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HomeMy WebLinkAboutReso 152-2020 (20-610)City of South San Francisco P.O. Box 711 (City Hall, ARINGII&MM400 Grand Avenue) South San Francisco, CA City Council Resolution: RES 152-2020 File Number: 20-610 Enactment Number: RES 152-2020 RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A BILL OF SALE FOR THE PURCHASE OF CONDUIT WITH INTERMOUNTAIN INFRASTRUCTURE GROUP (IIG) IN AN AMOUNT NOT TO EXCEED $550,000, AUTHORIZING THE CITY MANAGER TO EXECUTE A FUNDING AGREEMENT WITH C/CAG FOR THE PURCHASE OF THE CONDUITS WHICH OVERLAP WITH THE SMART CORRIDOR PROJECT IN AN AMOUNT NOT TO EXCEED $300,000 AND APPROVING BUDGET AMENDMENT 21.018 WHICH WOULD AMEND THE FISCAL YEAR 2020/21 CAPITAL IMPROVEMENT PROGRAM. WHEREAS, the City adopted a Dig Once Policy in an effort to reduce the impact of telecommunications construction in the City's public right-of-way by providing opportunities for multiple telecommunication service providers and other parties to negotiate collocation and joint trenching of conduits, fiber optic cables, and other related equipment as a part of an "open trench" process; and WHEREAS, Intermountain Infrastructure Group (IIG) is a Full Facilities Based Competitive Location Exchange Provider as granted by the California Public Utilities Commission via Decision 19-02-013 and is considered a telecommunications service provider; and WHEREAS, as required by the Dig Once Policy, IIG notified City staff of their plan to install underground conduit throughout the City and provided the City an opportunity to negotiate collocation of conduits as a part of the open trench process; and WHEREAS, the City desires to participate in the open trench process through purchasing conduits from IIG and collocating such city -owned conduits with IIG's planned Phase I route; and WHEREAS, by partnering with IIG the City will add eleven miles of city -owned conduit, which presents a major opportunity to build a city-wide fiber network; and WHEREAS, the City and IIG have negotiated a bill of sale for the purchase of conduits and related components for an amount of $545,086, attached hereto and incorporated as Exhibit A; and WHEREAS, this amount is included in the proposed FY 2020-2021 Capital Improvement Program (CIP) budget as part of the Broadband Expansion Project (ST2102); and WHEREAS, C/CAG is funding the South San Francisco Smart Corridors Expansion Project (Project No. tr2002), which is part C/CAG's larger San Mateo County Smart Corridor Project to help City of South San Francisco Page 1 File Number: 20-610 Enactment Number. RES 152-2020 with freeway incident management and to improve mobility of local arterial streets by installing Intelligent Transportation System (ITS) equipment; and WHEREAS, portions of the IIG Phase I route overlap with the South San Francisco Smart Corridors Expansion Project route; and WHEREAS, C/CAG has agreed to fund the purchase of the conduits for the portion of the right-of-way covered by the IIG route that aligns with the Smart Corridors Project; and WHEREAS, the City and C/CAG desire to enter into a funding agreement, attached hereto and incorporated herein as Exhibit B, for conduit purchase and installation and to specify each party's obligations for implementing and funding the conduit purchases; and WHEREAS, C/CAG approved the funding agreement included in Exhibit B at its June 2020 Board Meeting; and WHEREAS, the City Council's approval of the bill of sale and the funding agreement will contribute to the City's Strategic Plan outcome of improved Quality of Life by providing eleven miles of underground conduit for future use, and will enable the City to more easily and cost -efficiently install fiber by threading it through existing conduits to build out the City's network and expand Wi-Fi access citywide. NOW THEREFORE BE IT RESOLVED, that the City Council of South San Francisco hereby approves a bill of sale for the purchase of conduit with Intermountain Infrastructure Group (IIG) in an amount not to exceed $545,086, attached hereto and incorporated herein as Exhibit A. BE IT FURTHER RESOLVED, that the City Manager is hereby authorized to execute the bill of sale in Exhibit A for the purchase of conduit with Intermountain Infrastructure Group (IIG), subject to approval as to form by the City Attorney. BE IT FURTHER RESOLVED, that the City Council of South San Francisco hereby approves a funding agreement with C/CAG for the purchase of the conduits which overlap with the Smart Corridor project in an amount not to exceed $300,000, attached hereto and incorporated herein as Exhibit B. BE IT FURTHER RESOLVED, that the City Manager is hereby authorized to execute a funding agreement with C/CAG in Exhibit B for the purchase of the conduits which overlap with the Smart Corridor project in an amount not to exceed $300,000, subject to approval as to form by the City Attorney. BE IT FURTHER RESOLVED, that the City Council of South San Francisco hereby approves budget amendment 21.018. BE IT FURTHER RESOLVED, that the City Manager is hereby authorized to make any revisions, amendments or modifications deemed necessary to carry out the intent of this Resolution that do not materially alter or increase the City's obligations thereunder, subject to approval as to form by the City Attorney. City of South San Francisco Page 2 File Number. 20-610 Enactment Number: RES 152-2020 BE IT FURTHER RESOLVED, that the City Manager is hereby authorized to take any other related action necessary to carry out the intent of this Resolution. At a meeting of the City Council on 10/28/2020, a motion was made by Councilmember Nagales, seconded by Councilmember Nicolas, that this Resolution be approved. The motion passed. Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember Nicolas, and Councilmember Matsumoto Attest by L L4 LL osa Govea Acosta, City Clerk City of South San Francisco Page 3 Page 1 of 12 CONDUIT BILL OF SALE AND OPERATION OF JOINT TRENCH AGREEMENT This Conduit Bill of Sale and Operation of Joint Trench Agreement (“Agreement”) is made effective as of ___________ _____, 2020 (“Effective Date”) by and between Intermountain Infrastructure Group, LLC, a Delaware limited liability company with offices at 533 Airport Blvd, Suite 400, Burlingame, CA, 94010 (“IIG”) and City of South San Francisco, a California municipal corporation, with an address of 400 Grand Ave., South San Francisco, CA 94080 (“City”). Each may be referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, IIG is building, has built, or will build a conduit system along a segment identified as “IIG Phase I Fiber Route” and as more particularly described and depicted on Schedule 2 attached hereto and incorporated herein by this reference (“Conduit Segment”); and WHEREAS, City desires to obtain title to two (2) of those certain two-inch Conduits (defined below) covered under the Phase I Fiber Route and those certain handholes as further delineated in Exhibit A pursuant to the terms of this Agreement; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable considerable, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1.Conduits. IIG has dug or will dig a trench for which IIG will install two (2) two-inch (2”) pipes or tubes, in accordance with the specifications provided in Schedule 1 (“Conduits”), so that City may pull its fiber optic cables through the Conduits which shall traverse the route more particularly described and referred to as the Conduit Segment. Upon execution of a Bill of Sale as defined in Section 5, the City shall obtain all rights and title to the Conduits. 2.Handholes. IIG will install and place those certain handholes along the Conduit Segment as more particularly delineated in Schedule 2 (“Handholes”) which shall be for the City’s sole use, enjoyment, and responsibility, upon the execution of the Bill of Sale defined in Section 5. 3.Inspection and Acceptance. It is the mutual intention of the Parties that the construction of the Conduit Segment and Handholes commence upon the Effective Date and be completed prior to September 30,2021 (“Completion Date”). The City’s Public Works Department shall conduct a final inspection of the Conduit Segment and Handholes for acceptance or rejection by the City. IIG shall provide written notice of completion of construction and request the City to inspect the Conduit Segment and Handholes, within forty-five (45) days of City’s receipt of such notice of completion. The City shall provide written notice to IIG whether the Conduit Segments and Handholes are accepted or rejected upon proper installation of facilities, compaction of backfill, and replacement of pavement to the satisfaction of its Public Works Department, in accordance with all specifications and requirements contained within the permits issued by the City. Within forty-five (45) days of receipt of the notice of the Completion Date, City shall return to IIG a written notice either accepting or rejecting the Exhibit A Page 2 of 12 Conduit Segment. If City rejects the Conduit Segment and/or Handholes, City shall also specify in writing, in reasonable detail, the defect or failure in the Conduit Segment and/or Handholes in relation to the specifications in Schedule 1. If City fails to notify IIG of its acceptance or rejection within such 45-day period, City shall be deemed to have accepted the Conduit Segment and/or Handholes, as applicable. The date of such notice of acceptance or deemed acceptance of the Conduit Segment and Handholes shall be the “Acceptance Date.” In the event of any written rejection by City, IIG shall take such action as reasonably necessary, and as expeditiously as practicable, to correct or cure such defect or failure, and the process of acceptance shall be repeated. The foregoing notwithstanding, if City uses any portion of the Conduit Segment prior to issuing a formal acceptance, other than for testing, such use shall constitute acceptance of the Conduit Segment with an Acceptance Date effective as of the earliest documented use by City. 4. Fee. The total payment of $545,086, (“Fee”), which shall cover the total value of the Conduits trenching and boring footages and the Handholes, shall be paid, via wire transfer or check within six (6) months of the Acceptance Date. 5. Bill of Sale. In consideration for IIG’s receipt of the Fee, IIG shall execute the “Bill of Sale” in substantially the same form as that provided in Schedule 3, attached hereto and incorporated herein. 6. Underlying Rights. IIG shall obtain, in full force and effect, all rights, licenses, permits, authorizations, franchises, rights of way, easements (collectively, the “Underlying Rights”) from the City or other governmental regulatory authority that are necessary for IIG to obtain in order to permit IIG to construct and install the Conduit Segment and Handholes in accordance with this Agreement, and pay all required fees associated with procuring such Underlying Rights. City shall obtain and maintain in full force and effect, all Underlying Rights necessary for City to obtain in order to use and operate its fiber optic system and ancillary equipment. City and IIG agree to cooperate with and support each other in complying with any requirements applicable to their respective rights and obligations hereunder by any governmental authority. 7. Maintenance. From and after the Acceptance Date, all maintenance and repair of the Handholes shall be the sole responsibility and expense of City. IIG will routinely mark the location of existing conduits in response to underground service alert (USA) notifications, provide maintenance services and repair work as necessary for the Conduit Segment including the Conduits for twenty (20) years following the Effective Date at no charge to the City. After the twenty (20) year period, the City shall reimburse IIG for the cost of all maintenance and repair work attributable to the City’s Conduits, at its sole expense. IIG shall continue to be responsible for maintenance and repair of the Conduit Segment including the City Conduits, but shall be only responsible for the cost of such work attributable to its network and remainder of the Conduit Segment excluding the City Conduits. Page 3 of 12 8. Relocation of City Conduits. If, after the Acceptance Date with respect to the Conduits, IIG is required (i) by any governmental authority under the power of eminent domain or otherwise, (ii) by the grantor or provider of any Underlying Right, (iii) by any other person having the authority to so require (each a "Relocating Authority"), or (iv) by the occurrence of any force majeure event (which, for the purposes of this section, is defined as events beyond the reasonable control of either City or IIG, without the fault or negligence of either of them, and cannot be reasonably mitigated, overcome or avoided by due diligence), to relocate the Conduits or any portion thereof, and to the extent that such relocation does not arise from or relate to the fault or negligence of IIG in locating (such as failure to fulfill its obligations under Section 6 of this Agreement), trenching, installation or maintenance of the Conduit Segment, then IIG shall have the right to either proceed with such relocation, including, but not limited to, the right, in good faith, to reasonably determine the extent and timing of, and methods to be used for, such relocation, or to pay such amounts to the Relocating Authority as are necessary to avoid the need for such relocation. The City shall be kept fully informed of determinations made by IIG in connection with such relocation, and any such relocation shall be built according to the specifications of Schedule 1 and be subject to Acceptance Testing. The City shall reimburse IIG for its proportionate share of the costs (including Acceptance Testing and including amounts paid to a Relocating Authority to avoid relocation) directly and necessarily related to such relocation (to the extent IIG has not been reimbursed by the Relocating Authority) allocated to the City pro rata based on the number of conduit within the affected trench of the Conduit Segment. 9. Taxes. IIG shall be responsible for obtaining all Underlying Rights, licenses, permits, and other necessary governmental approvals and shall timely pay any and all taxes and franchise license and permit fees (collectively “Taxes”) based on the physical location and occupation of the Conduit Segment and Handholes and/or construction thereof in, on, across, along or through public or private roads, highways or rights-of-way. From and after the Acceptance Date, all Taxes assessed against City (or IIG if the Taxes should have been assessed on City) for its use and ownership of the Conduit Segment and Handholes shall be the sole expense and responsibility of the City. 10. Representations and Warranties. Each Party represents and warrants that: a. it has full right and authority, including any requisite corporate authority, to perform its respective obligations under this Agreement; b. the execution of this Agreement is not in violation of its charter, by-laws or any law, regulation or agreement by which it is bound or to which it is subject; c. no litigation or governmental proceeding is pending or threatened in writing which might have a material adverse effect on this Agreement, the transaction contemplated by this Agreement or the rights of the Parties hereunder. 11. Indemnification. Each Party shall indemnify and hold harmless the other Party and its respective officers, agents and employees from and against all claims, damages, losses, liabilities, and costs arising from its acts or omissions pursuant to this Agreement including without limitation attorneys’ fees and cost. Page 4 of 12 12. Limitations of Liability. Neither Party shall be liable in any action initiated by one against the other for special, indirect, consequential or punitive damages resulting from or arising out of this Agreement, or the performance of the work hereunder, including, without limitation, economic loss or loss business or profits or business interruptions, however same may be caused. 13. Insurance. From the Effective Date through the Acceptance Date, IIG shall obtain and maintain, and shall require any of its permitted subcontractors to obtain and maintain, not less than the insurance set forth below: a. Workers' Compensation: Statutory; and employer’s liability insurance covering death or injury to any person or persons, or damage to property arising from the operations of vehicles or equipment, with limits of not less than $1,000,000 per occurrence. b. Commercial General Liability: Written on a per occurrence basis to include coverage for: Broad Form Property Damage; Bodily Injury; Personal Injury; Blanket Contractual Liability; and Products/Completed Operations, with a combined single limit per Occurrence not less than $2,000,000. c. Automotive Liability: Covering death or injury to any person or persons, or damage to property arising from the operation of vehicles or equipment, for all vehicles owned, hired, non-hired, non-owned and borrowed by contractor in the performance of the obligations covered under this Agreement, with limits of not less than $1,000,000 per occurrence. 14. Notices. All notices shall be in writing and shall be delivered by certified mail return receipt requested or by overnight delivery that is capable of providing proof of delivery. Any such notice shall be deemed effective on the date of mailing. All notices shall be addressed to the Parties as follows: City: City of South San Francisco Attn: Public Works Director 550 North Canal Street, South San Francisco CA 94080 IIG: Intermountain Infrastructure Group, LLC 533 Airport Blvd, Suite 400 Burlingame, CA, 94010 15. Severability. In the event that any term or provision of this Agreement is declared to be illegal, invalid or unconstitutional, then that provision shall be deemed to be deleted from this Agreement and have no force or effect and this Agreement shall thereafter continue in full force and effect, as modified. 16. Confidentiality. In connection with this Agreement, either Party may furnish to the other certain information that is marked or otherwise clearly identified as proprietary or confidential or is produced or developed during the working relationship between the Page 5 of 12 Parties and which would, if disclosed to competitors of either Party, give or increase such competitors’ advantage over the Party or diminish that Party’s advantage over its competitors (“Confidential Information”). This Confidential Information may include, among other things, documentation, data, drawings, specifications, plans, and other technical or business information. The parties acknowledge that the City is subject to the California Public Records Act and records and documents in the City’s possession are generally considered public records unless protected by a specific exemption. In addition, the parties acknowledge that the City may not be in a position to establish that any information not marked as confidential pursuant to this Agreement is confidential, proprietary, or considered trade secrets. Thus, notwithstanding any provisions of this Agreement, the City shall not be liable or in any way responsible for the disclosure of any information provided by IIG that has not been plainly marked or clearly identified as Confidential Information. For purposes of this Section 15, the Party that discloses Confidential Information is referred to as the “Disclosing Party” and the Party that receives Confidential Information is referred to as the “Receiving Party”. a. Duties of Receiving Party. With respect to Confidential Information disclosed under this Agreement, the Receiving Party shall: i. hold the Confidential Information in confidence, exercising a degree of care not less than the care used by the Receiving Party to protect its own proprietary or confidential information; ii. restrict disclosure of the Confidential Information solely to those of its or its affiliates’ employees, contractors or consultants who have a need to know, require such contractors or consultants to sign a confidentiality agreement that contains use and disclosure restrictions as restrictive as in this Section 16, and not disclose the Confidential Information to any other person or entity without the prior written consent of the Disclosing Party; iii. advise those employees of their obligations with respect to the Confidential Information; and iv. use the Confidential Information only in connection with the performance of this Agreement except as the Disclosing Party may otherwise agree in writing. b. Permitted Disclosures. The Receiving Party shall have no obligation to preserve the proprietary nature of Confidential Information which: i. was previously known to the Receiving Party free of any obligation to keep it confidential; ii. is or becomes publicly available by means other than unauthorized disclosure; iii. is developed by or on behalf of the Receiving Party legally and independently of any Confidential Information furnished under this Agreement; iv. is received from a third Party whose disclosure does not violate any confidentiality obligation; or v. is required to be disclosed by law, such as if disclosure is required under the Public Records Act or ordered for disclosure by court or administrative order. Page 6 of 12 Notwithstanding any other provisions of this Agreement, IIG agrees to indemnify, defend and hold harmless the City, its officers, agents and employees from any claims, liabilities, damages and costs incurred by or awarded against the City in favor of a third party initiating legal action to obtain IIG’s Confidential Information covered by this Agreement. 17. Dispute Resolution. Except for an action seeking a temporary restraining order or injunction, or suit to compel compliance with this dispute resolution process, the Parties agree to use the dispute resolution procedures set forth in this Section with respect to any controversy or claim arising out of or relating to this Agreement. For a period of thirty (30) days after notice from either Party, the Parties shall attempt in good faith to resolve the dispute by direct negotiation of representatives of the Parties. 18. Governing Law. This Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of California, without reference to its conflicts of law principles. Each Party hereby submits to the jurisdiction and venue of the courts in San Mateo County California for purposes of any litigation related to the Agreement and irrevocably waives any defense of an inconvenient forum to the maintenance of any action or proceeding in any such court, any objection to venue with respect to any such action or proceeding and any right of jurisdiction on account of the place of residence or domicile of any Party thereto. 19. Survival. Any and all provisions of this Agreement which, by their nature, would reasonably be expected to be complied with or performed after the expiration or termination of this Agreement shall survive and be enforceable after the expiration or termination of this Agreement. 20. Relationship of the Parties. The relationship of the Parties is that of independent contractor and not as the agent, employee or legal representative of the other. Each Party has and hereby retains the right to exercise full control of and supervision over the performance of its obligations hereunder and full control over the employment, direction, compensation and discharge of its employees assisting in the performance of such obligations. 21. Amendment. No amendments, changes or modifications to this Agreement shall be valid except if the same are in writing and signed by a duly authorized representative of each of the Parties. Neither Party shall assign any of its rights hereunder without the prior written consent of the other Party. 22. Rules of Construction. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement or as amplifying or limiting any of its content. Words in this Agreement which import the singular connotation shall be interpreted as plural, and words which import the plural connotation shall be interpreted as singular, as the identity of the Parties or objects referred to may require. Unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such Page 7 of 12 agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. 23. Entire Agreement. This Agreement, including all Schedules, contains the entire agreement between the Parties and supersedes all prior and contemporaneous communications, understandings and agreements with respect to the subject matter hereof, whether written or oral, expressed or implied. No other agreement, statement, promise, or practice between the Parties relating to the Agreement shall be binding upon the Parties. 24. Counterparts. This Agreement may be executed in counterparts, each of which when executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Facsimile signatures shall be treated as originals. IN WITNESS WHEREOF, IIG and City have each duly executed and delivered this Conduit Bill of Sale and Operation of Joint Trench Agreement as of the Effective Date. IIG: City: Intermountain Infrastructure Group, LLC City of South San Francisco By: ___________________________ By: _____________________________ Name: _________________________ Name: __________________________ Title: __________________________ Title: ____________________________ Date: __________________________ Date: ____________________________ Page 8 of 12 Schedule 1 Conduit and Construction Specifications 1. GENERAL. This Schedule 1 outlines the specifications for construction of the Conduits. In all cases, the standards contained in this Schedule or the standards of the federal, state, local or private agency having jurisdiction, whichever is stricter, shall be followed. In addition, all work and the resulting conduit system will comply with the current requirements of all governing entities (FCC, NEC, DEC, and other national, state, and local codes). Approvals of all proposed plans and specifications for construction shall be subject to the issuance of an encroachment permit from the City of South San Francisco Public Works Department. 2. MATERIAL. HDPE shall be a minimum of SDR-11. PVC conduit shall be minimum Schedule 40 wall thickness. Buried cable warning tape shall be three inches (3”) wide and display "Warning: Buried Fiber Optic Cable" and emergency One Call "800" numbers printed every twenty-four inches (24”). 3. MINIMUM DEPTHS. The minimum cover required in the placement of Conduits shall be forty-two inches (42”). Additional depth will be required in ditches, forty-eight inches (48”) and across streams, washes, culvert outfalls, and other waterways, sixty inches (60”). At locations where the Conduits crosses other subsurface utilities or other structures, the Conduits shall be installed to provide a minimum of twelve inches (12”) vertical clearance at the applicable minimum depth; otherwise, the Conduits will be installed under the existing utility or other structure. If, however, adequate clearance cannot be obtained and the Conduits must be placed above, steel conduit shall be used. In rock, the Conduits depth shall be 36 to 42 inches in HDPE, 24 to 36 inches in steel conduit, 18 to 24 inches in HDPE, PVC or steel conduit and concrete encased. PVC or HDPE conduit will be backfilled with six inches (6”) inches of select materials (padding) in rock areas. Polyurethane channel (Fiber-Rockgard or equivalent) may be used as protective cover in lieu of select material padding. In the case of the use/conversion of existing steel pipelines or existing conduit systems, the existing depth shall be considered adequate. 4. BURIED CABLE WARNING TAPE. The Conduits will be installed with buried cable warning tape except. The warning tape shall be placed above the Conduits with generally 18 to 24 inches of cover. 5. CONDUIT CONSTRUCTION. The Conduits may be placed by means of trenching, plowing, jack and bore, or directional bore. The Conduits will generally be placed on a level grade parallel to the surface, with only gradual changes in grade elevation. Crossings of roads Page 9 of 12 maintained by government bodies and railroad crossings will be encased in HDPE conduit, or as required by the permitting authority. 6. INNERDUCT INSTALLATION. Innerduct(s) shall be installed in all steel or PVC conduits. Innerduct(s) shall extend beyond the end of all conduits a minimum of twelve inches (12”). Both the conduit and innerducts shall be sealed with foam sealant and/or duct plugs after installation. 7. HANDHOLES/MANHOLES. Handholes/manholes will be installed at intervals appropriate to site conditions. Manholes are to be installed in street builds. 8. DEVIATIONS FROM SPECIFICATIONS. IIG may only deviate from these specifications when field conditions or other requirements dictate with City’s prior approval. 9. CONDITION OF CONDUIT. The Conduits shall be free of any blockages, collapse points or other impediments that would prevent installation, operation, maintenance or removal of the City’s fiber optic cable. 10. AS-BUILT FILES. IIG shall provide Auto-CAD as-built files of the Conduit Segment upon completion and City’s acceptance of the Conduit Segment. Page 10 of 12 Schedule 2 Route Map Schedule 2 is attached to and incorporated herein, is a genuine estimate of the path the Conduits will traverse and is approximately 58,292 feet of conduit, which is subject to municipal approval. Any material changes to the routes shall be subject to the written consent of City, which may be withheld in City’s sole and absolute discretion, unless the change to the route is due to municipal authority. This Bill of Sale agreement is for the route identified as IIG Phase I Fiber Route. Page 11 of 12 Schedule 3 Bill of Sale This Bill of Sale is entered into _(Month)_ (Day), 2020 by between Intermountain Infrastructure Group, LLC, a Delaware limited liability company with offices at 533 Airport Blvd, Suite 400, Burlingame, CA, 94010 (“IIG”) and City of South San Francisco, a municipality organized under the laws of California, with an address of 400 Grand Ave., South San Francisco, CA 94080 (“City”). This Bill of Sale is made pursuant to the Conduit Bill of Sale and Operation of Joint Trench Agreement entered into by and between IIG and City (Month) (Day), 2020 (the "Agreement"), to transfer the Conduits and Handholes, as fully defined herein. Any capitalized term used but not defined in this Bill of Sale have the meaning, if any, set forth in the Agreement. Conveyance. For good and valuable consideration in the amount of $XXXX to be paid in accordance with the Agreement, the receipt and adequacy of which IIG hereby acknowledges, IIG hereby irrevocably sells, assigns, transfers, conveys, grants, bargains, and delivers to City, all of its right, title, and interest in and to that certain XXXX feet of conduit spanning XXXX and associated Handholes, as more particularly depicted in the Agreement. Representations and Warranties. IIG represents and warrants that (1) IIG is conveying good and valid title to the Conduits and Handholes, free and clear of all encumbrances, debts, mortgages, attachments, pledges, charges, claims, and liens of any kind; (2) IIG has the right to sell the Conduits to City and shall warrant and defend the right against the lawful claims and demands of all persons in accordance with the terms and conditions of the Agreement; (3) the Conduits has been fully installed within the Route as of the date hereof in accordance with the specifications therefor set forth in the Agreement; and (4) IIG has all necessary permits, licenses and/or easements to use the property through which the Route is located as necessary to maintain such Route. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 2 ABOVE AND IN THE AGREEMENT, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE CONDUIT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BY ACCEPTING THIS BILL OF SALE, BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED HEREIN OR IN THE AGREEMENT. Governing Law. This Bill of Sale is governed by, and construed in accordance with, the laws of the State of California, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. Page 12 of 12 Incorporation of Agreement. This Bill of Sale incorporates by reference all of the terms of the Agreement, including but not limited to IIG's representations, warranties, covenants, and agreements relating to Conduits and Handholes, as if each term was fully set forth herein. In the event of conflict between the terms of the Agreement and the terms of this Bill of Sale, the terms of the Agreement govern and control. Counterparts. This Bill of Sale may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Bill of Sale delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Bill of Sale. IN WITNESS WHEREOF, IIG and City have each duly executed and delivered this Bill of Sale as of the date first written above. IIG: City: Intermountain Infrastructure Group, LLC City of South San Francisco By: ___________________________ By: _____________________________ Name: _________________________ Name: __________________________ Title: __________________________ Title: ____________________________ Date: __________________________ Date: ____________________________ 3573801.1 Exhibit B