PISMO BEACH COUNCIL AGENDA REPORT
Agenda Item #9.I
SUBJECT/TITLE:
ENCROACHMENT AGREEMENT BETWEEN THE CITY OF PISMO BEACH AND
ASTOUND BROADBAND, LLC FOR THE INSTALLATION OF FIBER OPTIC
FACILITIES
RECOMMENDATION:
Authorize the City Manager to execute, and the City Clerk to record, an Encroachment Agreement between the City of Pismo Beach and Astound Broadband, LLC to install fiber optic facilities within the City’s right-of-way.
BACKGROUND:
Astound Broadband, LLC (Astound) is a telecommunications company which is seeking to provide internet, digital cable TV, and home phone services within the city of Pismo Beach. In order to provide these telecommunication services, the company must install new infrastructure, underground and overhead, within the City’s right-of-way. To protect City’s interests and infrastructure while providing additional telecommunications options to Pismo Beach residents, the Encroachment Agreement was formed.
The encroachment agreement reinforces the City’s pavement cut moratorium, does not allow new utility poles to be installed without prior consent from the Director of Public Works/City Engineer, and allows the City to reserve space in the right-of-way for its own future use. The agreement is also consistent with other utility company agreements, has been reviewed by the Public Works Department, and poses no threat to public health and safety. If approved, the Encroachment Agreement will give the City a means to order the removal of the encroachment at the owner’s expense should the City need to utilize this space at a future date. The Encroachment Agreement has been reviewed and approved by the City Attorney.
Conclusion and Recommendation
Staff recommends the City Council authorize the City Manager to execute, and the City Clerk to record, the Encroachment Agreement (Attachment 1) for Astound Broadband.
FISCAL IMPACT:
A $25,000 bond will be collected with this encroachment agreement to ensure construction related work is performed in accordance with the City’s standards and specifications. The company will be required to pull and pay for an encroachment permit for work within the City right of way. There is no anticipated fiscal impact to the City from permitting the encroachment.
ALTERNATIVES:
1. Deny the Encroachment Agreement in its entirety.
Council Agenda 12-20-2022 9.I-1
ATTACHMENTS:
1. Encroachment Agreement
Prepared by: Meeting Date: December 20, 2022
Madeline Kacsinta, Engineering Technician
Submitted by: Benjamin A. Fine, P.E., Director of Public Works/City Engineer City Manager Approval:
Council Agenda 12-20-2022 9.I-2
RECORDING REQUESTED BY, and
WHEN RECORDED, RETURN TO:
City of Pismo Beach
Attn: City Clerk
760 Mattie Road
Pismo Beach, California 93449
This document is recorded for the benefit of the
City of Pismo Beach, a Municipal Corporation,
and is exempt from fee per Government Code
Section 27383.
AGREEMENT BETWEEN THE CITY OF PISMO BEACH, CALIFORNIA
AND ASTOUND BROADBAND, LLC FOR THE INSTALLATION OF FIBER OPTIC
FACILITIES
This Agreement is entered into as of December 20, 2022 (“Effective Date”) by and between the City of Pismo Beach, California, a municipal corporation (the “City”) and Astound Broadband, LLC, a Washington limited liability company doing business as Astound Broadband Powered By Wave (“Company”).
RECITALS
A. Company is authorized to provide Telecommunications Services (as defined herein) in the State of California by the Federal Communications Commission and California Public Utilities Commission.
B. Company desires to construct, install, and maintain, Facilities (as defined herein) from time to time within the Public Rights-Of-Way within City in order to provide Telecommunications Services.
C. City has the authority to regulate the terms and conditions for use of the Public Rights- Of-Way and land use within the corporate limits of the City.
D. The purpose of this Agreement is to provide the general framework within which Company may apply for necessary encroachment permits and construct, install, and maintain, the Facilities within the corporate limits of the City. The parties do not intend the Agreement to give Company a right to the award of any such permits.
AGREEMENT
In consideration of the Recitals set forth above, the mutual promises and terms and conditions of this Agreement and other valuable consideration, the adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Company – means Company, and its lawful successors or assigns.
1.2 City – means the City of Pismo Beach, a city of the State of California, including the duly elected or appointed officers, agents, employees, and volunteers of the City of Pismo Beach, individually or collectively.
Council Agenda 12-20-2022 9.I-3
Attachment 1
1.3 City Engineer – means the Public Works Director/City Engineer of the City of Pismo Beach, California or his or her designee.
1.4 Public Rights-Of-Way – means the surface of and the space above and below any street, road, highway, Right-Of-Way, alley, easement, pathway, sidewalk and other public way, including driveway, curb, gutter, paving or other surface and subsurface drainage structure or facility and any public place, or City property, now or hereafter existing as such within the City.
1.5 Telecommunications Services – means communication services that Company is lawfully authorized to offer and/or provide as of the date of this Agreement, including but not limited to those services offered pursuant to any applicable Certificate of Public Convenience and Necessity (“CPCN”), or decisions, issued by the California Public Utilities Commission.
1.6 Facilities – means fiber optic cables, coaxial and copper cables, conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location marker, appurtenances, and related facilities located or to be located in the Public Rights-Of-Way of the City and used or useful for the transmission of telecommunication data.
ARTICLE 2
INSTALLATION AND MAINTENANCE OF FACILITIES
2.1 Permitted Installations. During the term of this Agreement, Company may install, maintain, operate, relocate and remove the Facilities within the City’s Public Rights-Of-Way subject to the issuance of required encroachment and building permits and approvals. The Facilities shall be shown and described in permit applications filed with the City Engineer and may be modified by subsequent permits approved by the City. All Facilities to be installed, maintained, operated, relocated and removed under this Agreement shall be underground in areas where all existing utilities are already underground; provided, however, that in those areas where poles may exist and electric and telephone lines are, or may be placed overhead, Company may install fiber optic cables overhead if using permitted poles (subject to the approval of the pole owner and City); and further provided that whenever and wherever the owner of the poles moves its plant from overhead to underground placement in an area, should Company wish to retain its impacted Facilities, all Company’s impacted Facilities must be relocated and moved underground as directed by the City Engineer, at the expense of Company, or as otherwise agreed by and among the parties involved, and in accordance with then- existing City practices, policies and regulations.
2.2 No Cost to City. Except as otherwise agreed, the construction, installation, operation, maintenance, and removal of any Facilities shall be accomplished (i) without cost or expense to the City and (ii) subject to the prior approval of the City Engineer, and Company shall maintain any such Facilities at all times in good and safe condition and free from any nuisance to the satisfaction of the City Engineer.
2.3 Compliance with Code. Company shall comply with the applicable provisions of the City’s Municipal Code, as may be amended from time to time (the “Code”). In the event of a conflict between this Agreement and the Code, the provisions of the Code shall apply.
2.4 Encroachment Permits. All work performed by Company under this Agreement shall be made pursuant to individual encroachment permits. Company shall obtain encroachment permits from the City for the installation of the Facilities and for any other work or activities within the City’s Public Rights-Of-Way as required by the Code. Company shall submit all plans, schedules, Council Agenda 12-20-2022 9.I-4
Attachment 1
and information required by the Code and the City Engineer. Company also shall submit all required fees, cash deposits, bonds or other security required by the City Engineer in accordance with the Code. All work within the Public Rights-Of-Way shall be performed in compliance with the terms and conditions of this Agreement, the Code, and the pertinent encroachment permit. Once a permit is issued, Company shall commence work and complete the construction and installation of the Facilities in accordance with the Code and any construction schedule approved by the City Engineer in the applicable permit.
2.5 Compliance with Laws and Regulations. Company shall at all times during the duration of this Agreement, comply with all applicable state, federal and local laws and regulatory requirements, including, without limitation, compliance with Company’s Certificates of Public Convenience and Necessity, the California Environmental Quality Act, the California Coastal Act, zoning laws, and construction codes. In the course of its work on the Facilities in the Public Rights- of-Way, Company shall at all times employ reasonable care so as not to endanger personnel or property or unreasonably obstruct travel on any Public Rights-Of-Way and shall install, maintain and use commonly accepted industry methods and devices for preventing failures and accidents that are likely to cause damage, injury or nuisance to the public or other users of the Public Rights-Of-Way, public property or private property.
2.6 Coordination of Excavation with Other Permittees. Company shall coordinate work with other utilities using the Public Rights-Of-Way in accordance with the Code and the requirements imposed by any applicable encroachment permit.
2.7 Membership In Underground Service Alert. Pursuant to California Government Code Section 4216.1, Company shall maintain its membership in, or become a member of, Underground Service Alert-Northern California and shall field mark, at its sole expense, the locations of its underground Facilities upon notification in accordance with the requirements of Section 4216 of the State of California Government Code, as it now reads or may hereinafter be amended. Repeal or amendment of Government Code Section 4216.1 shall not negate Company’s obligation to maintain such membership, unless such repeal or amendment disbands or eliminates Underground Service Alert-Northern California. Company shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner, free of defects.
2.8 Contractors. Any contractor or subcontractor used for the construction, installation, operation, maintenance or repair of the Facilities must be properly licensed under the laws of the state of California and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as Company would have under this Agreement and applicable law if the work were performed by Company. Company shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with this Agreement and applicable law, shall be responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. This section is not meant to alter tort liability of Company to third parties.
2.9 Poles. No new poles will be allowed to be installed within the Right-of-Way without prior written permission from the City Engineer.
2.10 Pavement Cut Moratorium. The City has a Pavement Cut Moratorium in place and will not allow exemptions to the Pavement Cut Moratorium without additional compensation.
Council Agenda 12-20-2022 9.I-5
Attachment 1
ARTICLE 3
LIMITATIONS AND RESTRICTIONS
3.1 Nothing in this Agreement shall be construed as granting or creating any franchise rights.
3.2 This Agreement is not a grant by City of any property interest but is made subject and subordinate to the prior and continuing right of City to use all the Public Rights-Of-Way, including but not limited to, public use as a street and for the purpose of laying, installing, maintaining, repairing, protecting, replacing and removing sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electric and telephone wires, electroliers, cable television and other utility and municipal uses together with appurtenances thereof and with right of ingress and egress, along, over, across and in said Public Rights-Of-Way.
3.3 This Agreement shall not create a vested right of any nature in Company to use the Public Rights-Of-Way. This Agreement is made subject to all easements, restrictions, conditions, covenants, encumbrances and claims of title which may affect the Public Rights-Of-Way, and it is understood that Company, at its own cost and expense, shall obtain such permission as may be necessary consistent with any other existing rights. No reference herein to “Public Rights-Of-Way” shall be deemed to be a representation or guarantee by City that its interest or other rights to control the use of such property is sufficient to permit its use for such purposes. It is not a warranty of title or interest in any Public Rights-Of-Way. It does not confer rights other than as expressly provided in the grant hereof, and Company shall be deemed to gain only those rights to use as are properly in City and as City may have the undisputed right and power to give.
3.4 This Agreement only authorizes Company to use the portions of the Public Rights- Of-Way specifically described in one or more encroachment permits if and when issued by the City.
It does not require the City to approve any particular encroachment permit applications, nor does it provide Company with any interest in any particular location within the Public Rights-Of-Way. This Agreement shall not be deemed to approve any particular design or installation technique. Certain specific physical design aspects of the Facilities and detailed approvals of the installation of the Facilities will occur through the issuance of specific permits and approvals by the City.
3.5 This Agreement shall be for the non-exclusive use of the Public Rights-Of-Way. By executing this Agreement, City does not agree to restrict the use of the Public Rights-Of-Way in all or any part of the City by any person in the same business, a related business, or a competing business as Company.
3.6 This Agreement does not create any authorization for Company to use any City property located outside of the Public Rights-Of-Way, nor any City-owned infrastructure located within the Public Rights-Of-Way, without the prior express written agreement of the City.
ARTICLE 4
REQUIRED CASH DEPOSIT OR BOND
4.1 Security. Company will furnish and deliver to City, the following security, which must be issued by a surety company duly and regularly authorized to do general surety business in the State of California, or such other surety as may be acceptable to the City Engineer:
Council Agenda 12-20-2022 9.I-6
Attachment 1
Performance Security. Company shall furnish and deliver a performance security (the “Durable Performance Security”) in the amount of twenty-five thousand dollars ($25,000), concurrently with the execution of this Agreement, which security must be acceptable to the City Engineer and shall be in substantially the form attached hereto as Exhibit A. The Durable Performance Security shall be conditioned upon the faithful performance of this Agreement and any work performed thereunder and shall be released by City one-year following the termination of this Agreement. This one (1) year period is to guarantee that any work is of good quality and free from any defective or faulty materials or workmanship. City may draw on the Durable Performance Security in the event of a default by Company or in the event that Company fails to fulfill any of its obligations under this Agreement.
City may also draw on the Durable Performance Security to cover any reimbursements owed to City by Company. If City draws on the Durable Performance Security, it will notify Company of the amount drawn, and Company will promptly restore the Durable Performance Security to the full amount of twenty-five thousand dollars ($25,000). In the event that a bond issued pursuant to this Section of this Agreement is canceled by the surety, after proper notice and pursuant to the terms of said bond, Company shall, prior to the expiration of said bond, procure a replacement bond that complies with the terms of this Section of this Agreement.
4.2 Recovery. So long as any security described in Section 4.1 and 4.2 remain in place (each an “Existing Security”), they may be utilized by the City as provided herein for reimbursement of the City by reason of Company’s failure to pay the City for actual costs and expenses incurred by the City with respect to the Facilities, including any expenses for removal under this Agreement.
4.2.1 In the event Company has been declared by the City to be in default of a material provision of this Agreement and if Company fails, within 30 days of mailing of the City’s default notice, to perform any of the conditions of this Agreement, or fails to begin to perform any such condition that may take more than 30 days to complete, City may thereafter obtain from the applicable Existing Security, after proper claim is made to the surety, an amount sufficient to compensate the City for its damages and/or expenses. Upon such withdrawal from an Existing Security, the City shall notify Company in writing, by First Class Mail, postage prepaid, of the amount withdrawn and the date thereof.
4.2.2 Thirty days after the City’s mailing of notice of the cash deposit or bond forfeiture or withdrawal authorized herein, Company shall deposit such further cash or bond, or other security, as the City may require, which is sufficient to bring the amount of each Existing Security back to its original amount.
4.2.3 The rights reserved to the City with respect to any Existing Security are in addition to all other rights of the City whether reserved by this Agreement or authorized by law, and no action, proceeding, or exercise of a right with respect to any cash deposit or bond shall constitute an election or waiver of any rights or other remedies the City may have.
4.3 Other Security Provisions.
4.3.1 Any Existing Security consisting of corporate surety bonds shall be kept on file with the City Engineer. If a corporate surety bond is replaced by another approved bond, the replacement shall be filed with the City Engineer and made a part of and incorporated into this Agreement. Upon filing and approval by the City Engineer of a replacement bond, the former Existing Security shall be released.
Council Agenda 12-20-2022 9.I-7
Attachment 1
4.3.2 If there is an increase to the estimated cost of any work, City may require Company to increase the amount of any Existing Security so that the applicable securities cover the entire estimated cost of the work. In addition, if there is any increase to the estimated cost of any work, City may also require Company to obtain an additional performance security even if such additional security had not been originally required with respect to the work.
ARTICLE 5
TERM AND TERMINATION
5.1 Duration. This Agreement shall remain in force for ten (10) years, subject to the City’s authority to regulate the terms and conditions of Company’s use of the Public Rights-Of-Way, and its right to terminate the Agreement pursuant to Section 5.2 below. If none of the grounds for termination listed in Section 5.2 exist at the end of the initial term (or any Renewal Term), the Agreement shall automatically renew for a one (1) year period (a “Renewal Term”) on the same terms and conditions unless either party provides written notice to the other party at least six (6) months prior to the expiration of the then-current term stating it does not wish to renew the Agreement. For the sake of clarity, at the end of each Renewal Term this Agreement will renew for an additional Renewal Term unless it is terminated as described in the preceding sentence. In the event that Company loses its authorizations to use the Public Rights-Of-Way, including any CPCN, at any time during the initial term or a Renewal Term, then this Agreement shall automatically terminate as of the date of such loss of authorization.
5.2 Termination. The City may terminate this Agreement by giving one hundred eighty (180) days written notice of termination upon the occurrence of any of the following:
5.2.1 Reasonable determination by City that the provisions herein interfere with the use or disposal of the Public Rights-Of-Way or any part thereof by City. Where only a portion of Company’s Facilities interfere with the use or disposal of the Public Rights-Of-Way, the City, at its sole discretion, may elect to require Company to relocate the said portion in accordance with Article 6 of this Agreement.
5.2.2 For material failure, neglect, or refusal by the Company to fully and promptly comply with any and all of the conditions of this Agreement, or for nonuse in accordance with Section
6.2 herein, unless Company confirms within thirty (30) days of receipt of the notice that the cited condition has ceased, been corrected or, subject to the City’s agreement, is diligently being pursued by the Company;
5.2.3 An order entered by a court of competent jurisdiction approving a petition in bankruptcy or ordering the dissolution, winding up or liquidation of Company or appointing a custodian, receiver, trustee, or other officer to administer a substantial part of Company’s property.
5.2.4 The revocation, expiration or other loss of applicable permits or authorizations required by City, state or federal law for the use, maintenance or operation of the Facilities.
ARTICLE 6
REMOVAL, RELOCATION AND ABANDONMENT
6.1 Upon receipt of a written demand from the City, Company, at its sole cost and expense, shall remove and relocate any Facilities installed, used and/or maintained by Company under this Agreement when such removal or relocation is made necessary (a) due to any work Council Agenda 12-20-2022 9.I-8
Attachment 1
proposed to be done by or on behalf of the City or other governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and installation, construction, maintenance or operation of any underground or aboveground facilities such as sewers, drains, pipes, power lines, and tracks or (b) due to a determination by the City that the Facilities are detrimental to governmental activities.
Company shall complete the removal or relocation within one hundred twenty (120) days of receipt of notice from the City or according to an agreed upon schedule with the City of no less than one hundred twenty (120) days. Notwithstanding the foregoing, the City Engineer may require a shorter period due to exigent circumstances and may authorize a longer period if it will not delay the public project. Any removal or relocation work by Company shall only be done pursuant to an encroachment permit, which shall not be unreasonably conditioned, delayed, or withheld. All of the foregoing shall be subject to all applicable rules, requirements and procedures of the California Public Utilities Commission.
6.2 Abandonment of Facilities. If any portion of the Facilities laid, installed, or constructed in the Public Rights-of-Way, other than redundant Facilities or Facilities for emergency use, are no longer used by Company or are abandoned for a period in excess of twelve (12) months, Company must notify the City Engineer and promptly submit all necessary applications for permits prior to commencing work to vacate and remove the Facilities. Alternatively, the City may allow Company, in its sole discretion, to abandon the Facilities, or any part thereof, in place and convey the Facilities to the City at no cost to the City.
6.3 If Company fails to remove the Facilities as required by the City pursuant to Section
6.2, the City may, in its sole discretion, after providing written notice to Company (a) remove the Facilities at Company’s sole expense, which expense Company shall promptly reimburse to the City within thirty (30) days after receiving an invoice for such expenses, including all administrative, legal and consultant costs or (b) deem the Facilities, or any part thereof, to have been abandoned and conveyed to the City at no cost to the City.
6.4 Repair of Public Rights-of-Way. Whenever the removal or relocation of facilities is required under this Agreement or the Code, Company shall promptly repair and return the Public Rights-Of-Way and adjacent property to a safe and satisfactory condition to the City in accordance with the Code and with the construction-related conditions and specifications established by the City according to its standard practice. Company agrees to promptly complete all restoration work and to promptly repair any damage caused by such work at its sole cost and expense. If Company fails to do so, the City shall have the option to perform such work at Company’s sole expense, which expense Company shall promptly reimburse to the City within thirty (30) days after receiving an invoice for such expenses, including all administrative, legal and consultant costs. Before proceeding with removal or relocation work, the Company shall obtain any required encroachment permit from the City, which shall not be unreasonably conditioned, delayed, or withheld.
ARTICLE 7
DAMAGES
7.1 The Company shall be responsible for any damage to the City’s streets, pavement, existing utilities, curbs, gutters, sidewalks and other public improvements due to Company’s installation, maintenance, repair, or removal of its Facilities in the Public Rights-Of-Way and public utility or service easements, and shall repair, replace, and restore in kind the said damaged facilities at its sole expense.
Council Agenda 12-20-2022 9.I-9
Attachment 1
7.2 If any Public Right-Of-Way to be used by the Company has preexisting installation(s) placed in said Right-Of-Way, the Company shall assume the responsibility to verify the location of the preexisting installation and notify the City and any third party of the Company's proposed installation. The cost of any work required of such third party or the City to provide adequate space or required clearance to accommodate the Company's installation shall be borne solely by the Company.
ARTICLE 8
TAXES
8.1 Company agrees that it will be solely responsible for the payment of any and all lawful taxes, fees and assessments relating to its use and maintenance of the Facilities including but not limited to all taxes, fees and assessments listed in Company’s Certificates of Public Convenience and Necessity issued by the California Public Utilities Commission. Company shall also comply with the Communication Users’ Tax Law, found in Chapter 32 Article VIII of the Code. Pursuant to Section 107.6 of the California Revenue and Taxation Code, the City hereby advises, and Company recognizes and understands, that Company’s use of the Public Rights-Of-Way may create a possessory interest subject to property taxation and that Company will be subject to the payment of property taxes levied on such interest.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification. To the fullest extent permitted by law, Company, jointly and severally, for itself, its successors, agents, contractors and employees, agrees to indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City, its City Council, its officials, officers, employees, representatives, agents and volunteers and any successors to City’s interest from and against any and all third party claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection with any of the foregoing, including, without limitation, reasonable attorney’s fees and costs of defense (collectively, the “Losses”) arising directly or indirectly from, in connection with or caused by Company’s performance of this Agreement, and/or the installation, operation, removal and/or repair of the improvement and Facilities thereunder including, but not limited to, the following: (a) a material breach of this Agreement by Company; (b) a material breach of any representation or warranty of Company contained in this Agreement; (c) any personal injury or death caused, directly or indirectly, by any act or omission of Company or its employees, sub-grantees, invitees, contractors, sub- contractors or agents (each of the forgoing “Company Personnel”) or by any structures of encroachments placed in, on or under any Public Right-Of-Way; (d) any loss of or damage to property caused, directly or indirectly, by any act or omission of Company or Company Personnel or by any structures of encroachments placed in, on or under the surface of any Public Right-Of-Way or City Property; (e) the use, misuse or failure of any equipment or facility used by Company, or by Company Personnel, regardless of whether such equipment or facility is furnished, rented, leased or loaned by or to Company; or (f) any tax, fee, assessment or other charge for which Company is responsible; provided, however, Company shall not indemnify City, its City Council, its officials, officers, employees, representatives, agents and volunteers and any successors to City's interest for any of the foregoing claims or losses arising from City's sole acts of negligence or willful misconduct. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and City’s costs of investigating and defending any claims against City.
Council Agenda 12-20-2022 9.I-10
Attachment 1
Except to the extent due to willful misconduct, City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by City or by any third party, including, without limitation, damages, losses, or liability, arising from the issuance by City of a permit or approval to any third party, or any interruption in service. Company shall not be liable for losses or delay damages resulting from Company’s failure to relocate or remove its Facilities in the event of Force Majeure or event beyond the reasonable control of Company.
Company shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. Company shall provide City with prompt written notice of any delay or failure to perform that occurs by reason of Force Majeure.
9.2 Duty to Defend; Notice of Loss. Company acknowledges and agrees that its obligation to defend the City under Section 9.1 (a) is an immediate obligation, independent of its other obligations hereunder; (b) applies to any Loss which actually or potentially falls within the scope of Section 9.1, regardless of whether the allegations asserted in connection with such Loss are or may be groundless, false or fraudulent; and (c) arises at the time the Loss is tendered to Company by the City and continues at all times thereafter. The City shall give Company prompt notice of any Loss under Section 9.1 and Company shall have the right to defend, settle and compromise any such Loss; provided, however, that the City shall have the right to retain its own counsel if representation of City by the counsel retained by Company would be inappropriate due to conflicts of interest between City and Company. City’s failure to notify Company promptly of any Loss shall not relieve Company of any liability to City pursuant to Section 9.1, unless such failure materially impairs Company’s ability to defend such Loss. Company shall seek City’s prior written consent to settle or compromise any Loss if Company contends that City shares in liability with respect thereto.
9.3 Assumption of Risk. Company shall assume all risk of damage to any and all other property of Company, or any property under the control or custody of Company while upon or near the Public Rights-Of-Way incident to the use of the Public Rights-Of-Way; provided, however, such assumption by Company shall not include any damage to the extent same is caused by the sole negligence or willful misconduct of City. Company releases City from any liability, including claims for damages or extra compensation, arising from construction delays due to any activities by City.
Under no circumstances shall City be liable to Company for any loss of service downtime, lost revenue or profits or third-party damages.
9.4 Survival. Company’s obligations under this Article 9 shall survive Termination of this Agreement.
9.5 No Waiver. The failure of either party on one or more occasions to exercise a right or to require compliance or performance under this Agreement or any other applicable state or federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by such party nor to excuse the other party from complying or performing, unless such right or such compliance or performance has been waived in writing.
ARTICLE 10
INSURANCE
10.1 Minimum Insurance Requirements. Company shall obtain and maintain at its sole cost for the duration of this Agreement the following insurance:
10.1.1 Minimum Scope of Insurance.
Council Agenda 12-20-2022 9.I-11
Attachment 1
Coverage shall be at least as broad as:
(a) Insurance Services Office Commercial General Liability coverage (“occurrence” form CG 0001). “Claims Made” form is unacceptable. The “occurrence” form shall not have a “sunset clause.”
(b) Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 “any auto”.
(c) Workers’ Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance.
10.1.2 Minimum Limits of Insurance.
Company shall maintain policy limits of no less than:
(a) General Liability: $5,000,000 combined single limit per occurrence for bodily injury, personal and advertising injury property damage, pollution liability and products/completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. (b) Automobile Liability: $1,000,000 combined single limit each accident for bodily injury and property damage.
(c) Worker’s Compensation in compliance with the statutory requirements of the State of California and Employers Liability with limits of $1,000,000 each accident/disease/policy limit.
10.1.3 Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or Company shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
10.1.4 Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions:
(a) General Liability and Automobile Liability Coverages. (i) The City, its City Council, its officials, officers, employees, representatives, agents and volunteers are to be covered as insured as respects the following: liability arising out of activities performed by or on behalf of Company; failure to perform any work contemplated in any encroachment permit; structures or encroachments placed by or on behalf of Company in, on, under or over the surface of any Right-Of-Way or City Property; products and completed operations of Company; premises owned, occupied or used by Company; or automobiles owned, leased, hired or borrowed by Company. The coverage shall contain no special limitations on the scope of protection afforded to the City, its City Council, its officials, officers, employees, representatives, agents or volunteers.
Council Agenda 12-20-2022 9.I-12
Attachment 1
(ii) Company’s insurance coverage shall be primary insurance as respects the City, its City Council, its officials, officers, employees, representatives, agents and volunteers. Any insurance or self-insurance maintained by the City, its City Council, its officials, officers, employees, representatives, agents and volunteers shall be excess of Company’s insurance and shall not contribute with it.
(iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its City Council, its officials, officers, employees, representatives, agents and volunteers.
(iv) Company’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.
(b) Worker’s Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its City Council, its officials, officers, employees, representatives, agents and volunteers for losses arising from work performed by Company.
(c) All Coverages.
Upon receipt of notice from its insurer(s) Company shall use commercially reasonable efforts to provide the City with thirty (30) days prior written notice of cancellation of any coverage required herein
10.1.5 Acceptability of Insurers
Insurance shall be placed with insurers with a Best’s rating of no less than A-:VII.
10.1.6 Verification of Coverage.
Company shall furnish the City with certificates of insurance and additional insured endorsements effecting coverage required by this Article. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf.
All certificates and endorsements are to be received and approved by the City before work commences.
10.1.7 Indemnification Not Limited
Any insurance required to be obtained and maintained by Company under this Agreement shall not limit in any way Company’s indemnification obligations under Article 9 of this Agreement.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Representations and Warranties. Each party represents and warrants that it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement and that this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors’ rights and general equitable principles. The Company represents and warrants that it has any and all authorizations and approvals from state and federal regulatory agencies including the California Public Utilities Commission and the Federal Communications Commission as are necessary for the Council Agenda 12-20-2022 9.I-13
Attachment 1
activities and Facilities contemplated by the Agreement and that Company is in compliance in all material respects with its obligations under such authorizations.
11.2 Notices. All notices which shall or may be given pursuant to this Agreement shall be in writing and transmitted through first class United States mail, or by private delivery systems, to the following address or such other address of which a party may give written notice:
City of Pismo Beach:
City of Pismo Beach
760 Mattie Road
Pismo Beach, CA 93449
Attn: City Attorney
With copies to (except for invoices):
Company:
Astound Broadband, LLC
3700 Monte Villa Parkway
Bothell, WA 98021
Attn: Franchise Manager
WaveDivision Holdings, LLC
650 College Road East, Suite 3100
Princeton, NJ 08540
Attn: Legal Dept.
11.3 Service of Process. Company shall designate a person in California or a nationally recognized service with a point of contact in California who is authorized to accept service of process on behalf of Company.
11.4 Operations Center. Company’s Operations Center shall be available to City staff 24 hours a day, 7 days a week, regarding problems or complaints resulting from the Facilities installed pursuant to this Agreement and may be contacted by telephone at: (888) 317-0488 regarding such problems or complaints.
11.5 Assignment. Company shall not assign or transfer any interest in this Agreement nor the performance of any of Company’s obligations hereunder, without the prior written consent of City (which consent shall not be unreasonably withheld), and any attempt by Company to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect; provided, however, Company may assign its rights and delegate its obligations hereunder without first obtaining the City’s consent to a corporation, limited liability company, partnership or other business entity wholly controlled or owned by Company or its parent companies or to the purchaser of all or substantially all of the Company’s assets. An assignment shall not be effective until the Assignee agrees in writing to comply with and be subject to all the terms and conditions of this Agreement and the Code. Upon consent of the City, this Agreement may be assigned in its entirety or all or a portion of Company’s Facilities may be assigned or leased; however, Company shall remain liable for any outstanding obligations incurred prior to such assignment.
11.6 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein.
11.7 Amendments. This Agreement may not be amended except pursuant to a written instrument signed by both parties.
Council Agenda 12-20-2022 9.I-14
Attachment 1
11.8 Severability. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement.
11.9 Survival. All of the provisions, conditions and requirements of this Agreement shall be in addition to any and all other obligations and liabilities Company may have to the City at common law, by statute, or by contract, and shall survive the Agreement and any renewals or extensions thereof. All of the provisions, conditions, regulations, and requirements contained in this Agreement shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of the parties and all privileges, as well as all obligations and liabilities of each party shall inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever such party is named herein.
11.10 Governing Law and Venue. This Agreement shall be subject to, and governed and construed by and in accordance with, the laws of the State of California. In the event that suit is brought by a party to this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in San Luis Obispo County, or in the United States District Court, Central District of California.
11.11 Successors. This Agreement is binding upon the successors, assigns and transferees of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below.
CITY OF PISMO BEACH
a City of the State of California
_______________________________
James R. Lewis
City Manager
Date: ___________________________
ASTOUND BROADBAND, LLC
Signature: _______________________________
Name: __________________________________
Title: __________________________________
Date: __________________________________
Council Agenda 12-20-2022 9.I-15
Attachment 1
EXHIBIT “A”
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS: that, WHEREAS, the City of Pismo Beach ("City"), San Luis Obispo County, State of California, has entered an Encroachment Agreement dated December 20, 2022 (the “Agreement”) with Astound Broadband, LLC, hereinafter designated as the "Principal", pursuant to which Principal may apply for one of more Encroachment Permits (“Associated Permits”) to perform certain work in the City’s right-of-way which work will be performed subject to the terms of the Agreement and any Associated Permit, and
WHEREAS, said Principal is required under the terms of the Agreement to furnish a bond for the faithful performance of any work to be performed pursuant to the Agreement;
NOW, THEREFORE, we, the Principal and [NAME OF SURETY BOND PROVIDER] as surety, are held and firmly bound unto the City of Pismo Beach, San Luis Obispo County, California, in the penal sum of twenty-five thousand Dollars ($25,000), lawful money of the United States, being one hundred percent (100%) of the amount required by Section 4.1(a) of the Agreement, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the above bounden Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and faithfully perform the covenants, conditions, and agreements in the said Agreement and any Associated Permits and any alterations made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless City, its Council, Commissioners, boards, committees, officers, employees and agents, as therein stipulated, then this obligation shall be null and void one year following the termination of the Agreement; otherwise it shall be and remain in full force and virtue.
And the said Surety, for value received, hereby stipulates and agrees to waive the provisions of California Civil Code Section 2819 regarding consent to change, extension of time, alteration, or addition to the terms of the Agreement, Associated Permits, or to the work to be performed thereunder or the specifications accompanying the same and the effect of any such change, extension of time, alteration, or addition on its obligations on this bond; and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement, or to Associated Permits, or to the work, or to the specifications.
In the event City, or its successors or assigns, shall be the prevailing party in an action brought upon this bond, then, in addition to the penal sum hereinabove specified, we agree to pay to the said City, or its successors or assigns, a reasonable sum on account of attorney's fees in such action, which sum shall be fixed by the court.
Council Agenda 12-20-2022 9.I-16
Attachment 1
IN WITNESS THEREOF, the above bounden parties have executed this instrument under their seals this day of, December 20, 2022, the name and corporate seal of each corporate party being hereto affixed, and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
ATTEST:
__________________________________
Principal
___________________________________
(SEAL)
By______________________(s)
_______________________________________________________ (Witness as to Principal)
_______________________________________________________ (Address)
_______________________________________________________ (Address)
__________________________________
Surety
ATTEST:
____________________________________________________________________________ Witness to Surety Attorney-in-Fact
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Address)
If PRINCIPAL is partnership, all partners must execute BOND.
Council Agenda 12-20-2022 9.I-17
Attachment 1