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HomeMy WebLinkAboutCC Resolution 7901 (Communication Facilities)RESOLUTION NO. 7901 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL TO ENTER INTO AN AGREEMENT WITH PACIFIC BELL FOR THE AERIAL TO UNDERGROUND CONVERSION OF COMMUNICATION FACILITIES (IN AMOUNT OF $61,267) MONTECITO RULE 20B UNDFRGROTJND TMRTRICT WHEREAS, Pacific Bell, a California corporation (("Pacific") has agreed to enter into an Aerial to Underground Conversion Agreement ("Agreement") attached as Exhibit " A", with the City of San Rafael, a municipal corporation, in which Pacific Bell agrees to replace its existing aerial communication facilities with underground communication facilities. WHEREAS, the City Council of the City of San Rafael adopted Resolution No. 7801 establishing an underground utility district in the vicinity of the Montecito Shopping Center, San Rafael Creek, Grand Avenue and Second Street ("Underground Utility District") pursuant to Ordinance No. 905 of the City of San Rafael; and WHEREAS, The City Council of the City of San Rafael has ordered the removal of all poles, overhead wires and associated overhead structures and the underground installation of wires and facilities for supplying electric, communication or similar or associated service within the Underground Utility District on or before August 1, 1989; and WHEREAS, the City Council of the City of San Rafael has determined that the creation of the Underground Utility District is in the general public interest; and WHEREAS, the Redevelopment Agency of the City of San Rafael at their meeting of March 21, 1988 agreed to provide the funds necessary to accomplish the undergrounding. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Rafael that the City agrees to enter into the Agreement; and BE IT FURTHER RESOLVED by the City that the Director of Public Works be and hereby is authorized to execute the Agreement sub- stantially in the form attached as Exhibit A to this resolution on behalf of the City with any minor changes that the Director of Public Works in his discretion may approve; and BE IT FURTHER RESOLVED by the City that the Director of Public Works or the Director of Public Works' designee be and hereby is authorized to enter all agreement and take such actions as are necessary and reasonable to carry out this Resolution and the Agreement. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, California, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on the 6th day of February, 1989, by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None --P,. JEA "M LEONCINI, ity Clerk EXE -MT `A' RGROUNQ CONVERSIO2 AgEEM NT THIS AGREEMENT ("Agreement") is between City of San Rafael ("Applicant"), and PACIFIC BELL, a California corporation ("Pacific") . A. DEFINITIONS As used in this Agreement, the following terms apply: 1. The term "Underground Supporting Structure" includes, but is not limited to, conduit, manholes, service boxes, and related equipment. 2. The terms "Trench or Trenching" include, but are not limited to, excavating, backfilling, compacting, and, as necessary, breaking and replacing pavement, sidewalks, driveways, curbs and gutters; and restoring all other surface features disturbed by underground construction, including landscaping; plus the cost of performing such work. 3. The term "District" refers to the area in the vicinity of Montecito Shopping Center and the adjoining areas of Second Street and Grand Avenue where the undergrounding of existing aerial facilities is to take place. 4. The term "Project" means all of the work required to construct the Underground Supporting Structure within the District, including work to be performed on behalf of Pacific Gas and Electric Company ("PG&E") and Tele- vue Systems Inc.("CATV"), if applicable. 5. The term "Tariff" refers to Schedule Cal. P.U.C., No. A2, Rule 32, paragraph A.2. 6. The term "Participant" refers to PG&E and/or CATV if either or both will be participating in the Project. B. JZECITALS 1. Applicant has asked Pacific to replace its existing aerial communication facilities with underground communication facilities and perform other work upon its facilities within the District. 2. To facilitate this request, Applicant is willing or has been required by resolution or suitable legislation, to pay to Pacific the cost of placing Pacific's Underground Supporting Structure along the public way and upon utility rights of way. 7IRCI 3. To further facilitate the Project, all property owners served by the aerial facilities to be replaced within the District have been required by suitable legislation or have agreed in writing to provide and maintain the Underground Supporting Structure on their property. 4. In contemplation of this Agreement, Applicant has made arrangements for the concurrent removal of all electric and communication aerial distribution facilities within the District. 5. Pacific is willing to underground its existing aerial communication facilities within the District, subject to the terms and conditions of this Agreement. In consideration of the above Recitals, the parties mutually agree as follows: C. SPECIFIC PROVISIONS 1. Term This Agreement is effective upon execution and shall continue in effect until terminated or canceled as provided by law or this Agreement. 2. Tariff The Project shall be conducted in accordance with the Tariff . 3. Pavment Applicant shall pay to Pacific, within thirty (30) calendar days after receipt of Pacific's bill, the actual cost of constructing Pacific's Underground Supporting Structure. Pacific and Applicant agree that such actual cost shall not exceed $61,267.00. 4. Title Upon completion of construction, title to the Underground Supporting Structure and any associated communications facilities placed by or for Pacific, except the underground service connections, shall vest in Pacific, provided that such is free of all liens and encumbrances. 5. licenses and Easements Applicant shall grant to Pacific and to Participants any and all licenses or grants of easements which are necessary to accommodate the Project. 6. 7. s. Non -Prosect Costa Unless otherwise agreed to in writing, Pacific, Applicant, and each Participant, individually, shall bear the entire cost of all extra work which is requested by and performed for each, but is not required for the Project. Performance by Pacific Pacific shall replace its existing aerial communication facilities with underground facilities when: a) affected property owners have provided the Underground Supporting Structure on their properties in accordance with the Tariff; b) service to customers within the District has been provided by means of the underground facilities; c) PG&E has removed its facilities from poles and anchors jointly owned by Pacific and PG&E; and d) City has removed its facilities from poles solely or jointly owned by Pacific and/or PG&E. Tax Liabilitv Applicant agrees to pay, and to hold Pacific harmless from and against, all penalties, interest, taxes or other charges that may be levied or assessed against Applicant, as required by law, rule, regulation, or the Tariff . D. GENERAL PROVISIONS 1. Assignment Applicant shall not wholly or partially assign this Agreement without the prior written consent of Pacific. This Agreement shall be for the benefit of and is binding upon the respective successors and assigns of the parties. 2. Waiver and Amendment The provisions of this Agreement shall not be waived, altered, or amended by any representations or promises of any party unless consented to in writing by Pacific. In the event of any material default or breach of this Agreement by Applicant, in addition to all other rights and remedies which Pacific may have at law or in equity, Pacific shall have the immediate right to terminate this Agreement by giving thirty (30) days prior written notice of termination. The notice shall specify the cause of the termination and shall give Applicant a reasonable opportunity to cure and correct any such cause. In the event this Agreement is terminated or suspended as provided in this Paragraph 3, Pacific shall not be liable to Applicant or any other person or entity for any losses, damages or claims which may arise as a result of termination. Applicant shall pay to Pacific any costs or expenses incurred by Pacific prior to the termination of this Agreement. Any termination of this Agreement in whole or in part shall not release Applicant from any liability or obligation under this Agreement, whether of indemnity or otherwise, which may have accrued or which may be accruing or which arises out of any claim that may have accrued or may be accruing at the time of termination. 4. Confidential Information Any specifications, drawings, sketches, models, samples, tools, computer programs, technical information, confidential business, customer or personnel information or data, written, 'oral or otherwise ("Information"), obtained by Applicant from Pacific, or developed by Applicant hereunder or in contemplation hereof shall remain Pacific's property. All copies of such Information in written, graphic or other tangible form shall be returned to Pacific upon request. Unless such Information was previously known to Applicant to be free of any obligation to keep it confidential or has been or is subsequently made public by Pacific or a third party, it shall be kept confidential by Applicant, shall be used only in performing hereunder, and may be used for other purposes only upon such terms as may be agreed upon in writing. Except with Pacific's prior written consent, Information which Applicant may disclose hereunder to Pacific shall be deemed nonconfidential, nonproprietary, and free from all restrictions on use or disclosure. If Applicant provides Pacific with any proprietary or confidential Information which is conspicuously marked as such, Pacific shall use the same degree of care to prevent its disclosure to others as Pacific uses with respect to its own proprietary or confidential Information. 5. rQrge Maigurg Except for the payment of monies due under this Agreement, no party shall be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, or strikes. In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay. If any excused delay occurs, the party unable to perform shall give immediate notice to the other party, while simultaneously seeking, in good faith, to utilize alternative means for accomplishing the purposes of this Agreement and preventing delay. 6. Attornevs' Fees If any action is brought to adjudicate the rights granted in this Agreement or to enforce any of the terms of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees in an amount to be determined by a court or a tribunal of competent jurisdiction. 7. Jurisdiction This Agreement is subject to the applicable rules, regulations and tariffs on file with the California Public Utilities Commission ("Commission") and is also subject to changes or modification as the Commission may order. 8. gntire Acireement This Agreement and the attached Exhibits, which are by this reference incorporated into this Agreement, constitute the entire Agreement between the parties with respect to the subject matter. Except as otherwise provided in this Agreement, all prior agreements, representations, statements, negotiations and understandings are superseded. 9. Aoolicable Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 10. Notices and Demands All written notices or demands to be given or made under this Agreement shall be considered given and made when deposited in the United States mail, postage prepaid and addressed as follows, or forwarded to such other address as either party may direct in writing to the other party: To: City of San Rafael P.O. Box 60 San Rafael, CA. 94915-0060 Attn: Dave Bernaroi, Director of Public Works To: PACIFIC BELL 5900 State Farm Dr., Rm. 201 Rohnert Park, CA 94928 Attn: R. W. Cline The duly authorized representatives of Applicant and Pacific have executed this Agreement by affixing their signatures on the dates indicated below. Title: Director of Public Works Date Signed: 4-4 7, 18 PACIF ELL By : t i tt Title: Manager - Eng'ngeering Date Signed: 1'�'q