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HomeMy WebLinkAbout83-116 - Transfer Ownership of Underground Utilities SystemRESOLUTION NO. 83 -116 • A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE MAYOR & CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY AND PACIFIC TELEPHONE TO TRANSFER OWNERSHIP OF THE UNDERGROUND UTILITIES SYSTEM IN TRACT 907 LIDO ISLE WHEREAS, vaults, conduits and related telephone equip- ment that service territory within the City known as "Lido Isle" and "Via Lido" are located within the boundaries of Tract No. 907 as per map recorded in Book 28, Pages 25 -36 inclusive, of miscel- laneous maps on file in the office of the County Recorder of Orange County, California; and WHEREAS, the City is considering the transfer, to Pacific Telephone ( "Pacific ") of its right, title and interest in and to the vaults, conduits and equipment; and WHEREAS, the parties believe that the City has certain rights, titles and interest in and to the underground vaults, conduits and systems which contain the telephone equipment that services the territory, and the parties believe that the vaults, conduits and equipment were constructed or installed by the City with funds derived from special assessments levied pursuant to the provisions of the Improvement Act of 1911; and WHEREAS, aside from its interest in ensuring that resi- dents of the territory continue to be serviced by Pacific, City receives no benefit from the ownership of the vaults, conduits or systems; and WHEREAS, it is in the best, interests of City to trans- fer, to Pacific, all of its right, title and interest in the • vaults, conduits and systems described above because City cannot economically and efficiently operate and maintain said systems, vaults and conduits; City would no :Longer be liable for injuries or property damage related to the existence of the vaults and conduits, and City would not be responsible for raising vaults to grade in the event of street resurfacing; and WHEREAS, the proposed transfer of the vaults, conduits and systems which contain the telephone equipment which services • the territory is contingent upon the continuing commitment of Pacific to maintain and operate the property and equipment for the purpose of providing telephone service; and WHEREAS, the City Council has determined that a call for bids will not result in competitive bidding because Pacific is the only potential bidder for the telephone facilities to be transferred; and WHEREAS, it is in the best interests of the parties and the residents of the territory that title to the vaults, conduits and systems be transferred to Pacific; and WHEREAS, the City Council has held a public hearing on November 14, 1983 for the purpose of receiving testimony from persons objecting to the proposed transfer and to receive such other evidence as may be relevant to its determination whether to transfer the property; and WHEREAS, the City Council, after considering all of the evidence presented, has determined that it is to the best interests of all concerned to transfer said property in accordance with the provisions contained in that "Agreement to Transfer Property," a copy of which is attached hereto as Exhibit "A ". NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby orders the transfer, to Pacific Telephone Company, of the vaults, conduits and electrical systems located within the boundaries of Tract No. 907, as per map recorded in Book 28, pages 25 through 26, inclusive, of miscel- laneous maps on file in the office of the County Recorder of the County of Orange, State of California. The vaults, conduits and related electrical equipment to be transferred, service the territory within the City of Newport Beach commonly known as Lido Isle and Via Lido, and the transfer would be conditioned upon the K commitment of Pacific Telephone Company to continue to maintain and operate the equipment for the purpose of providing telephone service to Lido • Isle and Via Lido. BE IT FURTHER RESOLVED that the Mayor and City Clerk be and hereby are authorized to execute all documents in connection with the transfer by City to Pacific of the property hereinbefore referenced. ADOPTED this 14th day of _ November , 1983. ATT T: JA // �e City Clerk RSP /Pacific 3 l AGREEMENT TO TRANSFER PROPERTY • THIS. AGREEMENT, made this __ day of , 1983, by and between THE CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation, hereinafter "City ", and the PACIFIC TELE- PHONE COMPANY, a Public Utility, hereinafter "Pacific ", is made with reference to the following facts, the materiality and exis- tence of which are stipulated and agreed by and between the parties hereto: A. Conduits and related telephone equipment that service territory within the City known as "Lido Isle" and "Via Lido" are located within the boundaries of Tract No. 907 as per map recorded in Book 28, Pages 25 -36 inclusive, of miscellaneous maps on file in the office of the County Recorder of Orange County, California, a reduced copy of which is attached hereto as Exhibit "A" (hereinafter "territory "); and B. The parties believe that the City has certain rights, titles and interest in and to the underground vaults, conduits and systems which contain the telephone equipment that services the territory; and C. Aside from its interest in ensuring that residents of the territory continue to be serviced by Pacific, City re- ceives no benefit from the ownership of the vaults, conduits or systems; and D. it is in the best interests of City to transfer, to Pacific, all of its right, title and interest in the vaults, conduits and systems described above because City cannot economi- cally and efficiently operate and maintain said systems, vaults and conduits; City would no longer be liable for injuries or property damage related to the existence of the vaults and con- 1 EXHIBIT A agrees to: (a) Indemnify, defend, and hold harmless, City, with respect to any claim, loss, damage or injury, which occurs subsequent to the date of this Agreement, and which is in any way related to the presence or existence of any of the vaults, con- duits, systems or other property transferred pursuant to the Deed which is attached as Exhibit "B ", provided, however, that the obligation of Pacific to indemnify and defend City shall not extend to claims, losses, damage or injury which arise solely • from the active negligence of the City or any of its employees, agents, officers or representatives; 2 5 duits, and City would not be responsible for raising vaults to grade in the event of street resurfacing; and • E. It is in the best interests of the parties and the residents of territory, that title to the vaults, conduits and systems be vested in Pacific. NOW, THEREFORE, the parties hereto agree as follows: 1. City will, by .quit claim deed, a copy of which is attached to this Agreement as Exhibit "B ", transfer all of its right, title and interest in and to the conduits, vaults and systems located beneath the surface of that territory and currently in use by Pacific. City does not warrant that it has any right, title or interest in and to the vaults, conduits and systems described above, nor does City warrant, that any interest transferred pursuant to this Agreement, or the Deed which is attached as Exhibit "B ", are free and clear from any liens, encumbrances or possessory rights of persons or entities not parties to this Agreement. 2. Pacific, in consideration of the transfer by City, agrees to: (a) Indemnify, defend, and hold harmless, City, with respect to any claim, loss, damage or injury, which occurs subsequent to the date of this Agreement, and which is in any way related to the presence or existence of any of the vaults, con- duits, systems or other property transferred pursuant to the Deed which is attached as Exhibit "B ", provided, however, that the obligation of Pacific to indemnify and defend City shall not extend to claims, losses, damage or injury which arise solely • from the active negligence of the City or any of its employees, agents, officers or representatives; 2 5 (b) Take all action necessary and appropriate to bring all vaults to grade in the event of the resurfacing of any • public street and to pay all costs and expenses associated with the work required to bring the vaults to grade; (c) To pay, now and in the future, all costs and expenses that may be required, or incurred, with respect to the relocation of any vault, conduit, or system if relocation is required by the City pursuant to a public improvement, a Public works project, or the exercise, by the City, of any of its police powers. 3. Except as provided in Paragraph 4, this Agreement may be terminated or amended only upon the written consent of each of the parties. 4. Pacific shall maintain all property transferred pursuant to this Agreement, and the Deed which is attached as Exhibit "B ", as a part of Pacific's system, and the property shall be used, operated, maintained and managed in accordance with the terms and conditions, and subject to the provisions of the Franchise Agreement between City and Pacific in effect as of the date of this Agreement. The obligation of Pacific to main- tain and operate the property for the purpose of providing tele- phone service shall continue until this Agreement is terminated. Any failure on the part of Pacific to operate or maintain the property for purpose of providing such service shall render the transfer of the property void and of no effect, and in the event of a failure to comply as provided herein, Pacific shall immediately reconvey to the City all of the property trans- ferred. 5. City hereby reserves the right to enter onto the property transferred pursuant to this Agreement if such entry is 3 9 required by, or appropriate to the exercise of its police powers. This right -of -entry shall include the right to install, • replace, enlarge, maintain, repair or operate any equipment or facilities, owned by the City of Newport Beach and located within any of the vaults, conduits or systems transferred pursuant to this Agreement or Exhibit "B ". 6. It is the intention of the parties that the City, in transferring its right, title and interest to the vaults, conduits and systems described above, is not conveying any right, title or interest in or to any street lighting conduits, wiring or other property, property right, or easement except to the extent that such property right or easement is currently being utilized by Pacific. 7. Pacific shall pay any and all taxes or assessments currently due with respect to the property transferred by this Agreement and Exhibit "B" and shall further be obligated to pay all taxes and assessments levied upon the property. Pacific further agrees to pay, and keep the property clear from, any and all encumbrances, charges and liens which may be levied against, or placed upon, the property transferred pursuant to this Agree- ment and Exhibit "B ". The rights and obligations created by this Agreement shall be binding upon the successors -in- interest and assigns, of the parties hereto. No assignment of the rights created by this Agreement shall be valid unless the party seeking the assignment shall first obtain, in writing, the consent of the other parties to • this Agreement. This instrument contains the entire Agreement between the parties relating to the rights granted and the obligations 9 7 created pursuant to this instrument. Any oral representations or modifications concerning this instrument shall be of no force and • effect, except insofar as such modifications are memoralized in a writing signed by the party to be charged. Executed by the parties hereto the day and year first above written. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney AGP /Pacific • WOW 9 CITY OF NEWPORT BEACH By: Mayor PACIFIC TELEPHONE COMPANY By: