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HomeMy WebLinkAboutReso - CC - 131-1999RESOLUTION NO. 131-1999 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE DIRECTOR OF PUBLIC WORKS TO EXECUTE AN ENCROACHMENT AGREEMENT WITH WILLIAMS COMMUNICATIONS, INC. DBA VYVX, INC. RESOLVED, by the City Council of the City of Burlingame: WHEREAS, Williams Communications, Inc. has sought the approval of the City to install fiber optic network facilities in the City's rights-of-way; and WHEREAS, the City is obligated to allow such installations in an equitable manner subject to the protection of the public health, safety, and welfare; and WHEREAS, following negotiations, Williams Communications, Inc. has agreed to the terms and conditions found in the attached agreement, NOW, THEREFORE, IT IS RESOLVED AND 1. The Agreement attached hereto as Exhibit A is approved. 2. The Director of Public Works is authorized and directed to execute the agreement for and on behalf of the City. 3. The City Clerk is directed to witness the Director's signature on behalf of the City. PO , e--, -o MAYOR I, JUDITH A. MALFATTI, City Clerk ofthe City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 6th day of DECEMBER , 1999, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: COFFEY, GALLIGAN, JANNEY, O'MAHONY, SPINELLI NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE 01 I PRI®R 110 CITY - , ENCROACHMENT AGREEMENT BETWEEN THE CITY OF BURLINGAME AND WILLIAMS COMMUNICATIONS, INC., DBA VYVX, 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 WILLIAMS COMMUNICATIONS, INC., DBA VYVX, INC., (herein termed "WILLIAMS"). RECITALS WHEREAS, on October 21, 1999, WILLIAMS received Certificates of Public Convenience and Necessity to operate as a telephone corporation to provide interLATA and intraLATA private line high-speed digital transmission services from the Public Utilities Commission of the State of California (herein termed PUC); and WHEREAS, WILLIAMS 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, WILLIAMS 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 WILLIAMS agree as follows: "WILLIAMS" means WILLIAMS COMMUNICATIONS, INC., DBA VYVX, 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 CITY, including the Federal Communications Commission and the State of California Public Utilities Commission. "Agreement" means this "AGREEMENT BETWEEN THE CITY OF BURLINGAME AND WILLIAMS COMMUNICATIONS, INC., DBA VYVX, INC., FOR THE INSTALLATION OF FIBER OPTIC NETWORK 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 which 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 WILLIAMS, 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 govern 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 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 of voice, video, data, and information in rendering teleconferencing and other services which are permitted to be offered by WILLIAMS under applicable Laws. LIMITATIONS AND RESTRICTIONS I. CITY hereby agrees to permit WILLIAMS, 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 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 WILLIAMS 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 WILLIAMS, 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 WILLIAMS, 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 WILLIAMS 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 WILLIAMS 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 to Persons located within the limits of the CITY. Any work performed pursuant to the rights granted to WILLIAMS 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. WILLIAMS 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. WILLIAMS 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 7. WILLIAMS 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 WILLIAMS offers to its customers through the Fiber Optic Network Facilities in Public Right -of -Way consists of business and residential Telecommunications Services which are presently permitted by law. If the nature or character of WILLIAMS' service changes to include additional or alternative services, including but not limited to, community antenna television systems or commercial video programming, WILLIAMS 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. WILLIAMS acknowledges that any expansion or change in the character or nature of the Telecommunications Services may increase CITY's regulatory authority over such services, and this may require WILLIAMS 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. B. Nothing in this Agreement shall be construed as granting or creating any franchise rights. RESERVATION OF RIGHTS 9. 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. Further, Williams reserves any and all rights it may have now or in the future, including but not limited to those rights under the Telecommunications Act of 1996, its amendments, or judicial interpretations, to provide its services. 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 WILLIAMS or any right WILLIAMS may have under the law to provide services through the fiber optic infrastructure pursuant to state or federal laws, rules or regulations. WILLIAMS 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 WILLIAMS. Nothing herein is intended to impose regulations or conditions on WILLIAMS that CITY is preempted from imposing by state or federal laws. REMOVAL AND RELOCATION 10. WILLIAMS 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 on a nondiscriminatory basis 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, WILLIAMS 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 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 WILLIAMS and WILLIAMS shall reimburse the CITY any and all expenses, including administrative overhead. If WILLIAMS 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 WILLIAMS' sole cost and expense . WILLIAMS shall execute such documents of title as will convey all right, title, and interest in the dedicated Facilities, or any part 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. 4 11. Should CITY intend to authorize or permit installations of a third party (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 WILLIAMS 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 party shall insure that WILLIAMS Fiber Optic Facilities are not interrupted during the installation of their Facilities. 12. WILLIAMS 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 WILLIAMS, or are abandoned for a continuous period in excess of six (6) months, WILLIAMS 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 WILLIAMS is permitted by CITY to abandon its facilities in place, any such abandoned facilities shall be deemed conveyed to CITY and WILLIAMS 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, WILLIAMS 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 WILLIAMS remove the Fiber Optic Network Facilities from the Public Right -of -Way, WILLIAMS 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, WILLIAMS shall obtain an Encroachment Permit from the CITY. If WILLIAMS 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 WILLIAMS and charge the actual costs incurred to WILLIAMS. Upon receipt of a demand for payment by CITY, WILLIAMS shall reimburse CITY for such costs. CONSTRUCTION ENCROACHMENT PERMIT AND FEES 15. WILLIAMS shall apply for a project specific Encroachment Permit for all work within the Public Right -of -Way and any other regulatory permits. WILLIAMS 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 of this Agreement, prior to issuance of permit (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 of the 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. WILLIAMS shall utilize contractors licensed in the State of California to accomplish any work. WILLIAMS and any of its agents working in the CITY shall obtain a current CITY business license. Upon the completion of construction work, WILLIAMS 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. WILLIAMS 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, WILLIAMS also shall pothole all CITY mains and customer services lines prior to crossing over, under, or between such Underground Facilities. WILLIAMS 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 WILLIAMS. Such identification shall be detectable from ground level without opening the street. PERFORMANCE BOND 17. Prior to the issuance of an Encroachment Permit, WILLIAMS 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 WILLIAMS within and affecting the Public Right -of -Way to guarantee and assure the faithful performance of WILLIAMS' obligations under this Agreement. CITY shall have the right to draw against the surety bond in the event of a default by WILLIAMS or in the event that WILLIAMS fails to meet and fully perform any of its obligations; provided that WILLIAMS is first given written notice of any intent to draw against the bond and an opportunity to cure. Following completion of the work by WILLIAMS and its inspection and acceptance by the Public Works Director, the performance bond shall remain in effect to the extent of ten percent (10%) of the value of the work to guarantee and assure that faithful performance of WILLIAMS' 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 WILLIAMS or in the event that WILLIAMS 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 is. WILLIAMS 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. Any premature deterioration of the surface or subsurface improvements as determined by CITY shall be the responsibility of WILLIAMS to the extent attributable to WILLIAMS' activities; this responsibility shall survive this Agreement or any abandonment of Facilities for a period of two (2) years from the date of WILLIAMS' most recent installation of or improvements on the Facilities. WILLIAMS 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 WILLIAMS. 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 WILLIAMS has preexisting installation(s), WILLIAMS shall assume the responsibility to verify the location of the preexisting installation and notify CITY and any third party of WILLIAMS' proposed installation. The cost of any work required of such third party or CITY to provide adequate space or required clearance to accommodate WILLIAMS' installation shall be home solely .by WILLIAMS. PARTICIPATION WITH OTHER UTILITIES 20. WILLIAMS agrees to cooperate in the planning, locating and constructing of its Fiber Optic Network Facilities in utilityjoint 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 WILLIAMS. RECORDS AND FIELD LOCATIONS 21. WILLIAMS 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, WILLIAMS 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 CITY for the purpose of confirming the location of Facilities to accomplish the design or construction of public facilities, WILLIAMS 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. 22. WILLIAMS 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 23. WILLIAMS shall install a locator wire or other location method mutually agreed upon by CITY and WILLIAMS in conjunction with its construction of the facilities in this agreement. HOLD HARMLESS AND INDEMNIFICATION 24. WILLIAMS, jointly and severally, for itself, its successors, agents, contractors and employees, hereby agrees to hold harmless, defend (with counsel selected by WILLIAMS and reasonably satisfactory to CITY) and indemnify CITY, its officers, Council members, 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 WILLIAMS to indemnify and hold harmless includes the duties to defend as set forth in Section 2778 of the Civil Code. It is the express intent of the parties that WILLIAMS will indemnify and hold harmless Indemnitees from any and all claims, suits or actions arising from any cause whatsoever as set forth above, these regardless of the existence or degree of fault or negligence on the part of CITY, WILLIAMS 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 WILLIAMS' use or occupancy, WILLIAMS at its expense, shall clean all affected property to the reasonable satisfaction of CITY and any governmental body having jurisdiction. WILLIAMS shall indemnify, hold harmless and defend Indemnitees (with counsel selected by WILLIAMS and reasonably satisfactory to CITY) against all Liability incurred by CITY as a result of WILLIAMS' 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 WILLIAMS under this Section 23 shall survive termination of this Agreement. 25. 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 WILLIAMS or its customers for any loss of service, downtime, lost revenue or profits, or third -party damages. INSURANCE 26. Any person, firm or corporation WILLIAMS authorizes to work upon the Public Right -of -Way, including any subcontractor, shall be deemed to be WILLIAMS' 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, WILLIAMS 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 WILLIAMS (or its agents). Prior to the start of the work or entry onto the Public Right -of -Way, WILLIAMS agrees to procure and maintain, and if not covered by WILLIAMS' insurance, 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. WILLIAMS 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 WILLIAMS shall furnish CITY with a certificate evidencing such coverage together with a verification thereon as follows: "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 of work under this Agreement." WILLIAMS shall also maintain Employer's Liability coverage with minimum limits of $2,000,000 Whether FELA or Workers' Compensation applies, WILLIAMS shall furnish the CITY with the Certificate(s) of Insurance required hereunder prior to the commencement of work. The Certificate shall also provide that WILLIAMS' policy will not be canceled or have coverage reduced without thirty (30) days prior written notice. b. Commercial General Liability Insurance. WILLIAMS shall at its own cost and expense, also procure and maintain Commercial General Liability insurance which shall include as additional insureds the CITY, its Council members, 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, WILLIAMS 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 WILLIAMS 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 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 WILLIAMS. Said policy(ies) shall protect WILLIAMS and CITY in the same manner as though a separate policy had been issued to each, but nothing in said policy(ies) shall 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. WILLIAMS 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 $1,000,000 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. WILLIAMS 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, WILLIAMS may choose to self -insure this exposure, but in no instance shall 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 WILLIAMS' 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 WILLIAMS' start of work (including subsequent policies purchased as renewals or replacements). (2) WILLIAMS 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, WILLIAMS 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. (4) Policy allows for reporting of circumstances or incidents that might give rise to future claims In addition to the requirements described above, WILLIAMS shall comply with any additional coverages required by federal, state or local laws, rules and regulations. WILLIAMS 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 reasonably acceptable to CITY. Upon evidence of financial capacity satisfactory to CITY, WILLIAMS' obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance. 27. 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 ANI (or equivalent). 28. 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 29. WILLIAMS 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 WILLIAMS 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 construction, and delivered to the residents and business operators, ASSIGNMENT 30. This Agreement shall not be assignable by WILLIAMS without the explicit written approval of CITY, which approval shall not be unreasonably withheld, conditioned or delayed, provided, however, that WILLIAMS may assign the rights granted herein to a parent, successor, subsidiary, joint venturer or affiliate of WILLIAMS 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 31. 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 32. 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 any such covenant, agreement or portion found to be null and void. Its] THIRD -PARTY MODIFICATIONS 33. 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 34. This Agreement shall terminate fifteen (15) years from the effective date unless renewed in writing prior to said termination date and shall continue year-to-year after the initial term, upon the same terms and conditions, unless one of the parties elects to terminate the Agreement upon sixty (60) days' written notice to other party. This Agreement may be terminated by CITY upon thirty (30) days' written notice to WILLIAMS if CITY determines on a nondiscriminatory basis 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 WILLIAMS' 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 WILLIAMS to relocate the said portion in accordance with this Agreement. This Agreement may be terminated by CITY for failure, neglect or refusal by WILLIAMS to fully and promptly comply with any and all of the conditions of this Agreement, or for nonuse, upon thirty (30) 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 WILLIAMS. 35. Upon termination of this Agreement, and upon written request by CITY, WILLIAMS, 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 WILLIAMS 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 WILLIAMS which expense WILLIAMS agrees to pay to CITY upon demand. NOTICE 36. WILLIAMS' 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: 888-945-2255 regarding such problems or complaints. WILLIAMS shall designate a person in California who is authorized to accept service of process on behalf of WILLIAMS. (The remainder of this page is left intentionally blank.) 11 37. 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 WILLIAMS at: WILLIAMS COMMUNICATIONS, INC. DBA in California as VYVX, INC., a Delaware Corporation Attention: General Counsel Williams Communication, Inc. One Williams Center, MD41 Tulsa, OK 74172 Tel: (918) 573-6000 CITY OF BURLINGAME WILLIAMS COMMUNICATIONS, INC., DBA VYVX, INC. Title: ATTEST: Larry Anderson, City Attorney ATTEST: 12 0 m x X W