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