c) 3 non-profit organization, ("Services Provider"), under the City's human services program, collectively referred to as the "Parties" or individually as a "Party". RECITALS A. Pursuant to Apache Junction City Code, ("A.J.C.C.") Volume I, Chapter 2: Mayor, Council, and Appointed Boards and Commission, Article 2-11: Health and Human Services Commission, and Article 2-14: Requests for Financial Assistance, (See Exhibit A), the City may provide financial assistance to non- profit agencies which provide city residents, elderly, handicapped, developmentally disabled care and other public health needs. B. The Health and Human Services Commission ("the Commission") has reviewed requests for city funding as submitted by health and human services providers for fiscal year 2022-2023. C. The Commission has submitted its recommendations to the city council. D. On June 20, 2022, the city council passed and adopted the 2022-2023 fiscal year budget, which included funding for health and human services for specific health and human services providers. E. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (C)(1), (See Exhibit A) all city funds allocated or granted to any non-profit agency shall be by means of a written contract based on services and/or a program (the "Program")for the City to be in compliance with the provisions of state law relating to the use of public funds. F. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, subsection 2-14-1, Requests for Non-Profit Funding, subsection (C)(2), (See Exhibit A), all city funds allocated by the council shall only be released to the Services Provider in equal quarterly installments or quarterly payments based on a schedule of anticipated expenses, and no subsequent quarterly allocation shall be released to the Services Provider until such time the receiving agency has provided all required documentation for the previous quarter along with satisfactory evidence of compliance with the scope of work ("SOW") pursuant to this Agreement. 1 G. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor. Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (B), (See Exhibit A), the Services Provider must submit on a quarterly basis a detailed accounting of the performance and accomplishments within the SOW. AGREEMENT NOW, THEREFORE, in consideration of payment of public funds in exchange for health and human services to qualified recipients, both Parties agree to the terms and conditions set forth below as well as the Recitals set forth above: 1. SERVICES PROVIDER'S DUTIES: Services Provider agrees to perform the following SOW in connection with the Program: A. Provide to city residents with youth programs such as Academic Success through the Power Hour program, Leadership and Character building through Torch & Keystone Club which provides mentors, EBP and youth development, and Healthy Lifestyle choices through physical fitness and health education along with nutrition education. These programs will be supported by this funding for a Part-time Youth Development Specialist and a Full-time Program Branch Director. B. Provide such programs and activities to residents of the city. C. Comply with all provisions of A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), and all other applicable city ordinances; submit contract proposal for fiscal year 2023-2024 to City on or before January 31, 2023. D. File with City all documentation for the previous quarter no later than the 15u day following the end of the quarter. City offices are open Monday through Thursday 7:00 a.m. to 6:00 p.m. City offices are closed Fridays, weekends and legal holidays. Quarter 1: July 1 thru September 30 Quarter 2: October 1 thru December 31 Quarter 3: January 1 thru March 31 Quarter 4: April 1 thru June 30 E. Submit to City typed or computer-generated quality reports; designate one primary and one secondary person as coordinators for the record keeping and disbursement of funds; assign one primary and one secondary person who shall monitor compliance and review reports. Such persons shall be responsible for submitting accurate reports to the 2 Commission staff liaison and provide the names, email, and telephone numbers of the primary and secondary contact persons immediately upon the signing of this Agreement. Changes to the primary or secondary person(s) shall be reported in writing to the Commission staff liaison within five (5) City working days following such change. F. All reports shall be sent by an approved electronic method either email or another form as identified by the commission, no other means shall be accepted. The Commission staff liaison will prescribe the format in which such reports shall be prepared and submitted. Any reports not prepared in accordance with this section shall be deemed rejected and shall constitute a breach of contract. A list of reporting requirements shall be noted in the format attached hereto(See Exhibit B). G. Funds are distributed on a reimbursable quarterly basis after the submittal of a quarterly report which outlines expenditures and activities completed as stipulated in the SOW and as confirmed by the City. Any funds disbursed by Services Provider in violation of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or this Agreement, shall be reimbursed to City. H. File the quarterly report and required documentation by the deadline set forth in § C above or risk disqualification for health and human services funding for fiscal year 2023-2024. Failure to file the quarterly report and required documentation by the deadlines set forth in § C above shall result in the immediate termination of this Agreement. I. Maintain a listing with the community information and referral service that supports Pinal County and the Apache Junction area during the Term of this Agreement. Services Provider shall also be represented at the Apache Junction Community Resource Center once monthly, during Project Connect events, and the annual Health and Wellness Expo. J. Services Provider's failure to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor. Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of this Agreement shall result in automatic termination of this Agreement. K. Any Services Provider staff responsible for the preparation of the required reports or requests for reimbursement shall be familiar with the terms and requirements of this Agreement in order to avoid processing errors. 2. COMPENSATION: In accordance with the terms and conditions of this Agreement, City shall compensate Services Provider for its services as follows: 3 A. A total of$11,580 for fiscal year 2022-2023 for SOW performance. B. Compensation shall be in equal quarterly payments of$2,895. No quarterly payment shall be released until Services Provider has provided all the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the terms and conditions of this Agreement. The deadline for receipt of such documentation is set forth in § 1 (C) above, and failure to comply with this deadline shall result in forfeiture of claim to the funds and will result in automatic termination of the Agreement. C. In accordance with the recommendations of the Commission and its subsequent acceptance by the Apache Junction city council, should any of the agencies receiving fiscal year 2022-2023 human services funding be unable to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of their respective Agreement, any unused funds shall be retained in City's general fund. D. In accordance with the recommendations of the Commission, representatives of the Services Provider identified in § 1 (C) above shall attend a mandatory training meeting at a time, date, and location to be scheduled by the staff liaison to the Commission in order to review terms and reporting requirements of this Agreement. The Services Provider representatives shall be those individuals who are responsible for compiling the information and filing the required quarterly reports. Failure of attendance by these critical representatives shall result in automatic termination of this Agreement. 3. TERM: This Agreement shall be effective beginning July 1, 2022, through June 30, 2023. 4. SERVICES PROVIDER BILLING: Services Provider shall bill City in the manner specified in § 2 above. 5. CITY'S STANDARD OF PERFORMANCE: City shall furnish the Services Provider with all data, information and other supporting services as may be required. 6. SERVICES PROVIDER'S STANDARD OF PERFORMANCE: While performing the services, Services Provider shall exercise the reasonable professional care and skill customarily exercised by reputable members of Services Provider's profession practicing in the Phoenix Metropolitan Area and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. Services Provider shall be responsible for all errors and omissions Services Provider commits in the performance of this Agreement. 7. NOTICES: All notices to the other party required under this Agreement shall 4 be in writing and sent by first class certified mail, postage prepaid, return receipt requested, addressed to the following personnel: If to City: Jennifer Pena, City Clerk City of Apache Junction 300 E. Superstition Boulevard Apache Junction, AZ 85119 If to Services Provider: Emily Denes, Project Manager Boys and Girls Club of The Valley 4309 E. Belleview St, Bldg. 1 Phoenix, AZ 85008 8. TERMINATION: This Agreement may be terminated by either Party for any reason upon fifteen (15) calendar days written notice. In the event this Agreement is terminated for any reason prior to the completion of the full period of performance as stated herein, City shall be liable to Services Provider for those verifiable costs incurred by Services Provider which are in accordance with the original proposal, only up to the date of such termination and not thereafter. 9. SUBCONTRACTORS: Services Provider shall perform all services setforth in the SOW as in § 1 above and shall not use subcontractors. 10. RECORDS: Records of Services Provider's labor, payroll, and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request. Services Provider shall maintain records for a period of at least two (2)years after termination of this Agreement and shall make such records available during that retention period for examination or audit by City personnel during regular business hours. 11. RIGHT OF CITY TO CONTRACT WITH OTHERS: Nothing in this Agreement shall imply City is obligated to obtain the services described herein with only this particular Services Provider. 12. INDEMNIFICATION: To the fullest extent permitted by law, Services Provider shall defend, indemnify, and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability, including but not limited to, demands, claims, actions,fees, costs and expenses, including attorney and expert witness fees, arising from or connected or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Services Provider, its agents, and employees. Services Provider's duty to defend, hold harmless and indemnify City, its special districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by a Services Provider's acts, errors, mistakes, omissions, work program or services in the performance of this Agreement including any employee of Services Provider. 5 13. WAIVER OF TERMS AND CONDITIONS: The failure of City to insist in any one or more instances on performance of any of the terms or conditions of this Agreement or to exercise any right or privilege contained herein shall not be considered as thereafter waiving such terms, conditions, rights, or privileges, and they shall remain in full force and effect. 14. INDEPENDENT CONTRACTOR: Services Provider shall at all times during Services Provider's performance of the services retain Services Provider's status as independent contractor. Services Provider's employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes or provide workers' compensation or unemployment insurance for or on behalf of them or Services Provider. 15. APPLICABLE LAW AND VENUE: The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees and court costs. 16. OWNERSHIP OF RECORDS AND REPORTS: All files, reports, documents, information, and data prepared or assembled by Services Provider under this Agreement shall be and remain the property of City and shall be forwarded to City at any time City requires such papers but is subject to two (2) year retention schedule set forth in section 10 above. 17. CITY LICENSE REQUIRED: Services Provider represents and warrants that any license necessary to perform the work under this Agreement is current and valid. Services Provider understands that the activity described herein constitutes "doing business in the City of Apache Junction" and Services Provider agrees to obtain a non-profit license pursuant to Chapter 8 of the Apache Junction City Code, Vol. I, and keep such license current during the Term of this Agreement. Services Provider also acknowledges that the tax provisions of the City of Apache Junction Tax Code may apply and, if so, shall obtain a tax privilege license through the Arizona Department of Revenue. 18. ASSIGNMENT & DELEGATION:_ This Agreement has been entered into based upon the reputation, expertise, and qualifications of Services Provider. Neither Party to this Agreement shall assign its rights or interest in the Agreement, either in whole or in part nor any monies due to or become due to it. In addition, all duties set forth herein are non-delegable. 6 19. ENTIRE AGREEMENT: This Agreement and any attachments represent the entire Agreement between City and Services Provider and supersede all prior negotiations, representations, or Agreements, either express or implied, written or oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto. Written and signed amendments shall automatically become part of the supporting documents,and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 20. SEVERABILITY: City and Services Provider each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed Agreement (and any related Agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 21. CONFLICTS OF INTEREST: This Agreement is subject to, and may be terminated by City in accordance with, the provisions of A.R.S. § 38-511. 22. POLITICAL ACTIVITIES: As a community service-based organization, Services Provider is a non-political organization. Its employees are prohibited from engaging in any partisan political activity with respect to candidates for political office beyond the private expression of personal opinion, registering as a member of a political party, signing nomination petitions and voting in any special, primary or general election. No board member, officer or employee of Services Provider shall solicit any contribution in cash or services from any Services Provider employee to support any candidate for public office. No board member or officer shall use the name of Services Provider, or use their affiliation with Services Provider, to engage in any partisan political activity or form of lobbying, of any kind or to solicit any contribution in cash or services to support any candidate for public office. If a board member or officer should engage in said political candidate activities,they shall make it clear that they are doing so in their personal and private capacity, and are not associated with Services Provider in any way, while engaging in said activity. The functions and activities of Services Provider are non-political with respect to candidates for political office.Therefore, all board members,officers and employees will refrain from engaging in any partisan political activity or any form of lobbying, of whatsoever type or nature, while attending or participating in Services Provider function or event. This includes the circulation or signing of nomination petitions or soliciting any contributions in cash or services from anyone to support any candidate 7 for public office. The above prohibition on lobbying includes communicating with commission members and councilmembers for the purpose of gaining an advantage in receiving health and human services funding. 23. COMPLIANCE WITH FEDERAL AND STATE LAWS: Services Provider understands and acknowledges the applicability of the American with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the SOW.As required by A.R.S. §41-4401, Services Provider hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. § 23-214(A). Services Provider further warrants that after hiring an employee, Services Provider will verify the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this Agreement. Services Provider is subject to a penalty of$100 per day for the first violation, $500 per day for the second violation, and $1,000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Services Provider shall not be deemed in material breach of this Agreement if the Services Provider establishes compliance with the employment verification provisions of§§ 274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. § 23-214(A). City retains the legal right to inspect the papers of any Services Provider who works under this Agreement to ensure that the Services Provider is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times. If state law is amended, the Parties may modify this paragraph consistent with state law. 24. TIME OF ESSENCE: Time is of the essence of this Agreement and each provision hereof 25. CONDITIONAL APPROVAL: The Parties understand and acknowledge this Agreement is approved on a conditional basis pending Services Provider's timely filing of complete and correct reports for the 4th quarter of the previous fiscal year (if prior year's funding was provided by City). The 4th quarter reports shall be filed within the deadlines established by the prior Agreement and must contain the required information as set forth in the prior Agreement. 26. PROHIBITION TO CONTRACT WITH SERVICES PROVIDER WHO ENGAGE IN BOYCOTT OF THE STATE OF ISRAEL: The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with a contractor or organization who engage in boycotts of the State of Israel. Should Services Provider under this Agreement engage in any such boycott against the State of Israel, this Agreement is automatically terminated. Any such boycott is a material breach of contract and will subject Services Provider to monetary damages, including but not limited to, consequential and liquidated damages. 8 IN WITNESS WHEREOF,the parties have caused this Agreement to be signed by their duly authorized representative as of the day and year first above written. SERVICES PROVIDER: BOYS AND GIRLS CLUB OF THE VALLEY, a 501(c)3 non-profit orga izatI By; Prfnt Name: Title: C6 0 CITY: CITY OF APACHE JUNCTION,an Arizona municipal corporation By:Walter"Chip"Wilson Mayor ATTEST: JENNIFER PENA City Clerk APPROVED AS TO FORM: ,�6 6.za - 22 RICHARD J. STERN City Attorney STATE OF ARIZONA ) )ss. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this_day of 20-2, by Ag&i n_q-1,14 T as G F b of The Boys and Girls Club of The Valley, a 501(c)3 non-profit organization. 9 d��ii ��•'� •dam '' ��i T- s. Notary Public My Commission Expires: 5/d ylz_s STATE OF ARIZONA ) )ss. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this day of, 20 , by Chip Wilson, as Mayor of the City of Apache Junction, Arizona, an Arizona municipal corporation. Notary Public My Commission Expires: 10 EXHIBIT A Apache Junction City Code 06-10-2019 ARTICLE 2-14: REQUESTS FOR FINANCIAL ASSISTANCE 2-14-1 REQUESTS FOR NON-PROFIT FUNDING. (A) Required documentation. Any non-profit agency submitting a request for an allocation or grant of city funds shall submit to the city specific documentation including, but not limited to, the following: A copy of the agency's most recent audit report; a certified copy of the agency's most recent financial statement; detailed expenditure statements in order to provide a detailed accounting of all funds previously received from the city; complete information on the source and amount of funding received from all other sources such as non-governmental agencies, membership fees and dues, and private contributions; client service information as it applies to residents of the city; proof of non-profit status as determined by the Internal Revenue Service; proof of corporate status to include copies of by-laws and articles of incorporation; the source and amount of funding received from other governmental agencies; the names and addresses of current board members; and any other documentation as may be deemed necessary by the city. (B) Reporting requirements. Any non-profit agency receiving an allocation or grant of city funds shall be required to submit to the city, on a quarterly basis, a detailed accounting of the expenditure of city funds for the previous quarter, a written report outlining the agency's performance and accomplishments within the scope of work outlined in their contractual agreement with the city, and any other documentation as may be deemed necessary by the city in order to determine the agency's compliance with the provisions of the contract. (C) Contract required;procedure for-distribution of funds. (1) All city funds allocated or granted to any non-profit agency shall be by means of a written contract based upon services to be provided to or work to be performed on behalf of the city and its residents in compliance with the provisions of Arizona Revised Statutes regarding the use of public funds. (2) All city funds allocated or granted under the provisions of this section shall be released in equal quarterly installments or quarterly payments based upon a schedule of anticipated expenses which has been approved by the Mayor and Council. No subsequent quarterly allocation or grant shall be released until such time that the receiving agency has provided all of the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the scope of work stipulated in their contract with the city. (D) Submittal of requests for fitnding. All funding requests submitted by non-profit agencies for the allocation or grant of city funds shall be submitted to the City Clerk's office during the month of January of each year. Requests so submitted shall not be subject to city funding unless approved by the Council and only following adoption of a final budget for the subsequent fiscal year. (Ord. 659, passed 11-3-1998) § 2-14-2 REQUESTS FOR FINANCIAL ASSISTANCE. All requests for financial assistance shall comply with the following stipulations and conditions: (A) All requests shall be filed by or on behalf of a valid, non-profit organization as qualified by the Internal Revenue Service and as registered with the Arizona Secretary of State, Arizona Corporation Commission or other appropriate state office. The registration shall be current and documentation of such status and registration shall be provided at the time of the request. This article shall not apply to governmental or quasi-governmental jurisdictions; 1 (B) All requests shall be submitted to the City Clerk during the month of January of each year in order to be eligible for consideration in conjunction with the subsequent fiscal year budget; (C) All requests received in accordance with division (B) above shall be referred to the appropriate city board or commission for purposes of review and recommendation to the Council; and (D) In those instances where a request is due to catastrophic circumstances or when the public health, safety and welfare is at risk, the requirements of this article may be waived by action of the Council. It is preferable, however, even in such instances, for the request to receive a review and recommendation from the appropriate city board or commission. (Prior Code, Art. 2-14) 2 EXHIBIT B a 1� Health and Human Services FY 2022-2023 Funding " EXHIBIT B REPORTING REQUIREMENTS *19 AJ PERFORMANCE REPORT/SCHEDULE OF COMPLETION Page 1 of 1 Recipient Boys and Girls Club of the Valley Date Contract No./File No.HHSC FY22/23 Contract Period:July1,2022 to June 30,2023 Quarter No Activity To educate and empower the youth to reach their full potential Recipient Address 4109 E Belleview St Bldg 14, Phoenix,AZ 85008 Non-profit Contact Person 31 Emily Denes Fax Phone Email Contact Person#2 Phonel Email I Zip Code City Staff 1jennifer Pena Ema ill IpenafrDapachelunctionaz My County Pmal Indicate adherence to contract or schedule changes.Due by the 19th of each quarter for the preceeding quarter's activities. Scope of Work(SOW)Agreement Schedule Contract Date Complete Yes/No Modification Date Please provide a brief description of activities performed this three month period. Include occurrences that caused variation from schedule changes to plans,unforeseen circumstances,etc.Please be specific.Finally,answer questions at narrative section A.,B.,C.8c D. Q ua de rly Na rra Live: A.c of certicates of completion B.travel and curriculum receipts C.#of training%held D. of attendees E.ofagency partnersattending Insert Contact Person Name electronicsignattire Recipient Authorized Signature Rite ITitle 1 AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND THE SUPERSTITION COMMUNITY FOOD BANK FOR HEALTH AND HUMAN SERVICES FOR FISCAL YEAR 2022-2023 THIS AGREEMENT is made and entered into this day of . 2022 by and between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation ("City"), and THE SUPERSTITION COMMUNITY FOOD BANK, a 501 (c) 3 non-profit organization, ("Services Provider"), under the City's human services program, collectively referred to as the "Parties" or individually as a "Party". RECITALS A. Pursuant to Apache Junction City Code, ("A.J.C.C.") Volume I, Chapter 2: Mayor, Council, and Appointed Boards and Commission, Article 2-11: Health and Human Services Commission, and Article 2-14: Requests for Financial Assistance, (See Exhibit A), the City may provide financial assistance to non- profit agencies which provide city residents, elderly, handicapped, developmentally disabled care and other public health needs. B. The Health and Human Services Commission ("the Commission") has reviewed requests for city funding as submitted by health and human services providers for fiscal year 2022-2023. C. The Commission has submitted its recommendations to the city council. D. On June 20, 2022, the city council passed and adopted the 2022-2023 fiscal year budget, which included funding for health and human services for specific health and human services providers. E. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (C)(1), (See Exhibit A) all city funds allocated or granted to any non-profit agency shall be by means of a written contract based on services and/or a program (the "Program")for the City to be in compliance with the provisions of state law relating to the use of public funds. F. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, subsection 2-14-1, Requests for Non-Profit Funding, subsection (C)(2), (See Exhibit A), all city funds allocated by the council shall only be released to the Services Provider in equal quarterly installments or quarterly payments based on a schedule of anticipated expenses, and no subsequent quarterly allocation shall be released to the Services Provider until such time the receiving agency has provided all required documentation for the previous quarter along with satisfactory evidence of compliance with the scope of work ("SOW") pursuant to this Agreement. 1 G. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (B), (See Exhibit A), the Services Provider must submit on a quarterly basis a detailed accounting of the performance and accomplishments within the SOW. AGREEMENT NOW, THEREFORE, in consideration of payment of public funds in exchange for health and human services to qualified recipients, both Parties agree to the terms and conditions set forth below as well as the Recitals set forth above: 1. SERVICES PROVIDER'S DUTIES: Services Provider agrees to perform the following SOW in connection with the Program: A. Provide to city residents assistance with food needs throughout the year. B. Provide such programs and activities to residents of the city. C. Comply with all provisions of A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), and all other applicable city ordinances; submit contract proposal for fiscal year 2023-2024 to City on or before January 31, 2023. D. File with City all documentation for the previous quarter no later than the 15th day following the end of the quarter. City offices are open Monday through Thursday 7:00 a.m. to 6:00 p.m. City offices are closed Fridays, weekends and legal holidays. Quarter 1: July 1 thru September 30 Quarter 2: October 1 thru December 31 Quarter 3: January 1 thru March 31 Quarter 4: April 1 thru June 30 E. Submit to City typed or computer-generated quality reports; designate one primary and one secondary person as coordinators for the record keeping and disbursement of funds; assign one primary and one secondary person who shall monitor compliance and review reports. Such persons shall be responsible for submitting accurate reports to the Commission staff liaison and provide the names, email, and telephone numbers of the primary and secondary contact persons immediately upon the signing of this Agreement. Changes to the primary or secondary person(s) shall be reported in writing to the Commission staff liaison within five (5) City working days following such change. 2 F. All reports shall be sent by an approved electronic method either email or another form as identified by the commission, no other means shall be accepted. The Commission staff liaison will prescribe the format in which such reports shall be prepared and submitted. Any reports not prepared in accordance with this section shall be deemed rejected and shall constitute a breach of contract. A list of reporting requirements shall be noted in the format attached hereto(See Exhibit B). G. Funds are distributed on a reimbursable quarterly basis after the submittal of a quarterly report which outlines expenditures and activities completed as stipulated in the SOW and as confirmed by the City. Any funds disbursed by Services Provider in violation of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or this Agreement, shall be reimbursed to City. H. File the quarterly report and required documentation by the deadline set forth in § C above or risk disqualification for health and human services funding for fiscal year 2023-2024. Failure to file the quarterly report and required documentation by the deadlines set forth in § C above shall result in the immediate termination of this Agreement. I. Maintain a listing with the community information and referral service that supports Pinal County and the Apache Junction area during the Term of this Agreement. Services Provider shall also be represented at the Apache Junction Community Resource Center once monthly, during Project Connect events, and the annual Health and Wellness Expo. J. Services Provider's failure to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of this Agreement shall result in automatic termination of this Agreement. K. Any Services Provider staff responsible for the preparation of the required reports or requests for reimbursement shall be familiar with the terms and requirements of this Agreement in order to avoid processing errors. 2. COMPENSATION: In accordance with the terms and conditions of this Agreement, City shall compensate Services Provider for its services as follows: A. A total of$30,000 for fiscal year 2022-2023 for SOW performance. B. Compensation shall be in equal quarterly payments of$7,500. No quarterly payment shall be released until Services Provider has provided all the required documentation for the previous quarter and has provided 3 satisfactory evidence of compliance with the terms and conditions of this Agreement. The deadline for receipt of such documentation is set forth in § 1 (C) above, and failure to comply with this deadline shall result in forfeiture of claim to the funds and will result in automatic termination of the Agreement. C. In accordance with the recommendations of the Commission and its subsequent acceptance by the Apache Junction city council, should any of the agencies receiving fiscal year 2022-2023 human services funding be unable to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of their respective Agreement, any unused funds shall be retained in City's general fund. D. In accordance with the recommendations of the Commission, representatives of the Services Provider identified in § 1 (C) above shall attend a mandatory training meeting at a time, date, and location to be scheduled by the staff liaison to the Commission in order to review terms and reporting requirements of this Agreement. The Services Provider representatives shall be those individuals who are responsible for compiling the information and filing the required quarterly reports. Failure of attendance by these critical representatives shall result in automatic termination of this Agreement. 3. TERM: This Agreement shall be effective beginning July 1, 2022, through June 30, 2023. 4. SERVICES PROVIDER BILLING: Services Provider shall bill City in the manner specified in § 2 above. 5. CITY'S STANDARD OF PERFORMANCE: City shall furnish the Services Provider with all data, information and other supporting services as may be required. 6. SERVICES PROVIDER'S STANDARD OF PERFORMANCE: While performing the services, Services Provider shall exercise the reasonable professional care and skill customarily exercised by reputable members of Services Provider's profession practicing in the Phoenix Metropolitan Area and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. Services Provider shall be responsible for all errors and omissions Services Provider commits in the performance of this Agreement. 7. NOTICES: All notices to the other party required under this Agreement shall be in writing and sent by first class certified mail, postage prepaid, return receipt requested, addressed to the following personnel: 4 If to City: Jennifer Pena, City Clerk City of Apache Junction 300 E. Superstition Boulevard Apache Junction, AZ 85119 If to Services Provider: Lynn Hanson, Board President Superstition Community Food Bank 575 N Idaho Rd., Ste 701 Apache Junction, AZ 85119 8. TERMINATION: This Agreement may be terminated by either Party for any reason upon fifteen (15) calendar days written notice. In the event this Agreement is terminated for any reason prior to the completion of the full period of performance as stated herein, City shall be liable to Services Provider for those verifiable costs Incurred by Services Provider which are in accordance with the original proposal, only up to the date of such termination and not thereafter. 9. SUBCONTRACTORS: Services Provider shall perform all services setforth In the SOW as in § 1 above and shall not use subcontractors. 10. RECORDS: Records of Services Provider's labor, payroll, and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request. Services Provider shall maintain records for a period of at least two (2)years after termination of this Agreement and shall make such records available during that retention period for examination or audit by City personnel during regular business hours. 11. RIGHT OF CITY TO CONTRACT WITH OTHERS: Nothing in this Agreement shall imply City is obligated to obtain the services described herein with only this particular Services Provider. 12. INDEMNIFICATION: To the fullest extent permitted by law, Services Provider shall defend, indemnify, and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability, including but not limited to, demands, claims, actions,fees, costs and expenses, including attorney and expert witness fees, arising from or connected or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes,omissions, work or services of Services Provider, Its agents, and employees. Services Provider's duty to defend, hold harmless and indemnify City, its special districts, elected and appointed officers,officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by a Services Provider's acts, errors, mistakes, omissions, work program or services in the performance of this Agreement including any employee of Services Provider. 13. WAIVER OF TERMS AND CONDITIONS: The failure of City to insist in any one or more instances on performance of any of the terms or conditions of this Agreement 6 or to exercise any right or privilege contained herein shall not be considered as thereafter waiving such terms, conditions, rights or privileges, and they shall remain in full force and effect. 14. INDEPENDENT CONTRACTOR: Services Provider shall at all times during Services Provider's performance of the services retain Services Provider's status as independent contractor. Services Provider's employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes or provide workers' compensation or unemployment insurance for or on behalf of them or Services Provider. 15. APPLICABLE LAW AND VENUE: The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees and court costs. 16. OWNERSHIP OF RECORDS AND REPORTS: All files, reports, documents, information, and data prepared or assembled by Services Provider under this Agreement shall be and remain the property of City and shall be forwarded to City at any time City requires such papers but is subject to two (2) year retention schedule set forth in section 10 above. 17. CITY LICENSE REQUIRED: Services Provider represents and warrants that any license necessary to perform the work under this Agreement is current and valid. Services Provider understands that the activity described herein constitutes "doing business in the City of Apache Junction" and Services Provider agrees to obtain a non-profit license pursuant to Chapter 8 of the Apache Junction City Code, Vol. 1, and keep such license current during the Term of this Agreement. Services Provider also acknowledges that the tax provisions of the City of Apache Junction Tax Code may apply and, if so, shall obtain a tax privilege license through the Arizona Department of Revenue. 18. ASSIGNMENT & DELEGATION: This Agreement has been entered into based upon the reputation, expertise, and qualifications of Services Provider. Neither Party to this Agreement shall assign its rights or interest in the Agreement, either in whole or in part nor any monies due to or become due to it. In addition, all duties set forth herein are non-delegable. 19. ENTIRE AGREEMENT: This Agreement and any attachments represent the entire Agreement between City and Services Provider and supersede all prior negotiations, representations, or Agreements, either express or implied, written or 6 oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto. Written and signed amendments shall automatically become part of the supporting documents,and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 20. SEVERABILITY: City and Services Provider each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed Agreement (and any related Agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 21. CONFLICTS OF INTEREST: This Agreement is subject to, and may be terminated by City in accordance with, the provisions of A.R.S. § 38-511. 22. POLITICAL ACTIVITIES: As a community service-based organization, Services Provider is a non-political organization. Its employees are prohibited from engaging in any partisan political activity with respect to candidates for political office beyond the private expression of personal opinion, registering as a member of a political party, signing nomination petitions and voting in any special, primary or general election. No board member, officer or employee of Services Provider shall solicit any contribution in cash or services from any Services Provider employee to support any candidate for public office. No board member or officer shall use the name of Services Provider, or use their affiliation with Services Provider, to engage in any partisan political activity or form of lobbying, of any kind or to solicit any contribution in cash or services to support any candidate for public office. If a board member or officer should engage in said political candidate activities,they shall make it clear that they are doing so in their personal and private capacity, and are not associated with Services Provider in any way, while engaging in said activity. The functions and activities of Services Provider are non-political with respect to candidates for political office.Therefore,all board members,officers and employees will refrain from engaging in any partisan political activity or any form of lobbying, of whatsoever type or nature, while attending or participating in Services Provider function or event. This includes the circulation or signing of nomination petitions or soliciting any contributions in cash or services from anyone to support any candidate for public office. The above prohibition on lobbying includes communicating with commission members and councilmembers for the purpose of gaining an advantage in receiving health and human services funding. 7 23. COMPLIANCE WITH FEDERAL_IA ND STATE LAWS: Services Provider understands and acknowledges the applicability of the American with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the SOW.As required by A.R.S. §41-4401, Services Provider hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. § 23-214(A). Services Provider further warrants that after hiring an employee, Services Provider will verify the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this Agreement. Services Provider is subject to a penalty of$100 per day for the first violation, $500 per day for the second violation, and $1,000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Services Provider shall not be deemed in material breach of this Agreement if the Services Provider establishes compliance with the employment verification provisions of§§274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. § 23-214(A). City retains the legal right to inspect the papers of any Services Provider who works under this Agreement to ensure that the Services Provider is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times. If state law is amended, the Parties may modify this paragraph consistent with state law. 24. TIME OF ESSENCE: Time is of the essence of this Agreement and each provision hereof. 25. CONDITIONAL APPROVAL: The Parties understand and acknowledge this Agreement is approved on a conditional basis pending Services Provider's timely filing of complete and correct reports for the 4th quarter of the previous fiscal year (if prior year's funding was provided by City). The 4th quarter reports shall be filed within the deadlines established by the prior Agreement and must contain the required information as set forth in the prior Agreement. 26. PROHIBITION TO CONTRACT WITH SERVICES PROVIDER WHO ENGAGE IN BOYCOTT OF THE STATE OF ISRAEL: The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with a contractor or organization who engage in boycotts of the State of Israel. Should Services Provider under this Agreement engage in any such boycott against the State of Israel, this Agreement is automatically terminated. Any such boycott is a material breach of contract and will subject Services Provider to monetary damages,including but not limited to, consequential and liquidated damages. 8 IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representative as of the day and year first above written. SERVICES PROVIDER: THE SUPERSTITION COMMUNITY FOOD BANK, a 501(c)3 n�n-proft organization Print Name: Ei74 iG iqrLil-iota e Title: CITY: CITY OF APACHE JUNCTION, an Arizona municipal corporation By: Walter"Chip"Wilson Mayor ATTEST: JENNIFER PENA City Clerk APPROVED AS TO FORM: 621-22 RICHARD J. STERN City Attorney STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) The foregoin w s subsc 'b�d a d sworn to before me this q- day of��4 20 72 .. by ' as�c�CLA � . I►2cc�of THE SUPERSTITION COMMUNITY FOOD BANK, a 501(c)3 non-profit organization. 9 Notary Public My Commission Expires: Heather M Knoblauch 's. Notary Public-ARIZONA PINAL COUNTY Commission No.610909 My Commission Expires 07/1212025 STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this day of, 20 , by Chip Wilson, as Mayor of the City of Apache Junction, Arizona, an Arizona municipal corporation. Notary Public My Commission Expires. 10 EXHIBIT A Apache Junction City Code 06-10-2019 ARTICLE 2-14: REQUESTS FOR FINANCIAL ASSISTANCE 2-14-1 REQUESTS FOR NON-PROFIT FUNDING. (A) Required documentation. Any non-profit agency submitting a request for an allocation or grant of city funds shall submit to the city specific documentation including,but not limited to, the following: A copy of the agency's most recent audit report; a certified copy of the agency's most recent financial statement; detailed expenditure statements in order to provide a detailed accounting of all funds previously received from the city; complete information on the source and amount of funding received from all other sources such as non-governmental agencies, membership fees and dues, and private contributions; client service information as it applies to residents of the city; proof of non-profit status as determined by the Internal Revenue Service; proof of corporate status to include copies of by-laws and articles of incorporation; the source and amount of funding received from other governmental agencies; the names and addresses of current board members; and any other documentation as may be deemed necessary by the city. (B) Reporting requirements. Any non-profit agency receiving an allocation or grant of city funds shall be required to submit to the city, on a quarterly basis, a detailed accounting of the expenditure of city funds for the previous quarter, a written report outlining the agency's performance and accomplishments within the scope of work outlined in their contractual agreement with the city, and any other documentation as may be deemed necessary by the city in order to determine the agency's compliance with the provisions of the contract. (C) Conti-act required;procedure for distribution of funds. (1) All city funds allocated or granted to any non-profit agency shall be by means of a written contract based upon services to be provided to or work to be performed on behalf of the city and its residents in compliance with the provisions of Arizona Revised Statutes regarding the use of public funds. (2) All city funds allocated or granted under the provisions of this section shall be released in equal quarterly installments or quarterly payments based upon a schedule of anticipated expenses which has been approved by the Mayor and Council. No subsequent quarterly allocation or grant shall be released until such time that the receiving agency has provided all of the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the scope of work stipulated in their contract with the city. (D) Submittal of requuests for funding. All funding requests submitted by non-profit agencies for the allocation or grant of city funds shall be submitted to the City Clerk's office during the month of January of each year. Requests so submitted shall not be subject to city funding unless approved by the Council and only following adoption of a final budget for the subsequent fiscal year. (Ord. 659, passed 11-3-1998) Q§ 2-14-2 REQUESTS FOR FINANCIAL ASSISTANCE. All requests for financial assistance shall comply with the following stipulations and conditions: (A) All requests shall be filed by or on behalf of a valid, non-profit organization as qualified by the Internal Revenue Service and as registered with the Arizona Secretary of State, Arizona Corporation Commission or other appropriate state office. The registration shall be current and documentation of such status and registration shall be provided at the time of the request. This article shall not apply to governmental or quasi-governmental jurisdictions; 1 (B) All requests shall be submitted to the City Clerk during the month of January of each year in order to be eligible for consideration in conjunction with the subsequent fiscal year budget; (C) All requests received in accordance with division (B) above shall be referred to the appropriate city board or commission for purposes of review and recommendation to the Council; and (D) In those instances where a request is due to catastrophic circumstances or when the public health, safety and welfare is at risk, the requirements of this article may be waived by action of the Council. It is preferable, however, even in such instances, for the request to receive a review and recommendation from the appropriate city board or commission. (Prior Code, Art. 2-14) 2 EXHIBIT B Q i �11 Health and Human Services FY 2022-2023 Funding �-e-1 EXHIBIT B REPORTING REQUIREMENTS AJ PERFORMANCE REPORT/SCHEDULE OF COMPLETION Page I of I Recipient Superstition Food Bank Date Contract Noble No HHSC FY 22/23 Contract Period:July 1,2022 to June 30,2023 Quarter No Activity Provide Food Boxes Recipient Address 579 N Idaho Rd,Suite701, A ache Junction.AZ85119 Non-profit Contact Person ail Lynn Hanson Far Phone 701-710-4570 Emad lhansont8mnnlro com Contact Person r2 Phonel Email I Zip Code City Staff 1jennifer Pena Emad IDenadMartacheninclanaz iwv I County Pinal Indicate adherence to contract or schedule changes.Due by the 19th of each quarter for the preceeding quarter's activities. Statement of Work(SOW)Agreement Schedule Contract Date Complete Yes/No Modification Date Please provide a brief description of activities performed this three month period. Include occurrences that caused variation from schedule changes to plans,unforeseen circumstances,etc.Please be specific.Finally,answer questions at narrative section A.,B.,C.&D. Quarterly Narrative: A ;of certicaies of completion B.travel and airriculum receipts C.=of Ir.unmgs held D.;of attendees E c of agency parinersattending Insert Contact Person Name.electronic signature Recipient Authorized Signature Date ITitle 1 AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND GENESIS PROJECT FOR HEALTH AND HUMAN SERVICES FOR FISCAL YEAR 2022-2023 THIS AGREEMENT is made and entered into this day of , 2022 by and between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation ("City"), and GENESIS PROJECT, a 501 (c) 3 non-profit organization, ("Services Provider"), under the City's human services program, collectively referred to as the "Parties" or individually as a "Party". RECITALS A. Pursuant to Apache Junction City Code, ("A.J.C.C.") Volume I, Chapter 2: Mayor, Council, and Appointed Boards and Commission, Article 2-11: Health and Human Services Commission, and Article 2-14: Requests for Financial Assistance, (See Exhibit A), the City may provide financial assistance to non- profit agencies which provide city residents, elderly, handicapped, developmentally disabled care and other public health needs. B. The Health and Human Services Commission ("the Commission") has reviewed requests for city funding as submitted by health and human services providers for fiscal year 2022-2023. C. The Commission has submitted its recommendations to the city council. D. On June 20, 2022, the city council passed and adopted the 2022-2023 fiscal year budget, which included funding for health and human services for specific health and human services providers. E. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (C)(1), (See Exhibit A) all city funds allocated or granted to any non-profit agency shall be by means of a written contract based on services and/or a program (the "Program")for the City to be in compliance with the provisions of state law relating to the use of public funds. F. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, subsection 2-14-1, Requests for Non-Profit Funding, subsection (C)(2), (See Exhibit A), all city funds allocated by the council shall only be released to the Services Provider in equal quarterly installments or quarterly payments based on a schedule of anticipated expenses, and no subsequent quarterly allocation shall be released to the Services Provider until such time the receiving agency has provided all required documentation for the previous quarter along with satisfactory evidence of compliance with the scope of work ("SOW") pursuant to this Agreement. 1 G. Pursuant to A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, § 2-14-1, Requests for Non-Profit Funding, subsection (B), (See Exhibit A), the Services Provider must submit on a quarterly basis a detailed accounting of the performance and accomplishments within the SOW. AGREEMENT NOW, THEREFORE, in consideration of payment of public funds in exchange for health and human services to qualified recipients, both Parties agree to the terms and conditions set forth below as well as the Recitals set forth above: 1. SERVICES PROVIDER'S DUTIES: Services Provider agrees to perform the following SOW in connection with the Program: A. Provide to city residents assistance through a resource center, food, heat relief, clothing, hygiene items and hydration to individuals experiencing homelessness. B. Provide such programs and activities to residents of the city. C. Comply with all provisions of A.J.C.C., Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), and all other applicable city ordinances; submit contract proposal for fiscal year 2023-2024 to City on or before January 31, 2023. D. File with City all documentation for the previous quarter no later than the 15th day following the end of the quarter. City offices are open Monday through Thursday 7:00 a.m. to 6:00 p.m. City offices are closed Fridays, weekends and legal holidays. Quarter 1: July 1 thru September 30 Quarter 2: October 1 thru December 31 Quarter 3: January 1 thru March 31 Quarter 4: April 1 thru June 30 E. Submit to City typed or computer-generated quality reports; designate one primary and one secondary person as coordinators for the record keeping and disbursement of funds; assign one primary and one secondary person who shall monitor compliance and review reports. Such persons shall be responsible for submitting accurate reports to the Commission staff liaison and provide the names, email, and telephone numbers of the primary and secondary contact persons immediately upon the signing of this Agreement. Changes to the primary or secondary person(s) shall be reported in writing to the Commission staff 2 liaison within five (5) City working days following such change. F. All reports shall be sent by an approved electronic method either email or another form as identified by the commission, no other means shall be accepted. The Commission staff liaison will prescribe the format in which such reports shall be prepared and submitted. Any reports not prepared in accordance with this section shall be deemed rejected and shall constitute a breach of contract. A list of reporting requirements shall be noted in the format attached hereto(See Exhibit B). G. Funds are distributed on a reimbursable quarterly basis after the submittal of a quarterly report which outlines expenditures and activities completed as stipulated in the SOW and as confirmed by the City. Any funds disbursed by Services Provider in violation of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or this Agreement, shall be reimbursed to City. H. File the quarterly report and required documentation by the deadline set forth in § C above or risk disqualification for health and human services funding for fiscal year 2023-2024. Failure to file the quarterly report and required documentation by the deadlines set forth in § C above shall result in the immediate termination of this Agreement. I. Maintain a listing with the community information and referral service that supports Pinal County and the Apache Junction area during the Term of this Agreement. Services Provider shall also be represented at the Apache Junction Community Resource Center once monthly, during Project Connect events, and the annual Health and Wellness Expo. J. Services Provider's failure to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of this Agreement shall result in automatic termination of this Agreement. K. Any Services Provider staff responsible for the preparation of the required reports or requests for reimbursement shall be familiar with the terms and requirements of this Agreement in order to avoid processing errors. 2. COMPENSATION: In accordance with the terms and conditions of this Agreement, City shall compensate Services Provider for its services as follows: A. A total of$22,800 for fiscal year 2022-2023 for SOW performance. B. Compensation shall be in equal quarterly payments of$5,700. No 3 quarterly payment shall be released until Services Provider has provided all the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the terms and conditions of this Agreement. The deadline for receipt of such documentation is set forth in § 1 (C) above, and failure to comply with this deadline shall result in forfeiture of claim to the funds and will result in automatic termination of the Agreement. C. In accordance with the recommendations of the Commission and its subsequent acceptance by the Apache Junction city council, should any of the agencies receiving fiscal year 2022-2023 human services funding be unable to meet the requirements of A.J.C.C. Vol. I, Chapter 2: Mayor, Council and Appointed Boards and Commissions, Article 2-14: Requests for Financial Assistance, (See Exhibit A), or the terms of their respective Agreement, any unused funds shall be retained in City's general fund. D. In accordance with the recommendations of the Commission, representatives of the Services Provider identified in § 1 (C) above shall attend a mandatory training meeting at a time, date, and location to be scheduled by the staff liaison to the Commission in order to review terms and reporting requirements of this Agreement. The Services Provider representatives shall be those individuals who are responsible for compiling the information and filing the required quarterly reports. Failure of attendance by these critical representatives shall result in automatic termination of this Agreement. 3. TERM: This Agreement shall be effective beginning July 1, 2022, through June 30, 2023. 4. SERVICES PROVIDER BILLING: Services Provider shall bill City in the manner specified in § 2 above. 5. CITY'S STANDARD OF PERFORMANCE: City shall furnish the Services Provider with all data, information and other supporting services as may be required. 6. SERVICES PROVIDER'S STANDARD OF PERFORMANCE: While performing the services, Services Provider shall exercise the reasonable professional care and skill customarily exercised by reputable members of Services Provider's profession practicing in the Phoenix Metropolitan Area and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. Services Provider shall be responsible for all errors and omissions Services Provider commits in the performance of this Agreement. 7. NOTICES: All notices to the other party required under this Agreement shall be in writing and sent by first class certified mail, postage prepaid, return receipt requested, addressed to the following personnel: 4 If to City: Jennifer Pena, City Clerk City of Apache Junction 300 E. Superstition Boulevard Apache Junction, AZ 85119 If to Services Provider: Trinity Cole, Agency Director Genesis Project 564 N. Idaho Rd., Ste 5 Apache Junction, AZ 85120 8. TERMINATION: This Agreement may be terminated by either Party for any reason upon fifteen (15) calendar days written notice. In the event this Agreement is terminated for any reason prior to the completion of the full period of performance as stated herein, City shall be liable to Services Provider for those verifiable costs incurred by Services Provider which are in accordance with the original proposal, only up to the date of such termination and not thereafter. 9. SUBCONTRACTORS: Services Provider shall perform all services set forth in the SOW as in § 1 above and shall not use subcontractors. 10. RECORDS: Records of Services Provider's labor, payroll, and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request. Services Provider shall maintain records for a period of at least two (2)years after termination of this Agreement and shall make such records available during that retention period for examination or audit by City personnel during regular business hours. 11. RIGHT OF CITY TO CONTRACT WITH OTHERS: Nothing in this Agreement shall imply City is obligated to obtain the services described herein with only this particular Services Provider. 12. INDEMNIFICATION: To the fullest extent permitted by law, Services Provider shall defend, indemnify, and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability, including but not limited to, demands, claims, actions,fees, costs and expenses, including attorney and expert witness fees, arising from or connected or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Services Provider, its agents, and employees. Services Provider's duty to defend, hold harmless and indemnify City, its special districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by a Services Provider's acts, errors, mistakes, omissions, work program or services in the performance of this Agreement including any employee of Services Provider. 13. WAIVER OF TERMS AND CONDITIONS: The failure of City to insist in any one or more instances on performance of any of the terms or conditions of this Agreement 5 or to exercise any right or privilege contained herein shall not be considered as thereafter waiving such terms, conditions, rights, or privileges, and they shall remain in full force and effect. 14. INDEPENDENT CONTRACTOR: Services Provider shall at all times during Services Provider's performance of the services retain Services Provider's status as independent contractor. Services Provider's employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes or provide workers' compensation or unemployment insurance for or on behalf of them or Services Provider. 15. APPLICABLE LAW AND VENUE: The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees and court costs. 16. OWNERSHIP OF RECORDS AND REPORTS: All files, reports, documents, information, and data prepared or assembled by Services Provider under this Agreement shall be and remain the property of City and shall be forwarded to City at any time City requires such papers but is subject to two (2) year retention schedule set forth in section 10 above. 17. CITY LICENSE REQUIRED: Services Provider represents and warrants that any license necessary to perform the work under this Agreement is current and valid. Services Provider understands that the activity described herein constitutes "doing business in the City of Apache Junction" and Services Provider agrees to obtain a non-profit license pursuant to Chapter 8 of the Apache Junction City Code, Vol. I, and keep such license current during the Term of this Agreement. Services Provider also acknowledges that the tax provisions of the City of Apache Junction Tax Code may apply and, if so, shall obtain a tax privilege license through the Arizona Department of Revenue. 18. ASSIGNMENT & DELEGATION: This Agreement has been entered into based upon the reputation, expertise, and qualifications of Services Provider. Neither Party to this Agreement shall assign its rights or interest in the Agreement, either in whole or in part nor any monies due to or become due to it. In addition, all duties set forth herein are non-delegable. 19. ENTIRE AGREEMENT: This Agreement and any attachments represent the entire Agreement between City and Services Provider and supersede all prior negotiations, representations, or Agreements, either express or implied, written or 6 oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto. Written and signed amendments shall automatically become part of the supporting documents,and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 20. SEVERABILITY: City and Services Provider each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed Agreement (and any related Agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 21. CONFLICTS OF INTEREST: This Agreement is subject to, and may be terminated by City in accordance with, the provisions of A.R.S. § 38-511. 22. POLITICAL ACTIVITIES: As a community service-based organization, Services Provider is a non-political organization. Its employees are prohibited from engaging in any partisan political activity with respect to candidates for political office beyond the private expression of personal opinion, registering as a member of a political party, signing nomination petitions and voting in any special, primary or general election. No board member, officer or employee of Services Provider shall solicit any contribution in cash or services from any Services Provider employee to support any candidate for public office. No board member or officer shall use the name of Services Provider, or use their affiliation with Services Provider, to engage in any partisan political activity or form of lobbying, of any kind or to solicit any contribution in cash or services to support any candidate for public office. If a board member or officer should engage in said political candidate activities,they shall make it clear that they are doing so in their personal and private capacity, and are not associated with Services Provider in any way, while engaging in said activity. The functions and activities of Services Provider are non-political with respect to candidates for political office.Therefore, all board members,officers and employees will refrain from engaging in any partisan political activity or any form of lobbying, of whatsoever type or nature, while attending or participating in Services Provider function or event. This includes the circulation or signing of nomination petitions or soliciting any contributions in cash or services from anyone to support any candidate for public office. The above prohibition on lobbying includes communicating with commission members and councilmembers for the purpose of gaining an advantage in receiving health and human services funding. 7 23. COMPLIANCE WITH FEDERAL AND STATE LAWS: Services Provider understands and acknowledges the applicability of the American with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the SOW.As required by A.R.S. §41-4401, Services Provider hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. § 23-214(A). Services Provider further warrants that after hiring an employee, Services Provider will verify the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this Agreement. Services Provider is subject to a penalty of$100 per day for the first violation, $500 per day for the second violation, and $1,000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Services Provider shall not be deemed in material breach of this Agreement if the Services Provider establishes compliance with the employment verification provisions of§§ 274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. § 23-214(A). City retains the legal right to inspect the papers of any Services Provider who works under this Agreement to ensure that the Services Provider is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times. If state law is amended, the Parties may modify this paragraph consistent with state law. 24. TIME OF ESSENCE: Time is of the essence of this Agreement and each provision hereof. 25. CONDITIONAL APPROVAL: The Parties understand and acknowledge this Agreement is approved on a conditional basis pending Services Provider's timely filing of complete and correct reports for the 4th quarter of the previous fiscal year (if prior year's funding was provided by City). The 4th quarter reports shall be filed within the deadlines established by the prior Agreement and must contain the required information as set forth in the prior Agreement. 26. PROHIBITION TO CONTRACT WITH SERVICES PROVIDER WHO ENGAGE IN BOYCOTT OF THE STATE OF ISRAEL: The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with a contractor or organization who engage in boycotts of the State of Israel. Should Services Provider under this Agreement engage in any such boycott against the State of Israel, this Agreement is automatically terminated. Any such boycott is a material breach of contract and will subject Services Provider to monetary damages, including but not limited to, consequential and liquidated damages. 8 IN WITNESS WHEREOF,the parties have caused this Agreement to be signed by their duly authorized representative as of the day and year first above written. SERVICES PROVIDER: GENESIS PROJECT,a 501(c)3 non-profit organization By: L. Cct PrintName: _,, GAa 9. 1411&5oA/ Title: c'ta g 4- A--CITY. CITY OF APACHE JUNCTION,an Arizona municipal corporation By:Walter"Chip"Wilson Mayor ATTEST: JENNIFER PE RA City Clerk APPROVED AS TO FORM: A� 6-2g22 RICHARD J.STERN City Attorney STATE OF ARIZONA } )ss. COUNTY OF PINAL } h The foregoing was subscribed and sworn to before me this E day of V4 20_41a,by 7 oc,n f:. Irv;ISon as 0 0;e.e 0tit4•,ayc� of Genesis Project,a 501(c)3 non-profit organization. 9 N My Commission Expires: MAIMN a00RIGUE2 Notary Puhlk•Aft"a Plnal County Conanissbn it W"62 My Camrd.Expires MaY 6,2025 STATE OF ARIZONA ) )ss. COUNTY OF PINAL ) The foregoing was subscribed and sworn to before me this day of, 20 .by Chip Wilson,as Mayor of the City of Apache Junction, Arizona, an Arizona municipal corporation. Notary Public My Commission Expires: 10 EXHIBIT A Apache Junction City Code 06-10-2019 ARTICLE 2-14: REQUESTS FOR FINANCIAL ASSISTANCE 2-14-1 REQUESTS FOR NON-PROFIT FUNDING. (A) Required documentation. Any non-profit agency submitting a request for an allocation or grant of city funds shall submit to the city specific documentation including, but not limited to, the following: A copy of the agency's most recent audit report; a certified copy of the agency's most recent financial statement; detailed expenditure statements in order to provide a detailed accounting of all funds previously received from the city; complete information on the source and amount of funding received from all other sources such as non-governmental agencies, membership fees and dues, and private contributions; client service information as it applies to residents of the city; proof of non-profit status as determined by the Internal Revenue Service; proof of corporate status to include copies of by-laws and articles of incorporation; the source and amount of funding received from other governmental agencies; the names and addresses of current board members; and any other documentation as may be deemed necessary by the city. (B) Reporting requirements. Any non-profit agency receiving an allocation or grant of city funds shall be required to submit to the city, on a quarterly basis, a detailed accounting of the expenditure of city funds for the previous quarter, a written report outlining the agency's performance and accomplishments within the scope of work outlined in their contractual agreement with the city, and any other documentation as may be deemed necessary by the city in order to determine the agency's compliance with the provisions of the contract. (C) Contract required;procedure for distribution of finds. (1) All city funds allocated or granted to any non-profit agency shall be by means of a written contract based upon services to be provided to or work to be performed on behalf of the city and its residents in compliance with the provisions of Arizona Revised Statutes regarding the use of public funds. (2) All city funds allocated or granted under the provisions of this section shall be released in equal quarterly installments or quarterly payments based upon a schedule of anticipated expenses which has been approved by the Mayor and Council. No subsequent quarterly allocation or grant shall be released until such time that the receiving agency has provided all of the required documentation for the previous quarter and has provided satisfactory evidence of compliance with the scope of work stipulated in their contract with the city. (D) Submittal of requests for finding. All funding requests submitted by non-profit agencies for the allocation or grant of city funds shall be submitted to the City Clerk's office during the month of January of each year. Requests so submitted shall not be subject to city funding unless approved by the Council and only following adoption of a final budget for the subsequent fiscal year. (Ord. 659, passed 11-3-1998) § 2-14-2 REQUESTS FOR FINANCIAL ASSISTANCE. All requests for financial assistance shall comply with the following stipulations and conditions: (A) All requests shall be filed by or on behalf of a valid, non-profit organization as qualified by the Internal Revenue Service and as registered with the Arizona Secretary of State, Arizona Corporation Commission or other appropriate state office. The registration shall be current and documentation of such status and registration shall be provided at the time of the request. This article shall not apply to governmental or quasi-governmental jurisdictions; 1 (B) All requests shall be submitted to the City Clerk during the month of January of each year in order to be eligible for consideration in conjunction with the subsequent fiscal year budget; (C) All requests received in accordance with division(B) above shall be referred to the appropriate city board or commission for purposes of review and recommendation to the Council; and (D) In those instances where a request is due to catastrophic circumstances or when the public health, safety and welfare is at risk, the requirements of this article may be waived by action of the Council. It is preferable,however, even in such instances, for the request to receive a review and recommendation from the appropriate city board or commission. (Prior Code, Art. 2-14) 2 EXHIBIT B D � �1 Health and Human Services FY 2022-2023 Funding a,!1 EXHIBIT B REPORTING REQUIREMENTS AJ PERFORMANCE REPORT/SCHEDULE OF COMPLETION Page I of 1 Recipient Genesis Project Date Contract No.He No HHSC FY 2022-2023 Contract Period:July1,2022 to June 30,2023 Quarter No Activity Provide community programs and support Recipient Address 564 N Idaho Rd,Suite 5, Apache Junction.AZ 85119 Non-profit Contact Person 91 Trinity Cole Fax Phone 480-371-9117 Email trinity coleAltw com Contact Person r2 Phonel Email Zip Code City Staff 1jennifer Pena Email iPena(&apacheiuncttortaz tlov I County Pinal Indicate adherence to contractor schedule changes.Due by the 19th of each quarter for the preceeding quarter's activities. Statement of Work(SOW)Agreement Schedule Contract Date Complete Yes/No Modification Date Please provide a brief description of activities performed this three month period. Include occurrences that caused variation from schedule changes to plans,unforeseen circumstances,etc.Please be specific.Finally,answer questions at narrative section A.,B.,C.&D. Quarterly Narrative: A -of certicates of completion B travel and curriculum receipts C-of training,;held D;of attendees E-of agency partners attending Insert Contact Person Nameielectronic signature Recipient Authorized Signature Date Title 1 Agenda Item Cover Sheet City of Apache Junction, Arizona 300 E Superstition Boulevard Apache Junction, AZ 85119 File ID: 22-354 Agenda Item No. 15. Agenda Date: 6/21/2022 Sponsor: Jennifer Pena In Control: City Council MeetingIndex: Executive Session at 6:00 P.M. for Tuesday, July 5th, in the city council conference room located at 300 E. Superstition Boulevard in Apache Junction, Arizona and other meetings scheduled if necessary. Page 1 City of Apache Junction, Arizona Printed on 6/17/2026