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Home My WebLink AboutCC Resolution 4179RESOLUTION NO. 4179 RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY, IN CONNECTION WITH EAST SAN RAFAEL DRAINAGE ASSESSMENT DISTRICT NO. 1, CITY OF SAN RAFAEL, MARIN COUNTY, CALIFORNIA BE IT RESOLVED by the City Council of the City of San Rafael, Marin County, California, that the Mayor of the City of San Rafael be authorized to sign, and the City Clerk be authorized to attest, that certain agreement between the City of San Rafael and the Pacific Telephone and Telegraph Company, which said agreement is attached hereto. I HEREBY CERTIFY that the foregoing resolution was duly and regularly adopted by the City Council of the City of San Rafael, Marin County, California, at a regular meeting thereof, held on the 3rd day of April, 1972, by the following vote, to wit: AYES: Councilmen : Barbier, Jensen, Miskimen, Mulryan and Mayor Bettini NOES: Councilmen : None ABSENT: Councilmen : None MARION A. GRADY, City Clerk, City of San Rafael, Marin County, California r A G R E E M E N T ' 7H THIS AGREEMENT made and entered into this S - day of AVN , 1972✓, by and between the CITY OF SAN RAFAEL, Marin County, California, a municipal corporation, hereinafter called "City", and THE PACIFIC TELEPHONE AND TELEGRAPH COMPATTY, a corporation, hereinafter called "Pacific Telephone", W I T N E S S E T H: WHEREAS, on January 18, 1971, the City Council of City, pursuant to the provisions of the Municipal Improvement Act of 1913, adopted Resolution of Intention No. 3998, entitled "In the Matter of the Construction of Improvements and Acquisitions to be made in the East San Rafael Drainage Assessment District No. 11 City of San Rafael, Marin County, California", wherein City declared its intention to order.certain-improvements to be made within the area, hereinafter called "District", shown on the map on file in the office of the City Clerk of.City entitled "Proposed Boundaries of East San Rafael Drainage Assessment District No. 1, City of San Rafael, Marin County, California"; «FiEREAS, City proposes to undertake proceedings pur- suant to the Municipal Improve*rent Act of 1913 for the formation of a special assessment district within said District; WHEREAS, said improvements include, but are not limited to, the construction of underground telephone facilities, here- inafter referred to as the "underground communication system", and a public street to serve a portion of said District, which said portion of said District is hereinafter referred to as the "development"; • ;%HEF.r�S the de�•e'^ ^^t d^^s not q��alify as a "Sub- division" •- - _ --. division" as that term is defined in Pacific Telephone's Rule No. 1 (Schedule Cal. P.U.C. No. 36-T) but mualify as a "Real Estate Development" as that term is used in Pacific Telephone's Rule No. 15 (Schedule Cal. P.U.C. No. 36-T), each of which said Rules is on file with the California Public Utilities Commission; WHEREAS, under said Rule No. 15 City is required to • construct to Pacific Telephone's specifications, with conduit material and metallic manhole covers provided by Pacific Telephone, an underground supporting structure necessary for the completion of said underground communication system and to advance to Pacific Telephone the estimated total cost to Pacific Telephone of (i) said conduit material and metallic manhole covers and (ii) complet- ing said underground communication system by, including but not limited to, placing all necessary wire and cable facilities re- quired to furnish communication services to the development in its entirety; WHEREAS, City desires Pacific Telephore-to construct or cause to be constructed said underground supporting structure. and Pacific Telephone is willing to do so if City will advance to Pacific Telephone the estimated total cost to Pacific Telephone of constructing said underground supporting structure; and WHEREAS, Pacific Telephone is a "regulated public Utility" as that term is used in Sections 10109 through 10111 inclusive, of the Streets and Highways Code of the State of California and the parties hereto desire to enter into an agree- ment pursuant to Section 10110 of said Streets and Highways Code; NOW, THEREFORE, City and Pacific Telephone mutually .11 agree as follows: 1.. City shall proceed promptly with the formation of a special•assess^cnt district in the manner provided by law. It is understood by the parties that City cannot cor--,iit itself to the formation of such a district in advance and this agreement - 2 - shall become •effective only after formation of the special assessment district has been completed and funds are available to carry out all the terms thereof. 2. After said special assessment proceedings have been taken, City shall advance to Pacific Telephone the sum of forty-six thousand four hundred dollars ($46,400), which said sum represents the estimated total cost of construction of said underground communication system. - 3. When the area of the development wherein said under- ground communication system is to be constructed is ready for such construction and Pacific Telephone has received notice that it may commence such construction, Pacific Telephone shall con- struct or cause to be constructed said underground supporting structure within the right of way for the aforementioned public street and shall thereafter complete or cause to be completed said underground com,-nunication system-by,"including but not ' limited to, placing all necessary wire and cable facilities re- . quired to furnish communication services to the development in its entirety, all in accordance with Pacific Telephone's speci- fications for such work and the plan therefor shown on "Exhibit A", attached hereto and hereby made a part hereof. No deviation from said specifications and plans requested by City shall be per- mitted without the proper written consent of Pacific Telephone's District Plant Engineer at San Rafael, California. 4. It is agreed that title in and to said underground communication system shall vest in Pacific Telephone pursuant to Section 10111 of the Streets and Highways Code of the State of California. City agrees to defend Pacific Telephone's title to said underground communication system actair.st all claims and demands of all persons. -5. If"on or before June 30,1972, for any reason all of the provisions of paragraphs 1 and 2 hereof have not been - 3 - complied with and/or Pacific Telephone has not received notice from City to commence construction, this agreement shall, unless extended by mutual -agreement of the parties hereto, forthwith terminate and neither of the parties hereto shall have any fur- ther obligation hereunder; provided, however, Pacific Telephone shall refund to City any advance which may have been received pursuant to paragraph 2 hereof, less any costs incurred by Pacific Telephone hereunder prior to such termination. 6. Pacific Telephone shall not be responsible for any delay in construction of said underground communication, system resulting from shortage of labor or materials, strikes, labor disturbances, war, riots, weather conditions, governmental rules, regulations or orders, including orders or judgments of any court, acts of God, or any other cause or condition of like or unlike characteristic which is beyond the control of Pacific Telephone. Pacific Telephone shall have the'r ght', in the event_ it is unable to obtain supplies, materials or labor for all of -its construction requirements, to allocate materials and labor to construction projects which, in its sole discretion, it deems most important to serve the needs of its customers and appli- cants for service; and any delay in performance hereunder re- sulting from such allocation shall be deemed a cause beyond Pacific Telephone's control. 7. Upon completion of said underground communication system as provided herein, Pacific Telephone shall from time to time thereafter perform other work necessary to furnish service connections from the facilities thereof to its customers and applicants for communication service who abut the public street under which said uneerground co:- unication system is constructed, in accordance with Pacific Telephone's tariffs, rules and re- gulations on file with the California Public Utilities Col -mission, as said tariffs, rules and regulations now exist or may hereafter be modified. 4 - S. Within sixty (60) days after Pacific Telephone has dqne all work necessary to complete the construction of said underground communication system, the amount advanced under paragraph 2 hereof will be adjusted to the actual total cost to Pacific Telephone of the construction of said underground com- munication system. Tf Pacific Telephone's actual total cost is less than the advance amount collected under said paragraph 2, the amount of the difference will be refunded to City. If Pacific Telephone's actual total cost is greater than the advance amount collected under said paragraph 2, City agrees to pay the difference upon receipt of'Pacific Telephone's demand therefor. So much of such adjusted advance as is attributable to costs incurred by Pacific Telephone in constructing or causing to be constructed said underground supporting structure (except the cost of conduit material and metallic manhole covers) shall be retained by Pacific Telephone as consideration-for'work pe'r- formed on behalf of City; the remainder of such adjusted advance, hereinafter referred to as the "refundable advance", or a portion thereof, may be refundable under the conditions outlined in para- graph 9 hereof. For purposes of determining the refundable advance, the term "underground supporting structure" refers to an enclosed underground system of conduit, manholes, handholes, pull boxes and associated appurtenances. It is also specifically agreed that the costs of constructing or causing to be constructed said under- ground supporting structure include, but are not limited to, the costs of excavating, backfilling and compacting, and, where nec- essary, costs of breaking and replacing pavement and of restoring lardscap4ng. Also for purposes of determining the refundable advance the terra "conduit material and metallic manhole covers" includes standard heavy -wall conduit with associated couplings, gaskets, - 5 - f casts, and bends; cast steel manhole rovers with associated colla.rs; and incidental manhole hardware, such as cable racks, hooks, pulling irons, steps and ladders. 9. When, within the first three-year period after completion of said underground communication system hereunder, the subdivision density requirement has been met, Pacific Telephone will refund to City the refundable advance specified in paragraph 8 hereof. If, at the end of the three-year period the subdivision density requirement has not been met, Pacific Telephone will refund that portion of the refundable advance proportional to the ratio of the then permanent main telephone and PBX -trunk line termination density to the subdivision density requirement. No interest will be paid on such advance. For purposes of this refund determination, the "sub- division density requirement" will be met when the permanent main telephones and PBX trunk line terminations within the development to be served by said underground communication system equal or exceed 105 (i.e., one per acre). Acreage within the development subject to this density requirement is hereby mutually established as 105 acres. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed on the day and year first above written. CITY OF SAN RAFAEL O ` By l CGS �t�1 Attest • MAYOR—CI i.( 0: SAN RAFAEL City Clerk J By &� - —1 c"Clz Vice President