HomeMy WebLinkAbout2004-01-20 City Council (6)TO:HONORABLE CITY COUNCIL
City of Palo Alto
C’ Manager’s Report
5
FROM: CITY 5’LA.NAGER DEPAd~TMENT: UTILITIES
DATE:JAJ~UARY 20, 2004 CMR:120:04
SUBJECT:APPROVAL OF A CONTRACT WITH LEVirIS AND TIBBITTS,
INC. IN TIlE A_MOUNT OF $1,714,921 FOR INSTALLATION OF
THE UTILITY TRENCH AND SUBSTRUCTUqLE SYSTEM FOR
UNDERGROUND UTILITY DISTRICT NO. 38 (HIGH STREET,
COWPER AVE, NUE, OREGON EXPRESSWAY, COLORADO
AVENUE)
RECOMMENDATION
Staff recommends that Council:
Approve and authorize the Mayor to execute the attached contract with Lewis
and Tibbitts, Inc. in the anaount of $1,714,921 for installation of the utility
trench and substructure system for Underground Utility District No. 38.
Authorize the City Manager or his desig-nee to negotiate and execute one or
more change orders to the contract with Lewis and Tibbitts, Inc. for related
additional but unforeseen work which may develop during the project, the total
value of which shall not exceed $170,000.
o Authorize the Mayor to execute the attached Specific Agreement for Joint
Participation Installation of Underground Facilities System between the City of
Palo Alto, SBC Communications and Comcast Corporation.
BACKGROUND
At its meeting on February 23, 1998, the Council adopted Ordinance No. 4483 creating
Underground Utility District No. 38 for the High Street, Cowper Avenue, Oregon
Expressway and Colorado Avenue area. As indicated in CMR: 440:97, this project
CMR: 120:04 Page 1 of 4
involves constructing an under~-ound distribution system in an area which meets both
City and SBC guidelines for under~-ounding. The new under~-ound system is to be
installed in the public right-of-way and constructed in four phases:
Phase I Substructure installation by the contractor, consisting of trenching
and placement of conduits, vaults, boxes and pads in the public
right-of-way and in public utility easements.
Phase II Installation, testing and ener~zing of new under~ound distribution
cables, switches and transformers.
Phase III Customer service conversions - all affected property owners will be
required to connect to the new under~ound system.
Phase IV -Removal of all overhead lines and poles.
A notice inviting formal bids for Phases I and II was sent to contractors on November 26,
2002 and bids were received from five qualified contractors on January 7, 2003.
Unfortunately SBC refused to sig-n the Specific A~’eement for Joint Participation
Installation of Underground Facilities for Underga’ound Utility District No. 38, and
requested a new Specific A~eement format. Negotiations with SBC extended beyond 60
days from the January 7 bid opening date with little pro~ess Ola resolving the Specific
A~-eement issues. At its meeting on June 9, 2003 the Council voted to reject all bids
received on Ja~mary 7, 2003 as it was not possible to proceed with construction of
Underga’ound District No. 38 as bid without a siN~ed Specific A~-eement for Joint
Participation.
In August 2003 the Specific A~-eement issues were resolved, and SBC and Comcast
si~aed the revised Specific AN-eement for Under~ound District No. 38.
DISCUSSION
A notice inviting formal bids for proceeding with Phase I was sent to contractors on
November 17, 2003. The bidding period was 37 calendar days because of the complexity
and maNaitude of the project. A mandatory pre-bid meeting was held on December 2,
2003 with ten prospective bidders attending. Bids were received from seven qualified
conta-actors on December 23, 2003 as listed on the attached bid summary (Attachment A).
Bids ranged from $1,714,921 to $2,598,240.
CMR:120:04 Page 2 of 4
Staff has reviewed al! bids submitted m~d reconm~ends that the bid of $1,714,921
submitted by Lewis and Tibbitts, Inc. be accepted and that Lewis and Tibbitts, Inc. be
declared the lowest responsible bidder. The bid is 14% below the engineer’s estimate of
$2,000,000. The change order amount of $170,000, which is approximately 10% of the
total contract, is to cover the cost of additional but unforeseen work which may develop
dmq_ng the project. Staff checked references supplied by the contractor for previous work
performed and found no significant complaints. Staff also checked with the Contractor’s
State License Board and found that the contractor has an active license on file.
RESOURCE IMPACT
Funds for this project are included in the FY 2003-2004 Electric Capital Improvement
Program (CIP 9804) Budget. Based on the low bid, the estimated costs for the Cit3.,, SBC
and Comcast are $943,206, $428,730 and $342,984 respectively.
POLICY IMPLICATIONS
This project supports CPAU Key Strategy number 7 - Implement pro~ams that improve
the quality of the environment, and Supporting Objective number 2 - Im~est in utility
infrastructure to deliver reliable service.
The award of this contract does not represent any change to existing City policies.
EN~.’XRONMENTAL REVIEW
This project is categorically exempt from the California Environmental Quality Act
(CEQA).
ATTACHMENTS
A~
B:
C:
Contract
Bid Summary
Specific A~-eement for Joint Participation Installation of
Under~ound Facilities System
PREPARED BY:Tom Finch, Senior Project Engineer
CMR:120:04 Page 3 of 4
DEPART~ENT HEA_D:
of Utilities/
CITY M_~kNAGER APPROVAL:
EMILY I-I~6AIRIS ON
Assistant City Manager
CMR: 120:04 Page 4 of 4
CONTRACT No. C04101903
(public works)
Utilities Department
This Contract, number C04101903 dated 1/20/04 is entered into by and between the City of Palo Alto, a chartered city
and a municipal corporation of the State of California ("City"), and Lewis and Tibbitts. Inc. ("Contractor").
For and in consideration of the covenants, terms, and conditions ("the provisions") of this Contract, City and Contractor
("the parties") agree:
Term. This Contract shall commence and be binding on the parties on the Date of Execution of this Contract,
and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is
required to be filed, on the date that final payment is made hereunder, subject to the earlier termination of this
Contract.
General Scope of Proiect and Work. Contractor shall furnish labor, services, materials and equipment in
connection with the construction of the Project and complete the Work in accordance with the covenants, terms
and conditions of this Contract to the satisfaction of City. The Project and Work is generally described as
follows:
Title of Project:Underground District #38 Substructure Construction, Invitation for Bid (IFB) Number 101903
Bid:$ 1.714,920.55
3o Contract Documents. This Contract shall consist of the documents set forth below, which are on file with the
City Clerk and are hereby incorporated by reference. For the purposes of construing, interpreting and resolving
inconsistencies between and among the provisions of this Contract, these documents and the provisions
thereof are set forth in the following descending order of precedence.
This Contract.
invitation for Bid.
Project Specifications.
Drawings.
Change Orders.
Bid.
Supplementary Conditions.
General Conditions.
Standard Drawings and Specifications (1992).
Certificate of Insurance, Performance Bond, Labor & Materials (Payment) Bond.
Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the
Standard Drawings and Specifications (! 992).
Any other document not expressly mentioned herein which is issued by City or entered into by the
parties.
Compensation. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to
Contractor the amount set forth in Contractor’s Bid in accordance with the provisions of this Contract and upon
the receipt of written invoices and all necessary supporting documentation within the time set forth in the
Contract Specifications and the Standard Drawings and Specifications (1992), or, if no time is stated, within
thirty (30) Days of the date of receipt of Contractor’s invoices.
Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance
coverage described in the Invitation For Bid on terms and conditions and in amounts as may be required bythe
Risk Manager. City shall not be obligated to take out insurance on Contractor’s personal property or the
personal property of any person performing labor or services or supplying materials or equipment under the
Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting
coverage required under this Contract on or before the Date of Execution. The certificates and endorsements
for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its
behalf. Proof of insurance shall be mailed to the PEoject Manager to the address set forth in Section 16 of this
Contract.
PAGE 1 OF 7
C04101903
indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers,
employees, agents and representatives harmless from and against any and all claims, demands, liabilities,
losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or
indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts
or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance with any Law
respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from
Contractor’s failure to do anything required under this Contract or for doing anything which Contractor is
required not to do under this Contract, or which arises from conduct for which any Law may impose strict liability
on Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise
from the sole willful acts or negligent acts or omissions of City or any of its Council members, officers,
employees, agents or representatives. This indemnification shall extend to any and all claims, demands, or
liens made or filed by reason of any work performed by Contractor under this Contract at any time during the
term of this Contract, or arising thereafter.
To the extent Contractor will use hazardous materials in connection with the execution of its obligations under
this Contractl Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City
Council members, officers and employees from and against any and all claims, demands, liabilities, losses,
damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in
connection with or as a result of Contractor’s willful acts or negligent acts or omissions under this Contract,
under the Comprehensive Environmental ResPonse, Compensation and Liability Act (42 U.S.C. ~9601-6975,
as amended); the Resource Conservation and Recovery Act (42 U.S.C. 9~6901-6992k, as amended); the Toxic
Substances Control Act (15 U.S.C. ~2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous
Substance Account Act (Health & Safety Code, )925300-25395, as amended); the Hazardous Waste Control
Law (Health & Safety Code, ~25100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement
Act (Health & Safety Code, ~25249.5-25249.13, as amended); the Underground Storage of Hazardous
Substances Act (Health & Safety Code, ~925280-25299.7, as amended); or under any other local, state or
federal law, statute or ordinance, or at common law.
Assumption of Risk. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the
property of Contractor which may occur in, on, or about the Project site at any time and in any manner,
excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of
City or any of its Council members, officers, employees, agents or representatives.
Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by
City of its rights under this Contract. A waiver by Ci~ of any breach of any part or provision of this Contract by
Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any
other provision, nor shall any custom or practice which may arise between the parties in the administration of
any par[ or provision of this Contract be construed to waive or to lessen the right of City to insist upon the
performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract.
No Exoneration Bv inspection: The City has the right, but not the duty, to inspect Contractor’s Work. The right
of inspection is solely for the benefit of City. Contractor has the obligation to complete the Work in a
satisfactory manner in compliance with Contract requirements. The presence of a City inspector does not shift
that obligation to the City or relieve Contractor from its obligations to complete the Work in a satisfactory
manner in compliance with the Contract requirements.
10.Comoliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force
pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or
other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any
Law of any public agency or official as well as with any provision of all recorded documents affecting the Project
site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws
pertaining to nondiscrimination in employment and hazardous materials.
11.Bonds. As a condition precedent to City’s obligation to pay compensation to Contractor, and on or before the
Date of Execution, Contractor shall furnish to the Project. Manager the Bonds as required under the Invitation
For Bid.
12.Representations and Warranties. In the supply of any materials and equipment and the rendering of labor and
PAGE 2 OF 7
c04101903
services during the course and scope of the Project and Work, Contractor represents and warrants:
Any materials and equipment which shall be used during the course and scope of the Project and
Work shall be vested in Contractor;
Any materials and equipment which shall be used during the course and scope of the Project and
Work shall be merchantable and fit to be used for the particular purpose for which the materials are
required;
Any labor and services rendered and materials and equipment used or employed during the course
and scope of the Project and Work shal! be free of defects in workmanship for a period of one (1) year
after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be
filed, on the date that final payment is made hereunder;
Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by
Contractor for and in behalf of City.
eo Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request,
whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true
and correct at the time such information is submitted or made available to the City;
Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to
the terms and conditions of Contractor’s Bid, except as may be permitted by the Invitation For Bid;
Contractor has the power and authority to enter into this Contract with City, that the individual
executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract
shall be executed, delivered and performed pursuant to the power and authority conferred upon the
person or persons authorized to bind Contractor;
Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project
Manager or any other person who has directly contributed to City’s decision to award the contract to
Contractor;
There are no unresolved claims or disputes between Contractor and City which would materially affect
Contractor’s ability to perform under the Contract;
Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions,
certifications, and other written information as may be requested of Contractor by City from time to
time during the term of this Contract;
Contractor and any person performing labor and services under this Project are duly licensed by the
State of California as required by California Business & Professions Code Section 7028, as amended;
and
Contractor has fully examined and inspected the Project site and has full knowledge of the physical
conditions of the Project site.
13.Assiqnment. This Contract and the performance required hereunder is personal to Contractor, and it shall not
be assigned by Contractor. Any attempted assignment shall be null and void.
14.Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time
or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or
registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or
required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim
to City.
15.Audits by City. During the term of this Contract and for a period of not less than three (3) years after the
expiration or earlier termination of this Contract, City shall have the right to audit Contractor’s Project-related
and Work-related writings and business records, as such terms are defined in California Evidence Code
PAGE 3 OF 7c04101903
Sections 250 and""’i271, as amended, during the regular business hours of Contractor, or, if Contractor has no
such hours, during the regular business hours of City.
16.Notices. All agreements, appointments, approvals, authorizations, claims, demands, Change Orders, consents,
designations, notices, offers, requests and statements given by either party to the other shall be in writing and
shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States
mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission,
if sent to the telephone FAX number set forth below during regular business hours of the receiving party and
followed within two (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in
accordance with (1), (2) or (3) above. Personal service shall include, without limitation, service by deliver}, and
service by facsimile transmission.
To City:City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Copy to:City of Palo Alto
Utilities Department
250 Hamilton Avenue
Palo Alto, CA 94303
Attn: Tom Finch, Project Manager
To Contractor:Lewis and Tibbitts, Inc.
42700 Boyce Road
Fremont, CA 94538
Attn: John Garcia
17.Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article I11, Section 12 of the
Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may
accrue only after such expenditures have been approved in advance in writing in accordance with applicable
Laws. This Contract shall terminate without penalty (I) at the end of any fiscal year in the event that funds are
not appropriated for the following fiscal year, or (ii) at any time within a fiscal year in the event that funds are
only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This
Section 17 shall control in the event of a conflict with any other provision of this Contract.
18.Miscellaneous.
bo
Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor’s
bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor.
Consent. Whenever in this Contract the approval or consent of a party is required, such approval or
consent shall be in writing and shall be executed by a person having the express authority to grant
such approval or consent.
Controlling Law. The parties agree that this Contract shall be governed and construed by and in
accordance with the Laws of the State of California.
Definitions. The definitions and terms set forth in Section 1 of the Standard Drawings and
Specifications (1992) of this Contract are incorporated herein by reference.
Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to
perform its obligations under this Contract which directly results from an Act of God or an act of a
superior governmental authority.
C04101903
Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the
PAGE 4 OF 7
construction or interpretation of any part of this Contract.
Incorporation of Documents. All documents constituting the Contract documents described in Section
3 hereof and all documents which may, from time to time, be referred to in any duly executed
amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part
of this Contract.
Integration. This Contract and any amendments hereto between the parties constitute the entire
agreement between the parties concerning the Project and Work, and there are no other prior oral or
written agreements between the parties that are not incorporated in this Contract.
Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless
such modification is agreed to in writing and signed by the parties.
Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or
other stipulation in the Contract shall define or otherwise control, establish, or limit the performance
required or permitted or to be required of or permitted by either party. All provisions, whether
covenants or conditions, shall be deemed to be both covenants and conditions.
Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or
other writing, which authorizes any director, officer or other employee or partner to act for or in behalf
of Contractor or which authorizes Contractor to enter into this Contract.
Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void
or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect.
Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as
an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to
any rights and benefits accorded or accruing to the City Council members, officers or employees of
City, and Contractor expressly waives any and all claims to such rights and benefits.
Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply
to and bind, the successors and assigns of the parties.
Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the
calculation of time hereunder, the time in which an act is to be performed shall be computed by
excluding the first Day and including the last. If the time in which an act is to be performed fails on a
Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be
extended to the following Business Day.
Alternative Dispute Resolution. The parties shall endeavor to resolve any disputes or claims arising
out of or relating to this Contract by mediation, which, unless the parties agree otherwise, shall be
conducted under the auspices of the Judicial Arbitration and Mediation Service (JAMS), San Jose,
California. The intent of the parties is that the mediation shall proceed in advance of litigation;
however, if any party should commence litigation before the conclusion of mediation, such litigation,
including discovery, shall be stayed pending completion of mediation, and by executing this Contract
the parties stipulate to mediation in accordance with Santa Clara County
Superior Court Local Rule 1.15 or Rule 2-3(b) of the ADR Local Rules of the U.S. District Court for the
Northern District of California, as such rules may be amended from time to time. The parties shall
share the cost of the mediation, including the mediator’s fee, equally. Any written agreement reached
in mediation shall be enforceable pursuant to California Code of Civil Procedure § 664.6, as amended.
Venue. Unless the parties mutually agree otherwise, mediation shall take place in San ,Jose,
California. In the event that litigation is commenced by any pa~, hereunder, the parties agree that
such action shall be vested exclusively in the state courts of California in the County of Santa Clara or
in the United States District Court for the Northern District of California.
C04101903
Recovery of Costs. Each Party shall bear its own costs, including attorney’s fees, through the
PAGE 5 OF 7
completion of mediation. If the claim or dispute is not resolved through mediation, or if litigation is
necessary to enforce a settlement reached at mediation pursuant to California Code of Civil Procedure
§ 664.6, as amended, then the prevailing party in any subsequent litigation may recover its reasonable
costs, including attorney’s fees, incurred subsequent to conclusion of the mediation.
Flow-down. Contractor agrees to include provisions of this Contract relating to Alternative Dispute
Resolution, Venue. and Recovery of Costs in any subcontracts or major material purchase
agreements which it enters into in connection with this Contract, and to require its subcontractors to
include those provisions in any sub-contracts or major material purchase agreements, such that any
mediation or litigation of any claim or dispute asserted by a subcontractor or major material supplier
will be consolidated with any related claim or dispute between the Contractor and the City. Should the
Contractor fail to do so, such that the City is required to defend an action brought by a subcontractor
or material supplier inconsistent with the Alternative Dispute and Venue provisions of this Contract,
Contractor shall indemnify City for City’s costs of defense, including reasonable attorney’s fees.
IN WITNESS WHEREOF, the parties have by their duly appointed representatives executed this Contract in the city of
Palo Alto, County of Santa Clara, State of California on the date first stated above.
ATTEST:
City Clerk
APPROVED AS TO FORM:
CITY OF PALO ALTO
By:
Its Mayor
Senior Assistant City Attorney
APPROVED:CONTRACTOR:
Assistant City Manager
Director of Utilities
By:
Name
Title:
Director of Administrative Services
Insurance Review
By:
Name:
Title
(Compliance with California Corporations Code 313 is required if the entity
on whose behalf this contractis signed is a corporation, in the alternative,
a certified corporate resolution attesting to the signatory authority, of the
individuals signing in their respeclJve capacities is acceptable. )
PAGE 6 OF 7C04101903
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code ~ 1189)
STATE OF )
COUNTY OF )
On , before me,
a notary public in and for said Countyl per~or~~lly appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) islare subscribed to the within instrument and acknowledged to me that helshe/they executed the
same in his/her/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
PAGE 7 OF 7C041019D3
SPECIFIC AGREEMENT FOR JOINT PARTICIPATION
INSTALLATION OF UNDERGROUND FACILITIES SYSTEM
UNDERGROUND UTILITY DISTRICT NO. 38
THIS SPECIFIC AGREEMENT FOR JOINT PARTICIPATION
("Agreement"), made and entered into this ~ day of ~o~o57- ,
2003, by and among PACIFIC BELL TELEPHONE COMPANY, a California
corporation, doing business as SBC CALIFORNIA, hereinafter called
here_na~Le_"COMPANY," COMCAST CORPORATION, a corporation,~ =~ r
referred to as "COMCAST" and the CITY OF PALO ALTO, a municipa!
corporation hereinafter called "CITY":
W I T N E S S E T H:
WHEREAS, CITY, COMCAST and COMPANY on September 24, 1990
entered into an agreement (Contract No. MD. 723) entitled ’~AMENDED
[v~STER AGREEMENT FOR INST~LATION OF UNDERGROUND FACILITIES SYSTEMS
BY AND AMONG THE CITY OF PALO ALTO, PACIFIC BELL AND CABLE COOP
(LESS THAN $25,000.00)" ("Amended Master Agreement"), which
agreement provides for joint participation in the installation of
underground facilities systems, subject to CITY’s Council approva!
where CITY’s share of cost wil! exceed Twenty-Five Thousand Dollars
($25,000); and
WHEREAS, it is necessary for CITY to open trenches in the
area of the City bf Palo Alto in connection with Underground
Utility District No. 38 ("Project")-authorized by City of Palo Alto
Ordinance No. 4483, adopted February 23, 1998, which has been
formed in accordance with Chapter 12.16 of the Palo Alto Municipal
Code; and
WHEREAS, CITY will act as the Trenching Agent, as
required by Section 2(a) of the Amended Master Agreement, in
accordance with all bidding requirements established by Chapter
2.30 of the Palo Alto Municipal Code, and COMCAST and COMPANY
desire to have installed in the open trenches certain of their own
underground facilities the share of which installation costs will
exceed Sixty-Five Thousand Dollars ($65,000); and
WHEREAS, COMCAST is the successor in interest to Cable
Communications Cooperative of Palo Alto, Inc., a signatory to the
Amended Master Agreement; and
WHEREAS, COMP~I\]Y declares that its. obligations pertaining
to the replacement of its aerial facilities with underground
facilities are governed by Rule 32.A.I of SBC’s tariff (Schedule
030804 syn 0072218
Ca!. P.U.C. No. A2) ("Tariff") that is on file with the California
Public Utilities Commission;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION !. For the purposes of this Agreement and the
A_mended Master Agreement, the following definitions shall apply:
(a) "Trench" and "Trenching" include, but are not
limited to, excavating, backfilling, compacting, and, as necessary,
breaking and replacing pavement, sidewalks, dr£veways, curbs and
gutters, and restoring all other surface features disturbed by
underground construction, including landscaping.
(b) "System" and "Underground Facilities" include, but
are not limited to, conduits, splice boxes, hand holes, manholes,
service boxes and related equipment" owned by the Parties.
(c) "Party" refers to "COMPANY," "COMCAST" or "CITY" and
"Parties" refers to "COMPANY," "COMCAST" and "CITY."
SECTION 2. The Parties acknowledge that, in accordance
with Section 2.30.i00(e) of the Palo A~to Municipal Code, CITY will
require the approva! of CITY’s Council where CITY’s share of costs
will exceed Sixty-Five Thousand Dollars ($65,000), which threshold
was established at Twenty-Five Thousand Dollars ($25,000) when the
Amended Master Agreement was executed by the Parties.
SECTION 3. CITY agrees to act as Trenching Agent to
install, or have installed, certain Underground Facilities to be
used exclusively or shared by and among CITY, COHCAST and COMPANY
in connection with the Project. The extent and location of such
facilities shal! be agreed upon, in writing, by the authorized
representatives of the Parties hereto prior to such installation.
COMPANY and COMCAST each agree to reimburse CITY for the respective
costs of such installation in accordance with the terms set forth
in Exhibit "A" (Terms of Agreement) and Exhibit "B" (CITY’s bid
plans and specifications and Bidder’s bid for the Project),
High/Cowper/Oregon/Colorado Avenue Conversion Project, Utility
Trench and Substructure (U.U.D. No. 38), attached hereto and by
this reference incorporated herein.
SECTION 4. This separate agreement is contemplated by
Section 2(c) of Contract No. MD 723, entitled, "AMENDED [~STER
AGREEMENT FOR INSTALLATION OF UNDERGROUND FACILITIES SYSTEMS BY _AND
AMONG THE CITY OF PALO ALTO, PACIFIC BELL AND CABLE COOP,"
including any future amendments thereto, are hereby incorporated by
reference into this Agreement. A copy of Contract No. MD 723 is
attached hereto as Exhibit "C".
030~04 syn 0072218
IN WITNESS WHEREOF, the parties have caused this
agreement to be executed the day and year first above written.
ATTEST:CITY OF PALO ALTO
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Assistant City Manager
Director of Administrative
Services
Director of Utilities
Mayor
PACIFIC BELL TELEPHONE COMP~qY,
DBA SBC CALIFORNIA
By: ..... _
COMCAST BROADBAND
Signatures must be notarized
030804 syn 0072218
3
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code 1189)
STATE OF )
a Notary Pub~l~c. ir~ and for said County and Sta~’e, "persona]iv
appeared ~/~W_W~/~/~/ , of PACIFIC BE.~L
TELEPHONE C~M~ANY]-~a S~BC C~3~IFORNIA, personally known to me or
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
030804 syn 0072218
CERTIFICATE OF ACEIqOWLEDG~ENT
(Civil Code 1189)
COUNTY OF ~__~.~lo. ~t~l~J>
a Notary Pu, blic ~% and for|~said County and St~e,~ personally
appeared ,%OIb4(~ ~.- ~,.~C,.14-,~l,’1~ , of COMCAST CORPORATION,
personally -known to me (or prored to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/~
subscribed to the within instrument and acknowledged to me that
he/s~/t~y executed the same in his/~/t~ir authorized
capacity(ies), and that by his/~2/t~ir signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official sea!.
OFFICIAL S~L
BANG D. PHO~MM. #1~228~ ~TARY PU~IC- ~FORNIA
San Ma~o ~un~~mmi~on expi~ Feb. 13, 2007
Signature ~@"f Notary Public/
030,%04 syn 00722] S
5
EXHIBIT ~A"
HIGH/COWPER/OREGON/COLORADO AVENUE
UNDERGROUND CONVERSION PROJECT
UTILITY AND TRENCH SUBSTRUCTURE
TERMS OF AGREEMENT
CONSTRUCTION CONTRACT awarded by the Council is hereby
incorporated by reference (See attached bid items for
breakdown of cost estimate).
All bid items dedicated to CITY’s sole benefit and use
shall be charged 100% to the CITY.
Al! bid items dedicated to COMPANY’s sole benefit and use
shall be charged-100% to COMPANY.
All bid items dedicated to COMCAST’s sole benefit and use
shall be charged 100% to COMCAST.
All joint trench bid item costs incurred for the
collective benefit of the Parties wil! be determined
using a space/cost al!ocation formula, which divides the
minimum trench area required for each trench occupant,
individually, by the sum of the minimum trench areas for
all occupants.
o Pavement and surface restoration over joint trench costs
shal! be shared equally by the number of occupants in the
trench.
o All optional bid items, whenever used, shall be charged,
individually or jointly depending on how the items are
used.
Cost of compaction testing shall be shared equally by the
number of occupants in the trench.
CITY shall require its construction contractor to provide
a two-year warranty on materials provided and work
performed from the date of acceptance of the Project by
CITY.
o CITY shall abide by the Tariff with respect to obtaining
the necessary permits and licenses. In the event of a
conflict between the terms of this Agreement or the
_’Amended Master Agreement and the terms of the Tariff, the
terms of the Tariff shal! govern.
030804 syn 007221
BID PAC~thGE AND CONT_~.hCT ADMiN!ST~_TION
Engineering, Plans and Specifications - Actual cost as
billed by Engineering Consultant.
Ten percent (10%) of COMCAST’s and COMPANY’s shares of
actual cost of construction shall be added to COMCAST’s
and COMPANY’s cost for contract administration by City,
including costs of inspections performed by CITY.
030804 syn 0072218