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HomeMy WebLinkAboutCC RES 09-50RESOLUTION 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 56) 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 Resolution 09-50 Page 1 of 11 placement of aboveground utility facilities within the City's public right-of-way in or upon properties 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 1 st day of September, 2009. , Doug Da Mayor ATTEST: yo n C) Pamela Stoker, City Clerk Resolution 09-50 Page 2 of 11 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 09-50 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 1st day of September, 2009, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED COUNCILMEMBER ABSENT: -� -" P ELA STOKER City Clerk Resolution 09-50 Page 3 of 11 Davert Amante Gavello Nielsen- Palmer(5) None (0) None (0) None (0) Exhibit A of Resolution No. 09-50 Resolution 09-50 Page 4 of 11 M Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 11111111111111111 IIIII IIIII IIIII IIIII IIIII IIIII VIII VIII VIII VIII IIII IIII NO FE E RECORDING REQUESTED BY 2009000511554 08:33am 09/28/09 AND WHEN RECORDED MAIL TO: 100 286 Al2 s 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Office of the City Clerk 300 Centennial Way Tustin, CA 92780 Recording Fees exemptT Space Above This Line For Recorder's Use Only / I q� ENCROACHMENT LICENSE AGREEMENT 1 /VF Effective Date: September 1, 2009 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 and indefinite license to maintain, use, and operate the Encroachment as expressly described in this Agreement subject to the terms and conditions herein. 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: 1 h40 11.1 2754609 rr 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 except as otherwise provided under this Agreement. 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 sole 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 proximate 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. 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 641)617.1 2 2564609 6 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. 5. In 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 also agrees to post and maintain Liability Insurance in the form and amounts specified above, if any, while the Encroachment is located on the affected Property. 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. 3 64061 11 2564609 6 LICENSEE: Inc. d/b/a Cox Communications Orange County -.T Title: Tim Hi . Vice President Note: Signatures of Licensee must be acknowledged before a notary public. TUSTIN: City of Tustin 300 Centennial Way Tustin, CA 92780 p4ivB Y William Huston, City Manager ATTEST: APPROVED AS TO FORM: BY Title: 4 2504609.6 Notary Acknowledgement State of California ) :ss County of Orange ) On September 2, 2009, before me, Debra A. Sowder, notary public, personally appeared William A. Huston, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 (' a r -, DE® A A. SOMER COMM. •184M M"M MMX • cµ�o�w► ORANGE coz comm. Exp. ,�uw. 30, 2010 (Seal) CALIFORNIA•ACKNOWLEDGMENT State of California County of Oyain i � t On q%0Xe1 0% Wbefore me, l I Date '' GG Here Ir personally appeared jb.m s �L-�� Name(s) of f town ""I pwft - CMNnVA JESSICA B Rnu CaMntssi 01832123 -s is ' CaliMrnla pqe Coaatft �' omm. Ex ices Jan 19 ' d13 Place Notary Seal Above �VAV—J IF, who proved to me on the basis of satisfactory evidence to be the persono'j whose name(p'subscribed to the &w thin instrument and acknowledged to me that /Sheer executed the same in @/her/theif authorized capacity(ie&), and that by ii /.k�ir signature(K on the instrument the personf�jr, or the entity upon behalf of which the personS,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 of Notary Public 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. 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 RIGHTTHUMBPRINT OF SIGNER .p ot thumb here Number of Pages: Signer's Nal ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing RIGHTTHUMBPRINT OF SIGNER .. of thumb here 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1-800-876-6827 CALIFORNIA•ACKNOWLEDGMENT State of California County of o fma G Here Insert Name and Title of tffe Officer On (of before me, Date personally appeared JESSICA BULLARD CowkNai # 1882128 Uodtl Prbk • CiNfonIa OMP CoN111gt Coffin. a; ins 19.2018 W WOW q M Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the personXwhose nameX i�s aFe-subscribed to the within instrument and acknowledged to me that &may executed the same in&weir authorized capacity(ie , and that by �r signature(eon the instrument the person(K, or the entity upon behalf of which the person j4 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 of Notary Public 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. 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 Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 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 RIGHT THUMBPRINT OF SIGNER ... ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1-800-876-6827 EXHIBIT "A" LOCATION OF ENCROACHMENTS AND AFFECTED PROPERTY SEE ATTACHED 640(,j .'... I 2564609 6