AGREEMENT BETWEEN THE CITY OF RIPON, CALIFORNIA
AND FRONTIER CALIFORNIA INC. FOR THE INSTALLATION OF FIBER OPTIC
FACILITIES
This Agreement is entered into as of ______________, 2023 (“Effective Date”) by and between the City of Ripon, California, a municipal corporation (the “City”) and Frontier California Inc. (“Company”).
RECITALS
A. Company is authorized to provide Telecommunications Services (as defined herein) in the State of California.
B. Company desires to install Facilities (as defined herein) within the Public RightsOf-Way within City in order to provide Telecommunications Services.
C. City has the authority to regulate the terms and conditions for use of the Public Rights-Of-Way and land use within the corporate limits of the City.
D. The purpose of this Agreement is to provide the general framework within which Company may apply for necessary permits to construct the Facilities within the corporate limits of the City. The parties do not intend the Agreement to give Company a right to the award of any such permits.
AGREEMENT
In consideration of the Recitals set forth above, the mutual promises and terms and conditions of this Agreement and other valuable consideration, the adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Company – means Company, and its lawful successors or assigns.
1.2 City – means the City of Ripon, a municipal law corporation of the State of California, including the duly elected or appointed officers, agents, employees, and volunteers of the City of Ripon, individually or collectively.
1.3 City Engineer – means the City Engineer of the City of Ripon, California.
1.4 Public Rights-Of-Way – means the surface of and the space above and below any street, road, highway, alley, easement, pathway, sidewalk and other public way, including driveway, curb, gutter, paving or other surface and subsurface drainage structure or facility and any public place, or City property, now or hereafter existing as such within the City.
1.5 Telecommunications Services – means internet services and communication services that Company is lawfully authorized to offer and/or provide as of the date of this Agreement, including but not limited to those services offered pursuant to any applicable Certificate of Public Convenience and Necessity (“CPCN”), or decisions, issued by the California Public Utilities Commission.
1.6 Facilities – means fiber optic cables, coaxial and copper cables, conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location marker, appurtenances, and related facilities located or to be located in the Public Rights-Of-Way of the City and used or useful for the transmission of telecommunication data.
1.7 Substantial Completion – means the area covered by the Permit to Construct is deemed sufficiently completed to where the owner can use it for its intended purpose. For this project, substantial completion shall mean that all facilities within a permitted area are installed.
1.8 Code – Ripon Municipal Code along with Ripon Standards and Specifications.
ARTICLE 2
INSTALLATION AND MAINTENANCE OF FACILITIES
2.1 Permitted Installations. During the term of this Agreement, Company may install the Facilities within the City’s Public Rights-Of-Way subject to the terms of this Agreement. All work within the Public Rights-Of-Way shall be performed in compliance with the terms and conditions of this Agreement, the Code, and the pertinent permit application conditions. All Facilities to be installed under this Agreement shall be underground, with the exception of locations where utility poles currently exist with electric lines overhead (subject to the approval of the pole owner). Whenever and wherever the owner of the poles moves its Facilities from overhead to underground placement in an area, all Company’s impacted Facilities must be relocated and moved underground, at the expense of Company, unless funded by another party (e.g., developer or other third party).
2.2 No Cost to City. Except as otherwise agreed, the installation of any Facilities shall be accomplished (i) without cost or expense to the City and (ii) subject to the prior approval of the City Engineer, and Company shall maintain any such Facilities at all times in good and safe condition and free from any nuisance, damage, vandalism, or other defects.
2.3 Permit Applications. All work performed by Company under this Agreement shall be made pursuant to individual permit applications. Prior to installing the Facilities, Company shall obtain a “Permit to Construct” and after the work has been completed and Public Rights-of-Way restored to the conditions required by the Permit to Construct, the City shall closeout the permit.
Permit to Construct Applications shall be submitted in the phases that correspond how the project will be constructed, for the City Engineer’s approval. The Permit to Construct shall be issued in place of the City’s standard encroachment permit. The number of Permits to Construct issued at a time shall be at the sole discretion of the City Engineer.
2.4 The following shall be submitted with Permit to Construct application:
2.4.1 General Information. Description of facilities to be installed, location, construction methods, cost estimate, and schedule.
2.4.2 Contractor Information. Contractor name, address, contact name, email, cell number, City of Ripon business license number, and contractor’s State of California license number.
2.4.3 Improvement Plans. Company shall submit improvement plans for all work to be completed and complies with the following:
(a) Fiber Optic Cable Installation. Company may install fiber optic cables on existing overhead poles or existing conduit when available. Any locations where conduit must be installed, Company shall use horizontal boring. The City Engineer may provide exceptions for paver roadways.
(b) All construction shall conform to the requirements of Chapter 12.12 of the City of Ripon Municipal Code and the City of Ripon standard Plans and Specifications and the current edition of the California Department of Transportation Standard Specifications. (i) Trenches. Trench safety has not been checked and is not implied with the Permit to Construct. For permit to excavate, contact: California Division of Industrial Safety, 31 E. Channel Street, Stockton, CA 95202; phone (209) 948-7762. Trenches shall not be left open overnight without prior written approval. (ii) Pothole Restoration. Company shall limit the excavation to complete potholes of pressurized pipelines as much as possible. Company shall pothole all utilities by hand digging or core drilling and vacuum methods in every intersection crossing the excavation or boring alignment. Backfill shall be twelve (12) inches of sand above the pipe or conduit then fill the holes with Controlled Density Fill and cap with two (2) inches of three-eighths (3/8) inch mix of Asphalt Concrete as approved by City Engineer.
(iii) Horizontal Boring Restoration. Company shall sawcut asphalt four feet by four feet with square edges for launching and receiving pits. Company shall compact native backfill to a 95 percent compaction. Company shall place a minimum of six inches of road base or match the existing road base, whichever is greater. The section of asphalt that is removed shall be replaced with a thickness of hot mix asphalt that matches existing asphalt section or to a depth of 12 inches, whichever is greater. All final asphalt restoration will have a grind and cap twelve inches over the edge of the bore pit and place like material at a minimum of two inches.
Company shall apply a 6-inch wide sand seal along the edges of the bore pit. A tack coat shall be applied with a string line or template followed by black sand over the tack coat. (iv) Concrete. Company shall compact sub-grade and call for an inspection prior to installing any asphalt or concrete within the Public Rights-of-Way. Company shall hire geotechnical testing firm approved by the City Engineer and achieve 95% relative compaction. Concrete curb/gutter or sidewalk that is disturbed or damaged shall be replaced to City of Ripon Standard Specifications by the Company. Concrete shall include 1 lb. lamp black per yard of concrete, for color. Company shall submit Concrete mix design to City Engineer for approval prior to placement.
(v) Paver Restoration. Company shall submit a plan to restore paver streets that may be impacted by the Facilities.
(vi) Materials Compliance. Upon demand, Company shall
provide test results showing that compaction and/or materials requirements have been met.
Compliance shall be certified by a testing laboratory acceptable of the City Engineer. (vii) Restoration of Public Rights-of-Way. Company shall place cold patch asphalt where necessary to make Public Rights-of-Way safe for public use. The final restoration as previously described in the Agreement or as a condition of the Permit to Construct shall be completed within 45 days of the completion of the installation of the Facilities. (viii) Quality of Work. If the provisions of this agreement are not complied with, the City reserves the right to do any and all work necessary to bring the street to an acceptable condition. The cost of this work will be charged to and recovered from Company. (ix) Cleanup. Company shall clean up the job site within three (3) days of completion of work. All cleanup must be performed prior to closeout of the Permit to Construct.
(x) USA Markings. All Temporary USA paint markings or any other paint/chalk markings placed in connection with the construction must be removed prior to closeout of the Permit to Construct.
2.4.4 Traffic Control Plan. Traffic control shall conform to the provisions of Section 12.12.030 of the Municipal Code. Streets shall not be closed to traffic unless otherwise authorized by the City. Two lanes must be left open to the public. Company may reduce to one lane with flaggers at each end with approval from the City. Company shall submit a general traffic control plan for all work to be performed prior to construction.
2.4.5 Erosion Sediment Control Plan/SWPPP. Per State Water Board requirements, all construction projects that have soil disturbance and pass through plan check or the City’s permitting process must develop an ESCP. Projects having more than 1 acre of soil disturbance or those projects that are part of a larger common plan may be required to comply with the State Water Board’s Construction General Permit (CCG)), which requires the development of a Storm Water Pollution Prevention Plan (SWPPP). For these larger projects, the CGP-required SWPPP may be submitted in lieu of the ESCP. Company shall submit an ESCP or SWPPP prior to construction.
2.4.6 Monument Preservation. Pursuant to Senate Bill No. 1467, Chapter 400 and Section 8771(d) of the California Business and Professions Code, the Governmental Agency performing or permitting construction or maintenance work is responsible for ensuring that either the Governmental Agency or landowner performing the construction or maintenance work provides for monument perpetuation required by this section. Company shall retain the services of the City’s licensed land surveyor to locate and reference any such monuments prior to beginning any construction activities for each permit at the rate listed in the City’s Engineering Fee Schedule. If it is determined that a monument disturbance will occur, a “Pre-Construction Acknowledgement
Form” signed by an individual in responsible charge of the Land Surveying activities within the bounds of the permitted construction is required.
2.4.7 Closeout. Company shall complete the Closeout Permit process within 60 days from Substantial Completion of the work associated with the Permit to Construct. Company shall make the following submittals for approval by the City after construction. (a) Post-Construction Acknowledgement of Monument
Responsibility Form. A post-construction form shall be submitted for any occurrence where a preconstruction form was required. (b) Utility Location Files. PDF as-builts with all utility information collected from potholing or otherwise during construction shall be submitted for City records.
2.4.8 Authority. The encroachment permit is issued pursuant to Section 1460 of the California Streets and Highway Code and Chapter 12.12 of the City of Ripon Code. The Permit to Construct shall be used in place of the City’s Standard encroachment permit.
2.4.9 Notice Prior to Starting Work. Before starting work, Company shall notify the Engineering Department at least 48 hours before the date work is to begin. It shall be Company’s responsibility to determine at which points during the construction inspectors must be called for prior to continuing with the work. Notice to be provided by calling the Engineering Department at (209) 599-2108.
2.4.10 Fees and Deposits. Company shall pay the following fees and deposits. (a) Permit Fee. Company shall pay 7% of the estimated construction cost for work in the Public Rights-Of-Way in accordance with City Municipal Code Chapter 17.16.
Payment for an area covered by a Permit to Construct must be received prior to permit issuance.
The City may hire a consultant to perform inspections. If consultant fees for an area covered by a Permit to Construct exceed 3% of the estimated construction cost for work in the Public Rights-ofWay, the Company shall pay the amount remaining. (b) Public Rights-of-Way Restoration/USA Markings Removal Deposit. Company shall pay a deposit of twenty thousand dollars ($20,000) in the form of cash, cashier’s check or any such method as determined by the City, in an amount sufficient to cover the cost of the installation/restoration and/or ensure satisfactory removal of USA markings. The deposit shall be for all construction covered by this agreement. (c) Survey Monument Preservation Fee. Company shall pay a survey monument preservation evaluation fee in accordance with the City’s Engineering Fee Schedule when the City’s designated Land Surveyor is called upon to evaluate whether or not there is a potential to disturb existing monuments.
2.5 Compliance with Laws and Regulations. Company shall at all times for the duration of this Agreement, comply with all applicable state, federal and local laws and regulatory requirements, including, without limitation, compliance with Company’s Certificates of Public Convenience and Necessity, the California Environmental Quality Act, zoning laws, and
construction codes. In the course of its work on the Facilities in the Public Rights-of-Way, Company shall at all times employ reasonable care so as not to endanger personnel or property or unreasonably obstruct travel on any Public Rights-Of-Way and shall install, maintain and use commonly accepted industry methods and devices for preventing failures and accidents that are likely to cause damage, injury or nuisance to the public or other users of the Public Rights-Of-Way, public property or private property.
2.6 Coordination of Excavation with Other Permittees. Company shall coordinate work with other utilities using the Public Rights-Of-Way in accordance with the Code and the requirements imposed by the Permit to Construct.
2.7 Membership In Underground Service Alert. Pursuant to California Government Code Section 4216.1, Company shall maintain its membership in, or become a member of, Underground Service Alert-Northern California and shall field mark, at its sole expense, the locations of its underground Facilities upon notification in accordance with the requirements of Section 4216 of the State of California Government Code, as it now reads or may hereinafter be amended. Repeal or amendment of Government Code Section 4216.1 shall not negate Company’s obligation to maintain such membership, unless such repeal or amendment disbands or eliminates Underground Service Alert-Northern California. Company shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner, free of defects.
2.8 Contractors. Any contractor or subcontractor used for the construction, installation, operation, maintenance or repair of the Facilities must be properly licensed under the laws of the state and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as Company would have under this Agreement and applicable law if the work were performed by Company. Company shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with this Agreement and applicable law, shall be responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. This section is not meant to alter tort liability of Company to third parties. . Company shall submit information for all contractors performing work as specified in Section 2.4.2.
2.9 Meetings. When the Project is actively being constructed, Company shall host a weekly construction meeting where it will update the City Engineer on construction progress. Prior to the meeting, Company shall send an updated schedule with a three-week construction timeline (minimum).
ARTICLE 3
LIMITATIONS AND RESTRICTIONS
3.1 Nothing in this Agreement shall be construed as granting or creating any franchise rights.
3.2 This Agreement is not a grant by City of any property interest but is made subject and subordinate to the prior and continuing right of City to use all the Public Rights-Of-Way, including but not limited to, public use as a street and for the purpose of laying, installing,
maintaining, repairing, protecting, replacing and removing sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electric and telephone wires, electroliers, cable television and other utility and municipal uses together with appurtenances thereof and with right of ingress and egress, along, over, across and in said Public Rights-Of-Way.
3.3 This Agreement shall not create a vested right of any nature in Company to use the Public Rights-Of-Way. This Agreement is made subject to all easements, restrictions, conditions, covenants, encumbrances and claims of title which may affect the Public Rights-Of-Way, and it is understood that Company, at its own cost and expense, shall obtain such permission as may be necessary consistent with any other existing rights. No reference herein to “Public Rights-Of-Way” shall be deemed to be a representation or guarantee by City that its interest or other rights to control the use of such property is sufficient to permit its use for such purposes. It is not a warranty of title or interest in any Public Rights-Of-Way. It does not confer rights other than as expressly provided in the grant hereof, and Company shall be deemed to gain only those rights to use as are properly in City and as City may have the undisputed right and power to give.
3.4 This Agreement only authorizes Company to use the portions of the Public RightsOf-Way specifically described in one or more permits to construct if and when issued by the City.
It does not require the City to approve any particular permit applications, nor does it provide Company with any interest in any particular location within the Public Rights-Of-Way. This Agreement shall not be deemed to approve any particular design or installation technique. Certain specific physical design aspects of the Facilities and detailed approvals of the installation of the Facilities will occur through the issuance of specific permits and approvals by the City.
3.5 This Agreement shall be for the non-exclusive use of the Public Rights-Of-Way. By executing this Agreement, City does not agree to restrict the use of the Public Rights-Of-Way in all or any part of the City by any person in the same business, a related business, or a competing business as Company.
3.6 This Agreement does not create any authorization for Company to use any City property located outside of the Public Rights-Of-Way, nor any City-owned infrastructure located within the Public Rights-Of-Way, without the prior express written agreement of the City.
ARTICLE 4
REQUIRED CASH DEPOSIT OR BOND
4.1 Security. Company will furnish and deliver to City, the following security, which must be issued by a surety company duly and regularly authorized to do general surety business in the State of California, or such other surety as may be acceptable to the City Engineer:
Performance Security. Company shall furnish and deliver a performance security (the “Durable Performance Security”) in the amount of six million dollars ($6,000,000), concurrently with the execution of this Agreement, which security must be acceptable to the City Engineer. The Durable Performance Security shall be conditioned upon the faithful performance of this Agreement and any work performed thereunder and shall be released by City one-year following the termination of this Agreement. This one (1) year period is to guarantee that any work is of good quality and free from any defective or faulty materials or workmanship. City may draw on the Durable Performance
Security in the event of a default by Company or in the event that Company fails to fulfill any of its obligations under this Agreement. City may also draw on the Durable Performance Security to cover any reimbursements owed to City by Company. If City draws on the Durable Performance Security, it will notify Company of the amount drawn, and Company will promptly restore the Durable Performance Security to the full amount of six million dollars ($6,000,000). In the event that a bond issued pursuant to this Section of this Agreement is canceled by the surety, after proper notice and pursuant to the terms of said bond, Company shall, prior to the expiration of said bond, procure a replacement bond that complies with the terms of this Section of this Agreement.
4.2 Recovery. So long as any security described in Section 4.1 remain in place (each an “Existing Security”), they may be utilized by the City as provided herein for reimbursement of the City by reason of Company’s failure to pay the City for actual costs and expenses incurred by the City with respect to the Facilities, including any expenses for removal under this Agreement.
4.2.1 In the event Company has been declared by the City to be in default of a material provision of this Agreement and if Company fails, within 30 days of receipt of the City’s default notice, to perform any of the conditions of this Agreement, or fails to begin to perform any such condition that may take more than 30 days to complete, City may thereafter obtain from the applicable Existing Security, an amount sufficient to compensate the City for its damages and/or expenses. Upon such withdrawal from an Existing Security, the City shall notify Company in writing, by First Class Mail, postage prepaid, of the amount withdrawn and the date thereof.
4.2.2 Thirty days after the City’s mailing of notice of the withdrawal authorized herein, Company shall deposit such further cash, or other security, as the City may require, which is sufficient to bring the amount of each Existing Security back to its original amount.
4.2.3 The rights reserved to the City with respect to any Existing Security are in addition to all other rights of the City whether reserved by this Agreement or authorized by law, and no action, proceeding, or exercise of a right with respect to any cash deposit or bond shall constitute an election or waiver of any rights or other remedies the City may have.
4.3 Other Security Provisions.
4.3.1 Any Existing Security consisting of corporate surety bonds shall be kept on file with the City Engineer. If a corporate surety bond is replaced by another approved bond, the replacement shall be filed with the City Engineer and made a part of and incorporated into this Agreement. Upon filing and approval by the City Engineer of a replacement bond, the former Existing Security shall be released.
4.3.2 If there is an increase to the estimated cost of any work, City may require Company to increase the amount of any Additional Performance Security and/or Additional Payment Security so that the applicable securities cover the entire estimated cost of the work. In addition, if there is any increase to the estimated cost of any work, City may also require Company to obtain an Additional Performance Security and/or Additional Payment Security even if such additional security had not been originally required with respect to the work.
ARTICLE 5
TERM AND TERMINATION
5.1 Duration. This Agreement shall remain in force for one (1) year, subject to the City’s authority to regulate the terms and conditions of Company’s use of the Public Rights-OfWay, and its right to terminate the Agreement pursuant to Section 5.2 below. The Agreement may be renewed in one (1) year increments for up to a total of five (5) years on the same conditions and terms if agreed to by both parties. In the event that Company loses its authorizations to use the Public Rights-Of-Way, including any CPCN, at any time during the initial term or a Renewal Term, then this Agreement shall automatically terminate.
5.2 Termination. The City may terminate this Agreement by giving sixty (60) days written notice of termination upon the occurrence of any of the following:
5.2.1 Reasonable determination by City that the provisions herein interfere with the use or disposal of the Public Rights-Of-Way or any part thereof by City. Where only a portion of Company’s Facilities interfere with the use or disposal of the Public Rights-Of-Way, the City, at its sole discretion, may elect to require Company to relocate the said portion in accordance with Article 6 of this Agreement.
5.2.2 For material failure, neglect, or refusal by Company to fully and promptly comply with any and all of the conditions of this Agreement, or for nonuse in accordance with Section 6.2 herein, unless Company confirms within thirty (30) days of receipt of the notice that the cited condition has ceased, been corrected or, subject to the City’s agreement, is diligently being pursued by Company;
5.2.3 An order entered by a court of competent jurisdiction approving a petition in bankruptcy or ordering the dissolution, winding up or liquidation of Company or appointing a custodian, receiver, trustee, or other officer to administer a substantial part of Company’s property.
5.2.4 The revocation, expiration or other loss of applicable permits or authorizations required by City, state or federal law for the use, maintenance or operation of the Facilities.
ARTICLE 6
REMOVAL, RELOCATION AND ABANDONMENT
6.1 Upon receipt of a written demand from the City, Company, at its sole cost and expense, shall remove and relocate any Facilities installed, used and/or maintained by Company under this Agreement when such removal or relocation is made necessary (a) due to any work proposed to be done by or on behalf of the City or other governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and installation, construction, maintenance or operation of any underground or aboveground facilities such as sewers, drains, pipes, power lines, and tracks or (b) due to a determination by the City that the Facilities are detrimental to governmental activities. Any removal or relocation work by Company shall only be done pursuant to an encroachment permit, which shall not be unreasonably conditioned, delayed, or withheld. All of
the foregoing shall be subject to all applicable rules, requirements and procedures of the California Public Utilities Commission.
6.2 If Company fails to remove the Facilities as required by the City pursuant to Section
6.2, the City may, in its sole discretion, after providing written notice to Company (a) remove the Facilities at Company’s sole expense, which expense Company shall promptly reimburse to the City within thirty (30) days after receiving an invoice for such expenses, including all administrative, legal and consultant costs or (b) deem the Facilities, or any part thereof, to have been abandoned and conveyed to the City.
6.3 Repair of Public Rights-of-Way. Whenever the removal or relocation of facilities is required under this Agreement or the Code, Company shall promptly repair and return the Public Rights-Of-Way and adjacent property to a safe and satisfactory condition to the City in accordance with the Code and with the construction-related conditions and specifications established by the City according to its standard practice. Company agrees to promptly complete all restoration work and to promptly repair any damage caused by such work at its sole cost and expense. If Company fails to do so, the City shall have the option to perform such work at Company’s sole expense, which expense Company shall promptly reimburse to the City within thirty (30) days after receiving an invoice for such expenses, including all administrative, legal and consultant costs. Before proceeding with removal or relocation work, Company shall obtain any required permit from the City, which shall not be unreasonably conditioned, delayed, or withheld.
ARTICLE 7
DAMAGES
7.1 Company shall be responsible for any damage to the City’s street pavements, existing utilities, curbs, gutters,sidewalks due to itsinstallation, maintenance, repair, or removal of its Facilities in the Public Rights-Of-Way and public utility or service easements, and shall repair, replace, and restore as directed by the City Engineer the said damaged facilities atitssoleexpense. See Section 2.4.3 for restoration requirements.
7.2 If any Public Rights-Of-Way to be used by Company has preexisting installation(s) placed in said Public Rights-Of-Way, Company shall assume the responsibility to verify the location of the preexisting installation and notify the City and any third party of Company's proposed installation. The cost of any work required of such third party or the City to provide adequate space or required clearance to accommodate Company's installation shall be borne solely by Company.
ARTICLE 8
TAXES
8.1 Company agrees that it will be solely responsible for the payment of any and all lawful taxes, fees and assessments relating to its use and maintenance of the Facilities including but not limited to all taxes, fees and assessments listed in Company’s Certificates of Public Convenience and Necessity issued by the California Public Utilities Commission. Company shall also comply with the Communication Users’ Tax Law, found in Chapter 32 Article VIII of the Code. 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-OfWay may create a possessory interest subject to property taxation and that Company will be subject to the payment of property taxes levied on such interest.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification. To the fullest extent permitted by law, Company, jointly and severally, for itself, its successors, agents, contractors and employees, agrees to indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City, its City Council, its officials, officers, employees, representatives, agents and volunteers and any successors to City’s interest from and against any and all third party claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection with any of the foregoing, including, without limitation, reasonable attorney’s fees and costs of defense (collectively, the “Losses”) arising directly or indirectly (where Company’s work in the Public Rights-of-Way results in injury to a third party) from, in connection with or caused by Company’s performance of this Agreement, and/or the installation, operation, removal and/or repair of the improvement and Facilities thereunder including, but not limited to, the following: (a) a material breach of this Agreement by Company; (b) a material breach of any representation or warranty of Company contained in this Agreement; (c) any personal injury or death caused, directly or indirectly (where Company’s work in the Public Rights-of-Way results in injury to a third party), by any act or omission of Company or its employees, sub-grantees, invitees, contractors, subcontractors or agents (each of the forgoing “Company Personnel”) or by any structures of encroachments placed in, on or under any Public Rights-Of-Way; (d) any loss of or damage to property caused, directly or indirectly (where Company’s work in the Public Rights-of-Way results in injury to a third party), by any act or omission of Company or Company Personnel or by any structures of encroachments placed in, on or under the surface of any Public Rights-Of-Way or City Property; (e) the use, misuse or failure of any equipment or facility used by Company, or by Company Personnel, regardless of whether such equipment or facility is furnished, rented, leased or loaned by or to Company; or (f) any tax, fee, assessment or other charge for which Company is responsible; provided, however, Company shall not indemnify City, its City Council, its officials, officers, employees, representatives, agents and volunteers and any successors to City's interest for any of the foregoing claims or losses arising from City's acts of negligence or willful misconduct.
The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and City’s costs of investigating any claims against City. Except to the extent due to willful misconduct, City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by City or by any third party, including, without limitation, damages, losses, or liability, arising from the issuance by City of a permit or approval to any third party, or any interruption in service. Company shall not be liable for losses or delay damages resulting from Company’s failure to relocate or remove its Facilities in the event of Force Majeure or event beyond the control of Company.
9.2 Duty to Defend; Notice of Loss. Company acknowledges and agrees that its obligation to defend the City under Section 9.1 (a) is an immediate obligation, independent of its other obligations hereunder; (b) applies to any Loss which actually or potentially falls within the scope of Section 9.1, regardless of whether the allegations asserted in connection with such Loss
are or may be groundless, false or fraudulent; and (c) arises at the time the Loss is tendered to Company by the City and continues at all times thereafter. The City shall give Company prompt notice of any Loss under Section 9.1 and Company shall have the right to defend, settle and compromise any such Loss; provided, however, that the City shall have the right to retain its own counsel if representation of City by the counsel retained by Company would be inappropriate due to conflicts of interest between City and Company. City’s failure to notify Company promptly of any Loss shall not relieve Company of any liability to City pursuant to Section 9.1, unless such failure materially impairs Company’s ability to defend such Loss. Company shall seek City’s prior written consent to settle or compromise any Loss if Company contends that City shares in liability with respect thereto.
9.3 Assumption of Risk. Company shall assume all risk of damage to any and all other property of Company, or any property under the control or custody of Company while upon or near the Public Rights-Of-Way incident to the use of the Public Rights-Of-Way; provided, however, such assumption by Company shall not include any damage to the extent same is caused by the negligence or willful misconduct of City. Company releases City from any liability, including claims for damages or extra compensation, arising from construction delays due to any activities by City. Under no circumstances shall City be liable to Company for any loss of service downtime, lost revenue or profits or third-party damages.
9.4 Survival. Company’s obligations under this Article 9 shall survive Termination of this Agreement.
9.5 No Waiver. The failure of either party on one or more occasions to exercise a right or to require compliance or performance under this Agreement or any other applicable state or federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by such party nor to excuse the other party from complying or performing, unless such right or such compliance or performance has been waived in writing.
ARTICLE 10
INSURANCE
10.1 Minimum Insurance Requirements. Company shall obtain and maintain at its sole cost for the duration of this Agreement the following insurance:
10.1.1 Minimum Scope of Insurance.
Coverage shall be at least as broad as:
(a) Insurance Services Office Commercial General Liability coverage (“occurrence” form CG 0001).
(b) Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 “any auto”.
(c) Workers’ Compensation insurance as required by the Labor Code of the State of California and Employer’s Liability insurance.
10.1.2 Minimum Limits of Insurance.
Company shall maintain policy limits of no less than:
(a) General Liability. $5,000,000 combined single limit per occurrence for bodily injury, personal and advertising injury, property damage, and products/completed operations. 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. These limits can be satisfied through a combination of primary liability and umbrella/excess liability policies. (b) Automobile Liability. $2,000,000 combined single limit each accident for bodily injury and property damage.
(c) Worker’s Compensation in compliance with the statutory requirements of the State of California and Employer’s Liability with limits of $1,000,000 each accident/disease/policy limit.
10.1.3 Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to the City.
10.1.4 Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions:
(a) General Liability and Automobile Liability Coverages. (i) The City, its City Council, its officials, officers, employees, representatives, agents and volunteers are to be covered as additional insureds under Company’s general liability coverage, and Company’s automobile liability coverage. Company’s general liability coverage shall be primary and shall not seek contribution from the City’s coverage, and be endorsed using Insurance Services Office form CG 20 10 (or equivalent) to provide that City and its officers, officials, employees, and agents shall be additional insureds under such policies. For construction projects, an endorsement providing completed operations coverage for the additional insured, ISO form CG 20 37 (or equivalent), is also required. (ii) 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.
(b) Worker’s Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its City Council, its officials, officers, employees, representatives, agents and volunteers for losses arising from work performed by Company in the Public Rights-of-Way.
(c) All Coverages.
Upon receipt of notice from its insurer(s), Company shall use commercially reasonable efforts to provide the City with thirty (30) days’ prior written notice of cancellation of any coverage required herein.
10.1.5 Acceptability of Insurers.
Insurance shall be placed with insurers with a Best’s rating of no less than A-:VII.
10.1.6 Verification of Coverage.
Company shall furnish the City with certificates of insurance and additional insured endorsements effecting coverage required by this Article. The certificates for each insurance policy are to be signed by a person so authorized by that insurer. Any certificates and endorsements received by the City shall be maintained with valid expiration dates.
10.1.7 Indemnification Not Limited.
Any insurance required to be obtained and maintained by Company under this Agreement shall not limit in any way Company’s indemnification obligations under Article 9 of this Agreement.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Representations and Warranties. Each party represents and warrants that it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement and that this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors’ rights and general equitable principles. Company represents and warrants that it has any and all authorizations and approvals from state and federal regulatory agencies as are necessary for the activities and Facilities contemplated by the Agreement and that Company is in compliance in all material respects with its obligations under such authorizations.
11.2 Notices. All notices which shall or may be given pursuant to this Agreement shall be in writing and transmitted through first class United States mail, or by private delivery systems, to the following address or such other address of which a party may give written notice:
City:
______________________________
______________________________
______________________________
______________________________
With copies to (except for invoices):
Company:
Frontier California Inc.
____________________________
____________________________
Attn: _______________________
*insert if applicable*
11.3 Service of Process. Company shall designate a person in California or a nationally recognized service with a point of contact in California who is authorized to accept service of process on behalf of Company.
11.4 Operations Center. Company’s Operations Center shall be available to City staff 24 hours a day, 7 days a week, regarding problems or complaints resulting from the Facilities installed pursuant to this Agreement and may be contacted by telephone at: (888) 317-0488 regarding such problems or complaints.
11.5 Assignment. Company shall not assign or transfer any interest in this Agreement nor the performance of any of Company’s obligations hereunder, without the prior written consent of City (which shall be the sole discretion of the City), and any attempt by Company to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect; provided, however, Company may assign its rights and delegate its obligations hereunder without first obtaining the City’s consent to a corporation, limited liability company, partnership or other business entity wholly controlled or owned by Company or its parent companies or to the purchaser of all or substantially all of Company’s assets. An assignment shall not be effective until the Assignee agrees in writing to comply with and be subject to all the terms and conditions of this Agreement, the Code, and the Zoning Code. This Agreement may be assigned in its entirety or all or a portion of Company’s Facilities may be assigned or leased; however, Company shall remain liable for any outstanding obligations incurred prior to such assignment.
11.6 Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein.
11.7 Amendments. This Agreement may not be amended except pursuant to a written instrument signed by both parties.
11.8 Severability. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement.
11.9 Survival. All of the provisions, conditions and requirements of this Agreement shall be in addition to any and all other obligations and liabilities Company may have to the City at common law, by statute, or by contract, and shall survive the City’s Agreement to Company and any renewals or extensions thereof. All of the provisions, conditions, regulations, and requirements contained in this Agreement shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of the parties and all privileges, as well as all obligations and liabilities of each party shall inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever such party is named herein.
11.10 Governing Law and Venue. This Agreement shall be subject to, and governed and construed by and in accordance with, the laws of the State of California. In the event that suit is brought by a party to this Agreement, the parties agree that trial of such action shall be vested
exclusively in the state courts of California in San Mateo County, or in the United States District Court, Northern District of California.
11.11 Successors. This Agreement is binding upon the successors, assigns and transferees of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below.
CITY OF ___________________________
___________________________________
of the State of California
_____ __________________________
[Name, Title]
Frontier California Inc.
Signature:
_______________________________
Name:
__________________________________
Title:
_________________________________
_
Date:
_________________________________
_
Attest:
_______________________________
[Name, Title]