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HomeMy WebLinkAbout2006-05-16; City Council; 18565; Undergrounding Overhead Utility Lines Pine ParkCITY OF CARLSBAD - AGENDA BILL AB# 18,565 MTG 5/16/06 DEPT. PW/REC TITLE: APPROPRIATION OF ADDITIONAL FUNDS; APPROVING PLANS, SPECIFICATIONS, AND AGREEMENTS WITH SDG&E AND AT&T; AND APPROVING A CONTRACT AMENDMENT WITH EDGE DEVELOPMENT, INC. FOR UNDERGROUNDING OF OVERHEAD UTILITY LINES FOR PINE AVENUE PARK, PROJECT NO. 38022. RECOMMENDED ACTION : Adopt Resolution No. 2006-128 , appropriating additional funds; DEPT.hft).^) /^fc/ CITYATTY <(£? CITY MGR~3^ approving plans, specifications, and agreements with SDG&E, and AT&T; and approving a contract amendment with EDGE Development, Inc. for undergrounding of existing overhead utility lines for Pine Avenue Park, Project No. 38022. ITEM EXPLANATION : Pine Avenue Park is a 7.7-acre park located at the site of the former Pine School property on Harding Street between Pine Avenue and Chestnut Avenue. It is currently under construction and is on schedule to be complete in July this year. Conditional Use Permit No. 03-18 was issued for the project in December 2003. One of the standard conditions of approval stated that "developer shall construct the following improvements including, but no limited to: ...undergrounding or relocation of overhead utilities...per City Standards to the satisfaction of the City Engineer. However, when the project went forward for design, the Public Works Director at the time felt it would be detrimental to the neighborhood to do the undergrounding as part of the park construction. The reason was concern about further neighborhood disruption - the Vista Sewer Interrupter project had just been completed in the area which resulted in a major disturbance to the street system. Therefore, it was determined that it would be best to defer this portion of the project to a later date and it was not included in the original contract for this project. Recent information from SDG&E which would allow installation of the majority of utilities under the sidewalk rather than in the street has caused staff to reconsider the timing of the undergrounding. The sidewalk along Harding and Madison is being replaced as part of the current park construction and installation of the underground lines now appears to be a prudent option because the impacts to the recently paved street would be less than previously thought. The scope of the undergrounding would include: • Removal of existing utility poles and lines (including streetlights) on Harding Street between Pine Avenue and Chestnut Avenue as well as on Chestnut Avenue between Madison Street and Interstate 5 Freeway. • Replacement of the poles and lines with utilities beneath the sidewalk. As part of the work, overhead lines crossing to the east side of Harding will be removed and new lines installed under the street. This will also include removing outdated points of connection to residential properties on the east side of Harding and south side of Chestnut and replacing them with upgraded connections. • Installation of new standardized street lights on both Harding Street and Chestnut Avenue (currently the street lights are installed on telephone poles). To complete the work, the City's Pine Avenue Park contractor, EDGE Development, Inc., will perform removal of the existing lines and installation of conduits and structures. SDG&E and Page 2 AT&T will then install necessary equipment, pull their cables, and energize their systems. It will take approximately 3 months to complete all work. Staff has received design plans from SDG&E and the park's design consultant and estimates have been obtained from EDGE for each portion of the work. The plans are on file with and are available for review at the Recreation Administration office counter. If Council should decide to go forward with this work, the park Grand Opening would be delayed to an estimated October opening. It may, however, be possible to open portions of the park for public use prior to that time. ENVIRONMENTAL REVIEW: A Negative Declaration for Pine Avenue Park was issued on December 17, 2003 and Conditional Use Permit 03-18 was granted by the Planning Commission which includes work related to the undergrounding of utilities. FISCAL IMPACT: The current project cost of $7,082,000 is being funded through Public Facility Fees, Park in Lieu Fees and $1,600,000 in State Prop. 12 and 40 grants. The total estimated cost for the undergrounding work as outlined above is $1,001,000. A $425,000 contribution is proposed from the current construction contingency which leaves an additional $576,000 needed to do the undergrounding work. Funds are available in the Northwest Quadrant Park In Lieu Fund for this additional work. Undergrounding Construction Summary Estimated Utility Undergrounding Cost "Contribution from Construction Contingency Estimated Additional Funding Required 1,001,000 (425,000) $576,000 * this leaves approx. $350,000 remaining in the contingency for unforeseen issues ALTERNATIVES: 1. Approve Change Order for the undergrounding project and appropriate additional funding. 2. Return to the Planning Commission and request to eliminate the requirement of undergrounding as part of the park project and seek possible funding at a later date through the SDG&E 20-B Conversion Program. EXHIBITS: 1. Resolution No. 2006-128 2. Location Map. 3. Pine Avenue Park Site Plan. 4. EDGE Development, Inc. Bid for Change Order. 5. SDG&E Agreement. 6. AT&T (SBC) Agreement. DEPARTMENT CONTACT: Skip Hammann, (760) 602-2780, shamm@ci.carlsbad.ca.us: Scott Bradstreet. (760) 434-2856. sbrad(S)ci.carlsbad.ca.us 1 RESOLUTION NO. 2006-128 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROPRIATING ADDITIONAL 3 FUNDS; APPROVING PLANS, SPECIFICATIONS, AND AGREEMENTS WITH SDG&E AND AT&T; AND APPROVING A CONTRACT AMENDMENT WITH EDGE 5 DEVELOPMENT, INC. FOR UNDERGROUNDING OF EXISTING OVERHEAD UTILITY LINES FOR PINE AVENUE 6 PARK, PROJECT NO. 38022. 7 WHEREAS, a Negative Declaration and CUP 03-18 were issued for Pine Avenue Park8 Q on December 17, 2003 with a condition of approval requiring the removal and undergrounding IQ of the existing overhead utility lines on Harding Street and Chestnut Avenue to the satisfaction 11 of the City Engineer; and 12 WHEREAS, Construction of Pine Avenue Park was approved by City Council on 13 February 15, 2005 and is currently underway; and 14 WHEREAS, an estimated cost of $1,001,000 has been negotiated for the undergrounding 15 of the utilities by Edge Development, Inc., SDG&E, and AT&T; and 16 WHEREAS, an additional amount of $576,000 is required to augment the construction 17 contingency account and complete the work and; 18 WHEREAS, $576,000 is available in the Northwest Quadrant Park in Lieu Fee account 2Q to cover this work; and 21 WHEREAS, design plans are on file and available for public review at the Recreation 22 Administration office counter; and 23 WHEREAS, the Planning Commission of the City of Carlsbad, California conditioned C"J A the Pine Avenue Park Construction Project under CUP 03-18 to remove and underground the 25 overhead utilities. 26 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 27 California, as follows: 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. That the above recitations are true and correct. 2. That the City Council does hereby authorize the Finance Director to appropriate additional funds for the project in the amount of $576,000 from the Northwest Quadrant Park in Lieu fund to underground the overhead utility lines for Pine Avenue Park. 3. That the City Council does hereby grant the City Manager authorization to execute a change order to Contract No. 38022 with Edge Development, Inc. in the amount up to $900,000 for the undergrounding work. 4. That the City Council does hereby grant the City Manager authorization to execute a work order with SDG&E for $114,847. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 16th day of May , 2006, by the following vote: AYES: Council Members Lewis, Hall, Kulchin, Packard, Sigafoose NOES: None ABSENT: None LORRAINE M. WOOD, City Clerk (SEAL) -2- CM t eg I 0.< >• o > Q Z LU 0 q COMMUNITY BUIITOT LOT©e TWO-WAY |LU CHESTNUT AVEN© £SHADE STRUCTU© £ S S £LU 3 P 8 INFORMAL AMPH1/2 BASKETBALL© ©ART NODES, TYP© Q LU U-MULTI PURPOSE©OPEN SPACEBUFFER ZONE©<D BATTING CAGES©PARKING LOT©PICNIC AREAS© LU *GROUP PICNICORNAMENTAL Gf©®TRAFFIC CIRCLE© i: s j I 00 DO XLLJ .2 cr S 0.1 ro LUOs laMl. EDGE Development, Inc. REQUEST FOR CHANGE ORDER FORM & WORKSHEET EDGE Job No. 05005 Job Name: Pine Ave Park PCO# COR* •-;. Comments: Estmated costs for SDG & E, Addjphia and SBC work DESCRIPTION Ace Electric Landscaping Asphalt Survey EDGE G.C's for 12 waeks Including allowable maik-ups QTY 1 1 1 1 UNIT Is Is I* Is UNIT COSTS Approx Costs $ 626,000.00 $ 45,000.00 $ 45,000.00 $ 10,000.00 ' Subtotal EDI 5% Markup Subtotal 1%Bond N~otal TOTAL $ 625.000.00 $ 45.000.00 $ 45.000.00 ¥ 10,000.00 $ $ $ $ 725.000.00 $ 36,250.00 $ 761 ,250.00 $ 110.230.00 $ 8,714.80 $ 880.194.80 EXHIBIT 4 Sempra Energy utility- Submitted to Applicant by: Jany Staley SDG&E Work Order(s): 2828642 2828643 AGREEMENT FOR REPLACEMENT OF OVERHEAD WITH UNDERGROUND FACILITIES THIS AGREEMENT, made and entered into, by and between SAN DIEGO GAS & ELECTRIC COMPANY, a corporation, hereinafter called "Utility", and (2/f^/ ff^ Cs4-/<£-S£3 A-& t hereafter called "Applicant(s)". WITNESSETH: WHEREAS, Applicant(s) are the owners, lessees, or others having a legal interest in those certain premises known as N/W Quad Park located at Harding St.(between Pine St. and Chestnut Ave.) and portions of Chestnut St.(between Madison St. and Hwy 5), Carlsbad; and WHEREAS, Applicant's desire that existing overhead facilities be replaced with underground facilities, and in consideration of the desirability and value which said underground facilities will add and contribute to the above premises; NOW, THEREFORE, it is agreed by and between Utility and Applicants as follows: 1. Subject to the conditions hereinafter provided, Utility, upon obtaining satisfactory easements for any required rights of way, shall remove its existing overhead electric power facilities serving Applicants and shall replace these facilities with underground facilities, in accordance with its Rule 20.B for Replacement of Overhead with Underground Facilities as filed with the California Public Utilities Commission. 2. All work performed by the Utility and Applicants pursuant to this Agreement shall be in conformity with the General Conditions and the Specifications attached hereto and by this reference made a part hereof. Utility shall furnish underground electric service to the premises shown on Specifications and, upon completion of the work specified herein, Utility shall not furnish overhead electric service to any of such premises. 3. This Agreement shall become effective only upon compliance with all of the following conditions: a) All Applicants shall execute this Agreement and shall perform all of the conditions herein contained. b) All Applicants shall execute a companion agreement with each company, municipality, or agency that is a joint user with Utility of poles, or maintains other poles, within the area from which Utility's pole will be removed pursuant to Section 1, for providing communication service, traffic signals, police or fire alarm boxes, or street or safety lighting supplied by overhead wiring. Such agreement or agreements will provide for such service to be discontinued or converted and maintained through underground circuits or other appropriate and lawful means, so that all of said poles can be removed from the area within a reasonable time after Utility has removed its poles. c) Applicants will, at their expense and in conformity with the Contract Documents as defined in the General Conditions, furnish and install the material, and facilities and perform the work indicated below by a check mark. The material, facilities and work listed below which are not indicated with a check mark shall be furnished, installed and performed by Utility at Applicants' expense. FORM 106-27591(4/91) PYMIRIT K [3 Excavation, backfill and compaction 13 Conduits ^ Concrete substructures d) Utility shall notify Applicants, in writing, of final acceptance of the work specified herein. Applicants hereby grant to Utility all facilities installed by Applicants pursuant to this Agreement, said grant to be effective upon receipt of Utility's written final acceptance. e) Each Applicant shall, at his expense, promptly provide any necessary changes to the existing facilities on his property so as to receive underground electric service at the points specified on the Specifications. The Applicants' work shall be in accord with Utility's Rule on Service Connections filed with the California Public Utilities Commission effective as of the date of this Agreement, and in accord with the Contract Documents. Underground electric service will not be supplied until all affected premises are equipped to receive electric service in accordance with said plan and specifications. 4. Receipt is acknowledged from Applicant(s) of $116,887, which is an amount equal to the estimated cost of Utility's conversion work computed in accordance with its Filed Rule on Replacement of Overhead with Underground Facilities. Said amount includes any engineering fee or fees that may have been paid to Utility in contemplation of the work provided for in Section 2. 5. In the event any additions, rearrangements, or changes to the electric wiring are required or performed on Applicants' several premises, other than the work pursuant to Section 3.e) above, Applicants shall cause said additions, rearrangements, and changes to be made at their expense. 6. All wires, cables, conductors, conduits, ducts, connectors and appurtenances installed by Utility, or its agents, on the premises of Applicants, or elsewhere, and all facilities granted to Utility by Applicants, shall become and remain the property of Utility notwithstanding any payment made under this Agreement. Such facilities will be maintained and operated by Utility in accordance with its Rules for the Sale of Electric Energy on file with the California Public Utilities Commission. a) Utility shall be under no obligation to perform and complete the work undertaken by it pursuant to this Agreement until Applicants' obligations incurred pursuant to Paragraphs 3.b) and 3.e) of this Agreement shall have been fulfilled. b) If the Specifications attached hereto require the installation of new street lighting standards, Utility shall be under no obligation to remove and cease operating its overhead electric facilities nor to furnish underground electric service to any of the premises shown on the Specifications until said street lighting standards have been installed and energized. c) Utility at its sole election, may undertake to perform the work to be performed by it prior to the occurrence of the conditions specified in section 7. and subsection b) of this Section. The commencement of any such work by Utility under the provisions of this subsection shall not constitute a waiver of any of the requirements imposed upon any Applicants under section 7. or subsection b) of this Section, or under any other provisions of this Agreement. d) If any Applicants shall, within one year of the date of this Agreement, fail or refuse to comply with any of the conditions hereof or to perform all work required under the contracts executed pursuant to Paragraph 3.b) of this Agreement, Utility shall have the right to make such changes and to impose such further conditions upon the Applicants as may be necessary to protect its rights under any existing agreement for any increase in its costs of installation, and to provide in any other manner for the accomplishment of the purposes of this Agreement consistent with applicable rules, laws, ordinances and its contractual obligations hereunder. 7. Once Applicant has started to perform the work required by the Contract Documents, Applicants agree to exercise reasonable diligence in pursuing such work to completion within one year after the effective date of the Contract Documents. If such work has not been completed within one year after the effective date of the Contract Documents, Utility shall have the right, upon giving written notice to Applicants, to cancel and terminate the Contract Documents. Utility shall return to Applicants, an amount equal to the above cash advance, minus Utility's costs. Utility's costs are defined as the actual cost (including but not limited to labor, materials and overhead) incurred by Utility prior to such cancellation and termination in connection with work done in furtherance of Applicants' project, plus 2 FORM 106-27591(4/91) the actual cost of removing any of the Utility installed facilities which Utility desires to salvage, minus the salvage value of such facilities. Upon exercise of this right to cancel and terminate, and upon payment to Applicants, all of Utility's obligations under the Contract Documents shall cease. 8. This Agreement shall at all times be subject to such changes or modifications by the California Public Utility Commission as said Commission may, from time to time, direct in the exercise of its jurisdiction. 9. All terms and situations heretofore made and agreed to by the parties in relation to said electric line replacement are set forth in this Agreement and no representation of any agent or employees shall be binding upon Utility except as expressed herein. Appendix A attached hereto is solely for use by Utility and nothing contained therein shall in any way alter or vary any term, condition or stipulation contained in this Agreement. 10. If Applicant is a corporation, partnership, joint venture or a group of individuals, the subscriber hereto represents that he has the authority to bind said corporation, partners, joint venture or individuals as the case may be. Each Applicant signing this Agreement agrees that he shall be jointly and severally liable under the terms of this Agreement with every other applicant signing the Agreement. 11. All of the terms and conditions of this Agreement shall be binding upon and shall insure to the benefit of the parties hereto, their heirs, administrators, executors, personal representatives, trustees, successors and assigns. 12. The Contract Documents shall become effective only upon the date signed by the authorized representative of Utility. IN WITNESS WHEREOF, the parties hereto have individually executed, or have caused this Agreement to be executed for and on behalf of each, by and through their responsible agents, partners, or duly authorized corporate officers, as the case may be. APPLICANT: SAN DIEGO GAS & ELECTRIC COMPANY, City of Carlsbad, a municipal^ a corporation By: (Authorized Individual-Utility) I SignSturef Date Executed:Name: Claude A. Lewis (Please Print or Type) Title: Mayor Date: Mav 18. 2006 Address: 1200 Carlsbad Village Drive Carlsbad, CA 92008 Telephone: 760-434-2856 FORM 106-27591(4/91) i w1 g EH CTlroro CO in••*o (NCD IOro^<to U)(N nr-in ooin (N oin (N inr-oo oom </> to- v> -10- </> o o o o o 00 rH l~-ro in oor- co co^ r^ ko CTv t^ H H H •w- o -n- </> o o </>•</> to- </></></> W CTlnnco o CN00 in10(N ni-m ooin oinCN int-cor- 00rot-•*cnH COror- Hincor- r-co co U> </> -w- -w- </> «/>v> </> -W- Oftsa woHPco HO HCN S h^5! 5CO Pi ooIoroW ro W OPiI CO VDfto P^-n oo CNo-\&i roPO H OoIoinoivo 03 Jft 3 ><PQ PHP H OPift P § Pi - g 00 < §Pi ^_^ H^-%. •M PQ PQ W W H H l-l COCO CO HCO JWJ (N (N ro •#P ACW-F Iss. 1/31/06 AT&T Project Number 5623110 Return signed Application with payment to: Telco Desk 4220 Arizona Street San Diego, CA 92104 APPLICATION FOR CUSTOM WORK - FIXED PRICE BASIS February 27, 2006 City of Carlsbad 1635 Faraday Aveune Carlsbad, CA 92008 ATTN: Mr. Soileau RECEIVED FEB 2 7 2006 CITY OF CARLSBADENGINEERING DEPARTMENTCM*I DIVISION r _ DESCRIPTION OF CUSTOM WORK: 20B UNDERGROUND CONVERSION OF AERIAL TELEPHONE FACILITIES FOR N/W QUAD PARK-PROJECT #441686-050 CHARGE FOR CUSTOM WORK: Preparing specifications and drawings for the USS and inspecting Applicant's trenching and installation of USS FIXED CONTRACT PRICE: $3,720.87 Applicant has asked AT&T to perform the above-described custom work for which Applicant shall pay AT&T the contract price of $Three Thousand Seven Hundred Twenty Dollars and Eighty-Seven Cents/$3,720.87 in advance of the start of any AT&T work. Applicant shall pay for work on a "Fixed Price" basis. Thus, the amount quoted above is the amount Applicant will pay for the work regardless of the actual cost of the work. Charges are computed in accordance with AT&T's ordinary accounting practices under the Uniform System of Accounts for Class A telephone companies and include allocated costs for labor, engineering, materials, transportation, motor vehicles, and tool and supply expenses and, if applicable, a 33 percent tax component collected for State and Federal Income Tax purposes in accordance with CPUC decision 87-09-026. The amount of $Three Thousand Seven Hundred Twenty Dollars and Eighty-Seven Cents/$3,720.87 is valid for only sixty (60) days and is therefore subject to change after April 27, 2006 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. AC Mayor Date signed:May 18, 2006 ACCEPTED FOR AT&T: Bv: 4V\0/UA/ A Printed foamfe: Mary G. Ward Title: Manager-OSP Engineer Date signed: February 27, 2006 AERIAL TO UNDERGROUND CONVERSION AGREEMENT (APPLICANT TO CONSTRUCT USS) (RULE 32.A.2) BETWEEN CITY OF CARLSBAD and PACIFIC BELL TELEPHONE COMPANY DBA AT&T CALIFORNIA RE N/W QUAD PARK - 20B CONVERSION 324596 (Rev. 1/31/06) 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 6 K. Liens 6 L. Licenses and Easements 6 M. Performance 7 N. Damage to Facilities 7 O. Schedule of Work 7 P. Force Majeure 7 Q. Compliance With Laws 8 IV. GENERAL PROVISIONS 8 A. Assignment 8 B. Binding Effect 8 C. Termination 8 D. Attorneys' Fees 8 E. Entire Agreement 9 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement F. Independent Contractor 9 G. Jurisdiction 9 H. Notices 9 I. Waiver and Amendment 9 Exhibit A Applicant's Approved Street Improvement Plans Exhibit B AT&T's Estimated Costs Exhibit C Executive Orders and Associated Regulations 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement THIS AGREEMENT ("Agreement") is between CITY OF CARLSBAD, 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, 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 Harding Street-Pine Avenue to Chestnut Avenue, Chestnut Avenue-Harding Street to Madison Street 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 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 1 of 10 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 HI.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) days after the date the Applicant notifies AT&T of its decision not to remove/contain the Hazardous Substance(s). hi 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. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 2 of 10 n 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 inspection 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. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 3 of 10 F. Payment. Applicant shall pay to AT&T within forty-five (45) days after execution of this Agreement the sum of Three Thousand Seven Hundred Twenty Dollars and Eighty-Seven Cents/$3,720.87, 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- NOT APPLICABLE - for Federal and State Income Tax in accordance with CPUC decision 87-09-026. Applicant shall send payments to: AT&T California 4220 Arizona Street, Room 200 California, CA 92104 ATTN: Mary Ward 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. 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 4 of 10 3. These indemnities shall survive the termination or cancellation of this Agreement or any provision to the contrary herein. 4. 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 performance hereunder, and in addition to Applicant's obligation to indemnify, Applicant agrees to maintain, at all times during the term of this Agreement, the following minimum insurance coverages and limits and any additional insurance and/or bonds required by law: 1. Worker's Compensation insurance covering Applicant's full liability under the worker's compensation laws of California and Employers Liability insurance with minimum limits of $1,000,000 for Bodily Injury- each accident, $1,000,000 for Bodily Injury by disease-policy limits and $1,000,000 for Bodily Injury by disease-each employee. 2. Commercial General Liability insurance with minimum limits of: $2,000,000 general aggregate limit; $1,000,000 each occurrence limit for all bodily injury or property damage incurred in any one occurrence; $1,000,000 each occurrence limit for Personal Injury and Advertising; $2,000,000 Products/Completed Operations aggregate limit, and $1,000,000 each occurrence limit for Products/Completed Operations. AT&T will be named as an additional insured on the Commercial General Liability policy. 3. If use of a motor vehicle is required, Automobile Liability insurance with minimum limits of $1,000,000 combined single limits per occurrence for bodily injury and property damage, which coverage shall extend to all owned, hired and non-owned vehicles. 4. AT&T requires that companies affording insurance coverage have a rating of A or better and a Financial Size Category rating of VIII or better, as rated in the A.M. Best Key Rating Guide for Property and Casualty Insurance Companies. 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 5 of 10 5. A certificate of insurance stating the types of insurance and policy limits provided the Applicant must be received prior to commencement of any work. The cancellation clause on the certificate of insurance will be amended to read as follows: "THE ISSUING COMPANY WILL ENDEAVOR TO PROVIDE AT LEAST 30 DAYS ADVANCE WRITTEN NOTICE OF CANCELLATION OR NON-RENEWAL TO AT&T." 6. Applicant shall also require all contractors and subcontractors performing work on the Project or who may enter upon the work site to maintain the same insurance requirements listed above. 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. 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 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 6 of 10 shall have the right to pay and discharge the lien without regard to whether the lien shall be 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 and 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, 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 in.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, 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 7 of 10 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. 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. 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 8 of 10 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 agent, such as an overnight or similar delivery service, or three days after being deposited in the United States mail, postage prepaid: City of Carlsbad AT&T California 163 5 Faraday Avenue 4220 Arizona Street, Room 200 Carlsbad, CA 92008 San Diego, CA 92104 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. 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 9 of 10 The duly authorized representatives of Applicant and AT&T have executed this Agreement by affixing their signatures on the dates indicated below. CITY OF CARLSBAD May Printed Name: Claude A. Lewis PACIFIC BELL TELEPHONE COMPANY Date Signed: May 17, 2006 By: Title: Manager-OSP Engineer Printed Name: Mary G. Ward Date Signed: February 24, 2006 324596 (Rev. 1/31/06) Aerial to Underground Conversion Construction Agreement Page 10 of 10 Engineering Work Order Number: Pine Av Park.des Special Construction Charges for Location: Summary of Charges Materials $0.00 Cable $0.00 Poles $0.00 Terminals $0.00 Drop Wire $0.00 Apparatus and Equipment $0.00 Joint Poles Charges $0.00 Permit and Filling Fees $0.00 Contract Material $0.00 Miscellaneous $0.00 Engineering $2,395.92 (Includes Engineering and Clerical Support) Construction $1,324.95 (Constructing, Splicing, Testing and Contract Cost Salvage (if any) $0.00 Sub-Total (Material+Labor-Salvage) $3,720.87 CIACfor SBC Provided Labor & Material: $0 00 Contribution in Aid of Construction (0% applied to sub-total) CIACfor Developer Contributed $000 Material: Total CIAC $0.00 Total CIA C Exempt Labor Charges: $0.00 Total Billing Amount j3 720 Reviewed and Approved By "7 Kfl/UA/ AJ. Wfl/iAyEngineer Wednesday, February 22, 2006 ACE Page: 1 of 1 Automated Construction and Engineering 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 foregoing, 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 may be amended in the future, including, but not limited to the following: 1. 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 be 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. §60-1.8, 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 term "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, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, provided that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. Contractor will obtain similar certifications from proposed subcontractors prior to the award of any nonexempt subcontract. 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. § 60-1.40. 4. CERTIFICATION OF FILING. Contractor certifies that it will file annually, on or before the 31* of March, complete and accurate reports on Standard Form 100 (EEO-1) or such forms as may be promulgated in its place as requiredby41 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. 60-250.20, 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 made a part of Government contracts and subcontracts. 7. UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED BUSINESS CONCERNS. 48 C.F.R., Ch. 1, § 19.740(4) and 19.708(a) require that the following clause is included: Utilization of Small Business concerns and Small Disadvantaged Business Concerns (June, 1985) (a) It is the policy of the United States that small business concerns and small business 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 services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals. (b) The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The Contractor further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of the Contractor's compliance with this clause. (c) As used in this contract, the term "small business concern" shall mean a small 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 by 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 stock 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. The Contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act. (d) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as either a small business concern or a small business concert 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 Small Business Act agrees to adopt and comply with a small business and small disadvantaged business subcontracts; plan, which shall be included in and made a part of this contract. The parties incorporate herein b; this reference the regulations and contract clauses required by 48 C.F.R., Ch. 1, §§ 19.704(4) and 19.708(b) to be made a part of Government contracts and subcontracts. 8. WOMEN-OWNED SMALL BUSINESSES. As prescribed in 48 C.F.R., Ch. 1, § 19.902, the following clause is included in solicitations and contracts when the contract amount is expected to be over the small purchase threshold, unless (a) the contract is to be performed entirely outside the United States, its possessions, Puerto Rico, ant 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. (b) Policy. It is the policy of the Government to award contracts to concerns that agree to perform substantially in labor surplus areas (LSA's) when this can be done consistent with the efficient performance of the contract and at prices no higher than are obtainable elsewhere. The Contractor agrees to use its best efforts to place subcontracts in accordance with this policy. (c) Order of Preference. In complying with paragraph (b) 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: (1) small business concerns that are LSA concerns, (2) other small business concerns, and (3) other LSA concerns. (d) Definitions. "Labor surplus area," 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 labor 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 labor surplus areas exceed 50 percent of the contract price. Labor Surplus Area Subcontract Program. (a) See the Utilization of Labor Surplus Area Concerns clause of this contract for applicable definitions. (b) The Contractor agrees to establish and conduct a program to encourage labor surplus area (LSA) concerns to compete for subcontracts within their capabilities at prices no higher than obtainable elsewhere. The contractor shall ~ (1) Designate a liaison officer who will (i) maintain liaison with authorized representatives of the Government on LSA matters, (ii) supervise compliance with the Utilization of Labor Surplus Area Concerns clause, and (iii) administer the Contractor's labor 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 LSA concerns have an equitable opportunity to compete for subcontracts, particularly by arranging solicitations, time for the preparation of offers, quantities, specifications, and delivery schedules so as to facilitate the participation of LSA concerns; (4) include the Utilization of Labor Surplus Area Concerns clause in subcontracts that offer substantial LSA subcontracting opportunities; and (5) Maintain records showing (i) the procedures adopted and (ii) the Contractor's performance, to comply with this clause. The records will be kept available for review by the Government until the expiration of 1 year after the award of this contract, or for such longer perkx as may be required by any other clause of this contract or by applicable law or regulations. (c) The Contractor further agrees to insert in any related subcontract that may exceed $500,000 and that contains the Utilization of Labor Surplus Area 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. 324596