HomeMy WebLinkAboutReso - CC - 036-2019RESOLUTION NO. 36-2019
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME
APPROVING AND AUTHORIZING EXECUTION OF AN ENCROACHMENT
AGREEMENT WITH MCIMETRO ACCESS TRANSMISSION SERVICES CORP.
D/B/A VERIZON ACCESS TRANSMISSION SERVICES FOR INSTALLATION AND
USE OF UNDERGROUND CONDUIT AND AUTHORIZING ENTRY INTO
SUBSTANTIALLY SIMILAR AGREEMENTS IN THE FUTURE
WHEREAS, MClmetro Access Transmission Services Corp. d/b/a Verizon Access
Transmission Services ("MClmetro") is a facilities -based local exchange service with an approved
certificate of public convenience and necessity from the California Public Utilities Commission;
and
WHEREAS, telecommunications service is an important element of life in the San
Francisco Bay Area and in Burlingame specifically; and
WHEREAS, MClmetro`s installation of conduit shall be subject to the terms and conditions
of an encroachment permit and an Encroachment Agreement; and
WHEREAS, the Encroachment Agreement states that MClmetro shall provide the
necessary assurances and covenants so that the installation of the conduit will not interfere with
the use of the property by the City, and MClmetro shall remove or relocate the conduit should the
needs of the City require such action in the future; and
WHEREAS, Council review is not required for future substantially similar Encroachment
Agreements with telecommunications service carriers for the installation of underground conduits.
NOW, THEREFORE, BE IT RESOLVED:
1. The City Manager is authorized to execute the Encroachment Agreement attached as
Exhibit A on behalf of the City of Burlingame.
2. The City Manager is authorized to enter into substantially similar future agreements that
ensure equal or better protections to the City's interests, provided, however, that if any material
terms in a subsequent negotiated agreement differ in a manner that could injure the City's
interests, such agreement must come to Council for approval prior to execution.
Mayor
I, MEAGHAN HASSEL-SHEARER, City Clerk of the City of Burlingame, certify that the
foregoing Resolution was introduced at a regular meeting of the City Council held on the 15th day
of April, 2019, and was adopted thereafter by the following vote:
AYES: COUNCILMEMBERS: aEA&!°l;; BROWNRIGG, COLSON, KEIGHRAN, ORTIZ
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: VIO-�1Gt-1
City Clerk
AGREEMENT BETWEEN THE CITY OF BURLINGAME, CALIFORNIA
AND MCIMETRO ACCESS TRANSMISSION SERVICES CORP. DB/A VERIZON
ACCESS TRANSMISSION SERVICES FOR THE INSTALLATION OF
TELECOMMUNICATIONS FACILITIES
This Agreement is entered into as of , 2019 ("Effective Date") by and
between the City of Burlingame, California, a municipal corporation (the "City") and MCImetro
Access Transmission Services Corp., a Delaware corporation, d/b/a Verizon Access Transmission
Services ("Company").
RECITALS
A. Company is authorized to provide Telecommunications Services (as defined herein)
in the State of California by the California Public Utilities Commission.
B. Company desires to install Facilities (as defined herein) from time to time within the
Public Rights -Of -Way within City in order to provide Telecommunications Services.
C. City has the authority to regulate the terms and conditions for use of the Public Rights -
Of -Way and land use within the corporate limits of the City.
D. The purpose of this Agreement is to provide the general framework within which
Company will apply for necessary encroachment permits and install the Facilities within the
corporate limits of the City. The parties do not intend the Agreement to give Company a right to the
award of any such permits.
AGREEMENT
In consideration of the Recitals set forth above, the mutual promises and terms and conditions
of this Agreement and other valuable consideration, the adequacy of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Company — means Company, and its lawful successors or assigns.
1.2 City — means the City of Burlingame, a municipal corporation of the State of
California, including the duly elected or appointed officers, agents, employees, and volunteers of the
City of Burlingame, individually or collectively.
1.3 City Engineer — The City Engineer of the City of Burlingame, State of California,
acting either directly or through properly authorized agents, such agents acting within the scope of
the particular duties entrusted to them.
1.4 Public Rights -Of -Way or "Rights -Of -Way" — means the surface of and the space
above and below any street, road, highway, right-of-way, alley, easement, pathway, sidewalk and
other public way, including driveway, curb, gutter, paving or other surface and subsurface drainage
structure or facility and any public place, or City property, now or hereafter existing as such within
the City.
1.5 Telecommunications Services — means services that Company is authorized to offer
and/or provide as of the date of this Agreement pursuant to any applicable Certificate of Public
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Convenience and Necessity (CPCN) issued by the California Public Utilities Commission, including
its existing CPCN approved by D98-12-083 which authorizes Company to provide resold and full
facilities -based local exchange service, including access service, in the territories of the five Uniform
Regulatory Framework companies, and interexchange services throughout the State of California.
Telecommunications Services also includes provision by Company of internet access services, data
transport service, cell site front- and back -haul and Facilities leasing to affiliates and third parties.
This Agreement does not authorize Company to install wireless antennas or radios or provide
personal wireless services.
1.6 Facilities — means fiber optic cables, coaxial and copper cables, Ethernet cables,
conduits, converters, splice boxes, cabinets, hndholes, manholes, vaults, equipment, drains, surface
location marker, appurtenances, and related facilities located or to be located in the Public Rights -
Of -Way of the City and used or useful for the transmission of telecommunications or provision of
the means of transmission of telecommunications. This shall not mean commercial radio
transmitting, relaying and/or receiving antennas, antenna support structures and/or ancillary
facilities, including, but not limited to, equipment cabinets, facility components and similar structures
or equipment and/or overhead service/transmission lines used for the purpose of transmitting,
relaying and/or transmitting and/or receiving data, voice and/or paging services.
ARTICLE 2
INSTALLATION AND MAINTENANCE OF FACILITIES
2.1 Permitted Installations. During the term of this Agreement, Company may install,
maintain, operate, relocate and remove the Facilities within the City's Public Rights -Of -Way subject
to the issuance of required encroachment and building permits and approvals. The Facilities shall be
shown and described in permit applications filed with the City Engineer and may be modified by
subsequent permits approved by the City. All Facilities to be installed, maintained, operated,
relocated and removed under this Agreement shall be underground in areas where all existing utilities
are already underground or all new utilities are being installed underground; provided, however, that
in those areas where poles exist and electric and telephone lines are overhead, Company may install
fiber optic cables overhead if using the same poles (subject to the approval of the pole owner and
City); and further provided that whenever and wherever the owner of the poles moves its plant from
overhead to underground placement in an area, all Company's facilities must be relocated and moved
underground as directed by the City Engineer, at Company's expense, and in accordance with then -
existing City practices, policies and regulations.
2.2 No Cost to City. The construction, installation, operation, maintenance, and removal
of any Facilities shall be accomplished (i) without cost or expense to the City and (ii) subject to the
prior approval of the City Engineer. Company shall maintain any such Facilities at all times in good
and safe condition and free from any nuisance to the satisfaction of the City Engineer.
2.3 Compliance with Code. Company shall comply with the provisions of the
Burlingame Municipal Code, as may be amended from time to time (the "Code"), including Title 12
Streets and Sidewalk, Chapter 12.10 Encroachment Permit and, if applicable, Chapter 25 Wireless
Communications Facilities. Company shall also comply with applicable provisions of the City's
Zoning Code, as amended from time to time (the "Zoning Code"). In the event of a conflict between
this Agreement and the Code and/or the Zoning Code, the provisions of the Code and/or the Zoning
Code shall apply.
Page 2 of 15
2.4 Encroachment Permits. All work performed by Company under this Agreement
shall be made pursuant to individual encroachment permits. Company shall obtain encroachment
permits from the City for the installation of the Facilities and for any other work or activities within
the City's Public Rights -Of -Way as required by Chapter 12.10 of the Code. Company shall submit
all plans, schedules, and information required by the Code and the City Engineer, consistent with the
Code and all applicable laws. Company also shall pay all required processing, field marking, plan
review, engineering and inspection costs, cash deposits, bonds or other security required by the City
Engineer, consistent with the Code and all applicable laws, and the City's actual reasonable legal
costs for outside counsel assistance in the preparation of this Agreement, prior to issuance of said
permit in accordance with the City's rates in effect. All work within the Public Rights -Of -Way shall
be performed in strict compliance with the terms and conditions of this Agreement, the Code, and
the pertinent encroachment permit. Once a permit is issued, Company shall commence work and
complete the construction and installation of the Facilities in accordance with the Code and any
construction schedule approved by the City Engineer in the applicable permit.
2.5 Compliance with Laws and Regulations. Company shall at all times during the
duration of this Agreement, comply with all applicable state, federal and local laws and regulatory
requirements, including, without limitation, compliance with Company's Certificates of Public
Convenience and Necessity, the California Environmental Quality Act, zoning laws, and construction
codes. Company shall at all times employ reasonable care so as not to endanger personnel or property
or unreasonably obstruct travel on any Public Rights -Of -Way and shall install, maintain and use
commonly accepted industry methods and devices for preventing failures and accidents that are likely
to cause damage, injury or nuisance to the public or other users of the Public Rights -Of -Way, public
property or private property.
2.6 Coordination of Excavation with Other Permittees. Company shall coordinate
work with other utilities using the Public Rights -Of -Way in accordance with Title 12 of the Code
and the requirements imposed by any applicable encroachment permit.
2.7 Membership In Underground Service Alert. Pursuant to California
Government Code Section 4216.1, Company shall become a member of Underground Service Alert -
Northern California and shall field mark, at its sole expense, the locations of its underground
Facilities upon notification in accordance with the requirements of Section 4216 of the State of
California Government Code, as it now reads or may hereinafter be amended. Company shall
furnish written proof of such membership to the City Engineer within thirty (30) days of obtaining
such membership (or within 30 days of the date of this agreement if such membership has been
obtained prior to the date of this agreement). Repeal or amendment of Government Code Section
4216.1 shall not negate Company's obligation to maintain such membership, unless such repeal or
amendment disbands or eliminates Underground Service Alert -Northern California, and shall not
negate any notice requirement to City. Company shall undertake and perform any work authorized
by this Agreement in a skillful and workmanlike manner, free of defects.
2.8 Facilities Maps. Company shall promptly submit to City accurate as -built maps,
plans and record drawings showing in detail the location, depth, and size of all Company Facilities
in the Public Rights -Of -Way (collectively, the "Maps") within thirty (30) days of a request by the
City Engineer. Such Maps shall be submitted in the form and with the detail reasonably required by
the City Engineer. The Company shall provide, upon demand, copies of the Maps to other third
parties interested in performing work within Public Rights -Of -Way for a reasonable charge
upon request within thirty (30) days after such demand. The Company shall, moreover, at its sole
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cost and expense, pothole its subsurface Facilities to a depth of P below the bottom of its
subsurface Facilities within thirty (30) days of receipt of a written request from the City to do
SO.
2.9 Contractors. Any contractor or subcontractor used for the construction, installation,
operation, maintenance or repair of the Facilities must 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 Company would have under this Agreement and applicable
law if the work were performed by Company. Company shall be responsible for the work of its
contractors and subcontractors and that such work is performed consistent with this Agreement and
applicable law, shall be responsible for all acts or omissions of contractors or subcontractors, and
shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor.
This section is not meant to alter tort liability of Company to third parties.
ARTICLE 3
LIMITATIONS AND RESTRICTIONS
3.1 Nothing in this Agreement shall be construed as granting or creating any franchise
rights.
3.2 This Agreement is not a grant by City of any property interest but is made subject and
subordinate to the prior and continuing right of City to use all the Public Rights -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 electric and telephone wires, electroilers, cable television and other
utility and municipal uses together with appurtenances thereof and with right of ingress and egress,
along, over, across and in said Public Rights -Of -Way.
3.3 This Agreement shall not create a vested right of any nature in Company to use the
Public Rights -Of -Way. This Agreement is made subject to all easements, restrictions, conditions,
covenants, encumbrances and claims of title which may affect the Public Rights -Of -Way, and it is
understood that Company, at its own cost and expense, shall obtain such permission as may be
necessary consistent with any other existing rights. No reference herein to "Public Rights -Of -Way"
shall be deemed to be a 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. It is not a warranty of title
or interest in any Public Rights -Of -Way. It does not confer rights other than as expressly provided in
the grant hereof, and, except for rights Company has under federal or state law, Company shall be
deemed to gain only those rights to use as are properly in City and as City may have the undisputed
right and power to give.
3.4 This Agreement only authorizes Company to use the portions of the Public Rights -
Of -Way specifically described in one or more encroachment permits if and when issued by the City.
It does not require the City to approve any particular encroachment permit applications (provided
City is acting consistent with applicable laws and regulations), nor does it provide Company with
any interest in any particular location within the Public Rights -Of -Way. This Agreement shall not be
deemed to approve any particular design or installation technique. Certain specific physical design
aspects of the Facilities and detailed approvals of the installation of the Facilities will occur through
the issuance of specific permits and approvals by the City.
Page 4 of 15
3.5 If Company proposes and is authorized by the Public Utilities Commission of
California or the Federal Communications Commission to provide cable service (as such terms is
defined in 47 U.S.C. § 522) and/or wireless telecommunications services to customers within the
corporate limits of City, Company shall notify City in writing, as soon as practicable, but in no event
later than thirty (30) days following such as decision by the California Public Utilities Commission
and comply with City's applicable local ordinances, including any fee, franchise and/or permit
requirements. Company acknowledges that any expansion or change in the character and nature of
the services in general may increase City's regulatory authority over such service and/or product, and
this may, at City's election, require Company to enter into a new Agreement consistent with the
requirements of an existing or hereinafter -enacted City ordinance regulating such services, if all or
any part of such services fall under the regulation, jurisdiction and authority of City.
3.6 This Agreement shall be for the non-exclusive use of the Public Rights -Of -Way. By
executing this Agreement, City does not agree to restrict the use of the Public Rights -Of -Way in all
or any part of the City by any person in the same business, a related business, or a competing business
as Company.
3.7 Company is not authorized to use any City property located outside of the Public
Rights -Of -Way nor any City -owned infrastructure located within the Public Rights -Of -Way without
the prior express written agreement of the City.
ARTICLE 4
REQUIRED CASH DEPOSIT OR BOND
4.1 Security. Company will furnish and deliver to City, the following securities, each of
which must be issued by a surety company duly and regularly authorized to do general surety business
in the State of California, or such other surety as may be acceptable to the City Engineer:
(a) Performance Security. Company shall furnish and deliver a surety
security (the "Durable Performance Security"), naming the City of Burlingame as the obligee, in the
amount of not less than one hundred percent (100%) of the estimated cost of the installation Work or
concurrently with the execution of this Agreement, which security must be reasonably acceptable to
the City Engineer. The Durable Performance Security shall be conditioned upon the faithful
performance of this Agreement and any work performed thereunder and shall be released by City
one-year following the termination of this Agreement. This one (1) year period is to guarantee that
any work is of good quality and free from any defective or faulty materials or workmanship. City
may draw on the Durable Performance Security in the event of a default by Company or in the event
that Company fails to fulfill any of its obligations under this Agreement. City may also draw on the
Durable Performance Security to cover any reimbursements owed to City by Company. If City draws
on the Durable Performance Security, it will notify Company of the amount drawn, and Company
will promptly restore the Durable Performance Security to the full amount of not less than one
hundred percent (100%) of the estimated cost of the installation Work. Upon completion of the
installation Work, Company will replace the existing Durable Performance Security with an ongoing
Durable Performance Security in the amount of $25,000 for the term of this Agreement, including
all Renewal Terms. In the event that a bond issued pursuant to this Section of this Agreement is
canceled by the surety, after proper notice and pursuant to the terms of said bond, Company shall,
prior to the expiration of said bond, procure a replacement bond that complies with the terms of this
Section of this Agreement.
Page 5 of 15
4.2 Additional Security.
4.2.1 Whenever Company applies for an encroachment permit to perform work
under this Agreement, it will provide City with an estimate of its cost for the work, including
estimated labor costs. If City, in its sole discretion, determines that the Durable Performance Security
provides insufficient security in relation to the proposed work, it may require Company to obtain an
additional performance security in an amount City determines necessary to provide adequate security,
but not in excess of the estimated cost of the work Company will perform (an "Additional
Performance Security"), which security must be reasonably acceptable to the City Engineer. Each
Additional Performance Security shall be conditioned upon the faithful performance of this
Agreement and any work performed thereunder and shall be accepted by City one-year following the
date the work for which it was obtained is completed, inspected, and accepted by the City Engineer.
With respect to any proposed work, City may recover against both the Durable Performance Security
and any applicable Additional Performance Security obtained to insure that work. If City draws on
any Additional Performance Security, it will notify Company of the amount drawn, and Company
will promptly restore such Additional Performance Security to its full original amount.
4.3 Recovery. So long as any securities described in Section 4.2 and 4.3 remain in place
(each an "Existing Security"), they may be utilized by the City as provided herein for reimbursement
of the City by reason of Company's failure to pay the City for actual costs and expenses incurred by
the City with respect to the Facilities, including any expenses for removal under this Agreement.
4.3.1 In the event Company has been declared by the City to be in default of a
material provision of this Agreement and if Company fails, within 30 days of receipt of the City's
written default notice, to perform any of the conditions of this Agreement, or fails to begin to perform
any such condition that may take more than 30 days to complete, and provided that Company has not
been affected by a force majeure or other event beyond its control, City may thereafter obtain from
the applicable Existing Security, after proper claim is made to the surety, an amount sufficient to
compensate the City for its actual damages and/or expenses. Upon such withdrawal from an Existing
Security, the City shall notify Company in writing, by First Class Mail, postage prepaid, of the
amount withdrawn and the date thereof.
4.3.2 Thirty days after receipt of City's written notice of the cash deposit or bond
forfeiture or withdrawal authorized herein, Company shall deposit such further cash or bond, or other
security, as the City may require, which is sufficient to bring the amount of each Existing Security
back to its original amount.
4.3.3 The rights reserved to the City with respect to any Existing Security are in
addition to all other rights of the City whether reserved by this Agreement or authorized by law, and
no action, proceeding, or exercise of a right with respect to any cash deposit or bond shall constitute
an election or waiver of any rights or other remedies the City may have.
4.4 Other Security Provisions.
4.4.1 If any Existing Security is a corporate surety bond and, in the reasonable
opinion of the City, any surety or sureties thereon become insufficient, Company shall renew or
replace any such surety with good and sufficient surety or sureties within ten (10) days after receiving
from City written demand thereof.
Page 6 of 15
4.4.2 Any Existing Security consisting of corporate surety bonds shall be kept on
file with the City Engineer. If a corporate surety bond is replaced by another approved bond, the
replacement shall be filed with the City Engineer and made a part of and incorporated into this
Agreement. Upon filing and approval by the City Engineer of a replacement bond, the former
Existing Security shall be released.
4.4.3 If there is an increase to the estimated cost of any work, City may require
Company to increase the amount of any Additional Performance Security and/or Additional Payment
Security so that the applicable securities cover the entire estimated cost of the work. In addition, if
there is any increase to the estimated cost of any work, City may also require Company to obtain an
Additional Performance Security and/or Additional Payment Security even if such additional security
had not been originally required with respect to the work.
ARTICLE 5
TERM AND TERMINATION
5.1 Duration. This Agreement shall remain in force for ten (10) years, subject to the
City's authority to regulate the terms and conditions of Company's use of the Public Rights -Of -Way,
and its right to terminate the Agreement pursuant to Section 5.2 below. If none of the grounds for
termination listed in Section 5.2 exist at the end of the initial term (or any Renewal Term), the
Agreement shall automatically renew for a one (1) year period (a "Renewal Term") on the same
terms and conditions unless either party provides written notice to the other party at least six (6)
months prior to the expiration of the then -current term stating it does not wish to renew the
Agreement. For the sake of clarity, at the end of each Renewal Term this Agreement will renew for
an additional Renewal Term unless it is terminated as described in the preceding sentence. In the
event that Company loses its authorizations to use the Public Rights -Of -Way, including any CPCN,
at any time during the initial term or a Renewal Term, then this Agreement shall automatically
terminate.
5.2 Termination. The City may terminate this Agreement by giving thirty (30) days
written notice of termination upon the occurrence of any of the following:
5.2.1 Reasonable determination by City that the provisions herein interfere with the
use or disposal of the Public Rights -Of -Way or any part thereof by City. Where only a portion of
Company's Facilities interfere with the use or disposal of the Public Rights -Of -Way, the City, at its
sole discretion, may elect to require Company to relocate the said portion in accordance with Article
6 of this Agreement.
5.2.2 For failure, neglect, or refusal by the Company to fully and promptly comply
with any and all of the conditions of this Agreement, or for nonuse in accordance with Section 6.2
herein, unless Company confirms within thirty (30) days of receipt of the notice that the cited
condition has ceased, been corrected or, subject to the City's reasonable agreement, is diligently
being pursued by the Company;
5.2.3 An order entered by a court of competent jurisdiction approving a petition in
bankruptcy or ordering the dissolution, winding up or liquidation of Company or appointing a
custodian, receiver, trustee, or other officer to administer a substantial part of Company's property.
Page 7 of 15
5.2.4 The revocation, expiration or other loss of applicable permits or authorizations
required by City, state or federal law for the use, maintenance or operation of the Facilities.
5.3 Occupancy/Removal/Abandonment upon Termination. Unless Company has
another basis for its authorization to remain in the right-of-way, Company shall discontinue use of
the Facilities immediately upon termination of this Agreement and within one hundred and twenty
(120) days after termination of this Agreement, Company shall either completely remove the
Facilities at Company's sole cost and expense or, with City approval, abandon the Facilities in place.
The provisions of Articles 6.2-6.4 shall govern any such removal or abandonment. Notwithstanding
the foregoing, the City Engineer may require a shorter period due to exigent circumstances and may
authorize a longer period if it is in the public interest. If Company fails to remove the Facilities
within the prescribed time period and the City has not approved abandonment in place, and Company
has not been subject to a force majeure or other event beyond its control, the City may remove the
Facilities at the expense of Company, and Company shall promptly reimburse the City for any and
all expenses, including but not limited to administrative, legal and consultant costs, within thirty (30)
days after receiving an invoice from the City.
ARTICLE 6
REMOVAL, RELOCATION AND ABANDONMENT
6.1 Upon receipt of a written demand from the City, Company, at its sole cost and
expense, shall remove and relocate any Facilities installed, used and/or maintained by Company
under this Agreement when such removal or relocation is made necessary (a) due to any work
proposed to be done by or on behalf of the City or other governmental agency, including but not
limited to, any change of grade, alignment or width of any street, sidewalk or other public facility,
installation of curbs, gutters or landscaping and installation, construction, maintenance or operation
of any underground or aboveground facilities such as sewers, drains, pipes, power lines, and tracks
or (b) due to a reasonable determination by the City that the Facilities are detrimental to
governmental activities. Company shall complete the removal or relocation within ninety (90) days
of receipt of notice from the City or according to an agreed upon schedule with the City of no less
than ninety (90) days. Notwithstanding the foregoing, the City Engineer may require a shorter period
due to exigent circumstances and may authorize a longer period if it will not delay the public project.
If Company fails to remove or relocate the facilities within the prescribed time period and Company
has not been subject to a force majeure or other event beyond its control that would prevent removal
and/or relocation, City may remove the facilities at the expense of Company, and Company shall
promptly reimburse the City for any and all expenses, including administrative, legal and consultant
costs, within thirty (30) days after receiving an invoice from the City. Any removal or relocation
work by Company shall only be done pursuant to an encroachment permit. All of the foregoing shall
be subject to all applicable rules, requirements and procedures of the California Public Utilities
Commission.
6.2 Abandonment of Facilities. If any portion of the Facilities laid, installed, or
constructed in the Public Rights -of -Way, other than redundant Facilities or Facilities for emergency
use, are no longer used by Company or are abandoned for a period in excess of six (6) months,
Company must notify the City Engineer and promptly submit all necessary applications for permits
prior to commencing work to vacate and remove the Facilities. Alternatively, in its sole discretion
the City may allow Company to abandon the Facilities, or any part thereof, in place and convey the
Facilities to the City.
Page 8 of 15
6.3 If Company fails to remove the Facilities as required by the City pursuant to Section
6.2 and provided Company has not been subject to a force majeure or other event beyond its control
that would prevent removal, the City may, in its sole discretion, after providing written notice to
Company (a) remove the Facilities at Company's sole expense, which expense Company shall
promptly reimburse to the City within thirty (30) days after receiving an invoice for such expenses,
including all administrative, legal and consultant costs or (b) deem the Facilities, or any part thereof,
to have been abandoned and conveyed to the City.
6.4 Repair of Public Rights -of -Way. Whenever the removal or relocation of facilities
is required under this Agreement or the Code, Company shall promptly repair and return the Public
Rights -Of -Way and adjacent property to a safe and satisfactory condition to the City in accordance
with the Code and with the generally applicable construction -related conditions and specifications
established by the City according to its standard practice. If Company removes any Facilities from
the Public Rights -Of -Way, company shall, within ten (10) days after such removal, give notice
thereof to the City specifying the Right -Of -Way affected and the location thereof as well as the date
of removal. Company agrees to promptly complete all restoration work and to promptly repair any
damage caused by such work at its sole cost and expense. If Company fails to do so and provided
Company has not been subject to a force majeure or other event beyond its control that would prevent
repair and restoration work, the City shall have the option to perform such work at Company's sole
expense, which expense Company shall promptly reimburse to the City within thirty (30) days after
receiving an invoice for such expenses, including all administrative, legal and consultant costs.
Before proceeding with removal or relocation work, the Company shall obtain an encroachment
permit from the City.
ARTICLE 7
DAMAGES
7.1 The Company shall be responsible for any damage to the City's street pavements,
existing utilities, curbs, gutters, sidewalks due to its installation, maintenance, repair, or removal
of its Facilities in the Public Rights -Of -Way and public utility or service easements, and shall
repair, replace, and restore in kind the said damaged facilities at its sole expense.
7.2 Company shall be responsible to repair any premature deterioration of the surface
or subsurface improvements caused by the Company's activities. This responsibility shall
survive this Agreement or any abandonment of its Facilities for a period of two (2) years from
the last date of any of Company's work in the City's right of way. The Company shall
immediately on written notice from the City cause all necessary repairs to be completed;
however, under no circumstances may the time for repairs exceed thirty (30) days from the date
of City's notice to Company. In the event the repairs are not made, the City shall make repairs
and bill the Company.
7.3 If any Public Right -Of -Way to be used by the Company has preexisting
installation(s) placed in said Right -Of -Way, the Company shall assume the responsibility to verify
the location of the preexisting installation and notify the City and any third party of the Company's
proposed installation. The cost of any work required of such third party or the City to provide
adequate space or required clearance to accommodate the Company's installation shall be borne
solely by the Company.
Page 9 of 15
ARTICLE 8
TAXES
8.1 Company agrees that it will be solely responsible for the payment of any and all lawful
taxes, fees and assessments relating to its use and maintenance of the Facilities including but not
limited to all taxes, fees and assessments listed in Company's Certificates of Public Convenience and
Necessity issued by the California Public Utilities Commission. Pursuant to Section 107.6 of the
California Revenue and Taxation Code, the City hereby advises, and Company recognizes and
understands, that Company's use of the Public Rights -Of -Way may create a possessory interest
subject to property taxation and that Company will be subject to the payment of property taxes levied
on such interest.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification. To the fullest extent permitted by law, the Company, jointly and
severally, for itself, its successors, agents, contractors or employees agrees to indemnify, defend, and hold
the City, its directors, officers, employees, agents, and volunteers harmless from and against any and all
liability, claims, suits, actions, damages, and causes of action arising out of, pertaining or relating to the
actual or alleged negligence, recklessness or willful misconduct of the Company, its employees,
subcontractors, or agents, or on account of the performance or character of the services, except for any
such claim arising out of the sole negligence or willful misconduct of the City, its officers, employees,
agents, or volunteers. Company shall indemnify for any loss of or damage to property caused, directly
or indirectly, by an act or omission of Company or its personnel or by any structures of encroachments
placed in, on or under the surface of any Public Rights -Of -Way and the use, misuse or failure of any
equipment or facility used by Company, or by Company personnel regardless of whether such
equipment or facility is furnished, rented leased or loaned by or to Company. It is understood that the
duty of the Company to indemnify and hold harmless includes the duty to defend as set forth in section
2778 of the California Civil Code. Notwithstanding the foregoing, for any design professional services,
the duty to defend and indemnify City shall be limited to that allowed by state law. Acceptance of
insurance certificates and endorsements required under this Agreement does not relieve the Company
from liability under this indemnification and hold harmless clause. This indemnification and hold
harmless clause shall apply whether or not such insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
9.2 Duty to Defend; Notice of Loss. Company acknowledges and agrees that its
obligation to defend the City under Section 9.1 (a) is an immediate obligation, independent of its
other obligations hereunder; (b) applies to any Loss which actually or potentially falls within the
scope of Section 9.1, regardless of whether the allegations asserted in connection with such Loss are
or may be groundless, false or fraudulent; and (c) arises at the time the Loss is tendered to Company
by the City and continues at all times thereafter. The City shall give Company prompt notice of any
Loss under Section 9.1 and Company shall have the right to defend, settle and compromise any such
Loss; provided, however, that the City shall have the right to retain its own counsel if representation
of City by the counsel retained by Company would be inappropriate due to conflicts of interest
between City and Company. City's failure to notify Company promptly of any Loss shall not relieve
Company of any liability to City pursuant to Section 9.1, unless such failure materially impairs
Company's ability to defend such Loss. Company shall seek City's prior written consent to settle or
compromise any Loss if Company contends that City shares in liability with respect thereto.
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9.3 Assumption of Risk. Company shall assume all risk of damage to any and all other
property of Company, or any property under the control or custody of Company while upon or near
the Public Rights -Of -Way incident to the use of the Public Rights -Of -Way. Company releases City
from any liability, including claims for damages or extra compensation, arising from construction
delays due to any activities by City. Under no circumstances shall City be liable to Company for any
loss of service downtime, lost revenue or profits or third -party damages.
9.4 Survival. Company's obligations under this Article 9 shall survive Termination of
this Agreement.
9.5 No Waiver. The failure of either party on one or more occasions to exercise a right
or to require compliance or performance under this Agreement or any other applicable state or federal
law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance
by such party nor to excuse the other party from complying or performing, unless such right or such
compliance or performance has been waived in writing.
ARTICLE 10
INSURANCE
10.1 Minimum Insurance Requirements. The Company shall procure and maintain for
the duration of the Agreement insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance of the work hereunder by the Company,
Company's agents, representatives, employees or subcontractors.
10.1.1 Minimum Scope of Insurance
Coverage shall be at least as broad as:
(a) Insurance Services Office form number GL 0002 (Ed. 1/73) covering
Comprehensive General Liability and Insurance Services Office form number GL 0404 covering
Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General
Liability coverage ("occurrence" form GC 0001).
(b) Insurance Services Office form number CA 0001 (Ed. 1/78) covering
Automobile Liability, code 1 "any auto" and endorsement CA 0025.
(c) Worker's Compensation insurance as required by the Labor Code of
the State of California and Employers Liability insurance.
10.1.2 Beginning of Work
Contractor shall maintain limits no less than:
(a) General Liability: $2,000,000 combined single limit per occurrence
for bodily injury, personal injury and property damage. If Commercial General Liability Insurance
or other form with a general aggregate limit is used, either the general aggregate limit shall apply
separately to this Project/location or the general aggregate limit shall be twice the required occurrence
limit.
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(b) Automobile Liability: $1,000,000 combined single limit per accident
for bodily injury and property damage.
(c) Workers' Compensation and Employers Liability: Worker's
compensation limits as required by the Labor Code of the State of California and Employers Liability
limits of $1,000,000 per accident.
10.1.3 Deductibles and Self -insured Retentions
Any deductibles or self -insured retentions must be declared to and approved by the City. At
the option of the City, either: the insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor
shall procure a bond guaranteeing payment of losses and related investigations, claim administration,
and defense expenses.
10.1.4 Other Insurance Provision
The policies are to contain, or be endorsed to contain the following provision:
(a) General Liability and Automobile Liability Coverages
(i) The City of Burlingame, its officers, officials, employees and
volunteers are to be covered as insureds as respects: liability arising out of activities performed by
or on behalf of the Contractor, products and completed operations of the Contractor, premises owned,
occupied or used by the Contractor, or automobiles owned, leased, hired or borrowed by the
Contractor. The coverage shall contain no special limitations on the scope of protection afforded to
the City of Burlingame, its officers, officials, employees, or volunteers. The endorsement providing
this additional insured coverage shall be equal to or broader than ISO Form CG 20 10 1185 and must
cover joint negligence, completed operations, and the acts of subcontractors.
(ii) The Contractor's insurance coverage shall be primary insurance
as respects the City of Burlingame, its officers, officials, employees, and volunteers. Any insurance
or self-insurance maintained by the City of Burlingame, its officers, officials, employees, or
volunteers shall be excess of the Contractor's Insurance and shall not contribute with it.
(iii) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to the City of Burlingame, its officers, officials, employees, or
volunteers.
(iv) The Contractor's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
(b) Workers' Compensation and Employers Liability Coverage
(i) The insurer shall agree to waive all rights of subrogation
against the City of Burlingame, its officers, officials, employees, or volunteers for losses arising from
work performed by the Contractor for the City of Burlingame.
(c) All Coverages
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(i) Each insurance policy required by this clause shall be endorsed
to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage
or in limits except after thirty days prior written notice by certified mail, return receipt required, has
been given to the City of Burlingame.
10.1.5 Acceptability of Insurers
(a) Insurance is to be placed with insurers with a Best's rating of no less
than A-:VII and be authorized to conduct business with regard to the proffered lines of insurance in
the State of California.
10.1.6 Verification of Coverage
Contractor shall furnish the City with certificates of insurance and with original endorsements
effecting coverage required by this clause. The certificates and endorsements for each insurance
policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The
certificates and endorsements are to be on forms approved by the City. All certificates and
endorsements are to be received and approved by the City before work commences. Company shall
make available for inspection, upon request from the City, a copy of insurance policies providing
required insurance at Company's local office in the City or Company's nearest office to the City.
10.1.7 Indemnification Not Limited
Any insurance required to be obtained and maintained by Company under this Agreement
shall not limit in any way Company's indemnification obligations under Article 9 of this Agreement.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Representations and Warranties. Each party represents and warrants that it has the
full right and authority to enter into, execute, deliver and perform its obligations under this
Agreement and that this Agreement constitutes a legal, valid and binding obligation enforceable
against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights
and general equitable principles. The Company represents and warrants that it has any and all
authorizations and approvals from state and federal regulatory agencies including the California
Public Utilities Commission and the Federal Communications Commission as are necessary for the
activities and Facilities contemplated by the Agreement and that Company is in compliance in all
material respects with its obligations under such authorizations.
11.2 Notices. All notices which shall or may be given pursuant to this Agreement shall be
in writing and transmitted through first class United States mail, or by private delivery systems, to
the following address or such other address of which a party may give written notice:
Cam:
City of Burlingame
Public Works Director
501 Primrose Road
Burlingame, CA 94010
Company:
Verizon Access Transmission Services
Attn: Franchise Manager
600 Hidden Ridge Drive, #E02E 102
Irving, TX 75038
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With CC (except for invoices) to:
Verizon Business Services
1320 N. Courthouse Road, Suite 900
Arlington, VA 22201
Attn: General Counsel, Network & Technology
11.3 Service of Process. Company shall designate a person in California who is authorized
to accept service of process on behalf of Company.
11.4 Operations Center. Company's 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 Agreement and may be contacted by telephone at: 1-800-MCI-WORK regarding
such problems or complaints.
11.5 Assignment. Company shall not assign or transfer any interest in this Agreement nor
the performance of any of Company's obligations hereunder, without the prior written consent of
City (which consent shall not be unreasonably withheld), and any attempt by Company to so assign
this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect;
provided, however, Company may assign its rights and delegate its obligations hereunder without
first obtaining the City's consent to a corporation, limited liability company, partnership or other
business entity wholly controlled or owned by Company or to the purchaser of all or substantially all
of the Company's assets. An assignment shall not be effective until the Assignee agrees in writing
to comply with and be subject to all the terms and conditions of this Agreement, the Code, and the
Zoning Code. This Agreement may be assigned in its entirety; however, Company shall remain liable
for any outstanding obligations incurred prior to such assignment.
11.6 Entire Agreement. This Agreement contains the entire agreement and understanding
between the parties with respect to the subject matter herein. There are no representations,
agreements or understandings (whether oral or written) between or among the parties relating to the
subject matter of this Agreement that are not fully expressed herein.
11.7 Amendments. This Agreement may not be amended except pursuant to a written
instrument signed by both parties.
11.8 Severability. If any one or more of the provisions of this Agreement shall be held by
a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such
provision(s) shall be deemed separable from the remaining provisions of this Agreement and shall in
no way affect the validity of the remaining portions of this Agreement.
11.9 Survival. All of the provisions, conditions and requirements of this Agreement shall
be in addition to any and all other obligations and liabilities Company may have to the City at
common law, by statute, or by contract, and shall survive the City's Agreement to Company and any
renewals or extensions thereof. All of the provisions, conditions, regulations, and requirements
contained in this Agreement shall further be binding upon the heirs, successors, executors,
administrators, legal representatives and assigns of the parties and all privileges, as well as all
obligations and liabilities of each party shall inure to its heirs, successors and assigns equally as if
they were specifically mentioned wherever such party is named herein.
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11.10 Governing Law and Venue. This Agreement shall be subject to, and governed and
construed by and in accordance with, the laws of the State of California. In the event that suit is
brought by a party to this Agreement, the parties agree that trial of such action shall be vested
exclusively in the state courts of California in San Mateo County, or in the United States District
Court, Northern District of California.
11.11 Successors. This Agreement is binding upon the successors, assigns and transferees
of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth
below.
CITY OF BURLINGAME, a California
municipal corporation
MCIMETRO ACCESS TRANSMISSION
SERVICES CORP. D/B/A VERIZON ACCESS
TRANSMISSION SERVICES
By:
Lisa K. Goldman, City Manager
Its:
APPROVED AS TO FORM:
Kathleen Kane, City Attorney
Attest:
Meaghan Hassel -Shearer, City Clerk
Date:
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