HomeMy WebLinkAboutCC Resolution 10859 (Metromedia Fiber Network Services)A RESOLUTION AUTHORIZING THE SIGNING OF A
RIGHT OF WAY AGREEMENT WITH METROMEDIA
FIBER NETWORK SERVICES, INC.
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The MAYOR and CITY CLERK are authorized to execute, on behalf of the City
of San Rafael, an agreement with
METROMEDIA FIBER NETWORK SERVICES, INC.
a copy of which is hereby attached as Exhibit "A" and by this reference made a part
hereof.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that
the foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of the Council of said City on Monday, the 18`h day of June, 2001, by the
following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Phillips & Vice -Mayor Miller
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
DISQUALIFIED: COUNCILMEMBERS: Mayor Boro (due to conflict of interest)
File No.: 01.12.25
JEAIVANt M. LEON NI, City Clerk
RESOLUTION NO. 10 8 5 9
A RESOLUTION AUTHORIZING THE SIGNING OF A
RIGHT OF WAY AGREEMENT WITH METROMEDIA
FIBER NETWORK SERVICES, INC.
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The MAYOR and CITY CLERK are authorized to execute, on behalf of the City
of San Rafael, an agreement with
METROMEDIA FIBER NETWORK SERVICES, INC.
a copy of which is hereby attached as Exhibit "A" and by this reference made a part
hereof.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that
the foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of the Council of said City on Monday, the 18'h day of June, 2001, by the
following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Phillips & Vice -Mayor Miller
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
DISQUALIFIED: COUNCILMEMBERS: Mayor Boro (due to conflict of interest)
File No.: 01.12.25
JEAAA M. LEON INI, 'City
COPY �5a
EXE IE T A
RIGHT OF WAY AGREEMENT
BETWEEN THE CITY OF SAN RAFAEL, CALIFORNIA AND
METROMEDIA FIBER NETWORK SERVICES, INC.
This Agreement is entered into as of June L 8, 2001 ("Effective Date") by and between the City of
San Rafael, California, a municipal corporation (the "City") and Metromedia Fiber Network Services,
Inc., a corporation organized and existing under the laws of the State of Delaware ("Company").
Recitals
A. Company desires to install a fiber optic telecommunications system consisting in part of a
bundle of optical fibers and related facilities (the "System") within the public rights-of-way owned and
controlled by the City. The System is shown and described in permit applications on file with the
Director of Public Works and may be modified by subsequent permits approved by the City.
B. The purpose of this Agreement is to provide the general framework within which
Company will install the System. The specific physical design of the System and detailed approvals of
the installation of the System will occur through the issuance of one or more encroachment permits by the
City. This Agreement shall not be deemed to approve any particular design or installation technique.
This Agreement shall apply to the System regardless of whether Company utilizes conduit or other
facilities owned by third parties within the public rights-of-way.
C. Company asserts that it may under federal and state law construct the System along and
upon any public road or highway within the City without obtaining a franchise or other agreement from
the City and without paying rent or a franchise fee to the City.
D. City asserts that, because, among other reasons, Company's service offerings are not
limited exclusively to voice communications and other services associated with voice communications, it
has the legal authority to require Company to enter into a franchise or other agreement and to pay rent or a
franchise fee to the City as a condition of constructing and operating the System on public roads and
highways within the City.
E. This Agreement is intended as a settlement and compromise between the parties in lieu of
litigation, with Company agreeing to perform beyond what it believes it can be legally required to do, and
City agreeing to accept less than it believes it can require under federal, state and local law, and with both
parties agreeing to refrain from instituting a legal action concerning this Agreement as to their respective
legal rights in connection with the assertions set forth in Recital C and Recital D, above.
Agreements
In consideration of the Recitals set forth above, the terms and conditions of this Agreement and
other valuable consideration, the adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
INSTALLATION OF SYSTEM
1.1 Permitted Installation.
Subject to the issuance of encroachment permits, during the term of this Agreement, Company
may install and maintain the System within the City's public rights-of-way in compliance with all
provisions of this Agreement. Company shall undertake and perform any work authorized by this
Agreement in a skillful and workmanlike manner, free of defects.
1.2 Compliance with Code.
Company shall comply with the provisions of the San Rafael Municipal Code (the "Code") which
are incorporated herein by reference as if set forth fully herein.
1.3 Encroachment Permits.
Company shall obtain encroachment permits from the City for the installation of the System and
for any other work within the City's public rights-of-way as required by the Code. The installation of any
above -ground equipment, such as amplifiers and cabinet boxes, shall require the approval of the City's
Director of Public Works and any other officials specified by the Code. Company shall submit all plans,
schedules, and information required by the Code and the Director of Public Works. Company also shall
submit all required fees and bonds or other security required by the Director of Public Works in
accordance with the Code. All work within the public rights-of-way shall be performed in strict
compliance with an encroachment permit. Company shall comply with all regulatory requirements,
including, without limitation, compliance with Certificate of Public Convenience and Necessity Nos. 98-
07-108 and 00-09-039 issued by the California Public Utilities Commission, the California Environmental
Quality Act, and City requirements regarding directional boring. Company shall promptly submit to City
accurate as -built plans and record drawings certified by a professional engineer showing in detail, the
location, depth, and size of all Company facilities in the public rights-of-way within sixty (60) days of
completion of the System. Such plans shall be submitted in the form and with the detail required by the
Director of Public Works. Company shall submit updated as -built plans for any expansion of the System
that increases the amount of right-of-way used or occupied by the Company within sixty (60) days after
the completion of such expansion.
1.4 Coordination of Excavation with Other Permittees.
At least thirty (30) days prior to commencing excavation work in the public right-of-way pursuant
this Agreement, Company shall notify in writing, on a form approved by the City, other existing or
potential right-of-way users shown on the list of users maintained by the City. The notice shall describe
the work to be performed, the specific rights-of-way that will be used, and the time when such work will
be performed. All persons receiving such notice shall have thirty (30) days from the date thereof to
inform in writing Company and the City that such person desires to perform work jointly with Company.
To the extent reasonably feasible, Company shall coordinate its work with any persons timely informing
Company that it desires to perform work jointly in the right-of-way provided that such persons obtain any
required right-of-way agreement and permits from the City as required by the Code before such persons
install any facilities or use any facilities installed by Company on their behalf. Any work performed by
Company on behalf of another person must be authorized by an encroachment permit issued by the City.
1.5 Use of Other City Property.
Company is not authorized to use any City property located outside of the public rights-of-way,
nor any City infrastructure located within the public rights-of-way, such as light poles, without the
express written agreement of the City.
1.6 Membership In Underground Service Alert.
Pursuant to Government Code Section 4216. 1, Company shall become a member of Underground
Service Alert -Northern California.
1.7 Completion of System.
Once a permit is issued, Company shall complete the construction and installation of the System
in accordance with the construction schedule approved by the Director of Public Works in the permit.
ARTICLE 2
AUTHORIZED USES
2.1 Permitted Uses.
This Agreement authorizes the use of the System by Company to provide all services it is
otherwise permitted to provide, including, without limitation, those telephone services described in its
Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission and
the lease of unbundled network elements. Notwithstanding the foregoing, this Agreement does not
authorize the Company to use the System to provide Cable Service or video programming to subscribers
within the City, or to operate an Open Video System, as those terms are defined in federal law (together
"Video Programming Services"). Company represents and warrants that it will not use the System to
provide Video Programming Services to subscribers in the City without obtaining a separate cable
television franchise from the Marin Telecommunications Agency ("the MTA"). Company also represents
and warrants that it will include a provision in its customer contracts requiring its System lessees and
transferees to obtain all necessary City or MTA authorizations prior to using the System and Company
agrees to take all reasonable actions necessary to enforce such a provision.
2.2 Audit of System Use.
The City shall have the right to review and inspect the books and records of Company in order to
verify that the System is not being used for Video Programming Services. Such review may include
Company's lists of wholesale customers and customers that resell services provided over the System. The
City acknowledges that some of the information, including Company's customer lists, may be confidential
and proprietary and shall be treated by the City accordingly to the extent permitted by law. The City may
review Company's books and records at the Company's nearest business office, provided that office is
located within twenty-five (25) miles of the City. If Company's nearest business office is not located
within twenty-five (25) miles of the City, Company and the City agree to identify a mutually convenient
document production and review site that is no more than twenty-five (25) miles from the City.
ARTICLE 3
RIGHT-OF-WAY USAGE FEE
3.1 Fee.
A. Installation Rate. Company shall pay annually to the City the sum of one dollar and fifty
cents ($1.50) per linear foot for conduits, ducts, innerducts, fiber cables, and other similar facilities
(together "Conduit") installed by Company in the City's public rights-of-way. The total number of
installed Conduit shall not be limited, but the total size of such Conduit installation shall not exceed a
diameter of thirty six inches (36"), excluding other facilities such as vaults and manholes.
B. Occuuancv Rate. Company shall pay annually to the City the sum of seventy five cents
($.75) per linear foot for occupancy of Conduit purchased or leased by Company from third parties,
regardless of the number of conduits.
3.2 Time of Payment.
Company shall pay the total sum due under Section 3.1 of this Agreement for the entire six (6)
year term of the Agreement in three equal installments. The first installment shall be paid upon the
issuance of the required encroachment permits for construction of the System in the City. The second
installment shall be paid upon completion of construction of the System in the City. The third and final
payment shall be made six (6) months after completion of construction of the System in the City. The
payments shall be based on the most current as -built maps provided by the Company or the conduit
owner. The third and final payment shall include any adjustments required to reflect the actual linear
footage of conduit installed and/or occupied by Company. A late payment charge on any unpaid amount
shall accrue from the due date until paid at a rate of one and one-half percent (1-1/2%) per month until
paid. City shall have the right to audit Company's as -built maps to ensure proper calculation of payments.
Company shall not be entitled to a refund of any payments made pursuant to this section in the event that
the City terminates this Agreement for cause pursuant to Section 4.3.
3.3 Place of Payment.
Payment pursuant to this section shall be made to: City of San Rafael, Director of Management
Services/Assistant City Manager, Room 203, 1400 Fifth Avenue, P.O. Box 151560, San Rafael, CA
94915-1560.
3.4 Satisfaction of Fee Obligation.
The provisions of this Article and Section 4.1 shall satisfy in full, for the term of this Agreement
as may be extended, any right-of-way usage fee requirements of the Code related to the installation and
maintenance of the System.
ARTICLE 4
TERM AND TERMINATION
4.1 Term and Extension.
The initial term of this Agreement shall be for six (6) years after the date of this Agreement and
may be extended only upon the mutual agreement of the parties. Upon the commencement of any
extended term, the installation rate and the occupancy rate of compensation under Section 3.1 of this
Agreement shall be increased by 5% or the increase in Consumer Price Index -All Urban Consumers for
the area of San Francisco/Oakland/San Jose, CA, whichever is greater. The compensation owed for the
extended term shall be paid annually on the anniversary of the effective date of this Agreement.
4.2 Occupancy Upon Expiration or Termination.
Except to the extent that Company has the legal right to continue to use and/or maintain the
System pursuant to state or federal law or otherwise, Company shall discontinue use of the System
immediately upon expiration or termination of this Agreement and within one hundred and twenty (120)
days after expiration or termination of this Agreement, Company shall either completely remove the
System or, with City approval, abandon the System in place. Notwithstanding the foregoing, the Public
Works Director may require a shorter period due to exigent circumstances and may authorize a longer
period if it is in the public interest. If Company fails to remove the facilities within the prescribed time
period and the City has not approved abandonment in place, the City may remove the facilities at the
expense of Company, and Company shall promptly reimburse the City for any and all expenses, including
but not limited to administrative, legal and consultant costs, within thirty (30) days after receiving an
invoice from the City. Any removal or relocation work by Company shall only be done pursuant to an
encroachment permit. Notwithstanding the expiration or termination of this Agreement, to the extent
Company's facilities lawfully remain in the public rights-of-way, Company shall comply with reasonable
time, place and manner regulations or any other lawful regulations imposed by the City that are authorized
by Public Utilities Code Section 7901.1 or other applicable state or federal laws.
4.3 Termination.
The City may terminate this Agreement by giving sixty (60) days written notice of termination
upon the occurrence of any of the following:
A. Failure of Company to make any payment required by this Agreement, where such failure
continues for a period of sixty (60) days after written notice by City.
B. Violation of any provision of this Agreement or any encroachment permit issued
hereunder, where such violation is not cured within sixty (60) days after written notice by City or, where
such violation cannot reasonably be cured within sixty (60) days, Company fails to promptly begin such
cure and thereafter bring it to completion within the time required by the City.
C. An order entered by a court of competent jurisdiction approving a petition in bankruptcy
or ordering the dissolution, winding up or liquidation of Company or appointing a custodian, receiver,
trustee, or other officer to administer a substantial part of Company's property.
D. The revocation, expiration or other loss of applicable permits required by City, state or
federal law for the use, maintenance or operation of the System.
Company may request a hearing before the City Council during the sixty (60) day notice of
termination period in the event that Company believes there are insufficient grounds for the termination.
Upon the conclusion of such hearing, the City Council shall decide whether this Agreement shall be
terminated. The decision of the City Council shall be final.
ARTICLE 5
REMOVAL AND RELOCATION
5.1 Removal Due to Public Project.
Upon receipt of a written demand from the City, Company, at its sole cost and expense, shall
remove and relocate any System facilities installed, used and/or maintained by Company under this
Agreement when such removal or relocation is made necessary due to any work proposed to be done by
or on behalf of the City or other governmental agency, including but not limited to, any change of grade,
alignment or width of any street, sidewalk or other public facility, installation of curbs, gutters or
landscaping and installation, construction, maintenance or operation of any underground or aboveground
facilities such as sewers, drains, pipes, power lines, and tracks. Company shall complete the removal or
relocation within one hundred and twenty (120) days of receipt of notice from the City or according to an
agreed upon schedule with the City of no less than one hundred and twenty (120) days. Notwithstanding
the foregoing, the City's Director of Public Works may require a shorter period due to exigent
circumstances and may authorize a longer period if it will not delay the public project. If Company fails
to remove or relocate the facilities within the prescribed time period, City may remove the facilities at the
expense of Company, and Company shall promptly reimburse the City any and all expenses, including
administrative, legal and consultant costs, within thirty (30) days after receiving an invoice from the City.
Any removal or relocation work by Company shall only be done pursuant to an encroachment permit.
5.2 Undergrounding.
Upon the receipt of a written demand from City, Company shall replace any or all of its aerial
facilities with underground facilities in accordance with all applicable laws.
5.3 Abandonment.
In the event the System, or any part thereof, is abandoned for a period of six (6) months or more,
Company shall promptly vacate and remove the System or the abandoned part thereof at Company's sole
expense. Alternatively, the City may allow Company, in its sole discretion, to abandon the System, or any
part thereof, in place and convey it to the City. If Company fails to remove the System as required by the
City pursuant to this Section and the Code within one hundred and twenty (120) days after receipt of
written notice from the City, the City may, in its sole discretion, (a) remove the System at Company's sole
expense, which expense Company shall promptly reimburse to the City within thirty (30) days after
receiving an invoice for such expenses, including all administrative, legal and consultant costs or (b)
deem the System, or any part thereof, to have been abandoned and conveyed to the City. Notwithstanding
the foregoing, if this Agreement expires or is terminated, this section shall not apply to the extent it is
preempted by California Public Utilities Code Section 7901 or otherwise prohibited by other applicable
law. In the event of such preemption, Company shall comply with reasonable time, place and manner
regulations or any other lawful regulations imposed by the City that are authorized by Public Utilities
Code Section 7901.1 or other applicable state or federal laws.
5.4 Repair of Rights -of -Way.
Whenever the removal or relocation of facilities is required under this Agreement, Company shall
promptly repair and return the public rights-of-way and adjacent property to a safe and satisfactory
condition to the City in accordance with the City's street restoration standards adopted by resolution of
the City Council. If Company fails to do so, the City shall have the option to perform such work at
Company's sole expense, which expenses Company shall promptly reimburse to the City within thirty
(30) days after receiving an invoice for such expenses, including all administrative, legal and consultant
costs.
ARTICLE 6
TAXES
6.1 Company agrees that it will be solely responsible for the payment of any and all lawful taxes, fees
and assessments relating to its use and maintenance of the System including but not limited to all taxes,
fees and assessments listed in Company's Certificate of Public Convenience and Necessity issued by the
California Public Utilities Commission. Pursuant to Section 107.6 of the California Revenue and Taxation
Code, the City hereby advises, and Company recognizes and understands, that Company's use of the
public rights-of-way may create a possessory interest subject to property taxation and that Company will
be subject to the payment of property taxes levied on such interest. Company will co-operate with the
Marin County Assessor in providing any information necessary for the Assessor to make a property tax
determination.
ARTICLE 7
INDEMNIFICATION
7.1 Company shall indemnify, defend, and hold harmless the City and its officers, officials, agents,
employees and volunteers against any and all liabilities, losses, claims, actions, causes of action or
demands whatsoever against any of them, including any injury to or death of any person or damage to
property or other liability of any nature, including but not limited to attorney=s and expert fees and court
costs, arising out of or connected with the performance of this Agreement, the installation and
maintenance of the System, or the use of any public right-of-way by Company or Company's employees,
officers, officials, agents, transferees, contractors or subcontractors. The obligation to indemnify the City
under this section shall not apply to any liabilities, losses, claims, actions, causes of action or demands
arising from City's own negligence, willful misconduct or criminal acts.
ARTICLE 8
INSURANCE
8.1 Minimum Insurance Requirements.
Company shall obtain and maintain at its sole cost for the duration of this Agreement the
following insurance:
A. Minimum Scoue of Insurance. Coverage shall be at least as broad as:
1. Insurance Services Office form number GL0002 (Ed. 1/73) covering Comprehensive
General Liability and Insurance Services Office form number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage
("occurrence" form CG 0001).
2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile
Liability, code 1 "any auto" and endorsement CA 0025.
3. Workers' Compensation insurance as required by the Labor Code of the State of
California and Employers Liability insurance.
B. Minimum Limits of Insurance. Company shall maintain policy limits of no less than:
1. General Liability: $2,000,000 combined single limit per occurrence for bodily injury,
personal injury and property damage. If Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily
injury and property damage.
3. Worker's Compensation and Employers Liability: Worker's compensation limits as
required by the Labor Code and Employers= Liability limits of $1,000,000 per accident.
C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions
must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce
or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials,
employees and volunteers; or Company shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
D. Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the
following provisions:
1. General Liability and Automobile Liability Coverages.
(a) The City, its officers, officials, employees, agents and volunteers are to be
covered as insured as respects: liability arising out of activities performed by or on behalf of Company;
products and completed operations of Company; premises owned, occupied or used by Company; or
automobiles owned, leased, hired or borrowed by Company. The coverage shall contain no special
limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or
volunteers.
(b) Company's insurance coverage shall be primary insurance as respects the City,
its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City,
its officers, officials, employees, agents or volunteers shall be excess of Company's insurance and shall
not contribute with it.
(c) Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the City, its officers, officials, employees, agents or volunteers.
(d) Company's insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's liability.
2. Worker's Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its officers,
officials, employees and volunteers for losses arising from work performed by Company for the City.
3. All Coverages.
Each insurance policy required by this clause shall be endorsed to state that coverage shall
not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty
(30) days' prior written notice by certified mail, return receipt requested, has been given to the City Risk
Manager.
E. Acceptability of Insurers. Insurance shall be placed with insurers with a Best's rating of
no less than ANN.
F. Verification of Coveraze. Company shall furnish the City Risk Manager with certificates
of insurance and with original endorsements effecting coverage required by this Article. The certificates
and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind
coverage on its behalf. All certificates and endorsements are to be received and approved by the City
before work commences. The City reserves the right to require complete certified copies of all required
insurance policies, at any time.
G. Indemnification Not Limited. Any insurance required to be obtained and maintained by
Company under this Agreement shall not limit in any way Company's indemnification obligations under
Article 7 of this Agreement.
8.2. Insurance for Secondary Parties.
In the event Company hires any subcontractors, independent contractors or agents ( "Secondary
Parties") to install or maintain the System, Company shall require the Secondary Parties to obtain and
maintain the insurance required by Section 8.1 of this Agreement and comply with all of the insurance
provisions of such section. The failure of a Secondary Party to comply with this Section 8.2 shall be
considered a material breach of this Agreement by Company.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Uses Subordinate.
This Agreement is not a grant by the City of any property interest. This Agreement shall not
create a vested right of any nature in Company to use the public rights-of-way. This Agreement is subject
and subordinate to the prior and continuing right of the City and its assigns, licensees, and permittees to
use any and all of the public rights-of-way for any lawful use. It is further subject to all deeds, easements,
dedications, conditions, covenants, restrictions, encumbrances and claims of title that may affect the
public rights-of-way. Company shall be solely responsible for obtaining all necessary permits and
approvals from all public and private entities.
9.2 Notices.
All notices which shall or may be given pursuant to this Agreement shall be in writing and
transmitted through first class United States mail, or by private delivery systems, to the following address
or such other address of which a party may give written notice:
City: Director of Public Works
City of San Rafael
1400 Fifth Avenue (P.O. Box 151560)
San Rafael, CA 94915-1560
and, for insurance coverage notices, copy also to:
City Risk Manager
City Of San Rafael
1400 Fifth Avenue (P.O. Box 151560)
San Rafael, CA 94915-1560
Company: Metromedia Fiber Network Services, Inc.
360 Hamilton Avenue
White Plains NY 10601
Attn: Vice President — Legal and Regulatory Affairs
with a copy to:
Metromedia Fiber Network Services, Inc.
20936 Cabot Boulevard
Hayward, CA 94545
Attn: Director, Network Development
9.3 Attorneys Fees.
If legal action is brought by either party because of a breach of this Agreement or to enforce a
provision of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and
court cost.
10
9.4 Assignment.
Company shall provide thirty (30) days' written notice to City prior to any assignment of this
Agreement. An assignment shall not be effective until the Assignee agrees in writing to comply with and
be subject to all the terms and conditions of this Agreement and the Code. This Agreement may be
assigned in its entirely, however, Company shall remain liable for any outstanding obligations incurred
prior to such assignment. Notwithstanding the above, Company may in the ordinary course of its business
without prior written notice to the City: (i) Lease its facilities, or any portion thereof, to another person,
(ii) grant an indefeasible right of user interest in its facilities or any portion thereof, to another person, or
(iii) offer or provide capacity or bandwidth from its facilities to another person, provided that Company at
all times retains exclusive control over its facilities and remains responsible for locating, servicing,
repairing, maintaining, relocating, or removing its facilities pursuant to the provisions of this Agreement.
9.5 Settlement and Compromise.
Company agrees it will not commence any legal action challenging any provisions of this
Agreement, including but not limited to the payments required to be made by this Agreement. The City
agrees to not demand or require any additional compensation for the use of its right-of-way related to the
System, other than the compensation required by Article 3 hereof, during the term of this Agreement and
any extension thereof.
9.6 Entire Agreement.
This Agreement contains the entire agreement and understanding between the parties with respect
to the subject matter herein. There are no representations, agreements or understandings (whether oral or
written) between or among the parties relating to the subject matter of this Agreement that are not fully
expressed herein.
9.7 Amendments.
This Agreement may not be amended except pursuant to a written instrument signed by all parties.
9.8 Severability.
If any one or more of the provisions of this Agreement shall be held by a court of competent
jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be
deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity
of the remaining portions of this Agreement.
9.9 Construction of Agreement.
This Agreement shall be governed and construed by and in accordance with the laws of the State
of California. In the event that suit is brought by a party to this Agreement, the parties agree that trial of
such action shall be vested exclusively in the state courts of California, County of Marin, or in the United
States District Court, Northern District of California, in the City and County of San Francisco.
it
9.10 Successors.
This Agreement is binding upon the successors, assigns and transferees of the parties hereto.
9.11. Order of Precedence.
To the extent the provisions of this Agreement and any permit required to be obtained by
Company from City are in conflict, the provisions of the permit shall take precedence, except that the
City shall not require the payment of any additional compensation for the use of the City's right-of-
way other than the compensation required to be paid by Article 3 of this Agreement and any permit
or inspection fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month
and year first above written.
City of San Rafael, California Metromedia Fiber Network Services, Inc.,
A Municipal Corporation a Delaware Corporation
CYIVNELLER, Vice -Mayor By: eY'v�r C n t� 0Its:
(.SwarAl be�y?- Ine, ON Afi
ATTEST: /##x daq v -F ,1un e_M/.
JOANNE M. LEON INI, City Clerk
TERRI L. SUMMERS
Notary Public, State of New oark
No. 4950361
APPROVED AS TO FORM: Qualified in Westchester Cou
Commi:;sion Expires April 24, 0]
Gary Ragghianti, City Attorney
12