Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 1 of 12 Government Code 6103:
Exempt from Recording Fee
WHEN RECORDED, MAIL TO:
City of San Mateo Attn: City Clerk
330 West 20th Avenue San Mateo, CA 94403
UTILITY EQUIPMENT AGREEMENT BETWEEN THE CITY OF SAN MATEO AND BOLDYN
NETWORKS US LLC FOR THE CONSTRUCTION, INSTALLATION, MAINTENANCE, AND
OPERATION OF FIBER OPTIC NETWORK FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY
This Agreement ("Agreement") is dated for identification this ____ of ______________, 2023 (the “Effective Date”), by and between the CITY OF SAN MATEO, a municipal corporation (herein termed "CITY"), and BOLDYN NETWORKS US LLC (f/k/a Mobilitie, LLC), a Nevada limited liability company (herein termed "BOLDYN NETWORKS").
BOLDYN NETWORKS and CITY are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, BOLDYN NETWORKS has a certificate of qualification to do business in the State of California; and
WHEREAS, BOLDYN NETWORKS has received a Certificate of Public Convenience and Necessity (“CPCN”) issued by the Public Utilities Commission of the State of California (herein termed “PUC”) and is authorized to provide Telecommunications Services in the State of California; and
WHEREAS, BOLDYN NETWORKS desires to construct, install, and maintain Fiber Optic Network Facilities within the Public Right-of-Way within CITY; and
WHEREAS, CITY has the authority to regulate, consistent with applicable law, the terms and conditions for the use of Public Right-of-Way for the construction, installation, and maintenance of Fiber Optic Network Facilities by private telecommunication services providers; and
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein, CITY and BOLDYN NETWORKS agree as follows:
DEFINITIONS
"BOLDYN NETWORKS" shall mean BOLDYN NETWORKS, LLC, and its lawful successors or assigns.
"CITY" means the CITY OF SAN MATEO, a municipal corporation of the State of California, and includes the duly elected or appointed officers, agents, employees, and volunteers of the CITY OF SAN MATEO, individually or collectively.
"Public Right-of-Way" means in, upon, along, across, and under the public streets, ways, alleys, and places, and including public utility easements and public Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 2 of 12 service easements, as the same now or may thereafter exist that are under jurisdiction of or controlled by said CITY.
"Fiber Optic Network Facilities" or "Facilities" means BOLDYN NETWORKS fiber optic cables, coaxial, Ethernet and copper cables, conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location markers, appurtenances, and related facilities located or to be located in the Public Right-of-Way of CITY and used or useful for the transmission of telecommunications.
"Telecommunications Services" means all communications services BOLDYN NETWORKS is permitted to provide under applicable federal and state law, except that this Agreement does not authorize BOLDYN NETWORKS to provide cable (TV) services as such term is defined in 47 U.S.C. § 522, broadcast television service, or wireless (cell) service.
LIMITATIONS AND RESTRICTIONS
1. CITY hereby grants authorization to BOLDYN NETWORKS, subject to reservations, covenants, and conditions herein contained, to construct, reconstruct, install, reinstall, maintain, operate, replace, relocate, and remove Fiber Optic Network Facilities used for Telecommunications Services within Public Right-of- Way located within the corporate limits of the CITY OF SAN MATEO, subject to obtaining all required permits and approvals.
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 and its assigns to use all Public Right-of-Way in the performance of its duty, 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 Right-of-Way; provided, however, should BOLDYN NETWORKS be required to relocate its Fiber Optic Network Facilities due to the actions of any nongovernmental third party, such third party shall be required to reimburse BOLDYN NETWORKS for its full cost of such relocation and BOLDYN NETWORKS shall not be required to relocate its facilities until it receives an executed reimbursement agreement from the nongovernmental third party, unless removal is required to protect or preserve the public health, safety, welfare, or interest.
3. This Agreement is made subject to all easements, restrictions, conditions, covenants, encumbrances, and claims of title which may affect said Public Right-of- Way, and it is understood that BOLDYN NETWORKS, at its own cost and expense, shall obtain such permission as may be necessary consistent with any other existing rights.
4. The construction, installation, operation, maintenance, and removal of said Fiber Optic Network Facilities shall be accomplished without cost or expense to CITY subject to the approval of CITY's Public Works Director in such a manner as not to endanger personnel or property, or unreasonably obstruct travel on any road, walk or Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 3 of 12 other access thereon within said Public Right-of-Way.
COMPLIANCE WITH STANDARDS
5. BOLDYN NETWORKS shall at all times during the duration of this Agreement maintain said Fiber Optic Network Facilities in good and safe condition and free from any nuisance to the satisfaction of CITY's Public Works Director.
6. BOLDYN NETWORKS shall construct, install, operate, and maintain all Fiber Optic Network Facilities in accordance and in conformity with all applicable CITY, State, Federal, and regulatory laws, ordinances, rules, and regulations applicable under this Agreement.
SERVICE CHANGE
7. BOLDYN NETWORKS provides interstate and intrastate Telecommunications Services in California pursuant to its Certificate of Public Convenience and Necessity received from the PUC and applicable federal law.
8. BOLDYN NETWORKS hereby warrants that the type of service offered to its customers using or consisting of the Fiber Optic Network Facilities in said Public Right-of-Way consists solely of Telecommunications Services, presently permitted by law or that it otherwise is entitled to offer or provide consistent with its rights under Cal. Pub. Util. Code § 7901 as a telephone corporation. If BOLDYN NETWORKS is authorized by the PUC to change the nature and character of its service and such service changes are to include additional and/or alternative services that are subject to the regulatory authority of CITY, including, but not limited to, cable service (as such term is defined in 47 U.S.C. § 522), and not preempted by State or Federal law, BOLDYN NETWORKS shall notify CITY in writing, as soon as practicable, but in no event later than thirty (30) days following such a decision by the PUC, and comply with CITY's fee, franchise, and/or permit requirements as applicable. BOLDYN NETWORKS acknowledges that any expansion or change in the character and nature of the telecommunications service in general may increase CITY's regulatory authority over such service and/or product, and this may, at CITY's election, require BOLDYN NETWORKS to enter into a new Agreement consistent with the requirements of a hereinafter enacted CITY ordinance regulating such services or the expansion or change in service, if all or any party of such service change falls under the regulation, jurisdiction, and authority of CITY.
NO FRANCHISE RIGHTS CREATED
9. Nothing in this Agreement shall be construed as granting or creating any franchise rights.
REMOVAL AND RELOCATION
10. BOLDYN NETWORKS shall remove or relocate, without cost or expense to CITY, any Facilities installed, used, and maintained under this Agreement if and when made necessary by any lawful change of grade, alignment, or width of any street, including the construction, maintenance, or operation of any underground facility by CITY and/or construction, maintenance, or operation of any other CITY underground or aboveground facilities. In the event all or any portion of said Public Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 4 of 12 Right-of-Way occupied by said Fiber Optic Network Facilities shall be needed by CITY for governmental purposes or in the event the existence of said Fiber Optic Network Facilities shall be considered detrimental to governmental activities, including, but not limited to, interference with CITY construction projects, or is in conflict vertically and/or horizontally with any proposed CITY installation, BOLDYN NETWORKS shall, following CITY notification, remove and relocate said Fiber Optic Network Facilities to such other location or locations on said Public Right-of-Way as may be designated by CITY. Said removal or relocation shall be completed within 90 days of notification by CITY. In the event said Fiber Optic Network Facilities are not removed or relocated within 90 days after said notification and BOLDYN NETWORKS has not suffered a force majeure or other event beyond its control, CITY may cause the same to be done at the sole expense of BOLDYN NETWORKS.
11. In those areas and portions of CITY where, by ordinance or other applicable law, the transmission or distribution facilities of public utility corporations, such as BOLDYN NETWORKS, are required or hereafter required to be placed underground, then BOLDYN NETWORKS shall construct, operate, and maintain all of its Facilities underground in accordance with such ordinance or other applicable law. For the purposes of this subsection, "underground" shall include a partial underground system. CITY shall not in any manner be responsible for any costs incurred by BOLDYN NETWORKS in placing BOLDYN NETWORKS' Facilities underground. If undergrounding is performed by CITY, BOLDYN NETWORKS shall pay its pro rata share of the undergrounding costs as determined on a nondiscriminatory basis applicable to other public utility telephone corporations.
Upon application by BOLDYN NETWORKS, CITY's City Manager or his/her designee, in CITY's sole discretion, exercised on a nondiscriminatory basis, may allow these undergrounding requirements to be waived.
12. If any portions of the Fiber Optic Network Facilities covered under this Agreement other than redundant facilities or facilities for emergency use are no longer used or useful by BOLDYN NETWORKS, or are abandoned for a period in excess of one (1) year, BOLDYN NETWORKS shall notify CITY and shall promptly vacate and remove the facilities at its own expense, or at CITY’s discretion, may abandon some or all of the Facilities in place.
13. When removal or relocation are required under this Agreement, BOLDYN NETWORKS shall, after the removal or relocation of the Fiber Optic Network Facilities, at its own cost, repair and return said Public Right-of-Way or public utility or service easements on which the facilities were located to a safe and satisfactory condition in accordance with the construction related conditions and specifications as established by CITY according to its standard practice. Should BOLDYN NETWORKS remove the Fiber Optic Network Facilities from said Public Right-of- Way, BOLDYN NETWORKS shall, within ten (10) days after such removal, give notice thereof to CITY specifying the right-of-way affected and the location thereof as well as the date of removal. Before proceeding with removal or relocation work, BOLDYN NETWORKS shall obtain and CITY shall issue an encroachment permit from CITY.
CONSTRUCTION PERMIT AND FEES
14. BOLDYN NETWORKS shall apply for an encroachment permit for any Fiber Optic Network Facility construction or maintenance work requiring traffic control within said Public Right-of-Way or public utility or service easements. Consistent with Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 5 of 12 CITY Standard Provisions, BOLDYN NETWORKS shall furnish detailed plans of the work and other such information as required by the Public Works Director of CITY and shall pay all processing, field marking, engineering, and inspection fees prior to issuance of said permit in accordance with the rates in effect at the time of payment.
All Fiber Optic Network Facility construction within said Public Right-of-Way or public utility or service easements shall be installed in accordance with the City of San Mateo City Code, CITY's Standard Provisions, and as further provided for in the provisions of this Agreement.
15. The encroachment permit shall set forth the description of the Fiber Optic Network Facilities to be installed and said Public Right-of-Way or public utility or service easements on which such facilities are to be located. Consistent with CITY Standard Provisions, CITY shall establish construction related conditions and specifications, and these shall also be set forth in the encroachment permit.
PERFORMANCE BOND
16. Prior to issuance of an encroachment permit for particular work, BOLDYN NETWORKS shall provide CITY with a performance bond naming CITY as obligee in the amount equal to one hundred percent (100%) of the cost of the work to be performed by or on behalf of BOLDYN NETWORKS within and affecting said Public Right-of-Way to guarantee and assure the faithful performance of BOLDYN NETWORKS' obligations under this Agreement. CITY shall have the right to draw against the performance bond in the event of a default by BOLDYN NETWORKS or in the event, that BOLDYN NETWORKS fails to meet and fully perform any of its obligations, provided that BOLDYN NETWORKS is first given written notice of the CITY’s intent to draw against the performance bond and an opportunity to cure any default or failure to perform, and has indeed completed the cure of any default or failure to perform within thirty (30) days of the notice. The form of the performance bond shall be approved by the CITY. The performance bond shall remain in full force for one (1) year after the work to be performed is completed, inspected, accepted, and released by CITY's Public Works Director.
DAMAGE TO FACILITIES IN PUBLIC RIGHT-OF-WAY
17. BOLDYN NETWORKS shall be responsible for any damage to CITY street pavements, existing utilities, curbs, gutters, or sidewalks due to its installation, maintenance, repair, or removal of its Fiber Optic Network Facilities in said Public Right-of-Way and public utility or service easements, and shall repair, replace, and restore in kind the said damaged facilities at its sole expense.
18. If the Public Right-of-Way to be used by BOLDYN NETWORKS has preexisting installation(s) placed in the said Public Right-of-Way, BOLDYN NETWORKS shall assume the responsibility to verify the location of the preexisting installation and notify CITY and any third party of BOLDYN NETWORKS' proposed installation. The cost of any work required of such third party or CITY to provide adequate space or required clearance to accommodate BOLDYN NETWORKS' installation shall be borne solely by BOLDYN NETWORKS.
PARTICIPATION WITH OTHER UTILITIES
Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 6 of 12
19. BOLDYN NETWORKS agrees to cooperate in the planning, locating, and constructing of its Fiber Optic Network Facilities in utility joint trenches or common duct bands with other similar utilities and to participate in cost-sharing for the joint trench and ducts, when such joint utility installations are being planned for or exist in an area.
RECORDS OF FIELD LOCATIONS
20. BOLDYN NETWORKS shall maintain accurate maps and improvement plans of said Fiber Optic Network Facilities located within CITY. BOLDYN NETWORKS shall provide, upon demand of CITY's Public Works Director and deliver to the office of CITY's Public Works Department free of charge within thirty (30) days after such demand, and upon request by other third parties interested in performing work within Public Right-of-Way for a reasonable charge and, at BOLDYN NETWORKS’ reasonable discretion subject to a suitable nondisclosure agreement to the extent permitted by the state Public Records Act, within thirty (30) days after such request, such maps and plans as may be required to show in detail the exact location, size, depth, and description of all BOLDYN NETWORKS Fiber Optic Network Facilities installed within said Public Right-of-Way. BOLDYN NETWORKS shall, at its sole cost and expense, identify or expose its subsurface Fiber Optic Network Facilities by ground penetrating radar or, if ground penetrating radar fails to adequately identify the facilities to the satisfaction of the CITY’s Public Works Director, by potholing to a depth of 1' below the bottom of its subsurface Fiber Optic Network Facilities, within thirty (30) days of receipt of a written request from CITY to do so.
21. BOLDYN NETWORKS shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark, at its sole expense, the locations of its underground Fiber Optic Network 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.
HOLD HARMLESS AND INDEMNIFICATION; LIMITATION OF LIABILITY
22. BOLDYN NETWORKS, 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 elected and appointed officials, employees, and agents, and any successors to CITY's interest, (“Indemnitees”) from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorney's fees and costs of defense (collectively, the "Losses") arising directly or indirectly out of BOLDYN NETWORKS’ activities or Facilities described in this Agreement and/or the installation, operation, removal, and/or repair of the improvement and Facilities thereto; provided, however, BOLDYN NETWORKS shall not indemnify CITY, its elected and appointed officials, employees, and agents and any successors to CITY's interest for losses arising directly or indirectly, from CITY's or Indemnitees’ sole acts of negligence, omissions, or willful misconduct. CITY shall not be responsible for any damages, losses, or liability arising from the issuance by CITY of a permit or approval to any third party or any interruption in service.
Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 7 of 12
23. Except as set forth in Section 22 of this Agreement, BOLDYN NETWORKS, for itself and its successors and assigns, hereby waives all claims and causes of action, whether now existing or hereafter arising, against CITY or its elected and appointed officials, agents, or employees, for damages, physical or otherwise, to any of the Facilities covered by this Agreement from any cause whatsoever, except for damages caused by CITY’s sole acts of negligence, omissions, or willful misconduct or sole acts of negligence, omissions, or willful misconduct on the part of CITY’s employees or agents that are legally imputable to CITY. Under no circumstances shall either party be liable to the other party or otherwise responsible for any loss of service downtime, lost revenue or profits or third-party damages.
24. If any portion of the Public Right-of-Way is taken by condemnation, the portion of the condemnation award attributable to the Public Right-of-Way shall be paid to CITY. The portion of the award attributable to any Facilities in or on the Public Right- of-Way shall be paid to BOLDYN NETWORKS.
INSURANCE
25. Insurance.
a. Commercial General Liability Insurance:
BOLDYN NETWORKS shall obtain and maintain Commercial General Liability insurance on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than Five Million Dollars ($5,000,000) per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this contract or the general aggregate limit shall be twice the required occurrence limit.
b. Automobile Liability Insurance:
BOLDYN NETWORKS shall obtain and maintain Automobile Liability insurance with limit of no less than Two Million Dollars ($2,000,000) per accident for bodily injury and property damage.
c. Workers' Compensation Insurance:
BOLDYN NETWORKS shall obtain and maintain statutory Workers' Compensation insurance and Employer's Liability insurance with limit of no less than One Million Dollars ($1,000,000) per accident for bodily injury or disease.
d. Acceptability of Insurers:
Insurance is to be placed with insurers with a current Best Rating of A: VII unless otherwise acceptable to CITY.
e. Verification of Coverage:
Insurance, deductibles, or self-insurance retentions shall be subject to CITY's approval. Original Certificates of Insurance with endorsements shall be received and approved by CITY before work commences, and insurance must be in effect for the duration of the contract. The absence of insurance or a reduction of stated limits shall cause all work on the project to cease. Any delays shall not increase costs to CITY or increase the duration of the project.
Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 8 of 12
f. Other Insurance Provisions:
(1) The City of San Mateo, its elected and appointed officials, employees and agents are to be included as additional insured as their interest may appear under this Agreement by ISO Endorsement Form or other endorsement approved by CITY's Risk Manager for Commercial General and Automobile Liability coverage.
(2) For any claims related to this project, BOLDYN NETWORKS' insurance coverage shall be primary and any insurance or self-insurance maintained by CITY, its officers, officials, employees, and volunteers shall not contribute to it.
(3) Umbrella or excess liability insurance may be used to achieve the minimum liability limits set forth above.
(4) BOLDYN NETWORKS shall provide thirty (30) days notification to CITY in the event of cancellation or modifications of limits to the stipulated coverage.
(5) In the event BOLDYN NETWORKS employs contractors and/or subcontractors as part of the work covered by this Agreement, BOLDYN NETWORKS shall require that each of its contractors and/or subcontractors comply with the same insurance requirements that are stated in this Agreement; provided, however, this provision may be satisfied by contractor’s insurance policies which meet the same insurance requirements and insure the activities of their subcontractors in lieu of separate subcontractor insurances policies. (6) Approval of this insurance by CITY or acceptance of the Certificate of Insurance by CITY shall not relieve or decrease the extent to which BOLDYN NETWORKS may be held responsible for payment of damages resulting from BOLDYN NETWORKS' services or operation pursuant to this Agreement, nor shall it be deemed a waiver of CITY's rights to insurance coverage hereunder. (7) If, for any reason, BOLDYN NETWORKS fails to maintain insurance coverage that is required pursuant to this contract, the same shall be deemed a material breach of contract. CITY, at its sole option, may terminate this contract pursuant to the provisions of Section 31.
ASSIGNMENT
26. a. BOLDYN NETWORKS shall not assign or transfer any interest in this Agreement nor the performance of any of BOLDYN NETWORKS' obligations hereunder, without the prior written consent of CITY, which shall not be unreasonably withheld, conditioned or delayed, and any attempt by BOLDYN NETWORKS to so assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect.
b. Notwithstanding Section 26.a, BOLDYN NETWORKS may
Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 9 of 12 assign the rights granted herein, in whole or in part, to: (i) a parent, successor, subsidiary, or affiliate of BOLDYN NETWORKS (defined for the purposes of this section as any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with BOLDYN NETWORKS), now or hereinafter existing, (ii) a purchaser of all or substantially all of the assets or the equity interests of BOLDYN NETWORKS; or (iii) any entity into which BOLDYN NETWORKS is merged or consolidated, by only providing notice to CITY of such assignment. However, this Agreement shall be binding on successors and assigns and shall be disclosed to assignee.
ENTIRE UNDERSTANDING
27. This Agreement contains the entire 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 which are not fully expressed herein. This Agreement may not be amended except pursuant to a written instrument signed by all Parties.
SEVERABILITY
28. If any one or more of the covenants or agreements or portions thereof provided in this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such covenant or covenants, such agreement or agreements, or such portions thereof shall be null and void and shall be deemed separable from the remaining covenants or agreements or portions thereof and shall in no way affect the validity or enforceability of the remaining portions of this Agreement, and the Parties shall negotiate in good faith to replace any such covenant, agreement, or portion found to be null and void.
THIRD-PARTY MODIFICATIONS
29. This Agreement shall be subject to such changes or modifications as may be required or authorized by any regulatory commission in the exercise of its lawful jurisdiction.
ENFORCEMENT
30. Failure to comply with the terms and conditions of this Agreement may, at CITY's sole discretion, result in withholding issuance of any new encroachment permits, termination of this Agreement, and/or code enforcement pursuant to the San Mateo Municipal Code.
TERM AND TERMINATION
31. This Agreement shall terminate ten (10) years from the Effective Date.
Following the initial ten (10) year term, the Parties shall diligently and in good faith seek to negotiate a replacement agreement consistent with BOLDYN NETWORKS continuing right under Public Utilities Code § 7901 to use the Public Right-of-Way subject to the CITY’s authority to regulate the terms and conditions of BOLDYN NETWORKS’ use of the Public Right-of-Way. This Agreement may be terminated by Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 10 of 12 CITY upon sixty (60) days written notice to BOLDYN NETWORKS if CITY reasonably determines that the provisions herein interfere with the use or disposal of said Public Right-of-Way or any part thereof by CITY. Where only a portion of BOLDYN NETWORKS' Fiber Optic Network Facilities interferes with the use or disposal of said Public Right-of-Way, CITY shall require BOLDYN NETWORKS to relocate the said portion in accordance with this Agreement if, in the CITY’s sole discretion, it determines relocation of only a portion of BOLDYN NETWORKS’ Fiber Optic Network Facilities is feasible. This Agreement may be terminated by CITY for failure, neglect, or refusal by BOLDYN NETWORKS to fully and promptly comply with any and all of the conditions of this Agreement, or for nonuse of all of its Fiber Optic Network Facilities as described in Section 12 herein, upon sixty (60) days written notice, unless BOLDYN NETWORKS confirms within sixty (60) days of receipt of the notice that the cited condition has ceased, been corrected or, subject to CITY's agreement, is diligently being pursued by BOLDYN NETWORKS.
32. This Agreement may be amended in writing and signed by both parties. Upon termination of this Agreement, and upon written request by CITY, BOLDYN NETWORKS, at its own costs and expense, agrees to remove or, at CITY's discretion, abandon in place some or all of its Fiber Optic Network Facilities from Public Right-of-Way and restore said Public Right-of-Way as set forth in the Removal and Relocation provisions of this Agreement. Should BOLDYN NETWORKS in such event fail, neglect, or refuse to make such removals or restoration within one hundred eighty (180) days of CITY's written request, at the sole option of CITY, such removal and restoration may be performed by CITY at the expense of BOLDYN NETWORKS, which actual expense, including administrative and legal costs, BOLDYN NETWORKS agrees to pay CITY upon demand.
AMENDMENT
33. This Agreement may not be amended except by written instrument signed by both Parties.
NOTICE
34. BOLDYN NETWORKS' Network 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:
1-877-353-1695
BOLDYN NETWORKS shall designate a person in California who is authorized to accept service of process on behalf of BOLDYN NETWORKS regarding such problems or complaints.
35. All notices given or which may be given pursuant to this Agreement shall be in writing and transmitted by United States mail or by private delivery systems or by facsimile if followed by United States mail or by private delivery systems as follows:
Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 11 of 12 To CITY: Public Works Director City
of San Mateo
330 West 20th Avenue San
Mateo, CA 94403
To BOLDYN NETWORKS: Boldyn Networks US LLC
121 Innovation Drive, Suite 200
Irvine, CA 92617
ATTN: Asset Management
With a copy to (excluding invoices):
Boldyn Networks US LLC
121 Innovation Drive, Suite 200
Irvine, CA 92617
ATTN: Legal Department
GOVERNING LAW AND VENUE
36. This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo or the United States courts serving the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
Utility Equipment Agreement between the City of San Mateo and Boldyn Networks US LLC Page 12 of 12 IN WITNESS WHEREOF, this agreement between the CITY OF SAN MATEO and BOLDYN NETWORKS has been duly executed by the Parties hereinabove named, as of the day and year first above written.
CITY OF SAN MATEO
__________________________
Brad Underwood
Interim Public Works Director
BOLDYN NETWORKS US LLC
__________________________
Kristie Rickett
Chief Legal Officer
APPROVED AS TO FORM OFFICER
__________________________
Linh P. Nguyen
Assistant City Attorney
ADDITIONAL CORPORATE OFFICER
(If necessary)
__________________________