HomeMy WebLinkAbout60-21RESOLUTION 60-21
A RESOLUTION OF THE CITY COUNCIL OF THE TOWN OF LOS
ALTOS HILLS APPROVING A MASTER ACCESS AGREEMENT WITH
LOS ALTOS HILLS COMMUNITY FIBER AND AUTHORIZING THE
CITY MANAGER TO EXECUTE THE AGREEMENT
WHEREAS, the Town of Los Altos Hills ("Town") manages the public streets, roads and right of
way within Los Altos Hills and has the authority to permit access to and regulate the terms and
conditions for the use of said public right of way, including any construction, installation and
maintenance of fiber optic network facilities therein; and
WHEREAS, Los Altos Hills Community Fiber ("LAHCF") is a community-based private
nonprofit group that desires to construct, install and maintain certain fiber optic network facilities
within the public right of way within the Town in order to deploy broadband internet services to
and for the benefit of LAHCF's members; and
WHEREAS, LAHCF is not a public utility or a telecommunication services provider operating
under state or federal law and does not provide any voice communication products, nor is it eligible
to obtain a Certificate of Public Convenience and Necessity (CPCN) or other local service provider
or interexchange carrier license or certificate from the California Public Utilities Commission; and
WHEREAS, in order to encourage expansion of broadband internet services within Los Altos
Hills and to promote public right of way management in the interest of public health, safety, and
welfare, the Town desires to permit LAHCF to deploy fiber optic network facilities in the right of
way subject to certain terms and conditions regarding such deployment; and
WHEREAS, the Town and LAHCF have negotiated a Master Access Agreement ("Agreement"),
attached hereto as Exhibit A, governing the terms and conditions regarding the deployment of fiber
optic network facilities in the right of way; and
WHEREAS, among other terms, the Agreement has an initial term of ten (10) years from the
effective date, with automatic renewals of consecutive five (5) year periods unless elected not to
be renewed by either party with a six (6) month prior written notice prior to the expiration of the
then -current term; and
WHEREAS, the City Council considered the proposed Agreement during a duly noticed public
meeting and received public comments thereto.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the Town of Los Altos Hills
hereby approves a Master Access Agreement with LAHCF attached hereto and incorporated herein
as Exhibit A, for an initial term of ten (10) years from its effective date with automatic renewals
of consecutive five (5) year periods unless elected not to be renewed by either party as provided
for in the Agreement.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Master Access
Agreement on behalf of the Town in substantially the same form as Exhibit A, and is authorized
to make any revisions, amendments or modifications deemed necessary to carry out the intent of
Resolution 60-21 Page 1
this Resolution that does not substantially increase the Town's obligations or alter the terms of the
Agreement, subject to final approval as to form by the City Attorney.
The above and foregoing Resolution was passed and adopted by the City Council of the Town of
Los Altos Hills at a special meeting held on the 31 st day of August 2021 by the following vote:
AYES: Tankha, Tyson, Mok, Schmidt, Swan
NOES: None
ABSTAIN: None
ABSENT: None
BY:
ATTEST:
Kavita Tankha, Mayor
Resolution 60-21 Page 2
Exhibit A
MASTER ACCESS AGREEMENT BETWEEN THE TOWN OF LOS ALTOS HILLS
AND LOS ALTOS HILLS COMMUNITY FIBER FOR THE INSTALLATION OF
FIBER OPTIC NETWORK FACILITIES WITHIN PUBLIC RIGHT-OF-WAY
This Master Access Agreement ("Agreement"), dated this 2°d day of September 2021 ("Effective
Date") by and between the TOWN OF LOS ALTOS HILLS, a municipal corporation (herein
termed "Town"), and LOS ALTOS HILLS COMMUNITY FIBER, a 501(c)(6) membership -based
nonprofit corporation (herein termed "LAHCF").
RECITALS
A. LAHCF is a community-based private nonprofit group that desires to construct, install
and maintain certain Fiber Optic Network Facilities (defined below) within the Public
Right -of -Way s within the Town in order to deploy broadband internet services to and for
the benefit of LAHCF's members; and
B. As it is not a public utility or a telecommunication services provider operating under
California or federal law, and does not provide any voice communication products,
LAHCF is not eligible to obtain a Competitive Local Exchange Carrier ("CLEC") or other
local service provider or interexchange carrier license or certificate from the California
Public Utilities Commission (CPUC), nor is it eligib e to apply for or receive a state video
franchise from the CPUC pursuant to the Digital Infrastructure and Video Competition
Act of 2006 (DIVCA); and
C. The Town manages the public streets, roads and right of way within Los Altos Hills and
has the authority to permit access to and regulate the terms and conditions for the use of
Public Right -of -Way (defined below), including the proposed construction, installation
and maintenance of the Fiber Optic Network Facilities by LAHCF; and
D. In order to encourage expansion of broadband internet services within the Los Altos Hills
community and to promote the management of the Public Right -of -Way in the interest of
public health, safety, and welfare, the Town desires to permit LAHCF to construct Fiber
Optic Network ,Facilities in accordance with the terms, conditions, and covenants
contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein,
Town and LAHCF agree as follows:
1. DEFINITIONS.
1.1. "Authorized Routes" shall mean the Public Right -of -Way within the Town 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 LAHCF's request and with the written approval of the
City Engineer.
1.2. "Town" means the Town of Los Altos Hills, a municipal corporation of the State of
Resolution 60-21 Page 3
California, and includes the duly elected or appointed officers, agents, employees, and
volunteers of the Town of Los Altos Hills, individually or collectively.
1.3. "City Engineer" means the individual so designated by the Town in its Public Works
Department.
1.4. "LAHCF" shall mean Los Altos Hills Community Fiber, and its lawful successors or assigns
as permitted by the Town pursuant to Section 16.1 of this Agreement.
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
Town infrastructure which impacts services. An emergency repair is defined as remedial
activity to protect the public health and safety, in the judgment of the Town at its sole
discretion.
1.7. "Encroachment Permit" shall mean that permit required by Title 7, Chapter 2 of the Los
Altos Hills Municipal Code.
1.8. "Force Majeure" means an unforeseen cause beyond a' party's control, and that could not be
avoided or mitigated by that party with due diligence, 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, and that could not be°avoided or mitigate by that party with due diligence.
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 provision of the Los Altos
Hills Municipal Code or any other Town ordinance, policy, regulation, or standard
specifications.
1.10. "Public Right -of -Way" or "Right of Way" means the surface, the air space above the
surface, and the area below the surface of the paved and unpaved public streets, roads,
sidewalks, lanes, courts, ways, alleys, boulevards, and places that are owned and/or managed
by the Town., and, subject to Section 2.1 below, public utility easements ("PUE") that are
owned and/or managed by the Town to the extent that a grant of use under this Agreement
is consistent with the scope of the easement. This term shall not include any property owned
by any person or agency other than the Town, except as provided by Laws or pursuant to
an agreement between the Town and any person in which the Town has acquired the rights
to allow third party access over such property or portion of property.
Resolution 60-21 Page 4
11. "Fiber Optic 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 LAHCF or to be located by LAHCF in the
Public Right -of -Way of Town and used for the deployment of broadband internet services
to and for the benefit of LAHCF's members only. 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
antennae television system.
2. LIMITATIONS AND RESTRICTIONS.
2.1. Subject to the provisions of this Agreement and all Laws, the Town hereby permits LAHCF
to construct, install, maintain, locate, move, operate, place, protect, reconstruct, reinstall,
relocate, remove, and replace, and any related work thereto (hereinafter,collectively referred
to as "Deploy" or "Deployment") the Facilities in, under, over, across and along the Public
Right -of -Way in the Authorized Routes for the purposes of deploying broadband internet
services to and for the benefit of LAHCF's members only. Any work performed pursuant
to the rights granted to LAHCF under this Agreement shall be subject to the prior review
and prior approval of the City Engineer. No authority shall be provided for Deployment of
the Facilities within PUEs except in the event that LAHCF becomes a public utility and
receives a Certificate of Public Convenience and Necessity ("CPCN") from the CPUC, or if
the owner of the property subject to the PUE consents to LAHCF utilizing said easement.
In the event that LAHCF attains such status, or obtains property owner consent, and desires
to utilize PUEs, LAHCF shall provide the.Town with notice and evidence of its receipt of a
CPCN, or evidence of the consent of the property owner. LAHCF shall also provide the
Town with a map of the locations of the PUE(s) that LAHCF desires to utilize and indicate
whether such PUEs are within or,outside of any Authorized Routes. LAHCF's use of PUEs
shall be subject to the Town's City Manager, or his or her designee, reviewing and approving
the foregoing submittals and issuing a written approval for LAHCF to utilize such PUEs.
2.2. Prior to any Deployment by LAHCF in any section of the Authorized Routes as described
more particularly in the maps under Exhibit A, LAHCF shall obtain the City Engineer's
approval, consistent with all applicable laws and standards, including a Town Encroachment
Permit as provided by Section 11 of this Agreement, and all other necessary authorizations.
2.3. Except$ds permitted by Laws or this Agreement, in the performance and exercise of its rights
and obligations under this Agreement, LAHCF 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, vegetation and landscape, and other
telecommunications, utility and municipal property without the approval of the owner(s) of
the affected property or properties.
2.4. Both the Town and LAHCF 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.
Resolution 60-21 Page 5
2.5. This Agreement is not a grant by Town of any property interest but is made subject and
subordinate to the prior and continuing right of Town 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 Town -owned sanitary sewers, water main, storm drains, gas mains, poles,
overhead and underground electric and telephone wires, electroliers, cable television,
vegetation and landscape, 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.
2.6. 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 LAHCF, at its own cost and expense, shall obtain such permission as may
be necessary and consistent with any other existing rights.
2.7. The Deployment of said Facilities shall be accomplished without codor expense to Town,
and shall be performed subject to the 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 Town permits, authorizations and approval standards.
2.8. In the event of an emergency repair of Town facilities in proximity to LAHCF facilities,
which repair may conflict with or threaten LAHCF Facilities, LAHCF shall immediately,
upon notice by Town, provide a representative to the repair site. Protective measures, as
determined by the LAHCF representative, -at the election of the Town, may be undertaken
by the Town at LAHCF's expense. Should Town not elect to perform such protective action,
LAHCF shall provide the resources to conduct the protective measures upon Town's
demand under the direction of the Town and in a manner consistent, in the Town's sole
discretion, with the execution of the Town's responsibilities in the emergency. Priority shall
be given to activities necessary to restore Town services and for public health, welfare and
safety.
2.9. Any additional routes or work in the Town's Public -Right -of way that are outside of the
Deployment contemplated herein or not included in the routes outlined in Exhibit A will
require prior written approval by the Town and an amendment to this Agreement.
3. TERM AND TERMINATION.
3.1. Duration. This Agreement shall remain in force and effect for ten (10) years from the
Effective Date, subject to the Town's authority to regulate the terms and conditions of
LAHCF's use of the Public Right -of -Way. If none of the grounds for termination listed in
Section 3.2 of this Agreement exist at the end of the initial term (or any Renewal Term), the
Agreement shall automatically renew for consecutive five (5) year periods (each a "Renewal
Term") on the same terms and conditions unless either party provides written notice to the
other party at least six (6) months prior to the expiration of the then -current term stating it
does not wish to renew the Agreement.
3.2. Termination. The Town may terminate this Agreement by giving ninety (90) days' notice:
Resolution 60-21 Page 6
3.2.1. As a result of a determination by Town at its sole discretion that the provisions herein
interfere with the use or disposal of the Public Right -of -Way or any part thereof by
Town where only a portion of LAHCF's Facilities interfere with the use or disposal
of the Public Right -of -Way, the Town, at its sole discretion may elect to require
LAHCF to relocate the said portion in accordance with Section 9 "Removal and
Relocation" of this Agreement.
3.2.2. For failure, neglect, or refusal by LAHCF 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 Town has notified LAHCF in
writing, or for nonuse/abandonment in accordance with Section 9 "Removal and
Relocation" herein, unless LAHCF confirms within thirty (30) days of receipt of the
notice that the cited condition or default has ceased, been corrected or, subject to the
Town's approval, is diligently being pursued or being cured by LAHCF. If such cited
condition cannot be cured within thirty (30) days, such cure period will be extended
for a reasonable period at the sole discretion of City reasonably exercised, provided
that LAHCF 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, LAHCF 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
LAHCF suffering a Force Majeure condition.
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 LAHCF or
appointing a custodian, receiver, trustee, or other officer to administer a substantial
part of LAHCF's property.
3.2.4. The revocation, expiration or other loss of applicable permits or authorizations
required by Town, state or federal law for the use, maintenance or operation of the
Facilities.
3.2.5. The nature or character of LAHCF's operation has changed to include additional
voice/telecommunication services, cable (television) service (as such term is defined
af47 U.S.C. § 522), open video system (as such term is described in 47 U.S.C. § 573),
or broadcast television or community antenna.
3.2.6. LAHCF has failed to comply with the Assignment provisions pursuant to Section
16.1.
3.3. LAHCF may terminate this Agreement at any time upon ninety (90) days prior written notice
to Town.
3.4. Upon termination, LAHCF shall abandon or remove the Facilities as set forth in Section 9
"Removal and Relocation" of this Agreement. Any amount of bond or security required by
this Agreement that has not been drawn down and remain with the Town upon the Facilities
Resolution 60-21 Page 7
being fully removed from the Public Right -of -Way shall be returned to LAHCF within thirty
(30) days thereof.
4. COMPLIANCE WITH STANDARDS.
4.1. Prior to any Deployment in Public Right -of -Way, LAHCF shall obtain an Encroachment
Permit from City. LAHCF shall deploy Facilities in accordance with Laws.
4.2. LAHCF agrees to keep said Facilities in good and safe condition and free from any nuisance,
to the satisfaction of the City Engineer.
4.3. All Facilities constructed pursuant to this Agreement shall be in accordance with Laws and
all generally applicable Town authorization, permits from the Town's Planning, Building,
and Engineering Departments, and approval requirements. Where facilities of incumbent
local exchange carrier, electric or cable company, or other utility are ,aerial in a particular
location, the Town will not require construction of new underground Facilities if LAHCF,
at its sole cost and expense, has obtained permission from the incumbent utility, company
or carrier that LAHCF Facilities may share the aerial or pole space with the incumbent
facilities.
5. MAINTENANCE AND OPERATION.
5.1. LAHCF shall, at its sole cost and expense, maintain and promptly repair any damage to the
Facilities whenever repair or maintenance is required, subject to obtaining an Encroachment
Permit from the Town as required by this Agreement. All work by and on behalf of LAHCF
shall: (a) ' be performed by duly licensed and bonded contractors or mechanics; (b) be
performed in a manner and using equipment and materials that will not interfere with or
impair the Town's operations;,and (c) comply with all Laws and applicable Town
requirements including Encroachment Permit requirements.
5.2. The permission to access the Public Right of Way granted by the Town pursuant to this
Agreement is intended to permit the deployment of broadband internet services to and for
the benefit of LAHCF's member only. LAHCF may not permit any third party to deploy
any facilities or, equipment in the Right of Way unless specifically provided for in this
Agreement. This Agreement does not create any ownership, property rights, or other rights
to access, use or operate LAHCF Facilities in the Right of Way.
6. RESERVATION OF RIGHTS.
6.1. Town 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.
6.2. Town's approval of this Agreement is not a waiver of and is without prejudice to any right
Town may have under Laws to regulate, tax or impose fees or charges on LAHCF. LAHCF
shall be subject to any future taxes, fees or charges that Town lawfully imposes on the
Facilities or services provided through the Facilities in the future.
Resolution 60-21 Page 8 .
6.3. The Town's approval or execution of this Agreement does not constitute a waiver of its
ability to collect payment from LAHCF for the access and use of the Right of Way pursuant
to this Agreement consistent with state licensing provisions or applicable Laws.
7. NO FRANCHISE OR PROPERTY RIGHTS CREATED. Nothing in this Agreement shall
be construed as granting or creating any franchise rights or property interests, and shall not be
construed as creating a vested right of any nature in LAHCF to use the Public Right -of -Way.
This Agreement does not require Town to approve any particular encroachment permit
applications, issue any approvals, nor does it provide LAHCF with any interest in any particular
location within the Public Right -of -Way.
8. TAXES. LAHCF 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 LAHCF's use of the
Public Right -of -Way.
9. REMOVAL AND RELOCATION.
9.1. Upon receipt of a written demand from the Town, LAHCF shall remove or relocate, without
cost or expense to Town, 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 Town, if and when made necessary (a)dueto any work proposed to be done
by or on behalf of the Town 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 Town and/or the construction, maintenance or
operation of any other Town underground or aboveground facilities; or (b) due to -a
determination by the Town that,,the Facilities are detrimental to governmental activities,
including but not limited to, interference with Town construction projects, or are in conflict
vertically and/or horizontally with any proposed Town installation.
9.2. LAHCF shall complete such removal or relocation within sixty (60) days of notification by
Town, or according to an agreed upon schedule with the Town of no less than sixty (60)
days, except in the event LAHCF 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 Town
shall notify LAHCF of the shorter time period required and the reason wherefore and
LAHCVshall complete removal or relocation within that shorter time period. The Town's
City Manager or his or her designee, at his -or her sole discretion, may grant to LAHCF a
longer period of time in which to remove or relocate the Facilities, upon request of LAHCF.
9.3. In the event said Facilities are not removed or relocated within ninety (90) days (or other
time period if applicable) after said notification and LAHCF has not suffered a Force
Majeure, Town may cause the same to be done at the sole expense of LAHCF, which
LAHCF shall promptly reimburse to the Town within thirty (30) days after receiving an
invoice for such expenses, including all administrative, legal and consultant costs. Any
removal or relocation work by LAHCF shall only be done pursuant to a Town
Encroachment Permit for the work. The Town shall have the right to draw against the bond
or security provided for in Section 15.2 to effectuate the requirements of this section.
Resolution 60-21 Page 9
9.4. If any portions of the Facilities covered under this Agreement are no longer used by LAHCF,
or are abandoned for a period in excess of six (6) months, LAHCF shall notify Town and
shall either promptly vacate and remove the facilities at its own expense or, at Town's
discretion, may abandon some or all of the facilities in place. The Town's City.Manager or
his or her designee, at his or her sole discretion, may grant to LAHCF a longer period of
time in which to remove or relocate the Facilities, upon request of LAHCF. -Following such
removal or abandonment as approved by the Town, LAHCF shall have no further
obligations to the Town under this Agreement with respect to the removed or abandoned
portions of the Facilities except that the provisions of this Agreement that are intended to
survive termination shall continue to apply. All abandoned Facilities or portions of the
Facilities pursuant to this section shall become Town property for the Town's use at its sole
discretion.
9.5. When removal or relocation are required under this Agreement, LAHCF shall, after the
removal or relocation of the Facilities, at its own cost, repair and return the Public Right -of -
Way on which the Facilities were located to a safe and satisfactory condition in accordance
with the construction -related conditions and specifications as established by Town according
to its standard practice. Should LAHCF remove the Facilities from the Public Right -of -Way,
LAHCF shall, within five (5) days after such removal, give notice thereof to Town specifying
the Right -of -Way affected and the location thereof as well as the date of removal. Before
proceeding with removal, relocation, restoration or repair work, LAHCF shall obtain an
Encroachment Permit from the Town and all removal, relocation, restoration or repair work
shall be subject to Town inspection to ensure that the requirements provided under this
Agreement have been met. If LAHCF fails to perform or complete said repair work, the
Town shall have the option to perform such work at LAHCF's sole expense, which LAHCF
shall promptly reimburse to the Town within thirty (30) days after receiving an invoice for
such expenses, including all administrative, legal and consultant costs. The Town shall also
have the right to draw against the bond or security provided for in Section 15 to effectuate
the requirements of this section.
11
10. ENCROACHMENT PERMIT AND FEES; PROVISION OF ADDITIONAL
FACILITIES.
10.1. Encroachment Permit. LAHCF shall apply for an Encroachment Permit for all
Deployment work and each job within the Public Right -of -Way. LAHCF shall furnish
detaile,d plans of the work, including proposed underground and overhead routes, and
other such information as required by the City Engineer and shall pay all processing, field
marking, engineering and inspection fees, and any other fees that the Town 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. All proposed work shall be constructed in
accordance with Laws, and as further provided for in the provisions of this Agreement.
The Town may, at its option, require LAHCF to deposit an amount equal to the reasonable
estimate of the Town's actual costs of issuing an Encroachment Permit. LAHCF shall pay
such deposit in the amount specified by the Town prior to the issuance of an Encroachment
Permit. Town shall be entitled to draw on this deposit on a time and materials basis as
reimbursement for the Town's actual costs incurred in issuing the Encroachment Permit.
The Town shall refund any unused portion of the deposit to LAHCF upon completion of
Resolution 60-21 Page 10
11.
the work described in the Encroachment Permit. If, in the event that Town reasonably
determines that the amount of the deposit remaining will not be sufficient to reimburse the
Town for its estimated actual costs through completion of the work, Town may require
and LAHCF shall replenish the deposit as required by the Town within five (5) days of
written notice thereof. Failure to comply with the terms and conditions of this Agreement
may, at Town's sole discretion, result in withholding issuance of any new Encroachment
Permits.
10.2. Additional Fiber -Optic Cables, Conduits and Pull boxes. LAHCF agrees that if it
installs fiber-optic cable(s) as a part of the Deployment in one or more Authorized Routes,
then LAHCF shall also install and dedicate to the Town (via an effective instrument such
as an irrevocable offer of dedication or a quit claim deed) up to four fiber optic cable strands
as LAHCF has installed in the particular Authorized Route locations. The Town shall be
able to use such dedicated fiber-optic cables boxes at its sole discretion, including but not
limited to the provision of municipal services.
10.3. Lease of Facilities to Third Parties. LAHCF shall be permitted to enter into lease or
collocation agreements with third party entities that provide services of a substantially
similar nature as LAHCF, for the Facilities defined in this Agreement. LAHCF shall
incorporate as a condition of any lease or collocating agreement that the lessee or
collocating entity comply with all applicable Laws and Town regulations and standards.
LAHCF's obligations described in this Agreement including but not limited to obligations
to indemnify, repair, remediate, cure defaults, ,and remove facilities shall extend to cover
the Deployment or activities arising direcdy'or indirectly, in whole or in part, out of the
actions or inactions of a lessee or collocating entity under such a lease or collocation
agreement. The provisions of Section. 7 of this Agreement shall apply to any third party
lessee or collocating entity entering into an agreement with LAHCF.
11.1. LAHCF shall be responsible for any damage to Public Right -of -Way due to any
Deployment of the Facilities or any other work performed by LAHCF in Public Right -of -
Way, and LAHCF,-shall repair, replace and restore in kind the said damaged facilities in
accordance with -Town standards at LAHCF's sole expense.
11.2. If Public Right -of -Way to be used by LAHCF has preexisting installation(s) placed in the
Right -oft -Way, LAHCF shall assume the responsibility to verify the location of the
preexisting installation(s) and notify Town and any third party of LAHCF's proposed
installation. The cost of any work required of Town to provide adequate space or required
clearance to accommodate LAHCF's installation. shall be borne solely by LAHCF.
11.3. If LAHCF fails to repair damages or meet the requirements of this Section 11, the Town
shall have the ability to carry out the repair or other work required pursuant to this section
at LAHCF's sole expense by drawing down on the bond or security provided for in Section
15:2.
12. RECORDS AND FIELD LOCATIONS.
Resolution 60-21 Page 11
12.1. LAHCF shall maintain accurate maps and improvement plans of its Facilities located with
the Town. LAHCF 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 Town 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 by such work. In addition, the City Engineer requires LAHCF to provide the
Town with maps and plans on electronic media suitable for a Computer Aided Design and
Drafting application. Town shall use such information only as needed to manage the Public
Right -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 Town
is subject to the requirements of the California Public Records Act,,Government Code
section 6250 et seq., and information provided by LAHCF to the Town would be considered
a public record and must be provided upon request of a third party. If LAHCF desires to
claim portions of submitted information as exempt from disclosure, it is incumbent upon
LAHCF to clearly identify those portions as confidential or, proprietary by placing a legend
upon each affected page of such map or improvement plan. For information so designated
by LAHCF as confidential or proprietary, Town shallpo- tify LAHCF of a request to receive
such information at least five (5) days prior to disclosure of information designated as
confidential or proprietary and the Town may disclose such information within the
timeframe required by the Public Records Act if LAHCF does not take any action to object
to the requester the disclosure prior to that'deadline.
The Parties further acknowledge that although the Public Records Act recognizes that
certain confidential trade secret/proprietary information may be protected from disclosure,
the Town is not in a position to establish that the information submitted by LAHCF would
be proprietary and exempt from disclosure. Thus, if a requester takes legal action seeking
release of the materials it believes does not constitute trade secret/proprietary information,
LAHCF agrees to indemnify, defend and hold harmless the Town, its officers, agents and
employees, from any judgment, fines, penalties, and award of attorneys' fees awarded against
the Town in favor of the party requesting the information, and any and all costs connected
with that defense. This obligation to indemnify survives the termination of this Agreement.
12.2. LAHCF 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 Town to do so.
12.3. LAHCF and/or its designee who may be managing and operating the network 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.
13. HOLD HARMLESS, RELEASE AND INDEMNIFICATION.
Resolution 60-21 Page 12
13.1. Indemnification. LAHCF, jointly and severally, for itself, its successors, agents,
contractors and employees, agrees to indemnify, defend (with counsel acceptable to Town)
and hold harmless Town, its officers, employees and agents and any successors to Town'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 Deployment of the Facilities or activities of LAHCF
described in this Agreement, except to the extent such Losses are solely caused by the
Town's acts or omissions of gross negligence or willful misconduct. For purposes of this
section 13 only, the term "cleanup actions" shall refer to such actions as are necessary to
remediate damage caused directly or indirectly by LAHCF, its employees, agents,
contractors, or subcontractors. For the purposes of the indemnity obligation under this
section 13, "activities of LAHCF" includes acts or omission of LAHCF or its employees,
sub -grantees, invitees, contractors, subcontractors or agents relating to the LAHCF's
performance of this Agreement.
13.1.1. In the event that LAHCF, 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, LAHCF shall cause all work to be stopped and
shall immediately notify Town of the discovery: LAHCF agrees that the provisions of
this Section 13 shall fully apply in the event'of a failure by LAHCF to stop work and
immediately notify the Town.
13.1.2. The foregoing indemnity shall � include, without limitation, reasonable fees of
attorneys, consultants and experts and related costs and Town's costs of investigating
any claims against the Town.,,`'
13.2. Assumption of Risk and Release. LAHCF assumes all risk of injury and damage to any
and all other property of LAHCF, or any property under the control or custody of LAHCF
while upon or near the Public Right -of -Way incident to the use of the Public Right -of -Way,
except to the extent such Losses arise from the Town's sole intentional or grossly negligent
acts or omissions."LAHCF releases Town from any and all losses relating to Deployment of
the Facilities, all works, incidents, operations, and any other matter arising from or related
to this Agreement, including but not limited to claims for damages or extra compensation,
costs relating to relocation, costs arising from construction delays due to any activities or
work by Town, except to the extent such Losses arise from the Town's sole intentional or
grossly negligent acts or omissions. Under no circumstances shall Town be liable to LAHCF
for any loss of service downtime, loss of use, lost revenue or profits, additional costs or
expenses incurred, or third -parry damages whatsoever.
13.3. Survival. LAHCF's obligations, assumptions and release under this section 13 shall survive
termination of this Agreement.
14. INSURANCE.
14.1. Prior to the issuance of an encroachment permit, LAHCF shall obtain and maintain
Resolution 60-21 Page 13
comprehensive general and automotive liability insurance protecting LAHCF in an amount
of not less than Two Million Dollars ($2,000,000) per occurrence, including bodily injury
and property damage, as a combined single limit or equivalent. Such insurance shall name
Town, 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 Town at least thirty (30) days advance written notice of such
cancellation or change, and it shall be the responsibility of LAHCF to notify Town of such
change or cancellation. This insurance shall apply to all encroachment permits issued under
this Agreement.
14.2. LAHCF shall file the required original Certificate of Insurance with endorsements with
Town, subject to Town's approval, and shall clearly state:
a. Policy number; naive 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 LAHCF's insurance is primary.<
14.3. Workers Compensation Insurance: Prior to the issuance of an encroachment permit,
LAHCF will ensure that contractors or employees performing work obtain and maintain
statutory Workers Compensation and employer's liability insurance as required by law and
furnish Town with a certificate showing proof of such coverage. The insurer shall agree to
waive all rights of subrogation against the Town, its officers, officials, employees and
volunteers for losses arising from LAHCF's performance of this Agreement.
14.4. Insurance Companies: Insurance companies must be admitted in California and rated at
least A- in Best's Insurance Guide.
15. PERFORMANCE BOND• OTHER ASSURANCES AND SECURITY
15.1. Performance Bond. Prior to the issuance of an Encroachment Permit, LAHCF shall
provide Town with a performance bond naming Town as obligee in the amount equal to
one hundred percent (100%) of the estimated cost of the repairs to the Public Right -of -Way
based on the City Engineer's estimate to guarantee and assure the faithful performance of
LAHCF's obligations under this Agreement, unless the Town has specifically waived this
requirement in writing.
15.1.1. Town shall have the right to draw against the bond in the event of a default by
LAHCF or in the event that LAHCF fails to meet and fully perform any of its
obligations, after providing LAHCF with notice and an opportunity to cure and
LAHCF has not cured or proceeded with a cure within thirty (30) days of the notice.
The form of the bond shall be subject to the prior approval of the City Engineer.
15.1.2. The bond shall remain in full force until one (1) year after the Construction is
Resolution 60-21 Page 14
completed, inspected and accepted by the Town Engineer.
15.2. This Section 15 shall not be construed to eliminate or reduce LAHCF's continuing
obligation to repair any damage to the public right-of-way resulting from the installation,
relocation or removal of the Facilities.
16. MISCELLANEOUS.
16.1. Assignment. This Agreement shall not be assignable by LAHCF without the prior written
approval of Town at the Town's sole discretion.
16.2. 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 partiesiating 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.
16.3. 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
concerning this Agreement must be brought and heard in the state or federal courts
encompassing the Town of Los Altos Hills, California.
16.4. Severability. If any one or more of the covenants or agreements or portions thereof
provided in this Agreement shall be held, by a court of competent jurisdiction in a final
judicial action to be void, voidable or, unenforceable, such covenant or covenants, such
agreement or agreements, or such portions thereof shall be null and void and shall be
deemed separable from the remaining covenants or agreements or portions thereof and shall
in no way affect the validity or, enforceability of the remaining portions of this Agreement.
16.5. Relationship; No Third Party Beneficiaries. Nothing in this Agreement shall in any
respect be interpreted, deemed or construed as constituting Town and LAHCF as partners
or joint venturers,- or as creating any partnership, joint venture, association or other
relationship. This'Agreement is not intended for the benefit of any specific person, entity or
third party beneficiary other than the named parties hereto and no person or entity that is
not specifically named as a party herein shall have any right to enforce the provisions of this
Agreement.
16.6. No Waiver. The failure of either party on one or more occasions to exercise a right or to
require compliance or performance under this Agreement or any other applicable state or
federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance
or performance by such party nor to excuse the other party from complying or performing,
unless such right or such compliance or performance has been waived in writing.
16.7. Counterparts. This Agreement may be executed in two or more counterparts or by
electronic means, each of which will be deemed an original, but all of which taken together
will be one and the same instrument.
Resolution 60-21 Page 15
16.8. Successors. This Agreement is binding upon the successors, assigns, and transferees in
accordance with Section 16.1 of the parties hereto.
16.9. Construction. Both Town and LAHCF have had the opportunity to participate in the
drafting of this Agreement and consult with legal counsel of their choosing. The Parties
agree that any ambiguity in this Agreement shall not be construed or interpreted against, or
in favor of either Party.
16.10. Authority to Execute. The individuals executing this Agreement warrant and represent
that they have the full right, power, and capacity to act on behalf of the signing Party and
have the authority to bind that Party to the performance of its obligations under this
Agreement without the subsequent approval or consent of any other person or entity.
17. NOTICE. 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 Town at:
Town of Los Altos Hills
Director of Public Works
26379 Fremont Road
Los Altos Hills, CA 94022
(650) 941-7222
To LAHCF at:
If
Sean Corrigan
Treasurer
Los Altos Hills Community Fiber
13920 Fremont Pines Lane,
Los Altos Hills, CA 94062
With CC to:
David Barron
Next Level Networks
440 N Wolfe Rd
Sunnyvale, CA 94085
[Signatures on the Following Page]
Resolution 60-21 Page 16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
duplicate on the date and year first written herein.
LOS ALTOS HILLS COMMUNITY TOWN OF LOS ALTOS HILLS
FIBER
Los Altos Hills Community Fiber
Board member
City Manager
Date
Date
Approved as to Form:
City Attorney
Attest:
City Clerk
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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 )
AT,
personally appeared
before me,
(insert name and title of the officer)
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
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(Seal)
EXHIBIT A
[AUTHORIZED ROUTES]
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