HomeMy WebLinkAbout2020-08-18; City Council; ; Extension of License Agreement with Cox Communications California, LLC to Allow the Continued Use of the Public Right-of-Way Within the City to Provide Services to the PaMeeting Date Aug. 18, 2020
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Maria Callander, Information Technology Director
Maria.Callander@carlsbadca.gov, 760-685-0320
Subject Extension of License Agreement with Cox Communications California, LLC
to Allow the Continued Use of the Public Right-of-Way Within the City to
Provide Services to the Palomar Airport Industrial Area
Recommended Action
Adopt a resolution authorizing the city manager or his designee to approve a five-year
extension of a license agreement between the City of Carlsbad and Cox Communications
California, LLC.
Executive Summary/Discussion
The city and Cox Communications California, LLC entered into a non-exclusive license
agreement in September 2005 allowing the company to construct fiber-based communication
lines and equipment in the city’s public right-of-way to provide services to the Palomar Airport
industrial area.
The city is responsible for the management of the public right-of-way and performs a wide range
of vital tasks necessary to preserve the physical integrity of public streets and ways, to control
the orderly flow of vehicles, to promote safe movement of pedestrians and to manage a number
of gas, water, sewer, electric, cable television, telephone and telecommunication facilities that
are located in, under and over the streets and public right-of-way.
The agreement was established to increase the community’s fiber infrastructure in the
commercial and industrial-zoned properties in the Palomar Airport industrial area. Many
companies in this area are using the fiber cable that Cox provides.
The initial term of this agreement was for five years, with the option to extend upon request for
as many as three additional five-year terms. The license was extended in 2010 and 2016
(ratifying the extension back to 2015).
Cox submitted a request to extend the agreement for the last additional five-year period on
July 19, 2019. This extension would allow it to continue to construct the telecommunications
infrastructure in the area. The company has fully complied with all terms and conditions of the
current agreement, which has been beneficial for the city by providing services that contribute
to the city's economic development efforts.
Aug. 18, 2020 Item #2 Page 1 of 25
There have been no changes to the services Cox provides under this agreement. If approved, this
would be the final extension of the initial 2005 agreement. The City of Carlsbad and Cox will most
likely initiate negotiations for a new agreement when the requested extension is due to end.
Staff is recommending City Council authorize the city manager or his designee to extend the
agreement for the final additional five-year term.
Fiscal Analysis
There is no fiscal impact to the City of Carlsbad associated with this agreement extension.
Next Steps
Given council approval, the License Agreement between the City of Carlsbad and Cox
Communications California, LLC will be extended to allow the company to continue to construct
fiber-based communication lines and equipment in the city’s public right-of-way to provide
services to the Palomar Airport industrial area.
Environmental Evaluation (CEQA)
The proposed action is exempt from the California Environmental Quality Act under CEQA
Guidelines Section 15301 – Existing Facilities. Section 15301 exempts the leasing of property
involving negligible or no expansion of use beyond that existing at the time of the agency’s
determination.
Exhibits
1.Resolution
2.Agreement Dated Sept. 12, 2005 and previous
extension
3.Cox Communications California, LLC Request Letter
Aug. 18, 2020 Item #2 Page 2 of 25
Exhibit 1
RESOLUTION NO. 2020-171
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXTEND THE LICENSE AGREEMENT BETWEEN THE CITY OF CARLSBAD
AND COX COMMUNICATIONS CALIFORNIA, LLC.
WHEREAS, the city is responsible for the management of the public right-of-way and
performs a wide range of vital tasks necessary to preserve the physical integrity of public streets
and ways to control the orderly flow of vehicles, to promote safe movement of pedestrians, and
to manage a number of gas, water, sewer, electric, cable television, telephone and
telecommunications facilities that are located in, under and over the streets and public rights-of-way;
and
WHEREAS, Cox Communications California, LLC ("Cox, LLC") entered into a Non-Exclusive
License Agreement ("Agreement") to construct fiber based facilities in the public right-of-way in the
Palomar Airport industrial area on Sept. 12, 2005; and
WHEREAS, pursuant to the terms of the original Agreement, Cox, LLC was granted a
five-year extension on Oct. 21, 2010, extending the Agreement through Sept. 12, 2015; and
WHEREAS, pursuant to the terms of the original Agreement, Cox, LLC was granted a second
five-year extension on Jan. 16, 2016, ratifying the extension the Agreement through Sept. 12, 2020;
and
WHEREAS, pursuant to the terms of the original Agreement, as it may have been amended
from time to time, Cox, LLC on July 19, 2019 requested a third and last extension of the Agreement
through Sept. 12, 2025; and
WHEREAS, Cox, LLC has fully complied with all terms and conditions of the
Agreement; and
Aug. 18, 2020 Item #2 Page 3 of 25
Exhibit 1
WHEREAS, the Agreement has been beneficial for all parties involved and aided
in the city's development efforts.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows that:
1. That the above recitations are true and correct.
2. That the City Manager, or a designee, is authorized to execute the extension to the
Agreement attached as Attachment A.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad, California, on the 18th day of August, 2020, by the following vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
ofrff/a°
MATT HALL, MAYOR
ATTEST:
--;‘/‘/I-00111.Defilltitin0 4t)r-
BARBARA ENGLESON, tSTY CLERK
(SEAL)
,,„,,„ \\o
CAFIz ''' ... ........ •.... - .,„ •-s.... .?;:sl% I, /.....
o • a --
• ••••• ... ! .....
IFOFIN-\\
Aug. 18, 2020 Item #2 Page 4 of 25
AMENDMENT NO. 2 TO EXTEND THE LICENSE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND COX COMMUNICATIONS CALIFORNIA, LLC This Amendment No. 2 is entered into and effective as of the _______ day of ___________________________, 2020, extending the license agreement dated September 12, 2005 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation ("City"), and Cox Communications California, LLC (“Cox, LLC”), as successor-in-interest to COXCOM, Inc. (“Cox”), collectively, the “Parties,” for a non-exclusive license agreement in the Palomar Airport industrial area of Carlsbad. RECITALS
A. On September 12, 2005, the City and Cox entered into a license agreement that allowed Cox to construct fiber-based facilities within the City's Rights-
of-Way to provide non-Cable Services to the Palomar Airport industrial area of
Carlsbad as further depicted in the attached and incorporated Exhibit A; and
B. The initial term of the Agreement was for five years, which could be
renewed for three additional five-year terms upon request of Cox; and
C. Cox constructed fiber-based facilities within the City's designated Public
Rights-of-Way and has provided non-Cable Services within this area; and
D. On October 21, 2010, the City granted Cox's request to extend the
Agreement for a five-year term expiring on September 12, 2015; and E. On December 31, 2011 ("Transfer Date"), Cox transferred its interests in the License Agreement to Cox, LLC, a wholly-owned subsidiary of Cox; and F. On January 14, 2016, the City ratified Amendment No. 1 to the Agreement,
which amended the Agreement to extend its term a second time to September 12, 2020.
G. On July 19, 2019, Cox, LLC requested a third five-year extension of the
Agreement and the Parties agree that the extension would be beneficial to the Parties and the
businesses within the Palomar Airport industrial area; and
H. With this extension, the Agreement will expire on September 12, 2025.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows:
1. The Agreement, as may have been amended from time to time, is extended for a period of five years ending on September 12, 2025. 2. All other provisions of the Agreement, as may have been amended from time to time, remain in full force and effect.
DocuSign Envelope ID: 6A37D070-0C9A-4CEF-B4DA-067057EDBBEE
August
19th
Aug. 18, 2020 Item #2 Page 5 of 25
3. All requisite insurance policies to be maintained by Cox, LLC pursuant to the Agreement, as may have been amended from time to time, shall include coverage for this
Amendment. 4. The individual(s) executing this Amendment and the instruments referenced on behalf of Cox, LLC represent and warrant they have the legal power, right and actual authority to bind Cox, LLC to the terms and conditions of this Amendment. COX, LLC CITY OF CARLSBAD, a municipal corporation of the State of California
By: By:
(sign here) City Manager
(print name/title)
ATTEST:
By:
(sign here) BARBARA ENGLESON
City Clerk
(print name/title)
If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or
Vice-President
Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM: CELIA A. BREWER, City Attorney
BY: _____________________________
Assistant City Attorney
DocuSign Envelope ID: 6A37D070-0C9A-4CEF-B4DA-067057EDBBEE
Sam Attisha, Sr. VP Cox Communications California, LLC
for
Aug. 18, 2020 Item #2 Page 6 of 25
RATIFICATION OF AMENDMENT NO. 1
TO EXTEND AND AMEND AGREEMENT
A LICENSE AGREEMENT BETWEEN
THE CITY OF CARLSBAD, CA
AND COX COMMUNICATIONS CALIFORNIA, LLC AS SUCCESSOR-IN-INTEREST TO COXCOM, INC.
This Ratification of Amendment No. 1 is entered into as of the /tf--lA day of .br\U� d.Or6 but effective as of the 13 day of September, 2015, extending and amending the license agreement dated September 12, 2005 (hereinafter "Agreement") by and between the
City of Carlsbad, CA, a municipal corporation, ("City"), and Cox Communications California, LLC
("COX, LLC") as successor-in-interest to COXCOM, INC. ("Cox") (collectively, the "Parties").
RECITALS
A.On September 12, 2005 the Parties entered into a license agreement thatallowed Cox to construct fiber-based facilities with the City's Rights-of-Way to provide services
to the Palomar Airport industrial area of the City as further depicted in Exhibit A attached hereto and incorporated herein; and
B.The initial term of the Agreement was for 5 years; which could be renewed forthree (3) additional five year terms upon request of Cox; and
C.Cox constructed said fiber-based facilities within the City's designated Public
Rights-of-Way and has provided non-Cable Services within this area; and
D.Cox acknowledges that the Agreement does not constitute a cable franchise and
Cox understands and acknowledges that to provide Cable Services within the City of Carlsbad it would be required to have a valid franchise agreement issued by the State of California; and
E.On August 27, 201 O Cox requested, pursuant to section 18(a) of the Agreement,an additional five-year extension of the Agreement; and
F.On October 21, 2010 then Municipal Property Manager granted Cox's request toextend the Agreement for a second five-year term, expiring on September 12, 2015; and
G.On December 31, 2011, ("Transfer Date") pursuant to Section 15 of the LicenseAgreement, Cox transferred its interests in the License Agreement to Cox Communications
California, LLC, a wholly-owned subsidiary of Cox; and
H.Although not required by the Agreement, Cox did not notify City of its transfer ofits interest in the Agreement to Cox, LLC; and
I.On August 17, 2015 Cox, rather than Cox, LLC, requested an additional five-year
extension of the Agreement to September 12, 2020, pursuant to section 18(a) of the
Agreement,.
J.The incorrect Cox entity was named in the extension request due to an
administrative error, however, Cox is the parent of Cox, LLC, and the Parties agree that the
City Attorney Approved Version 11.10.15
EXHIBIT 2
Aug. 18, 2020 Item #2 Page 7 of 25
LICENSE AGREEMENT BETWEEN THE CITY OF CARLSBAD, CA AND COXCOM, INC.
This License Agreement (“Agreement“) is entered into between the CITY OF CARLSBAD, CALIFORNIA (“CITY”) and COXCOM, INC. (“Cox”) a Delaware Corporation.
RECITALS
WHEREAS, Cox desires to construct fiber-based facilities within the Public Rights-of-way within the City to provide services to the Palomar Airport industrial area of the City; and
WHEREAS, Cox operates Cable Systems pursuant to cable television franchises to serve
several incorporated cites as well as unincorporated areas in San Diego County, California;
and
WHEREAS, the facilities Cox desires to construct in the Public Rights-of-way within the City will be connected to the headend of one or more of such Cable Systems; and
WHEREAS, the City has the authority under state and federal law to regulate cable television providers operating within the City; and
WHEREAS, Cox has represented that it does not plan to provide Cable Services within the City via the facilities it desires to construct in the Public Rights-of-way; and
WHEREAS, Cox has an agreement with SBC to locate certain of its fiber within conduit owned by SBC Communications within the Public Rights-of-Way within the City; and
WHEREAS, the City desires to facilitate the provision of properly licensed non-Cable Services in the Palomar Airport industrial area;
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein, City and Cox agree as follows:
1. DEFINITIONS
(a) “Public Rights-of-way” means the surface, the air space above the surface and
the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, dedicated public utility easement or similar property in which City now or hereafter holds any property interest which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining facilities.
(b) “Cable Services” shall have the same meaning as in 47 U.S.C. Section 522(6),
-1 -
Aug. 18, 2020 Item #2 Page 12 of 25
. as may be amended.
(c) “Cable System” shall have the same meaning as in 47 U.S.C, Section 522(7), as may be amended.
2. SCOPE OF USE OF PUBLIC RIGHTS-OF-WAY
(a) The City hereby grants a non-exclusive license permitting Cox, subject to the reservations, covenants and conditions herein contained, to construct, install, maintain, and operate facilities in that portion of the Public Rights-of-way that are specifically identified in Exhibit A of this Agreement, for the purpose of providing services other than Cable Services within the areas of the City that are zoned for commercial and industrial use, subject to obtaining all required permits and approvals.
(b) Cox is not authorized to place any facilities other than those herein described in the Public Rights-of-way without first obtaining written authorizations and required permits (including any necessary franchises) from the City.
(c) Cox expressly acknowledges that this Agreement does not constitute a cable franchise. Cox is not authorized to provide any Cable Services to any person, business, or other entity within the City, and Cox warrants that it will not provide any Cable Services
within the City without first obtaining a franchise from the City. In the event that Cox provides a Cable Service without prior authorization from the City, such provision of services shall be considered a violation of the Carlsbad Municipal Code and shall be subject to all penalties and damages provided in the City Code for such action.
(d) Cox shall comply with any lawful provision that City may adopt in the future requiring Cox to obtain a franchise or other authorization to operate the facilities andlor to provide services within the Public Rights-of-way within the City, and may be required to do so as a condition of the continued effectiveness of this Agreement.
(e) Cox agrees that the construction, installation, operation, maintenance and/or removal of facilities shall be accomplished without cost or expense to City subject to the written 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 thereon within the Public Rights-of-way.
(f) This Agreement does not authorize use of any property other than the Public Rights-of-way. Any use of any other City property shall require a separate agreement.
(9) Any construction permit issued pursuant to this Agreement is not a grant by the 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 Rights-of-way in the performance of its duty, including but not limited to public use as a street and for the
-2-
Aug. 18, 2020 Item #2 Page 13 of 25
L purpose of laying, installing, maintaining, repairing, protecting, replacing and removing
sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground
electrics, and telephone lines, cable television and other utility and municipal uses together with appurtenances thereof and with right of ingress and egress, along, over, across and in the Public Rights-of-way; and Cox shall have a duty to remove, relocate and rearrange its facilities within the time frame set forth by City, and at its own expense, in order to accommodate such uses.
(h) The grant of rights in this Agreement is made subject to all easements, restrictions, conditions, covenants, encumbrances and claims of title which may affect the Public Rights-of-way, and it is understood that Cox, at its own costs and expense, shall obtain such permission as may be necessary consistent with any other existing rights.
(i) The construction, operation or repair and maintenance of facilities shall be in
accordance with all applicable Federal, State and local laws, including, without limitation, applicable provisions of the Carlsbad Municipal Code as the same may exist now, or be hereafter amended or revised; and any supplements thereto or revisions of this Agreement, now or in the future.
3. CONSTRUCTION AND MAINTENANCE STANDARDS
(a) Cox shall at all times employ reasonable care, within the meaning of applicable law, and shall install, maintain and use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury or nuisance to the public.
(b) Cox shall construct, operate and maintain its facilities so as not to endanger or interfere with improvements City shall deem appropriate to make or to interfere in any manner with the Public Rights-of-way or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic. Cox shall place facilities in strict conformance with the plans and drawings approved in writing by City and shall not place facilities, equipment or fixtures where they will interfere with any gas, electric, telephone, telecommunications, water, sewer or other utility facilities or obstruct or hinder in any manner such entity's use of any Public Rights-of-way. Any and all Public Rights-of-way, public property or private property that is disturbed or damaged by Cox during the construction, repair, replacement, relocation, operation, maintenance or construction of facilities shall be promptly repaired by Cox, to a condition equal to or better than that which existed prior to the damage.
4. ID E NTI Fl CAT10 N 0 F FACl LIT1 ES
(a) Cox shall identify the facilities installed in the Public Rights-of-way by means of an identification method agreed upon by the parties, or as directed by the City Engineer if the parties cannot agree upon an identification method. Such identification shall be detectable from ground level without opening the street.
-3-
Aug. 18, 2020 Item #2 Page 14 of 25
(b) Cox and its contractors shall be a member of the regional notification center for subsurface installations (Underground Service 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 later be amended.
5. NO FRANCHISE RIGHTS CREATED
Nothing in this Agreement shall be construed as granting or creating any franchise rights.
6. NO OWNERSHIP OR VESTED INTEREST CREATED
No use of any Public Rights-of-way or other interest or property under this Agreement shall create or vest in Cox any ownership or other interest in the Public Rights-of-way, streets or any other property or interest of City. This Agreement and the rights granted herein are not exclusive and do not preclude the issuance of other franchises, permits or agreements affecting the City's right to use or authorize use of the Public Ways for any purpose during the term of this Agreement.
7. REMOVAL AND RELOCATION
(a) In the event of an emergency, or where the facilities create or are contributing to an imminent danger to health, safety or property, the City may remove, relay or relocate any or all parts of those facilities without prior notice; however, City shall make reasonable efforts to provide prior notice and to permit Cox to remove or relocate the facilities that are associated with such danger.
(b) Cox shall promptly relocate its facilities to accommodate the reasonable projects or needs of City, or other government agencies and third parties who are authorized to use the Public Rights-of-way. Should Cox be required to relocate its facilities for any non-governmental third party without prior rights the reasonable cost of the relocation shall be borne by the third party except where (I) the facilities must be relocated because they were not properly installed by Cox, or were installed without obtaining necessary authorizations; or (ii) state or federal law requires otherwise.
(c) Cox 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 subway or viaduct by City and/or the construction, maintenance or operation of any other City underground or aboveground facilities.
-4-
Aug. 18, 2020 Item #2 Page 15 of 25
(d) In the event all or any portion of the Public Rights-of-way occupied by the
facilities shall be needed by City for governmental purposes, including events referred to in subsection (a) above, or in the event that the existence of the 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, Cox shall, by written direction of the City Engineer, remove and relocate such facilities to such other location or locations on the Public Rights-of-way as may be designated by City at the sole expense of Cox. Such removal or relocation shall be completed within ninety (90) days after notification by City. In the event such facilities are not removed or relocated within such ninety (90) days, City may cause the same to be done at the sole expense of Cox and require reimbursement of any and all costs from Cox. If costs incurred by the City for removal or relocation pursuant to this agreement are not paid in full by Cox within thirty (30) days of invoicing, the City shall have the right to place a lien on the Cox equipment in the amount owed.
(e) Cox shall, at its sole expense, by a time specified by City, protect, support, temporarily disconnect, relocate or remove any of its property when required by City or any other governmental entity by reason of traffic conditions; public safety; Public Rights-of-way construction; Public Rights-of-way maintenance or repair (including resurfacing or widening); change of Public Rights-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of government-owned communication system, public work or improvement or any government-owned utility; Public Rights-of-way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the facilities.
(f) In those areas and portions of City where the transmission or distribution facilities of public utilities providing telephone service, and/or cable and telecommunications services, and electric service are underground and shall or hereafter may be placed underground then Cox shall likewise construct, operate and maintain all of its facilities underground. City shall not in any manner be responsible for any costs incurred by Cox in placing Cox's facilities underground.
(9) If any portions of the facilities covered under this Agreement are no longer used by Cox, or are abandoned for a period in excess of one (1) year, Cox shall notify City and shall either promptly vacate and remove the facilities at its own expense or, at the discretion of the City Engineer, may abandon some or all of the facilities in place; provided, however, that this requirement shall not apply to (1) facilities providing redundancy that increases system reliability, (2) facilities for emergency use, or (3) facilities set aside to meet future demand or needs for capacity.
(h) When removal or relocation is required under this Agreement, Cox shall, after the removal or relocation of the facilities, at its own cost, repair and return the Public Rights-of-way in which the facilities were located to a safe and satisfactory condition in
-5-
Aug. 18, 2020 Item #2 Page 16 of 25
accordance with the construction-related conditions and specifications as established by City. Before proceeding with removal or relocation work, Cox shall obtain and City shall issue a construction permit from City. Should Cox remove the facilities from the Public
Rights-of-way, Cox shall, within ten (IO) days after such removal, give notice thereof to
City specifying the Public Rights-of-way affected and the location thereof as well as the
date of removal.
8. PERMITS AND FEES
(a) Cox acknowledges that this Agreement is not a substitute for obtaining all necessary construction permits, paying all applicable permitting fees, and obtaining any necessary bonds, prior to the construction of the facilities.
9. DAMAGE TO FACILITIES IN PUBLIC RIGHTS-OF-WAY
(a) Cox shall be responsible for any damage to City street pavements, existing
utilities, curbs, gutters, sidewalks and all other public or private facilities due to the construction, operation, installation, maintenance, repair or removal of facilities in Public Rights-of-way by Cox or any employee, contractor, subcontractor or agent of Cox, and shall repair, replace and restore in kind such damaged facilities at its sole expense.
(b) The City has the right to expect that any disturbance or damage to a right-of- way caused by Cox or any employee, contractor, subcontractors or agent of Cox will be
restored to an equal or better condition than existed prior to such disturbance or damage. Cox will repair or replace any portion of the public right-of-way damaged by Cox, or any employee, contractor, subcontractor, or agent of Cox, to a condition that is equal or better than existed prior to the commencement of work in the right-of-way by or on behalf of Cox. Cox will also guarantee the repair for an indefinite period. Requirement beyond City or Regional Standards which represent an upgrade to existing “or equal’’ conditions shall not be required and may be considered by Cox in its sole discretion on a case by case basis.
(c) Unless otherwise excused by the City Engineer in writing, Cox shall complete all
repairs required under this Sections 9 no later than thirty (thirty) days after receipt of written
notice from the City. If Cox fails to complete such repairs, the City may complete the repairs, and Cox shall promptly reimburse the City for all actual costs incurred.
IO. PREEXISTING INSTALLATIONS
(a) If the portion of the Public Rights-of-way to be used by Cox under this Agreement has preexisting installation(s) placed therein, Cox shall assume the responsibility to verify the location of the preexisting installation and notify the City and any
third party owner of Cox proposed installation. The cost of any work required of such third party owner or City to provide adequate space or required clearance to accommodate
-6-
Aug. 18, 2020 Item #2 Page 17 of 25
Cox's installation shall be borne solely by Cox. The City is under no obligation to move its existing utilities out of the way to accommodate or make room for Cox's Facilities.
11. PARTICIPATION WITH OTHER UTILITIES
To the extent applicable, Cox shall cooperate in good faith in the planning, locating and constructing of its facilities in utility joint trenches or common duct banks with other similar utilities providers and to participate in cost-sharing for the joint trench and ducts.
12. RECORDS AND FIELD LOCATIONS
(a) Cox shall maintain accurate maps and improvement plans of the facilities located within the City. Upon request of the City Engineer, Cox shall within thirty (30) days, or immediately in the event of an emergency, deliver to the office of the Public Works Department free of charge, and for a reasonable charge upon request to other third parties interested in performing work within the Public Rights-of-way, within thirty (30) days after such request, such maps and plans as may reasonably be required to show in detail the exact location, size, depth, and description of all facilities installed within the Public
Rights-of-way. Nothing herein shall require Cox to provide proprietary or confidential
information to any third party and Cox may seek protection, to the extent permitted by applicable law, from third-party requests for disclosure of any information submitted to the City by Cox. Cox shall also, upon request, submit such plans in digital electronic format as specified by City.
(b) Cox shall provide such books and records, and Cox's facilities shall be subject to
such inspection by the City, as the City finds appropriate to request in the exercise of its rights under this Agreement and its jurisdiction over Cox.
13. HOLD HARMLESS AND INDEMNIFICATION
(a) Cox, jointly and severally, for itself, its successors, agents, and Cox's employees, agrees to indemnify, defend (with reasonable notice to Cox and with counsel reasonably 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, 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 connections therewith, including, without limitation, reasonable attorney's fees and costs of defense (collectively, the "Losses") arising directly or indirectly out of the activities or facilities described in this Agreement and/or the installation, construction, operation, maintenance, removal and/or repair of the facilities; provided that Cox shall not indemnify City, its officers, employees and agents and any
successors to City's interest for Losses arising, directly or indirectly, from the City's gross negligence or willful misconduct. City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by City,
-7-
Aug. 18, 2020 Item #2 Page 18 of 25
except for acts which constitute City's gross negligence or willful misconduct, or by any third party, including, without limitation, damages, losses or liability arising from the issuance by City of a permit or approval to any third party. Under no circumstances shall either party be liable to the other party or otherwise be responsible for any loss of service downtime, lost revenue or profits or third-party damages.
(b) Cox, 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 officers, agents or employees, for damages, physical or otherwise, to any of the facilities from any cause whatsoever excluding those arising as a result the gross negligence or willful misconduct of the City, its officers, agents, or employees.
14. INSURANCE
(a) Cox shall maintain adequate insurance during the entire term of this Agreement against claims for injuries to persons or damages to property which in any way relate to, arise from, or are connected with the installation or use of communication equipment and facilities in the Public Right-of-way by Cox, or any entity acting on its behalf, and shall keep insurance in effect in accordance with the minimum insurance scope City may set from time to time.
(b) Worker's Compensation Insurance: Cox represents that it is currently a qualified self-insurer for its California workers compensation obligations and will continue to be so qualified throughout the entire term of this Agreement; or alternatively, Cox will obtain statutory Workers' Compensation insurance and Employer's Liability insurance in the amount of One Million Dollars ($1,000,000) per accident. (c) Commercial General Liability Insurance: Cox shall obtain Commercial General Liability insurance including but not limited to operations, products and completed operations, in the amount of One Million Dollars ($1,000,000) per occurrence. If a general aggregate limit is used, either the general aggregate limit shall apply separately to the contract or the general aggregate limit shall be twice the required occurrence limit. The City, its, officers, officials, employees and volunteers shall be endorsed as additional insureds as respects liability arising out of work or operations performed by or on behalf of Cox.
(d) Commercial Automobile Liability Insurance: Cox shall obtain automobile liability insurance in the amount of $1,000,000 combined single limit per accident for bodily injury and property damage.
(e) Acceptability of Insurers: Insurance is to be placed with insurers admitted and duly authorized to transact business under the laws of the State of California and with a current Best Rating of A-:V unless otherwise acceptable to City.
-8-
Aug. 18, 2020 Item #2 Page 19 of 25
(f) 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 this Agreement.
(9) It shall be the responsibility of Cox to ensure that all contractors comply with the same insurance requirements that are stated in this Agreement.
(h) Primary Insurance: Cox's insurance shall be primary as respects the City, its officers, officials, employees and agents.
15. ASSIGNMENT
Cox shall not assign, sublet or transfer any interest in this Agreement nor the performance of any of Cox's obligations hereunder to any other entity or any entity named other than as provided herein, without the prior written consent of City, and any attempt by Cox to so assign this Agreement or any rights, duties or obligations arising hereunder shall
be void and of no effect. The transfer of the rights and obligations of Cox to a parent, subsidiary, other affiliate of Cox shall not be deemed an assignment for the purposes of this section. For the purposes of this section, the leasing or granting in the ordinary course of business of indefeasible rights of use or similar rights in dark fiber, fiber optic capacity, conduit and other network elements shall not require the express consent of City, so long as Cox remains solely responsible for locating, placing, installing, maintaining, relocating and removing the facilities, and for all payments due to the City under this Agreement. Any successor of Cox shall be bound by all of the provisions, terms and conditions of this
Agreement.
16. TH I RD-PARTY MOD I F I CAT1 ONS
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. REVOCATI 0 N
The City may revoke its permission for the use of the Public Rights-of-way by Cox at any time if Cox fails to comply with the terms and conditions of this Agreement. If, at the City's sole discretion, any of the provisions of this Agreement have been violated, the City Manager shall notify Cox of the violation in writing. Cox shall have thirty (30) days in which to correct or diligent steps to correct the violation.
If, within thirty (30) days after such written notification, Cox has not corrected or taken diligent steps to correct the violation, this Agreement shall, at the City's sole
-9-
Aug. 18, 2020 Item #2 Page 20 of 25
discretion, become null and void.
18. TERM AND TERMINATION
(a) The Initial Term of this Agreement shall be five (5) years. This agreement may be renewed for up to three (3) additional five year terms upon request of Cox. The City’s
consent to such renewals shall be granted upon reasonable demonstration by Cox of compliance with the terms herein, provided that, in the event of a change in applicable law or other circumstances affecting the City’s regulatory authority with respect to the facilities installed by Cox pursuant to this Agreement or the services provided over such facilities, the City reserves the right to deny renewal of this Agreement.
(b) This Agreement will automatically terminate upon termination of Cox’s agreement with SBC Communications or its successor in interest to locate Cox’s fiber within SBC’s existing conduit located within the Public Rights-of-way; provided, however, that no termination shall occur if Cox can provide reasonable evidence of authority to occupy the SBC conduit (i.e., Cox has obtained ownership or other arrangement.).
(c) This Agreement may be terminated by the City upon the granting of a cable television franchise to Cox by the City.
(d) Unless the parties agree otherwise, upon termination or revocation of the Agreement, and upon written request by the City, Cox, at its own cost and expense, agrees to remove, or upon Cox’s request and at City’s discretion, abandon in place some or all of its facilities from the Public Rights-of-way and restore the Public Rights-of-way as set forth
in the Removal and Relocation provisions of this Agreement. Should Cox in such event fail, neglect or refuse to make such removals or restoration with one hundred eighty (180) days of the City’s written request, or such additional time as is reasonable under the circumstances, at the sole option of the City, such removal and restoration may be performed by the City at the expense of Cox, which actual expense including administrative and legal costs Cox agrees to pay City upon demand. If City allows Cox to abandon its facilities in place, title to those facilities shall pass to the City and Cox shall, upon demand,
promptly execute and deliver to City all documentation necessary to effectuate such
transfer of ownership of the facilities. Upon such transfer of ownership after abandonment and acceptance by the City, Cox shall have no further obligations or liabilities under this Agreement.
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 CITY at: City Manager
City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA. 92008
-1 0-
Aug. 18, 2020 Item #2 Page 21 of 25
To Cox at: Vice PresidenVRegion Manager Cox Communications - San Diego 5159 Federal Blvd. San Diego, CA 92105
19. MISCELLANEOUS PROVISIONS
(a) This Agreement contains the entire understanding between the parties with
respect to the subject matter herein. There are no representations, agreements or understanding (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 be not amended except pursuant to a written instruction signed by the parties, Nothing in this Agreement shall be construed to waive or prevent the City's lawful exercise of its police powers or any other lawful authority.
(b) If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such
provision(s) shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement.
(c) Nothing in this Agreement shall constitute a waiver of either party's right to challenge any portion of this Agreement which is not in accordance with applicable federal, state and local laws.
(d) This Agreement shall be governed in all respects by the law of the State of
California, with exclusive venue to hear disputes under this Agreement in federal and state courts of competent jurisdiction for the City of Carlsbad, California.
IN WITNESS WHEREOF, the parties hereby have executed this Agreement as of this 116 day of % ,2005.
CITY OF CARLSBAD, CALIFORNIA 7-- 7-
Title: City Manager Title: Vice Presi/dent/Region Manager
-1 1-
Aug. 18, 2020 Item #2 Page 22 of 25
APPROVED AS TO FORM: ATTEST:
-1 2-
Aug. 18, 2020 Item #2 Page 23 of 25
PACIFIC OCEAN
1 inch equals 1.066264 miles
D
N
COXCOM,INC
License Agreement
Exhibit A
Aug. 18, 2020 Item #2 Page 24 of 25
EXHIBIT 3
Aug. 18, 2020 Item #2 Page 25 of 25
Item 2. Extension of License Agreement
with Cox Communications California, LLC
to Allow the Continued Use of the Public
Right-of-Way Within the City to Provide
Services to the Palomar Airport
Industrial Area
Extension of License Agreement
•Initial agreement entered into in Sept. 2005
•Allows Cox to construct fiber-based
communication lines in public right-of-way
•Provide services in the Palomar Airport
Industrial area
2
Extension of License Agreement
•Three possible 5-year extensions allowed
•Previously two extensions granted
(2010,2016)
•Current extension is the last allowed under
2005 agreement
3
•City is responsible for management of the public
right-of-way
•Non-exclusive license in the Palomar Airport
Industrial Area
•Increased the fiber infrastructure in the commercial
and industrial-zoned properties
•Cox has complied with all terms and condition sof
current agreement
4
Extension of License Agreement
Extension to License Agreement
Budgetary Impact
•No fiscal impact
5
Staff Recommendation
•Approve a resolution authorizing the city
manager to approve a 5 Year extension of a
license agreement with Cox Communications
California, LLC.
6