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HomeMy WebLinkAboutMINUTES - 10092001 - C.3 C' s TO: BOARD OF SUPERVISORS FROM: MAURICE M.SHIU, PUBLIC WORKS DIRECTOR DATE: October 9, 2001 SUBJECT: Installation of telecommunication cable by Metromedia Fiber Services, Inc. in existing Pac Bell conduit located in the former Southern Pacific Right Of Way, San Ramon Area. Project No. 4585-6G5575. SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION I. Recommended Action: APPROVE and AUTHORIZE the Public Works Director, or his designee, to execute a License Agreement between Contra Costa County and Metromedia Fiber Services, Inc., (MFS) acting on behalf of MCI-Worldcom, Inc., (Worldcom) for MFS's installation of Worldcom's telecommunication cable in existing Pacific Bell conduit located in the former Southern Pacific Right of Way (SPR/W), San Ramon area. II. Financiallmpact: The License Agreement is for a term of twenty years, and provides for annual fee payment beginning at $4,240 per year, subject to CPI adjustment every five years. The annual fees will be deposited in the Southern Pacific Right of Way Fund. Continu d on Attachment: X SIGNATUR _ /.P,- 4AktCOMMENDATION OF COUNTY AD ISTRAT R _RECOMMENDATION OF BOARD CO MITTE i,�ROVE HER SIGNATURE(S): ACTION OF BOA N OCTOBER 09, 2001 APPROVED AS RECOMMENDED xx OTHER VOTE OF SUPERVISORS (ABSENT ) I hereby certify that this is a true and correct xx UNANIMOUS AYESNOES: copy of an action taken and entered on the ABSENT: ABSTAIN: minutes of the Board of Supervisors on the date shown. DRA:eh ATTESTED: OCTOBER 09, 2001 G:\GrpData\RealProp\2001-Files\BOs&RES\BO Metromedia Fiber.doc JOHN SWEETEN, Clerk of the Board of Supervisors and County Administrator Orig. Div: Public Works(R/P) Contact: Dick Awenius(313-2227) By Deputy cc: County Administrator Auditor-Controller(via R/P) P.W.Accounting Recorder(via R/P) Installation of telecommunication cable by Metromedia Fiber Services, Inc. in existing Pac Bell conduit located in the former Southern Pacific Right Of Way, San Ramon Area. October 9, 2001 Page 2 III. Reasons for Recommendations and Background: County is the owner in fee title of that land more commonly known as the former Southern Pacific Railroad Right of Way (SPR/W). County acquired the SPR/W, including the subject Property, from the Southern Pacific Transportation Company (SP). On June 20, 1985, and prior to the County's acquiring the Property from SP, SP conveyed an easement agreement to Pacific Bell (PacBell) for the placement of conduit for telecommunication purposes in the SPR/W. County became the successor in interest to that easement. PacBell has since given MFS written permission to install MFS's single fiber optical cable in PacBell's existing conduit. MFS contends that it has the prior right to install cable in PacBell's conduit, pursuant to PacBell's easement with the County, and therefore is not required to sign the license agreement. MFS has conditioned its execution of the License Agreement on its ability to contest the validity of the License Agreement in court. County staff contends that MFS must enter into a license, but suggests approving a ninety (90) day period in which MFS may contest the License. IV. Consequences of Negative Action: The License Agreement will not be executed. DRAFT LICENSE AGREEMENT This Agreement (the"Agreement" or"License Agreement") is between CONTRA COSTA COUNTY, hereinafter called"County," and Metropolitan Fiber Systems of California, Inc., a Delaware corporation, hereinafter called"MFS."The effective date of this Agreement is October 9, 2001, provided that by or on that date the Agreement has been approved by the County Board of Supervisors and executed by MFS. Now, therefore, the parties agree as follows: 1. Purpose. County is the owner in fee title of that land located within a former railroad right of way that is more commonly known as the former SPR/W("the Property"). County acquired the Property from the Southern Pacific Transportation Company("SP"). On June 20, 1985, and prior to the County's acquiring the Property from SP, SP conveyed an easement (the "PacBell Easement") to Pacific Bell, a California corporation("PacBell"), pursuant to an Agreement recorded at Book 12372, page 526, of the Official Records of Contra Costa County. The PacBell Easement is described in Exhibit A, attached hereto and incorporated herein by this reference. Pursuant to an agreement between PacBell and MFS, PacBell has given MFS permission to install a single fiber optical cable ("MFS Cable") in PacBell's existing conduit within the PacBell Easement. MFS desires to obtain County's permission to install the MFS Cable in approximately 4,000 lineal feet of PacBell's existing conduit in the PacBell Easement and County is willing to grant a license to MFS to do so upon the terms and conditions contained herein. 2. Grant of License. Subject to the terms and conditions of this License Agreement, County hereby grants to MFS, the non-exclusive right to install, operate, and maintain the MFS Cable in PacBell's existing conduit in the PacBell Easement. Nothing in this Section is intended or shall be construed to prevent or restrict County from granting other licenses in the PacBell Easement in the future. Notwithstanding any other provision of this License Agreement, County makes no warranty as to the suitability of the PacBell Easement or of PacBell's conduit for the installation of the MFS Cable. 3. County's Interest. MFS hereby acknowledges the title and real property interest of County in and to the Property, subject to the PacBell Easement, and agrees never to assail, question, or resist County's title or real property interest. MFS acknowledges that pursuant to this Agreement it has been granted only a limited right to occupy and use the PacBell Easement, and that it has not been granted any real property interest in the PacBell Easement. 4. MFS's Cable. MFS shall have and retain ownership of the MFS Cable, subject only to the use restrictions contained in this License Agreement. 5. Term. The term of this Agreement shall be for the period commencing October 1, 2001, and ending September 30, 2021. DRAFT 6. Fee. As consideration for this Agreement MFS agrees to pay a non-refundable fee of Four Thousand Two Hundred Forty and No/100 Dollars ($4,240) per year, subject to the adjustments described in this Section, payable in advance on October 1 of each year during the term of this agreement (the"Annual Fee"). On October 1 of 2006, 2011, and 2016, the Annual Fee shall be adjusted by the change in the United States Department of Labor - Bureau of Labor Statistics - Consumer Price Index of Urban Wage Earners and Clerical Workers (CPI-U), using an August 2001 base year. For example, on October 1, 2006, the CPI-U for August 2001 shall be subtracted from the CPI-U figure for August 2006. The resulting number shall then be divided by the CPI-U figure for August 2001. The Annual Fee in effect just prior to October 1, 2006, shall then be multiplied times one plus the CPI adjustment from the calculation just described. 7. Use. MFS's use of the PacBell Easement shall be in accordance with the terms and conditions of this License and shall be limited to the activities reasonably necessary for the installation, operation, maintenance, and repair of the MFS Cable. MFS shall not be permitted to construct any building, shelter, generator, terminal, or any other structure on the PacBell Easement area. MFS covenants that its use of MFS's Cable will comply with all applicable federal, state, county, and local laws, codes, and regulations. 8. Permits and Approvals. MFS shall be responsible for obtaining any permits or approvals fiom any agency having jurisdiction. 9. Non-Exclusive Right of Use. The right to use the PacBell Easement is non-exclusive. County reserves.the right to issue licenses to others for other purposes. 10. Existing Facilities. It is understood and agreed that County has leases and/or licenses with others for all or a portion of the PacBell Easement. The holders of the leases and/or licenses described above have the right to enter onto.the PacBell Easement and maintain their facilities, and MFS shall not be compensated by the County for damage resulting from such entrance or maintenance. 11. Damage. MFS shall not perform any excavation within the PacBell Easement without County's prior written consent, not to be unreasonably withheld; provided, however, that in the event of an emergency or damage to its facilities, MFS may repair such damage without such consent but with prompt notice thereof to County. It is the responsibility of MFS to contact easement, lease, and license holders to determine that the Pacbell Easement area is able to support any vehicle brought onto it by MFS without damage to subsurface or surface facilities. MFS shall repair all damage and return the PacBell Easement area to a neat and safe condition satisfactory to County and to all other such users. 12. Disruption. NMS shall minimize disruption to neighborhoods during installation and operation activities. During installation, the amount of equipment and number of personnel at any given time shall be kept to a minimum. 13. Pollution. MFS, at its expense, shall comply with all applicable laws, regulations, rules, and others, with respect to the use of the PacBell Easement, regardless of when they - 2 - DRAFT become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and furnish satisfactory evidence of such compliance upon request of County. No hazardous materials shall be handled at any time upon the PacBell Easement. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or from the PacBell Easement due to MFS's use and occupancy thereof, MFS, at its expense, shall be obligated to clean all the property affected thereby, whether owned or controlled by County or any third person, to the satisfaction of County(insofar as property owned or controlled by County is concerned) and any governmental body having jurisdiction thereover. To the extent permitted by law, MFS shall indemnify, hold harmless, and defend County against all liability, cost, and expense(including, without limitation, any fines, penalties, judgments, reasonable litigation costs, and reasonable attorneys' fees) incurred by County as a result of MFS's breach of this Section or as a result of any such discharge, leakage, spillage, emission or pollution by MFS, regardless of whether such liability, cost or expense arises during or after the term of this License, unless such liability, cost or expense is proximately caused solely by the active negligence or willful misconduct of County. MFS shall pay all amounts due County under this Section within ten (10) days after the County has established that such amounts are due. 14. Hold Harmless. MFS shall defend, indemnify, save, and keep harmless-the County and all of its officers, agents, contractors, and employees against all liabilities,judgments, costs, and expenses which may in any way accrue against County in consequence of MFS' actions under this License, save and except for the litigation described in Section 19 of this License Agreement, or the sole negligence or sole willful misconduct of County. 15. Insurance. MFS agrees, at no cost to the County, to obtain and maintain during term of this License, comprehensive liability insurance with a minimum combined single-limit coverage of One Million and No/I 00 Dollars ($1,000,000) for all claims or losses due to bodily injury, sickness or disease or death to any person, or damage to property, including loss of use thereof arising out of each accident or occurrence, and to name Contra Costa County, its officers, agents, and employees as additional insureds thereunder. Said coverage shall provide for a thirty (30) day written notice to County of cancellation or lapse. Evidence of such coverage shall be furnished to County prior to execution of this License. 16. Assignment— Subletting. MFS may assign this License to any entity controlled by or under common control with MFS upon prior written notice to the County. However, except as proscribed by federal law, MFS shall not transfer or assign any of its rights in and to this License, and no entity may possess MFS's rights or obligations under this License, without the prior written consent of the County. County consent to MFS's transfer or assignment of its rights shall not be unreasonably withheld. (It is the County's intent to not apply the prior written consent requirement of this section if such a requirement is prohibited by federal law.) - 3 - DRAFT 17. Notice. Any notice, request, instruction, demand, consent, or other communication required or permitted to by given under this License shall be in writing and shall be delivered either by hand or by certified mail, postage prepaid, and certified return receipt requested to the following address or to such other address as the parties may provide to each other in writing: County• MFS: Contra Costa County Metropolitan Fiber Systems of California, Public Works Department Inc. Real Property Division c/o WorldCom 255 Glacier Drive Director of Law &Public Policy Martinez, California 94553 1133 19th Street, NW Washington, D.C. 20036 18. Integration; Amendments. This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. No alteration or variation of this Agreement shall be valid or binding unless made in writing and signed by the parties hereto. 19. Retention of Litigation Rights. (a) The County and MFS agree that, notwithstanding the execution of this License Agreement and the County's and MFS's actions pursuant to it, provided MFS does so within 90 days of the effective date of this Agreement, MFS may file a complaint for declaratory relief with respect to the County's authority to require MFS to enter into this License Agreement, to pay fees to the County, or to receive any other permission from the County, with respect to the activities of MFS under this License Agreement (the"Litigation"). The County hereby waives any and all statute of limitations or other objections (such as waiver) it may have to MFS's filing of the Litigation within the time frame set forth above. (b) With respect to the Litigation, the County and MFS agree that, notwithstanding the execution of this License Agreement and the County's and MFS's actions pursuant to it: (i) MFS and County may assert any and all legal claims and defenses, including without limitation, all claims and defenses under the PacBell Easement, section 253 of the Federal Telecommunications Act, 47 U.S.C. §151 et seq, California Public Utilities Code section 7901, the California Telecommunications Infrastructure Development Act, Cal. Gov't Code section 50030, and the Mitigation Fee Act, Cal. Gov't Code section 66000 et seq; (ii) Except as expressly stated in Subsection 19 (a), this License Agreement shall in no way operate as a waiver of any claims, defenses or as an admission of any sort on the part of MFS or the County; (ii.i) Each party shall bear all its own costs and expenses, including attorneys' fees incurred in connection with the Litigation, including any and all appellate proceedings; - 4 - DRAFT (iv) In the event that MFS prevails in the Litigation, MFS' sole remedy shall be that the License Agreement will be null and void, MFS will be refunded all Annual Fees it paid pursuant to Section 6, without interest, and MFS shall not be required to obtain a license or other proprietary permission from County to install, operate, maintain and repair the MFS Cable in PacBell conduit in the PacBell Easement. In the event that MFS does not prevail in the Litigation, the County's sole remedy shall be that the License Agreement remains in force and effect. In no event shall damages be sought or awarded in connection with the Litigation. If MFS does not commence the Litigation within the period specified, this License Agreement remains in force and effect and MFS agrees that it forfeits any right to litigate the validity of this License Agreement. CONTRA COSTA COUNTY LICENSEE—Metropolitan Fiber Systems of California, Inc. RECOMMENDED TO THE BOARD OF SUPERVISORS FOR APPROVAL By: By Principal Real Property Agent By: APPROVED: By Maurice M. Shiu Public Works Director Date: 10-2-01 County draft,marked to show changes HAP WARP\worldcom\100201 F.wpd - 5 -