HomeMy WebLinkAbout2009-344
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RESOLUTION NO. 2009-344
RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING A
LICENSE AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY, L.P.
PERMITTING ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE
CITY.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1.
The City Manager of the City of San Bernardino is hereby
authorized and directed to execute on behalf of said City a License Agreement with Sprint
Communications Company, L.P. permitting access to communications conduit beneath the
city, a copy of which is attached hereto marked Exhibit A and incorporated herein by
reference as fully as though set forth at length.
SECTION 2.
The expiration date for this Agreement is consistent with a
matching License Agreement adopted by the Mayor and Common Council on June 15,
2009 as Resolution 2009-145 for a Southern conduit route.
SECTION 3.
This License shall take effect immediately upon adoption of
this Resolution.
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2009-344
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING A
LICENSE AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY, L.P.
PERMITTING ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE
CITY.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Mayor and Common Council of the City of San Bernardino at a i oint regular
meeting thereof, held on the ~ day of November
, 2009, by the following vote,
to wit:
Council Members: AYES NAYS ABST AIN ABSENT
ESTRADA X
BAXTER x
BRINKER x
SHORETT x
-
KELLEY x .,
JOHNSON x
MCCAMMACK x
Q~k. ~
Rachel G. Clark, City Clerk
D~
The foregoing resolution is hereby approved this
day of November ,
2009.
-~~
atric J. Mortis, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City orney
2
Sprint ~
Sprint
6391 Sprint Parkway
Mailstop KSOPHTOI01.22040
Overland Park, KS 66251
Keith J. Thompson
Manager, Real Estate
December 11, 2009
Valerie Ross
Director
Development Services Department
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
RE: License between the City of San Bernardino and Sprint Communications Company L.P.,
effectively dated November 2,2009 (the "Agreement")
Dear Ms. Ross:
Please strike the notice address for Sprint Communications Company L.P.' s Transaction
Manager ROW on page 8 of the Agreement and replace with the following:
Sprint Communications Company L.P.
Manager, Real Estate
6391 Sprint Parkway
MS: KSOPHT0101-Z2040
Overland Park, KS 66251
Please sign and return one original for Sprint's records. Please contact Charlene White at 913-
794-8199 or via email at charlene.white@sprint.com with any questions. Thank you for your
attention to this matter.
Agreed to this ~q day of PB?;,;. , 2009.
City of San Bernardino, CA
Keith J. Thompson
Manager, Real Estate
By: MiwiJ &, ~H1'
Name: y~W-;? /G (;, RrPS
Title: DraI/3l.O~ Se;zrlce5
]) Iff Eb7Jf2-
eN 7492, AN 521381
2009-344
EXHIBIT "A"
LICENSE
THIS LI CENSE is made and entered into this 2nd
day of
November
, 2009, by and between SPRINT COMMUNICATIONS
COMPANY L.P., hereinafter referred to as "Licensee," and the CITY OF SAN
BERNARDINO, a municipal corporation hereafter referred to as "City."
WITNESSETH:
F or and in consideration of the mutual promises and covenants herein contained,
the parties hereby agree as follows:
1. City gives permission, removable and terminable as hereinafter provided,
to Licensee to encroach upon, construct, maintain, inspect, operate, protect, repair,
replace and retain in place a buried communications conduit and appurtenances thereto in
and around Cajon Boulevard and in and around Macy Street and environs, as generally
depicted in Attachment "1," which is incorporated herein by this reference, for the
purpose of data transmission to customers, clients, and entities outside of the City of San
Bernardino. This license only applies to those portions of the streets within the City's
right-of-w~ay. No electric current will flow through this conduit, nor will there be any
pressure inside the conduit. The conduit shall be used for transmitting communications
through such buried communications conduit, in, under, along and across public streets,
highways and alleys of the City of San Bernardino. However, no distribution of
communication services to residents within the City is authorized by this Agreement, and
the conduit authorized by this Agreement shall not be used for distribution of
communication signals to individual persons, businesses or organizations within the City
of San Bernardino. In the event that Licensee at any future time desires to use the
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2009-344
conduit authorized by this Agreement for distribution of communication signals to
residents, businesses or organizations within the City of San Bernardino, Licensee shall
obtain a Franchise Agreement before undertaking any such service, and subject to any
requirements or conditions as may be imposed by the City.
2. Unless terminated earlier as provided herein, the term of this License shall
expire on December 31, 2015. This expiration date is consistent with a matching License
Agreement adopted by the Mayor and Common Council on June 15, 2009 as Resolution
2009-145 for a Southern conduit route.
3. Except in cases of emergency, prior to start of construction, maintenance,
inspection, repair, or removal of the conduit, Licensee or its Contractor shall obtain a
Public Works Construction Permit from the Public Works Division of the Development
Services Department and comply with all conditions contained therein. In cases of
emergency, a permit shall be obtained within two (2) business days of commencement of
work.
4. Licensee, for its contractors and/or subcontractors hereby acknowledges
and agrees that the nearby residential areas are sensitive noise receptors and operations
shall be conducted with due regard for that sensitivity. The City's noise ordinance limits
construction to between the hours of 7:00 AM and 10:00 PM. Unless approved by the
Director of Development Services, no work shall be permitted on holidays or weekends
except in cases of emergency.
5. The Licensee shall ensure that all Contractors and subcontractors, prior to
beginning work on this project, first obtain a City Business Registration Certificate from
the City Clerk of the City.
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2009-344
6. This License is given to Licensee as an accommodation to Licensee and is
subject to an initial fee of $625.00 and the payment of an annual license maintenance fee
of $150.00. The first payment is due upon execution of this License. Subsequent
payments are due on the first day of January of each subsequent year.
7. Licensee hereby acknowledges the title and paramount interest of City to
the real property in which the conduit is located. Licensee agrees never to assail or resist
said title or interest and to observe present or future set-back requirements relating
thereto while this License is in force and effect.
8. City and Licensee each reserves the right to terminate this License at any
time for any reason, or for no reason, by giving the other at least thirty (30) calendar days
prior written notice of such termination, except that City may, at its election, terminate
said permission forthwith at any time if Licensee shall fail to comply with any of the
provisions of this License. Subject to the above, in the event of a breach by either party,
the breaching party may be given written notice of such breach and an opportunity to
cure such breach within 30 days of receiving notice. If such cure shall require longer
than 30 days, the parties shall mutually agree to a schedule for curing such breach, said
schedule not to be more than 90 calendar days. Waiver by the City of any breach of any
term or provision herein shall not be deemed a waiver of any subsequent breach of the
same or any other term or provision of this License.
9. Licensee agrees to install, use and maintain said encroachment as required
by this License. Said encroachment shall be maintained at all times in a safe, neat, sightly
manner and good physical condition. City shall be the sole judge, subject to reasonable
standards, of the quality of maintenance. In addition to, and without abrogating any rights
contained in paragraph 8, upon 30 calendar days prior written notice by City through its
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Director of Development Services, stating in general terms how and in what manner the
maintenance is required, Licensee shall commence such required maintenance, and
complete same within 30 calendar days unless otherwise agreed to by the City in writing.
If Licensee fails to do so, then City shall have the right to perform this maintenance, the
cost of which shall be borne by Licensee. City may, at its election, exercise its right to
require the performance of the maintenance and terminate this License. Licensee further
agrees to install, use and maintain said encroachment in conformity with all applicable
Federal, State, and local laws, rules and regulations. Licensee shall, at its sole
responsibility and its own expense, obtain and keep in effect all licenses, bonds and
permits necessary for the installation and existence of said encroachment.
10. Upon termination of this License, Licensee shall remove any
encroachment from the real property unless otherwise agreed to in writing by City prior
to the date of termination. Licensee shall have 60 calendar days from the date of
termination of this License to remove all encroachments. If Licensee fails to exercise its
duties under this paragraph, City shall have the right to remove said encroachment and to
restore the premises at no cost or liability to the City. Licensee hereby covenants and
agrees to reimburse City for all costs of removal and/or restoration.
11. City shall in no way be liable for any loss or damage to Licensee or any
third-party caused by Licensee's encroachment permitted under this License. City shall in
no way be liable for any property belonging to or leased by Licensee, its officers,
servants, agents or employees, that may be stolen, destroyed or in any way damaged
during the installation, use or maintenance of said encroachment. Licensee shall save,
indemnify, defend and hold harmless City, its elective and appointive boards,
commissions, officers, agents, and employees from any costs, claims, damages, injuries,
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and liability, in whole or in part, whether brought by, or on behalf of, Licensee, any City
employee or any third party or any other person or entity, resulting from, or arising out
of, Licensee's installation, use, or maintenance of said encroachment, except to the extent
arising out of the negligence or intentional act of City or its agents.
12. Licensee shall exercise its privileges under this license at its own risk.
Licensee shall save, indemnify, defend and hold harmless City, its elective and
appointive boards, commissions, officers, agents and employees from any costs, claims,
damages, injuries, and liability, in whole or in part, whether brought by, or on behalf of,
Licensee, any City employee or third party, or any other person or entity, resulting from,
or arising out of the City's approval of this License, or the use or maintenance of said
encroachment by Licensee, the occupation or use of the public areas of said
encroachment by Licensee, both during and after the installation thereof, and including
but not limited to any costs, claims, damages, injuries, and liability resulting from the
conduct of Licensee or the employees, invitees, guests or agents of Licensee related to
said encroachment except to the extent arising out of the sole negligence or intentional
act of City or its agents.
13. The Licensee's attention is directed to Section 7-3, "Liability Insurance",
of the Standard Specifications for Public Works Construction, 2006 Edition, providing
that the Licensee or its Contractor, prior to beginning work on the property, shall furnish
the City with policies or certificates of liability insurance. All of the Insurance Policies
shall name the City of San Bernardino as an additional insured on the liability policies
only. Licensee will provide a certificate of insurance to evidence coverage. During the
entire term of this Agreement, Licensee shall maintain minimum limits of insurance no
less than:
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A) General Liability: $1,000,000,00 per occurrence and $2.000,000
aggregate for bodily injury, personal injury and property damage.
B) Products/Completed Operations: $1,000,000.00 per occurrence and
$2,000,000.00 aggregate.
C) Automobile Liability: $1,000,000.00 per accident for bodily injUry and
property damage.
D) Employer's Liability: $1,000,000.00 per accident for bodily injUry or
illness.
E. Licensee shall comply with all applicable California Workers'
Compensation requirements prior to commencement of any work related to this
agreement.
F) The above-referenced Insurance Policies shall remain in effect during the
entire term of Licensee's encroachment and shall survive the termination of this
License. The above-referenced Insurance Policies shall not be canceled until after
Licensee has provided thirty (30) days written notice to the City.
14. This License is personal to Licensee. It is nonassignable, except with the
written consent of the City, and any assignment of this License without such consent will
terminate the License privileges granted to Licensee. The City shall not unreasonably
withhold consent. Notwithstanding the foregoing, no consent of Licensor is required and
Licensee may notify Licensor up to 30 days after assignment if: (a) prior notice to
Licensor would constitute the transmittal of material non-public information or inside
information; or (b) Licensee assigns to any entity controlled, controlling or under
common control with Licensee. Despite any assignment under (a) or (b), above, Licensee
will not be released from its obligations under this License.
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2009-344
15. Licensee agrees that should any action, whether real or asserted, at law or
in equity, arise out of the terms of this License, or by Licensee's operations hereunder,
venue for that action shall lie in San Bernardino County, California, or if in federal court,
in Riverside County, California.
16. This license shall be governed by the laws of the state of California and
the federal laws of the United States.
17. Licensee hereby certifies that it will not discriminate against any employee
or applicant for employment because of race, color, religion, sex, marital status, national
origin, disability, or any other category prohibited by law. Licensee's hiring practices and
employee policies shall comply with all applicable Federal, State and local laws. Such
action shall include, but not be limited to, the following: recruitment and recruitment
advertising, employment, upgrading and promotion.
18. The prevailing party in any legal action to enforce or interpret any
provision( s) of this License shall be entitled to recover from the losing party all
reasonable attorney's fees (including the City Attorney), court costs and necessary
disbursements in connection with that action.
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LICENSE for encroachment to maintain conduit in and around Cajon Boulevard
and in and around Macy Street in the City of San Bernardino.
All official notices relative to this License shall be in writing and addressed to the
following representatives of Licensee and City:
Licensee
City
Mr. Alex Knapp
Transaction Manager ROW
Sprint Communications Company L.P.
6391 Sprint Parkway
MS: KSOPHT 0101-Z2040
Overland Park, KS 66251
Ph. (913) 315-4568
Fax. (913) 523-8337
Ms. Valerie C. Ross, Director
Development Services Department
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Ph: (909) 384-5357
Fax: (909) 384-5155
With copy to:
Sprint Communications Company L.P.
6391 Sprint Parkway
MS: KSOPHT0101-Z2020
Overland Park, KS 66251
ATTN: Real Estate Attorney
IN WITNESS, the parties have executed this License on date first written above.
CITY OF SAN BERNARDINO
J
/(J/
SPRINT COMMUNICATIONS
COMPANY L.P.
Approved as to form:
James F. Penman
City Attorney
B~4'~ ~ -~
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AIt-~~ A
Sprint Fiber Optic Facilities
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