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HomeMy WebLinkAboutPW Master Encroachment PermitDocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F41342F MASTER ENCROACHMENT PERMIT BETWEEN THE CITY OF SAN RAFAEL AND SONIC TELECOM, LLC FOR THE INSTALLATION AND USE OF NETWORK FACILITIES WITHIN PUBLIC RIGHT-OF-WAY This Master Encroachment Permit ("Permit") dated as of Jun 11, 2023 , 2023, is made between the CITY OF SAN RAFAEL, a California charter city (herein termed "CITY"), and SONIC TELECOM, LLC, a California Limited Liability Company (herein termed "SONIC"), each a "Party," and together, the "Parties." RECITALS WHEREAS, SONIC is authorized to provide certain services in the state of California pursuant to Certificates of Public Convenience and Necessity issued by the Public Utilities Commission of the State of California (herein termed "CPUC"); and, WHEREAS, CITY owns, operates and/or maintains the Public Right -of -Way within CITY for the purpose of providing public services to its clients; and, WHEREAS, SONIC desires to construct Network Facilities within the Public Right -of -Way and/or public utility or service easements within CITY to offer Telecommunications Services; and WHEREAS, CITY has the authority to regulate the time, place and manner for the use of Public Right -of -Way for the construction, installation and maintenance of Network Facilities by private telecommunications services providers. PROVISIONS NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein, CITY and SONIC agree as follows: DEFINITIONS SONIC means Sonic Telecom, LLC, and its lawful successors or assigns. CITY means the City of San Rafael, a charter city and municipal corporation of the State of California, and includes the duly elected or appointed officers, agents, employees and volunteers of the City of San Rafael, individually or collectively. Director means the CITY's Director of Public Works or their designee. Public Right -of -Way means the surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, dedicated public utility easement or similar property in which CITY now or hereafter holds any property interest which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining Network Facilities. No reference herein to a "Public Right -of -Way" shall DocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F41342F be deemed to be representation or guarantee by CITY that its interest or other rights to control the use of such property is sufficient to permit its use for such purposes, and SONIC shall be deemed to gain only those rights to use the property as the CITY may have the undisputed right and power to give, and which do not interfere with CITY's needs for uses within the Public Right -of -Way. In the event of any conflict, the use of the Public Right -of -Way by SONIC is secondary to the rights and needs of the CITY. Telecommunications Services means the transmission of voice, video, data or other information between two or more points along wires, optical fibers or other transmission media, including but not limited to telephone services, data services, internet services, broadband services, open video system services and other similar services. Network Facilities means any and all telecommunications cables, lines, conduits, guys, anchors, access manholes/handholes, pedestals, boxes, and other equipment and devices owned or used by SONIC in offering Telecommunications Services. SCOPE OF USE OF PUBLIC RIGHT-OF-WAY l . This Permit covers all existing Network Facilities that SONIC (or any predecessor in interest) has already installed in the Public Right -of -Way and any Network Facilities that SONIC plans to add or will add to the system in the CITY's Public Right -of -Way. 2. CITY hereby enters into this Permit with SONIC, subject to reservations, covenants and conditions herein contained, to authorize SONIC to construct, install, maintain and operate, and remove Network Facilities within the Public Right -of -Way located within the corporate limits of the CITY for the sole purpose of offering Telecommunications Services, subject to obtaining all required permits and approvals that may be required by law. 3. SONIC is not authorized to place any facilities other than Network Facilities in the Public Right -of -Way. SONIC shall not install Network Facilities without first obtaining any required permits from the CITY. 4. The CITY hereby reserves every right and power provided by law, and nothing in this Permit shall be deemed a waiver of the CITY's legislative or police power. SONIC, by its execution of this Permit, agrees to be bound thereby and to comply with any lawful requirements of the CITY in its exercise of such rights or power. Neither the granted rights under this Permit nor any provision hereof shall constitute a waiver of or bar to the exercise of any lawful governmental power of the CITY. The reserved rights include the right to use and allow other users to conduct other activities within the Public Right of Way. 5. The construction, installation, operation, maintenance and/or removal of Network Facilities shall be accomplished without cost or expense to CITY subject to the written approval of CITY's Director in such a manner as not to endanger personnel or property, or unreasonably obstruct travel on any road, walk or other access thereon within said Public Right -of -Way. z DocuSign Envelope ID: 41DFFCFD-2757-4A55-94EE-6E84C1F4B42F 6. This Permit does not authorize use of any property other than the Public Right -of - Way. Any use of any other CITY property, including but not limited to poles and conduits, shall require a separate permit or agreement. 7. This Permit is not a grant by the CITY of any property interest but is made subject and subordinate to the prior and continuing right of CITY to use and control all of the Public Right -of -Way, including but not limited to, public use as a street and for the purpose of laying, installing, maintaining, repairing, protecting, replacing and removing sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electrics and electroliers, and other municipal uses together with appurtenances thereof and with right of ingress and egress, along, over, across and in said Public Right -of -Way; and SONIC shall have the duty to remove, relocate and rearrange its facilities within the reasonable time frame set forth by CITY, and at its own expense, in order to accommodate such uses, as further provided in this Permit and the San Rafael Municipal Code. The grant of rights in this Permit 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 SONIC, at its own costs and expense, shall obtain such permission as may be necessary consistent with any other existing rights. CONSTRUCTION AND MAINTENANCE STANDARDS 8. The construction, operation or repair and maintenance of Network Facilities shall be in accordance with all applicable federal, state and local laws, including, without limitation, zoning laws, construction codes and CITY's standard specifications and conditions of approval, as the same may exist now, or be hereafter amended or revised; and any supplements thereto or revisions of this Permit, in compliance with California Public Utilities Code Section 7901.1. Nothing in this Permit prevents the CITY from establishing additional or stricter conditions (even with respect to the matters specified in those sections), and requiring SONIC to comply with the same. In the event of a conflict among codes and standards, the most stringent code or standard, as determined in the sole judgment of the Director, shall apply. 9. SONIC shall at all times employ reasonable care, within the meaning of applicable law, and shall install, maintain and use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury or nuisance to the public. 10. SONIC shall construct, operate and maintain its Network Facilities so as not to endanger or interfere with improvements CITY shall deem appropriate to make, or to interfere in any manner with the Public Right -of -Way or legal rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic. SONIC shall place facilities in strict conformance with the plans and drawings approved in writing by CITY and shall not place its Network Facilities where they will interfere with any gas, electric, telephone, telecommunications, water, sewer or other utility facilities or obstruct or hinder in any manner such entity's use of any Public Right -of -Way. Any and all Public Right -of - Way, public property or private property that is disturbed or damaged by SONIC during the construction, repair, replacement, relocation, operation, maintenance or construction of DocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F41342F a Network Facility shall be promptly repaired by SONIC, to a condition equal to that which existed prior to the damage. 11. SONIC shall not install or erect any Network Facilities in or on other public property, places or Public Right -of -Way, or within any privately owned area within CITY which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision or parcel map approved by CITY, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the Director. 12. Any contractor or subcontractor used for the construction, installation, operation, maintenance or repair of the Network Facility equipment shall be properly licensed under the laws of the state and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as SONIC would have under this Permit and applicable law as if the work were performed by SONIC. SONIC shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with this Permit and applicable law, shall be responsible for all acts or omissions of contractors or subcontractors, and shall implement a quality control program to ensure that the work is properly performed. This section is not meant to alter tort liability of SONIC to third parties. 13. SONIC agrees to keep said Network Facilities in good and safe condition and free from any nuisance. IDENTIFICATION OF NETWORK FACILITIES 14. SONIC shall identify the Network Facilities installed in each Right -of -Way by means of an identification method that complies with applicable provisions of the San Rafael Municipal Code and current versions of CPUC General Orders 95 and 128, and also as directed by the Director. Such identification shall be detectable from ground level without opening the street. To prevent conflicts between SONIC'S Network Facilities and public facilities in the same location, SONIC shall notify USA of the location of its Network Facilities for the benefit of future construction projects which may need to be aware of the presence of the Network Facilities within the Public Right -of -Way. The failure of any party to identify SONIC's facilities in the Right -of -Way shall not create any claim or right against the CITY, and as set forth elsewhere in this Permit, SONIC shall indemnify and hold harmless, and defend CITY from any and all costs. WARRANTIES OF SONIC 15. SONIC warrants that at all times during this Permit it shall offer intrastate and interstate Telecommunications Services in California pursuant to its Certificates of Public Convenience and Necessity received from the CPUC. 16. SONIC hereby warrants that the types of service offered to its customers through the Network Facilities in Public Right -of -Way include business and/or residential Telecommunication Services, and the facilities it plans to install are consistent with its Certificates of Public Convenience and Necessity. bocuSign Envelope ID: 41DFFCFD-2757-4A55-94EE-6E84C1F4842F 17. The terms of this Permit are based on the type of equipment, and service and/or product which SONIC carries over the Network Facilities installed in the Public Right -of - Way. SONIC acknowledges that any change in service or change in the law may increase or decrease the CITY's regulatory authority over such services, product, and SONIC's use of Public Right -of -Way, and may require modification of this Permit. NO FRANCHISE RIGHTS CREATED 18. Nothing in the Permit shall be construed as granting or creating any franchise rights. NO OWNERSHIP OR VESTED INTEREST CREATED 19. No use of any Public Right -of -Way or other interest or property under this Permit shall create or vest in SONIC any ownership or other interest in the Public Right -of -Way, streets or any other property or interest of the CITY. PROPERTY INTEREST TAXATION 20. SONIC shall be solely responsible for and shall pay all taxes assessed against the Network Facilities. Pursuant to California Revenue and Taxation Code section 107.6, SONIC is notified that the property interest acquired by SONIC under this permit may be subject to property taxation as a possessory interest in real property, and SONIC may be subject to the payments of property taxes levied on that interest. SONIC shall reimburse the CITY for any tax, penalties, costs, delinquencies, or other fees that may be imposed with respect to SONIC's use of the Public Right -of -Way under this Permit within thirty (30) days of receipt of written notice and reasonable evidence thereof, following the expiration of any rights of SONIC to appeal or challenge the imposition of such taxes, penalties, costs, or delinquencies. REMOVAL AND RELOCATION 21. In the event of an emergency where SONIC's Network Facilities create or are contributing to an imminent danger to health, safety or property, CITY shall make reasonable efforts to provide SONIC with prior notice so that SONIC may modify its Network Facilities to address such danger. If such emergency does not allow SONIC the time required to address such danger, CITY may remove, relay or relocate any or all parts of those Network Facilities. 22. SONIC, after receiving at least thirty (30) days prior written notice pursuant to applicable provisions of section 11.04.060.070 (B) of the San Rafael Municipal Code, shall diligently relocate its facilities to accommodate projects or needs of CITY; provided, however that the Director may specify a shorter notice period in case of an emergency. 23. SONIC shall remove or relocate, without cost or expense to CITY, any Network Facilities installed, used and maintained under this Permit if and when made necessary by any lawful vacation, abandonment, change of grade, alignment or width of any street, including the construction, maintenance or operation of any underground subway or DocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F41342F viaduct by CITY and/or the construction, maintenance or operation of any other CITY underground or aboveground facilities needed for CITY purposes. This relocation obligation shall be deemed to include any establishment by the CITY of any undergrounding district requiring the undergrounding of utilities in the Public -Right -of - Way. Any such removal or relocation obligation shall comply with California Public Utilities Code Section 7901.1. 24. In the event all or any portion of said Public Right -of -Way occupied by said Network Facilities shall be needed by CITY for governmental purposes, SONIC shall, by written direction of CITY's Public Works Director, remove and relocate said Network Facilities to such other location or locations on said Public Right -of -Way as may be proposed by SONIC and agreed to by CITY. Said removal and relocation shall be completed within the timeframe noticed by the CITY pursuant to applicable provisions of section 11.04.060.070 (B) of the San Rafael Municipal Code. In the event said Network Facilities are not removed or relocated within the timeframe noticed, CITY may cause the same to be done at the sole expense of SONIC. 25. SONIC shall, by a time specified by CITY, protect and support, or temporarily relocate, any of its Network Facilities when required by CITY by reason of emergency conditions associated with traffic conditions; public safety; Public Rights -of -Way construction; Public Rights -of -Way maintenance or repair (including resurfacing or widening); change of Public Rights -of -Way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of government -owned communication system, public work or improvement by any government -owned utility; or Public Right -of -Way vacation. 26. In those areas and portions of the CITY where the facilities of all telecommunications utilities are underground or hereafter may be placed underground, then SONIC shall likewise construct, operate and maintain its Network Facilities underground in such areas. The CITY shall not in any manner be responsible for any costs incurred by SONIC in placing SONIC's facilities underground. 27. If any portions of the Network Facilities covered under this Permit other than redundant facilities or facilities for emergency use are no longer used by SONIC, or are abandoned for a period in excess of one (1) year, SONIC shall notify CITY and shall either promptly vacate and remove the facilities at its own expense or, at the discretion of the Director, may abandon some or all of the facilities in place. Notwithstanding the foregoing, this section shall not apply to Network Facilities installed to meet future demand or needs for capacity. 28. When removal or relocation is required under this Permit or the San Rafael Municipal Code, SONIC shall, after the removal or relocation of the Network Facilities, at its own cost, repair and return the Public Right -of -Way in which the facilities were located to a safe and satisfactory condition in accordance with the construction -related conditions and specifications as established by CITY. Before proceeding with removal or relocation work, SONIC shall obtain and CITY shall issue a street encroachment permit from the CITY. Should SONIC remove the Network Facilities from the Public Right -of -Way, SONIC shall, within ten (10) days after such removal, give notice thereof to CITY 6 bocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F4B42F specifying the Public Right -of -Way affected and the location thereof as well as the date of removal. ENCROACHMENT PERMITS AND FEES 29. Issuance of this Permit shall not relieve SONIC from the duty to apply for an encroachment permit (and such other permits as may be required) for each work and each job within the Public Right -of -Way or public utility or service easements. SONIC shall furnish detailed plans of the work and other such information as required by the Director and shall pay all processing, field marking, engineering and inspection fees prior to issuance of permit in accordance with the rates in effect at the time of payment. Said improvements shall be constructed and installed in accordance with the San Rafael Municipal Code, CITY's standard specifications and conditions of approval, and as further provided for in the provisions of this Permit. 30. Any encroachment permit shall set forth the description of the Network Facilities to be installed and the Public Right -of -Way in which such facilities are to be located. CITY shall establish construction -related conditions and specifications, and these shall also be set forth in the encroachment permit. SONIC shall provide plat maps and location information to CITY providing the identification and location of any future facilities. Following construction, SONIC shall provide as -built construction drawings of the facilities and shall further notify USA of the location of the facilities. PERFORMANCE BOND 31. Unless specified otherwise in the encroachment permit, SONIC shall provide CITY with a performance bond naming CITY as obligee in the amount equal to one hundred percent (100%) of the value of the subsurface work to be performed by or on behalf of SONIC within and affecting the Public Right -of -Way to guarantee and assure the faithful performance of SONIC's obligations under each encroachment permit. CITY shall have the right to draw against the performance bond in the event of a default by SONIC or in the event that SONIC fails to meet and fully perform any of its obligations. The form of the performance bond shall be approved by the CITY. The performance bond shall remain in full force until the work to be performed is complete, inspected and accepted by the Director and is released by CITY. DAMAGE TO FACILITIES IN PUBLIC RIGHT-OF-WAY 32. SONIC shall be responsible for any damage to CITY street pavements, existing utilities, curbs, gutters, sidewalks and all other public or private facilities due to its construction, operation, installation, maintenance, repair or removal of its Network Facilities in Public Right- of -Way, and shall repair, replace and restore such damaged facilities at is sole expense within 30 days of demand by the CITY. 33. Any premature deterioration of surface and subsurface improvements, such as pavement or concrete over the facility or trench or adjacent area, or reduction in the life of the Right -of -Way as reasonably determined by Director, which results from SONIC's acts or omissions shall be the responsibility of SONIC. SONIC shall complete all necessary 7 DocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F41342F repairs within thirty (30) days of notification by Director. If SONIC fails to make repairs within thirty (30) days of notice, CITY may have repairs made with the cost being billed to SONIC. If the repair cannot fully reverse the deterioration or loss of life of the Right - of -Way, the CITY may require SONIC to pay for the damage suffered as a result. PREEXISTING INSTALLATIONS 34. If the portions of the Public Right -of -Way to be used by SONIC have preexisting installation(s) placed in the said Right -of -Way, SONIC shall assume the responsibility to verify the location of the preexisting installation(s) and notify CITY of SONIC's proposed installation. The cost of any work required of CITY to provide adequate space or required clearance to accommodate SONIC's installation shall be borne solely by SONIC. RECORDS AND FIELD LOCATIONS 35. SONIC shall maintain accurate maps and improvement plans of said Network Facilities located within the City. SONIC shall, upon demand of the Director, deliver to the office of the Public Works Department free of charge within ten (10) days after such demand, such maps and plans as may be required to show in detail the exact location, size, depth, and description of all Network Facilities installed within said Public Right -of -Way. Upon completion of construction, SONIC shall deliver as -built construction drawings in the form and format as may be requested by the Director and shall deliver such as -built construction drawings for any Network Facilities already existing in the Public Right -of - Way to the Director that may be requested by the CITY. 36. SONIC shall be a member of the regional notification center for subsurface installations (Underground Service Alert) and shall field mark, at its sole expense, the locations of its underground Network 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. 37. SONIC's facilities shall be subject to such inspection by the CITY, as the CITY finds appropriate to request in the exercise of its rights under this Permit and its jurisdiction over SONIC. HOLD HARMLESS AND INDEMNIFICATION 38. SONIC, jointly and severally, for itself, its successors, agents, and SONIC's employees, agrees to indemnify, defend (with counsel reasonably acceptable to CITY) and hold harmless CITY, its officers, employees and agents and any successors to CITY's interest from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and cleanup actions of any kind, all costs and expenses incurred in connections therewith, including, without limitation, reasonable attorney's fees and costs of defense (collectively, the "Losses") arising directly or indirectly out of the activities or Network Facilities described in this Permit and/or the installation, construction, operation, maintenance, removal and/or repair of the improvement and facilities thereto. However, SONIC shall not indemnify the CITY, its officers, employees DocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F41342F and agents and any successors to CITY's interest for Losses arising directly or indirectly, from the CITY's sole negligence or willful misconduct or criminal acts. CITY shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by CITY, except for acts which constitute the CITY's sole negligence or willful misconduct or criminal acts, or by any third party, including, without limitation, damages, losses or liability arising from the issuance by the CITY of a permit or approval to any third party or any interruption in service. SONIC's indemnity obligations set forth above shall apply to Losses directly or indirectly arising out of the use, generation, manufacture, production, storage, release, threatened release, discharge, disposal or presence of a hazardous substance. This indemnity will apply whether the hazardous substance is on, under or about the Property or associated with the Work. The term "hazardous substance" means any substance, material or waste that is or becomes designated or regulated as toxic, hazardous, pollutant, or contaminant or a similar designation or regulation under any federal, state or local law. SONIC, for itself and its successors and assigns, hereby waives all claims and causes of action, whether now existing or hereafter arising, against CITY or its officers, agents or employees, for damages, physical or otherwise, to any of the facilities covered by this Permit from any cause whatsoever excluding those arising as a result of the CITY's sole negligence or willful misconduct or criminal acts. Under no circumstances shall either party be liable to the other party or otherwise be responsible for any loss of service downtime, lost revenue or profits or third -party damages. 39. SONIC shall be responsible for the satisfaction or payment for any provider of work, labor, material, or services claiming by, through, or under this Permit. Licensee shall also indemnify, hold harmless, and defend CITY against any such liens, including the reasonable fees of CITY's attorneys. Such liens shall be discharged by SONIC within thirty (30) days after notice of filing thereof by bonding, payment, or otherwise, provided that SONIC may contest, in good faith and by appropriate proceedings, any such liens. 40. Notwithstanding any other provision of this Permit, in no event shall CITY be liable to SONIC for consequential damages, or loss of or interference with SONIC's business, including without limitation lost profits. SONIC's use of the Public Right -of - Way shall be at its sole risk. 41. The indemnity, defense and waiver provisions of this Permit shall survive termination of this Permit. INSURANCE 42. SONIC shall maintain adequate insurance during the entire term of this Permit against claims for injuries to persons or damages to property which in any way relate to, arise from, or are connected with the installation or use of communication equipment and Network Facilities in the Public Right(s)-of-Way by SONIC, or any entity acting on its behalf, and shall keep insurance in effect in accordance with the minimum insurance scope the CITY may set from time to time. DocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F4642F 43. Worker's Compensation Insurance: SONIC shall obtain and maintain at all times statutory Workers' Compensation insurance and Employer's Liability insurance in the amount of One Million Dollars ($1,000,000) per accident. 44. Commercial General Liabilitv/Automobile Liability lnsurance: SONIC shall require any contractor performing work in the Public Right -of -Way to obtain Commercial General Liability insurance including operations, products and completed operations and Automobile Liability insurance in the amount of Five Million Dollars ($5,000,000) per occurrence. If a general aggregate limit is used, either the general aggregate limit shall apply separately to the contract or the general aggregate limit shall be twice the required occurrence limit. Such insurance coverage shall be written on an occurrence basis, and shall be in the policy form of Insurance Services Office (ISO) Form CG 00 01 covering CGL or an equivalent form as approved by CITY. 45. Acceptability of Insurers: Insurance is to be placed with insurers admitted and duly authorized to transact business under the laws of the State of California and with a current Best Rating of A:VII unless otherwise acceptable to CITY. 46. Verification ofCoveral;e: Insurance, deductibles or self-insurance retentions shall be subject to CITY's approval. Original Certificates of Insurance with endorsements shall be received and approved by CITY before work commences, and insurance must be in effect for the duration of this Permit. 47. Other Insurance Provisions: a. The City of San Rafael, its officers, officials, employees, agents and volunteers are to be covered and named as additional insureds, by a comprehensive commercial general liability endorsement no less than Endorsement CG 20 10, GC 11 85 or equivalent. b. For any claims related to this Permit, SONIC's insurance coverage, or that of its contractor, shall be primary and non-contributory with respect to any insurance or program of self-insurance maintained by the CITY, and in a policy form at least as broad as ISO CG 20 01 04 13. C. Each insurance policy required shall be endorsed to provide that it shall not be cancelled or modified without a thirty (30) day notice first provided to the CITY in the event of cancellation or modification to the stipulated insurance coverage. d. SONIC shall ensure that all contractors and subcontractors comply with the same insurance requirements that are stated in this Permit. e. SONIC agrees to waive rights of subrogation which any insurer of SONIC may acquire against the CITY by virtue of the payment of any loss. SONIC agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the CITY for all work performed by the SONIC its employees, agents, contractors, and subcontractors. SONIC shall also require any 10 bocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F4B42F contractor performing work in the Public Right -of -Way to waive rights of subrogation for the benefit of the CITY. ASSIGNMENT 48. SONIC shall not assign, sublet or transfer any interest in this Permit nor the performance of any SONIC's obligations hereunder, without the prior written consent of CITY, which shall not be unreasonably withheld, and any attempt by SONIC to so assign this Permit or any rights, duties or obligations arising hereunder shall be void and of no effect. The transfer of the rights and obligations of SONIC to a parent, successor, subsidiary, or other affiliate of SONIC shall not be deemed an assignment for the purposes of this section. For the purposes of this section, the leasing or granting in the ordinary course of business of indefeasible rights of use or similar rights in dark fiber, fiber optic capacity, conduit and other network elements shall not require the express consent of the CITY, so long as SONIC remains solely responsible for locating, placing, installing, maintaining, relocating and removing the Network Facilities. ENFORCEMENT 49. This Permit shall be governed by California law, and venue will be in the Marin County Superior Court, or the Federal District Court for the Northern District of California, depending on the issues in dispute. SONIC shall be responsible for CITY's attorneys' fees and costs in any action in which the CITY prevails to enforce the provisions of this Permit or encroachment permits issued hereunder. TERM AND TERMINATION 50. The initial term of this Permit shall be ten (10) years from the effective date. This Permit shall automatically renew for additional ten (10) year renewal terms unless and until terminated by the agreement of both Parties. 51. This Permit may be terminated without the mutual agreement of the Parties under the following circumstances: a. This Permit may be terminated by either Party for failure, neglect or refusal by the other Party to fully and promptly comply with any and all of the material conditions of this Permit, upon thirty (30) days written notice to the non- complying Party; provided, however, that if compliance cannot be achieved within thirty (30) days after such written notice, this Permit shall not be terminable so long as the non -compliant Party begins to cure their non- compliance within thirty days after such written notice and diligently pursues compliance. b. This Permit may be terminated if the Certificates of Public Convenience and Necessity terminate, are revoked, or are abandoned. 52. Upon termination of the Permit, and upon written demand by CITY, SONIC, at its own cost and expense, shall remove, or at CITY's discretion, abandon in place some or all DocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F41342F of its Network Facilities from the Public Right -of -Way and restore the Public Right -of - Way as set forth in the Removal and Relocation provisions of this Permit. Should SONIC in such event fail, neglect or refuse to make such removals or restoration with three hundred sixty five (365) days of CITY's written request, at the sole option of CITY, such removal and restoration may be performed by CITY at the expense of SONIC, which actual expense including administrative costs SONIC agrees to pay CITY upon demand. If CITY allows SONIC to abandon its Network Facilities in place, title to those Network Facilities shall pass to CITY and SONIC shall, upon demand, promptly execute and deliver to CITY all documentation necessary to effectuate such transfer of ownership of the Network Facilities. Upon such transfer of ownership after abandonment and acceptance by CITY, SONIC shall have no further obligations or liabilities under this Permit, with the exception of the repair obligations delineated in Sections 32 and 33 above. 53. In the event of termination or expiration of this Permit, the indemnity, defense, and relocation provisions of this Permit shall survive. NOTICE 54. SONIC's Network Operations Center shall be available to CITY staff 24 hours a day, 7 days a week, regarding problems or complaints resulting from the facilities installed pursuant to this Permit and may be contacted by telephone at 1-877-706-5662 regarding such problems or complaints. SONIC shall promptly respond to such call(s) and perform the required repair or correct any adverse impact to CITY's use or operations or the use or operations of a third party caused by SONIC's Network Facilities in the Public Right(s)- of-Way at no cost to CITY. 55. All notices given or which may be given pursuant to this Permit shall be in writing and transmitted by United States mail or by private delivery systems as follows: To CITY: City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 Attn: Director of Public Works cc to: dpwpermits@cityofsanrafael.org To SONIC: Sonic Telecom, LLC 2260 Apollo Way Santa Rosa, CA 95407 Attn: Regulatory Department cc to: Sonic Regulatory@Sonic.com ENTIRE UNDERSTANDING OF THE PARTIES 56. This Permit contains the entire understanding between the Parties with respect to the subject matter herein. There are no representations, agreements or understanding (whether oral or written) between or among the Parties relating to the subject matter of this Permit which are not fully expressed herein. This Permit may be not amended except as authorized by the San Rafael Municipal Code or by the written acknowledgement thereof signed by both Parties. [Signatures are on the following page.] 12 bocuSign Envelope ID: 41 DFFCFD-2757-4A55-94EE-6E84C1 F4642F IN WITNESS WHEREOF, the City of San Rafael and Sonic Telecom, LLC agree to be bound thereby, as of the day, month and year first above written. CITY OF SAN RAFAEL: Cris- ine Alilovioh for7-S Q tstine Alilovich for JS IJun 11, 2023 A 35 PDT) JIM SCHUTZ, City Manager APPROVED AS TO CONTENT: Public Works Department A&ke- By: APRIL MILLER, Director of Public Works APPROVED AS TO FORM: Office of the City Attorney By: GENEVIEVE COYLE, Assistant City Attorney ATTEST: City Clerk Lindsay Ur. un 1: "9.10 VDP, By: LINDSAY LARA City Clerk 13 SONIC TELECOM, LLC: FV DocuSrgned uy AAAL W.rtir 5512.__ By: 4anci Jasper Title: Chief Executive Officer FfJ—"Signed by 33 By: Nathan Patrick Title: Chief Technology Officer CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Nataly Torres (for Megan Kelly) Extension: 3353 Contractor Name: Sonic Telecom, LLC Contractor's Contact: Patti Ringo Contact's Email: patricia.ringo@sonic.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to ❑ enter a date. b. Email contract (in Word) and attachments to City N/A Attorney c/o Laraine.Gittens@cityofsanrafael.org 4/28/2023 ❑ 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager 4/28/2023 ® GC b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor Approval of final agreement form to send to ® GC 3 Department Director Click or tap 0 contractor to enter a date. 4 Project Manager Forward three (3) originals of final agreement to 5/1/2023 ER contractor for their signature When necessary, contractor -signed agreement 5 Project Manager ❑X N/A agendized for City Council approval * "City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5/18/2023 NT 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement Review and approve insurance in PINS, and bonds 8 City Attorney (for Public Works Contracts) 9 City Manager / Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager Sonic - Master Encroachment Permit Final Audit Report 2023-06-12 Created: 2023-05-18 By: Nataly Torres (nataly.torres@cityofsanrafael.org) Status: Signed Transaction ID: CBJCHBCAABAA8vhTPwbZZk-pi3tB92EWaOz6KkeF-dds "Sonic - Master Encroachment Permit" History do Document digitally presigned by DocuSign\, Inc.(enterprisesupport@docusign.com) 2023-05-10 - 4:53:48 PM GMT Document created by Nataly Torres (nataly.torres@cityofsanrafael.org) 2023-05-18 - 8:17:38 PM GMT C'y Document emailed to APRIL MILLER (april.miller@cityofsanrafael.org) for signature 2023-05-18 - 8:33:29 PM GMT Email viewed by APRIL MILLER (april.miller@cityofsanrafael.org) 2023-05-19 - 3:50:42 PM GMT Goo Document e-signed by APRIL MILLER (april.miller@cityofsanrafael.org) Signature Date: 2023-05-19 - 3:51:25 PM GMT - Time Source: server L`4 Document emailed to Laraine Gittens (laraine.gittens@cityofsanrafael.org) for approval 2023-05-19 - 3:51:27 PM GMT Email viewed by Laraine Gittens (laraine.gittens@cityofsanrafael.org) 2023-05-24 - 5:44:08 PM GMT E', New document URL requested by Laraine Gittens (laraine.gittens@cityofsanrafael.org) 2023-06-01 - 10:41:11 PM GMT Email viewed by Laraine Gittens (laraine.gittens@cityofsanrafael.org) 2023-06-01-10:42:19 PM GMT &0 Document approved by Laraine Gittens (laraine.gittens@cityofsanrafael.org) Approval Date: 2023-06-01 - 10:42:45 PM GMT -Time Source: server E-41 Document emailed to Genevieve Coyle(genevieve.coyle@cityofsanrafael.org) for signature 2023-06-01-10:42:46 PM GMT SAN RAFAEL "'Y I Adobe y� riie c*v va.-H A 1­1;01 Acrobat Sign Email viewed by Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) 2023-06-02 - 0:06:36 AM GMT b© Document e-signed by Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) Signature Date: 2023-06-02 - 0:07:27 AM GMT - Time Source: server 17y Document emailed to city.clerk@cityofsanrafael.org for approval 2023-06-02 - 0:07:28 AM GMT Email viewed by city.clerk@cityofsanrafael.org 2023-06-02 - 3:11:20 PM GMT 6© Signer city.clerk@cityofsanrafael.org entered name at signing as Brenna Nurmi 2023-06-02 - 3:11:31 PM GMT 1S0 Document approved by Brenna Nurmi(city.clerk@cityofsanrafael.org) Approval Date: 2023-06-02 - 3:11:33 PM GMT - Time Source: server C'y Document emailed to jim.schutz@cityofsanrafael.org for signature 2023-06-02 - 3:11:35 PM GMT rO Nataly Torres(nataly.torres@cityofsanrafael.org) added alternate signer Cristine.Alilovich@cityofsanrafael.org. The original signerjim.schutz@cityofsanrafael.org can still sign. 2023-06-03 - 0:07:03 AM GMT P'., Document emailed to Cristine.Alilovich@cityofsanrafael.org for signature 2023-06-03 - 0:07:03 AM GMT t Email viewed by Cristine.Alilovich@cityofsanrafael.org 2023-06-03 - 2:31:27 PM GMT ,n Email viewed by Cristine.Alilovich@cityofsanrafael.org 2023-06-11 - 11:34:52 PM GMT 66 Signer Cristine.Alilovich@cityofsanrafael.org entered name at signing as Cristine Alilovich for JS 2023-06-11 - 11:35:17 PM GMT 6o Document e-signed by Cristine Alilovich for JS (Cristine.Alilovich@cityofsanrafael.org) Signature Date: 2023-06-11 - 11:35:19 PM GMT - Time Source: server El Document emailed to city.clerk@cityofsanrafael.org for signature 2023-06-11 - 11:35:20 PM GMT Email viewed by city.clerk@cityofsanrafael.org 2023-06-12 - 4:09:51 PM GMT SAN RAFAEL Ado e� " "s Acrobat Sign bo Signer city.clerk@cityofsanrafael.org entered name at signing as Lindsay Lara 2023-06-12 - 4:10:02 PM GMT 6o Document e-signed by Lindsay Lara(city.clerk@cityofsanrafael.org) Signature Date: 2023-06-12 - 4:10:04 PM GMT - Time Source: server Agreement completed. 2023-06-12 - 4:10:04 PM GMT Powered by 1iR SAN RAFAEL Adobe �� Acrobat Sign