HomeMy WebLinkAbout11.09.22@500 SP CCWednesday, November 9, 2022
5:00 PM
City of South San Francisco
P.O. Box 711 (City Hall, 400 Grand Avenue)
South San Francisco, CA
Municipal Services Building, Council Chambers
33 Arroyo Drive, South San Francisco, CA
Special City Council
Special Meeting Agenda
HYBRID IN-PERSON/VIRTUAL MEETING NOTICE
1
November 9, 2022Special City Council Special Meeting Agenda
HYBRID IN-PERSON/VIRTUAL MEETING NOTICE
The purpose of conducting the meeting as described in this notice is to provide the safest environment for staff
and the public while allowing for public participation.
Councilmembers Coleman, Flores and Addiego, Vice Mayor Nicolas and Mayor Nagales and essential City
staff may participate via Teleconference.
Pursuant to Ralph M. Brown Act, Government Code Section 54953, all votes shall be by roll call due to
council members participating by teleconference.
The City Council may meet by teleconference, consistent with the Brown Act as amended by AB 361 (2021).
Under the amended rules, the City will not provide a physical location for members of the public to participate
in the teleconference meeting.
American Disability Act:
The City Clerk will provide materials in appropriate alternative formats to comply with the Americans with
Disabilities Act. Please send a written request to City Clerk Rosa Govea Acosta at 400 Grand Avenue, South
San Francisco, CA 94080, or email at [email protected]. Include your name, address, phone number, a brief
description of the requested materials, and preferred alternative format service at least 24-hours before the
meeting.
Accommodations: Individuals who require special assistance of a disability -related modification or
accommodation to participate in the meeting, including Interpretation Services, should contact the Office of the
City Clerk by email at [email protected], 24-hours before the meeting.
Notification in advance of the meeting will enable the City of South San Francisco to make reasonable
arrangements to ensure accessibility to the meeting.
Page 2 City of South San Francisco Printed on 11/10/2022
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November 9, 2022Special City Council Special Meeting Agenda
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November 9, 2022Special City Council Special Meeting Agenda
CALL TO ORDER
ROLL CALL
AGENDA REVIEW
PUBLIC COMMENTS -Comments are limited to items on the Special Meeting Agenda
CONSENT CALENDAR
Report regarding a Master Encroachment Agreement with Mobilitie, LLC for the
Installation of Network Facilities within the Public Rights-of-Way. (Eunejune Kim,
Director of Public Works/City Engineer)
1.
Resolution approving a Master Encroachment Agreement with Mobilitie, LLC for the
Installation of Telecommunications Network Facilities within the Public
Rights-of-Way, and authorizing the City Manager to execute the agreement
1a.
CLOSED SESSION
Conference with Real Property Negotiators (Pursuant to Government Code Section
54956.8) Property: City property at 367 Marina Boulevard (APN 015-011-350)
City Negotiators: Nell Selander, Director of Economic and Community Development;
Ernesto Lucero, Acting Deputy Director of Economic and Community Development;
and Lindsay D'Andrea, Assistant City Attorney Negotiating Party: Ensemble
Investments
Under Negotiations: Price and terms
2.
ADJOURNMENT
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City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:22-619 Agenda Date:11/9/2022
Version:1 Item #:1.
Report regarding a Master Encroachment Agreement with Mobilitie,LLC for the Installation of Network
Facilities within the Public Rights-of-Way.(Eunejune Kim, Director of Public Works/City Engineer)
RECOMMENDATION
It is recommended that the City Council adopt a resolution approving a Master Encroachment
Agreement with Mobilitie,LLC for the Installation of Network Facilities within the Public Rights-of-
Way and authorizing the City Manager to execute the agreement.
BACKGROUND/DISCUSSION
The City of South San Francisco (“City”)owns,manages,and regulates the use of public streets,easements,
and public rights-of-way that have been dedicated to the City.Private telecom companies and public utilities
have the authority under California Public Utilities Code section 7901 and California Public Utilities
Commission (CPUC)decisions to install and maintain their facilities within public streets and rights-of-way.
While the City cannot impose a blanket prohibition on telecommunications deployment,it can impose
regulations and conditions regarding the time,place and manner of the use of the rights of way pursuant to
relevant statute and case law.
Mobilitie,LLC (Mobilitie)is planning a fiber-optic project within the City and is requesting permission to
install new fiber-optic lines/conduits within the City public rights-of-way.These installations may be located on
overhead utility poles or in underground conduits.The work will occur throughout the city in support of
Mobilitie high-speed telecommunications services.
Staff recommends approval of a Master Encroachment Agreement to allow for the installation of facilities,and
to outline the terms and conditions for the non-exclusive use of the public rights-of-way.This agreement grants
a revocable license to Mobilitie to install fiber-optic facilities in the rights-of-way,and requires Mobilitie to
obtain individual encroachment permits for each separate segment installation.The term of the agreement is ten
(10) years from its execution, unless otherwise renewed by the parties.
The Master Agreement provides the City with control over what,where,and how facilities are installed and
maintained within the public rights-of-way,and it requires Mobilitie to provide the City with updated maps
annually with details of their installations.The Master Agreement also ensures that the installations comply
with the City’s “Dig Once”policy,by which the City and other providers can choose to participate in the
installations for their own needs,taking advantage of the economies of scale while minimizing disruptions to
the public and preventing additional damage to the infrastructure.Mobilitie is responsible for damages to the
rights-of-way due to construction of its facilities pursuant to the Master Agreement,and to maintain insurance
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rights-of-way due to construction of its facilities pursuant to the Master Agreement,and to maintain insurance
coverage.The Master Agreement further imposes indemnification obligations on Mobilitie to indemnify,
defend and hold harmless the City against liabilities arising from Mobilitie activities pursuant to the agreement,
with the exception of those solely caused by the City’s gross negligence or willful misconduct.
The Master Agreement also specifies that the City may order the removal or relocation of the fiber-optic
facilities without cost to the City if the City determines (1)the right-of-way location is needed for City work or
facilities;or (2)if the fiber-optic facilities are detrimental to governmental activities including interfering with
city projects and installations.
Likewise,the City may terminate this agreement with a sixty-day written notice in the event that (1)the fiber-
optic facilities interfere with the use or disposal of the public right-of-way;(2)that Mobilitie fails to comply
with the terms of the Master Encroachment Agreement;(3)bankruptcy or dissolution of Mobilitie;and (4)
revocation,expiration or other loss of applicable permits or authorizations required by city or other laws for the
fiber-optic facilities.
The Master Encroachment Agreement has been negotiated and reviewed by staff and reviewed by the City
Attorney as to form.
FISCAL IMPACT
Mobilitie will pay fees to cover the costs associated with city staff review and construction inspections for
separate encroachment permits required by each underground installation segment of fiber-optic lines.There is
no compensation required by the Master Agreement,as it merely outlines the terms and conditions required of
Mobilitie for the entirety of the agreement.
RELATIONSHIP TO STRATEGIC PLAN
Approval of the Master Encroachment Agreement supports the City’s Strategic Plan to improve Quality of Life
for the community;specifically promoting a full range of employment options through business retention and
development projects.
CONCLUSION
It is recommended that City Council adopt a resolution approving a Master Encroachment Agreement with
Mobilitie for the Installation of Network Facilities within the Public Rights-of-Way,and authorizing the City
Manager to execute the agreement.
Attachment:Proposed Route
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Legend
Mobilitie RouteExisting Conduit
Mobilitie Route ATTACHMENT 2
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Legend
Mobilitie RouteExisting C onduit
Mobilitie Route
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City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:22-620 Agenda Date:11/9/2022
Version:1 Item #:1a.
Resolution approving a Master Encroachment Agreement with Mobilitie,LLC for the Installation of
Telecommunications Network Facilities within the Public Rights-of-Way,and authorizing the City Manager to
execute the agreement
WHEREAS,the City of South San Francisco (“City”)owns,manages,and regulates the use of public streets,
easements, and public rights-of-way that have been dedicated to the City; and
WHEREAS,private companies and public utilities have the authority under state law and California Public
Utilities Commission (CPUC)decisions to install and maintain facilities within these public streets and rights-
of-way, subject to regulation by the City; and
WHEREAS,while the City cannot prevent these installations,the City can specify regulations and conditions
governing the installation; and
WHEREAS, Mobilitie, LLC (“Mobilitie”) is planning fiber-optic installations within the City; and
WHEREAS,staff recommends that the City enter into a Master Encroachment Agreement (“Agreement”)with
Mobilitie for the installation of such facilities; and
WHEREAS,the Agreement would grant a revocable license to Mobilitie to allow for the installations of these
fiber-optic projects and will outline the terms and conditions for Mobilitie’s non-exclusive use of the public
rights-of-way; and
WHEREAS, the Agreement will ensure that the installations comply with the City’s “Dig Once” policy; and
WHEREAS,the Agreement requires Mobilitie to obtain individual encroachment permits for each separate
installation,and provides the City with control over the location,installation and maintenance of such facilities
in the public way; and
WHEREAS,Mobilitie will be required to pay fees for these individual encroachment permits to reimburse the
City for staff time required to review the encroachment permits and inspect the work; and
WHEREAS, Mobilitie will be required to annually submit updated maps with details of the installations; and
WHEREAS,the Agreement requires Mobilitie to remove or relocate their fiber-optic,without cost to the City,
should the City determine such removal or relocation is necessary for city facilities or projects; and
WHEREAS,the City may terminate the Agreement with a sixty-day written notice in the event of Mobilitie’s
interference with the right-of-way,uncured default,bankruptcy or dissolution,or loss of any required legal
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permits; and
WHEREAS,approval of the Agreement supports the City’s Strategic Plan to improve Quality of Life for the
community, and would promote employment opportunities and development.
NOW,THEREFORE,BE IT RESOLVED that the South San Francisco City Council approves the Master
Encroachment Agreement between the City and Mobilitie,a copy of which is attached hereto and incorporated
herein as Exhibit A.
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute the agreement in
substantially the same form as Exhibit A and to make minor modifications that do not increase the City’s
obligations thereunder, subject to approval as to form by the City Attorney.
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other related
actions consistent with the intentions of the staff report or this resolution.
*****
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ENCROACHMENT AGREEMENT BETWEEN THE CITY OF SOUTH SAN
FRANCISCO AND MOBILITIE, LLC FOR THE INSTALLATION OF
TELECOMMUNICATIONS NETWORK FACILITIES WITHIN PUBLIC RIGHT-OF-
WAY
This Agreement (“Agreement”), dated this_____ day of___________, 2022 (“Effective Date”) is
by and between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation (herein termed
"City"), and MOBILITIE, LLC (herein termed "COMPANY"). COMPANY and CITY are
sometimes individually referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
A. COMPANY has received, or has a pending application for, a Certificate of Public
Convenience and Necessity (“CPCN”) from the Public Utilities Commission of the State
of California ("PUC") to operate as a provider of facilities-based and resold local exchange
and interexchange communications services; and
B. COMPANY desires, subject to its possession of the CPCN, to construct, install, and
maintain Telecommunications Network Facilities within the Public Right-of-Way and/or
public utility and/or service easements within City in order to provide
Telecommunications Services; and
C. Pursuant to applicable Laws, City has the authority to regulate the terms and conditions
for the use of Public Right-of- Way for the construction, installation, and maintenance of
the Telecommunications Network Facilities by telecommunications services providers;
and
D. In order to encourage telecommunications infrastructure development and to promote
the management of the rights-of-way in the interest of public health, safety, and welfare,
the City desires to permit COMPANY to construct Telecommunications Network
Facilities, as defined herein, in accordance with the terms, conditions, and covenants
contained in this Agreement.
E. At City’s request, COMPANY has furnished a deposit to City in the amount of five
thousand dollars ($5,000.00) to be applied by City to reimburse it in a total amount not to
exceed five thousand dollars ($5,000) for actual reasonable costs incurred by City for legal
assistance provided by outside counsel in connection with the good faith negotiation and
preparation of this Agreement. City will draw on this deposit to reimburse City for
amounts invoiced by, and paid by City to, outside counsel for such services. City will
refund any unused portion of the deposit to COMPANY upon execution of this
Agreement by both Parties. City will be solely responsible for all outside counsel charges
exceeding the five thousand dollar ($5,000.00) cap, as well as all other costs incurred by
the City in connection with the negotiation of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein,
City and COMPANY agree as follows:
Exhibit A
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1. DEFINITIONS.
1.1. "Authorized Routes" shall mean the Public Right-of-Way within the City as set forth on the
maps attached as Exhibit A, as such routes may be modified from time to time during the
term of this Agreement upon COMPANY’s request and with the written approval of the
City Engineer, which approval shall be given or denied consistent with applicable Laws and
standards.
1.2. "City" means the City of South San Francisco, a municipal corporation of the State of
California, and includes the duly elected or appointed officers, agents, employees, and
volunteers of the City of South San Francisco, individually or collectively.
1.3. "City Engineer" means the individual designated as the Director of Public Works of the City,
including any individual expressly designated to exercise functions with respect to the rights
and obligations of the Director of Public Works under this Agreement and any other
individual, person, division, department, bureau, or agency of the City as may, from time to
time, exercise functions equivalent or similar to those now exercised by the Director of
Public Works.
1.4. "COMPANY" shall mean Mobilitie, LLC, and its lawful successors or assigns as permitted
by Section 4.4, hereinafter.
1.5. “Default” shall mean a failure on the part of any Party to perform any material obligation
imposed upon such Party.
1.6. "Emergency" is defined as a complete or partial failure or breakage of any portion of the
City infrastructure which impacts services. An emergency repair is defined as remedial
activity to protect the public health and safety, in the judgment of the City.
1.7. "Encroachment Permit" shall mean that permit required by Chapter 13.04 of the South San
Francisco Municipal Code.
1.8. “Force Majeure” means an unforeseen cause beyond a Party’s control, including but not
limited to: any incidence of fire, flood, explosion, war, or embargo; acts of God;
commandeering of materials, products, plants, or facilities by the federal, state, or local
government; national fuel shortage; or a material act or omission by the other Party; when
satisfactory evidence of such cause is presented to the other Party, and provided further that
such nonperformance is unforeseeable, beyond the control and is not due to the fault or
negligence of the Party not performing.
1.9. "Laws" means any applicable order, certificate, judicial decision, statute, constitution,
ordinance, resolution, regulation, rule, tariff, administrative order, authorization, permits, or
other requirement of any municipality, county, state, federal, or other agency having joint or
several jurisdiction over the parties to this Agreement, in effect either at the time of execution
of this Agreement or at any time during the location of the Facilities in the Public Right-of-
Way including, without limitation, any regulation or order of an official entity or body. A
reference to "Laws" shall include, without limitation, any lawful provision of the South San
Francisco Municipal Code or any other City ordinance, policy, regulation, or standard DRAFT12
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specifications.
1.10. "Public Right-of-Way" means the surface, the air space above the surface, and the area below
the surface of the public streets, roads, sidewalks, lanes, courts, ways, alleys, boulevards, and
places including, without limitation, all public utility easements and public service easements
as the same now or may hereafter exist that are under the jurisdiction of the City. This term
shall not include any property owned by any person or agency other than the City, except as
provided by Laws or pursuant to an agreement between the City and any person.
1.11. "Telecommunications" shall mean the transmission, between or among points specified by
the user, of information of the user's choosing, without change in the form or content of
the information as sent and received.
1.12. "Telecommunications Network Facilities" or "Facilities", means cables, conduits,
converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface
location markers, appurtenances, and related facilities located by COMPANY or to be
located by COMPANY in the Public Right-of-Way of City and used by COMPANY solely
for the provision of Telecommunications Services. No portion of "Facilities" shall
constitute all or any portion of a cable system (as such term is defined in 47 U.S.C. § 522)
or community antenna television system operated by COMPANY. "Facilities" shall not
include radios, antennas, vaults, pedestals or other enclosures located in the rights-of-way
that contain generators, batteries or other back-up power equipment, or that are larger
than a standard manhole or handhole, unless permitted consistent with applicable Law (as
such terms is defined in this Agreement) and the City’s generally applicable standards and
required authorizations.
1.13. "Telecommunications Services" shall mean the offering of telecommunications, including,
without limitation, the leasing, grant of indefeasible rights of use in, or other provision of
dark fiber and other network elements to affiliates and third parties, for a fee directly to the
public, or to such classes of users as to be effectively available directly to the public,
regardless of the facilities used.
2. LIMITATIONS AND RESTRICTIONS.
2.1. Subject to the provisions of this Agreement and all Laws, the City hereby licenses and
permits COMPANY to construct, install, maintain, locate, move, operate, place, protect,
reconstruct, reinstall, relocate, remove, and replace (hereinafter collectively referred to as
"Construct" or "Construction") the Facilities in, under, over, across and along the Public
Right-of-Way in the Authorized Routes for the purposes of providing Telecommunications
Services. Any work performed pursuant to the rights granted to COMPANY under this
Agreement shall be subject to the prior review and prior approval of the City Engineer,
which approval shall be given or denied consistent with applicable Laws and standards.
2.2. Prior to any construction by COMPANY in any section of the Authorized Routes as
described more particularly in the maps under Exhibit A, COMPANY shall obtain the City
Engineer’s approval, consistent with all applicable Laws and standards, including a City
Encroachment Permit as provided by section 11 of this Agreement, and all other necessary
authorizations. DRAFT13
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2.3. Except as permitted by Laws or this Agreement, in the performance and exercise of its rights
and obligations under this Agreement, COMPANY shall not interfere in any manner with
the existence and operation of any and all public and private rights-of-way, easements,
sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground
electric and telephone wires, electroliers, cable television, and other telecommunications,
utility and municipal property without the approval of the owner(s) of the affected property
or properties.
2.4. Both the City and COMPANY shall expressly comply with all Laws in the exercise and
performance of their rights and obligations under this Agreement. Each party preserves all of
its rights under all Laws. 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 the 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 main, 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.
2.5. This Agreement is made subject to all easements, restrictions, conditions, covenants,
encumbrances, and claims of title which may affect the Public Right-of-Way, and it is
understood that COMPANY, at its own cost and expense, shall obtain such permission as
may be necessary and consistent with any other existing rights.
2.6. The Construction, installation, operation, maintenance, and removal of said Facilities shall
be accomplished without cost or expense to City, and shall be performed subject to the
reasonable approval of the City Engineer in such a manner as not to endanger personnel or
property, or unreasonably obstruct travel on any road, walk, or other access thereof within
said Public Right-of-Way and consistent with Laws and all applicable City permits,
authorizations, and approval standards.
2.7. In the event of an emergency repair of City facilities in proximity to COMPANY facilities,
which repair may conflict with or threaten COMPANY facilities, COMPANY shall
immediately, upon notice by City, provide a representative to the repair site. Protective
measures, as determined by the COMPANY representative, at the election of the City, may
be undertaken by the City at COMPANY's expense. Should City not elect to perform such
protective action, COMPANY shall provide the resources to conduct the protective
measures upon City's demand under the direction of the City and in a manner consistent, in
the City's sole discretion, with the execution of the City's responsibilities in the emergency.
Priority shall be given to activities necessary to restore City services and for public safety.
3. TERMINATION.
3.1. Duration. This Agreement shall remain in force and effect for ten (10) years from the
Effective Date (“Initial Term”). Upon expiration of the Initial Term, this Agreement shall
be automatically renewed for four (4) successive five (5) year terms (each, a “Renewal Term,”
and, together with the Initial Term, the “Term”) upon the same terms and conditions set DRAFT14
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forth in this Agreement unless either Party issues a written notice of nonrenewal at least one
hundred eighty (180) days prior to the expiration of the then-current Term. In the event
City issues notice of nonrenewal, the Parties shall diligently and in good faith seek to
negotiate a replacement agreement consistent with COMPANY’s 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 such use.
3.2. Termination. The City may terminate this Agreement by giving sixty (60) days’ notice:
3.2.1. As a result of a determination by City that the provisions herein interfere with the use or
disposal of the Public Right-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 Section 10 “Removal and Relocation” of this Agreement.
3.2.2. For failure, neglect, or refusal by COMPANY to fully and promptly comply with any
and all of the conditions of this Agreement, for failure to fully and promptly cure any
default of its obligations hereunder of which the City has notified COMPANY in writing,
or for nonuse/abandonment in accordance with Section 10 “Removal and Relocation”
herein, unless COMPANY confirms within sixty (60) days of receipt of the notice that
the cited condition or default has ceased, been corrected or, subject to the City’s
approval, which shall not be unreasonably withheld, is diligently being pursued or being
cured by COMPANY. If such cited condition cannot be cured within sixty (60) days,
such cure period will be extended for a reasonable period at the sole reasonable
discretion of City provided that COMPANY has commenced and is continuing efforts
to cure the default. For the purposes of this section, a failure on the part of any Party to
perform any material obligation imposed upon such Party shall constitute a default and
a material breach of this Agreement. Notwithstanding anything to the contrary herein,
COMPANY shall not be found in default, liable for damages, or otherwise penalized in
the event that any failure to comply with any term or condition of this Agreement is a
result of COMPANY suffering a Force Majeure beyond its control.
3.2.3. 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.
3.2.4. 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,
unless COMPANY establishes to the reasonable satisfaction of the City that it is
diligently pursuing renewal or resurrection of such authorization and there is a
reasonable likelihood that it will succeed in doing so.
3.3. COMPANY may terminate this Agreement at any time upon thirty (30) days prior
written notice to City.
3.4. Upon termination, COMPANY shall abandon or remove the Facilities as set forth in
section 10 entitled "Removal and Relocation," unless COMPANY otherwise obtains City DRAFT15
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approval or authorization required for accessing or locating facilities in the Public Right-
of-Way pursuant to applicable Laws, which may include but is not limited to a City
Encroachment Permit.
4. COMPLIANCE WITH STANDARDS.
4.1. Prior to any Construction in Public Right-of-Way, COMPANY shall obtain an
Encroachment Permit from City. COMPANY shall Construct Facilities in accordance with
Laws.
4.2. COMPANY agrees to keep said Facilities in good and safe condition and free from any
nuisance, to the reasonable satisfaction of the City Engineer.
4.3. COMPANY agrees to comply with the City’s Open Trench Notification and
Telecommunication Infrastructure Improvements ordinance most currently adopted by the
City Council and Open Trench Notification and Telecommunication Infrastructure
Improvements policy(ies) most currently in effect, cooperate in the planning, locating, and
constructing of its Facilities in utility joint trenches or common duct banks 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, provided however, that
participation in such joint utility installments shall be on terms and conditions satisfactory
to COMPANY and City.
4.4. The City requires the Facilities to be underground, provided that City shall not require
COMPANY to construct new Facilities underground where the facilities of the incumbent
local exchange carrier, the electric company, the cable company, or any other wireline
telecommunications provider are aerial. The design of all improvements shall be in
accordance with Laws and all generally applicable City authorization, permit, and approval
requirements.
5. SERVICES. COMPANY shall provide Telecommunications Services through the Facilities in
the Public Right-of-Way along the Authorized Routes in accordance with the requirements
herein.
6. SERVICE CHANGE.
6.1. If the nature or character of COMPANY's telecommunications services changes to include
cable (television) service (as such term is defined in 47 U.S.C. § 522), open video system (as
such term is described in 47 U.S.C. § 573), or broadcast television or community antenna,
by COMPANY, COMPANY shall notify City in writing, as soon as practicable, but in any
event COMPANY shall notify City in writing at least three (3) months in advance of
COMPANY's intent to change the service provided through Facilities. In the event of such
a change, COMPANY shall comply with any lawful fee or franchise requirement of City.
Should COMPANY become aware that its customers are providing such additional or
alternative services, COMPANY shall promptly notify the City of the type/category of these
services.
6.2. COMPANY acknowledges that any expansion or change in the character and nature of DRAFT16
Page 7 of 17
Telecommunications Services may increase City's regulatory authority over such service
and/or product, and this may, at City's election, require COMPANY 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 part of such
service change falls under the regulation, jurisdiction, and authority of City.
7. RESERVATION OF RIGHTS.
7.1. City reserves any and all rights it may have now or in the future to legally regulate or
otherwise condition the use of Facilities and related activities and services to be provided
pursuant to this Agreement.
7.2. City's approval of this Agreement is not a waiver of and is without prejudice to any right
City may have under Laws to regulate, tax, or impose fees or charges on COMPANY or any
right COMPANY may have under Laws to provide services through the Facilities pursuant
to Laws. COMPANY shall be subject to any future taxes, fees, or charges that City lawfully
imposes on the Facilities or services provided through the Facilities in the future.
8. NO FRANCHISE OR PROPERTY RIGHTS CREATED. Nothing in this Agreement shall
be construed as granting or creating any franchise rights or property interests, or construed as
creating a vested right of any nature in COMPANY to use the Public Right- of-Way. This
Agreement does not require 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.
9. TAXES.
9.1. COMPANY shall 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
any property taxes levied on any possessory interest that may be created by COMPANY’s
use of the Public Rights-of-Way.
9.2. Telephone Users Tax. Although the City does not have a telephone users tax and does not
anticipate enacting such a tax in the foreseeable future, the City reserves the right to impose
a telephone users or comparable tax on COMPANY's service users, and to require
COMPANY to collect and distribute such tax to the City, to the full extent permitted by
Laws.
10. REMOVAL AND RELOCATION.
10.1. Upon receipt of a written demand from the City, COMPANY shall remove or relocate,
without cost or expense to City, any Facilities installed, used, and maintained under this
Agreement to such other location or locations in accordance with conditions and standards
as may be designated by City, if and when made necessary (a) due to any work proposed to
be done by or on behalf of the City or other governmental agency, including by any lawful
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 subway or viaduct by City and/or the construction, DRAFT17
Page 8 of 17
maintenance, or operation of any other City underground or aboveground facilities; or (b)
due to a determination by the City that the Facilities are 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.
10.2. COMPANY shall complete such removal or relocation within ninety (90) days of
notification by City, or according to an agreed upon schedule with the City of no less than
ninety (90) days, except in the event COMPANY suffers a Force Majeure. If circumstances
exist that require a shorter period of time in order to protect the public health, safety, or
welfare, the City shall notify COMPANY of the shorter time period required and the reason
therefore, and COMPANY shall exercise commercially reasonable best efforts to meet such
shorter timeline. The City Engineer, at his or her sole discretion, may grant to COMPANY
a longer period of time in which to remove or relocate the Facilities, upon request of
COMPANY.
10.3. In the event said Telecommunications Network Facilities are not removed or relocated
within ninety (90) days (or other time period if applicable) after said notification and
COMPANY has not suffered a Force Majeure, City may cause the same to be done at the
sole expense of COMPANY, which 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. Any removal or relocation work by COMPANY shall only be
done pursuant to a City Encroachment Permit for the work.
10.4. If any portions of the Facilities covered under this Agreement are no longer used or useful
by COMPANY, or are abandoned for a period in excess of six (6) months, COMPANY
shall notify City and shall either 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. Following such
removal or abandonment as approved by the City, Licensee shall have no further obligations
to the City under this Agreement with respect to the removed or abandoned portions of the
Facilities.
10.5. When removal or relocation are required under this Agreement, COMPANY shall, after the
removal or relocation of the Facilities, at its own cost, repair and return the 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 COMPANY
remove the Facilities from the Public Right-of-Way, COMPANY 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, COMPANY shall obtain an Encroachment Permit from the City. If COMPANY fails
to perform said repair work, the City shall have the option to perform such work at
COMPANY’s sole expense, which 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.
11. ENCROACHMENT PERMIT AND FEES.
11.1. COMPANY shall apply for an Encroachment Permit for all work and each job within the DRAFT18
Page 9 of 17
Public Right-of-Way. COMPANY shall furnish detailed plans of the work, including
proposed underground and overhead routes, and other such information as required by the
City Engineer necessary for the City’s permit review and shall pay all processing, field
marking, engineering, and inspection fees, and any other fees that the City may be authorized
to impose now or in the future prior to issuance of the permit in accordance with the rates
in effect at the time of payment, excluding any legal expenses incurred by City in connection
with the negotiation and execution of this Agreement, which expenses shall be City’s sole
responsibility to the extent not reimbursed to City from the deposit addressed in the
Recitals to this Agreement. Said improvements shall be constructed in accordance with
Laws, and as further provided for in the provisions of this Agreement. The City may, at its
option, require COMPANY to deposit an amount equal to the reasonable estimate of the
City's actual costs of issuing an encroachment permit. COMPANY shall pay such deposit
in the amount specified by the City prior to the issuance of an encroachment permit. City
shall be entitled to draw on this deposit on a time and materials basis as reimbursement for
the City's actual costs incurred in issuing the encroachment permit, excluding any such legal
expenses. The City shall refund any unused portion of the deposit to COMPANY upon
completion of the work described in the encroachment permit. If, in the event that City
reasonably determines that the amount of the deposit remaining will not be sufficient to
reimburse the City for its estimated actual costs through completion of the work, City may
require COMPANY to deposit an additional reasonable amount within five (5) days of
written notice thereof. 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, provided, however, that the City must give COMPANY notice and an opportunity
to cure.
12. DAMAGE TO FACILITIES IN PUBLIC RIGHT-OF-WAY.
12.1. COMPANY shall be responsible for any damage to Public Right-of-Way due to the
Construction performed by COMPANY in Public Right-of-Way, and COMPANY shall
repair, replace, and restore in kind the said damaged facilities in accordance with City
standards at COMPANY's sole expense.
12.2. If Public Right-of-Way to be used by COMPANY has preexisting installation(s) placed in
the Right-of-Way, COMPANY shall assume the responsibility to verify the location of the
preexisting installation and notify City and any third party of COMPANY's proposed
installation. The cost of any work required of City to provide adequate space or required
clearance to accommodate COMPANY's installation shall be borne solely by COMPANY.
13. RECORDS AND FIELD LOCATIONS.
13.1. COMPANY shall maintain accurate maps and improvement plans of said Facilities located
with the City. COMPANY shall, within thirty (30) days after completion of an installation in
the Public Right-of-Way, and otherwise upon demand of the City Engineer, deliver to the
office of the Public Works Department free of charge, and to other third parties who have
submitted permit applications to the City to perform work within Public Right-of-Way for a
reasonable charge and subject to reasonable confidentiality restrictions upon request, within
thirty (30) days after such demand, such maps and plans as may be required to show in detail
the exact location of all Facilities installed within said Public Right- of-Way that will be affected DRAFT19
Page 10 of 17
by such work. In addition, the City Engineer requires COMPANY to provide the City with
maps and plans on electronic media suitable for a Computer Aided Design and Drafting
application. City shall use such information only as needed to manage the Public Rights-of-
Way, including, but not limited to, coordination of construction schedules, prevention of
interference among the various utilities and systems in the public right-of-way, and
enforcement of building and zoning regulations. The parties acknowledge that the City is
subject to the requirements of the California Public Records Act, Government Code section
6250 et seq., and may be required to disclose information provided by COMPANY to the
City upon request of a third party. For information designated by COMPANY as confidential
or proprietary, City shall endeavor to notify COMPANY of such request prior to disclosure
of information designated as confidential or proprietary.
13.2. COMPANY shall, at its sole cost and expense, expose by potholing to a depth of one (1) foot
below the bottom of its subsurface Facilities, within thirty (30) days of receipt of a written
request from City to do so.
13.3. COMPANY 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 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.
14. HOLD HARMLESS, RELEASE AND INDEMNIFICATION.
14.1. COMPANY, jointly and severally, for itself, its successors, agents, contractors, and
employees, agrees to indemnify, defend (with counsel acceptable to City) and hold harmless
City, its officers, employees, and agents and any successors to City’s interest from and against
any and all claims, injuries, property damages, demands, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders, judgments, remedial
actions of any kind, and all costs and cleanup actions of any kind, 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, in whole or in
part, out of the activities of COMPANY described in this Agreement, and/or the
installation, operation, removal and/or repair of the improvement and Facilities hereunder,
except to the extent such Losses are caused by acts of sole or active negligence, gross
negligence, or willful misconduct of the City, its officers, employees, agents or
representatives. For purposes of this section 14 only, the term “cleanup actions” shall refer
to such actions as are necessary to remediate damage caused directly or indirectly by
COMPANY, its employees, agents, contractors, or subcontractors. For the purposes of the
indemnity obligation under this Section 14, “activities of COMPANY” includes acts or
omissions of COMPANY or its employees, sub-grantees, invitees, contractors,
subcontractors, or agents relating to the COMPANY’s performance of this Agreement.
14.2. In the event that COMPANY, its employees, agents, contractors, or subcontractors shall
discover contamination or hazardous materials while performing any work in the public right-
of-way, regardless of the source, COMPANY shall cause all work to be stopped and shall
immediately notify City of the discovery. COMPANY agrees that the provisions of this section
shall fully apply in the event of a failure by COMPANY to stop work and immediately notify DRAFT20
Page 11 of 17
the City.
14.3. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys,
consultants, and experts, and related costs, and City’s costs of investigating any claims against
the City.
14.4. Assumption of Risk and Release. COMPANY assumes 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, except to the extent such Losses arise from the sole or active negligence, gross
negligence, or willful misconduct of the City, its officers, employees, representatives or
agents. COMPANY releases City from any liability, including claims for damages or extra
compensation, arising from construction delays due to any activities by City, except to the
extent such Losses arises from the City's sole intentional or negligent acts. Under no
circumstances shall City be liable to COMPANY for any loss of service downtime, lost
revenue or profits or third-party damages.
14.5. Survival. The provisions of this section 14 shall survive termination of this Agreement.
15. INSURANCE.
15.1. Prior to the issuance of an encroachment permit, COMPANY shall obtain and maintain
comprehensive general and automotive liability insurance protecting COMPANY in an amount
of not less than One Million Dollars ($1,000,000) per occurrence, including bodily injury and
property damage, as a combined single limit or equivalent. Such insurance shall name City, as
defined above, as additional insured parties. Coverage shall be in accordance with the limits
specified and the provisions indicated herein. Claims-made policies are not acceptable. When
an umbrella or excess coverage is in effect, it must follow the form of the underlying coverage.
Such insurance shall not be canceled or materially altered to reduce coverage without giving
City at least thirty (30) days advance written notice of such cancellation or change, and it shall
be the responsibility of COMPANY to notify City of such change or cancellation. This
insurance shall apply to all encroachment permits issued under this Agreement.
15.2. COMPANY shall file the required original Certificate of Insurance with endorsements with
City, subject to City's approval, and shall clearly state:
a. Policy number; name of insurance company; name, address and telephone number
of agent or authorized representative; name, address and telephone number of
insured; project name and address; policy expiration date; and specific coverage
amounts.
b. That COMPANY's insurance is primary.
15.3. Workers Compensation Insurance: Prior to the issuance of an encroachment permit,
COMPANY shall obtain and maintain statutory Workers Compensation and employer's liability
insurance as required by law and furnish City with a certificate showing proof of such coverage.
The insurer shall agree to waive all rights of subrogation against the City, its officers, officials,
employees, and volunteers for losses arising from COMPANY’s performance of this
Agreement. DRAFT21
Page 12 of 17
15.4. Insurance Companies: Insurance companies must be admitted in California and rated at least
A- in Best's Insurance Guide.
16. PERFORMANCE BOND.
16.1. Prior to the issuance of an Encroachment Permit, COMPANY 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 Construction within and affecting the Public Right-of-Way, or two hundred
fifty thousand dollars ($250,000), whichever is less, to guarantee and assure the faithful
performance of COMPANY's obligations under this Agreement, unless the City has
specifically waived this requirement in writing.
16.2. City shall have the right to draw against the bond in the event of a default by COMPANY
or in the event that COMPANY fails to meet and fully perform any of its obligations, only
after providing COMPANY with notice and an opportunity to cure. The form of the bond
shall be subject to the prior approval of the City Engineer.
16.3. The bond shall remain in full force until one (1) year after the Construction is completed,
inspected, and accepted by the City Engineer.
16.4. This Section shall not be construed to eliminate or reduce COMPANY's continuing
obligation to repair any damage to the public right-of-way resulting from the installation,
relocation, or removal of the Facilities.
17. MISCELLANEOUS.
17.1. Business License. COMPANY shall obtain a Business License from the City prior to the
issuance of an Encroachment Permit under this Encroachment Agreement.
17.2. Assignment. This Agreement shall not be assignable by COMPANY without the prior
written approval of City, which approval shall not be unreasonably withheld, conditioned,
or delayed; provided, however, that COMPANY may assign the rights granted hereunder to
a parent, successor, or other affiliate of COMPANY (defined for this purpose as any person
or entity that, directly or indirectly, controls, is controlled by, or is under common control
with COMPANY; or (ii) a purchaser of all or substantially all of the assets or the equity
interests of COMPANY; or (iii) any entity into which COMPANY is merged or
consolidated), now or hereinafter existing, by only providing notice to City of such
assignment.
17.3. Entire Agreement. 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.
17.4. Governing Law. This Agreement must be construed and enforced in accordance with the
laws of the State of California without regard to the principles of conflicts of law. Any action DRAFT22
Page 13 of 17
concerning this Agreement must be brought and heard in the state or federal courts
encompassing the City of South San Francisco, California.
17.5. Severability. If any one or more of the covenants or agreement 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.
17.6. Third Party Notifications. 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.
17.7. 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 or excuse the other Party from complying or performing,
unless such right or such compliance or performance has been waived in writing.
17.8. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will be deemed an original, but all of which taken together will be one and the same
instrument.
17.9. Successors. This Agreement is binding upon the successors, assigns, and transferees of
the Parties hereto.
18. NOTICE. COMPANY's Network Operations Control 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 regarding such
problems or complaints. COMPANY shall designate a person in California who is authorized to
accept service of process on behalf of COMPANY. 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:
To COMPANY at:
Mobilitie, LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
ATTN: Asset Management
With copies (except for invoices) to:
Mobilitie, LLC
660 Newport Center Drive, Suite 200
To City at:
City of South San Francisco
Director of Public Works 550 N. Canal St.
South San Francisco, CA 94080
(650) 877-8550 DRAFT23
Page 14 of 17
Newport Beach, CA 92660
ATTN: Legal Department
[Signatures on the Following Page]
DRAFT24
Page 15 of 17
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in
duplicate on the date and year first written herein.
MOBILITIE, LLC
________________________________________
Dana Tardelli
COO
CITY OF SOUTH SAN FRANCISCO
_______________________________________
Mike Futrell
City Manager
Approved as to form:
______________________________________
City Attorney
DRAFT25
Page 16 of 17
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that Document
State of California
County of )
On before me,
_,
(insert name and title of the officer)
personally appeared
_,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ________California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal) DRAFT26
Page 17 of 17
EXHIBIT A
[AUTHORIZED ROUTES]
5121562.2 DRAFT27
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:22-904 Agenda Date:11/9/2022
Version:1 Item #:2.
Conference with Real Property Negotiators (Pursuant to Government Code Section 54956.8)Property:City
property at 367 Marina Boulevard (APN 015-011-350)
City Negotiators:Nell Selander,Director of Economic and Community Development;Ernesto Lucero,Acting
Deputy Director of Economic and Community Development;and Lindsay D'Andrea,Assistant City Attorney
Negotiating Party: Ensemble Investments
Under Negotiations: Price and terms
City of South San Francisco Printed on 11/8/2022Page 1 of 1
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IDStart time Completion time Email Name / NombreWould you like to speak during Public Comment on a matter NOT on the agenda?Desea hablar de un tema que no esta en la agenda de el concilio?If you would like to speak on an agenda item(s), Enter the Agenda Item Number(s) below. If adding more than one item, please add a comma between each number.Por favor ingrese el número de artíc…1 11/9/22 14:38:28 11/9/22 16:59:02 anonymous Carol Whitaker Yes / Si 2 11/9/22 16:59:04 11/9/22 16:59:16 anonymous Charles Hannan Yes / Si 3 11/9/22 16:59:18 11/9/22 17:00:32 anonymous Richard Hedges Yes / Si Public Comment4 11/9/22 17:00:36 11/9/22 17:00:50 anonymous Priscilla Paras Huerta Yes / Si 5 11/9/22 17:00:52 11/9/22 17:01:36 anonymous Lamoin Werlein Jaen Yes / Si Labor Peace in Hotel Development6 11/9/22 17:01:42 11/9/22 17:01:54 anonymous Lorraine Powell Yes / Si