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HomeMy WebLinkAboutCC Resolution 11055 (Reimburse MTA for Fiber Optic Strands)RESOLUTION NO. 11 n55 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE MAYOR TO SIGN A REIMBURSEMENT AGREEMENT WITH THE MARIN TELECOMMUNICATIONS AGENCY RELATED TO LEASE PAYMENTS FOR FIBER OPTIC STRANDS INSTALLED IN THE CITY OF SAN RAFAEL UNDER A LEASE BETWEEN THE MARIN TELECOMMUNCIATIONS AGENCY AND METROMEDIA FIBER NETWORK SERVICES, INC. WHEREAS, the Marin Telecommunications Agency ("MTA") has negotiated a lease on behalf of its member agencies, including all of the Marin County cities and the County of Marin, with Metromedia Fiber Network Services, Inc. ("MFN") for the lease of two fiber optic strands in connection with the fiber optic network being installed by MFN in Marin County; and WHEREAS, MTA desires all of the Marin County cities and the County of Marin to enter into agreements with MTA to provide for reimbursement of the lease payments to be incurred under the MTA lease with MFN; and WHEREAS, the City of San Rafael has entered into a right of way agreement with MFN authorizing MFN to install a portion of its fiber optic network in the City's right of way; and, WHEREAS, the City of San Rafael is desirous of utilizing the two fiber optic strands to be installed by MFN in the City's right of way as part of the fiber optic network in Marin County; and WHEREAS, the City Council authorizes the use of the funds derived by the City from said right of way agreement with MFN for reimbursement of MTA for the City's share of the lease payments under the MTA lease with MFN. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Rafael that the Mayor is authorized to sign the MFN Fiber Lease Reimbursement Agreement with the Marin Telecommunications Agency in the form attached hereto as Exhibit I. 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 the 15th day of April, 2002, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None A. JEANNE M. LEONCINI, City Clerk File No.: 01.12.25 MFN FIBER LEASE REIMBURSEMENT AGREEMENT This Agreement is entered into as of April 15, 2002 by and between the Marin Telecommunications Agency (the MTA"), a joint powers agency, and the City of San Rafael, a municipal corporation (the "City"). Recitals A. The City has entered into a Right -of -Way Agreement with Metromedia Fiber Network Services, Inc. ("MFN") providing for the manner in which MFN may use a designated portion of the City's right-of-way for the installation of a fiber optic telecommunications system (the "System"). Under this Agreement, MFN is paying the City an annual right-of-way usage fee of $1.50 per linear foot for facilities installed in the public right-of-way and $.75 per linear foot for occupancy of existing conduit in the public right-of-way. B. The MTA is entering into a Private Network Agreement and Leased Fiber Product Order with MFN for the lease of two dark fiber strands in a point-to-point configuration (the "Lease"). A copy of the Lease is attached hereto as Exhibit A and incorporated herein by reference as if set forth in full. The MTA intends to use these fiber strands as part of a countywide institutional network and for other proper governmental purposes. As part of the Lease, MFN will provide six manhole locations for access to the fiber strands at no cost. One of these locations will be located in the City so that that the City may connect to the two fiber strands pursuant to the terms of this Agreement. C. The Lease payment under the Private Network Agreement is $100 per fiber mile as defined by the agreement. In consideration for being granted access to the two fiber strands and receiving the benefits of such access, the City is willing to reimburse the MTA for a pro -rata share of the Lease payments as provided by this Agreement. Agreement 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: Manhole Location. The City shall be provided one manhole location under the terms of the Lease that will enable the City to connect to and have access to the two fiber strands leased by the MTA from MFN. The City shall designate the precise location of the manhole at the time requested by MTA as part of the construction of the System by MFN. The City may negotiate additional manhole locations with MFN at the City's cost. All connections to and use of the leased 684377-1 1 COPY EXHIBIT I fiber by the City shall be performed in accordance with the provisions of the Lease. 2. Reimbursement. The City shall reimburse the MTA for its pro -rata share of the Lease payments based on the mileage of the System installed and maintained within the City. Commencing on the acceptance of the leased fiber by the MTA, and for the term of the Lease, the City shall pay the MTA in advance for each month of the Lease, the amount of $100 per fiber mile for each fiber strand installed and maintained in the City pursuant to the Lease as defined by Section 7.3 of the Leased Fiber Product Order. Lease payments for a partial month shall be pro -rated based on the number of days in the month that the fiber will be leased. In the event that the MTA incurs a late payment penalty due to the failure of the City to make a timely payment to the MTA, the City also shall reimburse the MTA for any such late payment penalties within thirty (30) days after written demand therefor by the MTA. In the event that the MTA receives a credit for any service outages or other nonperformance by MFN, the MTA shall provide the City with its pro -rata share of such credit within thirty (30) days after receiving such credit. 3. Indemnification By City. The City shall indemnify, defend, and hold harmless the MTA and its officers, officials, employees and agents against any and all liabilities, losses, claims, actions, or demands whatsoever, including but not limited to attorneys and expert fees and court costs, arising out of the City's connection to or use of the leased fiber strands or its performance of this Agreement. 4. Indemnification by MTA. The MTA shall indemnify, defend, and hold harmless the City and its officers, officials, employees and agents against any and all liabilities, losses, claims, actions, or demands whatsoever, including but not limited to attorneys and expert fees and court costs, arising out of the MTA's use, operation or maintenance of the leased fiber strands or its performance of this Agreement. Term of Agreement. This Agreement shall commence on the date first written above and terminate on the termination of the Lease. 6. Purpose of Agreement. The purpose of this Agreement is to provide for the City's access to the leased fiber strands and the reimbursement of a pro -rata share of the lease payments. Additional agreements may be required by the MTA in the future concerning the use, operation and maintenance of the leased fiber. 7. 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: MTA: Executive Director Martin Nichols 42 Digital Drive, Suite 11 Novato, Ca., 94949 City: City Manager Rod Gould 14005 1h Avenue San Rafael, Ca. 94901 8. Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter of this Agreement. There are no representations, agreements or understandings, oral or written, between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein. This Agreement may be amended only upon a written agreement signed by the parties. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. Approved as to form: ��- ) /' f-� City Attorney Attest: - . anne M. Leoncim, City Clerk 684377-1 3 Marin Telecommunications A ency //1'J ,- By City of San Rafael Metromedia Fiber Network Services, L PRIVATE NETWORK AGREEMENT General Terms and Conditions These General Terms and Conditions together with all Supplements, Product Order(s), Exhibits and other addenda attached hereto from time to time constitute the Private Network Agreement ("Agreement") which is effective as of , 2001 ("Effective Date") by and between Metromedia Fiber Network Services, Inc. ("MFN"), a Delaware corporation, and Marin Telecommunications Agency ("Customer"), a California public agency. MFN and Customer are collectively referred to as the "Parties" or individually as a "Party" 1. DEFINITIONS Unless otherwise defined, the terms used in this Agreement will have their normal or customary meanings. In addition, the following terms have the meanings set forth below: 1.1. "Customer Location" refers to a location specified in a Product Order and connected by Leased Fiber; 1.2. "Deliver" or "Delivery" means MFN's turnover to Customer of Leased Fiber and testing results demonstrating compliance with the Specifications; 1.3. "Demarcation Point" means the MFN termination point for Leased Fiber at each Customer Location, at which point Customer may access and interconnect its own facilities with the Leased Fiber; 1.4. "Lease Term" means the period of time Customer is permitted to lease the Leased Fiber and begins on the Acceptance Date and extends for that number of months or years stated in the Product Order; 1.5. "Leased Fiber" means all dark optical fiber strands leased by MFN to Customer pursuant to a Product Order; 1.6. "Leased Fiber and Testing_ Specifications" or "Snecifications" are those specifications set forth in Exhibit A; 1.7. "MFN Network" refers to the fiber optic network and related facilities owned or controlled by MFN; 1.8. "Managed Network Service(s)" refers to any of the managed optical network services offered by MFN in conjunction with Leased Fiber (including WaveChannel, Metro Gig -E, and Sonet services). 1.9. "Monthly Charge" means the total monthly recurring charge, including without limitation charges for Leased Fiber and other MFN products, invoiced by MFN and payable by Customer pursuant to a Product Order; and 1.10. "Product Order" means a Customer's order for Leased Fiber or Managed Network Services, executed by the Parties. 2. PRODUCT ORDERS 2.1. From time to time, the Parties will execute one or more Product Orders, each of which is automatically incorporated into the Agreement and subject to these General Terms and Conditions. Each Product Order will set forth the number of Leased Fiber strands, Customer Locations, Lease Term, estimated Delivery Date and any other relevant terms agreed upon by the Parties. Customer may order Managed Network Services pursuant to a separate Supplement and Product Order appended to these General Terms and Conditions. 2.2. After completing installation, MFN will Deliver the Leased Fiber to Customer, at which time Customer may conduct its own reasonable testing. Unless MFN is notified within twenty (20) business days after Delivery of any deficiencies, the Leased Fiber is deemed accepted by Customer at the time of Delivery. Confidential Page 1 of 10 Commercial Ver.1.2001 EXHIBIT "A" Metromedia Fiber Network Services, Ir 2.3. The "Acceptance Date" for each Product Order is the earlier of (i) Customer's acceptance of Leased Fiber, or (ii) if Customer has identified deficiencies, then the first date upon which Leased Fiber conforms in all material respects with the Specifications. 2.4. If the Parties agree, MFN may Deliver and Customer may accept and utilize a portion of the Leased Fiber prior to Delivery of Customer's entire network. Upon partial Delivery, MFN may begin invoicing and Customer agrees to pay for the Leased Fiber notwithstanding the fact that MFN may not provide complete testing results prior to full Delivery. 3. TERM OF AGREEMENT The term of the Agreement begins on the Effective Date and continues through the latest expiration of a Product Order, unless earlier terminated as provided herein. 4. INSTALLATION AND MAINTENANCE 4.1. MFN or its agents will install the Leased Fiber to the agreed upon Demarcation Point at each Customer Location. Unless otherwise specified in the Product Order, the Demarcation Point is a splice enclosure or fiber termination panel located in the basement of each location. The Leased Fiber will perform in material compliance with the specifications. 4.2. Unless otherwise specified in a Product Order, Customer agrees to pay a non-recurring "Installation Charge" calculated as MFN's actual costs plus fifteen percent (15%) for installation. 4.3. Customer must procure, at its sole cost and expense, all necessary riser conduit, optical fiber strands and any other necessary inside plant facilities within each Customer Location. MFN may install the required facilities upon Customer request and Customer will be separately invoiced for MFN's actual costs plus fifteen percent (15%). 4.4. MFN or its agents will perform all maintenance and repairs (which may include but not be limited to replacement, determined by MFN in its sole discretion) to the Leased Fiber up to the Demarcation Point at no additional charge to Customer, unless such maintenance or repair is necessary as a result of Customer's actions. Customer is not permitted to access the Leased Fiber or MFN Network except at Customer's side of the Demarcation Point as provided in this Agreement. 4.5. MFN may subcontract all or part of its performance obligations (including maintenance and installation) to a third party without consent of Customer, and MFN will remain liable for all such obligations. 5. ACCESS AND APPROVALS 5.1. Customer must obtain for MFN all licenses and approvals necessary to connect the Leased Fiber from the public rights-of-way to the Demarcation Point. If the Demarcation Point is at a point other than the basement (e.g. a different floor within a Customer Location), Customer must obtain any necessary third party license or approval for MFN to utilize existing inside plant facilities, including without limitation, power, riser conduit and fiber optics. Such licenses and approvals must extend to the installation, maintainence and retrieval of the Leased Fiber and any MFN equipment. 5.2. Customer agrees to pay all fees, recurring and non-recurring, assessed by any building owner, landlord or other third party for the necessary license and/or permission to install Leased Fiber to a Customer Location. 6. INVOICING AND PAYMENT 6.1. Upon execution of a Product Order, unless otherwise specified, Customer will pay a prepayment equal to the Monthly Charge for four (4) months, which prepayment will be applied to the last four payments of the full Lease Term. Confidential Page 2 of 10 Commercial Ver. 1.2001 Metromedia Fiber Network Services, Ii 6.2. If applicable and not otherwise specified in the Product Order, an estimated Installation Charge will be stated in the Product Order and is payable as follows: (a) 50%, payable upon execution of the Product Order; (b) 25% payable upon completion of construction and installation; (c) the balance of the actual Installation Charge payable within thirty (30) days of the Acceptance Date. 6.3. Upon the Acceptance Date, MFN will begin invoicing and Customer will begin paying all Monthly Charges and any applicable taxes in advance for each month. Notwithstanding the foregoing, unless otherwise specified in a Product Order, if Delivery is delayed as a result of Customer's failure to obtain the licenses or approvals required pursuant to Article 5, MFN may begin invoicing and Customer agrees to pay all Monthly Charges associated with the delayed Product Order. Invoices for partial months will be pro -rated. 6.4. All invoices must be paid in accordance with their terms without setoff or deduction, and late payments will accrue interest on the unpaid sum at the lesser of (i) the highest legal rate of interest permitted in the State of California and (ii) one and one-half percent (1.5%) per month. 6.5. If Customer prepays all Monthly Charges for the entire Lease Term, such prepayments are subject to Section 1.467- 1 (c)(2)(ii)(A) of the Treasury Regulations promulgated under the Internal Revenue Code of 1986, as amended ("Treas. Reg."), and will be allocated as set forth in an Exhibit to the applicable Product Order in accordance with Treas. Reg. Section 1.467-2(c). Any payment made pursuant to this Section will be treated as the "principal balance of a Section 467 loan" within the meaning of Treas. Reg. 1.467-1(e)(2). The Parties agree to utilize such allocation for all tax purposes unless otherwise required by applicable law. 7. AUTHORIZATIONS 7.1. Prior to Delivery, MFN will obtain all material and applicable authorizations, leases, licenses, easements, rights of way, franchises, approvals, permits, orders, consents, and all other rights required for MFN to operate and maintain the MFN Network and provide the Leased Fiber to Customer (collectively the "Authorizations"), and will use commercially reasonable efforts to maintain or renew all such Authorizations throughout the Lease Term. If any Authorizations are modified or terminated, threatening to cause or causing material financial harm to MFN, or preventing or materially interfering with MFN's control, possession and/or use of the MFN Network or its ability to provide the Leased Fiber, then MFN, in its sole discretion will: (i) provide Customer with a comparable product on alternate portions of MFN's then existing MFN Network or on networks of third parties, or (ii) terminate this Agreement with respect to the affected Leased Fiber without further obligation or liability to Customer. The foregoing is MFN's sole and exclusive liability and Customer's sole and exclusive remedy with respect to termination as a result of the loss of an Authorization. 7.2. MFN may relocate all or any portion of the MFN Network or any of the facilities required to provide Customer with the Leased Fibers: (i) if a third party with legal authority orders or threatens to order such relocation (e.g., through eminent domain, nationalization, or expropriation) (ii) in order to comply with applicable laws, (iii) for bona fide operational reasons, (iv) to reduce governmental fees or taxes assessed against it or Customer, or (v) if it determines to do so in its reasonable business judgment. MFN agrees to provide Customer thirty (30) calendar days prior notice of a relocation, if reasonably feasible. MFN has the right to direct such relocation, including the right to determine the extent of, the timing of, and methods to be used for such relocation, provided that any relocation (a) is constructed and tested in accordance with the Specifications; (b) does not result in a materially adverse change to the operations, performance, or connection points with the network of Customer; and (c) does not unreasonably interrupt service oil the Leased Fiber. 7.3. MFN will use its commercially reasonable efforts to secure an agreement for reimbursement from any third party requiring relocation. Unless otherwise specified in a Product Order, Customer agrees to reimburse MFN for Confidential Page 3 of 10 Commercial Ver.1.2001 Metromedia Fiber Network Services, I Customer's pro rata share of MFN's costs of any relocation pursuant to Section 7.2 (i), (ii) or (iv) for which MFN is not reimbursed. 8. USE AND ASSIGNMENT 8.1. MFN is providing the Leased Fiber for Customer's exclusive use. Except as provided in this Article 8, Customer may not sublease, swap, assign, license, sublicense, sell or share the Leased Fiber. 8.2. Customer may only use the Leased Fiber for governmental purposes and may not provide services to non- governmental third parties or use the Leased Fiber for any commercial purpose. Governmental purposes include but are not limited to all programs, services and activities that a municipal entity may perform under state law that do not involve commercial activities. Governmental purposes also include educational purposes and programs, services and activities performed by non-profit corporations pursuant to a contract or any other authorization from a local agency as defined by California Government Code Section 54980(d). Additionally, Customer may not sell, lease, or grant any rights of use in the Leased Fiber as "dark fiber", as such term is commonly understood in the telecommunications industry. Any violation of this Section is a material breach. 8.3. Customer is solely responsible for obtaining, at its sole cost and expense, any and all necessary franchises, authorizations or permits specifically required as a result of Customer's, as opposed to MFN's, use, operation, access or interconnection of the Leased Fiber and its operation, maintenance, repair, and replacement of all Customer equipment associated therewith. 8.4. MFN may inspect Customer's use of the Leased Fiber at any time during normal business hours and upon at least 24 hours prior notice by MFN. MFN may make such inspection on less than 24 hours notice in cases of an emergency. 8.5. Neither Party may assign or transfer its rights or obligations under this Agreement without the other Party's prior written consent, which consent may not be unreasonably withheld, except that MFN may assign this Agreement upon notice and without Customer's consent, to a person, firm, corporation, partnership, association, trust or other entity (i) that controls, is controlled by or is under common control with MFN or (ii) into which it may be merged or consolidated or which purchases all or substantially all of its assets. Any assignment or transfer without the required consent will be void and will be considered a material breach of this Agreement. Neither Party shall unreasonably withhold consent to an assignment, provided the assignor reasonably demonstrates, to the other's satisfaction, that the assignee has the financial and other wherewithal to perform all of the assignee's obligations under the this Agreement, including, in the event of a governmental assignee, that there is an adequate funding basis to pay the charges that will be due under the Product Orders. 8.6. Any permitted assignee must assume all liabilities hereunder in writing prior to the effectiveness of such assignment. 9. OUTAGES 9.1. MFN provides continuous remote monitoring of the MFN Network backbone. Customer may notify MFN of problems by telephone at (888) 636-2778, or by such other means as the Parties may agree. MFN will respond and commence work within two (2) hours after notification or discovery of an Outage and will restore effective use of the Leased Fiber within four (4) hours after such notice or discovery. An "Outage" is defined as the complete interruption of communications between any two Customer Locations. 9.2 Customer is entitled to a credit for each continuous four (4) hour Outage period (an "Outage Period") provided the Outage is not caused by or resulting from (i) Force Majeure; (ii) an act or omission of Customer, its employees, agents or contractors; (iii) the use or failure of any Customer equipment or facilities used in connection with the Leased Fiber; or (iv) planned Outages for maintenance or repair that are scheduled and approved in advance by Customer. 9.3. For each Outage Period on a diverse ring of Leased Fiber, Customer is entitled to a credit calculated at five percent (5%) of the Monthly Charge for the affected Leased Fiber strands (the "Outage Credit"): Confidential Page 4 of 10 Commercial Ver.1.2001 Metromedia Fiber Network Services, I (a) Monthly Charge (for affected Product Order) : number of Customer Locations "X"; (b) X _ total number of Customer's Leased Fiber Strands monthly charge per fiber strand; (c) monthly charge per fiber strand multiplied by the number of affected Customer Leased Fiber strands multiplied by five percent (5%) multiplied by the number of Outage Periods = Outage Credit. 9.4. Outage Credits will not be credited or payable for any period of time during which MFN personnel or contractors are denied access to Customer Locations to remedy an Outage. 9.5. The maximum Outage Credit payable in any calendar month may not exceed the Monthly Charge payable by Customer to MFN for that same month for the affected Leased Fiber. 9.6. Unless otherwise specified, if an Outage lasts longer than ten (10) days for any reason other than "Force M_ aieure", then at any time thereafter, unless and until such Outage is corrected, Customer may terminate this Agreement with respect to the affected Leased Fiber by written notice of termination delivered to MFN. 9.7. The Outage Credit and the Customer's right to terminate under section 9.6. are MFN's sole and exclusive liability and Customer's sole and exclusive remedy for an Outage. 10. LIMITATION OF LIABILITY; INDEMNIFICATION 10.1. THE TOTAL LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR DAMAGES IS LIMITED TO THE TOTAL MONTHLY CHARGES PAYABLE BY CUSTOMER FOR THE AFFECTED PRODUCT ORDER DURING THE LEASE TERM IN WHICH THE DAMAGES WERE INCURRED. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR SUCH PARTY'S FAILURE TO PERFORM ITS RESPECTIVE OBLIGATIONS HEREUNDER, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), OR CLAIMS OF CUSTOMERS, WHETHER OCCASIONED BY ANY CONSTRUCTION, RECONSTRUCTION, RELOCATION, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY, THE OTHER PARTY OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY, ALL CLAIMS FOR WHICH DAMAGES ARE HEREBY SPECIFICALLY WAIVED. 10.2. MFN agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney's fees and expenses) by reason of any claims or actions by third parties for bodily injury or death, and damage, loss or destruction of any real or tangible personal property, which third party claims arise out of or relate to MFN's gross negligence or willful misconduct. 10.3. Customer agrees to indemnify, defend and hold MFN, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney's fees and expenses) by reason of any claims or actions by third parties for (i) bodily injury or death, (ii) Customer's or its customer's use of the Leased Fiber and conduct of their respective businesses, including without limitation, the content of any video, voice or data carried by Customer or its customers on the Leased Fiber or MFN Network; or (iii) damage, loss or destruction of any real or tangible personal property (including without limitation the MFN Network and Leased Fiber) which third party claims arise out of or relate to Customer's gross negligence or willful misconduct. Confidential Page 5 of 10 Commercial Ver. 1.2001 Metromedia Fiber Network Services, I' 11. FORCE MAJEURE 11.1. Neither party will be considered in breach of this Agreement for a failure or delay in such party's performance of one or more of its obligations hereunder if such failure or delay is caused by or attributable to the occurrence of a Force Majeure Event (as defined below). 11.2. The term "Force Maieure Event" means any cause beyond the reasonable control of the party claiming relief, including without limitation the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third -party labor dispute, flood, earthquake, fire, lightning, epidemic, war, riot civil disturbance, act of God, sabotage, failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by MFN to construct and operate the MFN Network; or any other cause beyond the reasonable control of a party. 12. DEFAULT 12.1. The following events are "Events of Default", the occurrence of which gives the non -defaulting Party the right to terminate the affected Product Order(s) by written notice following the expiration of any stated cure periods: a) Customer fails to fully pay any of the payments required pursuant to Article 6 on or before the due date or fails to pay any other amount(s) payable hereunder within fifteen (15) days after receipt of written notice of such failure; b) the breach of any material term or condition of this Agreement (including Product Orders) and such breach remains uncured thirty (30) days after delivery to the breaching Party of written notice of such breach. If the breach is of a nature or involves circumstances reasonably requiring more than thirty (30) days to cure, the time period may be extended provided the breaching Party proceeds diligently to cure the breach; C) the application for or consent to the appointment of a receiver, trustee or similar officer for it or any substantial part of its property or assets, or any such appointment is made without such application or consent by such Party and remains undischarged for a period of sixty (60) days; d) the filing of a petition in bankruptcy or makes a general assignment for the benefit of creditors or otherwise admits in writing its inability to pay its debts on time; or e) the termination of all right-of-way agreements by MFN with local public agencies in Marin County. 12.2. If Customer is in default under section 12.1. (a), above, MFN may, in addition to any other remedies that it may have under this Agreement or by law, disconnect the Leased Fiber at the Demarcation Point after expiration of the cure period. 13. EARLY TERMINATION CHARGE 13.1. If a Product Order is terminated prior to expiration by reason of: (i) Customer termination, if such termination is not an exercise of Customer's rights or remedies under the Agreement, or (ii) a Customer Event of Default, then in addition to all other sums due and owing, Customer agrees to immediately pay an "Earl Termination Charee" to MFN. The Early Termination Charge is calculated as follows: • is` year termination — 100% of all unpaid Monthly Charges for the first year, plus 80% of all unpaid Monthly Charges for the second year, plus 60% of all unpaid Monthly Charges for the third year, plus 40% of all unpaid Monthly Charges for the fourth year, plus 20% of all unpaid Monthly Charges for the fifth year, plus 10% of all remaining unpaid Monthly Charges. Confidential Page 6 of 10 Commercial Ver. 1.2001 Metromedia Fiber Network Services, In • 2nd year termination 80% of all unpaid Monthly Charges for the second year, plus 60% of all unpaid Monthly Charges for the third year, plus 40% of all unpaid Monthly Charges or the fourth year, plus 20% of all unpaid Monthly Charges for the fifth year, plus 10% of all remaining unpaid Monthly Charges. • 3`d year termination — 60% of all unpaid Monthly Charges for the third year, plus 40% of all unpaid Monthly Charges for the fourth year, plus 20% of all unpaid Monthly Charges for the fifth year, plus 10% of all remaining unpaid Monthly Charges. • 4`h year termination — 40% of all unpaid Monthly Charges for the fourth year, plus 20% of all unpaid Monthly Charges for the fifth year, plus 10% of all remaining unpaid Monthly Charges. • 5"' year termination — 20% of all unpaid Monthly Charges for the fifth year, plus 10% of all remaining unpaid Monthly Charges. • 6'h through 20'h year termination —10% of all remaining unpaid Monthly Charges. 13.2. In addition to the Early Termination Charge, Customer agrees to pay to MFN any unpaid Installation Charges. 13.3. If the Monthly Charges are fully prepaid, the Early Termination Charge is equal to the unamortized portion of the prepayment as of the date of termination. 13.4. Customer acknowledges and agrees that the Early Termination Charge reflects a reasonable estimate of the damages incurred by MFN as a result of an early termination, and is not a penalty. 13.5 In the event of a termination of a Product Order (i) by MFN pursuant to Section 12.1(a), or (ii) by Customer, for convenience and without cause and provided sixty (60) days' written notice is given to MFN, then the Early Termination Charges shall be the sole and exclusive remedy of MEN, and Customer's sole and exclusive liability. 14. REPRESENTATIONS AND WARRANTIES 14.1. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, MFN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE (i) LEASED FIBER, (ii) MFN NETWORK, (iii) MAINTENANCE (iv) CONSTRUCTION AND INSTALLATION, AND (v) ANY OTHER SERVICE(S) PROVIDED BY OR ON BEHALF OF MFN HEREUNDER. 14.2. Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement and all Product Orders and (iii) this Agreement and all Product Orders, when executed, are the legal, valid and binding obligation of such Party. 15. TAXES 15.1. Each Party is fully responsible for the payment of any and all taxes required by law to be paid by that Party. 15.2 Customer will pay to MFN all taxes and fees associated with Customer's use of the Product which MFN is legally required or permitted to collect from Customer. Such taxes and fees may include, but are not limited to, any sales, use, transfer, gross receipts, federal excise and similar taxes and surcharges. Alternatively, Customer will provide MFN with a certificate evidencing Customer's exemption from payment of or liability for the above taxes. 15.3. Except as otherwise provided in a Product Order, Customer may be invoiced by MFN for fees and taxes other than those described in Section 15.2 above, which taxes are imposed on MFN by a state or local jurisdiction, including but not limited to right-of-way, franchise, privilege, property, and occupational taxes based upon the gross revenues received from or by Customer or assets of MFN made available to Customer, or for any tax surcharge on Confidential Page 7 of 10 Commercial Ver.1.2001 Metromedia Fiber Network Services, Ir the Product M 1-N agrees to remit such taxes and fees to the appropriate authorities. Notwithstanding the foregoing, Customer is not obligated to pay any fee or tax which it otherwise pays directly to a state or local jurisdiction with respect to the gross revenues received from or by Customer or assets of MFN made available to Customer. 16. NOTICES All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including Invoices) must be in writing and will be deemed given: (i) when delivered in person, (ii) one (1) business day after deposit with an overnight delivery service for next day delivery, or (iii) three (3) business days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, and addressed to the recipient Party at the address set forth below: If to MFN: Metromedia Fiber Network Services, Inc. 360 Hamilton Avenue White Plains, New York 10601 Attn: President With a copy to: Metromedia Fiber Network Services, Inc. 360 Hamilton Avenue White Plains, New York 10601 Attn: Vice President — Legal Affairs If to Customer: Marin Telecommunications Agency Marin County Civic Center 3501 Civic Center Dr., Suite 325 San Rafael, CA 94903 Attn: Martin Nichols 17. CONFIDENTIALITY 17.1. Each Party agrees that certain information furnished to it by the other Party, including maps, pricing, dark fiber specifications, lists of On -Network locations or other information to which it has access under this Agreement, are deemed the confidential and proprietary information or trade secrets (collectively referred to as "Promietary Information") of the Disclosing Party and will remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the "Disclosine Partv" and the other Party referred to as the "Receivine Party"). Except as required by law, each Party must treat the Proprietary Information in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the same to anyone other than its employees on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. 17.2. Section 17.1 does not apply to any Proprietary Information which (i) becomes publicly available other than through the actions of the Receiving Party; (ii) is required to be disclosed by a governmental or judicial law, order, rule or regulation; (iii) is independently developed by the Receiving Party; or (iv) becomes available to the Receiving Party without restriction from a third party. If the Receiving Party is required to disclose Proprietary Information pursuant to the foregoing clause (ii), it must give prompt written notice to the Disclosing Party of the requirements of such disclosure. 18. PUBLICITY Notwithstanding anything herein to the contrary, Customer acknowledges and agrees that upon execution of the Agreement and subsequent Product Orders, MFN may release a public statement announcing the Agreement without further consent from Customer ("Press Release"). Any Press Release may include the identity of Customer, and other general terms such as the duration, scope and total value of the Agreement. MFN agrees to provide Customer with a copy of the proposed release and Customer will have five (5) business days to review and comment. Customer's failure to provide MFN with comments or objections within this timeframe will not prohibit Confidential Page 8 of 10 Commercial Ver. 1.2001 Aletromedia Fiber Network Services, Ir MFN from issuing the Press Release. Except as set forth in this section, neither Party may issue any advertising or other publicity material using the other Party's name or marks or describing in any way the terms of this Agreement without first receiving the other Party's written consent as to form and content, which consent may not be unreasonably withheld or delayed. Such consent shall not be required for materials provided to governmental users of the Leased Fiber or Marin Telecommunications Agency members, provided such materials do not contain MFN's name or marks. MFN understands that Customer will be approving this agreement at a public meeting and that the Customer may receive press inquiries regarding the contents of this Agreement. Customer may respond to such inquiries, but will not issue its own press release. 19. GOVERNING LAW THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF CONFLICTS OF LAWS. 20. SURVIVAL The Parties' respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect. 21. MISCELLANEOUS 21.1. The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or permitted assigns. 21.2. The relationship between the Parties hereunder is not that of partners or agents for one another and nothing contained in this Agreement may not be deemed to constitute a partnership, joint venture or agency agreement between them. 21.3. Except as otherwise expressly provided, the rights and remedies set forth in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity. 21.4. The headings in this Agreement are strictly for convenience and do not amplify or limit any of the terms, provisions or conditions hereof. 21.5. In the event any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement will be in any way affected. 21.6. This Agreement may be amended only by a written instrument executed by the Parties. 21.7. No failure to exercise and no delay in exercising, on the part of either Party, any right, power or privilege hereunder will operate as a waiver, except as expressly provided herein. 21.8. This Agreement may be executed in multiple counterparts, all of which taken together constitute one and the same instrument. 21.9. If any conflict or contradiction exists between the General Terms and conditions and a Product Order, the terms of the Product Order will control. 22. ENTIRE AGREEMENT This Agreement, including all Supplements, Product Orders, Exhibits and addenda attached hereto is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, whether oral or written. Confidential Page 9 of 10 Commercial Ver. 1.2001 Metromedia Fiber Network Services, Ir 23. CALIFORNIA PUBLIC UTILITIES COMMISSION JURISDICTION This Agreement at all times shall be subject to such modifications as the California Public Utilities Commission may direct from time to time in the exercise of its jurisdiction. Customer shall execute this Agreement within nine (9) months of the Effective Date of this Agreement or it shall be null and void. METROMEDIA FIBER NETWORK MARIN TELECOMMUNICATIONS AGENCY SERVICES, INC. By: By. Print Name: Print Name: Title: Title: Confidential Page 10 of 10 Commercial Ver. 1.2001 Exhibit A Leased Fiber Specifications and Fiber Optic Cable Splicing, Testing and Acceptance Standards MFN will perform fiber testing as described below on each Leased Fiber and will provide the documentation (hard copy and/or diskette) of results to the Customer. Each "span" will be defined in documentation included in the Customer's package. Acceptance of a span by Customer will be an acknowledgement by the Customer that all Leased Fiber complies with all performance criteria contained herein. 1) Power testing: This end-to-end loss measurement will be conducted for each Leased Fiber in the span and from both directions using an industry -accepted laser source and power meter. The bi-directional average will be used to determine the end-to-end loss of the span at each appropriate wavelength. This test will be conducted at both 1310 nm and 1550 nm for Standard Single Mode Fiber; Dispersion Shifted Fiber (True Wave TM, LEAFTM, etc.) will be tested at 1550 nm only. In the event that a span consists of both Standard Single Mode and Dispersion Shifted fiber types, only 1550 nm testing will be conducted. This power testing will ensure fiber continuity and the absence of crossed fibers in the span. Power testing will only be conducted where the Leased Fiber is terminated by MFN in fiber distribution panels at both ends of the span. 2) OTDR testing: All traces will be provided in hard copy and diskette form using GR 196 format. This testing will be conducted at both 1310 nm and 1550 nm wavelengths when the Leased Fiber consists of Standard Single Mode Fiber, but will be done at 1550 nm only if the Leased Fiber consists of either Dispersion Shifted Fiber (True -Wave"', LEAFTM, etc.) or a combination of Single Mode and Dispersion Shifted fiber types. OTDR testing will be conducted on a bi-directional basis for each Leased Fiber in each span at the appropriate wavelengths for the Leased Fiber described above. However, if due to length or attenuation reasons that the Leased Fiber span exceeds the dynamic range of an OTDR, a portion or the entire span may be tested on a unidirectional basis only. Alternatively, the Leased Fiber span may be divided into shorter testing spans, to the extent reasonably possible, in order to obtain bi-directional analysis. Also, in instances where a Customer intends to accept Leased Fiber that is not terminated at one end by MFN in a fiber distribution panel (such as in a manhole or handhole) only unidirectional testing will be performed. The turnover documentation package delivered to Customer will contain the actual traces that detail the testing parameters (including pulse width, averaging and range). The average bi-directional splice loss for all splices within each span will be of 0.15 dB or less while each connector pair (such as at a FDP) will have an average bi-directional connector loss for all splices within each span of 0.5 dB or less for all connectors within each span. (Note that the front and end connector of the span can only be measured uni-directionally and will also have a loss equal to or less than 0.5 dB). In the event that OTDR acceptance testing must be done on a unidirectional basis (for reasons described above), an average per span splice loss will be 0.30 dB. All traces will be provided in hard copy and/or diskette form using GR 196 format. If the average bi-directional splice loss of each span exceeds 0.15 dB (or 0.30 dB uni-directionally), MFN will provide upon the Customer's request documentation of at a least three attempts to reduce this value to below 0.15 dB (0.30 dB uni-directionally). The only exception to this will be in the instance of a splice between two different fiber types (Standard Single - mode to Dispersion Shifted, Depressed -Clad to Matched Clad, fibers with different mode -field diameters). Customer should also note that the loss and/or reflectance of the front-end connector (as measured using a launch cord) is only an indicator of a problem such as a defective port, bulkhead, or the like. Since a different patch cord will be used by Customer (that connects to their equipment, for example) to mate to this connector, a different loss and/or reflectance may occur. Leased Fiber Testing Specifications 12/27/2000 Product Order No.I Metromedia Fiber Network Services, Inc. LEASED FIBER PRODUCT ORDER Marin Telecommunications Agency Date: , 2001, hereinafter the "Effective Date." Lease Term: Seventy two (72) months. Number of Leased Fibers: Two (2) dark fiber strands in a point-to-point configuration. 4. Customer Locations: Manholes designated by Customer pursuant to Section 7.2 below. Customer Charges. a. Installation Charge See Section 7.2 below. b. Monthly Charge $100.00/Fiber Mile (as defined in Section 7.3 below) Mileage to be determined based upon location of Manholes (as defined in Section 7.2 below) c. Four Months Prepayment N/A Estimated Delivery Date: Ninety (90) days after MFN's notice to Customer of completion of its construction of the backbone portion of the MFN Network in the Marin, CA jurisdictions, or ninety (90) days after Customer's notice to MFN of the designation of the Manholes, whichever is later. 7. Additional Terms: 7.1 Renewal. Provided Customer is not in breach of any of its material obligations under the Agreement, Customer may request a renewal of this Product Order for one (1) renewal term upon the terms and conditions of the Agreement. The duration of such renewal term will be seventy- two (72) months and the Monthly Charge shall be the same as the initial Lease Term. Customer will submit a written request for renewal delivered to MFN no earlier than one (1) year before the scheduled expiration date of the initial Lease Term and no later than ninety (90) days before such expiration date. Customer will only be allowed to renew if this Product Order remains in effect through the end of the initial Lease Term and no material breach exists at the time of renewal. In the event of such a renewal, MFN shall use commercially reasonable efforts to extend its Encroachment Agreements with the following California jurisdictions: Marin County, San Rafael, Sausalito, Mill Valley, Larkspur and Corte Madera. 7.2 Installation. MFN will terminate the Leased Fiber at six (6) eight (8) manhole locations ("Manholes") designated by Customer, and within fifty (50) feet of an existing Pacific Bell manhole on the same route. The Manholes shall be the Demarcation Points for purposes of this Purchase Order. The installation of the Leased Fiber to the first six (6) Manholes will be at MFN's cost and expense. The charge for installation of the Leased Fiber to Manholes seven (7) and eight (8) will be ten thousand dollars ($10,000) for each Manhole. Customer shall pay MFN 50% of the installation charge for Manholes seven (7) and eight (8) with ten (10) business days of CONFIDENTIAL 03/15/02 a request for placement; 25% within ten (10) business days' notice from MFN that construction has been completed; and 25% within thirty (30) days of the Acceptance Date. 7.3 Fiber Mile. For purposes of this Product Order, a "Fiber Mile" is defined as the physical route mileage of the Leased Fiber on the point-to-point route multiplied by the quantity of Leased Fiber strands on such point-to-point route. 7.4 Delays in Deliverv. For purposes of this Product Order, Customer shall not be liable to MFN for Monthly Charges associated with a delayed Product Order as set forth in Section 6.3 of the Private Network Agreement. 7.5 Relocation. For purposes of this Product Order, Customer shall not be liable for MFN's relocation costs set forth in Section 7.3 of the Private Network Agreement. 7.6 Fees and Taxes. For purposes of this Product Order, Customer shall not be liable for the fees and taxes described in Section 15.3 of the Private Network Agreement. This Product Order alone is not an agreement between the parties and is incorporated by reference into a Private Network Agreement executed between MFN and Customer. Customer shall execute this Product Order within nine (9) months of the Effective Date of this Product Order or it shall be null and void. METROMEDIA FIBER NETWORK SERVICES, INC. By: Print Name: Title: MARIN TELECOMMUNICATIONS AGENCY Print Name: Title: CONFIDENTIAL PAGE 2 03/15/02 RIGHT OF WAY AGREEMENT BETWEEN THE CITY OF SAN RAFAEL, CALIFORNIA AND METROMEDIA FIBER NETWORK SERVICES, INC. This Agreement is entered into as of June 1$, 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 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. H 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. I 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 CY R, Vice -Mayor By: P_l''I''#p, Its: �/1"— ,!/dd'd (Sul AJ hek Me- 0A1 -t f� ATTEST: /�{ ciaY VP ,tun e__ G"/ A -441 -YM. LEON INI, City Clerk TERRi L. �U'MIVIERS Notary Public, State of New ,'ark No. 4950361 APPROVED AS TO FORM: Qualified in Westchester Cou" c Commission Expires April 24, "CQV O-3 Gary Ragghianti, City Attorney 12 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 terns 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 ($1.50) per linear foot for conduits, ducts, innerducts, fiber cables, and other similar facilities (together "Conduit") installed by Company in the City's public rights-of-way. The total number of installed Conduit shall not be limited, but the total size of such Conduit installation shall not exceed a diameter of thirty six inches (36"), excluding other facilities such as vaults and manholes. B. Occunancv Rate. Company shall pay annually to the City the sum of seventy five cents ($.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 6 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 Scope 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: 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. 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 Coveraue. 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. 9