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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Prepared by: Catherine Pritchett,
Management Analyst I
Subject: 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.
From: Charles McNeely, City Manager
Dept: City Manager's Office
Date May 19,2009
Meeting Date: June 15,2009
Synopsis of Previous Council Action
December, 1983 - The Mayor and Common Council authorize a Franchise Agreement with
GTE Sprint Communications to construct, operate and maintain buried
communications conduit in the City of San Bernardino.
Recommended Motion:
Adopt Resolution
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Signature
Contact person: Catherine Pritchett, Management Analyst I
Phone: 384-5122
Supporting data attached: Staff Report, Resolution, Agreement Ward: 3rd
FUNDING REQUIREMENTS:
No cost to the City
Amount:
$625.00 in FY 08/09
Source:
Sprint Communications
Company, L.P.
Council Notes:
Finance:
I?.so 2()09- /45
Agenda Item No. 10
1I~/I)~olf
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subiect:
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.
Backl!round:
In 1983, the City of San Bernardino entered into a Franchise Agreement allowing Sprint
Communications to construct, maintain and operate communications conduit within the City. This
conduit runs beneath the City in the vicinity of Redlands Boulevard between the City of Redlands
and the City of Colton. The communications conduit is used for the purpose of data transmission to
customers outside of the City of San Bernardino and does not provide communication services to
residents, businesses or any other entity within the City of San Bernardino.
The 1983 Franchise Agreement was for a period of 25 years, and expired in December of 2008. In
June of 2007, staff was contacted by Sprint requesting a new Agreement. Uncertain about the
necessity of an extensive Franchise Agreement, staff referred this matter to the City Attorney's
Office for review. The City Attorney's Office negotiated with Sprint to create a License
Agreement allowing Sprint to encroach upon, construct, maintain, inspect, operate, protect, repair,
replace and retain the portion of the conduit within the boundaries of the City.
This seven (7) year License Agreement is subject to a one time fee of $625.00, as well as an annual
license maintenance fee of $150.00. The first payment is due upon the execution of this License;
annual payments are due in January of each succeeding year.
This license does not allow for the distribution of communication services to City residents. In the
event that Sprint wishes to provide services to residents, they will be required to enter into a
comprehensive Franchise Agreement with the City.
Financial Impact:
$625.00 in revenue for FY 2008/2009
Revenue Account No. 001-000-4520
Six annual payments of$150.00 beginning in January 2010
Recommendation:
Adopt Resolution.
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RESOLUTION NO.
CC(Q)~)f
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. This License shall take effect immediately upon adoption of this
Resolution.
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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
6 meeting thereof, held on the _ day of
, 2009, by the following vote,
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to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
MCCAMMACK
Rachel G. Clark, City Clerk
day of
The foregoing resolution is hereby approved this
2009.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City Attorney
Br!- 3'~
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EXHIBIT "A"
LICENSE
THIS LICENSE IS made and entered into this day of
, 200_, 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:
For and in consideration of the mutual promises and covenants herein contained,
the parties hereby agree as follows:
I. 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 Redlands Boulevard 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. 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 conduit authorized by this Agreement for
distribution of communication signals to residents, businesses or organizations within the
10[8
,\-I ,i;; LPt '1 'i
EXHIBIT "A"
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
be seven (7) years, to December 31, 2015.
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.
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.
20f8
EXHIBIT "A"
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
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
30f8
EXHIBIT "A"
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.
II. 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,
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.
40f8
EXHIBIT "A"
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 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:
A) General Liability: $1,000,000.00 per occurrence and $2,000,000
aggregate for bodily injury, personal injury and property damage.
50f8
EXHIBIT "A"
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 ofthe 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.
60f8
EXHIBIT "A"
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. 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.
17. 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, court costs and necessary disbursements in connection with
that action. The costs, salary and expenses of the City Attorney and members of his
office in connection with that action, shall be considered as attorney's fees for the
purposes of this License.
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70f8
EXHIBIT" A"
LICENSE for encroachment to maintain conduit In and around Redlands
Boulevard 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
Asset Manager - Linear Facilities
Enterprise Real Estate
Sprint Communications Company, L.P
6391 Sprint Parkway
MS: KSOPHT 0101-Z2040
Overland Park, KS 66251
Ph: (913) 439-5347
Fax: (913) 523-8337
With Copy to:
Sprint Communications Company, L.P.
6391 Sprint Parkway
MS: KSOPHTOI01-Z2020
Overland Park, KS 66251
A TIN: Real Estate Attorney
Citv
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
IN WITNESS, the parties have executed this License on date first written above.
CITY OF SAN BERNARDINO
Charles McNe~ly, City Manager
Approved as to form:
James F. Penman
City Attorney
80f8
SPRINT COMMUNICATIONS
COMPANY, L.P.
ATTACHMENT 1
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