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HomeMy WebLinkAbout2009 CON Pacific Bell Telephone (AT&T) - Marina Gateway Improvements• atsit January 13, 2009 Form ACW-A Rev. 6/19/06 AT&T Project/ Invoice Number: Make check payable to: AT&T California Return signed Application with Payment to: AT&T California 4220 Arizona St. San Diego, CA 92104 Attn: Carolina Zigler APPLICATION FOR CUSTOM WORK - ACTUAL COST BASIS CITY OF NATIONAL CITY 1243 NATIONAL CITY BL NATIONAL CITY, CA 91950 ATTN: Mr./Ms. BARBY TIPTON DESCRIPTION OF CUSTOM WORK: 20B CONVERSION, BAY MARINA DRIVE FROM HARRISON AVE. TO CLEVELAND AVE., AND W. 23RD ST. FROM HARRISON AVE. TO MCKINLEY AVE. PROJECT NUMBER: 7251844 ESTIMATED COST FOR CUSTOM WORK: $8,182.17 Applicant has asked AT&T to perform the above -described custom work for which Applicant shall pay AT&T the estimated contract price of Eight Thousand One Hundred Eighty -Two Dollars And Seventeen Cents/ $8,182.17 in advance of the start of any AT&T work. Applicant shall pay for the work on an "Actual Cost" basis. Upon completion of the work, AT&T will compute the actual cost of the work. Any difference between the amount of advance payment and the actual cost will be either paid by Applicant to AT&T or refunded to Applicant by AT&T as the case may be. Applicant understands that this amount is only an estimate of approximate costs, and that the actual cost incurred by AT&T and for which the Applicant is responsible may be different. Charges are calculated in accordance with AT&T's ordinary accounting practices under the Uniform System of Accounts for Class A telephone companies and includes allocated costs for labor, engineering, materials, transportation, motor vehicles, and tool and supply expenses and, if applicable, a 0 percent tax component collected for State and Federal Income Tax purposes in accordance with CPUC decision 87-09-026. The estimated amount of $8,182.17 is valid for only sixty (60) days and is therefore subject to change after March 14, ?009 if AT&T has not received an executed copy of the Application and the advance payment by that date. If the applicant cancels the work prior to completion, Applicant shall pay AT&T for all costs AT&T has incurred before being notified in writing to cease work. ACCEPTED FOR 'ice' OMER: BY: Printed Name: Title: Date Signed: Morrison Mayor February 17, 2009 ACCEPTED FOR AT&T: BY: Printed Name/ KERRV MI XJA 4 GH Title: ENGINEERING Date Signed: 01/13/2009 +�,• at&t Estimate of Cost and Authority for Work Special Construction Charge and Invoice CA0001 Customer Request Number : 124358 Project Number Billing Party's Name : CITY OF NATIONAL CITY Phone : (619) 336-4583 Billing Address : 1243 NATIONAL CITY BL NATIONAL CITY, CA 91950 Contact Name : BARBY TIPTON Phone : (619) 336-4583 Work Description & Engineering Remarks : Billing Information Date : 12/15/2008 Customer ID : 110061 20B CONVERSION, BAY MARINA DRIVE FROM HARRISON AVE. TO CLEVELAND AVE., AND W. 23RD ST. FROM HARRISON AVE. TO MCKINLEY AVE. PROJECT NUMBER: 7251844 Expenses Engineering Labor Material Cost Construction Labor Contractor Cost Salvage Credit CIAC Total Estimated Costs Amount $ 7,660.62 $ 54.85 $ 466.70 $ 0.00 $ 0.00 $ 0.00 $ 8,182.17 OSPE Representative: KERRY MIDDAUGH Title: ENGINEERING Phone #: (619) 266-4651 at&t Estimate of Cost and Authority for Work --; Special Construction Charge and Invoice CA0001 Customer Request Number : 124358 Project Number Billing Party's Name : CITY OF NATIONAL CITY Phone : (619) 336-4583 Billing Address : 1243 NATIONAL CITY BL NATIONAL CITY, CA 91950 Contact Name : BARBY TIPTON Phone : (619) 336-4583 Work Description & Engineering Remarks : Billing Information Date : 12/15/2008 Customer ID : 110061 20B CONVERSION, BAY MARINA DRIVE FROM HARRISON AVE. TO CLEVELAND AVE., AND W. 23RD ST. FROM HARRISON AVE. TO MCKINLEY AVE. PROJECT NUMBER: 7251844 Expenses Amount Engineering Labor $ 7,660.62 Material Cost $ 54.85 Construction Labor $ 466.70 Contractor Cost $ 0.00 Salvage Credit $ 0.00 CIAC $ 0.00 Total Estimated Costs $ 8,182.17 OSPE Representative: KERRY MIDDAUGH Title: ENGINEERING Phone #: (619) 266-4651 AERIAL TO UNDERGROUND CONVERSION AGREEMENT (APPLICANT TO CONSTRUCT USS) (RULE 32.A.2) BETWEEN CITY OF NATIONAL CITY and PACIFIC BELL TELEPHONE COMPANY DBA AT&T CALIFORNIA RE BAY MARINA DRIVE STREET WIDENING PROJECT - CONVERSION OF OVERHEAD UTILITIES 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement TABLE OF CONTENTS I. DEFINITIONS. 1 II. RECITALS. 1 III. SPECIFIC PROVISIONS. 2 A. Tariff. 2 B. Construction. 2 C. Term. 3 D. Title. 3 E. Tax Liability 3 F. Payment 4 G. Cancellation, Modification or Deferment. 4 H. Indemnity, Limitation of Liability 4 I. Insurance. 5 J. Warranty 8 K. Liens 9 L. Licenses and Easements. 9 M. Perfformance. 9 N. Damage to Facilities 9 O. Schedule of Work. 9 P. Force Majeure. 10 Q. Compliance With Laws 10 IV. GENERAL PROVISIONS. 10 A. Assignment. 10 B. Binding Effect. 10 C. Termination 10 D. Attorneys' Fees 11 E. Entire Agreement. 1 1 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement F. Independent Contractor 11 G. Jurisdiction 11 H. Notices. 11 I. Waiver and Amendment. 12 Exhibit A Applicant's Approved Street Improvement Plans Exhibit B AT&T's Estimated Costs Exhibit C Executive Orders and Associated Regulations 324596 (Rev. g/27/07) Aerial to Underground Conversion Construction Agreement THIS AGREEMENT ("Agreement") is between City of National City, a California corporation ("Applicant"), and PACIFIC BELL TELEPHONE COMPANY, a California corporation doing business as AT&T CALIFORNIA ("AT&T") (collectively the "Parties"). I. DEFINITIONS. As used in this Agreement, the following terms apply: A. The term "Tariff' refers to Schedule Cal. P.U.C. No. A2, Rule 32.A.2. B. The terms "Underground Supporting Structure" and "USS" include, but are not limited to, conduit, inner duct, manholes, service boxes, and related equipment. C. The terms "Trench" and "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. D. The term "Hazardous Substance" refers to any substance, material or chemical that is or becomes regulated under applicable local, state, or federal law, regulation, or ordinance. E. The term "District" refers to the area in/on/along Bay Marina Drive, Cleveland Avenue, W. 23rd. Street, Harrison Avenue, and McKinley Avenue, where the undergrounding of existing aerial facilities is to take place. F. The term "Project" means all of the work required to underground existing aerial facilities within the District. G. The term "CPUC" refers to the California Public Utilities Commission. II. RECITALS. A. Applicant has asked AT&T to replace its existing aerial communication facilities with underground communication facilities within the District. B. AT&T 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, the Parties agree as follows: 324596 jRev. 8/27/07) Aerial to Underground Conversion Construction Agreement Page 1 of 12 III. SPECIFIC PROVISIONS. A. Tariff. The Project will be conducted in accordance with the Tariff. B. Construction. 1. Upon receipt of a copy of this Agreement that has been executed by Applicant and the advance payment described in Section III.G, AT&T will engineer and perform the work required to convert its existing aerial facilities to underground facilities in the area in the District shown on Applicants' plans, which are attached hereto as Exhibit A. 2. If, during the installation or construction of communications facilities, AT&T employees, subcontractors, or agents encounter any Hazardous Substance(s) that may be disturbed by AT&T's activities: a. AT&T shall give prompt written notice of the discovery of the Hazardous Substance(s) to Applicant; b. AT&T shall suspend performance under this Agreement until (1) containment and removal of the Hazardous Substance(s) has been completed and approved by the appropriate governmental agency(ies), if such approval is required, or approved by AT&T if governmental agency(ies) approval is not required, or (2) Applicant reasonably demonstrates that the Hazardous Substance(s) will not be disturbed by AT&T's activities; c. AT&T's performance of its obligations under this Agreement is extended for the amount of time which it takes to complete containment/removal of the Hazardous Substance(s); and, d. If Applicant elects not to remove/contain the Hazardous Substance(s), AT&T may terminate this Agreement without further liability by giving advance notice to Applicant no later than ten (10) da}:s after the date the Applicant notifies AT&T of its decisit,n not to remove/contain the Hazardous Substance(s). In this case, Applicant shall reimburse AT&T for AT&T's share of the USS cost paid by AT&T and for the costs incurred by AT&T for the placement of cables and wiring on the Project and the wrecking associated with that placement up to the effective date of the termination. Upon such payment, Applicant shall become the owner of said wire and cables. 3. Applicant shall be responsible for the construction and installation of the necessary USS along the public way and utility rights of way in the District and shall prepare all documents necessary to coordinate and 324596 (Rev. 8/27/071 Aerial to Underground Conversion Construction Agreement Page 2 of 12 implement the Project plans. The documents shall include, but shall not be limited to: (a) Project Plans and Specifications, which shall be prepared in accordance with specifications and drawings furnished to Applicant by AT&T; (b) documents that delineate all USS to be constructed and installed within the District; (c) a Bid Package covering the construction and installation of the USS for which Applicant is responsible; (d) separate agreements with Participants pertaining to the construction of facilities for the Project; and (e) a contract ("Contract") with an independent contractor for the construction and installation of USS for which Applicant is responsible under the Project. APPLICANT SHALL NOT DEVIATE FROM AT&T'S TRENCH SPECIFICATIONS WITHOUT AT&T'S PRIOR WRITTEN CONSENT. 4. Applicant shall award the Contract to a qualified bidder. The terms and conditions of the Contract shall oblige the Contractor to furnish all materials, adhere to the Project Plans and Specifications, and install the USS at the locations designated on the map attached to this Agreement as Exhibit A. Applicant shall have full supervision of and control over the independent contractor's construction and installation of the USS. However, AT&T shall be given the opportunity to inspect the construction and installation of the USS and to coordinate with Applicant to ensure that the construction and installation are completed in accordance with the Project plans and specifications. Applicant shall require all property owners who are served by the aerial facilities to be replaced within the District to provide and maintain the USS on their property. C. Term. This Agreement is effective upon execution and shall continue in effect until terminated or canceled as provided by law or this Agreement. D. Title Upon inspe%tion and acceptance in writing of the USS by AT&T, title to the USS and all associated communications facilities placed by or for AT&T, except the underground service connections, shall vest in AT&T, provided that such is free of all liens and encumbrances. E. Tax Liability Applicant shall pay, and hold AT&T harmless from and against, all penalties, interest, taxes or other charges that are levied or assessed against Applicant. 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement Page 3 of 12 F. Payment. Applicant shall pay to AT&T within forty-five (45) days after execution of this Agreement the sum of Eight Thousand One Hundred Eighty -Two Dollars and Seventeen Cents ($ 8182.17), which represents the estimated cost of AT&T preparing specifications and drawings for the USS and inspecting Applicant's trenching and installation of the USS. If applicable, Applicant shall pay to AT&T a tax component of zero/0 for Federal and State Income Tax in accordance with CPUC decision 87-09-026. Applicant shall send payments to: AT&T California 4220 Arizona St. San Diego, CA 92104 ATTN: CMC G. Cancellation, Modification or Deferment. If Applicant cancels, modifies or defers its request for conversion of the aerial facilities to underground facilities within the District, Applicant shall pay all charges incurred by AT&T, in accordance with the Tariff. H. Indemnity; Limitation of Liability. 1. Applicant shall indemnify, defend at AT&T's request and at no cost or expense to AT&T, and hold harmless AT&T and its officers, agents and employees, as well as its associated and affiliated companies and their respective officers, agents, and employees ("Indemnitees"), from and against any and all losses, damages, expenses, costs, penalties, fines, fees (including reasonable attorney's and consultant's fees), or liabilities (collectively "Liabilities"), incurred as a result of any injury to or death of any person(s) or damage to any property(ies) arising out of or in connection with the materials used or the work performed by Applicant under this Agreement or the condition of the Project's property, including environmental contamination, except where such Liabilities are caused by the sole negligence or willful misconduct of Indemnitees. 2. AT&T shall notify Applicant within a reasonable time of any written claim or demand against AT&T for which Applicant is responsible under this section. Applicant shall also (a) keep AT&T fully informed as to the progress of such defense, and (b) afford AT&T, at its own expense, an opportunity to participate with Applicant in the defense or settlement of such claims, demand, lawsuits or other legal proceedings. 3. AT&T shall indemnify, defend, and hold harmless Applicant, from and against any and all losses, damages, expenses, costs, penalties, fines, fees (including reasonable attorney's and consultant's fees), or liabilities 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement Page 4 of 12 (collectively "Liabilities"), incurred as a result of any injury to or death of any person(s) or damage to any property(ies) arising out of or in connection AT&T's installation of facilities in the USS, except where such Liabilities are caused by the negligence or willful misconduct of Applicant. Applicant shall notify AT&T within a reasonable time of any written claims or demand against Applicant for which AT&T is responsible under this section. 4. These indemnities shall survive the termination or cancellation of this Agreement or any provision to the contrary herein. 5. IN NO EVENT WILL AT&T BE LIABLE TO APPLICANT FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BY TORT OR CONTRACT, INCLUDING LOST REVENUES, LOSS OF PROFITS OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THE PERFORMANCE OF THIS CONTRACT, INCLUDING, WITHOUT LIMITATION, NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM, OR A DEFECT OR FAILURE TO PERFORM OR DEFECT OF CABLE OR WIRING, REGARDLESS OF THE FORESEEABILITY THEREOF. I. Insurance. With respect to Applicant's performance under this Agreement, and in addition to Applicant's obligation to indemnify, Applicant shall at its sole cost and expense, maintain the insurance coverages and limits required by this Section and any additional insurance and/or bonds required by law: i. at all times during the term of this Agreement and until completion of all work associated with this Agreement, whichever is later; and ii. with respect to any coverage maintained in a "claims -made" policy, for two (2) years following the term of this Agreement or completion of all work associated with this Agreement, whichever is later. If a "claims -made" policy is maintained, the retroactive date must precede the commencement of work under this Agreement; 2. Applicant shall also require each subcontractor who may perform work under this Agreement or enter upon the work site to maintain coverages, requirements, and limits at least as broad as those listed in this section from the time when the subcontractor begins work, throughout the term of the subcontractor's work and, with respect to any coverage maintained on a "claims -made" policy, for two (2) years thereafter; 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement Page 5 of 12 a. procure the required insurance from an insurance company eligible to do business in the state or states where work will be performed and having and maintaining a Financial Strength Rating of "A-" or better and a Financial Size Category of "VII" or better, as rated in the A.M. Best Key Rating Guide for Property and Casualty Insurance Companies, except that, in the case of Workers' Compensation insurance, Applicant may procure insurance from the state fund of the state where work is to be performed; and b. deliver to AT&T certificates of insurance stating the types of insurance and policy limits. Applicant shall provide or will endeavor to have the issuing insurance company provide at least 30 days advance written notice of cancellation, non -renewal, or reduction in coverage, terms, or limits to AT&T. Applicant shall deliver such certificates: i. prior to commencement of any work; ii. prior to expiration of any insurance policy required in this Section; and iii. for any coverage maintained on a "claims -made" policy, for two (2) years following the term of this Agreement or completion of all work associated with this Agreement, whichever is later. 3. The Parties agree: a. the failure of AT&T to demand such certificate of insurance or failure of AT&T to identify a deficiency will not be construed as a waiver of Applicant's obligation to maintain the insurance required under this Agreement; b. that the insurance required under this Agreement does not represent that coverage and limits will necessarily be adequate to protect Applicant, nor be deemed as a limitation on Applicant's liability to AT&T in this Agreement; c. Applicant may meet the required insurance coverages and limits with any combination of primary and Umbrella/Excess liability insurance; and Applicant is responsible for any deductible or self -insured retention. 4. The insurance coverage required by this section includes: 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement Page 6 of 12 324596 (Rev. 8/27/07) a. Workers' Compensation insurance with benefits afforded under the laws of any state in which the work is to be performed and Employers Liability insurance with limits of at least: $500,000 for Bodily Injury — each accident $500,000 for Bodily Injury by disease — policy limits $500,000 for Bodily Injury by disease — each employee To the fullest extent allowable by Law, the policy must include a waiver of subrogation in favor of AT&T, its affiliates, and their directors, officers and employees. In states where Workers' Compensation insurance is a monopolistic state -run system, Applicant shall add Stop Gap Employers Liability with limits not less than $500,000 each accident or disease. b. Commercial General Liability insurance written on Insurance Services Office (ISO) Form CG 00 01 12 04 or a substitute form providing equivalent coverage, covering liability arising from premises, operations, personal injury, products/completed operations, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with limits of at least: $2,000,000 General Aggregate limit; $1,000,000 each occurrence limit for all bodily injury or property damage incurred in any one (1) occurrence; $1,000,000 each occurrence limit for Personal Injury and Advertising Injury; $2,000,000 Products/Completed Operations Aggregate limit; $1,000,00) each occurrence limit for Products/Completed Operations; $1,000,000 Damage to Premises Rented to You (Fire Legal Liability). The Commercial General Liability insurance policy must: Aerial to Underground Conversion Construction Agreement Page 7 of 12 include AT&T, its affiliates, and their directors, officers, and employees as Additional Insureds. Applicant shall provide a copy of the Additional Insured endorsement to AT&T. The Additional Insured endorsement may either be specific to AT&T or may be "blanket" or "automatic" addressing any person or entity as required by contract. A copy of the Additional Insured endorsement must be provided within 60 days of execution of this Agreement and within 60 days of each Commercial General Liability policy renewal; ii. include a waiver of subrogation in favor of AT&T, its affiliates, and their directors, officers and employees; and iii. be primary and non-contributory with respect to any insurance or self-insurance that is maintained by AT&T. c. Business Automobile Liability insurance with limits of at least $1,000,000 each accident for bodily injury and property damage, extending to all owned, hired, and non -owned vehicles. d. Umbrella/Excess Liability insurance with limits of at least $ 1,000,000 each occurrence with terms and conditions at least as broad as the underlying Commercial General Liability, Business Auto Liability, and Employers Liability policies. Umbrella/Excess Liability limits will be primary and non-contributory with respect to any insurance or self-insurance that is maintained by AT&T. 5. Applicant may satisfy the requirements of this section I by maintaining its lawful self -insured status during the term of this agreement. J. Warranty. 1. Applicant warrants that that for a period of two (2) years following acceptance of the USS by AT&T, all work and materials to be furnished under this Agreement: a. shall conform in all respects to the requirements of this Agreement; b. are adequate for the purposes for which they are intended; c. are free from any defects in design, materials, workmanship and title including, but not limited to, defects that will cause caving or sinking of the Trench, the USS, paving, or other materials. 324596 (Rev. R/27/07) Aerial to Underground Conversion Construction Agreement Page 8 of 12 2. Applicant warrants that qualified personnel will perform all work promptly and with diligence, to AT&T's reasonable satisfaction, and that all work and materials shall be subject to all statutory and express or implied warranties. This warranty shall survive inspection, acceptance, termination and payment. 3. Except as disclosed to and acknowledged by AT&T in writing, Applicant is not aware of the presence of any Hazardous Substance at the locations on the Project where AT&T will be installing cable and wiring and performing wrecking in association with such installations. K. Liens. Applicant and its agents and contractors shall keep the USS free from any statutory or common law lien arising out of any work performed, materials furnished or obligations incurred by Applicant, its agents or contractors. In the event a lien is recorded against the USS and it is not removed from the record within ten (10) days after notice is given by AT&T to Applicant to do so, AT&T shall have the right to pay and discharge the lien without regard to whether the lien shall he lawful, valid or correct. Applicant shall, within thirty (30) days after receiving written notice from AT&T, reimburse AT&T for any such claim paid by it. L. Licenses and Easements. Prior to construction of the Project, Applicant shall, at no cost to AT&T, furnish AT&T with any and all licenses or grants of easements that are necessary to accommodate the Project, including the construction and maintenance of AT&T's facilities. M. Performance. If Applicant should default in the performance of any work that it is obligated to perform under this Agreement within the time allowed for such work, AT&T may elect, by written notice to Applicant, to perform the work at Applicant's sole risk and expense aril Applicant shall pay to AT&T upon demand AT&T's actual costs for performing the work. N. Damage to Facilities. Applicant and its employees, agents and contractors shall exercise special precaution and care to avoid causing damage to AT&T's facilities in performing work under the Project. Applicant shall assume responsibility for any and all losses, costs and expenses arising out of, caused by, or in any way connected with such damages, including consequential damages. Applicant shall immediately report in writing the occurrence of any such damage to AT&T. Applicant shall, 324596 (Rev. 8/27/o7) Aerial to Underground Conversion Construction Agreement Page 9 of 12 on demand, reimburse AT&T for the entire expense incurred in replacing or repairing the damage. O. Schedule of Work. AT&T shall not commence detailed engineering of the Project prior to receiving a copy of this Agreement that has been executed by Applicant. AT&T shall have its facilities converted contingent upon mutually acceptable schedules, timely obtaining of permits, licenses and other documents, and not being delayed by those uncontrollable forces described in Section III.Q below. P. Force Majeure. AT&T shall not be held liable to Applicant for any delay in performance under this Agreement from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, the presence of archeological or historical artifacts or Hazardous Substances on, in, or near the Project, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of carriers. If any of the foregoing events occur, AT&T agrees, if requested by Applicant, to accelerate its efforts hereunder if reasonably feasible in order to regain lost time, so long as Applicant agrees to reimburse AT&T for the incremental actual costs of such efforts. Q. Compliance With Laws. Applicant shall comply with all applicable federal, state, county, and local statutes, laws, ordinances, regulations, and codes. Applicant further agrees to comply with all applicable Executive Orders and regulations, including, but not limited to, those that are attached to this Agreement as Exhibit C. As used in Exhibit C, "Contractor" means Applicant. IV. GENERAL PROVISIONS. A. Assignment. Applicant shall not wholly or partially assign this Agreement without the prior written consent of AT&T. B. Binding Effect. This Agreement shall be for the benefit of and is binding upon the respective successors and assigns of the parties hereto. C. Termination. 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement Page 10 of 12 This Agreement automatically terminates upon completion and acceptance of the USS by AT&T. In the event of any material default or breach of this Agreement by Applicant, in addition to all other rights and remedies which AT&T may have at law or in equity, AT&T shall have the immediate right to terminate this Agreement by giving ten (10) days prior written notice of termination. The notice shall specify the cause of 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 herein, AT&T shall not be liable to Applicant or any other person or entity for any losses, damages or claims that arise as a result of termination. Applicant shall pay to AT&T all costs and expenses incurred by AT&T prior to 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, that accrued or that may be accruing or that arises out of any claim that may have accrued or may be accruing at the time of termination. D. Attorneys' 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. E. Entire Agreement. This Agreement and the Exhibits attached hereto that are incorporated herein by this reference constitute the entire Agreement between the parties with respect to the subject matter hereof. All prior agreements, representations, statements, negotiations and understandings are superseded. F. Independent Contractor. Applicant and its agents, employees and contractors shall perform all work under this Agreement as independent contractors and not as affiliates, partners, joint ventures, agents, employees, servants or assigns of AT&T. G. Jurisdiction. This Agreement shall be governed by the laws of the State of California and is subject to the applicable rules, regulations and tariffs on file with the CPUC. H. Notices. All notices and other communications hereunder shall be in writing addressed as follows and shall be deemed given when: delivered in person, delivered to an 324596 (Rev. 8/27/07) Aerial to Underground Conversion Construction Agreement Page 11 of 12 agent, such as an overnight or similar delivery service, or three days after being deposited in the United States mail, postage prepaid: APPLICANT AT&T California 1243 National City Blvd. 3750 Home Ave. National City, CA 91950 San Diego, CA 92105 I. 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 all parties hereto. The duly authorized representatives of Applicant and AT&T have executed this Agreement by affixing their signatures on the dates indicated below. CITY OF NATIONAL CITY By: Title: Mayor Printed Name: Ron Morrison Date Signed: February 17, 2009 PACIFIC BELL TELEPHONE COMPANY By: Title: Outside Plant Engineer Printed Name: Kerry L. Middaugh Date Signed: 01/05/2008 This is a new service agreement submitted to include provisions for the applicant's status as a self -insured entity. (Section I, part 5). This agreement replaces any previous service agreements for this project between AT&T and The City of National City. 324596 (Rev. 8/27/07) Aerial to underground Conversion Construction Agreement Page 12 of 12 Exhibit A Applicant's plans Plans were previously submitted. Any new versions of the accepted plan will be submitted as required. 324596 EXHIBIT B AT&T'S ESTIMATED COSTS Underground layout design and engineering: 100 hours 7660.62 Inspection of underground USS: 521.55 324596 • Exhibit C Executive Orders and Associated Regulations AT&T California and AT&T Nevada. as common carriers of telecommunications services, engage in work as contractors for various departments and agencies of the United States Government. Also, certain facilities may be constructed pursuant to federally assisted construction programs. Because of the fregoing, work under this contract may be subject to the provisions of certain Executive Orders, federal laws and associated regulations. to the extent that such Executive Orders, federal laws and associated regulations apply to the work under this contract, and only to that extent. Contractor agrees to comply with the provisions of all such Executive Orders, federal laws and associated regulations as no in force or as 'nay he amended in the future, including. but not limited to the following: I. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS. In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F.R. § 60.1.4. the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to he made a part of nonexempt contracts and subcontracts. 2. CERTIFICATION OF NONSEGREGATED FACILITIES. In accordance with Executive Order 11246, dated September 24, 1965. and 41 C.F.R. § Contractor certifies that it does not and will not maintain or provide for its employees any facilities segregated on the basis of race. color, religion. sex. or national origin at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control. where such segregated facilities are maintained. The tem' "facilities" as used herein means waiting rooms. work areas. restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms and other storage or dressing areas. parking lots. dnnking fountains. recreation or entertainment areas, transportation, and housing facilities provided for employees, provided that separate or single -user toilet and necessary changing facilities shall he provided to assure privacy between the sexes. Contractor will obtain similar certifications from proposed subcontractors prior to the award of any nonexempt suheontract. 3. CERTIFICATION OF AFFIRMATIVE ACTION PROGRAM. Contractor certified that it has developed and is maintaining an Affirmative Action Plan as required by 41 C.F.R. § 60-1.411. 4. C'ERTIFICATiON OF FII.ING. Contractor certifies that it will file annually. on or before the 31' of March, complete and accurate reports on Standard Form I(X) (EEO-1) or such forms as may he promulgated in its place as required by 41 C.F.R. § 60.1.7. 5. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE ViETNAM ERA. In accordance with Executive Order 11701. dated January 24, 1973, and 41 C.F.R. 6(1-25(1 20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of Government contracts and subcontracts. 6. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS. In accordance with Executive Order 11758. dated January 15, 1974. and 41 C.F.R. § 60-741 20. the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be Wade a part of Government contracts and subcontracts. 7. UTILIZATION OF SMAL1. BUSINESS CONCERNS AND SMALL DISADVANTAGED BUSINESS CONCERNS. 48 C.F.R.. Ch. I, § 19.74)84) and 19.7(8)a) require that the following clause is included: (hilrurrun of Small (iusine+s concerns and Small Disadvantaged Business Conirrns June. / 98.5i (a) tt is the pni4.y of the u;urea State, that small husimc ss concerns and small husincss concerns owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in performing contracts let by and Federal agency, including contracts and subcontracts for subsystems. assemblies. components, and related scrvicCS for major systems. It is further the policy of the United States that its prince contractors establish procedures to ensure the timely payment of amounts due pursuant to the terns of their subcontracts with smiall business concerns and small husiness concerns owned and controlled hy socially and economically disadvantaged individuals. (h) The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to the dullest extent consistent with efficient contract performance. The Contractor further agrees to cooperate in any studies or surveys as may he conducted by the United States Small Business Administration or the awarding agency of the United States as may he necessary to determine the extent of the Contractor', compliance with this clause. (c) As used in this contract. the tern "small business concern" shall mean a mull business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. The term "small business concern owned and controlled hy socially and economically disadvantaged individuals" shall mean a small business concern: (1) Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals: or. in the case of any publicly owned businesses, at least 51 percent of the stick of which is owned by one or more socially and economically disadvantaged individuals: and (2) Whose management and daily business operations are controlled by one or more of such individuals. 324596 'The Contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Ilispanic Americans. Native Americans, Asian -Pacific Americans, Asian -Indian Americans and other minorities. or any other individual found to he disadvantaged hy the Administration pursuant to section 8(a) of the Small Business Act. (d) Contractors acting in good faith may rely on written representations hy their subcontractors regarding their status as either a small business concern or a small business conccm owned and controlled by socially and economically disadvantaged individuals. Small Business and Small Disadvantaged Business Subcontracting Plan. Contractor. unless it is a small business concern, as defined in section 3 of the Sinai' Business Act, agrees to adopt and comply with a small business and small disadvantaged business subcontracting plan. which shall be included in and nude a part of this contract. The parties incorporate herein by this reference the regulations and contract clauses required hy 48 C.F.R.. Ch. I. §§ 19.704(4) and I9.7)18(b) to he made a part of Government contracts and subcontracts. 8. WOMEN -OWNED SMAL1. BUSINESSES. As prescribed in 48 C.F.R., Ch. 1, § 19,9412, the following clause is included in solicitations and contracts when the contract amount is expected to he over the small purchase threshold, unless (a) the contract is to he performed entirely outside the United States. its possessions, Puerto Rico. and the Trust Territory of the Pacific Islands, or (b) a personal services contract is contemplate: (a) "Woman -owned small businesses." as used in this clause. means businesses that are at least 51 percent owned by women who are United States citizens and who also control and operate the business. "Control," as used in this clause. means exercising the power to make policy decisions. "Operate," as used in this clause. means being actively involved in the day-to-day management of the business. (h) Policy. It is the policy of the Government to award contracts to concerns that agree to perform substantially in labor surplus areas (I SA's) when this can he done consistent with the efficient performance of the contract and at prices no higher than are obtainable elsewhere. The Contractor agrees to use its hest efforts to place subcontracts in accordance with this policy. (c) Order of Preference. In complying with paragraph (h) above and with paragraph (c) of the clause of this contract entitled Utilization of Small Business Concerns and Small Disadvantaged Business Concerns. the Contractor shall observe the following order of preference in awarding subcontracts: (I) small business concerns that are LSA concerns, (2) other small business concerns, and (3) other I.SA concerns. (d) Definitions. "labor surplus arca," as used in this clause, means a geographical area identified by the Department of labor in accordance with 20 C.F.R. § 654, Subpart A, as an area of concentrated unemployment or underemployment or an area of labor surplus. "labor surplus area concern," as used in this clause, means a concern that together with its first -tier subcontractors will perform substantially in Iahor surplus areas. Performance is substantially in labor surplus area if the costs incurred under the contract on account of manufacturing. production, or performance of appropriate services in Iahor surplus areas exceed 50 percent of the contract price. Labor .Surplus Area .Subcontract Program. la) Sec the Utilization of Lahr Surplus Arca Concern; clause of this contract fir applicable definitions. (b) The Contractor agrees to establish and conduct a program to encourage labor surplus area (I.SA) concerns to compete for subcontracts within their c.tpahifities at prices no higher than obtainable elsewhere. The contractor shall -- (I) Designate a liaison officer who will (i) maintain liaison with authorized representatives of the Government on LSA natters. (ii) supervise compliance with the Utilization of Iahor Surplus Arca Concerns clause. and (in) administer the Contractor's Iahor surplus area subcontracting program: (2) Provide adequate and timely consideration of the potentialities of LSA concerns in all make -or -buy decisions: (3) Ensure that 1-SA concerns have an equitable opportunity to compete. for subcontracts. particularly by arranging solicitations, thin for the preparation of offers, quantities, specifications, and delivery schedules so as to facilitate the participation of ISA concerns: (4) include the Utilization of Iahor Surplus Area Concerns clause in subcontracts that offer substantial 1 SA subcontracting opportunities; and (5) Maintain records showing (i) the procedures adopted and (ii) the Contractor's performative. to comply with this clause The records will he kept available for review by the Government until the expiration of I year after the :tward of this contract. or for such longer period as may be required by any other clause of this contract or hy appbcahlc law or regulations. (c) the Contractor further agrees to insert in any related subcontract that may exceed $500,0)0 and that contains the Utilization of Labor Surplus Arca Concerns clause, terms that conform substantially to the language of this clause, including this paragraph (c). and to notify the Contracting Officer of the names of subcontractors. RESOLUTION NO. 2009 — 27 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN UNDERGROUND CONVERSION AGREEMENT WITH PACIFIC BELL TELEPHONE COMPANY (DBA AT&T) IN THE NOT -TO -EXCEED AMOUNT OF $8,182.17 FOR THE UNDERGROUNDING OF UTILITIES WITHIN THE MARINA GATEWAY PROJECT WHEREAS, on August 5, 2008, the City Council adopted Resolution No. 2008- 160, establishing the 20B Underground Utility District No. 25 in the Marina Gateway area, which includes Bay Marina Drive, Harrison Avenue, 23rd Street, and Cleveland Avenue; and WHEREAS, a 20B conversion requires that the City incur all costs associated with the conversion of any existing utilities within the district; and WHEREAS, the City desires to enter into an Underground Conversion Agreement with Pacific Bell Telephone Company (DBA AT&T) to engineer and perform the work required to convert Pacific Bell Telephone Company's existing aerial facilities within the 20B Underground Utility District No. 25 to underground facilities in the not -to -exceed amount of $8,182.17. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute an Underground Conversion Agreement with Pacific Bell Telephone Company (DBA AT&T) to engineer and perform the work required to convert Pacific Bell Telephone Company's existing aerial facilities within 20B Underground Utility District No. 25 to underground facilities in the not -to -exceed amount of $8,182.17. Said Agreement is on file in the office of the City. Clerk. ATTEST: PASSED and ADOPTED this 17th day of February, , 09. M i erk APPROVED AS TO FORM: George H. Eiser, III City Attorney _Adej A, is ael R. Dalla, C on Morrison, Ma Passed and adopted by the Council of the City of National City, California, on February 17, 2009 by the following vote, to -wit: Ayes: Councilmembers Morrison, Parra, Sotelo-Solis, Van Deventer, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California h _,(4.4 City leof the City ofational City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2009-27 of the City of National City, California, passed and adopted by the Council of said City on February 17, 2009. City Clerk of the City of National City, California By: Deputy City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE February 17,2009 AGENDA ITEM NO. 6 ITEM TITLE Resolution of the City Council of National City approving Underground Conversion Agreement with Pacific Bell Telephone Company (DBA AT&T) in the amount not -to -exceed $8,182.17, and authorizing the Mayor to execute the agreement in conjunction with the Marina Gateway Improvements. Funds are available in Tax Increment Fund. PREPARED BY Barby Tipton DEPARTMENT Engineering EXT. 4583 EXPLANATION On August 5, 2008, Resolution No. 2008-160 established the 20B Underground Utility District No. 25. A 20B conversion request requires that the City incur all cost associated with the conversion of any existing utilities within the district. Upon execution of this agreement and receipt of payment, AT & T will engineer and perform the work required to convert AT&T's existing aerial facilities to underground facilities at the City's expense in the amount of $8,182.17. The City will be constructing the Municipal Trench for under -grounding utilities in conjunction with the Bay Marina Drive Widening Project. Environmental Review X N/A MIS Approval Financial Statement Approved By: Finance Director Funds are available in Account # 511-409-500-598-3842, Marina Gateway Improvements Account No. STAFF RECOMME DATION Adopt the Resoluti n,/ BOARD / COMMISSION RECOMMEN ATION N/A ATTACHMENTS (Listed Below) 1. Agreement (2 copies) 2. Resolution Resolution No. Att A-200 (Rev. 7/03) City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 February 19, 2009 Ms. Kerry Middaugh Pacific Bell Telephone Company AT&T California 3750 Home Avenue San Diego, CA 92105 Dear Ms. Middaugh, On February 17th, 2009, Resolution No. 2009-27 was passed and adopted by the City Council of the City of National City, authorizing execution of an underground conversion agreement with Pacific Bell Telephone Company (DBA AT&T). We are enclosing for your records a certified copy of the above Resolution and a fully executed copy of the agreement. Sincerely, A7,,,dod Michael R. Dalla, CMC City Clerk Enclosures cc: Engineering Department ® Recycled Paper