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HomeMy WebLinkAboutAGENDA REPORT 1997 1217 CC REG ITEM 10NITEM LO-A 0 AGENDA REPORT C = TY OF MOORPARK TO: The Honorable City Council FROM: Kenneth C. Gilbert, Director of Public Works (d DATE: December 10, 1997 (CC Meeting: 12- 17 -97) SUBJECT: Consider Approval of a Build Over Agreement Between the City and Pacific Bell Company Required by the Spring Road Bridge Reconstruction Project DISCUSSION The Spring Road Bridge reconstruction project will require placement of certain bridge foundation structures over and /or across certain existing facilities owned by the Pacific Bell Telephone Company. Pacific Bell has requested that an Agreement (copy of draft attached) be executed between them and the City relative to this work. City staff and /or the City Engineer's Office is in discussions with Pacific Bell regarding possible changes to certain provision of the draft agreement provided to the City. It is proposed that the final language of the agreement be subject to the review by the City Attorney and approval of the City Manager. RECOMMENDATION Staff recommends that City Council authorize the City Manager to execute the subject "Build Over" Agreement between the City and Pacific Bell, subject to final language approval by the City Attorney and the City Manager. CITY OF MOORPARK, CALIFORNIA City Council Meetir_ A, .•JLV• _. _... WM spgbrg_t 000 411740 q9 -,, -2 14709 Vanowen Street, Boom 218 Van Nuys, California 91405 December 1, 1997 City of Moorpark Dept. of Public Works 799 Moorpark Avenue Moorpark, CA 93021 Attention: Mr. Kenneth C. Gilbert, Director Regarding: Spring Road Bridge Dear Mr. Gilbert: PACIFIC�BELLm A Pacific Telesis Company I understand that the plans for the bridge over the Arroyo Simi are being redesigned to place the footings over the existing Pacific Bell facilities. Before this work can begin, the enclosed Build Over Agreement must be executed by both Pacific Bell and the City of Moorpark. Please review the document carefully. If you approve, please have the original signed and have all signatures acknowledged by a Notary Public. The signed document can be returned to me in the envelope provided. I will have the Agreement signed by Pacific Bell's representative and sent for recording. A copy of the recorded document will be forwarded to you. Your prompt attention to this matter will be greatly appreciated. Should you have any questions, please call me on (626) 578 -3697. Sincerely, i I • x Rick Rodriguez Right of Way Administrator EGR:egr enclosure DEC 0 3 1997 Ci y of Mworf ark Public Vlorks Department 60 71 BUILD OVER AGREEMENT RECORD AT THE REQUEST OF: PACIFIC BELL WHEN RECORDED RETURN TO: Pacific Bell 14709 Vanowen Street Room 218 Van Nuys, CA 91405 ATTN: RIGHT OF WAY DEPT. DOCUMENT CHECKED NO DOCUMENTARY TRANSFER TAX DUE. BY IF G.-P 1 � , PACIFIC BELL AGENT APPROVED, MGR. R/W CONSIDERATION AND VALUE LESS THAN $100 Moorpark Exchange BUILD OVER AGREEMENT THIS AGREEMENT, made and entered into this day of , 19 , by and between the CITY OF MOORPARK, hereinafter referred to as "City" and PACIFIC BELL, a California corporation, hereinafter referred to as "Pacific ". WITNESSTH WHEREAS, real property located in the City of Moorpark, County of Ventura, State of California, described as a portion of Tracts "F" and "M" of the Rancho Simi, recorded in Book 3 at Page 7 of Maps and a portion of Parcel 2 of the Parcel Map recorded in Book 11 at Page 44 of Parcel Maps, both in the Office of the County Recorder of said County, and WHEREAS, Pacific is the holder of permanent easements for underground communication facilities in and under said real property, which easements were recorded on November 1, 1976 in Book 4703 at Page 213 and on November 11, 1976 in Book 4709 at Page 894, respectively, of Official Records in the Office of the County Recorder of said County, and WHEREAS, Pacific is the owner of existing underground communication facilities, in said easements, which lie Northerly and parallel with the centerline of Spring Road, as it now exists, and WHEREAS, City desires to reconstruct a bridge across the Arroyo Simi, hereinafter referred to as "Improvement", in or on the real property described in said easements and over said communication facilities, and WHEREAS, construction of Improvement could endanger said communication facilities referred to above unless construction is carried out in strict conformance with provisions of this Agreement, and WHEREAS, Pacific is willing to permit construction of Improvement in or on the real property described in said easements and over said communication facilities which location is described above, upon execution of this Agreement by City. 000472- NOW, THEREFORE, the parties hereto, for and in consideration of the mutual covenants and agreements hereinafter contained and the performance thereof, do agree as follows: Pacific grants permission to City to construct, operate and maintain Improvement in or on the aforesaid easement and over the aforesaid communication facilities provided that the detailed plans of Improvement are first prepared by the City and approved by the Engineer of Pacific, and that Improvement is constructed in accordance with the approved plans therefore. Pacific shall not unreasonably withhold its approval of City's detailed plans for the Improvement. 2. Pacific makes no representation concerning the nature, type, condition or degree of compaction of the backfill. In the event the backfill within the easement or over the subject communication facilities is unstable or unusable for City's proposed use, or if City for any reason removes or treats the backfill or any part thereof, the total expense shall be borne by City. 3. City shall defend with counsel chosen by City and reasonably acceptable to indemnitee, indemnify and hold harmless Pacific, its officers, agents, directors, contractors, subcontractors, affiliates and employees, hereinafter collectively referred to as "Indemnitees ", from and against all claims, cost, cleanup costs, attorneys fees, liability, loss, or damage or expenditure of whatsoever kind and nature sustained or incurred by any Indemnitee or asserted against such Indemnitee by any third party by reason of the exercise of the rights provided by this Agreement, including but not limited to the construction, operation or maintenance of the Improvement, the expense of the defense of any action instituted to recover damages, losses or expenses, provided, however, that the foregoing indemnity shall not apply to any cost, liability, loss, or damage or expenditure of whatsoever kind sustained or incurred by Pacific by reason of Pacific's failure due to Pacific's negligence or willful misconduct, to properly maintain the communication facilities within the aforesaid location. 4. City hereby releases and waives any right to make or prosecute any claims, or demands or actions against Pacific, or any of its officers, employees, or agents for any cost, claim, cleanup cost, attorneys fees, liability, loss, damage or expenditure, including but not limited to any injury to or death of any person or damage to property that may arise out of the exercise of the rights provided by this Agreement, or the construction operation or maintenance of the Improvement, including but not limited to damages to or destruction of Improvement. This release and waiver shall not apply to the extent that such claim is caused by the negligent acts or omissions, willful misconduct or material breach of this Agreement by Pacific or any of its officers, employees or agents. City waives all rights it may have under Section 1542 of the California Civil Code, which states as follows: "A General Release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." City warrants and represents that it understands, comprehends and appreciates the meaning and significance of Section 1542, and that it has consulted legal counsel about this Agreement. 5. City hereby grants to Pacific, its agents, representatives, officers and employees right to ingress and egress to said easement including that portion occupied by Improvement authorized hereunder, for the purpose of operation, maintenance, repair, reconstruction or removal of Pacific's facilities or other lawful acts in or to said easement, provided, however, that, except in a emergency, Pacific shall give City reasonable, prior notice before or upon entering City's property and/or the Improvement for such purpose, shall reasonably cooperate with City in making any such entry for such purpose so as to minimize any disruption of the use of, and to avoid or minimize any damage to the Improvement. In the event of an emergency, however, City shall allow Pacific access to its facilities without prior notice. 6. The permission granted hereunder shall not relieve City or City's heirs, successors in interest or assigns from liability for assessments for city or county improvements at, in or about said easement and said communication facilities, which liability City would otherwise have had but for the execution by City of this Agreement. 2 000473 City shall encase the subject communication facilities in concrete in accordance with Pacific specifications. All excavation and encasement construction of the subject easement and communication facilities shall be performed in the presence of a Pacific inspector, if available. City shall give Pacific written notice of its intent to commence construction and an anticipated schedule for such construction at least two weeks prior to the start of construction, which notice shall set forth the date on which construction is to start, it being understood and agreed that a Pacific supervisor shall be entitled to be present during the course of such construction and, it being further understood and agreed the City shall be deemed to have discharged its obligation to have Pacific's supervisor present during such construction if such construction is performed in accordance with the schedule so supplied to Pacific. Notwithstanding the foregoing, Pacific agrees to use its diligent and reasonable efforts to cause its inspector or supervisor to be present at the site when and as requested by City provided the City has given Pacific not less than twenty-four (24) hours notice of such request. If City has given twenty-four (24) hours notice to Pacific for an inspector or supervisor to be present at the site by a specific scheduled time, and the inspector or supervisor fails to be present by the requested time, City has the authority to go forward with scheduled construction. 9. This agreement shall not in any way alter, modify or terminate any of Pacific's prior rights in said area 10. The parties hereto hereby agree that both the benefits and burdens created by this agreement shall touch and concern the land described in Pacific's easements, that this agreement shall be and constitute a covenant running with the land and shall be binding upon City's heirs, executors, administrators, successors in interest and assigns as their interest may appear, and this agreement shall be recorded by Pacific. 11. City represents and warrants that it has all necessary authority to enter into. and perform this agreement and that upon execution by the person(s) signing on its behalf it will be bound hereby. 12. This Agreement constitutes the entire agreement between the parties concerning the matters addressed herein and supersedes any prior negotiations or agreements, oral, written or implied. 3 x®04'74 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year hereinabove written. BY: CITY OF MOORPARK By: Title: Date: By: Title: Date: BY: PACIFIC BELL, a California corporation By: Title: Date: (All signatures hereto shall be notarized) 4 000475