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TO: BOARD OF SUPERVISORS of Contra Costa County, also acting as the Governing Body
of the Contra Costa County Flood Control and Water Conservation District and as the
.Board of Commissioners of the Contra Costa County Redevelopment Agency
FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR
DATE: September 10, 1996
SUBJECT: Common Use Agreement for Fiber Optic System within the former Southern Pacific Right
of Way
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
A. APPROVE the Common Use Agreement between GST Telecom Inc., Central Contra Costa
Sanitary District, Contra Costa County, Contra Costa County Redevelopment Agency and
Contra Costa County Flood Control and Water Conservation District.
B. AUTHORIZE the Public Works Director to execute said Agreement on behalf of the
County, the Redevelopment Agency and the Flood Control District.
C. DIRECT the Real Property Division to have the above referenced Common Use
Agreement recorded in the office of the County Recorder.
Continued on Attachment:x SIGNATURE:
_RECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON 09/10/1996 APPROVED AS RECOMMENDED OTHER_
VTE OF SUPERVISORS
UNANIMOUS(ABSENT )
AYES: NOES:
ABSENT: ABSTAIN:
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Orig.Div: Public Works(R/P) an eoeen flan e�Q wed an Waal
Contact: Paul Gavey(313-2220) load d$ es 1W dei 4=
cc: County Administrator /�7TEdtEoe
GMEDA Directorrteona
Redevelopment Agency Director
Public Works Director
Flood Control District Chief Eng.
Recorder(via R/P)
Central CC Sanitary Dist(via RIP)
II. Financial Impact:
There is no impact to the County General Fund. Project construction delay could cost an
estimated $6,000 per day and could be assessed against the projected revenue from the fiber
optic system.
III. Reasons for Recommendations and Background:
The County and the Redevelopment Agency have licensed GST Telecom Inc. to install a fiber
optic conduit system within the former Southern Pacific right of way which is owned by the County
and the Agency and is subject to easements in favor of the Sanitary District and the Flood Control
District. These easement agreements require that the Common Use Agreement be entered into
by all of the parties cited above in order to allow construction of the fiber optic system. GST and
the Sanitary District have signed the Agreement.
The Agreement provides substantial limitations of liability for the benefit of all the public agencies
party to it and will permit construction of the new fiber optic system. This system will be of
significant monetary benefit to the County, the Redevelopment Agency and the Flood Control
District, and through encouraging competition, is intended to lower costs and provide increased
services to the community.
IV. Consequences of Negative Action:
Construction of the fiber optic system within the areas subject to easements would not be allowed
to proceed and alternate routes would be too costly. GST Telecom's license provides for
completion of installation by October 10, 1996 and this schedule cannot be met without the
Agreement. The public entities could be exposed, to substantial liability risks without the
protection provided by the Common Use Agreement.
AFTER RECORDING, RETURN TO: RECORDED AT REQUEST OF:
Central Contra Costa Sanitary District Central Contra Costa Sanitary District
Engineering Department
Infrastructure Division
5019 Imhoff Place
Martinez, CA 94553
Attention: Ricardo Hernandez
COMMON USE AGREEMENT
1. DATE AND PARTIES: Effective on Central Contra Costa Sanitary District,
a special district in the State of California (hereinafter called "DISTRICT"), the County of Contra
Costa (hereinafter called "COUNTY"), the Redevelopment Agency of Contra Costa County
(hereinafter called "AGENCY), the Contra Costa County Flood Control and Water Conservation
District (hereinafter called "FLOOD CONTROL DISTRICT" and hereinafter jointly, along with
DISTRICT, COUNTY and AGENCY called "PUBLIC ENTITIES"), and GST TELECOM INC.
(hereinafter called"USER") hereby mutually agree, consent,promise and enter into this Common
Use Agreement (hereafter called "Agreement") as follows.
2. FACTS: DISTRICT agreed to purchase certain property rights and upgrade certain
existing property rights from Contra Costa County and the Contra Costa County Redevelopment
Agency in two separate Agreements to Purchase Property dated December 3, 1985. Flowing
from such Agreements, DISTRICT owns and possesses certain property rights described in the
Grants of Easement recorded in, among other places, the following Books and Pages of Official
Records of Contra Costa County: 4042 OR 31, 3378 OR 506, 12652 OR 593, 12911 OR 849,
13085 OR 922, 13352 OR 324, 13358 OR 498, and Document No. 94-164411. COUNTY,
AGENCY, and FLOOD CONTROL DISTRICT also have their own facilities within and without the
land subject to the foregoing Grants of Easement. For the purposes of this Agreement, the term
"Easements" and "DISTRICT's Easements" shall be deemed to include all of the following: (i)
the property described in the recorded easements, referenced in this Section except as and until
modified by subsection (ii) of this Section; (ii) the property within six (6) feet of the centerline of
any DISTRICT sewer pipeline where such sewer pipelines are located outside the above
s1a24\a:\oommon6.agm August 23, 1996
referenced recorded easements and were intended to be easement acquisitions or subject to
easement corrections, as provided for in the Purchase Agreements referenced in this Section.
USER desires to construct and has begun construction of a telecommunications system
through property owned by COUNTY, AGENCY and FLOOD CONTROL DISTRICT and
commonly referred to as the Southern Pacific Railroad Company's former right of way. Said
telecommunications system is to consist of a conduit system and necessary appurtenances and
fiber optic cables installed within the conduit system. The telecommunications system overlaps
or overlays certain property which is the subject of DISTRICT's above referenced Easements.
3. DISTRICT hereby consents to the construction, use and maintenance by USER,COUNTY
AND AGENCY of a telecommunications system consisting of conduits, cables, wires, and
associated appliances (hereinafter called "Fiber Optic Facilities") within a portion of said
DISTRICT's Easements, subject to DISTRICT's and other PUBLIC ENTITIES' paramount rights,
as applicable, to use their property interests for all of the purposes for which they were acquired, .
namely,the maintenance, repair, construction, alteration, replacement, operation, reconstruction
and removal of DISTRICT's and other PUBLIC ENTITIES' facilities and appurtenances thereto,
and subject to the terms and conditions herein contained. DISTRICT and other PUBLIC
ENTITIES by this Agreement do not, and shall not be deemed to, subordinate their rights to any
use which USER or any other person or entity constructing, maintaining or using the Fiber Optic
Facilities shall make of said Easements.
4. PUBLIC ENTITIES and USER will use their best efforts to coordinate work in the area
subject to this Agreement, to accomplish any works of construction, reconstruction, maintenance,
repairs or modifications to their respective facilities with a minimum of disruption to the others.
In furtherance of this agreement, PUBLIC ENTITIES and USER agree to the following:
a. Except in the case of an emergency, prior to any construction, relocation,
reconstruction or major modifications within the Easements or immediately adjacent
thereto, any PUBLIC ENTITY working in the Easements will provide USER, and other
PUBLIC ENTITIES with notice sufficient to enable USER to protect the Fiber Optic
Facilities prior to commencing such work. In the case of.an emergency, the PUBLIC
s1a24\a:\common6.agm 2 August 23, 1996
ENTITY performing the emergency work will provide USER and the other PUBLIC
ENTITIES with such prior notice as is reasonable under the emergency circumstances.
Provided that the PUBLIC ENTITIES comply with the foregoing, PUBLIC ENTITIES shall
not be held responsible or liable for protecting in place USER's Fiber Optic Facilities
when PUBLIC ENTITIES find it necessary to accomplish work for the maintenance,
construction, repair, reconstruction, alteration, replacement, removal or operation of any
of their respective facilities.
b. Except in the case of an emergency, prior to any construction, relocation,
reconstruction or major modifications within the Easements or immediately adjacent
thereto, USER shall provide PUBLIC ENTITIES with specific plans and specifications for
review and written approval. PUBLIC ENTITIES shall review and comment on the plans
and specifications within thirty (30) calendar days of its receipt. USER shall modify the
plans and specifications to incorporate PUBLIC ENTITIES' comments and resubmit them
for PUBLIC ENTITIES' approval. The approval by PUBLIC ENTITIES shall not be
unreasonably withheld. In the case of an emergency, the prior submission of plans and
specifications shall not be required, however USER shall give PUBLIC ENTITIES such
notice as is reasonable under the emergency circumstances.
C. In the event either any PUBLIC ENTITY or USER identifies an emergency
situation, said party shall use its best efforts to notify the other party immediately of said
emergency situation. Emergency shall be defined as a situation which causes
discontinuation of the operations of DISTRICT's pipelines, any other facilities of PUBLIC
ENTITIES, or of the operation of USER's Fiber Optic Facilities, or a situation which
presents an immediate threat to the operation of DISTRICT's pipelines, any other facilities
of PUBLIC ENTITIES, or the operation of USER's Fiber Optic Facilities. An emergency
shall additionally include any rupture, leakage or other damage to the sewer system or
other facility which creates a present or immediate threat of creating a health hazard or
dangerous condition.
5. Any damage done to DISTRICT's facilities by USER or any other person or entity
constructing, maintaining or using the Fiber Optic Facilities under USER's direction and control
sla241aAcommon6.agm 3 August 23, 1996
shall be repaired by DISTRICT, and all reasonable costs and expenses shall be paid for by
USER. Any damage to the Fiber Optic Facilities caused by the direct negligence of DISTRICT,
its agents, contractor or employees shall be repaired by USER and, subject to the limitations on
liability contained in Sections 8 and 9 herein, all reasonable costs and expenses attributable to
the DISTRICT's negligence shall be paid for by DISTRICT.
6. USER shall relocate at USER's sole expense any or all of the Fiber Optic Facilities within
the Easements in a timely manner and at no cost to DISTRICT as reasonably necessary to
accommodate DISTRICT's construction, relocation, removal, alteration, replacement,
enlargement, repair, maintenance, and operation of DISTRICT's pipelines.
7. When DISTRICT determines to undertake a project which shall necessitate the relocation
of any or all of the Fiber Optic Facilities within DISTRICT's Easements, DISTRICT shall notify
USER of the need to relocate said facility. USER shall submit a relocation plan to DISTRICT
within thirty (30) calendar days of receipt of notice to do so. DISTRICT shall review and
comment on the plan within thirty (30) calendar days of its receipt. USER shall modify the plan
to incorporate DISTRICT's comments and resubmit the plan for DISTRICT's approval. The
approval by.DISTRICT shall not be unreasonably withheld.
8. USER shall defend, indemnify, save, and hold harmless the PUBLIC ENTITIES and their
respective boards, directors, officers, and employees from any and all claims, costs, and
liabilities for any damages, including inverse condemnation damages, and injury or death arising
from or connected with the maintenance, construction, repair, reconstruction, alteration,
replacement, removal or use of any or all of the Fiber Optic Facilities by USER or by any other
person or entity including, but not limited to, liability arising from injury or death to members of
the public using the property subject to this Agreement, except that any PUBLIC ENTITIES
whose sole negligence or willful misconduct resulted in the applicable claim, costs or liabilities
shall reimburse or pay USER for USER'S reasonable costs and expenses in repairing or
replacing any portion of the Fiber Optic Facilities which is damaged or destroyed by any such
act or omission. USER shall make good to and reimburse PUBLIC ENTITIES for any
expenditures, including reasonable attorneys' fees, any of PUBLIC ENTITIES may make by
reason of such aforementioned matters.
s1a24\a:\common6.agm 4 August 23, 1996
9. Under no circumstance shall PUBLIC ENTITIES have any liability to USER or to any other
person or entity, for consequential or special damages, or for any damages based on loss of
use, revenue, profits or business opportunities arising from or in any way relating to, any damage
or destruction of any portion of the Fiber Optic Facilities. USER hereby forever waives and
releases PUBLIC ENTITIES, and each of them, from any and all claims to consequential or
special damages, and for any damages based on loss of use, revenue, profits or business
opportunities arising from or in any way related to, any damage or destruction of any portion of
the Fiber Optics Facilities, and hereby acknowledges that its sole remedy for any damage or
destruction of any portion of the Fiber Optic Facilities by any of the PUBLIC ENTITIES, to the
extent the responsible PUBLIC ENTITY is otherwise so liable under this Agreement, shall be to
require the specific PUBLIC ENTITY that caused such damage or destruction to reimburse or
pay USER for USER'S reasonable costs and expenses in repairing or replacing the damaged
or destroyed portion. Further, USER hereby covenants to require all of its sublicensees (of
whatever tier) and end users to waive and release the PUBLIC ENTITIES, and each of them,
from any and all claims to consequential and special damages, and for any damages based on
loss of use, revenue, profits or business opportunities arising from or related to any damage or
destruction of any portion of the Fiber Optic Facilities, and to acknowledge that their sole remedy
arising from or relating to any damage or destruction of any portion of the Fiber Optic Facilities
by any of the PUBLIC ENTITIES shall be, to the extent the responsible PUBLIC ENTITY is
otherwise so liable under this Agreement, to require the specific PUBLIC ENTITY which caused
such damage or destruction to reimburse or pay USER for USER'S reasonable costs and
expenses in repairing or replacing the damaged or destroyed portion. USER hereby agrees to
defend, indemnify, save, and hold harmless the PUBLIC ENTITIES and their respective boards,
directors, officers, and employees from any and all claims, costs, and liabilities arising from any
claim which either USER or any of its sublicensees (of whatever tier) or end users has waived
and released hereunder, or is required to be waived and released hereunder. USER expressly
waives all rights provided by section 1542 of the California Civil Code, which provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor.
In the event that PUBLIC ENTITIES agree to the installation by DISTRICT of any future
additional trunk lines, main lines or laterals which connect to DISTRICT's facilities within the
sla24\a:\common6.agm 5 August 23, 1996
Easement area, the limitation of liability for consequential or special damages, or for any
damages based on loss of use, revenue, profits or business opportunities accorded to PUBLIC
ENTITIES under this section shall also apply to the agreed upon future trunk lines, main lines
or laterals within the Easement area.
10. USER's use of the Easements pursuant to this Agreement, and the exercising of any
rights hereunder shall in no way interfere with DISTRICT's use of said lands including, but not
limited to, the maintenance, repair, construction, alteration, replacement, operation,
reconstruction, and removal of DISTRICT's facilities and appurtenances thereto. Nothing herein
contained shall be construed as a release or waiver of any claim for compensation or damage
which DISTRICT may have resulting from the construction of facilities or the alteration of facilities
by USER in such a manner as to interfere with DISTRICT's use of said Easements.
11. All facilities, structures, or improvements installed or located by USER within DISTRICT's
Easements shall at all times be maintained in good, safe and orderly condition to the reasonable
satisfaction of DISTRICT at USER's sole cost and expense. USER hereby agrees to defend,
indemnify, save, and hold harmless the PUBLIC ENTITIES and their directors, officers, and
employees from any and all claims, costs, and liabilities arising from or relating to any breach
or claimed breach of this section.
12. USER agrees to procure and constantly maintain in force at its expense a comprehensive
general liability and vehicle insurance policy that provides protection from claims which may arise
from operations or performance in the Easements. If any of the work undertaken by USER is
sublet to a contractor, the USER shall require the contractor to provide evidence of the same
liability insurance coverage. For all insurance, the amounts of insurance shall not be less than
the following: single limit coverage applying to bodily and personal injury liability and property
damage, one million dollars per occurrence. USER shall furnish PUBLIC ENTITIES with
evidence of such coverage, naming PUBLIC ENTITIES, their respective boards, officers and
employees as additional insureds under the policy as to the work and operations being
performed in the Easements. The coverage shall not be cancelled or materially altered unless
thirty (30) days written notice is first given to PUBLIC ENTITIES.
slaN4 a:1common&agm 6 August 23, 1996
13. This Agreement and all of the terms and conditions herein contained shall inure to the
benefit of and be binding upon the heirs, successors, and assigns of the respective parties
hereto. Any revision to this Agreement will not be effective unless in writing, executed by both
parties.
14. Within two years following provision by COUNTY to DISTRICT of complete and accurate
records of survey of the property underlain by the DISTRICT Easements, DISTRICT hereby
agrees to provide COUNTY with maps and legal descriptions, to be used in accordance with
customary practice, of all of DISTRICT's current trunk lines, main lines and laterals to the
DISTRICT's interceptor line, as well as may be necessary to effect the easement corrections and
easement acquisitions referenced in Section 2 above.
15. Except as provided herein or in Section 9 above, this Agreement is intended to only
address issues related to DISTRICT's permission concerning the construction, use and
maintenance of the Fiber Optic Facilities within the DISTRICT's Easements and to no other act
or use by USER or others within such Easements. In the event of a conflict between the
provisions of this Agreement and the terms of the "License for the Construction and Operation
of Telecommunications Systems on Specified Contra Costa County Properties," made and
entered into on February 21, 1996 between USER, COUNTY, FLOOD CONTROL DISTRICT and
AGENCY,the provisions of this Agreement shall control. This Agreement shall not be construed
to amend or modify the COUNTY'S and DISTRICT's rights under the Easements or the
Agreements to Purchase Property described in Section 2 hereof.
16. All notices (including requests, demands, approvals or other communications) under this
Agreement shall be in writing.
a. Notice shall be sufficiently given for all purposes as follows:
(1) When delivered by first class mail, postage prepaid, notice shall be
deemed delivered three (3) business days after deposit in the United
States Mail.
(2) When mailed by certified mail with return receipt requested, notice is
effective on receipt if delivery is confirmed by a return receipt.
s1a24ta:1common6.agm 7 August 23, 19F%
(3) When delivered by overnight delivery by a nationally recognized overnight
courier, notice shall be deemed delivered one (1) business day after
deposit with that courier.
(4) When delivered by telecopy or similar means, notice shall be deemed
delivered one (1) business day after the day it was transmitted by
telecopier or similar means, provided that a transmission report is
generated by reflecting the accurate transmission of the notices.
(5) When personally delivered to the recipient, notice shall be deemed
delivered on the date personally delivered.
b. The place for delivery of all notices given under this Agreement shall be as
follows:
DISTRICT: Mr. Jay McCoy
Infrastructure Division Manager
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553
Telephone - (510) 228-9500
Facsimile - (510) 228-4624
COUNTY, AGENCY AND FLOOD CONTROL DISTRICT:
Contra Costa County
Attn: Real Property Division
255 Glacier Drive
Martinez, CA 94553
Telephone - (510) 313-2220
Facsimile - (510) 313-2333
USER: GST Telecom Inc.
4511 Willow Road, Suite 2
Pleasanton, CA 94588
Attn: Arthur Ammon
Vice President and General Manager
Telephone - (510) 468-6405
Facsimile - (510) 468-6401
or to such other addresses and facsimile numbers as any party may respectively designate by
written notice to the others.
s1a24\a:\common6.agm 8 August 23, 1996
17. PUBLIC ENTITIES agree that, in the event COUNTY or AGENCY enters into a direct
license agreement with a user of the Fiber Optic Facility other than the USER specified in this
agreement (i.e., GST TELECOM INC.,), said other user to be identified hereinafter
"SUBSEQUENT FIBER OPTIC USER,"and said SUBSEQUENT FIBER OPTIC USER's facilities
will overlay or overlap the DISTRICT's Easement, and said SUBSEQUENT FIBER OPTIC USER
is neither a sub-user nor an end-user nor operating under the direction or control of GST
TELECOM INC., the SUBSEQUENT FIBER OPTIC USER and DISTRICT shall enter into a
Common Use Agreement in the same form as this Agreement and, absent the SUBSEQUENT
FIBER OPTIC USER's execution of such Agreement, neither COUNTY nor AGENCY shall permit
the SUBSEQUENT FIBER OPTIC USER to use the Fiber Optic Facility .
SIGNATURES ON PAGE FOLLOWING
s1a24\a:\oommon6.agm 9 August 23, 1996
GST TELECOM INC. CENTRAL CONTRA COSTA
SANITARY DISTRICT
By:g,.La,
By:
By: ,
President of the Board of Directors
6
By:
Secretary of the District
COUNTY OF CONTRA COSTA RECOMMENDED FOR APPROVAL
By:
By:
District Counsel
REDEVELOPMENT AGENCY
OF CONTRA COSTA COUNTY
By:
CONTRA COSTA COUNTY FLOOD
CONTROL AND WATER
CONSERVATION DISTRICT
By:
RECOMMENDED FOR APPROVAL: APPROVED AS TO FORM:
Public Works Department Victor J. Westman, County Counsel
By:
J. Michael Walford, Director y Co C unset
ALL PARTIES MUST ATTACH APPROPRIATE ACKNOWLEDGEMENTS
s1a24\a:\oommon6.agm 10 August 23, 1996
State of Washington )
County of Clark )
Signed or attested before me on August 26, 1996 by Earl C. Kamsky and Clifford V. Sander.
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