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HomeMy WebLinkAboutItem 4.5 - 2940 MCImetro Verizon Conduit Occupancy Agreemen Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: November 19, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Conduit Occupancy Agreement with Verizon for Use of City Conduit and Facilities in Gleason Drive Prepared by: Homira Shafaq, Assistant Civil Engineer EXECUTIVE SUMMARY: The City Council will consider approval of a Conduit Occupancy Agreement with MCImetro Access Transmission Services Corp. (Verizon) for use of City-owned conduit and facilities within the Gleason Drive right-of-way for fiber optic communication line. STAFF RECOMMENDATION: Adopt the Resolution Approving a Conduit Occupancy Agreement with MCImetro Access Transmission Services Corp. FINANCIAL IMPACT: Approval of the Conduit Occupancy Agreement with MCImetro Access Transmission Services Corp. (Verizon) does not impact the General Fund. All City costs to negotiate and process the agreement are borne by Verizon. Once the agreement is executed, Verizon will pay the City $10,000 for the use, operation, and maintenance of their facilities in the City’s conduit within the Gleason Drive right-of-way. DESCRIPTION: MCImetro Access Transmission Services Corp. (Verizon) has an existing , inactive, and discontinuous, fiber optic communication line running parallel and adjacent to westbound Gleason Drive. The existing fiber optic line is capped at each end of the bridge over Tassajara Creek. Verizon wants to make this line active. To do so, Verizon needs to connect the new fiber optic line across Tassajara Creek. The City has two existing five-inch diameter empty conduits within the sidewalk area of the bridge over Tassajara Creek within the Gleason Drive right-of-way. Instead of installing their own conduit under Tassajara Creek, Verizon asked City staff if they could use one of the existing City conduits for their fiber optic line. There is currently no plan Page 2 of 2 for the City to use these empty conduits, therefore Staff recommends that the City Council allow Verizon to use one conduit by way of a Conduit Occupancy Agreement. The Conduit Occupancy Agreement will allow for Verizon to occupy one existing five- inch City-owned conduit for their fiber optic communication line, along with any necessary construction of appurtenances at both ends of the bridge, for a period of 20 years. The Conduit Occupancy Agreement also includes improvements to the City’s second five-inch conduit at no cost to the City, which are generally described as: extension of City-owned conduit, two new pull boxes at the ends of the extension, and widening of the concrete sidewalk where improvements take place. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. Resolution Approving Conduit Occupancy Agreement with MCImetr o Access Transmission Services Corp. 2. Exhibit A to Resolution – Conduit Occupancy Agreement for Use of City Conduit and Facilities with MCImetro RESOLUTION NO. XX-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING A CONDUIT OCCUPANCY AGREEMENT WITH MCIMETRO ACCESS TRANSMISSION SERVICES CORP. WHEREAS, MCImetro Access Transmission Services Corp., a Delaware corporation (hereinafter “Verizon”) has an existing fiber optic communication line within a portion of Gleason Drive public right-of-way; and WHEREAS, Verizon would like to extend their fiber optic communication line across Tassajara Creek utilizing one of the existing City-owned empty five-inch diameter conduits located within the sidewalk area of the Gleason Drive bridge over Tassajara Creek; and WHEREAS, the City and Verizon have developed a Conduit Occupancy Agreement for use of one City-owned conduit for 20 years that will establish the responsibilities of each party, payment, and terms and conditions under which Verizon must operate and maintain their fiber optic communication line within the City-owned conduit in the sidewalk area of the bridge over Tassajara Creek within Gleason Drive right-of-way. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve a Conduit Occupancy Agreement with Verizon. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Agreement in substantially the form attached hereto as Exhibit A to this Resolution, and to take such other and further action, as necessary and appropriate, to carry out the intention of this Resolution. PASSED, APPROVED AND ADOPTED this 19TH day of November 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: _______________________________ Mayor ATTEST: ______________________________ City Clerk Page 1 of 12 CONDUIT OCCUPANCY AGREEMENT THIS CONDUIT OCCUPANCY AGREEMENT (“Agreement”), is made and entered into as of the _____ day of _______, 2019 (“Commencement Date”), by and between the City of Dublin, California, (“City”) and MCImetro Access Transmission Services Corp., a Delaware corporation (“MCImetro”). City and MCImetro may be referred to individually as a “Party” and collectively as the “Parties.” RECITALS WHEREAS City owns an underground conduit system and associated communications network facilities (the “City Conduit and Facilities”). WHEREAS MCImetro desires to occupy portions of the City Conduit and Facilities with fiber optic cable. WHEREAS City is amenable to MCImetro’s use of certain City Conduit and Facilities subject to conditions set forth herein, including installation of certain improvements. NOW THEREFORE, for good and valuable consideration, the Parties agree as follows: TERMS AND CONDITIONS 1. DEFINITIONS “Conduit” means a pipe-like structure which may consist of polyvinyl chloride (PVC), high density polyethylene (HDPE), and other materials placed underground to contain Ducts and/or Fiber Optic Cables as part of a communications network. “City Conduit and Facilities” means portions of City-owned Conduit and Facilities for which a license for conduit occupancy is granted to MCImetro under this Agreement. “Duct” means a single enclosed raceway for Fiber Optic Cable and is sometimes installed in a Conduit. The term Duct may include micro-duct, inner duct, or other industry standard duct-like materials. “Facility” and “Facilities” means the various elements or components of an underground communications network, including without limitation, Conduit, Ducts, Handholes, Manholes, Slack Coils, and other ancillary materials, items, equipment, pull rope, tracer wire, mule tape, buried locate tape, markers and structures (e.g., pedestals and vaults). “Fiber Optic Cable” means fiber optic communications cable. “Handhole” means a structure placed in the ground and accessible from the surface that is used to provide access to Conduits, Ducts, Slack Coils, and/or Fiber Optic Cables for the purpose of installing, operating, maintaining and repairing communications Facilities, and may include vaults and pull boxes of various sizes. “Make Ready Work” means one or more of the following activities as determined by MCImetro: (i) work to obtain a clear path in a City Conduit and Facilities segment, including, if necessary, clearing obstructions in the segment through repairs made by excavation of all or part of a segment or clearing by other means not requiring excavation; (ii) insert Duct in the segment; (iii) add access points (Handholes, Manholes) to a segment; (iv) place pull rope and mule/buried locate tape in the segment; (v) place tracer Page 2 of 12 wire in a segment; (vi) pull fiber optic cable through the segment; (vii) splice fiber optic cable between segments in an access point, which will require encroachment permits to be obtained as to the extent required pursuant to the Dublin Municipal Code (DMC) Chapter 7.04. “Manhole” means a structure large enough to admit a person’s entire body through an opening in the roof placed in the ground and accessible from the surface that is used to provide access to Conduits, Ducts and/or Fiber Optic Cables for the purpose of installing, operating, maintaining and repairing communications Facilities. “MCImetro Improvements” is defined in Section 4(a) of this Agreement. “Requirements and Standards” means laws, rules, regulations, codes, ordinances, permit conditions, the National Electric Code, the National Electrical Safety Code, and the Blue Book, that govern, address, or apply-to construction of underground Conduit systems in public rights of way in the City. “Slack Coils” mean extra fiber optic cable that is coiled up and placed in a Manhole or Handhole for future use. 2. MCIMETRO CONDUIT LICENSE City hereby grants to MCImetro a non-exclusive, irrevocable license for the Term of the Agreement, to access and enter the City Conduit and Facilities identified in Exhibit A, attached hereto and incorporated by this reference, in order to place, occupy, operate, lease, repair, replace, restore, protect, maintain, and remove Fiber Optic Cable and related MCImetro Facilities. The license includes the right for MCImetro to create new access points in the City Conduit and Facilities (with the City’s prior written consent), and to connect to City Conduit and Facilities. Such access to and use of City Conduit and Facilities shall require encroachment permits as and to the extent required pursuant to DMC Chapter 7.04. a) Information/Availability. The City will provide readily available information to MCImetro regarding availability of City Conduit and Facilities, such as maps, capacity, survey results, future requirements, and other information. MCImetro may conduct surveys of City Conduit and Facilities to determine condition, available capacity, or any other parameters of City Conduit and Facilities subject to receipt of applicable encroachment permits for access, survey, and traffic control. b) Make-Ready Work. MCImetro shall have the right, but not the obligation, at its sole cost and expense, to perform Make Ready Work on City Facilities as deemed reasonably necessary by MCImetro to prepare such City Facilities for occupancy by MCImetro under this Agreement. MCImetro shall inform City in writing of any such Make Ready Work seven (7) days in advance, shall obtain an encroachment permit, as necessary, and the City shall provide all cooperation reasonably required by MCImetro with respect to coordinating performance of related Make Ready Work by the City and any other authorized occupants of City Facilities. MCImetro shall reimburse the City and any other authorized occupants of City Facilities for make-ready costs incurred by them in performance of Make Ready Work for MCImetro’s proposed occupancy. All MCImetro work shall be promptly undertaken in accordance with all applicable Requirements and Standards. c) No use of the City Conduit and Facilities by MCImetro shall vest in MCImetro any easement or any ownership interest or other real property right nor shall any easement or any other ownership or other property right in the MCImetro’s Fiber Optic Cable or Facilities vest in the City or a third party by virtue of the activities contemplated by this Agreement. Page 3 of 12 d) An encroachment permit will be required for any temporary lane or sidewalk closure, construction activity or alteration of the City Conduit and Facilities, as and to the extent required pursuant to the DMC Chapter 7.04. e) City shall permit MCImetro, subject to a negotiated charge, to utilize reasonable amount of space within its Manholes for storage purposes including for Slack Coils. f) MCImetro shall provide to the City as-built plans or record drawings for any constructed facilities upon completion of work. g) City will only use the extended conduit and pull boxes installed by MCImetro for City use for City government purposes for a period of seven (7) years following execution of this Agreement. 3. RATES AND CHARGES; BILLING; PAYMENT a) Administrative Fee. MCImetro agrees to pay City a sum of four thousand dollars ($4,000). b) Per Foot License Fee: MCImetro agrees to pay City five dollars ($5.00) per linear foot for sixty (60) feet of City Conduit as described in Exhibit A to this Agreement. The total Per Foot License Fee for the Term shall be six thousand dollars ($6,000), irrespective of the amount of Fiber Optic Cable or Facilities installed in City Conduit and Facilities. c) Total Fee. The Administrative Fee shall be paid within forty-five (45) days of the execution of this Agreement. The Per Foot License Fee shall be paid within thirty (30) days of completion of the MCImetro Make-Ready Work and the MCImetro Improvements. 4. ADDITIONAL CONSIDERATION a) MCImetro shall install Conduit extensions, Handholes, and extension of concrete sidewalk on each side of the City Conduit and Facilities as more fully described in Exhibit B (“MCImetro Improvements”) b) Commencement of Construction; Delivery. MCImetro will commence installation of MCImetro Improvements within 30 days of issuance of encroachment permit for MCImetro’s construction activity on Gleason Drive and shall complete the MCImetro Improvements no later than the expiration date noted on said encroachment permit. c) Disputes; Late Payment Charges. Each Party shall pay all undisputed amounts when due, and provide a detailed description of any amounts that are in dispute. The Parties shall cooperate in good faith to resolve any billing disputes. d) No Accord and Satisfaction. No acceptance of any payment hereunder by either Party shall be deemed to constitute any accord or satisfaction with respect thereto, and each Party reserves all rights with respect to any such matters. 5. MAINTENANCE AND REPAIR; DECOMMISSIONING a) MCImetro shall maintain and repair its Fiber Optic Cable and Facilities at no charge to City and keep them in good working order according to applicable Requirements and Standards. When conducting these activities, MCImetro shall be responsible for any damages it causes to City Conduit and Facilities. Page 4 of 12 b) MCImetro shall have the right, but not the duty or obligation, to undertake emergency repair to the City Conduit and Facilities if there is a significant impact from an emergency on the MCImetro Fiber Optic Cable or Facilities. When conducting these activities, MCImetro shall be responsible for any damages it causes to the City Conduit and Facilities. c) Each Party shall use reasonable commercial efforts to provide at least 48 hours prior written notice of all maintenance and repair activity. Unless such maintenance and repair activities constitute an emergency, said activities must be completed pursuant to an encroachment permit. d) Emergency repair activity requires notice to the City the day of emergency work, and a permit applied for within five (5) business days. e) City shall comply with all applicable Requirements and Standards with respect to its use and occupation of City Conduit and Facilities and cooperate with MCImetro in good-faith to address any interference or other such issues. City shall require all other authorized users of City Conduit and Facilities to comply with all applicable Requirements and Standards with respect to their use and occupation of City Conduit and Facilities and to cooperate with MCImetro in good-faith to address any interference or other such issues. f) MCImetro may decommission and abandon MCImetro Facilities in City Conduit and Facilities in its sole discretion, provided that MCImetro must first notify City of any such action at least thirty (30) days prior, and work with City in good-faith to address any desire on the part of City to have MCImetro Facilities removed from City Conduit and Facilities. City shall have the option to assume ownership of any MCImetro Facilities abandoned in-place. Notwithstanding the foregoing, upon decommission or abandonment, MCImetro shall remove MCImetro fiber optic cable placed by MCImetro in City Conduit and repair any damage to the impacted area. 6. NETWORK RELOCATION a) If City Conduit and Facilities are required to be relocated for reasons other than a request by MCImetro, the Parties shall work together to jointly plan for and agree-upon the performance of such relocation work. City shall bear 100% of its own individual costs of relocating City Conduit and Facilities. In the absence of any rights to reimbursement MCImetro may otherwise have under applicable law or any other agreement, MCImetro shall bear 100% of its individual costs of relocating MCImetro Fiber Optic Cable and Facilities. b) If City Conduit and Facilities are required to be relocated at the request of MCImetro, the Parties shall work together to jointly plan for and agree upon the performance of such relocation work. MCImetro shall bear 100% of the costs of such relocation. 7. TERM; TERMINATION a) The Agreement commences on the Commencement Date and will continue for twenty (20) years, unless amended or earlier terminated at the consent of the Parties (“Term”). b) The Agreement may be terminated by mutual agreement of the Parties, or for uncured material breach as set forth in this Section, or by MCImetro for its convenience upon ninety (90) days’ prior written notice to the City. c) Termination for Material Breach. In the event that either Party commits a material breach or default under this Agreement, then the other Party shall give the breaching Party written notice of the breach or default (including, but not limited to, a statement of the facts relating to the breach or default, Page 5 of 12 the provisions of the Agreement that are in breach or default, and the action required to cure the breach or default) and indicate in the notice that the Agreement will terminate pursuant to this paragraph if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in the notice). If the breaching Party fails to cure the specified breach or default within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the Agreement, as applicable, will terminate without any further notice or action by the terminating Party; provided that if said breach is not susceptible of being cured within said 30-day period, the Agreement not terminate as long as the breaching Party is exercising all commercially reasonable efforts to pursue implementation of a cure. 8. CONFIDENTIAL INFORMATION a) “Confidential Information” means MCImetro materials, MCImetro trade secrets, and other MCImetro proprietary or business information provided to City that is clearly labeled, marked or otherwise identified as “confidential” or “proprietary information.” Confidential Information shall not include information that was in the public domain at the time of disclosure; becomes generally known or available through no act or omission on the part of MCImetro; is known, or becomes known, to City from a source other than MCImetro or its representatives, provided that disclosure by such source is not in breach of a confidentiality agreement with MCImetro; or is independently developed by City without violating any of its obligations under this Agreement. b) City agrees to only disclose Confidential Information to employees, elected officials, agents and contractors of the City with a need to know the Confidential Information or as otherwise required by code, statue, rule or regulation. c) The Parties understand that the City is a public agency and is subject to the provisions of the California Public Records Act, Government Code Section 6250 et seq., (the "CPRA"). Consistent with the requirements of the CPRA and any MCImetro rights thereunder, the City shall have the sole responsibility and authority to respond to such requests and shall protect confidential information to the extent permitted by law. 9. INDEMNITY, LIABILITY AND LIMITED WARRANTY a) MCImetro will defend the City at its own expense, against any claim, demand, suit, or proceeding ("Claim") brought against the City by a third party arising out of or relating to MCImetro’s negligent acts or omissions under this Agreement that result in personal injury (including death) or damage to tangible property and will indemnify the City for and hold it harmless from any damages finally awarded to the third party claimant or agreed to in settlement of the Claim, provided that the City promptly (a) gives MCImetro written notice of the Claim; (b) provides to MCImetro all available information and reasonable assistance necessary for it to defend or settle the Claim; and (c) has not compromised or settled the Claim without MCImetro’s written approval. b) Each Party warrants it will comply with all applicable statures, laws, rules and regulation in the exercise of its rights the performance of its obligations under this Agreement. c) EXCEPT FOR A BREACH OF A PARTY'S CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY THEORY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. Page 6 of 12 d) EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES MAKE NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, TO THE EXTENT PERMITTED BY LAW; AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES TO THE EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATIONAL CONTENT, TITLE, AND IMPLIED WARRANTIES ARISING FROM CUSTOM OR USAGE OF THE TRADE. 10. GENERAL PROVISIONS a) Any notice under this Agreement shall be given in writing and directed to the applicable Party below. Notice shall be deemed to have been delivered: (i) on the delivery date if delivered personally; or (ii) one (1) business day after deposit with a commercial overnight carrier. Either Party may from time to time change its address for purposes of this paragraph by giving the other Party notice of the change in accordance with this paragraph. If to City: City of Dublin Attn: City Engineer 100 Civic Plaza Dublin, CA 94568 If to MCImetro: MCImetro Access Transmission Services Corp. 400 International Parkway Richardson, Texas 75081 Attention: Senior Manager, Network Contract Services VZB.contracts.notice@one.verizon.com Invoices to MCImetro shall be sent to the following address: Supervisor – Billing Solutions Verizon 6929 N. Lakewood Ave. Mail Drop: MD5.3-3005 Tulsa, Oklahoma 74117 Attention: Thomas M. Clark b) At all times during the Term of this Agreement, MCImetro, at its sole expense, shall obtain and keep in force the required insurance as set forth in the attached Exhibit C (Insurance Requirements). c) Except for disputes involving confidentiality, if a dispute arises between MCImetro and City pertaining to this Agreement ("Dispute"), prior to the initiation of legal action and within ten (10) days of receipt of a notice of dispute, representatives of the Parties will promptly meet in an attempt resolve the Dispute. If the Parties are unable to resolve the Dispute after this meeting, then the Parties shall be free to pursue any remedies available to them at law or equity. d) This Agreement may not be assigned without the written prior consent of the other Party, provided however that either Party may assign this Agreement; to any successor by way of any merger, consolidation or other corporate reorganization of such Party or sale of all or substantially all of the assets Page 7 of 12 of such Party, provided that such subsidiary or parent or successor assumes or is otherwise fully bound by all of the obligations of the assigning party under this Agreement. e) Neither Party will be responsible for delay of performance due to reasonable causes beyond its control. Such delay automatically extends the time for performance in an amount equal to the period of the delay. f) If any provision of this Agreement is held to be invalid or unenforceable then such provision will be construed to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. g) The failure of either Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to in writhing by the Party otherwise entitled to exercise of enforce it. h) This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State or Commonwealth in which the City is located, without regard to its conflicts of laws and provisions. Venue for any action under this Agreement shall be any state and federal courts with jurisdiction over the City. i) The Parties may sign this Agreement in counterparts, each of which will be considered an original, but all of which will constitute the same agreement. Facsimile and portable document format (PDF) signatures shall be binding as if original. j) This Agreement is solely for the benefit of City and MCImetro including MCImetro Affiliates. It is not intended to benefit any third parties. k) This Agreement may be amended, or extended, only by mutual written agreement of the Parties. l) Except as required by law, neither Party shall use the name or logo of the other party in marketing, advertising, promotional materials (e.g., marketing collateral), press releases or other public announcements without receiving the prior written consent of the other Party. m) Each Party shall be an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating a joint venture, partnership or agency relationship between the Parties. n) In any legal proceeding pursuant to this Agreement, the prevailing Party shall be entitled to recover its costs and attorney fees incurred during such proceeding. o) Nothing contained herein shall preclude MCImetro or its Affiliates from pursuing or bidding on any future City procurement opportunity or opportunities, and nothing in this Agreement is intended to limit future MCImetro-City bids or business opportunities in any way. p) Except as otherwise set forth in this Agreement, each Party will remain solely and independently responsible for its own expenses under or arising from this Agreement. q) This Agreement, including all Exhibits sets forth the entire agreement between the Parties relating to the subject matter hereof, and supersedes any and all prior or contemporaneous agreements and representations written or oral, of the Parties with respect to the subject matter set forth herein. Additions, variations or modifications to this Agreement may only be made in writing and signed by the Parties. Page 8 of 12 IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate as of the day and year first above written. MCIMETRO ACCESS TRANSMISSION SERVICES CORP. CITY OF DUBLIN By: _______________________________ By: _______________________________ Name: _______________________________ Name: _______________________________ Title: _______________________________ Title: _______________________________ Date: _______________________________ Date: _______________________________ Page 9 of 12 Exhibit A Location Description (Across the bridge over Tassajara Creek, on Gleason Dr.) MCImetro to occupy one (1) city-owned 5- inch conduit. Page 10 of 12 Exhibit B Pursuant to the terms of the Conduit Occupancy Agreement entered into by and between the City and MCImetro, MCImetro will install the following for city use: Location Description Across the bridge over Tassajara Creek, on Gleason Dr. • Extension of the city-owned 5” conduit to new city standard pull boxes to be installed by MCImetro for use by city. • Qty 2, 17” x 30” standard pull boxes and covers consistent with city specifications. • Extend concrete sidewalk to cover conduit to pull boxes. Page 11 of 12 Exhibit C Insurance Requirements MCImetro shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the MCImetro or its employees as follows: Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage or its substantial equivalent. Limits of Insurance Contractor shall maintain limits of: 1. General Liability: $1,000,000 per occurrence for bodily injury and property damage and $2,000,000 general aggregate. 2. Commercial Automobile Liability with combined single limit of $1,000,000 each accident for bodily injury and property damage covering all owned, non-owned and hired vehicles. 3. Workers Compensation and Employers Liability Insurance: $1,000,000 for each accident and $1,000,000 disease for each employee. Other Insurance Provisions The general liability and automobile liability policies are to contain, the following provisions: 1. City, its officers, employees and volunteers shall be included as additional insureds as their interest may appear under this Agreement as respects: liability arising out of activities performed by MCImetro; products and completed operations of MCImetro; premises owned, occupied or used by MCImetro; or automobiles owned, leased or borrowed by MCImetro. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees or volunteers. 2. For any claims related to this project, MCImetro’s insurance coverage shall be primary insurance as respects City, its officers, employees and volunteers. Any insurance or self- insurance maintained by City, its officers, officials, employees or volunteers shall be excess of MCImetro’s insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to City, its officers, officials, employees or volunteers. 4. MCImetro’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. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City. Upon request, MCImetro shall furnish City a certificate of insurance evidencing coverage required by this clause. MCImetro shall require any subcontractors to obtain and maintain substantially the same coverage with substantially the same limits as required by this Agreement. Page 12 of 12 3406194.1 3424570.1