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HomeMy WebLinkAbout60-241 GRANT AGREEMENT BETWEEN THE TOWN OF LOS ALTOS HILLS AND LOS ALTOS HILLS COMMUNITY FIBER This Grant Agreement (“Agreement”) is made and entered into between the Town of Los Altos Hills, a General Law City (“Town”) and LOS ALTOS HILLS COMMUNITY FIBER, a California non-profit mutual benefit corporation, (“Recipient”) effective as of ___October 25, 2024__ (the “Effective Date”). Town and Recipient are hereinafter collectively referred to as (the “Parties”). In consideration of their mutual covenants, the Parties hereby agree as follows: 1. Incorporated Documents. A. The 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 (“Master Access Agreement”) is attached hereto and incorporated herein as Exhibit C. B. All requirements set forth in the Master Access Agreement apply fully to this Agreement. In the event that any of the terms of the Master Access Agreement conflict with this Agreement, the terms of this Agreement shall prevail. 2. Term. Unless amended or terminated prior to its expiration, the term of this Agreement for disbursement and expenditure of eligible payments will begin on Effective Date and the Agreement shall be completed to the satisfaction of the Town by December 31, 2025 (“Termination Date”), except the Master Access Agreement shall continue to September 2, 2031, unless otherwise amended or terminated. Section 9 (Indemnification) shall survive termination or expiration of the Agreement and shall remain enforceable thereafter. 3. Scope of Work. Recipient shall expand broadband services (“the Work”) within the Town for the purposes of a community benefit and operate the network for a minimum of five (5) years after Termination Date as more particularly described in the Scope of Work, attached hereto and incorporated herein as Exhibit A. In the event of a conflict or inconsistency between the text of the main body of this Agreement and Exhibit A, the text of the main body of this Agreement shall prevail. 4. Noncompletion of Scope of Work. Partial performance or incomplete performance of the Scope of Work will be considered a Breach of Agreement unless agreed to by both parties in writing. Any Work not completed upon use of all Grant Funds must be completed at the expense of Recipient by the Termination Date. 5. Payment. Town shall pay Recipient an amount not to exceed: seven hundred twenty-five thousand dollars ($725,000) (“Grant Funds”) for the full and satisfactory completion of the Work in accordance with the terms and conditions of this Agreement. The calculation of payment for the Work shall be set forth as described in the Compensation Form, attached hereto and incorporated herein as Exhibit B. The amount stated above is the entire 2 compensation payable to Recipient for the Work performed hereunder, including but not limited to all labor, materials, tools, Engineering, Construction, Permitting, PG&E Power Allowances, equipment furnished by Recipient, or other expenses directly related to completing the work, at the sole discretion of the Town. Grant Funds may be shifted between budget line items by the Recipient. A. The Town shall reimburse recipient, based on invoices received showing proof of payment, for Work satisfactorily performed. Town shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Recipient. B. Presenting a false or fraudulent claim for payment, including a change order, is a violation of the California False Claims Act and may result in treble damages and a fine of five thousand ($5,000) to ten thousand dollars ($10,000) per violation in addition to repayment of any improperly used funds. 6. Maintenance and Operation. A. Recipient 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 Recipient 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. B. 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 only to and for the benefit of Recipient and/or Recipient’s members. Recipient may not deploy, nor 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 Recipient Facilities in the Right of Way. 7. Independent Recipient. It is understood and agreed that this Agreement is not a contract of employment and does not create an employer-employee relationship between the Town and Recipient. At all times Recipient shall be an independent contractor and Recipient is not authorized to bind the Town to any contracts or other obligations without the express written consent of the Town. Additionally, the Agreement does not cause the Town to be a member of Recipient, any operation, or any maintenance. 8. Licenses. Recipient represents and warrants that Recipient possesses all licenses, permits, and qualifications legally required for the performance of the Work, including but not limited to a business license from the Town and payment of any applicable business license 3 tax. Recipient shall, at Recipient’s sole cost and expense, maintain all such licenses, permits and qualifications in full force and effect throughout the term of this Agreement. 9. Indemnification of the Town. Recipient, 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 Recipient 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 Section 10 and 11, the term "cleanup actions" shall refer to such actions as are necessary to remediate damage caused directly or indirectly by Recipient, its employees, agents, contractors, or subcontractors. For the purposes of the indemnity obligation under Section 10 and 11, "activities of Recipient" includes acts or omission of Recipient or its employees, sub-grantees, invitees, contractors, subcontractors or agents relating to the Recipient’s performance of this Agreement. A. In the event that Recipient, 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, Recipient shall cause all work to be stopped and shall immediately notify Town of the discovery. Recipient agrees that the provisions of Section 10 shall fully apply in the event of a failure by Recipient to stop work and immediately notify the Town. B. 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 Recipient. 10. Indemnification of Recipient. The Town, jointly and severally, for itself, its successors, agents, contractors and employees, agrees to indemnify, defend (with counsel acceptable to Recipient) and hold harmless Recipient, from and against any and all claims, injuries, property damages, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and cleanup actions of any kind, all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorney's fees and costs of defense (collectively, the "Losses") arising directly or indirectly, in whole or in part, out of the activities of the Town described in this Agreement, except to the extent such Losses are solely caused by the Recipient’s acts or omissions of gross negligence or willful misconduct. For purposes of Section 10 and 11 only, the term "cleanup actions" shall refer to such actions as are necessary to remediate damage caused directly or indirectly by the Town, its employees, agents, contractors, or subcontractors. For the purposes of the indemnity obligation under Section 10 and 11, "activities of Town" includes acts or 4 omission of Town or its employees, sub-grantees, invitees, contractors, subcontractors or agents relating to the Town’s performance of this Agreement. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and Recipient’s costs of investigating any claims against the Town. 11. Encroachment Permit. Recipient shall apply for an Encroachment Permit for all Deployment work and each job within the Public Right-of-Way. Recipient shall furnish detailed 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 Recipient to deposit an amount equal to the reasonable estimate of the Town's actual costs of issuing an Encroachment Permit. Recipient 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 Recipient upon completion of 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 Recipient 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. 12. Insurance. A. Prior to the issuance of an encroachment permit, Recipient shall obtain and maintain comprehensive general and automotive liability insurance protecting Recipient 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 Recipient to notify Town of such change or cancellation. This insurance shall apply to all encroachment permits issued under this Agreement. B. Recipient shall file the required original Certificate of Insurance with endorsements with Town, subject to Town's approval, and shall clearly state: i. Policy number; name of insurance company; name, address and telephone number of agent or authorized representative; name, address and telephone 5 number of insured; project name and address; policy expiration date; and specific coverage amounts. ii. That Recipient’s insurance is primary. C. Workers Compensation Insurance: Prior to the issuance of an encroachment permit, either the Recipient will obtain of the Recipient 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 Recipient’s performance of this Agreement. D. Insurance Companies: Insurance companies must be admitted in California and rated at least A- in Best's Insurance Guide. 13. Compliance with all Applicable Laws. A. Recipient shall comply with all applicable local, state and federal laws, regulations and ordinances in the performance of this Agreement. B. The Recipient and any subrecipients performing services on behalf of the Recipient will not unlawfully discriminate or permit discrimination, harass, or allow harassment against any person or group of persons because of race, color, religious creed, national origin, ancestry, age (over 40), sex, gender, gender identity, gender expression, sexual orientation, marital status, pregnancy or childbirth (including related conditions), medical condition (including cancer), mental disability, physical disability (including HIV and AIDS), genetic information, or military and veteran’s status, or in any manner prohibited by federal, state, or local laws. In addition, Recipient must not unlawfully deny any of their employee’s family care leave or discriminate against such employees on the basis of having to use family care leave. Recipient must ensure that the evaluation and treatment of their employees and applicants for employment is free of such discrimination and harassment. C. Recipient shall comply with the requirements of the Secretary of Labor and the latest amendments to: Executive Orders 11246 and 11375, as supplemented in Department of Labor regulations (41 C.F.R. chapter 60); the Copeland “Anti- Kickback” Act (18 U.S.C. § 847) as supplemented in Department of Labor regulations (29 C.F.R. part 3); Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. §§ 1701 et seq.); Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000); Section 109 of Title I of the Housing and Community Development Act of 1974 (42 U.S.C. §§ 5301 et seq.); the Age Discrimination Act of 1975 (42 U.S.C. §§ 6101 et seq.); and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701 et seq.) 6 14. Payment of Taxes; Tax Withholding. Recipient is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. To be exempt from tax withholding, Recipient must provide Town with a valid California Franchise Tax Board form 590 (“Form 590”). Unless Recipient provides Town with a valid Form 590 or other valid, written evidence of an exemption or waiver from withholding, Town may withhold California taxes from payments to Recipient as required by law. Recipient shall obtain, and maintain on file for three (3) years after the termination of this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all subrecipients. Recipient accepts sole responsibility for withholding taxes from any non- California resident subrecipient and shall submit written documentation of compliance with Recipient’s withholding duty to Town upon request. 15. Patents. The Recipient shall assume all costs arising from the use of patented materials, equipment, services, or processes used on or incorporated in the Work, and agrees to indemnify and save harmless the Town of Los Altos Hills, the City Council, and the Engineer, and their duly authorized representatives, for all suits at law, or actions of every nature for, or on account of the use of any patented materials, equipment, services, or processes. 16. Dispute Resolution. Prior to initiating litigation in a court of competent jurisdiction, both Recipient and Town shall undergo alternative dispute procedures as outlined in Public Contract Code Section 20104, et seq. The Parties also expressly agree that such procedures are incorporated as though fully set forth in this Agreement. 17. Prevailing Party. In the event that either party to this Agreement commences any legal action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the prevailing party in such a proceeding shall be entitled to recover its reasonable attorney’s fees associated with that legal action or proceeding. 18. Termination. Town may terminate or suspend this Agreement at any time and without cause upon written notification to Recipient. Upon receipt of notice of termination or suspension, Recipient shall immediately stop all work in progress under this Agreement. The Town’s right of termination shall be in addition to all other remedies available under law to the Town. 19. Breach of Agreement. If Recipient materially breaches any of the terms of this Agreement, Town’s remedies shall include but not be limited to the following: A. Immediately terminate the Agreement; B. Recover all Grant Funds expended upon demand; 20. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 7 21. Entire Agreement. This Agreement represents the entire and integrated agreement between the Parties. This Agreement may be modified or amended only by a subsequent written agreement signed by both Parties. 22. Non-Liability of Officials, Employees and Agents. No officer, official, employee or agent of Town shall be personally liable to Recipient in the event of any default or breach by Town or for any amount which may become due to Recipient pursuant to this Agreement. 23. Execution in Counterparts. This Agreement may be executed in counterparts and/or by facsimile or other electronic means, and when each Party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. 24. Choice of Law; Venue. The applicable law shall be that of the State of California. 25. Notice. All notices and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if personally delivered; (ii) when received if transmitted by telecopy, if received during normal business hours on a business day (or if not, the next business day after delivery) provided that such facsimile is legible and that at the time such facsimile is sent the sending Party receives written confirmation of receipt; (iii) if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice shall be sent to the respective Parties as follows: Recipient: [Name, Title] Los Altos Hills Community Fiber [Address] Town: Peter Pirnejad Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 14 EXHIBIT B – CONSTRUCTION ESTIMATE Cost Table A – Town Hall SOW Underground Construction Traffic Control Other Professional Services Engineering and Design Permitting PG&E Power Allowance 9.13% Sales Tax on Material Total Cost Table B – Stonebrook / Prospect / La Loma SOW Underground Construction Traffic Control Other Professional Services Engineering and Design Permitting 9.13% Sales Tax on Material Total 15 Cost Table C –to ARK via Foothill College SOW Underground Construction Traffic Control Other Professional Services Engineering and Design Permitting 9.13% Sales Tax on Material Total 16 EXHIBIT C MASTER ACCESS AGREEMENT