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HomeMy WebLinkAbout05.R- Two Ground License Agreements with Sprint Communications Company 5.R RESOLUTION (ID # 4340) DOC ID: 4340 A CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Agreement/Contract Amendment From: Marlene Miyoshi M/CC Meeting Date: 03/21/2016 Prepared by: Fawna Velci, (909) 384- 5140 Dept: Public Works Ward(s): All Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Approving Amendment No. 1 to Two Ground License Agreements with Sprint Communications Company for Access to Communications Conduit Beneath the City. (#4340) Current Business Registration Certificate: Not Applicable Financial Impact: The processing fee of$682.50 for each license has been collected and the City will continue to receive an annual lease payment of$150 per the existing terms of the agreement. Motion: Adopt the Resolution. Synopsis of Previous Council Action: 6/15/2009 Resolution 2009-145 authorized a license agreement with Sprint Communications Company, L.P. permitting access to Communications Conduit Beneath City near Redlands Boulevard. 11/2/2009 Resolution 2009-344 authorized a license agreement with Sprint Communications Company, L.P. permitting access to Communications Conduit Beneath City near Cajon Boulevard and Macy Street. Background: The City currently has two license agreements with Sprint Communications Company, L.P. to access buried communications conduits in Cajon Boulevard, Macy Street and Redlands Boulevard. The conduits are necessary for Sprint Communications to transmit data and communications to customers outside the City. The ground license agreements expired on December 31, 2015 and were administratively extended by the City until March 30, 2016. The City has received a request from Sprint to amend the Licenses term for an additional ten years, with a resulting expiration date of December 31, 2025. The proposed extension is necessary for Sprint to continue to operate and maintain its existing buried telecommunications fiber optic cable in the City's right of way. Staff is recommending the approval of Amendment No. 1 to lease 2009-145, attached herein as Packet Pg. 448 Updated: 3/17/2016 by Georgeann "Gigi" Hanna A ' 5.R 4340 Exhibit "A" and Amendment No. 1 to lease 2009-344, attached herein as Exhibit "B" to extend the term for an additional ten years. City Attorney Review: Yes Supporting Documents: Resolution for Amendment 1 to Sprint Licenses(DOC) agrmt. 4340 A (PDF) Resolution 2009-145 and Agreement (PDF) Agrmt. 4340 B (PDF) Resolution 2009-344 and Agreement (PDF) Updated: 3/17/2016 by Georgeann "Gigi" Hanna A Packet Pg. 449 5.R.a 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AMENDMENT NO. I TO TWO GROUND # 3 LICENSE AGREEMENTS WITH SPRINT COMMUNICATIONS COMPANY FOR ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE CITY. 4 F 0 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 w 7 SECTION 1. The City Manager is hereby authorized and directed to execute U) J 8 Amendment No. 1 to License 2009-145 between Sprint Communications Company, L.P. and 0 9 the City of San Bernardino, said Amendment being attached hereto as Exhibit"A" and made a cD 41 10 part hereof. C SECTION 2. The City Manager is hereby authorized and directed to execute 12 Amendment No. 1 to License 2009-344 between Sprint Communications Company, L.P. and 13 Q) 14 the City of San Bernardino, said Amendment being attached hereto as Exhibit "B" and made a J 15 part hereof. = �L Q. 16 SECTION 2. The authorization to execute the above-referenced Agreements is o 17 rescinded if it is not executed within one hundred and twenty (120) days of the passage of this CD 18 Resolution. a� 19 E a 20 O 21 0 22 23 E 24 Ca 25 a 26 27 28 1 Packet Pg. 450 5.R.a P 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AMENDMENT NO. 1 TO TWO GROUND 2 LICENSE AGREEMENTS WITH SPRINT COMMUNICATIONS COMPANY FOR ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE CITY. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor o g _ 5 N and Common Council of the City of San Bernardino at a meeting x 6 w 7 thereof, held on the day of , 2016, by the following vote, to wit: J 8 Council Members: AYES NAYS ABSTAIN ABSENT _ 0 L 9 MARQUEZ 10 �. BARRIOS 11 0° 12 VALDIVIA 13 SHORETT y a� 14 NICKEL J 15 RICHARD = Q co 16 MULVIHILL 0 r 17 = 18 19 Georgeann Hanna, City Clerk E L 20 The foregoing resolution is hereby approved this day of 12016. ° 0 21 0 22 R. CAREY DAVIS, Mayor 23 City of San Bernardino E 24 Approved as to form: 25 GARY D. SAENZ, City Attorney 26 By: 27 28 2 Packet Pg. 451 5.R.b EXHIBIT "A" AMENDMENT NO. 1 C TO LICENSE 2009-145 (9 q3{ 5 This AMENDMENT is made and entered into this day of , 2016, by and between the CITY OF SAN BERNARDINO, California, a municipal s corporation, hereinafter referred to as the "City" and Sprint Communications Company L.P.,hereinafter referred to as "Licensee". WITNESSETH: A. WHEREAS, City and Licensee previously entered into that certain License c to encroach upon, construct, maintain, inspect, operate,protect, repair,replace and retain in .2 place a buried communications conduit and appurtenances thereto in and around Redlands Boulevard and environs dated June 15, 2009 (the"License")[License 2009-145]; w a� B. WHEREAS,the License expired on December 31, 2015; C. WHEREAS, City issued a letter dated December 29, 2015 extending the c term until March 30, 2016; L c 'i Q NOW THEREFORE, the parties hereto agree as follows: m 1. The License term set forth in Section 2 of the License is hereby extended through December 31, 2025. Q 0 2. The annual license maintenance fee set forth in section 6 of the License shall remain the same. E L 3. All other terms and conditions of said Agreement approved by Resolution No. 2009- M c 145, shall remain unchanged. E AF It U Q - I - Packet Pg. 452 S.R.b AMENDMENT NO. 1 TO LICENSE 2009-145 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first shown above. CITY OF SAN BERNARDINO SPRINT COMMUNICATIONS COMPANY L.P. 0 N C X W by: by: N Mark Scott, City Manager James B. Farris, Manager, Real Estate a �a c 0 'L^ V r C �L Q ATTEST: 03 m ,,,,.. 0 4* M Georgeann Hanna, City Clerk c M d' E L Approved as to form: a� Gary D. Saenz, City Attorney s U a+ a+ Q By: _ 2 Packet Pg.453 5.R.c 1 RESOLUTION NO. 2009-145 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING A LICENSE AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY, L.P. 4 PERMITTING ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE CITY. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE o 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 " W 8 SECTION 1. The City Manager of the City of San Bernardino is hereby J 9 authorized and directed to execute on behalf of said City a License Agreement with Sprint 0 L 10 Communications Company, L.P. permitting access to communications conduit beneath the 11 city, a copy of which is attached hereto marked Exhibit A and incorporated herein by cn m 12 reference as fully as though set forth at length. 13 SECTION 2. This License shall take effect immediately upon adoption of this 1 14 E 15 Resolution. L a 16 17 18 ° 19 2 20 21 22 III E U 23 24 25 26 27 28 1 Packet Pg. 454 a , 2009-145 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING A LICENSE AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY, L.P. 2 PERMITTING ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE 3 CITY. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 5 Mayor and Common Council of the City of San Bernardino at a joint regular 0 6 meeting thereof, held on the 15th day of June , 2009, by the following vote, r- 7 to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT -' 9 ESTRADA x o 10 BAXTER x 11 Un BRINKER x m 12 0 M 13 SHORETT x 14 x KELLEY E� 15 x JOHNSON a 16 MCCAMMACK x LO 17 18 N 19 Rachel G. Clark, City Clerk o 20 0 The foregoing resolution is hereby approved this day of June 21 2009. 22 U 23 < ck J. Morris, Mayor a 24 City of San Bernardino 25 Approved as to form: 26 JAMES F. PENMAN, City Attorney 27 28 2 Packet Pg.455 " 2009-145 EXHIBIT "A" LICENSE THIS LICENSE is made and entered into this 15th day of June 200 9 , by and between SPRINT COMMUNICATIONS COMPANY, L.P., hereinafter referred to as "Licensee," and the CITY OF SAN _ o BERNARDINO, a municipal corporation hereafter referred to as "City." X LU WITNESSETH: a For and in consideration of the mutual promises and covenants herein contained, i = the parties hereby agree as follows: 1. City gives permission, removable and terminable as hereinafter provided, Q to Licensee to encroach upon, construct maintain, inspect, operate, P rotect, repair, m 0 replace and retain in place a buried communications conduit and appurtenances thereto in l and around Redlands Boulevard and environs, as generally depicted in Attachment "1," E E as L which is incorporated herein by this reference, for the purpose of data transmission to a customers, clients, and entities outside of the City of San Bernardino. No electric current Ln will flow through this conduit, nor will there be any pressure inside the conduit. The o 0 N conduit shall be used for transmitting communications through such buried o 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 r w this Agreement shall not be used for distribution of communication signals to individual a 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 1 of 8 Packet Pg. 456 5.R.c 2009-145 EXHIBIT "A" ' City of San Bernardino, Licensee shall obtain a Franchise Agreement before undertaking `wrrrr� 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. o _ 3. Except in cases of emergency, prior to start of construction, maintenance, w 0 inspection, repair, or removal of the conduit, Licensee or its Contractor shall obtain a J Public Works Construction Permit from the Public Works Division of the Development 0 L Services Department and comply with all conditions contained therein. In cases of c 'i emergency, a permit shall be obtained within two (2) business days of commencement of CO m work. VT M d• 4. Licensee, for its contractors and/or subcontractors hereby acknowledges a� E and agrees that the nearby residential areas are sensitive noise receptors and operations a Q shall be conducted with due regard for that sensitivity. The City's noise ordinance limits LO construction to between the hours of 7:00 AM and 10:00 PM. Unless approved by the 0 Director of Development Services, no work shall be permitted on holidays or weekends N _ 0 except in cases of emergency. 0 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 E the City Clerk of the City. a 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. 2 of 8 Packet Pg.'457 5.R.c 2009-145 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 o_ N C time for any reason, or for no reason, by giving the other at least thirty (30) calendar days x U.1 m prior written notice of such termination, except that City may, at its election, terminate J said permission forthwith at any time if Licensee shall fail to comply with any of the 0 L provisions of this License. Subject to the above, in the event of a breach by either party, c the breaching party may be given written notice of such breach and an opportunity to cn m cure such breach within 30 days of receiving notice. If such cure shall require longer M d' than 30 days, the parties shall mutually agree to a schedule for curing such breach, said E E schedule not to be more than 90 calendar days. Waiver by the City of any breach of any L term or provision herein shall not be deemed a waiver of any subsequent breach of the Cz LO same or any other term or provision of this License. Ch 0 9. Licensee agrees to install, use and maintain said encroachment as required N a g by this License. Said encroachment shall be maintained at all times in a safe, neat, sightly o N manner and good physical condition. City shall be the sole judge, subject to reasonable M :.c standards, of the quality of maintenance. In addition to, and without abrogating any rights E U contained in paragraph 8, upon 30 calendar days prior written notice by City through its Q 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 3of8 Packet Pg.458 2009-145 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 a N _ permits necessary for the installation and existence of said encroachment. X w a� 10. Upon termination of this License, Licensee shall remove any J encroachment from the real property unless otherwise agreed to in writing by City prior 0 to the date of termination. Licensee shall have 60 calendar days from the date of s= L termination of this License to remove all encroachments. If Licensee fails to exercise its Un CO CD duties under this paragraph, City shall have the right to remove said encroachment and to M restore the premises at no cost or liability to the City. Licensee hereby covenants and = a� E 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 U)_ 0 no way be liable for any property belonging to or leased by Licensee, its officers, N 0 servants, agents or employees, that may be stolen, destroyed or in any way damaged 0 N during the installation, use or maintenance of said encroachment. Licensee shall save, W _ indemnify, defend and hold harmless City, its elective and appointive boards, E s commissions, officers, agents, and employees from any costs, claims, damages, injuries, Q 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. 4of8 Packet Pg.459 db r� 2009-145 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, o _ or arising out of, the City's approval of this License, or the use or maintenance of said x w encroachment by Licensee, the occupation or use of the public areas of said J encroachment by Licensee, both during and after the installation thereof, and including 0 L but not limited to any costs, claims, damages, injuries, and liability resulting from the 0 conduct of Licensee or the employees, invitees, guests or agents of Licensee related to cn m said encroachment except to the extent arising out of the negligence or intentional act of M 7t. City or its agents. _ a� 13. The Licensee's attention is directed to Section 7-3, "Liability Insurance", L of the Standard Specifications for Public Works Construction, 2006 Edition, providing cc Ln that the Licensee or its Contractor, prior to beginning work on the property, shall furnish 0 the City with policies or certificates of liability insurance. All of the Insurance Policies N 0 shall name the City of San Bernardino as an additional insured on the liability 0 0 policies only. Licensee will provide a certificate of insurance to evidence coverage. X _ During the entire term of this Agreement, Licensee shall maintain minimum limits of U 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. 5 of S Packet Pg.460 ry 2009-145 EXHIBIT "A" :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 o .2 _ a� illness. x U1 0 E) Licensee shall comply with all applicable California Workers' a J Compensation requirements prior to commencement of any work related to this 0 agreement. c F) The above-referenced Insurance Policies shall remain in effect during the Cn CD m entire term of Licensee's encroachment and shall survive the termination of this M License. The above-referenced Insurance Policies shall not be canceled until after a� E Licensee has provided thirty (30) days written notice to the City. i 14. This License is personal to Licensee. It is nonassignable, except with the = tv U) written consent of the City, and any assignment of this License without such consent will rn 0 terminate the License privileges granted to Licensee. The City shall not unreasonably N _ 0 withhold consent. Notwithstanding the foregoing, no consent of Licensor is required and 0 Cn 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 E information; or (b) Licensee assigns to any entity controlled, controlling or under Q common control with Licensee. Despite any assignment under(a)or (b), above, Licensee will not be released from its obligations under this License. 6of8 Packet Pg.461_` 2009-145 EXHIBIT "A" CN 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 o N or applicant for employment because of race, color, religion, sex, marital status, national w origin, disability, or any other category prohibited by law. Licensee's hiring practices and CO employee policies shall comply with all applicable Federal, State and local Iaws. Such 0 L action shall include, but not be limited to, the following: recruitment and recruitment •L advertising, employment, upgrading and promotion. m 17. The prevailing party in any legal action to enforce or interpret any M provision(s) of this License shall be entitled to recover from the losing party all a� E reasonable attorney's fees, court costs and necessary disbursements in connection with � 0, 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 C6 purposes of this License. N 1 0 0 V) c a� E U c4 a-+ r- Q s 7of8 Packet Pg.462 5.R.c 2009-145 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 City o N c Asset Manager—Linear Facilities Ms. Valerie C. Ross,Director w Enterprise Real Estate Development Services Department Sprint Communications Company, L.P City of San Bernardino 6391 Sprint Parkway 300 North"D" Street MS: KSOPHT 0101-Z2040 San Bernardino, CA 92418 3 Overland Park, KS 66251 Ph: (909)384-5357 ° Ph: (913)439-5347 Fax: (909) 384-5155 Fax: (913) 523-8337 L c. With Copy to: 0° 0 Sprint Communications Company, L.P. 6391 Sprint Parkway = MS: KS0PHT0101-Z2020 E Overland Park, KS 66251 a ATTN: Real Estate Attorney c Ln IN WITNESS,the parties have executed this License on date first written above. C6 0 0 N CITY OF SAN BERNARDINO SPRINT COMMUNICATIONS o COMPANY, L.P. 3 0 nV m u mpson ager—Real Estate McNeely, Cit anager s U cC Approved as to form: a James F. Penman City Attorney By n..s •I'Gvvr-.� 8of8 _ Packet Pg.463 2009-145 0 G a.. x w m � R 3 � J O V �L rr^L vJ F W a M N a f4 LO CD d' ' C7 O N O m N E v ca a ATTACHMENT 1 1 `� V1. •2009-t45 y . 4==-,Z i . � £T• Sl UI 1 t n to O Y ttf x K I n a i �• i x a P OT. k - W 0 '•� 0 •..x, p M U » C) d o eUNWEQIUtfI. h I I S _ 0 D a S. ' o co>rrarnccnrt wE>tT CONTROL o a >w w r ft r N Y Y E Y• ~ O w -f a COI/YERC ER 74 w U r C1RC1.[ >r WASHINGTON < Q • �.i a c6 o a to CONYERCENTER AMOS AW LAST C x r -4 z p Yi Nds N m Nosy} q _ 0 O wAT [{NAN_ - •• r- -x o r � I R lA O y A � r � ' E i U Q i r -f Packet Pg. 465 5.R.d EXHIBIT "B" AVRN AMENDMENT NO. 1 TO LICENSE 2009-344 i This AMENDMENT is made and entered into this day of , 2016, by and between the CITY OF SAN BERNARDINO, California, a municipal corporation, hereinafter referred to as the "City" and Sprint Communications Company L.P.,hereinafter referred to as"Licensee". WITNESSETH: A. WHEREAS, City and Licensee previously entered into that certain License to encroach upon, construct,maintain, inspect, operate, protect, repair, replace and retain in o place a buried communications conduit and appurtenances thereto in and around Cajon Boulevard and in and around Macy Street and environs dated November 2, 2009 (the x "License") [License 2009-344]; 0 B. WHEREAS, the License expired on December 31, 2015; C. WHEREAS, City issued a letter dated December 29, 2015 extending the ° term until March 30, 2016; _ Cn NOW THEREFORE,the parties hereto agree as follows: m 0 1. The License term set forth in Section 2 of the License is hereby extended through December 31, 2025. m 0 2. The annual license maintenance fee set forth in section 6 of the License shall remain the same. E L 3. All other terms and conditions of said Agreement approved by Resolution No. 2009- Q a� 344, shall remain unchanged. E U R a.+ 1H a - 1 - Packet Pg.466 5.R.d AMENDMENT NO. I TO LICENSE 2009-344 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first shown above. CITY OF SAN BERNARDINO SPRINT COMMUNICATIONS COMPANY L.P. 0 .N c m X by: by: w a� Mark Scott, City Manager James B. Farris, Manager, Real Estate 0 /L^ V Y ATTEST: Q N m o Georgeann Hanna, City Clerk m 0 � M 3 � Approved as to form: E Gary D. Saenz, City Attorney Q c 0 E s U By' Q -2- Packet Pg.467 5.R.e 1 RESOLUTION NO. 2009-344 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING A LICENSE AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY, L.P. 4 PERMITTING ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE CITY. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE °— 6 CITY OF SAN BERNARDINO AS FOLLOWS: X 7 W 8 SECTION 1. The City Manager of the City of San Bernardino is hereby 9 authorized and directed to execute on behalf of said City a License Agreement with Sprint o L 10 Communications Company, L.P. permitting access to communications conduit beneath the si 11 city, a copy of which is attached hereto marked Exhibit A and incorporated herein by m 12 0 reference as fully as though set forth at length. 13 14 SECTION 2. The expiration date for this Agreement is consistent with a 15 matching License Agreement adopted by the Mayor and Common Council on June 15, a 16 2009 as Resolution 2009-145 for a Southern conduit route. 17 SECTION 3. This License shall take effect immediately upon adoption of ? a) 0 18 this Resolution. - c 0 19 3 0 20 21 22 E U ciS a+ 23 24 25 26 27 28 1 Packet Pg. 468 ... .r 2009-344 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING A LICENSE AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY, L.P. 2 PERMITTING ACCESS TO COMMUNICATIONS CONDUIT BENEATH THE 3 CITY. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 5 Mayor and Common Council of the City of San Bernardino at a -joint regular 0 6 meeting thereof, held on the 2nd day of November , 2009, by the following vote, x 7 W to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA x o 10 11 BAXTER x . m 12 BRINKER x 0 M 13 SHORETT x 14 KELLEY x. E a� 15 xL JOHNSON a 16 MCCAMMACK x 17 M 18 0 N C 19 Rachel G. Clark, City Clerk o 20 The foregoing resolution is hereby approved this A day of November 21 2009. a, E 22 r 23 a atri J. Mortis, Mayor 24 City of San Bernardino Approved as to form: 25 26 JAMES F. PENMAN, City orney 27 By. 28 2 Packet Pg.469 Sprint Sprint.Keith 7.TbrCl�tiQso� 639E Sprint Parkway Man»ipe Mallstop KSOPyTOIOI1 2Q40 Overland Park,KS 6625E I December 11,2009 1 Valerie Ross 2 Director f Development Services Department w 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") c 'i Q Dear Ms. Ross: m 0 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. E Manager, Real Estate c 6391 Sprint Parkway Q 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.whitesprint.com with any questions. Thank you for your o a, attention to this matter. N _ 0 r Sincerely o Agreed to this 2-q day of D G. , 2009. City of San Bernardino, CA E Keith J. Thompson WV 7)Manager, Real Estate By: � I _ a Name: Title: � � SV/� CN 7492, AN 521381 Packet Pg.470 2009-344 EXHIBIT"A" " LICENSE THIS LICENSE 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 c 0 BERNARDINO, a municipal corporation hereafter referred to as "City." V) a) Y K WITNESSETH: w d For and in consideration of the mutual promises and covenants herein contained, the parties hereby agree as follows: o 0 1. City gives permission, removable and terminable as hereinafter provided, _ Q cn to Licensee to encroach upon, construct, maintain, inspect, operate, protect, repair, m 0 a 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 a) depicted in Attachment "1," which is incorporated herein by this reference, for the a 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 0 0 right-of-way. No electric current will flow through this conduit, nor will there be any o pressure inside the conduit. The conduit shall be used for transmitting communications 0 aD W through such buried communications conduit, in, under, along and across public streets, 0 highways and alleys of the City of San Bernardino. However, no distribution of r communication services to residents within the City is authorized by this Agreement, and Q the conduit authorized by this Agreement shall not be used for distribution of communication signals to individual persons, businesses or organizations within the City C, of San Bernardino. In the event that Licensee at any future time desires to use the 1 of 8 birIy02- Packet Pg.471 law 5,R.e 2009-344 conduit authorized by this Agreement for distribution of communication signals to businesses or organizations within the City of San Bernardino, Licensee shall residents, b g Y 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 -E.2 N expire on December 31, 2015. This expiration date is consistent with a matching License r X W Agreement adopted by the Mayor and Common Council on June 15, 2009 as Resolution a� J 2009-145 for a Southern conduit route. 0 3. Except in cases of emergency, prior to start of construction, maintenance, c� _ inspection, repair, or removal of the conduit, Licensee or its Contractor shall obtain a CO Public Works Construction Permit from the Public Works Division of the Development v M 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 L work. Q •a _ 4. Licensee, for its contractors and/or subcontractors hereby acknowledges M and agrees that the nearby residential areas are sensitive noise receptors and operations N _ shall be conducted with due regard for that sensitivity. The City's noise ordinance limits 0 construction to between the hours of 7:00 AM and 10:00 PM. Unless approved by the Y Director of Development Services, no work shall be permitted on holidays or weekends except in cases of emergency. a 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. 2 of 8 Packet Pg.472 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 0 N the real property in which the conduit is located. Licensee agrees never to assail or resist a X w said title or interest and to observe present or future set-back requirements relating Cn aD J thereto while this License is in force and effect. 0 8. City and Licensee each reserves the right to terminate this License at any t� c time for any reason, or for no reason, by giving the other at least thirty (30) calendar days m prior written notice of such termination, except that City may, at its election, terminate o M said permission forthwith at any time if Licensee shall fail to comply with any of the _, E provisions of this License. Subject to the above, in the event of a breach by either party, L CD the breaching party may be given written notice of such breach and an opportunity to Q c �a cure such breach within 30 days of receiving notice. If such cure shall require longer M than 30 days, the parties shall mutually agree to a schedule for curing such breach, said N c schedule not to be more than 90 calendar days. Waiver by the City of any breach of any 0 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. t 9. Licensee agrees to install, use and maintain said encroachment as required Q 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 3 of 8 Packet Pg.473 5.R.e 2009-344 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 c N require the performance of the maintenance and terminate this License. Licensee further a X w agrees to install, use and maintain said encroachment in conformity with all applicable Q Federal, State, and local laws, rules and regulations. Licensee shall, at its sole 0 responsibility and its own expense, obtain and keep in effect all licenses, bonds and a •L permits necessary for the installation and existence of said encroachment. m 10. Upon termination of this License, Licensee shall remove any c v M encroachment from the real property unless otherwise agreed to in writing by City prior t � to the date of termination. Licensee shall have 60 calendar days from the date of L termination of this License to remove all encroachments. If Licensee fails to exercise its Q _ duties under this paragraph, City shall have the right to remove said encroachment and to M restore the premises at no cost or liability to the City. Licensee hereby covenants and N _ agrees to reimburse City for all costs of removal and/or restoration. W 0 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, c Q 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, 4of8 Packet Pg. 474 • 5.R.e; 2009-344 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. o 0 Licensee shall save, indemnify, defend and hold harmless City, its elective and x w appointive boards, commissions, officers, agents and employees from any costs, claims, a� J damages, injuries, and liability, in whole or in part, whether brought by, or on behalf of, _ 0 Licensee, any City employee or third party, or any other person or entity, resulting from, c� _ or arising out of the City's approval of this License, or the use or maintenance of said CO CO encroachment by Licensee, the occupation or use of the public areas of said M 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 L conduct of Licensee or the employees, invitees, guests or agents of Licensee related to Q _ said encroachment except to the extent arising out of the sole negligence or intentional CD M O act of City or its agents. N 13. The Licensee's attention is directed to Section 7-3, "Liability Insurance", 0 of the Standard Specifications for Public Works Construction, 2006 Edition, providing r 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 a 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: 5 of 8 Packet Pg.475 S.R.eI 2009-344 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 o 2 _ property damage. x U1 D) Employer's Liability: $1,000,000.00 per accident for bodily injury or a� illness. 0 E. Licensee shall comply with all applicable California Workers' c Compensation requirements prior to commencement of any work related to this ED agreement. M d' F) The above-referenced Insurance Policies shall remain in effect during the E _ a� entire term of Licensee's encroachment and shall survive the termination of this a� i License. The above-referenced Insurance Policies shall not be canceled until after a c Licensee has provided thirty(30) days written notice to the City. Cl? 14. This License is personal to Licensee. It is nonassignable, except with the c N _ written consent of the City, and any assignment of this License without such consent will ° 0 terminate the License privileges granted to Licensee. The City shall not unreasonably r withhold consent. Notwithstanding the foregoing, no consent of Licensor is required and E Licensee may notify Licensor up to 30 days after assignment if. (a) prior notice to a a 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. 6of8 Packet Pg.476 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. _ 0 N ia and 16. This license shall be governed by the laws of the state of Californ y X w the federal laws of the United States. N �a J 17. Licensee hereby certifies that it will not discriminate against any employee 0 or applicant for employment because of race, color, religion, sex, marital status, national t� _ 'i origin, disability, or any other category prohibited by law. Licensee's hiring practices and N m employee policies shall comply with all applicable Federal, State and local laws. Such M action shall include, but not be limited to, the following: recruitment and recruitment _ advertising, employment, upgrading and promotion. L 18. The prevailing party in any legal action to enforce or interpret any Q c provision(s) of this License shall be entitled to recover from the losing party all M reasonable attorney's fees (including the City Attorney), court costs and necessary CO 0 disbursements in connection with that action. 3 0 u _ E U /// Q 7 of 8 Packet Pg.477 • 5.R.e 2009-344 LICENSE for encroachment to maintain conduit in and around Cajon Boulevard (aw, 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 fi following representatives of Licensee and City: Licensee City _ Mr. Alex Knapp Ms. Valerie C. Ross, Director Transaction Manager ROW Development Services Department X Sprint Communications Company L.P. City of San Bernardino w 6391 Sprint Parkway 300 North"D" Street V) MS: KSOPHT 0101-Z2040 Overland Park, KS 66251 San Bernardino, CA 92418 Ph. (913) 315-4568 Ph: (909) 384-5357 3 0 Fax. (913) 523-8337 Fax: (909) 384-5155 c� i = 3 i With copy to: Un 3 m $ Sprint Communications Company L.P. c 6391 Sprint Parkway MS: KSOPHTO101-22020 t Overland Park, KS 66251 ATTN: Real Estate Attorney � a IN WITNESS, the parties have executed this License on date first written above. CD 1 � M CITY OF SAN BERNARDINO SPRINT COMMUNICATIONS o l COMPANY L.P. ✓ ��j o V) Char es McNeely, y Mana r ei J. mpson,*an ager, Real Estate a� Approved as to form: r.. James F. Penman a City Attorney By 8of8 Packet Pg.478 11' / 2�Q1... � t ,•;�'`"�' ��A �} � �t4 w+t v { �3'x��u Lc't. Y�\�y'+la,' ', 1 i,•Y,.o S ��� ?1:lam'-q.R ^^t. t ✓'�. y;} \ f`e \ btu 715 yr s � `r x • • 1i5 it M" JJ z M�Wx 5.R.e 2009-344 Sprint Fiber Optic Facilities # i w O L i � *k x xx Ir N ilk z 9i9ke.$t _ MID 81NaVteq� a :©200 7 1 r'Af Guhin Perk q R,� e 10. /je, CL N '�,•. � "ate,l � �,`,,. 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