HomeMy WebLinkAboutC-7572-2 - Agreement for Replacement of Overhead with Underground Communication FacilitiesZ
(Ni 3939 East Coronado, 2nd Floor a t M
Anaheim, California 92807
AGREEMENT FOR REPLACEMENT OF OVERHEAD WITH
U UNDERGROUND COMMUNICATION FACILITIES
THIS AGREEMENT ("Agreement") is between the City of Newport Beach, a California municipal
corporation and charter city ("Newport Beach"), and Pacific Bell Telephone Company dba AT&T
California ("Pacific"), collectively the "Parties". This Agreement is made and entered into as of this 20th
day of November, 2019
I. DEFINITIONS.
As used in this Agreement, the following
A. The term "Underground Supporting Structure" ("USS") includes, but is not limited to
conduit, bore casings and manholes.
B. The term "District" refers to the area generally bounded by Balboa Boulevard, from West
Coast Highway to 22nd Street, including Court Street between 21 st and 20th Streets, created
by Resolution Number 2016-41 in the City of Newport Beach, dated March 22, 2016, in
accordance with Chapter 15.32 of the City of Newport Beach Municipal Code ("NBMC"),
where the undergrounding of existing aerial facilities is to take place. Pacific's Job
Number is LE(19)AOFR6S.
C. The term "Project" means all of the work required to underground Pacific's existing aerial
facilities within the District.
D. The terms "Trench" or "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.
E. The term "Tariff' refers to Schedule Cal. P.U.C., No. A2, Rule 32.
F. The term `Environmental Laws" refers to any applicable local, state or federal
environmental laws, including but not limited to: the California Environmental Quality
Act, the California Coastal Act, the California Land Conservation Act, the Comprehensive
Environmental Response Compensation and Liability Act, and the Resource Conservation
Recovery Act.
G. The term "Hazardous Substance" refers to any substances, materials and wastes which are
or become regulated under applicable local, state or federal law, or the United States
government, or which are classified as hazardous or toxic under federal, state, or local laws
or regulations.
H. The term "CPUC" refers to the California Public Utilities Commission.
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 1 of 9
II. RECITALS.
A. Newport Beach has asked Pacific to replace its existing aerial communication facilities
with underground communication facilities and perform other work upon its facilities
within the District.
B. To facilitate this request, Newport Beach has agreed to construct the necessary Trenching
and place the USS required to relocate Pacific's facilities within the District. (as referenced
in Section III.Bl.b).
C. In contemplation of this Agreement, Newport Beach has made arrangements for the
concurrent removal of all electric and communication aerial distribution facilities within
the District.
D. Pacific is willing to accept Newport Beach's request, subject to the terms and conditions of
this Agreement.
In consideration of the above, the Parties mutually agree as follows:
III. SPECIFIC PROVISIONS.
A. Tariff. This Project shall be conducted in accordance with the Tariff.
B. Work to be Performed by Newport Beach.
I . Newport Beach, at its own expense, shall prepare all documents necessary to
coordinate and implement Project plans within the District. The documents shall
include, but not be limited to:
a. Project Plans and Specifications. Project plans and specifications as
provided by Pacific shall be included in Newport Beach's Balboa
Boulevard Undergrounding Utility District No. 22a.
b. Delineation of the USS. Project documents based on Pacific Bell plans and
specifications shall delineate all USS to be constructed and installed within
the District. Newport Beach will be responsible for Trenching and the
construction and installation of the necessary USS along the public way and
utility rights of way within the District (identified on the Project plans and
specifications referenced in Section III B. La. above). Newport Beach shall
ensure that all necessary permits are obtained for the excavation work.
C. Bid Package. Newport Beach shall prepare a bid package covering
Trenching and the construction and installation of the USS.
d. Contract. Newport Beach shall prepare and execute a contract
("Contract") with an independent contractor for Trenching and the
construction and installation of USS. The terms and conditions of the
Contract shall oblige the independent contractor to furnish all materials and
adhere to Project plans and specifications (unless Pacific's Regional
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 2 of 9
Manager - Engineering gives prior written consent to a deviation). Newport
Beach shall have full supervision of and control over the independent
contractor's Trenching and the construction and installation of the USS.
However, Pacific shall be given the opportunity to inspect the construction
and installation of the USS and to coordinate with Newport Beach to ensure
that the construction and installation of the USS are completed in
accordance with Project plans and specifications. Newport Beach shall
ensure that the cost of any repairs, replacement or relocation of Pacific's
damaged facilities caused by Newport Beach's contractor will be paid to
Pacific during the duration of the Project unless Pacific authorizes in
writing for Newport Beach's contractor to perform the repairs.
Time Schedule. Newport Beach shall provide Pacific with a construction
time schedule for the Project. Newport Beach shall notify Pacific's Subway
Inspector at 714-669-2226 no later than five (5) working days prior to the
start of conduit placement.
f. Environmental Impact Report.
Newport Beach, at no cost to Pacific, shall comply with all
applicable Environmental Laws pertaining to the Project, and
prepare all environmental impact reports which may be required by
any State or federal agency having jurisdiction under Environmental
Laws.
ii. Newport Beach shall provide Pacific with a copy of all
environmental impact reports or soil tests prepared in connection
with the Project, and disclose all information concerning Hazardous
Waste within the District.
C. Work to be Performed by Pacific.
1. Pacific shall procure and install all materials in connection with its utility facilities,
but not the Trenching and construction and installation for the USS for which
Newport Beach is responsible and provide all engineering work related to the
relocation of Pacific's facilities.
2. Pacific shall inspect and approve the USS, constructed by Newport Beach, prior to
the transfer of ownership of the USS. Upon acceptance of the USS by Pacific
(acceptance form attached hereto as Exhibit B), Pacific will be responsible for all
further modifications and/or maintenance of the USS.
3. Pacific shall replace its existing aerial communication facilities with underground
facilities, including all pedestals and/or interfaces, when:
a. Newport Beach has constructed and installed the USS in the public way and
utility rights of way;
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 3 of 9
b. Service to customers within the District has been provided by means of the
underground facilities;
C. Newport Beach's electric utility has removed its facilities from poles and
anchors jointly occupied by Pacific and Newport Beach electric utility; and
4. Pacific shall obtain, if required, CPUC Permits.
5. Pacific shall secure necessary State Highway Crossing Agreements.
D. Payment.
Pacific's costs for the Project are estimated to be $147,042.52, which includes the
estimated cost for the sole trench portion of the project of 143 feet. (Exhibit A).
2. Pacific will pay Newport Beach in advance, a deposit of 50% of the estimated cost,
$73,521.26, of the project. Upon completion of the USS by Newport Beach and
acceptance by Pacific, Pacific will pay to Newport Beach the balance of Pacific's
share of the actual costs for the Project. Pacific's total share of the actual cost
for the project is not to exceed $147,042.52 without Pacific's prior written
approval. Newport Beach will issue to Pacific an itemized invoice for the balance
due upon completion of the project. A check for the balance due will be issued by
Pacific to Newport Beach 45 days from the date of Newport Beach's itemized
invoice.
3. Pacific will place all cables, wires and complete all wrecking associated with the
Project at Pacific's expense.
4. Unless otherwise agreed to in writing, Pacific shall bear the entire cost of all extra
work which is requested by and performed for Pacific, but is not required for the
Project. Unless otherwise agreed to in writing, if Newport Beach requests extra
work that is not required for the Project, Newport Beach shall bear the entire cost
of that extra work.
5. Pacific shall be credited with any savings resulting from the omission of Project
work falling within its realm of responsibility.
On a monthly basis, Newport Beach will send to Pacific an itemized statement
detailing the total footage of conduit placed.
E. Licenses and Easements. Newport Beach shall grant to Pacific any and all licenses, Joint
Use Agreements, easements, and access rights which are necessary to accommodate the
Project. Pacific shall not relocate its aerial facilities until the applicable replacement right
for each relocation has been executed and/or committed to in writing and presented to
Pacific.
F. Schedule of Work. Pacific shall have its facilities relocated and in operation contingent
upon mutually acceptable schedules, timely obtaining of permits, licenses and other
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 4 of 9
documents, and not being delayed by those uncontrollable forces described in Section III.G
of this Agreement. Completion date is subject to Pacific's obtaining receipt of a signed
Agreement from Newport Beach by December 201h, 2019
G. Project Delays. Neither Pacific nor Newport Beach shall be responsible for any delays in
completing the Project due to Acts of God, the presence of historical artifacts or Hazardous
Substances on, in, or near the District, or any other causes beyond Pacific's or Newport
Beach's control.
H. Liens. Newport Beach, 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 Newport Beach, its agents or contractors. Newport Beach agrees
to defend, indemnify and hold Pacific harmless from and against any such liens, claims, or
actions, together with costs of suit, and reasonable attorneys' fees incurred by Pacific in
connection with any such claim or action. In the event a lien is recorded against the USS
and it is not removed off record within ten (10) days after notice is given by Pacific to
Newport Beach to do so, Pacific shall have the right to pay and discharge the lien without
regard to whether the lien shall be lawful, valid or correct. Newport Beach shall, within
thirty (30) days after written notice from Pacific, reimburse Pacific for any such claim paid
by it.
I. Damage to Facilities. Newport Beach, its employees, agents or contractors shall exercise
special precaution and care to avoid causing damage to Pacific's facilities in performing
work under the Project. Newport Beach shall assume responsibility for any and all losses,
costs or expenses arising out of, caused by, or in any way connected with such damages,
including consequential damages. Newport Beach shall immediately report the occurrence
of any such damage to Pacific. Newport Beach shall, on demand, reimburse Pacific for the
actual costs incurred in replacing or repairing the damage.
J. Title. Upon the completion of construction to Pacific's satisfaction in accordance with the
plans and specifications and acceptance by Pacific's Inspector, title to the USS and any
associated communications facilities placed by or for Pacific, shall vest in Pacific,
provided that such is free of all liens and encumbrances, and this Agreement shall be
deemed as a bill of sale. Acceptance of the USS shall be complete upon execution of a
document in the form of the attached Exhibit B by Pacific's Inspector.
K. Performance. If Newport Beach should default in the performance of any work which it
is obligated to perform under this Agreement within the time allowed for such work,
Pacific may, by separate joint written agreement with Newport Beach, perform the work at
Newport Beach's sole risk and expense; and Newport Beach shall pay to Pacific upon
demand Pacific's actual costs for performing the work.
L. Tax Liability. Newport Beach agrees to pay, and to hold Pacific harmless from and
against, all penalties, interest, taxes or other charges that may be levied or assessed against
Newport Beach as a result of this Agreement, as required by law, rule, regulation, or the
Tariff.
M. Warranty.
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 5 of 9
I . Newport Beach shall require Newport Beach's contractor for the Project to warrant
that 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; and
d. are free of defects causing caving or sinking of Trenches, paving or other
materials, for a period of one (1) year following acceptance of the USS.
2. All work and materials shall be performed by qualified personnel promptly and
with diligence, to Pacific's reasonable satisfaction, and that work and materials
shall also be subject to all statutory and express or implied warranties. This
warranty shall survive inspection, acceptance, termination and payment.
N. Insurance. Without in any way limiting Newport Beach's indemnification obligations as
set forth in this Agreement, Newport Beach shall require its contractor for the Project to
maintain Comprehensive General Liability (Bodily Injury and Property Damage) Insurance
including the following supplementary coverages:
1. Contractual Liability to cover liability assumed under this Agreement;
2. Personal Injury Liability with the "employee" and "contractual" exclusions deleted,
and
3. Product and Completed Operations Liability Insurance.
The limits of liability for the insurance required above shall not be less than two million
dollars ($2,000,000) combined single limit per occurrence. Pacific shall be named as an
additional insured with regard to the above insurance coverage. If requested by Pacific at
any time, Newport Beach shall provide Pacific with verification by a properly qualified
representative of the insurer that Newport Beach's contractor's insurance complies with
this section.
IV. GENERAL PROVISIONS.
A. Assignment. Newport Beach shall not wholly or partially assign this Agreement without
the prior written consent of Pacific. This Agreement shall be for the benefit of and is
binding upon the respective successors and assigns of the Parties.
B. Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement,
the prevailing Party shall not be entitled to attorney's fees.
C. Entire Agreement.
1. This Agreement and the attached Exhibits, are incorporated herein and constitute
the entire Agreement between the Parties with respect to the subject matter. All
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 6 of 9
prior agreements, representations, statements, negotiations and understandings are
superseded.
2. Notwithstanding the foregoing, the Parties do not waive and specifically reserve
any all rights each Party may have to contest responsibility for paying the cost of
relocating and undergrounding Pacific's facilities as set forth in this Agreement
subject to final determination from the CPUC of Pacific's legal and financial
obligations to underground its facilities, and any appeal thereof at the CPUC, and
that no provision of this Agreement prejudices the right of either Party with respect
to such final determination.
D. Indemnity.
Newport Beach shall indemnify, defend and hold harmless Pacific and its officers,
agents and employees, as well as its associated and affiliated companies and their
respective officers, agents, and employees ("Idemnitees"), from any losses or
liabilities incurred as a result of any injury or death to any persons(s) or damage to
any property(ies) arising out of or in connection with the materials used or the work
to be performed by Newport Beach under this Agreement, except where such
injury, death or damage is caused by the sole negligence or willful misconduct of
Indemnitees. Upon the request of Pacific, Newport Beach shall at no cost or
expense to Pacific, defend any suit or legal proceeding asserting a claim for losses
or liabilities, to the extent that any such suit or legal proceeding claims a loss
covered by the terms of this indemnification provision.
2. Pacific shall indemnify, defend and hold harmless Newport Beach, its elected and
appointed officers, officials, agents, employees, volunteers, and any person or
entity owning or otherwise in legal control of the property upon which Newport
Beach performs the Project contemplated by this Agreement ("Idemnitees"), from
any losses or liabilities incurred as a result of any injury or death to any persons(s)
or damage to any property(ies) arising out of or in connection with the work to be
performed by Pacific under this Agreement, except where such injury, death or
damage is caused by the sole negligence or willful misconduct of Indemnitees.
Upon the request of Newport Beach, Pacific shall at no cost or expense to Newport
Beach, defend any suit or legal proceeding asserting a claim for losses or liabilities,
to the extent that any such suit or legal proceeding claims a loss covered by the
terms of this indemnification provision.
E. Independent Contractor. Newport Beach, 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 Pacific.
F. Jurisdiction. This Agreement is subject to the applicable rules, regulations and tariffs on
file with the CPUC and is also subject to changes or modifications as the CPUC may order.
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 7 of 9
G. Notices. All notices or other communications hereunder are deemed given when made in
writing and either:
1. delivered in person;
2. delivered to an agent, such as an overnight or similar delivery service; or
3. deposited in the United States mail, postage prepaid and addressed as follows:
To: City of Newport Beach
Public Works Department
Attention: Public Works Director
100 Civic Center Drive
Newport Beach, CA 92660
To: Pacific Bell Telephone Company
3939 E. Coronado St., 2nd Flr
Anaheim, CA 92807
Attention: David Bell, Manager
H. Non -Discrimination. Newport Beach shall comply with all federal laws and associated
regulations which are now in force or as may be amended in the future, which are attached
hereto as Exhibit C. As used in Exhibit C, "Contractor" means Newport Beach.
I. Term. This Agreement is effective upon execution and shall continue in effect until
completion of the Project, termination or cancellation, as provided by law or this
Agreement.
J. Termination. This Agreement automatically terminates upon completion of the Project.
In the event of any material default or breach of this Agreement by Newport Beach or
Pacific, in addition to all other rights and remedies which the non -defaulting or non -
breaching party may have at law or in equity, the non -defaulting or non -breaching party
shall have the immediate right to terminate this Agreement by giving thirty (30) days prior
written notice of termination. The notice shall specify the cause of termination and shall
give the party in default or breach of the Agreement a reasonable opportunity to cure and
correct any such cause. In the event this Agreement is terminated or suspended as
provided herein, non -defaulting or non -breaching party shall not be liable to the party in
default or breach of the Agreement or any other person or entity for any losses, damages or
claims which may arise as a result of termination. The party in default or breach of the
Agreement shall pay to the non -defaulting or non -breaching party any costs or expenses
incurred by the non -defaulting or non -breaching party prior to termination of this
Agreement. Any termination of this Agreement in whole or in part shall not release the
party in default or breach of the Agreement from any liability or obligation under this
Agreement, whether for indemnity or otherwise, which may have accrued or which may be
accruing or which arises out of any claim that may have accrued or may be accruing at the
time of termination.
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 8 of 9
K. Waiver and Amendment. The provisions of this Agreement shall not be waived, altered,
or amended by any representations or promises of either Party unless consented to in
writing by both Parties.
The duly authorized representatives of the Newport Beach and Pacific have executed this Agreement by
affixing their signatures on the dates indicated below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: (),/13 /�J.
By:
Aaron C. Harp
City Attorney
ATTEST:
Date: /�.��,l�
rNV6�-��
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 12-
By:
2
By:
Gra96)<. Leung
Cit anager
PACIFIC BELL TELEPHONE COMPANY dba
AT&T CALIFORNIA
Date: 1 I 12,11
By:
Davi Bell
Area Manager, Engineering
Agreement for Replacement of Overhead
with Underground Electrical Facilities
Between Pacific Bell and the City of Newport Beach
Page 9 of 9
Exhibit A
Newport
W UUd-
_ - -
Description
Unit
My
Unit Price
Line Total
tem
17,343.33 $
1
J
Joint Trench - Edison, Spectrum, AT&T
LF
473
$ 110.00
$ 52,030.00
2
J
Joint Trench - Edison, Spectrum
LF
829
$ 110.00
$ 91,190.00
3
J
Joint Trench -Spectrum, ATT&T
LF
44
$ 110.00
$ 4,840.00
4
E
SCE Only Trench
LF
1,577
$ 100.00
$ 157,700.00
5
A
AT&T Trench Only
LF
143
$ 80.00
$ 11,440.00
6S
0
Spectrum Trench Only
LF
190
$ 70.00
$ 13,300.00
7
E
SCE 5" DB100
LF
1,914
$ 6.00
$ 11,484.00
8
E
SCE 4" DB100
LF
234
$ 6.00
$ 1,404.00
9
E
SCE 3" Sch 40
LF
3,882
$ 5.00
$ 19,410.00
10
E
SCE 7X18X8 Vault
EA
5
$ 86,500.00
$ 432,500.00
11
E
SCE 7X12X8 Vauit
EA
2
$ 60,500.00
$ 121,000.00
12
E
SCE 17"x30"x24" Traffic Pull Box
EA
17
$ 2,500.00
$ 42,500.00
13
E
SCE Concrete Pad
EA
1
$ 4,830.00
$ 4,830.00
14
A
AT&T 4" Sch 40
LF
1,310
$ 5.50
$ 7,205.00
15
A
AT&T 2" Sch 40
LF
297
$ 2.90
$ 861.30
16
A
AT&T 4'5"x8'5"x6'5" Manhole
$ -
$ -
17
A
AT&T 2'x3'xV Traffic Pull Box
EA
7
$ 3,480.00
$ 24,360.00
18
5
Spectrum 3" Sch 40
LF
7,919
$ 5.00
$ 39,595.00
195
Spectrum 1" Sch 40
LF
434
$ 2.40
$ 1,041.60
20S
Spectrum 2'x3' Pull Box
EA
5
$ 3,480.00
$ 17,400.00
215
Spectrum 17"x30" Pull Box
EA
28
$ 2,100.00
$ 58,800.00
22
J
Asphalt Restoration
LF
7,317
$ 11.20
$ 81,950.40
23
J
Mobilization
LS
1
$ 146,867.21
$ 146,867.21
24
J
De -Watering
LS
1
$ 350,000.00
$ 350,000.00
25IJ
Traffic Control
LS
1
$ 50,ODO.00
$ 50,000.00
26IJ
I
Survey Allowance
L
I
$ 60,ODO.00
$ 60,000.00
onfidential
Total: $ 1,801,708.51
4/1/2019
440A
440A
120A
Edison I
spectrum I
ATT
$ 17,343.33 $
17,343.33 $
17,343.33
$ 45,595.00 $
45,595.00
0
0 $
2,420.00 $
2,420.00
157,700.00
0
0
0
0 $
11,440.00
0 $
1:3,300.00
0
$ 11,484.00
0
0
$ 1,404.00
0
0
$ 19,410.00
0
0
$ 432,500.00
0
0
$ 121,000.00
0
0
$ 42,500.00
0
0
$ 4,830.00
0
0
0
0 $
7,205.00
0
0 $
861.30
0
0 $
0
0 $
24,360.00
0 $
39,595.00
0
0 $
1,041.60
0
0 $
17,400.00
0
0 $
58,800.00
0
$ 36,013.28 $
36,01.3.28 $
9,923.85
$ 64,541.11 $
64,541.11 $
17,784.99
$ 153,808.24 $
153,808.24 $
42,383.51
$ 21,972.61 $
21,972.61 $
6,054.79
$ 26,367.13 $
26,367.13 $
7,265.75
$ 1,156,468.70 $
498,197.30 $
147,042.52
AD UUD-PHI - Balboa from PCH to 36t ®
EDISON PLAPaS
Trench
SCE Only F
SCE and Spectrum LF
SCE + Spectrum 4' ATT LF
Spectrum Only LF
ATT +Spectrum LF
ATT Only LF
ATT PLANS
LF
Spectrum Plans
-LF
Total
% of Total Tre % of Joint Tre Total LF Sheet 2 of 9 Sheet 3 of 9 Sheet 4 of 9 Sheet 5 of 9 Sheet 6 of 9 Sheet 7 of 9 Sheet 8 of 9 Sheet 9 of 9
49% 44910 1,577 706 453 159 46 20 163 0 30
15, 829 290 118 135 0 104 95 0 87
15% 473 59 126 37 67 73 111 0 0
6% 44°% 190 190
1% 44 44
O% 12% 0
Totals By Sheet 1055 887 331 157 197 369 0 117
4% 143
0% Note: Spectrums mainline on Balboa is being constructed by Cable Corr, j2,83O LF)
100% 3,256
Exhibit B
November 201h, 2019
City of Newport Beach
Public Works Department
100 Civic Center Drive
Newport Beach, CA 92660
Attention: David A. Webb, Public Works Director
Job Reference: Underground Utility District No. 22a, Balboa Boulevard between West Coast Highway and
22nd Street, including Court Street between 21St and 201h Streets
Pacific Bell Job No. LE(19)AOOFR6S
Gentlemen:
This Letter of Acceptance provides written notice that the Underground Supporting Structure
("USS") relating to the above -referenced project has been inspected and accepted by Pacific Bell's Inspector.
Pursuant to Section III(J) of the Agreement for Replacement of Overhead with Underground
Communication Facilities between the City of Newport Beach ("Newport Beach") and Pacific Bell Telephone
Company dba AT&T California ("Pacific") dated and duly executed below by Pacific's authorized
representative, this letter shall be deemed as a "Bill of Sale" thereby transferring ownership of the USS (as defined
in said agreement) to Pacific, free and clear of any and all liens, claims and encumbrances.
ACCEPTED BY:
CHRIS CASTANEDA
PACIFIC SUBWAY INSPECTOR
DATE:
Exhibit C
Executive Orders and Associated Regulations
Pacific Bell and Nevada Bell, 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 st of March, complete and accurate
reports on Standard Form 100 (EEO -1) or such forms as may be promulgated in its place as
required by 41 C.F.R. § 60-1.7.
5. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE
VIETNAM ERA.
In accordance with Executive Order 11701, dated January 24, 1973, and 41 C.F.R. 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
concern 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 subcontracting
plan, which shall be included in and made a part of this contract. The parties incorporate herein by
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, and
the Trust Territory of the Pacific Islands, or (b) a personal services contract is contemplate:
(a) "Woman -owned small businesses," as used in this clause, means businesses that
are at least 51 percent owned by women who are United States citizens and who also control and
operate the business.
"Control," as used in this clause, means exercising the power to make policy
decisions.
"Operate," as used in this clause, means being actively involved in the day-to-day
management of the business.
(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 period 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.