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HomeMy WebLinkAbout15 COX COMM ENCROACHMENT LIC AGMNT 09-01-09~I~USTIN AGENDA REPORT ` z BUILDING OUR FUTURE HONORING OUR PAST MEETING DATE: SEPTEMBER 1, 2009 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT Agenda Item 15 Reviewed: City Manager Finance Director NIA SUBJECT: COX COMMUNICATIONS ENCROACHMENT LICENSE AGREEMENT SUMMARY: CoxCom, Inc., dba Cox Communications of Orange County wishes to construct, place, operate, inspect, maintain, repair and remove aboveground cable television and other communication facilities within the City's public right-of-way in or upon properties located within the Irvine Industrial Complex that are zoned Planned Community Industrial (PC-Ind). CoxCom, Inc. is seeking authorization for anon-exclusive license to allow such for a period of five (5) years with an option to automatically renew for two (2) additional and successive five (5) year terms. The facilities will remain the personal property of the CoxCom, Inc., and the City will have no obligation to monitor the use or to maintain the facilities. The agreement includes the provision that CoxCom, Inc. will be required to keep and maintain the facilities in good repair at their sole expense. RECOMMENDATION: That the Tustin City Council adopt Resolution No. 09-50 authorizing an Encroachment License Agreement between the City of Tustin and CoxCom, Inc. dba Cox Communications Orange County for the placement of aboveground utility facilities within the City's public right-of--way in and upon properties within the Irvine Industrial Complex. FISCAL IMPACT: There are no fiscal impacts associated with this action since CoxCom, Inc. will be required to construct, install, operate, maintain, repair, and remove the aboveground facilities and their associated equipment at their sole expense. CoxCom Inc. will be required to pay all associated fees for review and approval of permits and/or agreements. BACKGROUND AND DISCUSSION: CoxCom, Inc., dba Cox Communications of Orange County wishes to construct, place, operate, inspect, maintain, repair and remove aboveground cable television and other communication facilities within the City's public right-of-way in or upon properties within the Irvine Industrial complex. Accordingly CoxCom, Inc. submitted a Design Review application requesting authorization to install aboveground utility facilities within the City Council Report Cox Communications License Agreement Page 4 • CoxCom, Inc. shall avoid over-concentration of aboveground facilites in any area; placing facilities close to intersections and potentially impairing motorist or pedestrian visibility; placing facilities adjacent to sensitive residential or institutional uses; or obstructing traffic signals, signs, or other public safety devices located within the public right-of-way. • The City has the right to terminate the Agreement at any time in the event it is determined that the facilities are an immediate risk to the public health or safety, or that the facilities interfere with emergency access. • In the event CoxCom, Inc. refuses to remove the facilities, CoxCom, Inc. shall reimburse the City for any costs incur in removing the facilities. • CoxCom, Inc. shall defend and indemnify the City from any action resulting from the approval of the License Agreement. • CoxCom, Inc. Inc. shall obtain an Encroachment Permit and Design Review concurrently prior to installation of any facilities within the City's public right-of--way. • CoxCom shall reimburse the City for City's staff time and City Attorney's fees in drafting and reviewing the License Agreement. • Any notice provided pursuant to Section 8 of the Encroachment License Agreement shall be provided to the City Manager at 300 Centennial Way, Tustin, CA 92780. • CoxCom, Inc. shall submit plans for review and approval to the Community Development Department to flush mount all existing passive devices within six (6) months from the date of the agreement and to complete the work within six (6) months thereafter. The City Attorney office has prepared the attached Encroachment License Agreement. Staff recommends that the City Council adopt Resolution No. 09-50 approving the Encroachment License Agreement. Elizabeth A. Binsack Community Development Director Attachment: Resolution No 09-50 S:\Cdd\CCREPORTCox Communications encroachment license.doc Figure 3 Terms of the Agreement The City Attorney has been working with CoxCom, Inc. drafting the proposed License Agreement. The following is a summary of the terms included in the Agreement: • Five (5) year term with an option to automatically renew for two (2) additional and successive five (5) year terms. • The facilities will remain the personal property of the CoxCom, Inc., and the City will not have any obligation to monitor the use or to maintain the facilities. • CoxCom, Inc. will be required to keep and maintain the facilities in good repair at their sole expense. • All passive devices installed underground subsequent to the Effective Date of this Agreement shall be flush mounted. • All passive devices existing on the date of this Agreement shall be flush mounted upon the performance of any maintenance on such devices. • All aboveground "low-boy" enclosures shall be installed and located per Exhibit A attached to the License Agreement. • The aboveground facilities shall be screened to the greatest extent possible subject to the reasonable satisfaction of Tustin's Community Development Director. Screening may include without limitation any combination of the following materials or methods: faux rocks or other artificial enclosures that disguise the appearance of the aboveground device; landscape materials, walls, and enclosures; painting of devices to match existing structures; incorporation of the aboveground devices into existing structures. CoxCom, Inc. shall remove and relocate any facilities at its sole cost and expense whenever requested by Tustin in conjunction with any right-of-way improvements of any kind proposed to be undertaken by Tustin. City Council Report Cox Communications License Agreement Page 3 City Council Report Cox Communications License Agreement Page 2 City's public right-of-way. Upon reviewing the application, staff provided comments to CoxCom, Inc. indicating that it is the desire of the City to have the utility facilities placed underground since a letter was provided indicating such is technologically feasible. However, in response, Cox indicated that although their facilities are tested for water immersion, their desire is to place the facilities aboveground to avoid potential exposure to moisture, lawn chemicals, soil composition, and for maximum system reliability. Consequently, this agreement is drafted to allow CoxCom, Inc. to locate their facilities within the City's right-of-way subject to certain conditions. The project area is generally bounded by Tustin Ranch Road to the west, Interstate 5 freeway to the north, Jamboree Road to the east, and Edinger Avenue to the south. (Figure 1) x Q~~ ~~ Figure 1 The project involves the installation of twenty (20) Low-Boy enclosures (Figure 2) and two (2) power supply cabinets (Figure 3) and their associated equipment, conduit, underground vaults, etc. throughout the Irvine Industrial complex. The Low-Boy enclosures measure 14"x32"x16" or 18"x36"x20" and the power supply cabinets measure 44"x24"x52". According to CoxCom, Inc., this project will be their last and final build-out of their service area. ~OMBIN_ATI~N ENC Octioc TAI ~_~ 16' J.~i2• t. ~• 12' TAM 3, ~, NIN TAPE DUCTS IN DUCTS OJT 12' TAM TAPI Figure 2 ATTACHMENT Resolution No. 09-50 RESOLUTION NO. 09-50 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AUTHORIZING AN ENCROACHMENT LICENSE AGREEMENT BETWEEN THE CITY OF TUSTIN AND COXCOM, INC. dba COX COMMUNICATIONS ORANGE COUNTY FOR THE PLACEMENT OF ABOVEGROUND UTILITY FACILITIES WITHIN THE CITY'S PUBLIC RIGHT-OF-WAY IN OR UPON PROPERTIES LOCATED WITHIN THE IRVINE INDUSTRIAL COMPLEX. The City Council of the City of Tustin does hereby resolve as follows: WHEREAS, CoxCom, Inc. dba Cox Communications Orange County wishes to construct, place, operate, inspect, maintain, repair and remove aboveground cable television and other communication facilities within the City's public right-of-way in or upon properties located within the Irvine Industrial Complex that are zoned Planned Community Industrial (PC-Ind); and WHEREAS, the provisions of cable television and other communication facilities within the City of Tustin will benefit businesses located within the area; and WHEREAS, pursuant to Section 5(j) of the Design Guidelines for Aboveground Facilities and their Accessory Equipment on Public Property and in the Public Right-of- way, the City reserves the right to require that all utilities, including their accessory equipment, be placed underground when technologically feasible; and WHEREAS, it is the desire of the City to require the placement of the proposed cable television and other communications facilities and their related improvements underground since CoxCom provided a letter indicating that they are technologically feasible; and WHEREAS, CoxCom indicated that although their facilities are tested for water immersion, their desire is to place the facilities aboveground to avoid potential exposure to moisture, lawn chemicals, soil composition and for maximum system reliability; and WHEREAS, the City agrees to allow CoxCom, Inc. to construct, place, operate, inspect, maintain, repair and remove aboveground cable television and other communication facilities within the City's public right-of-way subject to certain criteria stipulated within the Encroachment License Agreement; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Tustin authorizes the City Manager to enter into an Encroachment License Agreement between the City and CoxCom, Inc. dba Cox Communications Orange County for the placement of aboveground utility facilities within the City's public right-of-way in or upon properties Resolution 09-50 Page 2 located within the Irvine Industrial Complex, subject to the criteria stipulated within Exhibit A attached hereto and the following conditions: 1. CoxCom, Inc. shall obtain concurrent Encroachment Permit/Design Review approval prior to any installation of any facilities. 2. Any aboveground facilities shall be treated with anti-graffiti materials and shall be subject to Tustin City Code Section 5707 related to removal of graffiti for structures on public property. 3. Prior to issuance of a permit, CoxCom, Inc. shall reimburse the City for City's staff time and City Attorney's fees in drafting and reviewing the License Agreement. 4. Any notice provided pursuant to Section 8 of the Encroachment License Agreement shall be provided to the City Manager at 300 Centennial Way, Tustin, CA 92780. 5. CoxCom, Inc. shall submit plans for review and approval to the Community Development Department to flush mount all existing passive devices within six (6) months from the date of the agreement and to complete the work within six (6) months thereafter. PASSED AND ADOPTED at a regular meeting of the Tustin City Council, held on the 1St day of September, 2009. Doug Davert Mayor Pamela Stoker City Clerk Resolution 09-50 Page 3 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) CERTIFICATION FOR RESOLUTION NO. 09-50 PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Resolution No. 09-50 was duly and regularly introduced, passed, and adopted at a regular meeting of the Tustin City Council, held on the 1St day of September, 2009. COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER City Clerk Exhibit A of Resolution No. 09-50 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Office of the City Clerk 300 Centennial Way Tustin, CA 92780 Space Above This Line For Recorder's Use Only ENCROACHMENT LICENSE AGREEMENT Effective Date: Name of Licensee: CoxCom, Inc. d/b!a Cox Communications Orange County Description of Encroachment(s) (the "Encroachment"): Above-ground cable television and other communications facilities and related improvements, as Licensee may from time-to- time require (collectively, the "Facilities") within the public rights-of--way in or upon certain real property within the corporate limits of the City of Tustin, California, zoned for industrial uses (Planned Industrial District and Industrial District). Said Encroachment is more particularly described on Exhibit "A", which is attached hereto and made a part hereof. Form of Liability Insurance required: Provide a copy of commercial general liability policy with this Agreement. Minimum Limits of Liability Insurance required: A minimum of not less than $1,000,000.00 bodily injury and property damage must be maintained at all times. This insurance requirement may be satisfied through a commercial general liability policy. 1. Agreement Terms and Conditions: The Licensee desires to construct, place, operate, inspect, maintain, repair, replace and remove the Facilities within public rights-of--way in the City of Tustin ("Tustin") on or adjacent to real property that is zoned for industrial uses. Tustin hereby grants Licensee a nonexclusive license to maintain, use, and operate the Encroachment as expressly described in this Agreement subject to the terms and conditions herein for a period of five (5) years from the first day of the first full calendar month following both parties' execution of this certain Encroachment License Agreement (the "Agreement"). Thereafter, the term of this Agreement shall automatically renew for two (2) additional and successive five (5) year terms, provided that either party may terminate this Agreement by providing the other party at least ninety (90) days written notice of its intent to terminate prior to the expiration of the then-current term. b~uw i ~. i zsvaax~ .~ 2. The Encroachment shall remain the personal property of the Licensee and Tustin shall have no obligation to monitor the use of, or to maintain, the Encroachment. The Licensee specifically acknowledges that the rights granted to the Licensee under this Agreement impose a duty on the Licensee to Tustin to maintain the Encroachment in a safe condition. Licensee further agrees to the following: a. The Licensee shall flush mount all passive devices installed underground subsequent to the Effective Date of this Agreement. b. The Licensee shall flush mount all passive devices existing on the date of this Agreement upon the performance of any maintenance on such devices. c. The Licensee shall install and locate all above-ground "low-boy" enclosures within the Encroachment as shown on Exhibit "A", which is attached hereto and made a part hereof. d. The Encroachment shall be screened to the greatest extent possible subject to the reasonable satisfaction of Tustin's Community Development Director. Screening may include without limitation any combination of the following materials or methods: faux rocks or other artificial enclosures that disguise the appearance of the above-ground device; landscape materials, walls, and enclosures; painting of devices to match existing structures; incorporation of the above-ground devices into existing structures. e. The Licensee shall remove and relocate any Encroachment at its sole cost and expense whenever requested by Tustin and the Facilities in conjunction with any right-of-way improvements of any kind proposed to be undertaken by Tustin. The Facilities shall at all times remain the property of the Licensee and Tustin shall not damage the Facilities nor interfere with the Licensee's use of the Facilities. f. The Licensee shall avoid: over-concentration of Encroachments in any area; placing Encroachments close to intersections and potentially impairing motorist or pedestrian visibility; placing devices adjacent to sensitive residential or institutional uses; or obstructing traffic signals, signs, or other public safety devices located within the public right-of--way. 3. The Licensee agrees to keep and maintain the Encroachment in good order and repair at the Licensee's sole cost and expense, except to the extent that any repairs to the Encroachment are necessitated by the negligence, omission, or intentional misconduct of Tustin, its officers, agents, contractors, employees, and representatives. This duty to keep, maintain, and repair the Encroachment shall be exercised and performed without regard to whether Tustin has notified the Licensee of the need for such repairs or maintenance or whether Tustin has performed repairs or maintenance of the Encroachment(s) in the past. Failure to comply with the requirements and obligations of this Paragraph, or to perform such obligations in a negligent manner, shall constitute a material breach of this Agreement and shall further constitute negligence and shall make the Licensee fully liable to Tustin if the Licensee's negligence under this paragraph is a direct cause of any injury or damage. In the event Licensee fails to comply with this Paragraph within fourteen (14) days after the Licensee's receipt of written notice from Tustin to do so, Tustin may, but is not obliged to, enter the Encroachment to conduct reasonable maintenance, and may charge the Licensee for such work. ~.u~a i a. t 2 2seaoov a 4. The rights granted under the Agreement may be terminated or suspended by Tustin at any time in the event Tustin determines that the Encroachment is an immediate risk to the public health or safety, or that the Encroachment interferes with a need by Tustin for emergency access which is required to maintain or repair Tustin's facilities in the vicinity of the Encroachment, the rights granted under this Agreement may be terminated in whole or in part or suspended immediately and without prior notice. In such an event, Tustin shall provide Licensee with written notice of the basis for the termination or suspension within ten (10) business days after said termination or suspension. Notwithstanding the foregoing, Tustin agrees that suspension of this Agreement shall be the primary option in the event of any public health or safety concern. 5. Tn the event the Licensee refuses or fails to remove the Encroachment or otherwise perform any of the Licensee's obligations under this Agreement, then the Licensee shall reimburse Tustin for any reasonable costs Tustin may incur in removing the Encroachment, or any portion thereof if the Encroachment has not been fully installed or constructed, and/or renewing, replacing, or restoring the public right-of-way within thirty (30) days after Licensee's receipt of an invoice for such costs. The rights of Tustin under this Paragraph are in addition to the rights that Tustin may have under any other provision of this Agreement. Tustin shall not be responsible for any damages to the Licensee as a result of Tustin performing any work under the provisions of this paragraph, except to the extent such damages are caused by the sole negligence, omission, or intentional misconduct of Tustin, its officers, agents, contractors, employees, and representatives. 6. In the event of a default by either party to this Agreement, the non-defaulting party shall have available all remedies at law or equity, and such remedies shall be cumulative and not exclusive of one another and the exercise of any one or more of said remedies shall not constitute a waiver or election with respect to any other available remedy. 7. Licensee agrees to and shall indemnify, defend, and hold Tustin, its officers, agents, employees, and representatives, harmless from and against any and all loss, damage, liability, claims, suits, costs, and expenses whatsoever, including reasonable attorneys' fees, for personal injury or property damages arising from or in any manner connected with installation, construction, maintenance, use, or operation of the Encroachment, regardless of whether Tustin reviewed and approved any plans or inspected any work or improvement, including the Encroachment and regardless of whether such maintenance, repair, replacement, or condition was affected or caused by Tustin. [LICENSEE HAS PREVIOUSLY POSTED LIABILITY INSURANCE IN CONNECTION WITH THE EXISTING CITY FRANCHISE AGREEMENTS.] 8. All notices required or provided for under this Agreement shall be delivered in person or in writing by first class mail, postage prepaid, addressed to the parties as indicated below or such other address as a party may request by giving the other party ten (10) days written notice. In the event of an emergency situation, any written notice required or provided for shall be deemed fully satisfied if made in person to an occupant of the Property or by leaving a written notice in a conspicuous location on the Property. Any notice so delivered shall be effective upon the date of personal delivery or, in the case of mailing, on the date of mailing. bacw i ~. i 3 ?56a6~M d LICENSEE: CoxCom, Inc. d/b/a Cox Communications Orange County A B' Ti B~ Ti Note: Signatures of Licensee must be acknowledged before a notary public. TUSTIN: City of Tustin 300 Centennial Way Tustin, CA 92780 By: William Huston, City Manager ATTEST: sy: ~..~n,,,? , 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT a~~rr.`,~ :~v.:anl-;.nre.. .-~'ts~'•; +r.R+~:nr:,r. ,~.~n:~:n~.r~- ~.n~~.rr_ ~._ ,F.Y`.c.Y'.-;Y+-- ~w.[~SC~I`-_ ~:y, ~„~;~,._ ~,~:r.-rn_ __ State of California County of ~Va~~~ On A'L{Gtl~Sf ~3~'`z~9 before me, Jes~~~a T3~~~ar~ , Oate Here Insert Name antl Title of the Officer personally appeared 7m~-~~y1S~~1 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the personls')'whose name~a'j~subscribed to the ~ifICA lIJLLMO ~IIM i lgttf23 NMllr iPl)Me ' CtMNIM~ ~M Cow a.~. ,tM t a Place Notary Seal Above Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) t hin instrument and acknowl dged to me that ~st~the~t executed the same in ~ authorized capacity(ies~, and that by t signatureJ,6f on the instrument the person 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 Signature o ublic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Signer's Name: n J J G Individual Corporate Officer -Title(s): _ Partner - ^ Limited ^ General Attorney in Fact Trustee Guardian or Conservator Top of thumb here ^ Other: Signer Is Representing Number of Pages: Signer's Name: r7 Individual CI Corporate Officer -Title(s): Partner - ^ Limited ^ General Attorney in Fact ^ Trustee ^ Guardian or Conservator u Other: Signer Is Representing. Top of thumb here rb2007 Natanal Notary ASSOCiatiOn• 9350 De Soto Ave., P.O. Btlz 2402 •Chatsvrorth, CA 91373-2402• www.NationalNotaryorg Item #5907 Reorder Call Tdl-Free 1-800.876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ~F,o.~ -- ..c~^- x~,;~7`~n _ rr.-,~.F^[`~.cY`.FY`n".cY)~^l`~~~nrRn~{-,iris'': ~,r~,n~cc~n,C~~'~`,GY'-.. ,~.~+_.. .. .. . - - ~;r~~rw~:{ State of California County of Dra~ge On 7 '~ d before me, JGSS~t'"l,! D u ![U r~ , Date / / ~,,, ^ /,~ Mere Insert Name and Title of the Officer personally appeared ~/~(/'YIPS L~t(.~' 1 _ ~ESi01CA 613.1AR0 CNMMMN~ ai ti3Z12a Nllw! !'IiYe - R~MIerM~ ~M ~~- ~~. ~ 1 2013 Placa Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(dj whose nameya'jQare-subscribed to the within instrument and acknowledged to me that ~~t~ /thc.i' executed the same i hi e+~tl~ei~authorized acity(ies~, and that by ierllheir signaturefb'S on the instrument the perso or the entity upon behalf of which the personje'f 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 Signaha Notary Pudic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this (orm to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ! ~ Individual ^ Corporate Officer -Title(s): _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here ~'J2007 National Notary Association •9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item U5907 Reorder: Gall Toll-Free 1-80f}8766fS27 EXHIBIT "A" LOCATION OF ENCROACHMENTS AND AFFECTED PROPERTY SEE ATTACHED 6J1161 ~. I ?56461?9 J The attachment for this item is a large map that could not be copied for the books. There is a copy of the map in the City Clerk's office for your review.