HomeMy WebLinkAboutReso - CC - 107-1999RESOLUTION NO. 107-1999
AUTHORIZING EXECUTION OF ENCROACHMENT AGREEMENT
WITH METROMEDIA FIBER NETWORK SERVICES, INC.
RESOLVED, by the CITY COUNCIL of the City of Burlingame, California and this
Council does hereby FIND, ORDER and DETERMINE AS FOLLOWS:
1. The public interest and convenience require execution of the agreement cited in
the title above.
2. The City Manager be, and he is hereby, authorized to sign said agreement for and
on behalf of the City of Burlingame.
3. The City Clerk is hereby ordered and instructed to attest such signature.
Mayor
I, JUDITH A. MALFATTI, City Clerk of the City of Burlingame, do hereby certify that
the foregoing Resolution was introduced at a regular meeting of the City Council held on the
20th day of September , 1999, and was adopted thereafter by the following vote:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
GALLIGAN, JANNEY, KNIGHT, OIMAHONY, SPINELLI
NONE
NONE
ENCROACHMENT AGREEMENT
BETWEEN THE CITY OF BURLINGAME
AND METROMEDIA FIBER NETWORK SERVICES, INC.
FOR THE INSTALLATION OF FIBER OPTIC NETWORK FACILITIES
WITHIN PUBLIC RIGHT-OF-WAY
This Agreement ("Agreement") is dated for identification this day of , 1999, by
and between the CITY OF BURLINGAME (herein termed "CITY') and METROMEDIA FIBER
NETWORK SERVICES, INC., a Delaware corporation (herein termed "METROMEDIA").
RECITALS
WHEREAS, on June 17, 1998, METROMEDIA received Certificates of Public Convenience and
Necessity to operate as a facilities based carrier of interLATA and intraLATA telecommunications
services from the Public Utilities Commission of the State of California (herein terms PUC); and
WHEREAS, METROMEDIA is a nondominant telecommunications carrier (telephone
corporation) organized under California Law and qualified to do business in California and is a regulated
utility as defined under Public Utilities Code Section 234; and
. WHEREAS, METROMEDIA desires to construct, install and maintain Fiber Optic Network
Facilities within the Public Right -of -Way and/or public utility or service easements within CITY; and
WHEREAS, CITY has the authority to regulate the terms and conditions for the use of Public
Right -of -Way for the construction, installation and maintenance of Fiber Optic Network Facilities by
private telecommunications services providers;
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein,
CITY and METROMEDIA agree as follows:
DEFINITIONS
"METROMEDIA" means METROMEDIA FIBER NETWORK SERVICES, INC., a Delaware
corporation, and its lawful successors or assigns.
"CITY" means the City of BURLINGAME, a municipal corporation of the State of California, and
includes the duly elected or appointed officers, agents, employees and volunteers of the City of
BURLINGAME, individually or collectively.
"Agency" means any governmental agency or quasi -governmental agency other than the CITY,
including the Federal Communications Commission and the State of California Public Utilities Commission.
"Agreement" means this "AGREEMENT BETWEEN THE CITY OF BURLINGAME AND
METROMEDIA FIBERNETWORK SERVICES, INC. FOR THE CONSTRUCTION, INSTALLATION,
AND MAINTENANCE OF FIBER OPTIC CABLES AND RELATED FACILITIES WITHIN THE
PUBLIC RIGHT-OF-WAY."
"Business Day" means any calendar day, except a Saturday, Sunday, and any Day observed as a legal
holiday by CITY. For the purposes hereof, if the time in which an act is to be performed falls on a Saturday,
Sunday, or any Day observed as an official holiday by CITY, the time for performance shall be extended
to the following Business Day.
"City Manger" means the individual designated as the city manager under the CITY Municipal Code.
"Council" means those elected officials w1Mh are authorized to exercise the powers granted to and
vested in CITY under Government Code Section 37100 et seq.
"Day" means any calendar day, unless a Business Day is specified. For the purposes hereof, the time
in which an act is to be performed shall be computed by excluding the first Day and including the last.
"Directors" means the individuals designated as the Assistant City Manager, and the Director of
Public Works, or any combination of one or more of the named individuals holding such titles and
performing such functions as charged under the CITY Municipal Code.
"Director of Public Works" means the individual designated the Director of Public Works under the
CITY Municipal Code, including any individual expressly designated to exercise functions with respect to
the rights and obligations of the Director of Public Works under this Agreement, and any other individual,
person, division, department, bureau, or agency as may exercise from time to time functions equivalent or
similar to those now exercised by the Director of Public Works.
"Fee" means any assessment, license, charge, fee, imposition, tax (but excluding the telephone users
tax), or levy lawfully imposed by any governmental body.
"Fiber Optic Network Facilities" or "Facilities" means without limitation, any and all fiber optic
cables, conduits, converters, splice boxes, cabinets, hand -holes, manholes, vaults, equipment, drains, surface
location markers, appurtenances and related facilities owned, leased or licensed by METROMEDIA, located
or to be located in the Public Right -of -Way of CITY and used or useful for and in connection with the
transmission of telecommunication messages.
"LATA" means "local access and transport area."
"Law" or "Laws" means any judicial decision, statute, constitution, ordinance, resolution, regulation,
rule, tariff, administrative order, certificate, order, or other requirement of any municipal, county, state,
federal, or other Agency having joint or several jurisdiction over the parties to this Agreement, in effect
either at the time of execution of this Agreement or at any time during the location of the Facilities in the
Public Right -of -Way, including, without limitation, any regulation or order of an official entity or body.
"Person" means an individual, a corporation, a partnership, a sole proprietorship, a joint venture, a
business trust, and any other form of business association.
"Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation,
term, or other stipulation in this Agreement that defines or otherwise controls, establishes, or limits the
performance required or permitted by any party to this Agreement. All Provisions, whether covenants or
conditions, shall be deemed to be both covenants and conditions.
"Public Right -of -Way" means in, upon, along, across, under and over the public streets, roads, lanes,
courts, ways, alleys, boulevards, and places, including, without limitation, all public utility easements and
public service easements, as the same now or may thereafter exist that are under the jurisdiction of CITY.
This term shall not include any property owned by any Person or Agency other than CITY except as
provided by applicable Laws or pursuant to an agreement between CITY and any Person or Agency.
"Standard Drawings and Standard Specifications" means the general terms and conditions,
specifications, and requirements of CITY which governs the design, construction, installation, and
maintenance of any improvement within the Public Right -of -Way. Caltrans Standard Plans and
Specifications (1995) as periodically updated shall be used unless the CITY has other standards which shall
then prevail. This term shall include any and all documents entitled, "General Conditions" or words of
similar import, now or hereafter existing, which directly pertain to all aspects of general constructions work.
"Telecommunications Services" means the transmission ofvoice, data, and information in rendering
teleconferencing and other services, and the leasing, granting of indefeasible rights of use in, or other
provision of dark or lit fiber and other network elements, which are permitted to be offered by
METROMEDIA under applicable laws. However, the term "indefeasible" as used in this definition does
not create any indefeasibility as to the CITY.
LIMITATIONS AND RESTRICTIONS
1. CITY hereby agrees to permit METROMEDIA, subject to reservations, covenants and
conditions herein contained, to construct, reconstruct, install, reinstall, maintain and operate, replace,
relocate and remove Fiber Optic Network Facilities used for Telecommunications Services within Public
Right -of -Way, as generally shown on Exhibit A, that is located within the corporate limits of the CITY,
subject to obtaining all required permits and approvals.
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 and its assigns to lawfully use any or all of the Public
Right -of -Way for CITY -owned facilities in the performance of its duties, 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, electroliers, 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 Right-of-
Way. No use of any Public Right -of -Way or other interest or property under this Agreement shall create
or vest in METROMEDIA or any other public utility any ownership interest in the Public Right -of -Way,
streets or other property or interest of CITY. Nothing in this Agreement shall be deemed to grant, convey,
create, or vest a perpetual real property interest in land in METROMEDIA, including any fee or leasehold
interest in land, easement, or any franchise rights.
3. This Agreement 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
METROMEDIA, at its own cost and expense, shall obtain such permission as may be necessary, consistent
with any other existing rights. Subject to the Provisions of this Agreement, CITY hereby licenses and
permits METROMEDIA to construct, install, maintain, locate, move, operate, place, protect, reconstruct,
reinstall, relocate, remove, and replace the Facilities underground or on existing poles, to the extent
METROMEDIA may gain access to these poles consistent with the rights of third parties under applicable
Laws and all existing and future agreements, within the Public Right -of -Way for the purposes of providing
Telecommunications Services. These Facilities may be used to provide services to customers and clients
with or without the CITY. Any work performed pursuant to the rights granted to METROMEDIA under
this Agreement shall be subject to the prior review and approval of the Directors.
4. Subject to the approval of CITY's Director of Public Works, the construction, installation,
operation, maintenance and removal of said Fiber Optic Network Facilities shall be accomplished without
cost or expense to CITY and in such a manner as not to endanger persons or property, or unreasonably
obstruct travel on any road, walk or other access thereon within said Public Right -of -Way.
COMPLIANCE WITH STANDARDS
5. METROMEDIA agrees to keep said Fiber Optic Network Facilities in good and safe
condition and free from any nuisance, to the reasonable satisfaction of CITY's Director of Public Works.
6. METROMEDIA shall construct, install, operate and maintain all Fiber Optic Network
Facilities in accordance and in conformity with all applicable CITY, State, Federal and regulatory agency
laws, ordinances, rules and regulations.
SERVICE CHANGE
T. METROMEDIA provides Telecommunications Services in California pursuant to all laws,
including federal law and its Certificates of Public Convenience and Necessity received from the PUC. The
type of service METROMEDIA offers to its customers through the Fiber Optic Network Facilities in Public
Right -of -Way consists of business Telecommunications Services which are presently permitted by law. If
the nature or character of METROMEDIA's service changes to include additional or alternative services,
including but not limited to, community antenna television systems or commercial video programming,
METROMEDIA shall give CITY as much advance written notice as practicable, and will give at least six
(6) months prior notice, of its intent to change the service provided by way of the Fiber Optic Network
Facilities installed under this Agreement, and comply with the CITY's lawful fee and/or franchise
requirements. METROMEDIA acknowledges that any expansion or change in the character or nature of
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the Telecommunications Services may increase CITY's regulatory authority over such services, and this may
require METROMEDIA to enter into a new Agreement consistent with the requirements of a hereinafter -
enacted CITY ordinance regulating such services or the expansion or change in services, if such service
changes fall under the lawful regulation, jurisdiction or authority of CITY.
NO FRANCHISE RIGHTS CREATED
8. Nothing in this Agreement shall be construed as granting or creating any franchise rights.
RESERVATION OF RIGHTS
9. The CITY is uncertain as to its legal ability to regulate and to impose taxes, charges and fees
on the provision or use of fiber optics infrastructure and technology and related activities and services that
may be provided pursuant to the installation subject to this Agreement. Therefore, CITY reserves any and
all rights it may have now or in the future to legally regulate or otherwise condition the use of the fiber
optics infrastructure and technology and related activities and services to be provided pursuant to the
installation subject to this Agreement. Similarly, METROMEDIA reserves any and all rights it may have
to challenge, through the commencement of appropriate legal proceedings, the validity or legality of any
such regulation, tax, or condition that CITY may seek to impose upon Metromedia or any other user of the
fiber optic infrastructure and fiber optic services to be provided pursuant to the installation that is subject
to this agreement.
CITY's agreement hereto is not a waiver of and is without prejudice to any right CITY may
have under law to regulate, tax or impose fees or charges on METROMEDIA or any right METROMEDIA
may have under the law to provide services through the fiber optic infrastructure pursuant to state or federal
laws, rules or regulations. METROMEDIA shall be subject to any future taxes, fees or charges that the
CITY lawfully imposes on the fiber optics infrastructure and fiber optic services in the future. Nothing
herein shall affect in any way CITY's power or right to impose or collect any tax or fee on users or providers
of the services to be provided by METROMEDIA. Nothing herein is intended to impose regulations or
conditions on METROMEDIA that CITY is preempted from imposing by state or federal laws.
REMOVAL AND RELOCATION
10. METROMEDIA shall remove or relocate, without cost or expense to CITY, any Fiber Optic
Network Facilities installed, used and maintained under this Agreement if and when made necessary by any
change of grade, alignment or width of any street, sidewalk or other public facility, including the
construction, maintenance or operation of any underground subway or viaduct by CITY and/or the
construction, maintenance or operation of any other CITY, underground or aboveground facilities. In the
event all or any portion of said Public Right -of -Way occupied by said Fiber Optic Network Facilities shall
be needed by CITY or in the event the existence of said Fiber Optic Network Facilities shall be considered
detrimental to governmental activities, including but not limited to, interference by CITY construction
projects, or is in conflict vertically and/or horizontally with any proposed CITY installation,
METROMEDIA shall remove and relocate said Fiber Optic Network Facilities to such other location or
locations on said Public Right -of -Way as may be designated by CITY. Said removal or relocations shall
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be completed within one hundred twenty (120) days of notification by CITY unless exigencies dictate a
shorter period for removal or relocation. In the event said Fiber Optic Network Facilities are not removed
or relocated within said period of time, CITY may cause the same to be done at the expense of
METROMEDIA and METROMEDIA shall reimburse the CITY any and all expenses, including
administrative overhead. If METROMEDIA shall fail to vacate or otherwise remove the Facilities as
required by CITY, CITY shall be entitled to vacate or otherwise remove the Facilities at METROMEDIA's
sole cost and expense. METROMEDIA shall execute such documents of title as will convey all right, titled,
and interest in the dedicated Facilities, or any party thereof, to CITY. As used in this paragraph only
"CITY" shall include any public agency of the State of California having a permit or jurisdiction to place
Facilities within the Public Right -of -Way.
11. Should CITY intend to authorize or permit installations of a third parry (not including any
CITY -owned installations) to Public Right -of -Way jointly used under this Agreement and should the
proposed installation of such third party require the rearrangement of any METROMEDIA Fiber Optic
Network Facilities, such third party shall agree to pay the reasonable cost of rearranging the Fiber Optic
Network Facilities before authorizing or permitting the third party installations. Such third parry shall insure
that METROMEDIA Fiber Optic Facilities are not interrupted during the installation of their Facilities.
12. METROMEDIA shall, at its sole cost and expense, replace aerial and/or aboveground Fiber
Optic Network Facilities, if any, with underground facilities in accordance with the same Rule No. 32 that
applies to Pacific Bell, as it now reads or may hereinafter be amended.
13. If any portions of the Fiber Optic Network Facilities covered under this Agreement are no
longer used by METROMEDIA, or are abandoned for a continuous period in excess of six (6) months,
METROMEDIA shall notify CITY and shall either promptly vacate or remove the facilities at its own
expense or, at CITY's discretion, may be allowed to abandon some or all of the facilities in place. If
METROMEDIA is permitted by CITY to abandon its facilities in place, any such abandoned facilities shall
be deemed conveyed to CITY and METROMEDIA shall have no further obligation to remove, relocate or
maintain said facilities, except as provided in Section 18 hereinafter. Unless specifically permitted by CITY
in writing, which permission shall not be unreasonably withheld or delayed, all boxes or other facilities
exposed to the surface will be required to be removed and the surface restored.
14. When removal or relocation is required under the Agreement, METROMEDIA shall, after
the removal or relocation of the Fiber Optic Network Facilities, at its own cost, repair and return the Public
Right -of -Way on which the facilities were located to a safe and satisfactory condition in accordance with
the construction -related conditions and specifications as established by CITY according to its standard
practice. Should METROMEDIA remove the Fiber Optic Network Facilities from the Public Right -of -Way,
METROMEDIA shall, within ten (10) days after such removal, give notice thereof to CITY specifying the
right-of-way affected and the location thereof, as well as the date of removal. Before proceeding with
removal or relocation work, METROMEDIA shall obtain an Encroachment Permit from the CITY. If
METROMEDIA does not return the affected site to a safe and satisfactory condition, then CITY shall have
the option to perform or cause to be performed such reasonable and necessary work on behalf of
METROMEDIA and charge the actual costs incurred to METROMEDIA. Upon receipt of a demand for
payment by CITY, METROMEDIA shall reimburse CITY for such costs.
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CONSTRUCTION ENCROACHMENT PERMIT AND FEES
15. METROMEDIA shall apply for a project specific Encroachment Permit for all work within
the Public Right -of -Way and any other regulatory permits. METROMEDIA shall furnish detailed plans of
the work and other such information as required by the Director of Public Works, including a detailed map
showing the layout of the proposed facilities and all existing facilities located in or immediately adjacent
to the area subject to the Encroachment Permit, and shall pay or deposit with CITY all applicable costs such
as processing fees, field marking, plan review, engineering and inspection fees related to the proposed work,
and CITY's actual legal fees for the preparation ofthis Agreement, prior to issuance ofpermit (or subsequent
to work being performed in the case of costs or expenses not covered by a deposit) in accordance with the
rates in effect at the time when work is performed. Said improvements shall be constructed and installed
in accordance with the CITY Municipal Code street opening permit general conditions and any specific
Encroachment Permit requirements, and as further provided in this Agreement.
16. The Encroachment Permit shall set forth the description ofthe Fiber Optic Network Facilities
to be installed and the Public Right -of -Way on which such facilities are to be located. In addition to the
CITY Municipal Code street opening permit general conditions, CITY shall establish reasonable
construction -related conditions and specifications, and these shall also be set forth in the General
Encroachment Permit requirements as set forth in Exhibit A. METROMEDIA shall utilize contractors
licensed in the State of California to accomplish any work. METROMEDIA and any of its agents working
in the CITY shall obtain a current CITY business license. Upon the completion of construction work,
METROMEDIA promptly shall furnish to CITY accurate plans and record drawings showing in detail, the
exact location, depth, and size of the Facilities in the Public Right -of -Way, including, without limitation,
the profiles of all street crossings. These plans and drawings shall be incorporated in one (1) set of 3 mil
minimum thickness, good quality transparent mylar drawings. METROMEDIA shall furnish to CITY
electronic disks (which utilize AutoCAD or Geographic Data Systems software) containing the full set of
plans and record drawings. To the extent directional boring or other similar methods are used to construct
or install the Facilities, METROMEDIA also shall pothole all CITY mains and customer services lines prior
to crossing over, under, or between such Underground Facilities. METROMEDIA shall identify the Fiber
Optic Network Facilities installed in each Public Right -of -Way by means of an identification method
mutually agreed upon by CITY and METROMEDIA. Such identification shall be detectable from ground
level without opening the street.
IUa- a[caLVJ/:1g,re) i]�I17
17. Prior to the issuance of an Encroachment Permit, METROMEDIA 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 work to be performed by or on behalf of METROMEDIA within and affecting the Public Right -
of -Way to guarantee and assure the faithful performance of METROMEDIA's obligations under this
Agreement. CITY shall have the right to draw against the surety bond in the event of a default by
METROMEDIA or in the event that METROMEDIA fails to meet and fully perform any of its obligations;
provided that METROMEDIA is first given written notice of any intent to draw against the bond and an
opportunity to cure. Following completion of the work by METROMEDIA and its inspection and
acceptance by the Public Works Director, the performance bond shall remain in effect to the extent of ten
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percent (10%) of the value of the work to guarantee and assure that faithful performance of
METROMEDINs obligations under the Agreement for a period of one (1) year from the CITY's acceptance
of the work. CITY shall have the right to draw against the bond in the event of a default by METROMEDIA
or in the event that METROMEDIA fails to meet and fully perform any of its obligations. The form of the
performance bond shall be furnished and approved by the CITY.
DAMAGE TO FACILITIES IN PUBLIC RIGHT-OF-WAY
OR ON PRIVATE PROPERTY
18. METROMEDIA shall be responsible for any damage to CITY street pavements, existing
utilities, curbs, gutters, sidewalks or to any private property or improvements to the extent attributable to
its installation, maintenance, repair or removal of its Fiber Optic Network Facilities in Public Right -of -Way
and shall repair, replace and restore in kind any such damaged facilities at its sole expense and to the
approval of CITY. METROMEDIA shall immediately on written notice from the CITY cause all necessary
repairs to be completed; however, under no circumstances may the period of time exceed thirty (30) days,
or subject to written approval by the CITY (which approval shall not be unreasonably withheld in light of
the seriousness of the danger and inconvenience to the CITY and the public), such longer period as may be
required to complete such repairs. However, in no event shall METROMEDIA fail to take such steps as may
be necessary to ensure that the damaged area is made safe.
Any premature deterioration of the surface or subsurface improvements as determined by
CITY shall be the responsibility of METROMEDIA to the extent attributable to METROMEDIA's
activities; this responsibility shall survive this Agreement or any abandonment of Facilities for a period of
two (2) years from the date of METROMEDIA's most recent installation of or improvements on the
Facilities. METROMEDIA shall immediately on written notice from the CITY cause all necessary repairs
to be completed; however, under no circumstances may the period of time exceed thirty (30) days. In the
event the repairs are not made, the CITY shall make repairs with the cost being billed to METROMEDIA.
This obligation shall extend for a period not to exceed fifteen (15) years from the CITY's acceptance of the
work.
19. If Public Right -of -Way to be used by METROMEDIA has preexisting installation(s),
METROMEDIA shall assume the responsibility to verify the location of the preexisting installation and
notify CITY and any third party of METROMEDIA's proposed installation. The cost of any work required
of such third party or CITY to provide adequate space or required clearance to accommodate
METROMEDIA's installation shall be borne solely by METROMEDIA.
PARTICIPATION WITH OTHER UTILITIES
20. METROMEDIA agrees to cooperate in the planning, locating and constructing of its Fiber
Optic Network Facilities in utility joint trenches or common duct banks with other similar utilities and to
participate in cost-sharing for the joint trench and ducts, when such joint utility installations are being
planned for or such opportunities exist in any area; provided that such activities do not impair or disrupt
Telecommunications Services of METROMEDIA.
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RECORDS AND FIELD LOCATIONS
21. METROMEDIA shall be a member of the regional notification center for subsurface
installations (Underground Services Alert) and shall field mark, at its sole expense, the locations of its
underground Fiber Optic 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.
22. METROMEDIA shall maintain accurate maps and improvement plans of said Fiber Optic
Network Facilities located within the CITY. The maps and plans are to accurately show in detail the
location, size, depth and description of all facilities as constructed. Prior to CITY acceptance of the work,
METROMEDIA shall deliver to the office of the Public Works Department free of charge, and at any
subsequent time, upon request, to other third parties interested in performing work within Public Right -of -
Way for a reasonable charge upon request and within thirty (30) days after such request, such maps and
plans of all Fiber Optic Network Facilities installed within said Public Right -of -Way. When required by
the CITY for the purpose of confirming the location of Facilities to accomplish the design or construction
of public facilities, METROMEDIA shall, at its sole cost and expense, expose by potholing to a depth of
one (1) foot below the bottom of its subsurface Fiber Optic Network Facilities, within thirty (30) days of
receipt of a written request from CITY to do so.
23. METROMEDIA shall be a member of the regional notification center for subsurface
installations (Underground Services Alert) and shall field mark, at its sole expense, the locations of its
underground Fiber Optic Network Facilities upon notification in accordance with the requirements of
Section 4216 of the California Government Code, as it now reads or may hereinafter be amended.
LOCATOR WIRE
24. METROMEDIA shall install a locator wire in conjunction with its construction of the
facilities the in this agreement.
HOLD HARMLESS AND INDEMNIFICATION
25. METROMEDIA, jointly and severally, for itself, its successors, agents, contractors and
employees, hereby agrees to hold harmless, defend (with counsel selected by METRONIEDIA and
reasonably satisfactory to CITY) and indemnify CITY, its officers, councilmembers, employees and agents
(all of the above hereinafter collectively known as "Indemnitees"), from and against all claims, cause of
actions, proceedings, losses, damages, liability, cost, and expense (including, without limit, any fines,
penalties, judgments, litigation costs, attorney's fees and consulting, engineering and construction costs) for
actual loss of or damage to property and for injuries to or death of any person (including, but not limited to,
the property and employees of each party) ("Liability") when caused by, arising out of or related to the
activities or Facilities described in this Agreement. The duty of METROMEDIA to indemnify and hold
harmless includes the duties to defend as set forth in Section 2778 of the Civil Code.
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It is the express intent of the parties that METROMEDIA will indemnify and hold harmless
Indemnitees from any and all claims, suits or actions arising from any cause whatsoever as set forth above
regardless of the existence or degree of fault or negligence on the part of CITY, METROMEDIA or any
subcontractor or employee of any of these, except to the extent the Liability was the result of the gross
negligence or willful misconduct or criminal acts of the CITY, its directors, officers, employees and agents.
Should any discharge, leakage, spillage, emission or pollution of any type occur upon or from
the Public Right -of -Way attributable to METROMEDIA's use or occupancy, METROMEDIA at its expense,
shall clean all affected property to the reasonable satisfaction of CITY and any governmental body having
jurisdiction.
METROMEDIA shall indemnify, hold harmless and defend Indemnitees (with counsel
selected by METROMEDIA and reasonably satisfactory to CITY) against all Liability incurred by CITY
as a result of METROMEDIA's breach of this section or as a result of any such discharge, leakage, spillage,
emission or pollution, regardless of whether such Liability, cost or expense arises during or after the term
of this Agreement.
The obligations of METROMEDIA under this Section 23 shall survive termination of this
Agreement.
26. Except to the extent of CITY's gross negligence, willful misconduct or criminal acts, under
no circumstances shall the CITY be liable or otherwise responsible to METROMEDIA or its customers for
any loss of service, downtime, lost revenue or profits, or third -party damages.
INSURANCE
27. Any person, furn or corporation METROMEDIA authorizes to work upon the Public Right -
of -Way, including any subcontractor, shall be deemed to be METROMEDIA's agent and shall be subject
to all the applicable terms of this Permit. Prior to entry upon the Public Right -of -Way by such agents,
METROMEDIA shall provide CITY with satisfactory evidence (e.g., in the form of a Certificate of
Insurance) that it and its contractors or other agents who will obtain access to the Public Right -of -Way
pursuant to this Permit are insured in accordance with the following, which insurance shall remain in effect
throughout the term of this Permit and shall be at the sole cost and expense of METROMEDIA (or its
agents). Prior to the start of the work or entry onto the Public Right -of -Way, METROMEDIA agrees to
procure and maintain, and to require its contractor(s) to procure and maintain, at its (or its contractors') sole
cost and expense (and to prove to CITY's reasonable satisfaction that it remains in effect throughout the
work), the kinds of insurance described below:
a. Workers' Compensation and Employers' Liability Insurance.
METROMEDIA shall secure the payment of Workers' Compensation in accordance
with the provisions of Section 3700 of the California Labor Code (and any amendments thereto or
successor acts or statutes) and METROMEDIA shall furnish CITY with a certificate evidencing such
coverage together with a verification thereon as follows:
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"I am aware of the provisions of Section 3700 of the
California Labor Code which requires every employer to be
insured against a liability for workers' compensation or to
undertake self-insurance in accordance with the provision of
that Code, and I will comply with such provisions before
commencing the performance ofworkunderthis Agreement."
The METROMEDIA shall also maintain Employer's Liability coverage with
minimum limits of $2,000,000.
Whether FELA or Workers' Compensation applies, METROMEDIA shall furnish the
CITY with the Certificate(s) of Insurance required hereunder prior to the commencement of work. The
Certificate shall also provide that METROMEDIA's policy will not be canceled or have coverage reduced
without thirty (30) days prior written notice.
b. Commercial General Liability Insurance.
METROMEDIA shall at its own cost and expense, also procure and maintain
Commercial General Liability insurance which shall include as additional insureds the CITY, its
councilmembers, officers, employees and agents while acting in such capacity, and their successors or
assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally.
Insurance shall provide bodily injury and property damage coverage with a combined
single limit of at least $2,000,000 each occurrence or claim and a general aggregate limit of at least
$2,000,000. This insurance shall include but not be limited to premises and operations; contractual liability
covering the indemnity provisions contained in this Agreement; personal injury; explosion, collapse, and
underground coverage, products and completed operations, and broad form property damage.
Prior to commencing work or entering onto the Property, METROMEDIA shall file
a Certificate(s) of Insurance with the CITY Manager evidencing coverage, and upon request, a certified
duplicate original of the policy. Said Certificate(s) shall stipulate:
(1) The insurance company(ies) issuing such policy(ies) shall give written notice
to the CITY Manager of any material alteration, or reduction in aggregate limits, if such limits apply, and
provide at least thirty (30) days' notice of cancellation.
(2) That the policy(ies) is(are) Primary Insurance and the insurance company(ies)
providing such policy(ies) shall be liable thereunder for the full amount of any loss or claim which
METROMEDIA is liable for under this Section, up to and including the total limit of liability, without right
of contribution from any other insurance effected or which may be effected by the CITY.
(3) The policy(ies) shall also stipulate: Inclusion of the CITY as an additional
insured shall not in any way affect its rights either as respects any claim, demand, suit or judgment made,
brought or recovered against METROMEDIA. Said policy(ies) shall protect METROMEDIA and the CITY
in the same manner as though a separate policy had been issued to each, but nothing in said policy(ies) shall
11
operate to increase the insurance company's liability as set forth in its policy(ies) beyond the amount or
amounts shown or to which the insurance company would have been liable if only one interest had been
named as an insured.
C. Automobile Liability Insurance.
METROMEDIA shall, at its own cost and expense, procure and maintain Automobile
Liability insurance providing bodily injury and property damage with a combined single limit of at least
$2,000,000 per occurrence for all owned, non -owned and hired automobiles. This insurance shall provide
contractual liability covering all motor vehicles and mobile equipment to the extent coverage may be
excluded from general liability insurance. Such insurance shall include as an additional insured the CITY
and its officers, employees and agents while acting in such capacity, and their successors or assignees, as
they now or as they may hereafter be constituted, singly, jointly or severally.
d. Property Insurance.
METROMEDIA shall, at its own cost and expense, procure and maintain property
insurance to protect its interest in the equipment to be used in performance of this Agreement and the CITY's
interest in materials or property to be installed, covering all risks of physical loss or damage to such
equipment. The coverage under such policy shall have limits of liability adequate to protect the value of
the equipment and property to be installed. If desired, METROMEDIA may choose to self -insure this
exposure, but in no instance shall the CITY be responsible for such loss or damage, unless caused by its sole
negligence.
All insurance specified above shall remain in force until all work to be performed is
satisfactorily completed, all of METROMEDIA's personnel and equipment have been removed from the
Public Right -of -Way, and the work has been formally accepted. The failure to procure or maintain required
insurance and/or an adequately funded self-insurance program will constitute a material breach of this
Agreement.
If any insurance specified above shall be provided on a claims -made basis, then in
addition to coverage requirements above, such policy(ies) shall provide that:
(1) Policy retroactive date coincides with or precedes METROMEDIA's
start of work (including subsequent policies purchased as renewals or replacements).
(2) METROMEDIA will make every effort to maintain similar insurance
during the term of the Agreement following project completion, including the requirement of adding all
additional insureds.
(3) If insurance is terminated for any reason, METROMEDIA agrees to
purchase an extended reporting provision of at least two (2) years to report claims arising from work
performed in connection with this Agreement.
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(4) Policy allows for reporting of circumstances or incidents that might
give rise to future claims.
In addition to the requirements described above, METROMEDIA shall comply with
any additional coverages required by federal, state or local laws, rules and regulations. METROMEDIA
and/or its contractors shall obtain all permits, and other forms or documentation which are required and
forward them to the CITY Administrator with the required evidence of insurance.
All policies will be issued by insurers acceptable to the CITY. Upon evidence of
financial capacity satisfactory to CITY, METROMEDIA's obligation hereunder may be satisfied in whole
or in part by adequately funded self-insurance.
28. Insurance Companies: Insurance companies must be admitted in California, be in good
standing with the California Department of Insurance and have an A.M. Best's rating of at least A:VI (or
equivalent).
29. Deductible and Self -Insured Retentions and Proof of Insurance: Prior to the commencement
of work under the Agreement, any deductibles or self-insured retentions must be stated on Certificates of
Insurance, and the Certificate of Insurance must be sent to and approved by CITY.
NOTIFICATIONS
30. METROMEDIA shall, prior to the issuance of an Encroachment Permit or consistent with
other provisions of the Encroachment Permit, certify to CITY that it has provided or will provide written
notification of its intent to perform work to the property owners, residents and business operators of all
properties adjacent to streets and/or right(s)-of-way where METROMEDIA will be excavating. Unless
otherwise agreed by CITY, said notice, shall be mailed to the property owner as listed on the most recent
assessor's tax roll at least seven (7) days prior to the issuance of an Encroachment Permit, and delivered to
the residents and business operators.
ASSIGNMENT
31. This Agreement shall not be assignable by METROMEDIA without the explicit written
approval of CITY, which approval shall not be unreasonably withheld, provided, however, that
METROMEDIA may assign the rights granted herein to a parent, successor, subsidiary, joint venturer or
affiliate of METROMEDIA now or hereinafter existing, by only providing notice to CITY of such
assignment. However, this Agreement shall be binding on successors and assigns and shall be disclosed to
assignee. Assignee shall unconditionally acknowledge Agreement in writing within ninety (90) days of
assignment or it terminates without further action.
ENTIRE AGREEMENT
13
32. This Agreement contains the entire understanding between the parties with respect to the
subject matter herein. There are no representations, agreement or understandings (whether oral or written)
between or among the parties relating to the subject matter of this Agreement which are not fully expressed
herein. This Agreement may not be amended except pursuant to a written instrument signed by all parties.
SEVERABILITY
33. If any one or more of the covenants or agreements or portions thereof provided in this
Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable
or unenforceable, such covenant or covenants, such agreement or agreements, or such portions thereof shall
be null and void and shall be deemed separable from the remaining covenants or agreements or portions
thereof and shall in no way affect the validity or enforceability of the remaining portions of this Agreement,
and the parties shall negotiate in good faith to replace anysuch covenant, agreement or portion found to be
null and void.
THIRD -PARTY MODIFICATIONS
34. This Agreement shall be subject to such changes or modifications as may be required or
authorized by any regulatory body or commission in the exercise of its lawful jurisdiction and any
modification, revision, renewal, or extension of this Agreement shall so state.
TERMINATION
35. This Agreement shall terminate fifteen (15) years from the effective date unless renewed in
writing prior to said termination date. This Agreement may be terminated by CITY upon thirty (3 0) days
written notice to METROMEDIA if CITY determines that the provisions herein interfere with the use or
disposal of said Public Right -of -Way or any part thereof by CITY. Where only a portion of
METROMEDIA's Fiber Optic Network Facilities interferes with the use or disposal of said Public Right -of -
Way, CITY, at its sole discretion, may elect to require METROMEDIA to relocate the said portion in
accordance with this Agreement. This Agreement may be terminated by CITY for failure, neglect or refusal
by METROMEDIA to fully and promptly comply with any and all of the conditions of this Agreement, or
for nonuse, upon thirty (3 0) days of receipt of the notice that the cited condition has ceased, been corrected
or, subject to CITY's agreement, is diligently being pursued by METROMEDIA.
36. Upon termination of this Agreement, and upon written request by CITY, METROMEDIA,
at its own cost and expense, agrees to remove or, at CITY's discretion, abandon in place some or all of its
Fiber Optic Network Facilities from the Public Right -of -Way as set forth in the Removal and Relocation
provisions of this Agreement. Should METROMEDIA in such event fail, neglect or refuse to make such
removals or restoration within one hundred eighty (180) 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 METROMEDIA which
expense METROMEDIA agrees to pay to CITY upon demand. Subject to any mandate by State or Federal
law upon the CITY to continue to permit METROMEDIA to keep its Fiber Optics Facilities in place upon
termination of this Agreement, and upon written request by CITY, METROMEDIA at its own cost and
expense, agrees to remove or, at CITY'S DISCRETION, ABANDON IN PLACE SOME OR ALL OF ITS
14
Fiber Optic Network Facilities from the Public Right -of -Way as set forth in the Removal or Relocation
provisions of this Agreement. Should METROMEDIA fail, neglect or refuse to make such removals or
restoration within one hundred eighty (180) days of CITY's written request, or subject to written approval
by the CITY (which approval shall not be unreasonably withheld in light of the need for the removal and
restoration), such longer period as may be reasonably required by METROMEDIA to complete such work,
then the CITY, at its sole option, may have the removal and restoration performed at the expense of
METROMEDIA, which METROMEDIA agrees to pay to CITY upon demand; however, if the CITY
proceeds with removal or restoration work under this Section after the CITY has been given written notice
by METROMEDIA that the CITY is mandated by State or Federal law to continue to permit
METROMEDIA to keep its Fiber Optics Facilities in place, then the CITY would proceed with such
removal or restoration at risk that the allocation of those costs of such removal and restoration may only be
determined in a court of law.
NOTICE
37. METROMEDIA's Network Operations Control 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:
regarding such problems or complaints. METROMEDIA shall designate a person in California who is
authorized to accept service of process on behalf of METROMEDIA.
38. All notices given or which may be given pursuant to this Agreement shall be in writing and
transmitted by United States Postal Service, or by private delivery systems, or by facsimile if followed by
United States Postal Service, or by private delivery systems as follows: .
To CITY at: City of BURLINGAME
Attention: George Bagdon
Director of Public Works
501 Primrose Road
BURLINGAME, CA 94010
Fax Number: (650) 685-9310
To METROMEDIA at: METROMEDIA FIBER NETWORK SERVICES, INC.
Attention: Howard Finkelstein, President
One North Lexington Avenue
White Plains, New York 10601
Fax No.: 914-421-6777
IF7
With a copy to:
Metromedia Fiber Network Services, Inc.
Attn: Dennis Codlin, Vice President, Legal Affairs
One North Lexington Avenue - 411 Floor
White Plains, New York 10601
Fax No.: 914-421-6777
City Metromedia Fiber Network Services, Inc.
By: By:
ATTEST: ATTEST:
Lary Anderson, City Attorney
S:\APUBLICWORKSDIR\PROJECTS\NffiTROMEDIAAgreement
16
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