CC SR 20171003 04 - SCE Street Light Acquisition AgreementRANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 10/03/2017
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration and possible action to execute the Purchase and Sale Agreement with
Southern California Edison (SCE) for the acquisition of SCE -owned street lights.
RECOMMENDED COUNCIL ACTION:
(1) Authorize the Mayor and City Clerk to execute the Purchase and Sale Agreement
with Southern California Edison (SCE) for the acquisition of the City's 1,799 LS -1
streetlights for an amount not -to -exceed $667,216 (acquisition and transaction
costs) and $57,838 (severance Costs), for a total authorized amount of
$724,054.
FISCAL IMPACT: The acquisition and conversion will save an estimated $138,242
per year. This savings could be used to fund the acquisition financing and maintenance
of the City's street light system. Staff is evaluating various financing options and will
bring a separate recommendation to the City Council while the sale and acquisition is
being considered by the California Public Utilities Commission (CPUC) should the City
Council decide to acquire the streetlights.
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Nicole Jules, Deputy Public Works Director
REVIEWED BY: Terry Rodrigue, Interim Public Works Director
APPROVED BY: Doug Willmore, City Manager,,"`�11
ATTACHED SUPPORTING DOCUMENTS:
A. Draft SCE Purchase and Sale Agreement (page A-1)
B. Final SCE Purchase and Sale Agreement (page B-1)
BACKGROUND AND DISCUSSION:
In September 2014, the City and SCE began discussions about the possibility of the
City acquiring SCE -owned streetlights. In May 2015, the City initiated the process of
acquiring SCE -owned lights by completing an audit of the City's street light inventory.
The audit concluded that of the 2,304 street lights within the City, SCE owns and
maintains 2,254 lights and the City owns and maintains 50 lights.
1
Following the City Council's approval to explore the streetlight purchase program, Staff
submitted the required $10,000 payment to SCE in July 2015, to conduct a valuation
study and determine the cost of purchasing all eligible streetlights.
In September 2016, SCE completed its valuation report and presented the findings to
Staff on October 19, 2016. The valuation report concluded that of the 2,304 street lights
in the city, 1,799 (78%) are sellable at a not -to -exceed price of $663,348 or
approximately $368.73 per pole. This valuation was determined using the Replacement
Cost New Less Depreciation (RCNLD) methodology which is the accepted approach to
valuation assessment for other streetlight transfers throughout SCE service territory.
Questions have been raised about SCE's methodology in determining the depreciated
value of the sellable street lights. In order to fully understand their process, the City
must request, in writing, a "Drill -Down" meeting with SCE. In this meeting, SCE will
provide all the details for each pole being purchased, including pole age, material,
wattage, etc. It is anticipated that this meeting will occur in the near future. Further,
while the CPUC approves the purchase, Staff will bring back to City Council a final
analysis of costs, operations and maintenance contract options, projected savings and
funding options. At that time, the City Council will have the opportunity to move forward
with the final purchase. If the City determines that an acceptable financing plan is not
possible the City has the option to withdraw from the agreement.
On August 15, 2017, Staff presented the Draft Purchase and Sale Agreement to the
City Council (Attachment A). Since that time, SCE has finalized the Agreement which is
included as an attachment to this report (Attachment B). There are very few differences
between the Draft Agreement and the Final Agreement. Those changes are identified
below:
• Exhibit D has been amended to include all existing Netcomm Installations.
The City has one year from the date that the valuation report was presented to the City,
meaning the City has until October 16, 2017, to complete and enter into the sales
agreement with SCE.
Should the City Council decide to move forward with acquiring the street lights from
SCE and approve the SCE Sales Term agreement, SCE will begin the acquisition
process with the California Public Utilities Commission (CPUC). SCE will then provide a
final valuation, accounting for the total number of streetlights eligible for purchase, and
verify the number of distribution poles and other streetlights that would remain under
SCE ownership. Once the valuation receives CPUC approval, the City will enter into the
transition phase with SCE. SCE will invoice the City at the end of the transition phase,
which is expected to take about four months after CPUC approval.
2
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative actions are available
for the City Council's consideration:
Elect not to move forward with the Purchase and Sale Agreement at this
time and forego participation in the SCE Streetlight purchase program.
Choosing this alternative would result in the City not obtaining ownership
of the eligible streetlights and not realizing the benefits, like ALPR and
camera placement, reduced utility rates and energy savings from
converting to future LED technology.
2. Provide staff with further direction.
9
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of , 2017 ("Effective Date"), by and between SOUTHERN
CALIFORNIA EDISON, a California corporation ("SCE"), and the City of Rancho Palos
Verdes, [a Municipal Corporation] ("Buyer"). SCE and Buyer are referred to herein
individually as a "Party," and together as "Parties".
RECITALS
A. SCE currently owns Two Thousand, Two Hundred and Eighty Six (2,286) LS -1 electric
streetlight facilities located in the City of Rancho Palos Verdes, of which, One
Thousand, Seven Hundred Ninety Nine (1,799) are to be purchased by Buyer.
B. Buyer has expressed a desire to purchase the Facilities (defined below) from SCE,
and SCE is willing to sell the Facilities to Buyer, on the terms and conditions set forth
in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the respective covenants and agreements
contained in this Agreement, SCE and Buyer each agree as follows:
1. DEFINITIONS. The following terms shall have the meanings ascribed to them
below for purposes of this Agreement.
"Agreement" has the meaning given in the first paragraph.
"Applicable Requirements" means all laws, statutes, ordinances, rules, regulations,
requirements or orders of any Governmental Authority now in force or that may later
be in force, and the terms and conditions of any permit, certificate, license or other
requirement.
"Bill of Sale" means a document setting forth the Purchase Price and Severance
Costs as well as any Taxes for which Buyer is responsible with respect to the Facilities
specified to be transferred to Buyer in each Phase (including Reconfigured Facilities
in the final Phase), which document shall be substantially in the form of Exhibit B
attached hereto.
"Business Day" means a day other than Saturday, Sunday or a day on which (i)
banks are legally closed for business in the State of California; or (ii) SCE is closed
for business.
"Buyer" has the meaning given in the preamble paragraph.
"CEQA" has the meaning given in Section 5.2.
Page 1 of 18
A-1
"Claims" has the meaning given in Section 7.1.
"Commencement" has the meaning given in Section 6.2.
"Commencement Date" has the meaning in Section 6.1.
"CPUC" means the California Public Utilities Commission, or its regulatory successor,
as applicable.
"CPUC Approval" means a final, unconditional and unappealable decision of the
CPUC under Section 851 of the Public Utilities Code (including exhaustion of all
administrative and judicial remedies or the running of time periods and statutes of
limitation for rehearing and judicial review without rehearing or judicial review being
sought) approving this Agreement and the transactions contemplated hereby on terms
and conditions acceptable to SCE and Buyer, in their good faith discretion, including
approval of SCE's proposed accounting and rate making treatment of the sale in
accordance with CPUC's decisions.
"CPUC Approval Date" means the date on which the CPUC Approval occurs.
"Effective Date" has the meaning given in the preamble paragraph.
"Environmental Requirements" means any applicable federal, state and local
statutes, regulations or ordinances now in force or that may later be in force relating
to the protection of human health or safety, or regulating or relating to industrial
hygiene or environmental conditions, or the protection of the environment, or pollution
or contamination of the air, soil, surface water or ground water, including federal, state
and local laws, requirements and regulations pertaining to reporting, licensing,
permitting, investigating and remediating emissions, discharges, releases or
threatened releases of such substances into air, surface water or land, or relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of such substances. Environmental Requirements include without
limitation: the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. 9601 et seg.); the Hazardous Materials Transportation Act (49 U.S.C.
5101 et seq.); and the Resource Conservation and Recovery Act (42 U.S.C. 6901 et
seq.)
"Excluded Taxes" means (a) taxes (other than any sales, use, gross receipts, or any
taxes in the nature of sales, use or gross receipts taxes) imposed on SCE that are
capital gains taxes, minimum or alternative minimum taxes, accumulated earnings
taxes, franchise taxes or taxes on or measured by gross or net income, capital or net
worth of SCE; and (b) personal property taxes to the extent the payment is addressed
in Section 3.3(b), and is not required to be reimbursed to SCE by Buyer.
"Facilities" has the meaning given in Section 2.2 and further described in Exhibit A.
Page 2 of 18
A-2
"Governmental Authority" means any federal, state, local or other governmental,
regulatory or administrative agency, commission, department, board, subdivision,
court, tribunal, or other governmental arbitrator, arbitral body or other authority, but
excluding Buyer.
"Hazardous Substances" means any hazardous or toxic material or waste, which is
or becomes regulated by Environmental Requirement. Without limiting the generality
of the foregoing, Hazardous Substances includes any material or substance: (a) now
or hereafter defined as a "hazardous substance, " "hazardous waste," "hazardous
material," " extremely hazardous waste," " restricted hazardous waste" or "toxic
substance" or words of similar import under any applicable Environmental
Requirements; or (b) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, and is now or hereafter
regulated as Hazardous Substance by the United States, the State of California, any
local governmental authority or any political subdivision thereof, or which cause or are
listed by the State of California as being known to the State of California to cause,
cancer or reproductive toxicity; or (c) the presence of which poses or threatens to pose
a hazard to the health or safety of persons or the environment; or (d) which contains
gasoline, diesel fuel or other petroleum hydrocarbons; or (e) which contains lead-
based paint or other lead contamination, polychlorinated biphenyls ("PCBs"), or
asbestos or asbestos -containing materials or urea formaldehyde foam insulation; or
(f) which contains radon gas; or (g) fuel or chemical storage tanks, energized electrical
conductors or equipment, or natural gas transmission or distribution pipelines; and (h)
other potentially hazardous substances, materials, products or conditions.
"Inventory, Planning and Inspection Activities" means the activities referenced in
Section 6.2(a) and set forth in Exhibit C to be performed by Buyer and SCE during
the Inventory, Planning and Inspection Period.
"Inventory, Planning and Inspection Period" has the meaning set forth in
Section 6.2(a). "
"Land" means the real property on which the Facilities are located, together with any
other real property that is encumbered by Land Rights.
"Land Rights" means the easements, leases, permits, franchise agreements or other
agreements that grant SCE the right to locate the Facilities on the Land and/or permit
access to the Facilities by SCE.
"Local Service Planning Office" means SCE's local service planning office located
at 505 Maple Ave, Torrance CA 90503.
"Phase" means the One (1) periods of five (5) months each, during which the Parties
will undertake certain activities as set forth in this Agreement with regard to the
Facilities identified in each such Phase. The Parties may mutually agree at any time
to change the Phase Commencement Date and/or the Phase Closing Date for any or
all Phases.
Page 3 of 18
A-3
"Phase Commencement Date" means the first day of each Phase.
"Phase Completion" means the completion of all activities for each Phase as set
forth in Sections 6.2 and 6_4 of this Agreement.
"Phase Closing Date" means the last day of each Phase on which the closing of the
purchase and sale of the Facilities in such Phase shall occur.
"Potential Environmental Hazards" means electric fields, magnetic fields,
electromagnetic fields, electromagnetic radiation, power frequency fields, and
extremely low frequency fields, however designated, and whether emitted by electric
transmission lines, other distribution equipment or otherwise.
"Purchase Price" has the meaning given in Section 3.1.
"Reconfigured Facilities" means any additional facilities the Parties identify during
the Inventory, Planning and Inspection Period of any Phase which serve purposes in
addition to street lighting, which the Parties agree that SCE will reconfigure to remove
such other (non -street light) uses, and which will be purchased by Buyer from SCE in
the final Phase. Buyer shall coordinate all activities relating to Reconfigured Facilities
with SCE's Local Service Planning Office.
"SCE Parties" means SCE, its affiliates, and each of their respective past, present
and future officers, directors, partners, employees, agents, representatives,
shareholders, attorneys, affiliates, parent and subsidiary corporations, divisions,
insurance carriers, heirs, legal representatives, beneficiaries, executors,
administrators, predecessors, transferees, successors and assigns.
"Severance Activities" means the activities referenced in Section 6.2(a) and set forth
in Exhibit C to be performed by SCE and Buyer during each Phase (after the
applicable Inventory, Planning and Inspection Period expires) with respect to the
Facilities to be transferred from SCE to Buyer in such Phase.
"Severance Costs" has the meaning in Section 3.2.
"Tax Claim" has the meaning given in Section 3.3(e).
"Taxes" mean all federal, state, local or foreign income, ad valorem, gross receipts,
license, payroll, employment, excise, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property including assessments,
special assessments, special district assessments, escape assessments, benefit
assessments and maintenance assessments, fees or other charges or surcharges of
any nature based on the use or ownership of real property, personal property, sales,
use, documentary transfer, registration, value added, alternative and add-on
minimum, estimated taxes, and all other taxes of any kind whatsoever, including all
Page 4 of 18
MA
interest, penalties, fines and additions thereto, whether disputed or not, including all
items for which liability arises as a transferee or successor -in -interest.
2. PURCHASE AND SALES OF FACILITIES.
2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, SCE
agrees to sell, convey, assign, transfer and deliver to Buyer, and Buyer agrees to
purchase and acquire from SCE, all of SCE's right, title and interest in the Facilities.
2.2 Description of Facilities. The "Facilities" consist of One Thousand Seven
Hundred and Ninety Nine (1,799) electric streetlight facilities owned by SCE and
located within the Buyer's service territory. A detailed description and listing of the
Facilities to be purchased and sold is provided in Exhibit A. The Parties believe
that Exhibit A contains a reasonably accurate inventory and map of the LS -1
streetlight facilities owned by SCE within the Buyer's service territory that are
considered for sale.
2.3 Termination. Buyer may terminate this Agreement with or without cause until the
date it provides notice to SCE that it has obtained financing.
3. PURCHASE PRICE AND OTHER COSTS.
3.1 Purchase Price. Subject to adjustment as provided in this Section 3.1, the total
purchase price for all Facilities described in Exhibit A ("Purchase Price") is Six
Hundred Sixty Seven Thousand, Two Hundred and Sixteen Dollars ($667,216).
(a) Prior to the final Phase Closing Date, the Parties shall mutually agree on
the Purchase Price, Severance Costs and any additional costs for any
Reconfigured Facilities transferred to Buyer in the final Phase in accordance with
Section 6.2(b).
(b) If, within thirty (30) days after the Phase Closing Date for the final Phase,
the Parties determine that the number of Facilities that have been transferred to
Buyer pursuant to this Agreement does not equal [insert # of Facilities the first
Recital of the Agreement says are to be transferred] then, within sixty (60) days
after the Phase Closing Date for the final Phase, the Parties will amend the Bill of
Sale for the final Phase to increase or decrease the Purchase Price, as
appropriate, using the dollar amount of SCE's average price for each type of
streetlight facility in the Buyer's municipality (concrete poles will be valued at SCE's
average price for concrete poles, steel poles will be valued at SCE's average price
for steel poles, wood poles will be valued at SCE's average price for wood poles,
and fiberglass poles will be valued at SCE's average price for fiberglass poles).
3.2 Severance Costs. In addition to the Purchase Price, Buyer shall pay to SCE,
SCE's good faith estimate of the cost of SCE's Severance Activities with respect
to the Facilities, which SCE estimates to be a total amount of $57,838
Page 5 of 18
A-5
("Severance Costs"). The Severance Costs will be adjusted, either up or down,
to equal the actual cost of SCE's Severance Activities. At least 30 days prior to the
Commencement Date, SCE shall notify Buyer of the actual amount of the
Severance Costs which Buyer shall pay. However, notwithstanding any other
rights of buyer contained in this Agreement, Buyer shall have the right, within 10
Business Days of receipt of the actual Severance Costs amount, to provide notice
to SCE that it intends to terminate this Agreement. Buyer shall pay the Severance
Costs in One (1) equal installments, as invoiced by SCE in each Phase.
3.3 Taxes.
(a) Except for any Excluded Taxes for which Buyer will have no liability, Buyer
shall pay all Taxes arising in connection with the sale and transfer of the Facilities,
this Agreement or the transactions contemplated herein, or the receipt of the
Purchase Price or other amounts hereunder, which Taxes are levied or imposed
on or with respect to SCE, Buyer or all or any part of the Facilities or any use
thereof on or after the applicable Phase Closing Date.
(b) State and local personal property Taxes relating to the Facilities for the tax
year (ending June 30) will be prorated between Buyer and SCE on the following
basis: SCE is to be responsible for all such Taxes for the period up to the Phase
Closing Date for such Facilities; and Buyer is responsible for all such Taxes for the
period on and after the Phase Closing Date for such Facilities. All Taxes assessed
on an annual basis will be prorated on the assumption that an equal amount of
Taxes applies to each day of the year, regardless of how many payments are billed
or made, except that Buyer will bear all supplemental or other state and local
personal property Taxes which arise out of change in ownership of the Facilities.
In addition, Buyer acknowledges that the Facilities are assessed by the California
State Board of Equalization as of January 1 of each year, and, if the Phase Closing
Date occurs between January 1 and June 30, SCE must pay personal property
taxes arising out of the ownership of the Facilities for the subsequent fiscal year.
If the Phase Closing Date occurs between January 1 and June 30, Buyer will
deposit with SCE the full amount to pay personal property taxes for the tax year
beginning on July 1, in addition to the prorated amount of personal property taxes
for the current tax year (ending June 30), and SCE will pay the personal property
taxes for these tax years before they become delinquent; provided however, SCE
may pay such taxes in installments as permitted by law. If the personal property
tax amounts owing for the tax year beginning on July 1 are not available as of the
Phase Closing Date, then the amount due from Buyer to SCE for such tax year will
be estimated on the basis of the prior year's personal property taxes and such
amount will be subject to adjustment after the Phase Closing Date. If the Phase
Closing Date occurs between July 1 and December 31, Buyer will deposit with
SCE the prorated amount of personal property taxes for the tax year in which the
Phase Closing Date occurs and SCE will pay the personal property taxes for such
tax year before they become delinquent; provided however, SCE may pay such
taxes in installments as permitted by law.
Page 6 of 18
M
(c) SCE will be entitled to any refunds or credits of Taxes relating to the
Facilities that are allocable to the period prior to the Phase Closing Date. Buyer
will promptly notify and forward to SCE the amounts of any such refunds or credits
to SCE within five (5) Business Days after receipt thereof. Buyer will be entitled to
any refund or credit of Taxes relating to the Facilities that are allocable to the period
on and after the Phase Closing Date. SCE agrees to reasonably cooperate with
Buyer's efforts to obtain such refund or credit.
(d) After each Phase Closing Date, Buyer will notify SCE in writing, within five
(5) Business Days after Buyer's receipt of any correspondence, notice or other
communication from a taxing authority or any representative thereof, of any
pending or threatened tax audit, or any pending or threatened judicial or
administrative proceeding that involves Taxes relating to the Facilitates for the
period prior to the Phase Closing Date, and furnish SCE with copies of all
correspondence received from any taxing authority in connection with any audit or
information request with respect to any such Taxes relating to the Facilities for the
period prior to the Phase Closing Date.
(e) Notwithstanding any provision of this Agreement to the contrary, with
respect to any claim for refund, audit, examination, notice of deficiency or
assessment or any judicial or administrative proceeding that involves Taxes
relating to the Facilities for the period either entirely prior to the Phase Closing
Date or both prior to and after the Phase Closing Date (collectively, "Tax Claim"),
the Parties will reasonably cooperate with each other in contesting any Tax Claim,
including making available original books, records, documents and information for
inspection, copying and, if necessary, introduction as evidence to any such Tax
Claim contest and making employees available on a mutually convenient basis to
provide additional information or explanation of any material provided hereunder
with respect to such Tax Claim or to testify at proceedings relating to such Tax
Claim. SCE will control all proceedings taken in connection with any Tax Claim
that pertains entirely to the period prior to the Phase Closing Date, and SCE and
Buyer will jointly control all proceedings taken in connection with any Tax Claim
pertaining to the period both prior to and after the Phase Closing Date. The period
both prior to and after the Phase Closing Date shall be determined by the
applicable tax claim statute of limitations. Buyer has no right to settle or otherwise
compromise any Tax Claim which pertains entirely to the period prior to the Phase
Closing Date; and neither Party has the right to settle or otherwise compromise
any Tax Claim which pertains to the periods both prior to and after the Phase
Closing Date without the other Party's prior written consent.
(f) The obligations of the Parties pursuant to this Section 3.3 shall survive the
termination of this Agreement.
3.4 No Other Costs. SCE will impose no additional costs onto Buyer for the purchase
of the Facilities other than those articulated in this Article 3, including but not limited
Page 7 of 18
A-7
to any costs solely related to the transmission of power over electrical power lines
and Facilities. Buyer will be responsible for payment pursuant to the LS -2b Tariff,
or any successor Tariff.
4. CONDITIONS PRECEDENT
4.1 Conditions to Buyer's Obligations. Buyer's obligation under this Agreement to
purchase the Facilities is subject to the fulfillment or waiver of each of the following
conditions precedent:
(a) SCE shall have performed or complied in all material respects with all
covenants, agreements and conditions contained in this Agreement to be
performed or complied with by SCE at or prior to the Commencement Date and
each Phase Closing Date.
(b) No suit, action or other proceeding shall be pending before any court or
Governmental Authority which seeks to restrain or prohibit any of the transactions
contemplated by this Agreement or to obtain material damages or other material
relief in connection with this Agreement or the transactions contemplated hereby.
(c) Buyer's City Council shall have identified and approved a structured
financing plan to pay the Purchase Price and Severance Costs within sixty (60)
days following the CPUC Approval Date. The terms of a feasible financing shall
be determined solely by Buyer's City Council.
4.2 Conditions to SCE's Obligations SCE's obligation under this Agreement to sell
the Facilities to Buyer is subject to the fulfillment or waiver of each of the following
conditions precedent:
(a) Buyer shall have performed or complied in all material respects with all
covenants, agreements and conditions contained in this Agreement to be
performed by Buyer at or prior to the Commencement and each Phase Closing.
(b) No suit, action or other proceeding shall be pending before any court or
Governmental Authority which seeks to restrain or prohibit any of the transactions
contemplated by this Agreement or to obtain material damages or other material
relief in connection with this Agreement or the transactions contemplated hereby.
(c) Buyer shall have notified SCE that Buyer has identified and approved a
structured financing plan to pay the Purchase Price and Severance Costs within
sixty (60) days following the CPUC Approval Date.
4.3 CPUC Approval. The obligation of each Party to consummate the purchase and
the sale of the Facilities is conditioned upon obtaining CPUC Approval. SCE
agrees to make reasonable efforts to draft and file an application seeking CPUC
approval within ninety (90) days following the Effective Date of this Agreement.
Page 8 of 18
•
Buyer agrees to cooperate with SCE's efforts to obtain CPUC Approval, including
by promptly reviewing and commenting on the application for CPUC Approval.
Buyer acknowledges and agrees that SCE makes no representation or warranty
with respect to the likelihood of obtaining CPUC Approval, and Buyer hereby
waives all Claims against SCE that may arise as a result of the need for CPUC
Approval or SCE's failure to obtain CPUC Approval. The application seeking
CPUC Approval will request such approval within six months of the date the
application is filed. SCE makes no representations as to when or in what manner
the CPUC will act on the application.
4.4 Satisfaction or Waiver of Conditions Precedent. Buyer may waive in writing
any of the conditions precedent set forth in Section 4.1, and SCE may waive in
writing any of the conditions precedent set forth in Section 4.2. Neither Party shall
have the right to waive the condition precedent set forth in Section 4.3. Subject to
the foregoing, in the event that any of the conditions precedent set forth in Section
4.1 or Section 4.2 have not been satisfied or waived on or before the
Commencement Date or any Phase Closing Date (as the same may be extended),
then the Party whose obligations are subject to such condition precedent shall
have the right to rescind this Agreement ab initio upon written notice to the other
Party, and SCE and Buyer shall thereupon return to the other Party all
performances received from the other Party (except for the Severance Costs
actually paid), and each Party shall be released from all other obligations under
this Agreement, except those which expressly survive termination.
5. CONDITION OF FACILITIES AND LAND RIGHTS
5.1 Compliance with Applicable Requirements and Governmental Approvals.
Except for CPUC Approval, Buyer is solely responsible for complying, at Buyer's
sole expense, with all Applicable Requirements and obtaining all authorizations,
consents, licenses, permits and approvals of Governmental Authorities and third
persons in connection with the consummation of the transactions contemplated by
this Agreement and with Buyer's operation of the Facilities, whether as result of
the PCB content or otherwise. Without limiting the foregoing, Buyer is responsible
for any costs of complying with the California Environmental Quality Act ("CEQA"),
if and to the extent applicable to the sale and transfer of the Facilities, and
satisfying, at Buyer's sole expense, any and all mitigation measures under CEQA
that may apply to Buyer's acquisition or operation of the Facilities. Buyer shall
promptly notify SCE of any and all mitigation measures that may affect SCE. If
SCE determines in good faith that any such mitigation measures may adversely
affect SCE, SCE shall have the right without liability to Buyer to terminate this
Agreement upon written notice to Buyer. In the event of such termination, SCE
and Buyer shall each be released from all obligations under this Agreement, except
those that expressly survive termination. Buyer's obligations under this Section
5_1 shall survive the consummation of the transaction contemplated by this
Agreement.
Page 9 of 18
5.2 Disclosure Regarding Hazardous Substances. SCE hereby discloses to Buyer
that Potential Environmental Hazards and Hazardous Substances, including
PCBs, may be present at, in, on, under, about, contained in, or incorporated in the
Facilities. Buyer represents that it is purchasing the Facilities for Buyer's own use,
and not for resale (provided that Buyer contemplates that Buyer may transfer title
to the Facilities in connection with financing and/or refinancing of the Facilities). If
Buyer sells the Facilities, or any part thereof, it shall disclose, in writing, to all
potential Buyers, prior to the sale, that Potential Environmental Hazards and
Hazardous Substances, including PCBs, may be present at, in, on, under, about,
contained in, or incorporated in the Facilities, or portions thereof. Further, in the
event the Facilities (or any portion thereof) are sold, conveyed or transferred in any
manner to a person other than SCE, Buyer shall incorporate in the agreement
effectuating such transfer, language substantially in the same form as this
paragraph. Buyer's obligations under this Section 5.2 shall survive the termination
of this Agreement. Notwithstanding anything to the contrary set forth in this
Agreement, SCE approval shall not be required for any conveyance of the
Facilities, whether or not such conveyance is made in connection with a financing
or refinancing of the Facilities or any part thereof.
SCE further discloses the following PROPOSITION 65 WARNING: The Safe
Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as
Proposition 65, requires the governor to publish a list of chemicals known to the
State of California to cause cancer and birth defects or other reproductive harm. It
also requires California businesses to warn the public of potential exposures to
these chemicals that result from their operations. Some of the facilities to be
transferred include wooden poles that have been treated with chemical
preservatives. These chemicals include pentachlorophenol, which is known to the
State of California to cause cancer, and petroleum products such as diesel fuel,
which contains chemicals including toluene and benzene that are known to the
State of California to cause cancer and birth defects or other reproductive harm.
Buyer specifically acknowledges this warning and disclosure and understands that
it is responsible for ensuring appropriate personal protective equipment is used by
Buyer's employees, agents or contractors coming into contact with wooden poles.
5.3 Disclaimers Regarding the Facilities and the Land. BUYER
ACKNOWLEDGES THAT IT IS RELYING UPON ITS OWN INDEPENDENT
INVESTIGATION IN DECIDING TO PURCHASE THE FACILITIES. BUYER
EXPRESSLY DISCLAIMS RELIANCE ON ANY REPRESENTATIONS,
WARRANTIES OR GUARANTIES, EITHER EXPRESS OR IMPLIED, BY SCE,
ITS OFFICERS, DIRECTORS, COUNSEL, REPRESENTATIVES OR AGENTS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE
EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF
ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION,
VALUE OR QUALITY OF THE FACILITIES, THE PROSPECTS (FINANCIAL AND
OTHERWISE) OF THE FACILITIES, THE QUALITY OF WORKMANSHIP OF THE
FACILITIES, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER
Page 10 of 18
A-10
LATENT OR PATENT. SCE FURTHER SPECIFICALLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY REGARDING POTENTIAL
ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS
SUBSTANCES, COMPLIANCE OF THE FACILITIES OR THE LAND WHERE
THE FACILITIES ARE LOCATED WITH ENVIRONMENTAL REQUIREMENTS,
OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL
REQUIREMENTS. NO SCHEDULE OR EXHIBIT TO THIS AGREEMENT, NOR
ANY OTHER MATERIAL OR INFORMATION PROVIDED BY OR
COMMUNICATIONS MADE BY SCE, WILL CAUSE OR CREATE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY
DISCLAIMS: (A) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE; AND (C) ANY IMPLIED OR
EXPRESS WARRANTY OF CONFORMITY TO MODELS OR MATERIALS.
5.4 "AS IS" SALE. THE FACILITIES ARE BEING TRANSFERRED "AS IS, WHERE
IS, AND WITH ALL FAULTS" IN THEIR EXISTING CONDITION, WITHOUT ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND BY SCE, EXPRESS,
IMPLIED OR STATUTORY, AND WITHOUT RECOURSE AGAINST SCE.
5.5 Specific Disclaimer Regarding Land Rights. BUYER SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT SCE IS NOT ASSIGNING OR
OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST IN AND TO
ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING UNDER
OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS
SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL
RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF
ADEQUATE OR APPROPRIATE LAND RIGHTS.
5.6 Maintenance of Facilities Prior to Closing. From the Effective Date until the
Phase Closing Date, SCE will, at its expense, operate and maintain the Facilities
in accordance with SCE's rate "Schedule LS -1 LIGHTING - STREET AND
HIGHWAY - UNMETERED SERVICE COMPANY-OWNED SYSTEM," and
consistent with SCE's custom and past practices.
5.7 New Facilities. Until the Commencement Date, SCE may continue to install new
streetlights in the Buyer's jurisdiction in accordance with SCE's standard practices
and tariffs and CPUC rules and regulations.
6. COMMENCEMENT AND POST -COMMENCEMENT ACTIVITIES.
6.1 Commencement Date. The "Commencement Date" shall be the date that is sixty
(60) days after the later of the CPUC Approval Date or the date that Buyer notifies
SCE that it has obtained financing.
Page 11 of 18
A-11
6.2 The Phases. The first Phase shall commence on the Commencement Date
("Commencement"), and each successive Phase shall follow consecutively
thereafter or on such earlier date as mutually agreed by the Parties as to the
Facilities identified for each Phase. On the Commencement Date and each
successive Phase Commencement Date, the Parties shall commence the
following actions during each Phase for the Facilities to be transferred to Buyer in
such Phase:
(a) For a period not to exceed four (4) months following the commencement of
each Phase (each, an "Inventory, Planning and Inspection Period"), the
Parties will perform their respective Inventory, Planning and Inspection
Activities set forth in Exhibit C, including identifying any Reconfigured
Facilities. During the Inventory, Planning and Inspection Period for each
Phase, SCE's Local Service Planning office shall provide written notice to
Buyer before the expiration of the Inventory, Planning and Inspection Period
identifying any potential Reconfigured Facilities and stating the work necessary
to reconfigure such facilities for sale to Buyer and the estimated time and cost
to complete the work ("Reconfigured Facilities Notice").
(b) For a period of ten (10) Business Days following Buyer's receipt of the
Reconfigured Facilities Notice, Buyer shall have the right to accept or reject the
Reconfigured Facilities described in the Reconfigured Facilities Notice, which
acceptance or rejection shall be evidenced by a written notice delivered to
SCE's Local Service Planning Office. If Buyer does not provide timely notice,
the Reconfigured Facilities will be deemed rejected.
(c) At any time prior to the applicable Phase Closing Date, each Party shall perform
and complete its respective Severance Activities for all Facilities in the
applicable Phase, excepting only the Reconfigured Facilities identified in the
Reconfigured Facilities Notice for that Phase, which Reconfigured Facilities
shall be added to the final Phase. Prior to or during the final Phase, each Party
shall perform and complete its respective Severance Activities for any
Reconfigured Facilities.
(d) Not later than thirty (30) days prior to each Phase Closing Date, SCE shall
deliver to Buyer an original Bill of Sale duly executed by SCE. The Parties
agree that delivery of the Bill of Sale shall be effective upon the earlier of (i)
delivery to Buyer by hand of an original Bill of Sale or (ii) Buyer's receipt of a
facsimile or other electronic transmission of the Bill of Sale. If delivery is made
by facsimile or other electronic transmission, SCE shall concurrently send the
original Bill of Sale to Buyer by registered or certified mail or overnight courier.
(e) At any time prior to any Phase Closing Date, Buyer may elect at its sole and
absolute discretion to remove any of the Facilities (except for Reconfigured
Facilities) from any Phase and deduct on a pro rata basis the value of such
Facilities from the Purchase Price.
Page 12 of 18
A-12
(f) By each Phase Closing Date, Buyer shall pay to SCE in U.S. dollars the
Purchase Price, Severance Costs, and the Taxes (but not Excluded Taxes) for
the Facilities to be transferred to Buyer in such Phase.
(g) Following completion of the final Phase Closing Date, SCE's Local Service
Planning Office will invoice Buyer separately for any Reconfigured Facilities.
6.3 Assumption of Liabilities. On each Phase Closing Date, Buyer will assume all
obligations and liabilities of any kind or nature whatsoever related to, arising from,
or associated with ownership or possession of the Facilities transferred to Buyer
in such Phase.
6.4 Post -Phase Activities.
(a) As soon as practicable after each Phase Closing Date, but effective as of each
such Phase Closing Date, SCE will formally change the charge for facilities and
electricity furnished to the Facilities transferred to Buyer in such Phase from
the Streetlight Rate Schedule LS -1 to the Streetlight Rate Schedule "LS -2
LIGHTING - STREET AND HIGHWAY CUSTOMER -OWNED INSTALLATION
- UNMETERED SERVICE" Multiple Service — Rate B and provide written notice
to Buyer of such change ("Notice of Rate Change"). At the next available
billing period following the Notice of Rate Change, SCE shall pay to Buyer, in
the form of a bill credit, an amount equal to the difference between the amount
charged to Buyer for facilities and electricity under the LS -1 Schedule and the
amount that would have been charged to Buyer for the same facilities and
electricity under the LS -2 Schedule for the period beginning with the Phase
Closing Date and ending on the date SCE's billing system is adjusted to reflect
the rate change for such Phase.
(b) Within ninety (90) days after each Phase Closing Date, SCE shall provide an
updated map and inventory of the Facilities transferred pursuant to such Phase
to Buyer.
6.5 Prohibition on Connecting Non -Conforming Load. Buyer acknowledges and
agrees that Buyer's purchase of the Facilities does not entitle Buyer to connect
non -conforming load to the Facilities or supporting circuits beyond SCE's initial
point of connection. If Buyer wishes to connect such non -conforming load, Buyer
agrees to comply with SCE's applicable filed tariffs.
7. RELEASE.
7.1 Release. Buyer, for itself, and for any future owners of all or a part of the Facilities,
and each of their respective predecessors, successors, assigns, licensees,
officers, directors, employees, agents, partners, shareholders, transferees, parent
and subsidiary corporations, legal representatives, heirs, beneficiaries, executors
and administrators hereby fully and forever releases, discharges and covenants
Page 13 of 18
A-13
not to sue the SCE Parties of, from or for any and all losses (including diminution
in the value of the Land) and all other costs, claims, demands, actions, suits,
orders, causes of action, obligations, controversies, debts, expenses, accounts,
damages (including consequential or direct damages), judgments and liabilities of
whatever kind or nature (including fines and civil penalties), and by whomsoever
asserted, in law, equity or otherwise, whether known or unknown, (each a "Claim"
and, collectively, "Claims") arising from or in any way connected with the Facilities,
including without limitation any Claims relating to SCE's maintenance of the
Facilities prior to each Phase Closing Date, Claims relating to Potential
Environmental Hazards, and Claims relating to the presence of PCBs or any other
Hazardous Substances in the Facilities, and/or in, on or about the Land.
7.2 Waiver of Civil Code § 1542. With respect to the matters being released in
Paragraph 7, and as to those matters only, Buyer does knowingly, after having first
obtained the advice of its attorneys, waive all of the provisions of California Civil
Code § 1542 ("Section 1542"). Section 1542 reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
Buyer acknowledges and agrees that: (a) the releases set forth in Paragraph 7 are
intended to extend to and extinguish all claims, causes of action, etc. that are
encompassed within the terms of the releases, including those that are not presently
known to or suspected by Buyer and (b) it may hereafter discover facts in addition to or
different from those which it now believes concerning the subject matter of this
Agreement, and that notwithstanding any such new or different facts, the releases
contained herein will remain effective. Buyer further acknowledges and agrees that the
foregoing waiver of Section 1542 is an essential and material term of this Agreement,
without which said consideration would not have been given. Buyer has been advised by
its legal counsel regarding this release and waiver and understands and acknowledges
the significance and consequences of this release and waiver of Section 1542.
8. INDEMNITY. Buyer shall, at its sole cost and expense, indemnify, protect, defend
and hold the SCE Parties harmless, to the fullest extent permitted by law, from and
against any and all Claims (including the payments of damages, both actual and
consequential, the payment of penalties and fines, the payment of the actual fees and
expenses of experts, attorneys and others, and the payment of the cost of environmental
investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration,
remedial work and other "response costs" under CERCLA or any other Environmental
Requirements) arising from or in any way connected with: (a) any activities or failures to
act in connection with this Agreement by Buyer, its employees, agents, or contractors; or
(b) the ownership, possession, use or operation of the Facilities transferred to Buyer from
and after the Phase Closing Date applicable to such Facilities; or (c) Potential
Environmental Hazards relating to the Facilities or the presence, disposal, dumping,
escape, seepage, leakage, spillage, discharge, emission, pumping, emptying, injecting,
Page 14 of 18
A-14
leaching, pouring, release or threatened release of PCBs or any other Hazardous
Substances in connection with the Facilities, to the extent such Hazardous Substances
were present or affecting the Facilities and/or in, on, or about the Land as of the applicable
Phase Closing Date; or (d) the failure of the Facilities to comply with any Applicable
Requirements; or (e) Buyer's breach of any of its obligations under this Agreement. In no
event shall Buyer be required to indemnify SCE for any claims to the extent related to the
gross negligence or willful misconduct of SCE. If any action or proceeding is brought
against any one or more SCE Parties for any Claim against which Buyer is obligated to
indemnify or provide a defense hereunder, Buyer, upon written notice from SCE, shall
defend the SCE Parties. Buyer's obligation to defend includes the obligation to defend
claims and participate in administrative proceedings, even if they are false or fraudulent.
The indemnity, defense and other obligations of Buyer in this Section 8 shall survive the
termination of this Agreement.
9. MISCELLANEOUS.
9.1 Time of Essence. Time is of the essence of this Agreement and each and every
provision hereof.
9.2 Force Majeure. Except for the payment of money when due, performance by
either Party hereunder shall not be deemed to be in default, or considered to be a
default, where delays or defaults are due to force majeure events beyond the
control of such Party, including, without limitation, war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public
enemy, epidemics, quarantine restrictions, government imposed moratorium
legislation, actions or failures to act by any regulatory authority with jurisdiction
over SCE (including the CPUC), freight embargoes, lack of transportation,
weather -caused delays, inability to secure necessary labor, materials or tools,
delays of any contractor, subcontractor or supplier, that are not attributable to the
fault of the Party claiming an extension of time. An extension of time for any such
force majeure cause shall be for the period of the enforced delay and shall
commence to run from the date of occurrence of the delay; provided, however, that
the Party claiming the existence of the delay first provides the other party with
written notice of the occurrence of the delay, within ten (10) days of the
commencement of such occurrence of a force majeure event and, thereafter, takes
prompt and reasonable action within its control to remedy such force majeure
event.
9.3 Further Assurances. Each Party hereto agrees to execute and deliver to the
other Party such further documents or instruments as may be necessary or
appropriate in order to carry out the intentions of the Parties as contained in this
Agreement.
9.4 Binding Effect; Assignment. This Agreement shall be binding upon, and shall
inure to the benefit of, the heirs, successors and assigns of the Parties hereto.
Page 15 of 18
A-15
Notwithstanding the foregoing, Buyer shall have no right to assign this Agreement
or any of its rights or obligations under this Agreement.
9.5 Severability. If any provision of this Agreement shall be unenforceable or invalid,
the same shall not affect the remaining provisions of this Agreement and the
provisions of this Agreement are intended to be and shall be severable.
9.6 Survival. The covenants, agreements, obligations, indemnities and releases
contained in Sections 3.3, 5, 6.3, 6.4, 6.5, 7 and 8 of this Agreement shall survive
the termination of this Agreement.
9.7 Governing Laws. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California without reference
to its conflicts of laws provisions.
9.8 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the
same instrument.
9.9 Notices'. Any notice or other communication required or permitted under this
Agreement shall be in writing and shall be either personally delivered or
transmitted by registered or certified mail, return receipt requested, postage
prepaid, or by a nationally recognized overnight courier, such as FedEx or Airborne
Express, addressed to the Parties as follows:
If to SCE: Southern California Edison
John King — Project Manager
6042 N. Irwindale Suite A, Irwindale, CA 90712
If to Buyer: City of Rancho Palos Verdes
Attention: Nicole Jules
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
The date of any notice or communication shall be deemed to be the date of receipt
if delivered personally, or the date of the receipt or refusal of delivery if transmitted
by mail or overnight courier. Any Party may change its address for notice by giving
notice to the other Party in accordance with this Section 9.9.
9.10 Limitation on Liability. Buyer expressly agrees that the obligations and liabilities
of SCE under this Agreement and any document referenced herein shall not
constitute personal obligations of the officers, directors, employees, agents,
affiliates, members, representatives, stockholders or other principals or
representatives of SCE. SCE expressly agrees that the obligations and liabilities
Page 16 of 18
A-16
of Buyer under this Agreement and any document referenced herein shall not
constitute personal obligations of the officers, directors, employees, agents,
affiliates, members, representatives, stockholders or other principals or
representatives of Buyer. The limitations contained in this Section 9.10 shall
survive the termination of this Agreement.
9.11 Exhibits. The following Exhibits are attached hereto and incorporated by
reference into this Agreement.
Exhibit A
Description of the Facilities
Exhibit B
Form of Bill of Sale
Exhibit C
Inventory, Planning and Inspection Activities
Exhibit D
Communications Equipment
Exhibit E
Pole Attachment License Agreement
9.12 Dispute Resolution. In the event any dispute arises concerning the enforcement
and/or interpretation of this Agreement, the Parties agree to attempt initially to
settle such claims or disputes in good faith between themselves. Said obligation
to discuss settlement of such claims or disputes shall be initiated by written notice
of such claim or dispute. Should the Parties not settle such claims or disputes
within thirty (30) days of the date of mailing of such notice or within such additional
time period to which the Parties agree in writing (the "Negotiation Period"), the
Parties may mutually agree to submit any such claim or dispute to mediation. In
such case, the Parties will select an independent mediator within thirty (30) days
of the expiration of the Negotiation Period (the "Selection Period"), either by mutual
agreement or, in the absence of agreement on a mediator, by requesting during
the Selection Period that the American Arbitration Association in Los Angeles,
California appoint a mediator. The mediation shall be commenced within thirty
(30) days of the selection of a mediator by the Parties or the American Arbitration
Association. Except as provided herein or by written agreement of the Parties, the
mediation shall be conducted in Los Angeles pursuant to the rules of the American
Arbitration Association. If the Parties are unable to settle the dispute through
discussions or in mediation, each Party shall have the right to pursue all of its
remedies at law or in equity. The covenants of Buyer and SCE contained in this
Section 9.12 shall survive the termination of this Agreement.
9.13 Communications Equipment. Buyer acknowledges that the Facilities have
certain SCE -owned and operated radio equipment attached to them as identified
in Exhibit D ("Communications Equipment"). Concurrently with each Phase
Closing Date, Buyer shall grant to SCE a cost-free license to leave in place,
operate, maintain, replace and remove any Communications Equipment attached
to Facilities included in such Phase pursuant to a Pole Attachment License
Agreement.
9.14 Interpretation. The language in all parts of this Agreement shall be construed
according to its normal and usual meaning and not strictly for or against either SCE
Page 17 of 18
A-17
or Buyer. The headings of the paragraphs of this Agreement are inserted solely
for convenience of reference and are not a part of and are not intended to govern,
limit or aid in the construction of any terms or provisions hereof. The words
"include," "includes," and "including" shall be deemed to be followed by the phrase
"without limitation."
9.15 Authority. Each Party represents and warrants that the execution, delivery and
performance of this Agreement has been duly authorized by such Party and each
person signing this Agreement on its behalf is duly and validly authorized to do so.
9.16 Prior Agreements. This Agreement and the exhibits hereto contain the entire
agreement and understating of the Parties relating to the subject matter hereto and
shall supersede any prior written or oral agreements or communications between
the Parties pertaining to such subject matter.
IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be duly
executed as of the date and year first written above.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Page 18 of 18
•
ATTEST:
City Clerk
SCE:
SOUTHERN CALIFORNIA EDISON,
a California corporation
By:
Greg Ferree
Its:VP, Distribution
CITY OF RANCHO PALOS VERDES,
[a municipal corporation]
By:
Its:
Page 19 of 19
A-19
Exhibit A
Attachments
A-20
Exhibit B
Form of Bill of Sale
BILL OF SALE
Pursuant to that certain Purchase And Sale Agreement, dated 2017
("Agreement"), by and between Southern California Edison, a California corporation
("SCE"), and the City of , [a Municipal Corporation] ("Buyer"), effective
as of , 2017, SCE hereby sells, assigns, transfers and delivers to Buyer all
of SCE's right, title and interest in and to the property described in Attachment A
("Facilities"), attached hereto and hereby incorporated herein by this reference. All
capitalized terms not defined in this Bill of Sale shall have the meanings given them in
the Agreement.
THE FACILITIES ARE BEING TRANSFERRED "AS IS, WHERE IS, AND WITH ALL
FAULTS" IN THEIR EXISTING CONDITION, WITHOUT ANY REPRESENTATIONS
OR WARRANTIES OF ANY KIND BY SCE, EXPRESS, IMPLIED OR STATUTORY,
AND WITHOUT RECOURSE AGAINST SCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR
IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE FACILITIES, THE
PROSPECTS (FINANCIAL AND OTHERWISE) OF THE FACILITIES, THE QUALITY
OF WORKMANSHIP OF THE FACILITIES, OR THE ABSENCE OF ANY DEFECTS
THEREIN, WHETHER LATENT OR PATENT. SCE FURTHER SPECIFICALLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING POTENTIAL
ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS SUBSTANCES,
COMPLIANCE OF THE FACILITIES OR THE LAND WHERE THE FACILITIES ARE
LOCATED WITH ENVIRONMENTAL REQUIREMENTS, OR LIABILITY OR
POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL REQUIREMENTS.
BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SCE IS NOT
ASSIGNING OR OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST
IN AND TO ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING
UNDER OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS
SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL
RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF ADEQUATE OR
APPROPRIATE LAND RIGHTS.
This Bill of Sale is executed pursuant to the authorization contained in the order of the
California Public Utilities Commission in its Decision No. , dated
, and is subject to all the terms and conditions of the Agreement,
including the provisions set forth above.
Exhibit B-1
A-21
The parties represent that they are duly authorized to execute this Bill of Sale.
Accepted and Agreed:
:
lord 210
City of Rancho Palos Verdes,
a California corporation
1►FTM-
Title:
SOUTHERN CALIFORNIA EDISON COMPANY,
a California corporation
Bv:
Greg Ferree
VP, Distribution
Exhibit B-2
A-22
Exhibit C
Planning, Inspection and Severance Activities
Section
Reference
,Activity
'SCE Responsibility
City Responsibility
2.2
Provide Buyer with draft phase maps
x
6.2(a)
Field validation to identify applicable LS -1 Streetlights
x
6.2(a)
l entify/Confirm Points of Demarcation (POD)
x
6.2(a)
Confirrn every pole in the City has been accounted for
x
6.2(a)
Confirm actual phase maps and transition timelines
x
x
6.2(a)
Communicate with the Buyer any additional relocation/reconfiguration costs (assets and operational)
x
6.2(b)
Buyer accepts or refuses any additional relocation/reconfiguration costs (assets and operational)- please see above
x
6.2 (c)
Update the inventory if applicable)
x
3.1(c)
Update the Purchase Price for the Final Phase as applicable if pole count varies by 5% or -pore',
X
6.2(a)
Provide revised maps and inventory list to Buyer (if applicable)
x
6.2(b)
Buyer signs off on updated inventory list (if applicable)
6.2(d)
Bill of Sale to Buyer for current Phase
x
6.2(a)
SCE Pole tag removal
x
6.2(a)
Buyer installs its pole tags
X
6,2(e)
Bu er payment
x
6.4(a)
Convert from LS -1 to LS -2B rate at com letion of each Phase
Y
6.4(b'i
Provide updated LS -2 B maps and inventory list to Buyer
A
6.4{c)
Buyer confirms rate change has gone into effect
6.4(di
Phase is complete
Y:
_:
A-23
Exhibit D
Communications Equipment
A-24
Smart Connect Installations
Mit—Site—name
Site—address
city
Structure#
Pri Mount Subtype
Latitude
Longitude
44RREPO018
27602 FAWSKIN DR
PALOS VERDES
1320002E
STREET LIGHT
- CONCRETE
33.46272
-118.2247
44RREPO019
27645 FLAMING ARROW DR
PALOS VERDES
1725860E
STREET LIGHT
- CONCRETE
33.46449
-118.2213
44RREPO020
27837 LONGHILL DR
PALOS VERDES
1725869E
STREET LIGHT
- CONCRETE
33.773165
-118.3659
44RREPO021
27850 LONGHILL DR
PALOS VERDES
1666794E
STREET LIGHT
- CONCRETE
33.46393
-118.2196
44RREPO022
127890 LONGHILL DR
PALOS VERDES
11666796E
ISTREET LIGHT
- CONCRETE
33.46366
-118.2185
A-25
NO -FEE
LIGHT POLE LICENSE AGREEMENT
FOR WIRELESS ATTACHMENT
BETWEEN
THE CITY OF RANCHO PALOS VERDES
AND
SOUTHERN CALIFORNIA EDISON
This No -Fee Light Pole License Agreement ("Agreement") is made as of
, 2017 ("Effective Date"), by and between the City Of Rancho Palos Verdes,
[a Municipal Corporation] ("Licensor"), and Southern California Edison Company, a
California corporation ("Licensee"), individually "Party" and collectively "Parties."
Licensor herein provides Licensee a no -fee license to attach certain wireless
communication equipment to light poles that are owned by Licensor and used by Licensor
to provide street lighting services to customers.
The terms and conditions of this Agreement are as follows:
1. DEFINITIONS
Terms with the initial letter or letters capitalized, whether in the singular or plural,
shall have the following meanings:
a. Applicable Requirement: Any law, code, regulation, ordinance, statute or
requirement of a governmental or quasi -governmental authority, regulatory agency or any
other similar authority with jurisdiction or control over access to or use of the Light Pole,
an Attachment, Work on a Light Pole or operation of an Attachment.
b. Attachment: A wireless communicating device used solely in connection with
SCE's utility and metering operations together with all of its associated ancillary equipment
which are owned by Licensee and serve the purpose(s) presently served by those fixtures
identified in Exhibit A hereto.
C. Custom Light Pole: A specialized light pole, owned and installed by Licensor
and paid for by Licensee, for the purposes of accommodating Licensee's Attachment and for
Licensor to provide street lighting services.
d. Equipment: All ancillary equipment owned and utilized by Licensee in
connection with an Attachment, and installed on third party property.
e. Light Pole: A Licensor Light Pole or a Custom Light Pole.
f. Licensor Light Pole: A standard light pole owned by Licensor used to provide
street lighting services.
-1-
A-26
g. Work: Any work performed by Licensee relating to an Attachment, including
the installation, repair, removal or replacement of the Attachment or Equipment.
2. TERM
The initial term of this Agreement shall be ten (10) years, with automatic renewal
terms of ten (10) years each, provided, however, that either Party may terminate this
Agreement by written notice to the other Party given not more than one year and not less
than ninety (90) days prior to the expiration of the initial term or any succeeding term
("Termination Notice"). Upon the issuance of a Termination Notice by either Party, only
Licensee's rights to install Future Attachments as described in this Agreement shall
terminate, but Licensee's rights under this Agreement with regard to then -installed
Attachments and Upgraded Attachments shall not terminate.
3. ATTACHMENTS
The installed Attachments are listed in Exhibit A hereto. During the term hereof,
Licensee shall have the right (i) to upgrade Attachments to new technology that serves the
same purpose as the Attachments listed on Exhibit A ("Upgraded Attachments"), and (ii)
to install new Attachments that are not listed in Exhibit A ("Future Attachments") in
accordance with Section 6 of this Agreement, so long as such Upgraded Attachments and
Future Attachments serve the same purpose as the Attachments listed on Exhibit A and
do not interfere in any manner with any then -existing Licensor equipment. All
installations of Upgraded Attachments and Future Attachments shall be performed in a
good and workmanlike manner.
4. LICENSEE'S ATTACHMENT RIGHTS
Licensee shall have a no -fee license to use the Attachment for wireless
communications, and to maintain, remove, repair or replace the Attachment, as described
herein (collectively, the "Attachment Rights"). All costs and expenses incurred by Licensee
as a result of Licensee's exercise of its Attachment Rights hereunder shall be the sole
responsibility of Licensee.
5. CONDITIONS AND RESTRICTIONS ON LICENSE RIGHTS
In addition to the other terms and conditions of this Agreement, Licensee's exercise
of its Attachment Rights shall be subject to the following conditions and restrictions:
a. Licensee shall operate its Attachment for wireless communication equipment.
b. Licensee shall be solely responsible for separately obtaining any electric utility
or other services required for operation of its Attachment, if secondary power from the
streetlight is inaccessible.
-2-
A-27
C. Licensor shall not be required to modify the Light Pole to accommodate use by
the Licensee.
d. Licensor shall not install any Equipment for the Licensee, Licensee shall be
solely responsible for the installation of any Equipment.
e. Licensee's rights regarding Upgraded Attachments and/or Future
Attachments shall not interfere with Licensor's street -lighting or municipal operations. If
an Attachment made under this Agreement interferes with Licensor's ability to use a Light
Pole, then Licensor will inform the Licensee and Licensee shall remedy the interference in
a reasonably prompt period of time after receiving notice of the interference from Licensor.
If Licensee fails to remedy the interference after sixty (60) days, Licensor may remove the
Attachment.
f. Licensor may install and may permit third parties to install new devices.
However, Licensor shall not install any new devices, and Licensor shall not allow third
parties to install any new devices, that interfere with Licensee's Attachment. If Licensor's
installation, or a Licensor -permitted third party's installation, of a new device interferes
with Licensee's wireless communication, then Licensee will inform the Licensor and
Licensor shall immediately remedy the interference.
g. Prior to commencing any work or activity affecting any Light Pole, Licensee
shall provide Licensor with not less than three (3) business days prior notice.
6. ATTACHMENT
a. Licensee shall be allowed to install Future Attachments at additional locations
under this Agreement upon reasonable prior notice to Licensor; provided, however, Licensor
may disapprove proposed Future Attachments in the event Licensor reasonably determines
the proposed Future Attachments may interfere with any municipal operations or Licensor
equipment, or in the event that Licensor reasonably determines that additional
Attachments will threaten the public health and safety. Licensee shall provide Licensor the
structure number and address or location description where the Attachment will be
installed.
b. Licensee shall use commercially reasonable efforts to perform any Work in a
manner which will not cause any interruption of Licensor's street -lighting services or other
equipment.
C. All Work shall be performed at Licensee's sole risk and cost and shall be
performed in a good and workmanlike manner and Licensee shall indemnify, defend and
hold harmless Licensor, its elected officials, staff, directors, invitees, employees, agents,
contractors, successors and assigns, from any and all costs, liabilities, claims and expenses,
including those from death or injury to any person or from a loss or damage to any real,
personal or other property, to the extent arising out of or pertaining to any Work, or any act
-3-
•
or failure to act by any of Licensee's employees, agents, or contractors in relation to the
Upgraded Attachments and Future Attachments.
d. The performance of any Work shall comply with the requirements for such
Work as contained in applicable industry standards, specific work requirements imposed by
Licensor or a third party, or in any Applicable Requirements associated with the Work.
e. Upon written notification from Licensor or a government authority that the
Attachment or any Equipment is out of compliance with any Applicable Requirement or is
unsafe or hazardous, Licensee shall promptly take whatever actions are necessary to come
into full compliance with such Applicable Requirements or to remedy the unsafe or
hazardous condition, as the case may be. Notwithstanding any other provision of this
Agreement, if at any time, in Licensor's sole judgment, an unsafe or dangerous condition
exists, Licensor shall immediately notify Licensee and Licensee shall have twenty-four (24)
hours from such notice to remedy the unsafe or dangerous condition. If Licensee does not
remedy the unsafe or dangerous condition within such twenty-four (24) hour period, then
Licensor may correct such condition and notify Licensee of such correction within three (3)
business days. If at any time, in Licensor's sole judgment, an imminent threat to human
life or safety exists, Licensor may correct such condition and notify Licensee of such
correction within three (3) business days.
f. Licensee shall not drill, burn or punch any holes in a Light Pole, without first
obtaining written consent from Licensor, which consent shall not be unreasonably withheld.
Licensee shall reimburse Licensor for any damage to any Licensor Light Pole in connection
with the use, repair, restoration or replacement of a Light Pole by Licensee.
g. Licensee shall follow Licensor's established procedures to request Licensor to
replace a Licensor Light Pole with a Custom Light Pole, and Licensee shall be solely
responsible for all costs of such request and any resulting replacement.
7. REMOVAL OF AN ATTACHMENT FROM A LIGHT POLE
a. Licensee may at any time remove an Attachment from any Light Pole.
b. Nothing in this Agreement shall be construed to limit Licensor's rights, at any
time, to remove a Light Pole from service or to require Licensee to remove its Attachment
from a Light Pole that is being removed from service. In the event Licensor requires
Licensee to remove its Attachment from a Light Pole that is being removed from service,
then Licensor will notify Licensee ninety (90) days prior to the removal and use reasonable
efforts to supply Licensee with an alternative Light Pole for such Attachment. Licensee shall
complete removal of its Attachment within ninety (90) days of Licensor's request to do so.
C. Whenever Licensee removes an Attachment, Licensee shall restore the Light
Pole to its original condition, reasonable wear and tear excepted, except where Licensor
notifies Licensee that restoration is unnecessary because the Light Pole is being removed
from service or Licensor agrees otherwise.
I"
A-29
d. When a Light Pole that contains an existing Attachment is relocated or
replaced by Licensor, and there is a suitable other location for a new Light Pole or an
existing Light Pole which could be used by Licensee for its Attachment, then Licensor and
the Licensee may agree that Licensee may so use the other location or Light Pole and amend
Exhibit A to reflect the transfer of Licensee's Attachment Rights. Except in emergency
situations, Licensor will notify Licensee ninety (90) days prior to relocation or replacement
of a Light Pole.
8. RISK OF LOSS; RESTORATION OR REPAIR OF LIGHT POLE
In the event a Light Pole is damaged or destroyed, restoration of Licensor's use of a
Light Pole shall take priority over Licensee's restoration of its use; provided, however, that
Licensor shall not unreasonably delay Licensee's opportunity to restore the use of its
Attachment. Licensor shall permit Licensee to make repairs to restore use of the
Attachment, as long as such restoration efforts do not interfere with Licensor's restoration
activities. In addition, Licensee shall fully cooperate with Licensor if Licensor performs any
repairs or other work on the Light Pole, which work may require a temporary shutdown of
Licensee's Attachment. The Licensor shall notify the Licensee at least 48 hours prior to
planned repairs that will require a shutdown of the Licensee's Attachment.
9. REGULATORY MATTERS
To the extent that this Agreement is subject to the jurisdiction of any regulatory
authority, Licensor and Licensee acknowledge that this Agreement may be subject to such
changes, modifications or termination as that regulatory authority may direct from time to
time in the exercise of its jurisdiction.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
a. Licensee shall indemnify, defend and hold harmless Licensor, its elected
officials, staff, directors, invitees, employees, agents, contractors, successors and assigns,
from any and all costs, liabilities, claims and expenses, including those from death or injury
to any person or from a loss or damage to any real, personal or other property, to the extent
arising from any negligent act or omission by Licensee, or by any of Licensee's employees,
agents, or contractors in performing this Agreement.
b. Licensor shall indemnify, defend and hold harmless Licensee, its affiliates and
each of their directors, invitees, employees, agents, contractors, successors and assigns,
from any and all costs, liabilities, claims and expenses, including those from death or injury
to any person or from a loss or damage to any real, personal or other property, to the extent
arising from any negligent act or omission by Licensor, or by any of Licensor's employees,
agents, or contractors in performing this Agreement.
C. The indemnified Party shall promptly notify the indemnifying Party of the
existence of any matters to which indemnifying Party's indemnity obligations apply. Upon
demand by indemnified Party, the indemnifying Party shall defend at its own expense with
-5-
A-30
mutually acceptable counsel any such matter; provided that indemnified Party shall at all
times also have the right to fully participate in the defense and consent to any settlement
or compromise.
d. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR
PUNITIVE DAMAGES (INCLUDING LOSS OF THE OTHER PARTY'S CUSTOMERS OR
GOOD WILL, OR LOST REVENUE OR PROFITS), FOR ANY CAUSE OF ACTION,
WHETHER IN CONTRACT OR TORT, ARISING IN ANY MANNER FROM THIS
AGREEMENT OR THE PERFORMANCE OR NON -PERFORMANCE OF OBLIGATIONS
HEREUNDER, REGARDLESS OF THE CAUSE OR FORESEEABILITY THEREOF.
11. TITLE AND RISK OF LOSS
a. Licensor shall have and retain sole and exclusive ownership of all Light Poles,
and Licensor's ownership shall not be affected by Licensee's Attachment to the Light Pole.
b. Except as otherwise provided for herein, Licensee shall retain its ownership of
the Attachment and any Equipment at all times.
12. INSURANCE
At all times during the term of this Agreement, Licensee shall maintain and shall
require its subcontractors that perform any Work pursuant to this Agreement to maintain
insurance coverage as described below:
a. Worker's Compensation Insurance with statutory limits, in accordance with
the laws of the State of California, and Employer's Liability Insurance with limits of not
less than one million dollars ($1,000,000). Licensee shall require its insurer to waive all
rights of subrogation against Licensor, its officers, agents and employees.
b. Commercial General Liability Insurance, including coverage for bodily injury,
property damage, products/completed operations liability and contractual liability, with a
per occurrence limit of not less than two million dollars ($2,000,000). Such insurance shall
(i) name the Licensor, its officers, agents, and employees as additional insureds, but only
for Licensee's negligent acts or omissions; (ii) be primary for all purposes; and (iii) contain
standard cross -liability provisions.
Written proof of compliance with the requirements of this Section, consisting of
Certificates of Insurance and a copy of the Additional Insured Endorsement for the
Commercial General Liability insurance policy, in a form acceptable to Licensor, shall be
provided to Licensor prior to any Attachment or the installation of any Equipment upon any
Light Pole and prior to the expiration of each policy year thereafter. The Certificates of
Insurance shall provide that this insurance shall not be terminated, canceled or reduced
except on thirty days' prior written notice to Licensor. Failure to provide and maintain such
I on
A-31
insurance shall constitute a default under this Agreement. Licensee may self -insure any
and all of the above insurance requirements.
13. REMEDIES IN THE EVENT OF DEFAULT
If either Party fails to comply with a material term or condition of this Agreement,
the non -breaching party shall provide written notice to the defaulting party of such non-
compliance. The breaching party shall then have thirty (30) days (except in the case of
health and safety issues, which shall require cure within forty-eight (48) hours) from receipt
of such notice to reasonably cure such non-compliance. If such a cure is not completed within
the thirty (30) day period (or 48 hour period as provided above), or if a cure is not possible
within such period and the breaching party has not taken steps to effect such cure, then the
non -breaching party may pursue its legal remedies relating to such non-compliance.
14. DISPUTE RESOLUTION
a. Except as may otherwise be set forth expressly herein, all disputes arising
under this Agreement shall be resolved as set forth in this Section 14. To be eligible for
resolution under this Section 14, all disputes concerning payments must be invoked within
sixty (60) business days of the payment due date.
b. Licensor and Licensee shall attempt in good faith to resolve any dispute arising
out of or relating to this Agreement promptly by negotiations between an authorized
representative of each of the Parties. Any dispute which cannot be resolved between the
authorized representative shall be referred to an officer or designee of Licensee and the City
Manager of Licensor. Licensor or Licensee shall give the other Party written notice of any
dispute following expiration of the applicable cure period pursuant to Section 13. Within
twenty (20) days after delivery of such notice, the designated parties shall meet at a
mutually acceptable time and place, and thereafter as often as they reasonably deem
necessary to exchange information and to attempt to resolve the dispute. If the matter has
not been resolved within thirty (30) days of the first meeting, the Parties will consider and
decide whether the dispute should be submitted to JAMS, or its successor, for mediation.
C. All negotiations and any mediation conducted pursuant to this Section 14 shall
be confidential and shall be treated as compromise and settlement negotiations, to which
Section 1152 of the California Evidence Code shall apply, which section is incorporated in
this Agreement by reference.
d. Notwithstanding the foregoing provisions, either Licensor or Licensee may
seek immediate equitable relief, a preliminary injunction or other provisional judicial
remedy.
e. Licensor and Licensee shall continue to perform their obligations under this
Agreement pending final resolution of any dispute arising out of or relating to this
Agreement.
-7-
A-32
f. If Licensor and Licensee, after good faith efforts to resolve a dispute under the
terms of this Agreement (as provided in Subpart b above), cannot agree to a resolution of
the dispute, either party may pursue whatever legal remedies may be available to such
party, at law or in equity, before a court of competent jurisdiction and with venue in Los
Angeles County, California.
15. TAXES AND LIENS
Licensee shall pay when due any and all taxes or assessment resulting from any
Attachment on any Light Pole including, but not limited to, special assessments and
governmental fees of any kind whatsoever which may be levied or assessed upon any
personal property which Licensee has caused to be placed or maintained upon Licensor's
facilities, or against Licensee's business and shall keep Licensor's property and facilities,
including any Light Poles, free from all liens, including but not limited to mechanics liens,
and encumbrances by reason of the use, occupancy, or maintenance of Licensor's facilities
or property by Licensee or by any person claiming under Licensee. It is further agreed that
in the event Licensee fails to pay the above-mentioned taxes, assessments, or liens when
due, Licensor shall have the right to pay the same and invoice Licensee for the amount
thereof and Licensee shall pay the same upon demand together with interest at the
maximum rate allowed by law from the date of such expenditure by Licensor.
16. NOTICES
Notices hereunder must be in writing and transmitted by United States mail or by
personal delivery to Licensor. Such notices shall be deemed given: (a) upon receipt in the
case of personal delivery or confirmed facsimile transmittal; (b) two (2) days after it is sent
by certified mail, with a return receipt requested, (c) three (3) days after deposit in the mail,
or the next day in the event of overnight delivery.
If to Licensor: City of Rancho Palos Verdes
Attention: Nicole Jules
30940 Hawthorne Blvd
Rancho Palos Verdes, CA 90275
If to Licensee: Southern California Edison
Manager of Streetlights Attention: John King
6042 A Irwindale Ave, Irwindale CA 91702
In
A-33
17. DISCLAIMER
LICENSOR MAKES NO REPRESENTATION OR WARRANTY
WHATSOEVER CONCERNING THE SUITABILITY OR CONDITION OF ANY
LIGHT POLE. FURTHERMORE, IT IS SPECIFICALLY UNDERSTOOD AND
HEREBY ACKNOWLEDGED BY LICENSEE THAT ANY LIGHT POLE MADE
AVAILABLE HEREUNDER, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW,
WILL BE PROVIDED BY LICENSOR ONLY ON AN "AS -IS" BASIS AND WITHOUT
ANY WARRANTY BY LICENSOR ABOUT THE CONDITION OF THE LIGHT POLE
OR ITS SUITABILITY FOR LICENSEE'S PURPOSES. FURTHER, LICENSEE'S
RIGHTS HEREUNDER SHALL BE SUBORDINATE TO LICENSOR'S USE OF THE
LIGHT POLE FOR STREET LIGHTING SERVICES.
18. GENERAL PROVISIONS
a. California Law. This Agreement, and performance pursuant to it, shall be
governed, interpreted, construed, and regulated by the laws of the State of California,
without reference to its conflicts of laws provisions.
b. Assignment. Neither Party may assign, transfer, sublease, or sublet any right,
obligation, or privilege given to it hereunder without the prior written consent of the other
Party. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the Parties hereto.
c. Interpretation. The language of each part of this Agreement shall be construed
simply and according to its fair meaning, and shall never be construed either for or against
either Party, regardless of which Party may have drafted the provision.
d. Nature of Rights. Nothing in this Agreement shall preclude Licensor from
granting any third -party permission to use available capacity on a Light Pole in ways that
do not interfere with the rights granted to Licensee under this Agreement.
e. Invalidity of Provisions. To the extent that any terms or provisions of this
Agreement shall be finally determined by a court of competent jurisdiction to be invalid,
(i) such invalidity shall not affect, release or modify any other terms or provisions, and (ii) in
lieu of each such provision which is invalid, illegal or unenforceable, there shall be
substituted or added as part of this Agreement a legal, valid and enforceable provision which
shall be selected to be as similar as possible, in achieving the economic and business
objectives of the Parties, to such illegal, invalid or unenforceable provision.
f. Waiver. The failure of either Party to enforce any provision of this Agreement or
the waiver thereof in any instance, including but not limited to the right to terminate, shall
not be construed as a general waiver or relinquishment on its part of any such provision but
the same shall nevertheless be and remain in full force and effect.
I US
A-34
g. Incorporation Clause. This Agreement, including attached Exhibits, incorporate
all the covenants and understandings between Licensor and Licensee regarding the subject
matter of this Agreement. No other verbal agreements or understandings exist between the
Parties nor shall any be binding upon either Licensor or Licensee unless reduced to writing
and signed by the Parties. Any addition, variation or modification to this or any other
Agreement shall be ineffective unless made in writing and signed by the Parties.
h. Radio Frequency Emission ("RFE") Compliance. Licensee shall be responsible, at
its sole cost and expense, for ensuring compliance with all regulations relating to RFE.
Licensor will cooperate with Licensee, where possible, to allow Licensee to place required
signage on a Light Pole where this is necessary to comply with RFE regulations. In addition,
Licensee shall use its best efforts to minimize the RFE impact on health of workers and on
future uses of the Light Pole.
i. Exhibits. Exhibits referenced herein are incorporated by said reference.
Licensee shall provide any updates of Exhibit A to Licensor within thirty (30) days of
Licensor's written request, delivered pursuant to Section 16 of this Agreement, but not more
often than once each calendar quarter. Specifically included as exhibits to this Agreement
hereto are:
Exhibit A: List of Installed Attachments
j. Confidentiality. Notwithstanding any language to the contrary in any
applicable non -disclosure or confidentiality agreement between the Parties, Licensor may,
without the prior consent of the Licensee, provide confidential or proprietary information
related to this Agreement to a governmental or regulatory entity that requests such
information. In addition, Licensee recognizes that Licensor is a public agency subject to the
California Public Records Act and that disclosures may be required thereunder.
SIGNATURES
By signing below, the signatories hereto represent and warrant that they have been
duly authorized to sign this Agreement on behalf of the Party for whom they sign.
CITY OF RANCHO PALOS VERDES, SOUTHERN CALIFORNIA EDISON
[a Municipal corporation] COMPANY, a California corporation
By:
Print
Name:
Title:
Date:
-10-
By:
Name: Greg Ferree
Title: VP, Distribution
Date:
A-35
EXHIBIT A
List of Attachments
SmartConnect Installed Devices
NetComm Installed Devices
-12-
A-36
Smart Connect Installations
Mit—Site—name
Site—address
city
Structure#
Pri Mount Subtype
Latitude
Longitude
44RREPO018
27602 FAWSKIN DR
PALOS VERDES
1320002E
STREET LIGHT
- CONCRETE
33.46272
-118.2247
44RREPO019
27645 FLAMING ARROW DR
PALOS VERDES
1725860E
STREET LIGHT
- CONCRETE
33.46449
-118.2213
44RREPO020
27837 LONGHILL DR
PALOS VERDES
1725869E
STREET LIGHT
- CONCRETE
33.773165
-118.3659
44RREPO021
27850 LONGHILL DR
PALOS VERDES
1666794E
STREET LIGHT
- CONCRETE
33.46393
-118.2196
44RREPO022
127890 LONGHILL DR
PALOS VERDES
11666796E
ISTREET LIGHT
- CONCRETE
33.46366
-118.2185
A-37
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of , 2017 ("Effective Date"), by and between SOUTHERN
CALIFORNIA EDISON, a California corporation ("SCE"), and the City of Rancho Palos
Verdes, [a Municipal Corporation] ("Buyer"). SCE and Buyer are referred to herein
individually as a "Party," and together as "Parties".
RECITALS
A. SCE currently owns Two Thousand, Two Hundred and Eighty Six (2,286) LS -1 electric
streetlight facilities located in the City of Rancho Palos Verdes, of which, One
Thousand, Seven Hundred Ninety Nine (1,799) are to be purchased by Buyer.
B. Buyer has expressed a desire to purchase the Facilities (defined below) from SCE,
and SCE is willing to sell the Facilities to Buyer, on the terms and conditions set forth
in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the respective covenants and agreements
contained in this Agreement, SCE and Buyer each agree as follows:
1. DEFINITIONS. The following terms shall have the meanings ascribed to them
below for purposes of this Agreement.
"Agreement" has the meaning given in the first paragraph.
"Applicable Requirements" means all laws, statutes, ordinances, rules, regulations,
requirements or orders of any Governmental Authority now in force or that may later
be in force, and the terms and conditions of any permit, certificate, license or other
requirement.
"Bill of Sale" means a document setting forth the Purchase Price and Severance
Costs as well as any Taxes for which Buyer is responsible with respect to the Facilities
specified to be transferred to Buyer in each Phase (including Reconfigured Facilities
in the final Phase), which document shall be substantially in the form of Exhibit B
attached hereto.
"Business Day" means a day other than Saturday, Sunday or a day on which (i)
banks are legally closed for business in the State of California; or (ii) SCE is closed
for business.
"Buyer" has the meaning given in the preamble paragraph.
"CEQA" has the meaning given in Section 5.2.
Page 1 of 18
"Claims" has the meaning given in Section 7.1.
"Commencement" has the meaning given in Section 6.2.
"Commencement Date" has the meaning in Section 6.1.
"CPUC" means the California Public Utilities Commission, or its regulatory successor,
as applicable.
"CPUC Approval" means a final, unconditional and unappealable decision of the
CPUC under Section 851 of the Public Utilities Code (including exhaustion of all
administrative and judicial remedies or the running of time periods and statutes of
limitation for rehearing and judicial review without rehearing or judicial review being
sought) approving this Agreement and the transactions contemplated hereby on terms
and conditions acceptable to SCE and Buyer, in their good faith discretion, including
approval of SCE's proposed accounting and rate making treatment of the sale in
accordance with CPUC's decisions.
"CPUC Approval Date" means the date on which the CPUC Approval occurs.
"Effective Date" has the meaning given in the preamble paragraph.
"Environmental Requirements" means any applicable federal, state and local
statutes, regulations or ordinances now in force or that may later be in force relating
to the protection of human health or safety, or regulating or relating to industrial
hygiene or environmental conditions, or the protection of the environment, or pollution
or contamination of the air, soil, surface water or ground water, including federal, state
and local laws, requirements and regulations pertaining to reporting, licensing,
permitting, investigating and remediating emissions, discharges, releases or
threatened releases of such substances into air, surface water or land, or relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of such substances. Environmental Requirements include without
limitation: the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. 9601 et seg.); the Hazardous Materials Transportation Act (49 U.S.C.
5101 et seq.); and the Resource Conservation and Recovery Act (42 U.S.C. 6901 et
seq.)
"Excluded Taxes" means (a) taxes (other than any sales, use, gross receipts, or any
taxes in the nature of sales, use or gross receipts taxes) imposed on SCE that are
capital gains taxes, minimum or alternative minimum taxes, accumulated earnings
taxes, franchise taxes or taxes on or measured by gross or net income, capital or net
worth of SCE; and (b) personal property taxes to the extent the payment is addressed
in Section 3.3(b), and is not required to be reimbursed to SCE by Buyer.
"Facilities" has the meaning given in Section 2.2 and further described in Exhibit A.
Page 2 of 18
M
"Governmental Authority" means any federal, state, local or other governmental,
regulatory or administrative agency, commission, department, board, subdivision,
court, tribunal, or other governmental arbitrator, arbitral body or other authority, but
excluding Buyer.
"Hazardous Substances" means any hazardous or toxic material or waste, which is
or becomes regulated by Environmental Requirement. Without limiting the generality
of the foregoing, Hazardous Substances includes any material or substance: (a) now
or hereafter defined as a "hazardous substance, " "hazardous waste," "hazardous
material," " extremely hazardous waste," " restricted hazardous waste" or "toxic
substance" or words of similar import under any applicable Environmental
Requirements; or (b) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, and is now or hereafter
regulated as Hazardous Substance by the United States, the State of California, any
local governmental authority or any political subdivision thereof, or which cause or are
listed by the State of California as being known to the State of California to cause,
cancer or reproductive toxicity; or (c) the presence of which poses or threatens to pose
a hazard to the health or safety of persons or the environment; or (d) which contains
gasoline, diesel fuel or other petroleum hydrocarbons; or (e) which contains lead-
based paint or other lead contamination, polychlorinated biphenyls ("PCBs"), or
asbestos or asbestos -containing materials or urea formaldehyde foam insulation; or
(f) which contains radon gas; or (g) fuel or chemical storage tanks, energized electrical
conductors or equipment, or natural gas transmission or distribution pipelines; and (h)
other potentially hazardous substances, materials, products or conditions.
"Inventory, Planning and Inspection Activities" means the activities referenced in
Section 6.2(a) and set forth in Exhibit C to be performed by Buyer and SCE during
the Inventory, Planning and Inspection Period.
"Inventory, Planning and Inspection Period" has the meaning set forth in
Section 6.2(a). "
"Land" means the real property on which the Facilities are located, together with any
other real property that is encumbered by Land Rights.
"Land Rights" means the easements, leases, permits, franchise agreements or other
agreements that grant SCE the right to locate the Facilities on the Land and/or permit
access to the Facilities by SCE.
"Local Service Planning Office" means SCE's local service planning office located
at 505 Maple Ave, Torrance CA 90503.
"Phase" means the One (1) periods of five (5) months each, during which the Parties
will undertake certain activities as set forth in this Agreement with regard to the
Facilities identified in each such Phase. The Parties may mutually agree at any time
to change the Phase Commencement Date and/or the Phase Closing Date for any or
all Phases.
Page 3 of 18
"Phase Commencement Date" means the first day of each Phase.
"Phase Completion" means the completion of all activities for each Phase as set
forth in Sections 6.2 and 6_4 of this Agreement.
"Phase Closing Date" means the last day of each Phase on which the closing of the
purchase and sale of the Facilities in such Phase shall occur.
"Potential Environmental Hazards" means electric fields, magnetic fields,
electromagnetic fields, electromagnetic radiation, power frequency fields, and
extremely low frequency fields, however designated, and whether emitted by electric
transmission lines, other distribution equipment or otherwise.
"Purchase Price" has the meaning given in Section 3.1.
"Reconfigured Facilities" means any additional facilities the Parties identify during
the Inventory, Planning and Inspection Period of any Phase which serve purposes in
addition to street lighting, which the Parties agree that SCE will reconfigure to remove
such other (non -street light) uses, and which will be purchased by Buyer from SCE in
the final Phase. Buyer shall coordinate all activities relating to Reconfigured Facilities
with SCE's Local Service Planning Office.
"SCE Parties" means SCE, its affiliates, and each of their respective past, present
and future officers, directors, partners, employees, agents, representatives,
shareholders, attorneys, affiliates, parent and subsidiary corporations, divisions,
insurance carriers, heirs, legal representatives, beneficiaries, executors,
administrators, predecessors, transferees, successors and assigns.
"Severance Activities" means the activities referenced in Section 6.2(a) and set forth
in Exhibit C to be performed by SCE and Buyer during each Phase (after the
applicable Inventory, Planning and Inspection Period expires) with respect to the
Facilities to be transferred from SCE to Buyer in such Phase.
"Severance Costs" has the meaning in Section 3.2.
"Tax Claim" has the meaning given in Section 3.3(e).
"Taxes" mean all federal, state, local or foreign income, ad valorem, gross receipts,
license, payroll, employment, excise, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property including assessments,
special assessments, special district assessments, escape assessments, benefit
assessments and maintenance assessments, fees or other charges or surcharges of
any nature based on the use or ownership of real property, personal property, sales,
use, documentary transfer, registration, value added, alternative and add-on
minimum, estimated taxes, and all other taxes of any kind whatsoever, including all
Page 4 of 18
interest, penalties, fines and additions thereto, whether disputed or not, including all
items for which liability arises as a transferee or successor -in -interest.
2. PURCHASE AND SALES OF FACILITIES.
2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, SCE
agrees to sell, convey, assign, transfer and deliver to Buyer, and Buyer agrees to
purchase and acquire from SCE, all of SCE's right, title and interest in the Facilities.
2.2 Description of Facilities. The "Facilities" consist of One Thousand Seven
Hundred and Ninety Nine (1,799) electric streetlight facilities owned by SCE and
located within the Buyer's service territory. A detailed description and listing of the
Facilities to be purchased and sold is provided in Exhibit A. The Parties believe
that Exhibit A contains a reasonably accurate inventory and map of the LS -1
streetlight facilities owned by SCE within the Buyer's service territory that are
considered for sale.
2.3 Termination. Buyer may terminate this Agreement with or without cause until the
date it provides notice to SCE that it has obtained financing.
3. PURCHASE PRICE AND OTHER COSTS.
3.1 Purchase Price. Subject to adjustment as provided in this Section 3.1, the total
purchase price for all Facilities described in Exhibit A ("Purchase Price") is Six
Hundred Sixty Seven Thousand, Two Hundred and Sixteen Dollars ($667,216).
(a) Prior to the final Phase Closing Date, the Parties shall mutually agree on
the Purchase Price, Severance Costs and any additional costs for any
Reconfigured Facilities transferred to Buyer in the final Phase in accordance with
Section 6.2(b).
(b) If, within thirty (30) days after the Phase Closing Date for the final Phase,
the Parties determine that the number of Facilities that have been transferred to
Buyer pursuant to this Agreement does not equal [insert # of Facilities the first
Recital of the Agreement says are to be transferred] then, within sixty (60) days
after the Phase Closing Date for the final Phase, the Parties will amend the Bill of
Sale for the final Phase to increase or decrease the Purchase Price, as
appropriate, using the dollar amount of SCE's average price for each type of
streetlight facility in the Buyer's municipality (concrete poles will be valued at SCE's
average price for concrete poles, steel poles will be valued at SCE's average price
for steel poles, wood poles will be valued at SCE's average price for wood poles,
and fiberglass poles will be valued at SCE's average price for fiberglass poles).
3.2 Severance Costs. In addition to the Purchase Price, Buyer shall pay to SCE,
SCE's good faith estimate of the cost of SCE's Severance Activities with respect
to the Facilities, which SCE estimates to be a total amount of $57,838
Page 5 of 18
("Severance Costs"). The Severance Costs will be adjusted, either up or down,
to equal the actual cost of SCE's Severance Activities. At least 30 days prior to the
Commencement Date, SCE shall notify Buyer of the actual amount of the
Severance Costs which Buyer shall pay. However, notwithstanding any other
rights of buyer contained in this Agreement, Buyer shall have the right, within 10
Business Days of receipt of the actual Severance Costs amount, to provide notice
to SCE that it intends to terminate this Agreement. Buyer shall pay the Severance
Costs in One (1) equal installments, as invoiced by SCE in each Phase.
3.3 Taxes.
(a) Except for any Excluded Taxes for which Buyer will have no liability, Buyer
shall pay all Taxes arising in connection with the sale and transfer of the Facilities,
this Agreement or the transactions contemplated herein, or the receipt of the
Purchase Price or other amounts hereunder, which Taxes are levied or imposed
on or with respect to SCE, Buyer or all or any part of the Facilities or any use
thereof on or after the applicable Phase Closing Date.
(b) State and local personal property Taxes relating to the Facilities for the tax
year (ending June 30) will be prorated between Buyer and SCE on the following
basis: SCE is to be responsible for all such Taxes for the period up to the Phase
Closing Date for such Facilities; and Buyer is responsible for all such Taxes for the
period on and after the Phase Closing Date for such Facilities. All Taxes assessed
on an annual basis will be prorated on the assumption that an equal amount of
Taxes applies to each day of the year, regardless of how many payments are billed
or made, except that Buyer will bear all supplemental or other state and local
personal property Taxes which arise out of change in ownership of the Facilities.
In addition, Buyer acknowledges that the Facilities are assessed by the California
State Board of Equalization as of January 1 of each year, and, if the Phase Closing
Date occurs between January 1 and June 30, SCE must pay personal property
taxes arising out of the ownership of the Facilities for the subsequent fiscal year.
If the Phase Closing Date occurs between January 1 and June 30, Buyer will
deposit with SCE the full amount to pay personal property taxes for the tax year
beginning on July 1, in addition to the prorated amount of personal property taxes
for the current tax year (ending June 30), and SCE will pay the personal property
taxes for these tax years before they become delinquent; provided however, SCE
may pay such taxes in installments as permitted by law. If the personal property
tax amounts owing for the tax year beginning on July 1 are not available as of the
Phase Closing Date, then the amount due from Buyer to SCE for such tax year will
be estimated on the basis of the prior year's personal property taxes and such
amount will be subject to adjustment after the Phase Closing Date. If the Phase
Closing Date occurs between July 1 and December 31, Buyer will deposit with
SCE the prorated amount of personal property taxes for the tax year in which the
Phase Closing Date occurs and SCE will pay the personal property taxes for such
tax year before they become delinquent; provided however, SCE may pay such
taxes in installments as permitted by law.
Page 6 of 18
(c) SCE will be entitled to any refunds or credits of Taxes relating to the
Facilities that are allocable to the period prior to the Phase Closing Date. Buyer
will promptly notify and forward to SCE the amounts of any such refunds or credits
to SCE within five (5) Business Days after receipt thereof. Buyer will be entitled to
any refund or credit of Taxes relating to the Facilities that are allocable to the period
on and after the Phase Closing Date. SCE agrees to reasonably cooperate with
Buyer's efforts to obtain such refund or credit.
(d) After each Phase Closing Date, Buyer will notify SCE in writing, within five
(5) Business Days after Buyer's receipt of any correspondence, notice or other
communication from a taxing authority or any representative thereof, of any
pending or threatened tax audit, or any pending or threatened judicial or
administrative proceeding that involves Taxes relating to the Facilitates for the
period prior to the Phase Closing Date, and furnish SCE with copies of all
correspondence received from any taxing authority in connection with any audit or
information request with respect to any such Taxes relating to the Facilities for the
period prior to the Phase Closing Date.
(e) Notwithstanding any provision of this Agreement to the contrary, with
respect to any claim for refund, audit, examination, notice of deficiency or
assessment or any judicial or administrative proceeding that involves Taxes
relating to the Facilities for the period either entirely prior to the Phase Closing
Date or both prior to and after the Phase Closing Date (collectively, "Tax Claim"),
the Parties will reasonably cooperate with each other in contesting any Tax Claim,
including making available original books, records, documents and information for
inspection, copying and, if necessary, introduction as evidence to any such Tax
Claim contest and making employees available on a mutually convenient basis to
provide additional information or explanation of any material provided hereunder
with respect to such Tax Claim or to testify at proceedings relating to such Tax
Claim. SCE will control all proceedings taken in connection with any Tax Claim
that pertains entirely to the period prior to the Phase Closing Date, and SCE and
Buyer will jointly control all proceedings taken in connection with any Tax Claim
pertaining to the period both prior to and after the Phase Closing Date. The period
both prior to and after the Phase Closing Date shall be determined by the
applicable tax claim statute of limitations. Buyer has no right to settle or otherwise
compromise any Tax Claim which pertains entirely to the period prior to the Phase
Closing Date; and neither Party has the right to settle or otherwise compromise
any Tax Claim which pertains to the periods both prior to and after the Phase
Closing Date without the other Party's prior written consent.
(f) The obligations of the Parties pursuant to this Section 3.3 shall survive the
termination of this Agreement.
3.4 No Other Costs. SCE will impose no additional costs onto Buyer for the purchase
of the Facilities other than those articulated in this Article 3, including but not limited
Page 7 of 18
to any costs solely related to the transmission of power over electrical power lines
and Facilities. Buyer will be responsible for payment pursuant to the LS -2b Tariff,
or any successor Tariff.
4. CONDITIONS PRECEDENT
4.1 Conditions to Buyer's Obligations. Buyer's obligation under this Agreement to
purchase the Facilities is subject to the fulfillment or waiver of each of the following
conditions precedent:
(a) SCE shall have performed or complied in all material respects with all
covenants, agreements and conditions contained in this Agreement to be
performed or complied with by SCE at or prior to the Commencement Date and
each Phase Closing Date.
(b) No suit, action or other proceeding shall be pending before any court or
Governmental Authority which seeks to restrain or prohibit any of the transactions
contemplated by this Agreement or to obtain material damages or other material
relief in connection with this Agreement or the transactions contemplated hereby.
(c) Buyer's City Council shall have identified and approved a structured
financing plan to pay the Purchase Price and Severance Costs within sixty (60)
days following the CPUC Approval Date. The terms of a feasible financing shall
be determined solely by Buyer's City Council.
4.2 Conditions to SCE's Obligations SCE's obligation under this Agreement to sell
the Facilities to Buyer is subject to the fulfillment or waiver of each of the following
conditions precedent:
(a) Buyer shall have performed or complied in all material respects with all
covenants, agreements and conditions contained in this Agreement to be
performed by Buyer at or prior to the Commencement and each Phase Closing.
(b) No suit, action or other proceeding shall be pending before any court or
Governmental Authority which seeks to restrain or prohibit any of the transactions
contemplated by this Agreement or to obtain material damages or other material
relief in connection with this Agreement or the transactions contemplated hereby.
(c) Buyer shall have notified SCE that Buyer has identified and approved a
structured financing plan to pay the Purchase Price and Severance Costs within
sixty (60) days following the CPUC Approval Date.
4.3 CPUC Approval. The obligation of each Party to consummate the purchase and
the sale of the Facilities is conditioned upon obtaining CPUC Approval. SCE
agrees to make reasonable efforts to draft and file an application seeking CPUC
approval within ninety (90) days following the Effective Date of this Agreement.
Page 8 of 18
Buyer agrees to cooperate with SCE's efforts to obtain CPUC Approval, including
by promptly reviewing and commenting on the application for CPUC Approval.
Buyer acknowledges and agrees that SCE makes no representation or warranty
with respect to the likelihood of obtaining CPUC Approval, and Buyer hereby
waives all Claims against SCE that may arise as a result of the need for CPUC
Approval or SCE's failure to obtain CPUC Approval. The application seeking
CPUC Approval will request such approval within six months of the date the
application is filed. SCE makes no representations as to when or in what manner
the CPUC will act on the application.
4.4 Satisfaction or Waiver of Conditions Precedent. Buyer may waive in writing
any of the conditions precedent set forth in Section 4.1, and SCE may waive in
writing any of the conditions precedent set forth in Section 4.2. Neither Party shall
have the right to waive the condition precedent set forth in Section 4.3. Subject to
the foregoing, in the event that any of the conditions precedent set forth in Section
4.1 or Section 4.2 have not been satisfied or waived on or before the
Commencement Date or any Phase Closing Date (as the same may be extended),
then the Party whose obligations are subject to such condition precedent shall
have the right to rescind this Agreement ab initio upon written notice to the other
Party, and SCE and Buyer shall thereupon return to the other Party all
performances received from the other Party (except for the Severance Costs
actually paid), and each Party shall be released from all other obligations under
this Agreement, except those which expressly survive termination.
5. CONDITION OF FACILITIES AND LAND RIGHTS
5.1 Compliance with Applicable Requirements and Governmental Approvals.
Except for CPUC Approval, Buyer is solely responsible for complying, at Buyer's
sole expense, with all Applicable Requirements and obtaining all authorizations,
consents, licenses, permits and approvals of Governmental Authorities and third
persons in connection with the consummation of the transactions contemplated by
this Agreement and with Buyer's operation of the Facilities, whether as result of
the PCB content or otherwise. Without limiting the foregoing, Buyer is responsible
for any costs of complying with the California Environmental Quality Act ("CEQA"),
if and to the extent applicable to the sale and transfer of the Facilities, and
satisfying, at Buyer's sole expense, any and all mitigation measures under CEQA
that may apply to Buyer's acquisition or operation of the Facilities. Buyer shall
promptly notify SCE of any and all mitigation measures that may affect SCE. If
SCE determines in good faith that any such mitigation measures may adversely
affect SCE, SCE shall have the right without liability to Buyer to terminate this
Agreement upon written notice to Buyer. In the event of such termination, SCE
and Buyer shall each be released from all obligations under this Agreement, except
those that expressly survive termination. Buyer's obligations under this Section
5_1 shall survive the consummation of the transaction contemplated by this
Agreement.
Page 9 of 18
5.2 Disclosure Regarding Hazardous Substances. SCE hereby discloses to Buyer
that Potential Environmental Hazards and Hazardous Substances, including
PCBs, may be present at, in, on, under, about, contained in, or incorporated in the
Facilities. Buyer represents that it is purchasing the Facilities for Buyer's own use,
and not for resale (provided that Buyer contemplates that Buyer may transfer title
to the Facilities in connection with financing and/or refinancing of the Facilities). If
Buyer sells the Facilities, or any part thereof, it shall disclose, in writing, to all
potential Buyers, prior to the sale, that Potential Environmental Hazards and
Hazardous Substances, including PCBs, may be present at, in, on, under, about,
contained in, or incorporated in the Facilities, or portions thereof. Further, in the
event the Facilities (or any portion thereof) are sold, conveyed or transferred in any
manner to a person other than SCE, Buyer shall incorporate in the agreement
effectuating such transfer, language substantially in the same form as this
paragraph. Buyer's obligations under this Section 5.2 shall survive the termination
of this Agreement. Notwithstanding anything to the contrary set forth in this
Agreement, SCE approval shall not be required for any conveyance of the
Facilities, whether or not such conveyance is made in connection with a financing
or refinancing of the Facilities or any part thereof.
SCE further discloses the following PROPOSITION 65 WARNING: The Safe
Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as
Proposition 65, requires the governor to publish a list of chemicals known to the
State of California to cause cancer and birth defects or other reproductive harm. It
also requires California businesses to warn the public of potential exposures to
these chemicals that result from their operations. Some of the facilities to be
transferred include wooden poles that have been treated with chemical
preservatives. These chemicals include pentachlorophenol, which is known to the
State of California to cause cancer, and petroleum products such as diesel fuel,
which contains chemicals including toluene and benzene that are known to the
State of California to cause cancer and birth defects or other reproductive harm.
Buyer specifically acknowledges this warning and disclosure and understands that
it is responsible for ensuring appropriate personal protective equipment is used by
Buyer's employees, agents or contractors coming into contact with wooden poles.
5.3 Disclaimers Regarding the Facilities and the Land. BUYER
ACKNOWLEDGES THAT IT IS RELYING UPON ITS OWN INDEPENDENT
INVESTIGATION IN DECIDING TO PURCHASE THE FACILITIES. BUYER
EXPRESSLY DISCLAIMS RELIANCE ON ANY REPRESENTATIONS,
WARRANTIES OR GUARANTIES, EITHER EXPRESS OR IMPLIED, BY SCE,
ITS OFFICERS, DIRECTORS, COUNSEL, REPRESENTATIVES OR AGENTS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE
EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF
ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION,
VALUE OR QUALITY OF THE FACILITIES, THE PROSPECTS (FINANCIAL AND
OTHERWISE) OF THE FACILITIES, THE QUALITY OF WORKMANSHIP OF THE
FACILITIES, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER
Page 10 of 18
IS
LATENT OR PATENT. SCE FURTHER SPECIFICALLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY REGARDING POTENTIAL
ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS
SUBSTANCES, COMPLIANCE OF THE FACILITIES OR THE LAND WHERE
THE FACILITIES ARE LOCATED WITH ENVIRONMENTAL REQUIREMENTS,
OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL
REQUIREMENTS. NO SCHEDULE OR EXHIBIT TO THIS AGREEMENT, NOR
ANY OTHER MATERIAL OR INFORMATION PROVIDED BY OR
COMMUNICATIONS MADE BY SCE, WILL CAUSE OR CREATE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY
DISCLAIMS: (A) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE; AND (C) ANY IMPLIED OR
EXPRESS WARRANTY OF CONFORMITY TO MODELS OR MATERIALS.
5.4 "AS IS" SALE. THE FACILITIES ARE BEING TRANSFERRED "AS IS, WHERE
IS, AND WITH ALL FAULTS" IN THEIR EXISTING CONDITION, WITHOUT ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND BY SCE, EXPRESS,
IMPLIED OR STATUTORY, AND WITHOUT RECOURSE AGAINST SCE.
5.5 Specific Disclaimer Regarding Land Rights. BUYER SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT SCE IS NOT ASSIGNING OR
OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST IN AND TO
ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING UNDER
OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS
SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL
RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF
ADEQUATE OR APPROPRIATE LAND RIGHTS.
5.6 Maintenance of Facilities Prior to Closing. From the Effective Date until the
Phase Closing Date, SCE will, at its expense, operate and maintain the Facilities
in accordance with SCE's rate "Schedule LS -1 LIGHTING - STREET AND
HIGHWAY - UNMETERED SERVICE COMPANY-OWNED SYSTEM," and
consistent with SCE's custom and past practices.
5.7 New Facilities. Until the Commencement Date, SCE may continue to install new
streetlights in the Buyer's jurisdiction in accordance with SCE's standard practices
and tariffs and CPUC rules and regulations.
6. COMMENCEMENT AND POST -COMMENCEMENT ACTIVITIES.
6.1 Commencement Date. The "Commencement Date" shall be the date that is sixty
(60) days after the later of the CPUC Approval Date or the date that Buyer notifies
SCE that it has obtained financing.
Page 11 of 18
B-11
6.2 The Phases. The first Phase shall commence on the Commencement Date
("Commencement"), and each successive Phase shall follow consecutively
thereafter or on such earlier date as mutually agreed by the Parties as to the
Facilities identified for each Phase. On the Commencement Date and each
successive Phase Commencement Date, the Parties shall commence the
following actions during each Phase for the Facilities to be transferred to Buyer in
such Phase:
(a) For a period not to exceed four (4) months following the commencement of
each Phase (each, an "Inventory, Planning and Inspection Period"), the
Parties will perform their respective Inventory, Planning and Inspection
Activities set forth in Exhibit C, including identifying any Reconfigured
Facilities. During the Inventory, Planning and Inspection Period for each
Phase, SCE's Local Service Planning office shall provide written notice to
Buyer before the expiration of the Inventory, Planning and Inspection Period
identifying any potential Reconfigured Facilities and stating the work necessary
to reconfigure such facilities for sale to Buyer and the estimated time and cost
to complete the work ("Reconfigured Facilities Notice").
(b) For a period of ten (10) Business Days following Buyer's receipt of the
Reconfigured Facilities Notice, Buyer shall have the right to accept or reject the
Reconfigured Facilities described in the Reconfigured Facilities Notice, which
acceptance or rejection shall be evidenced by a written notice delivered to
SCE's Local Service Planning Office. If Buyer does not provide timely notice,
the Reconfigured Facilities will be deemed rejected.
(c) At any time prior to the applicable Phase Closing Date, each Party shall perform
and complete its respective Severance Activities for all Facilities in the
applicable Phase, excepting only the Reconfigured Facilities identified in the
Reconfigured Facilities Notice for that Phase, which Reconfigured Facilities
shall be added to the final Phase. Prior to or during the final Phase, each Party
shall perform and complete its respective Severance Activities for any
Reconfigured Facilities.
(d) Not later than thirty (30) days prior to each Phase Closing Date, SCE shall
deliver to Buyer an original Bill of Sale duly executed by SCE. The Parties
agree that delivery of the Bill of Sale shall be effective upon the earlier of (i)
delivery to Buyer by hand of an original Bill of Sale or (ii) Buyer's receipt of a
facsimile or other electronic transmission of the Bill of Sale. If delivery is made
by facsimile or other electronic transmission, SCE shall concurrently send the
original Bill of Sale to Buyer by registered or certified mail or overnight courier.
(e) At any time prior to any Phase Closing Date, Buyer may elect at its sole and
absolute discretion to remove any of the Facilities (except for Reconfigured
Facilities) from any Phase and deduct on a pro rata basis the value of such
Facilities from the Purchase Price.
Page 12 of 18
B-12
(f) By each Phase Closing Date, Buyer shall pay to SCE in U.S. dollars the
Purchase Price, Severance Costs, and the Taxes (but not Excluded Taxes) for
the Facilities to be transferred to Buyer in such Phase.
(g) Following completion of the final Phase Closing Date, SCE's Local Service
Planning Office will invoice Buyer separately for any Reconfigured Facilities.
6.3 Assumption of Liabilities. On each Phase Closing Date, Buyer will assume all
obligations and liabilities of any kind or nature whatsoever related to, arising from,
or associated with ownership or possession of the Facilities transferred to Buyer
in such Phase.
6.4 Post -Phase Activities.
(a) As soon as practicable after each Phase Closing Date, but effective as of each
such Phase Closing Date, SCE will formally change the charge for facilities and
electricity furnished to the Facilities transferred to Buyer in such Phase from
the Streetlight Rate Schedule LS -1 to the Streetlight Rate Schedule "LS -2
LIGHTING - STREET AND HIGHWAY CUSTOMER -OWNED INSTALLATION
- UNMETERED SERVICE" Multiple Service — Rate B and provide written notice
to Buyer of such change ("Notice of Rate Change"). At the next available
billing period following the Notice of Rate Change, SCE shall pay to Buyer, in
the form of a bill credit, an amount equal to the difference between the amount
charged to Buyer for facilities and electricity under the LS -1 Schedule and the
amount that would have been charged to Buyer for the same facilities and
electricity under the LS -2 Schedule for the period beginning with the Phase
Closing Date and ending on the date SCE's billing system is adjusted to reflect
the rate change for such Phase.
(b) Within ninety (90) days after each Phase Closing Date, SCE shall provide an
updated map and inventory of the Facilities transferred pursuant to such Phase
to Buyer.
6.5 Prohibition on Connecting Non -Conforming Load. Buyer acknowledges and
agrees that Buyer's purchase of the Facilities does not entitle Buyer to connect
non -conforming load to the Facilities or supporting circuits beyond SCE's initial
point of connection. If Buyer wishes to connect such non -conforming load, Buyer
agrees to comply with SCE's applicable filed tariffs.
7. RELEASE.
7.1 Release. Buyer, for itself, and for any future owners of all or a part of the Facilities,
and each of their respective predecessors, successors, assigns, licensees,
officers, directors, employees, agents, partners, shareholders, transferees, parent
and subsidiary corporations, legal representatives, heirs, beneficiaries, executors
and administrators hereby fully and forever releases, discharges and covenants
Page 13 of 18
B-13
not to sue the SCE Parties of, from or for any and all losses (including diminution
in the value of the Land) and all other costs, claims, demands, actions, suits,
orders, causes of action, obligations, controversies, debts, expenses, accounts,
damages (including consequential or direct damages), judgments and liabilities of
whatever kind or nature (including fines and civil penalties), and by whomsoever
asserted, in law, equity or otherwise, whether known or unknown, (each a "Claim"
and, collectively, "Claims") arising from or in any way connected with the Facilities,
including without limitation any Claims relating to SCE's maintenance of the
Facilities prior to each Phase Closing Date, Claims relating to Potential
Environmental Hazards, and Claims relating to the presence of PCBs or any other
Hazardous Substances in the Facilities, and/or in, on or about the Land.
7.2 Waiver of Civil Code § 1542. With respect to the matters being released in
Paragraph 7, and as to those matters only, Buyer does knowingly, after having first
obtained the advice of its attorneys, waive all of the provisions of California Civil
Code § 1542 ("Section 1542"). Section 1542 reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
Buyer acknowledges and agrees that: (a) the releases set forth in Paragraph 7 are
intended to extend to and extinguish all claims, causes of action, etc. that are
encompassed within the terms of the releases, including those that are not presently
known to or suspected by Buyer and (b) it may hereafter discover facts in addition to or
different from those which it now believes concerning the subject matter of this
Agreement, and that notwithstanding any such new or different facts, the releases
contained herein will remain effective. Buyer further acknowledges and agrees that the
foregoing waiver of Section 1542 is an essential and material term of this Agreement,
without which said consideration would not have been given. Buyer has been advised by
its legal counsel regarding this release and waiver and understands and acknowledges
the significance and consequences of this release and waiver of Section 1542.
8. INDEMNITY. Buyer shall, at its sole cost and expense, indemnify, protect, defend
and hold the SCE Parties harmless, to the fullest extent permitted by law, from and
against any and all Claims (including the payments of damages, both actual and
consequential, the payment of penalties and fines, the payment of the actual fees and
expenses of experts, attorneys and others, and the payment of the cost of environmental
investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration,
remedial work and other "response costs" under CERCLA or any other Environmental
Requirements) arising from or in any way connected with: (a) any activities or failures to
act in connection with this Agreement by Buyer, its employees, agents, or contractors; or
(b) the ownership, possession, use or operation of the Facilities transferred to Buyer from
and after the Phase Closing Date applicable to such Facilities; or (c) Potential
Environmental Hazards relating to the Facilities or the presence, disposal, dumping,
escape, seepage, leakage, spillage, discharge, emission, pumping, emptying, injecting,
Page 14 of 18
leaching, pouring, release or threatened release of PCBs or any other Hazardous
Substances in connection with the Facilities, to the extent such Hazardous Substances
were present or affecting the Facilities and/or in, on, or about the Land as of the applicable
Phase Closing Date; or (d) the failure of the Facilities to comply with any Applicable
Requirements; or (e) Buyer's breach of any of its obligations under this Agreement. In no
event shall Buyer be required to indemnify SCE for any claims to the extent related to the
gross negligence or willful misconduct of SCE. If any action or proceeding is brought
against any one or more SCE Parties for any Claim against which Buyer is obligated to
indemnify or provide a defense hereunder, Buyer, upon written notice from SCE, shall
defend the SCE Parties. Buyer's obligation to defend includes the obligation to defend
claims and participate in administrative proceedings, even if they are false or fraudulent.
The indemnity, defense and other obligations of Buyer in this Section 8 shall survive the
termination of this Agreement.
9. MISCELLANEOUS.
9.1 Time of Essence. Time is of the essence of this Agreement and each and every
provision hereof.
9.2 Force Majeure. Except for the payment of money when due, performance by
either Party hereunder shall not be deemed to be in default, or considered to be a
default, where delays or defaults are due to force majeure events beyond the
control of such Party, including, without limitation, war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public
enemy, epidemics, quarantine restrictions, government imposed moratorium
legislation, actions or failures to act by any regulatory authority with jurisdiction
over SCE (including the CPUC), freight embargoes, lack of transportation,
weather -caused delays, inability to secure necessary labor, materials or tools,
delays of any contractor, subcontractor or supplier, that are not attributable to the
fault of the Party claiming an extension of time. An extension of time for any such
force majeure cause shall be for the period of the enforced delay and shall
commence to run from the date of occurrence of the delay; provided, however, that
the Party claiming the existence of the delay first provides the other party with
written notice of the occurrence of the delay, within ten (10) days of the
commencement of such occurrence of a force majeure event and, thereafter, takes
prompt and reasonable action within its control to remedy such force majeure
event.
9.3 Further Assurances. Each Party hereto agrees to execute and deliver to the
other Party such further documents or instruments as may be necessary or
appropriate in order to carry out the intentions of the Parties as contained in this
Agreement.
9.4 Binding Effect; Assignment. This Agreement shall be binding upon, and shall
inure to the benefit of, the heirs, successors and assigns of the Parties hereto.
Page 15 of 18
B-15
Notwithstanding the foregoing, Buyer shall have no right to assign this Agreement
or any of its rights or obligations under this Agreement.
9.5 Severability. If any provision of this Agreement shall be unenforceable or invalid,
the same shall not affect the remaining provisions of this Agreement and the
provisions of this Agreement are intended to be and shall be severable.
9.6 Survival. The covenants, agreements, obligations, indemnities and releases
contained in Sections 3.3, 5, 6.3, 6.4, 6.5, 7 and 8 of this Agreement shall survive
the termination of this Agreement.
9.7 Governing Laws. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California without reference
to its conflicts of laws provisions.
9.8 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the
same instrument.
9.9 Notices'. Any notice or other communication required or permitted under this
Agreement shall be in writing and shall be either personally delivered or
transmitted by registered or certified mail, return receipt requested, postage
prepaid, or by a nationally recognized overnight courier, such as FedEx or Airborne
Express, addressed to the Parties as follows:
If to SCE: Southern California Edison
John King — Project Manager
6042 N. Irwindale Suite A, Irwindale, CA 90712
If to Buyer: City of Rancho Palos Verdes
Attention: Nicole Jules
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
The date of any notice or communication shall be deemed to be the date of receipt
if delivered personally, or the date of the receipt or refusal of delivery if transmitted
by mail or overnight courier. Any Party may change its address for notice by giving
notice to the other Party in accordance with this Section 9.9.
9.10 Limitation on Liability. Buyer expressly agrees that the obligations and liabilities
of SCE under this Agreement and any document referenced herein shall not
constitute personal obligations of the officers, directors, employees, agents,
affiliates, members, representatives, stockholders or other principals or
representatives of SCE. SCE expressly agrees that the obligations and liabilities
Page 16 of 18
Ins
of Buyer under this Agreement and any document referenced herein shall not
constitute personal obligations of the officers, directors, employees, agents,
affiliates, members, representatives, stockholders or other principals or
representatives of Buyer. The limitations contained in this Section 9.10 shall
survive the termination of this Agreement.
9.11 Exhibits. The following Exhibits are attached hereto and incorporated by
reference into this Agreement.
Exhibit A
Description of the Facilities
Exhibit B
Form of Bill of Sale
Exhibit C
Inventory, Planning and Inspection Activities
Exhibit D
Communications Equipment
Exhibit E
Pole Attachment License Agreement
9.12 Dispute Resolution. In the event any dispute arises concerning the enforcement
and/or interpretation of this Agreement, the Parties agree to attempt initially to
settle such claims or disputes in good faith between themselves. Said obligation
to discuss settlement of such claims or disputes shall be initiated by written notice
of such claim or dispute. Should the Parties not settle such claims or disputes
within thirty (30) days of the date of mailing of such notice or within such additional
time period to which the Parties agree in writing (the "Negotiation Period"), the
Parties may mutually agree to submit any such claim or dispute to mediation. In
such case, the Parties will select an independent mediator within thirty (30) days
of the expiration of the Negotiation Period (the "Selection Period"), either by mutual
agreement or, in the absence of agreement on a mediator, by requesting during
the Selection Period that the American Arbitration Association in Los Angeles,
California appoint a mediator. The mediation shall be commenced within thirty
(30) days of the selection of a mediator by the Parties or the American Arbitration
Association. Except as provided herein or by written agreement of the Parties, the
mediation shall be conducted in Los Angeles pursuant to the rules of the American
Arbitration Association. If the Parties are unable to settle the dispute through
discussions or in mediation, each Party shall have the right to pursue all of its
remedies at law or in equity. The covenants of Buyer and SCE contained in this
Section 9.12 shall survive the termination of this Agreement.
9.13 Communications Equipment. Buyer acknowledges that the Facilities have
certain SCE -owned and operated radio equipment attached to them as identified
in Exhibit D ("Communications Equipment"). Concurrently with each Phase
Closing Date, Buyer shall grant to SCE a cost-free license to leave in place,
operate, maintain, replace and remove any Communications Equipment attached
to Facilities included in such Phase pursuant to a Pole Attachment License
Agreement.
9.14 Interpretation. The language in all parts of this Agreement shall be construed
according to its normal and usual meaning and not strictly for or against either SCE
Page 17 of 18
B-17
or Buyer. The headings of the paragraphs of this Agreement are inserted solely
for convenience of reference and are not a part of and are not intended to govern,
limit or aid in the construction of any terms or provisions hereof. The words
"include," "includes," and "including" shall be deemed to be followed by the phrase
"without limitation."
9.15 Authority. Each Party represents and warrants that the execution, delivery and
performance of this Agreement has been duly authorized by such Party and each
person signing this Agreement on its behalf is duly and validly authorized to do so.
9.16 Prior Agreements. This Agreement and the exhibits hereto contain the entire
agreement and understating of the Parties relating to the subject matter hereto and
shall supersede any prior written or oral agreements or communications between
the Parties pertaining to such subject matter.
IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be duly
executed as of the date and year first written above.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Page 18 of 18
IS
i
ATTEST:
City Clerk
SCE:
SOUTHERN CALIFORNIA EDISON,
a California corporation
By:
Greg Ferree
Its:VP, Distribution
CITY OF RANCHO PALOS VERDES,
[a municipal corporation]
By:
Its:
Page 19 of 19
Exhibit A
Attachments
Exhibit B
Form of Bill of Sale
BILL OF SALE
Pursuant to that certain Purchase And Sale Agreement, dated 2017
("Agreement"), by and between Southern California Edison, a California corporation
("SCE"), and the City of , [a Municipal Corporation] ("Buyer"), effective
as of , 2017, SCE hereby sells, assigns, transfers and delivers to Buyer all
of SCE's right, title and interest in and to the property described in Attachment A
("Facilities"), attached hereto and hereby incorporated herein by this reference. All
capitalized terms not defined in this Bill of Sale shall have the meanings given them in
the Agreement.
THE FACILITIES ARE BEING TRANSFERRED "AS IS, WHERE IS, AND WITH ALL
FAULTS" IN THEIR EXISTING CONDITION, WITHOUT ANY REPRESENTATIONS
OR WARRANTIES OF ANY KIND BY SCE, EXPRESS, IMPLIED OR STATUTORY,
AND WITHOUT RECOURSE AGAINST SCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR
IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE FACILITIES, THE
PROSPECTS (FINANCIAL AND OTHERWISE) OF THE FACILITIES, THE QUALITY
OF WORKMANSHIP OF THE FACILITIES, OR THE ABSENCE OF ANY DEFECTS
THEREIN, WHETHER LATENT OR PATENT. SCE FURTHER SPECIFICALLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING POTENTIAL
ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS SUBSTANCES,
COMPLIANCE OF THE FACILITIES OR THE LAND WHERE THE FACILITIES ARE
LOCATED WITH ENVIRONMENTAL REQUIREMENTS, OR LIABILITY OR
POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL REQUIREMENTS.
BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SCE IS NOT
ASSIGNING OR OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST
IN AND TO ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING
UNDER OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS
SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL
RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF ADEQUATE OR
APPROPRIATE LAND RIGHTS.
This Bill of Sale is executed pursuant to the authorization contained in the order of the
California Public Utilities Commission in its Decision No. , dated
, and is subject to all the terms and conditions of the Agreement,
including the provisions set forth above.
Exhibit B-1
B-21
The parties represent that they are duly authorized to execute this Bill of Sale.
Accepted and Agreed:
:
lord 210
City of Rancho Palos Verdes,
a California corporation
1►FTM-
Title:
SOUTHERN CALIFORNIA EDISON COMPANY,
a California corporation
Bv:
Greg Ferree
VP, Distribution
Exhibit B-2
B-22
Exhibit C
Planning, Inspection and Severance Activities
Section
Reference
,Activity
'SCE Responsibility
City Responsibility
2.2
Provide Buyer with draft phase maps
x
6.2(a)
Field validation to identify applicable LS -1 Streetlights
x
6.2(a)
l entify/Confirm Points of Demarcation (POD)
x
6.2(a)
Confirrn every pole in the City has been accounted for
x
6.2(a)
Confirm actual phase maps and transition timelines
x
x
6.2(a)
Communicate with the Buyer any additional relocation/reconfiguration costs (assets and operational)
x
6.2(b)
Buyer accepts or refuses any additional relocation/reconfiguration costs (assets and operational)- please see above
x
6.2 (c)
Update the inventory if applicable)
x
3.1(c)
Update the Purchase Price for the Final Phase as applicable if pole count varies by 5% or -pore',
X
6.2(a)
Provide revised maps and inventory list to Buyer (if applicable)
x
6.2(b)
Buyer signs off on updated inventory list (if applicable)
6.2(d)
Bill of Sale to Buyer for current Phase
x
6.2(a)
SCE Pole tag removal
x
6.2(a)
Buyer installs its pole tags
X
6,2(e)
Bu er payment
x
6.4(a)
Convert from LS -1 to LS -2B rate at com letion of each Phase
Y
6.4(b'i
Provide updated LS -2 B maps and inventory list to Buyer
A
6.4{c)
Buyer confirms rate change has gone into effect
6.4(di
Phase is complete
Y:
_:
B-23
Exhibit D
Communications Equipment
Smart Connect Installations
Mit—Site—name
Site—address
city
Structure#
Pri Mount Subtype
Latitude
Longitude
44RREPO018
27602 FAWSKIN DR
PALOS VERDES
1320002E
STREET LIGHT
- CONCRETE
33.46272
-118.2247
44RREPO019
27645 FLAMING ARROW DR
PALOS VERDES
1725860E
STREET LIGHT
- CONCRETE
33.46449
-118.2213
44RREPO020
27837 LONGHILL DR
PALOS VERDES
1725869E
STREET LIGHT
- CONCRETE
33.773165
-118.3659
44RREPO021
27850 LONGHILL DR
PALOS VERDES
1666794E
STREET LIGHT
- CONCRETE
33.46393
-118.2196
44RREPO022
127890 LONGHILL DR
PALOS VERDES
11666796E
ISTREET LIGHT
- CONCRETE
33.46366
-118.2185
B-25
Netcomm Installations
strctur_cd
loc_nam
Lat - Deg Lat - Min
Lat - Sec
Long - Deg
Long - Min
Long - Sec
strctur_cd
mnt_typ_cd
Material
I loc_addr
1982959E
44PR0163
33
46
36
118
23
5
1982959E
1983560E
1486929E
STLT
POLE
POLE
Concrete
Concrete
Concrete
F/O 28109 HIGHRIDGE
30618 CALLE DE SUENOS, END OF CUL-DE-SAC, OPEN L01
29322 WHITNEY COLLINS & NORTHBAY RD, ROLLING HILLS
1983560E
44PR0065
33 45 17 118 24 17
1486929E
44PR0113
33 45 53 118 22 38
1578943E
44PR0121
33
46
13
118
23
15
1578943E
POLE
Concrete
28750 COVECREST CORNER OF INDIAN VALLEY, COVECREST
1944948E
44PR0122
33
46
28
118
23
17
1944948E
POLE
Concrete
S/E/O COVECREST/COVERIDGE
1610485E
44PR0123
33
46
3
118
22
40
1610485E
POLE
Concrete
NORTHBAY RD AT MISTRIDGE DR PALOS VERDES
1486931E
44PR0124
33
45
55
118
22
41
1486931E
POLE
Concrete
29281 WHITLEY COLLINS RD & NORTHBAY RD, PV
1579138E
44PR0125
33
46
29
118
23
7
1579138E
POLE
Concrete
16043 SCOTMIST S/O MEDOWMIST, ROLLING HILLS, PV
1458891E
44PR0129
33
46
54
118
24
12
1458891E
POLE
Steel
7029 BEECHFIELD DR. RANCHO PALOS VERDES
1610497E
44PR0131
33
45
52
118
22
26
1610497E
POLE
Concrete
LEFT OF 5602 SCOTTWOOD DR. PALOS VERDE
1578971E
44PR0132
33
45
48
118
22
20
1578971E
POLE
Concrete
RIGHT OF 5621 SUNMIST DR. PALOS VERDE
1578533E
44PR0133
33
45
55
118
22
33
1578533E
POLE
Concrete
LEFT OF 5641 SEASIDE HEIGHTS, PALOS VERDES
1358008E
44PR0178
33
47
26
118
22
48
1358008E
POLE
Steel
F/O 264293 ASHFORK PL.
1640339E
44PR0300
33
46
53
118
21
53
1640339E
POLE
Concrete
F/O 26615 HONEYCREEK E/O CUL-DE SAC ON LFT
4254950E
44PR0064
33
45
25
118
23
50
4254950E
POLE
Concrete
N/S/O LOS VERDES DR. ACROSS OF 6762 & 6780 APTS.
as
44PR0157
33
44
55
118
23
37
POLE
Concrete
N/W CORNER OF VIA LA CRESTA AND VALLON DR.
2094584E
44PR0015
33
46
25
118
22
20
2094584E
STLT
Concrete
R/O 27609 LONGHILL DR X HALES CORNER, RPV
4254945E
4595125E
4254876E
44PR0143
33
45
19
118
23
47
4254945E
STLT
Fiberglas
Concrete
Fiberglas
N/S LOS VERDES DR. 150' W/O HAWTHORNE BL. PV
2ND STLT WEST ON ARMAGA SPR. FROM HIGHRIDGE INTERS
CREST RD. N/S, 280'W/O C/L AVE. ELEGANTE
44PR0169 33 46 18 118 22 54
44PR0389 33 45 49 118 24 19
4595125E STLT
4254876E F STLT
4254402E
44PR0390
33
45
28
118
23
49
4254402E
STLT
Fiberglas
N/E C/O LOS VERDES DR. AND AVENIDA ESPLE
4296350E
44PR0399
33
44
46
118
19
43
4296350E
STLT
Fiberglas
GRANDPOINT LN., W/S 191' S/0 KNOLL VIEW
2371041E
44PRO4001
33
46
46
118
23
13
2371041E
STLT
Concrete
HAWTHORNE BL N/S, W/O GRAYSLAKE RD., R.P
1458475E
4413130009
33
46
21
118
24
16
1458475E
POLE
Concrete
GOLDEN MEADOW DR. W 20' S/0 C/L WILLO
1394736E
44PR0055
' 33
46
48
118
23
20
1394736E
POLE
Steel
ALVAREZ DR W/5,260' S/0 MONERO DR
1319990E
44PR0058
33
46
25
118
22
15
1319990E
POLE
Concrete
27641 LONG HILLX/O FAWNSKIN PV
4254922E
44PR0152
33
45
41
118
23
38
4254922E
POLE
Fiberglass
S/S CREST RD. 223' W/O HAWTHORNE BLVD.
1486765E
44PR0202
33
45
48
118
22
41
1486765E
POLE
Concrete
29438 STONECREST
NO -FEE
LIGHT POLE LICENSE AGREEMENT
FOR WIRELESS ATTACHMENT
BETWEEN
THE CITY OF RANCHO PALOS VERDES
AND
SOUTHERN CALIFORNIA EDISON
This No -Fee Light Pole License Agreement ("Agreement") is made as of
, 2017 ("Effective Date"), by and between the City Of Rancho Palos Verdes,
[a Municipal Corporation] ("Licensor"), and Southern California Edison Company, a
California corporation ("Licensee"), individually "Party" and collectively "Parties."
Licensor herein provides Licensee a no -fee license to attach certain wireless
communication equipment to light poles that are owned by Licensor and used by Licensor
to provide street lighting services to customers.
The terms and conditions of this Agreement are as follows:
1. DEFINITIONS
Terms with the initial letter or letters capitalized, whether in the singular or plural,
shall have the following meanings:
a. Applicable Requirement: Any law, code, regulation, ordinance, statute or
requirement of a governmental or quasi -governmental authority, regulatory agency or any
other similar authority with jurisdiction or control over access to or use of the Light Pole,
an Attachment, Work on a Light Pole or operation of an Attachment.
b. Attachment: A wireless communicating device used solely in connection with
SCE's utility and metering operations together with all of its associated ancillary equipment
which are owned by Licensee and serve the purpose(s) presently served by those fixtures
identified in Exhibit A hereto.
C. Custom Light Pole: A specialized light pole, owned and installed by Licensor
and paid for by Licensee, for the purposes of accommodating Licensee's Attachment and for
Licensor to provide street lighting services.
d. Equipment: All ancillary equipment owned and utilized by Licensee in
connection with an Attachment, and installed on third party property.
e. Light Pole: A Licensor Light Pole or a Custom Light Pole.
f. Licensor Light Pole: A standard light pole owned by Licensor used to provide
street lighting services.
-1-
B-27
g. Work: Any work performed by Licensee relating to an Attachment, including
the installation, repair, removal or replacement of the Attachment or Equipment.
2. TERM
The initial term of this Agreement shall be ten (10) years, with automatic renewal
terms of ten (10) years each, provided, however, that either Party may terminate this
Agreement by written notice to the other Party given not more than one year and not less
than ninety (90) days prior to the expiration of the initial term or any succeeding term
("Termination Notice"). Upon the issuance of a Termination Notice by either Party, only
Licensee's rights to install Future Attachments as described in this Agreement shall
terminate, but Licensee's rights under this Agreement with regard to then -installed
Attachments and Upgraded Attachments shall not terminate.
3. ATTACHMENTS
The installed Attachments are listed in Exhibit A hereto. During the term hereof,
Licensee shall have the right (i) to upgrade Attachments to new technology that serves the
same purpose as the Attachments listed on Exhibit A ("Upgraded Attachments"), and (ii)
to install new Attachments that are not listed in Exhibit A ("Future Attachments") in
accordance with Section 6 of this Agreement, so long as such Upgraded Attachments and
Future Attachments serve the same purpose as the Attachments listed on Exhibit A and
do not interfere in any manner with any then -existing Licensor equipment. All
installations of Upgraded Attachments and Future Attachments shall be performed in a
good and workmanlike manner.
4. LICENSEE'S ATTACHMENT RIGHTS
Licensee shall have a no -fee license to use the Attachment for wireless
communications, and to maintain, remove, repair or replace the Attachment, as described
herein (collectively, the "Attachment Rights"). All costs and expenses incurred by Licensee
as a result of Licensee's exercise of its Attachment Rights hereunder shall be the sole
responsibility of Licensee.
5. CONDITIONS AND RESTRICTIONS ON LICENSE RIGHTS
In addition to the other terms and conditions of this Agreement, Licensee's exercise
of its Attachment Rights shall be subject to the following conditions and restrictions:
a. Licensee shall operate its Attachment for wireless communication equipment.
b. Licensee shall be solely responsible for separately obtaining any electric utility
or other services required for operation of its Attachment, if secondary power from the
streetlight is inaccessible.
-2-
i
C. Licensor shall not be required to modify the Light Pole to accommodate use by
the Licensee.
d. Licensor shall not install any Equipment for the Licensee, Licensee shall be
solely responsible for the installation of any Equipment.
e. Licensee's rights regarding Upgraded Attachments and/or Future
Attachments shall not interfere with Licensor's street -lighting or municipal operations. If
an Attachment made under this Agreement interferes with Licensor's ability to use a Light
Pole, then Licensor will inform the Licensee and Licensee shall remedy the interference in
a reasonably prompt period of time after receiving notice of the interference from Licensor.
If Licensee fails to remedy the interference after sixty (60) days, Licensor may remove the
Attachment.
f. Licensor may install and may permit third parties to install new devices.
However, Licensor shall not install any new devices, and Licensor shall not allow third
parties to install any new devices, that interfere with Licensee's Attachment. If Licensor's
installation, or a Licensor -permitted third party's installation, of a new device interferes
with Licensee's wireless communication, then Licensee will inform the Licensor and
Licensor shall immediately remedy the interference.
g. Prior to commencing any work or activity affecting any Light Pole, Licensee
shall provide Licensor with not less than three (3) business days prior notice.
6. ATTACHMENT
a. Licensee shall be allowed to install Future Attachments at additional locations
under this Agreement upon reasonable prior notice to Licensor; provided, however, Licensor
may disapprove proposed Future Attachments in the event Licensor reasonably determines
the proposed Future Attachments may interfere with any municipal operations or Licensor
equipment, or in the event that Licensor reasonably determines that additional
Attachments will threaten the public health and safety. Licensee shall provide Licensor the
structure number and address or location description where the Attachment will be
installed.
b. Licensee shall use commercially reasonable efforts to perform any Work in a
manner which will not cause any interruption of Licensor's street -lighting services or other
equipment.
C. All Work shall be performed at Licensee's sole risk and cost and shall be
performed in a good and workmanlike manner and Licensee shall indemnify, defend and
hold harmless Licensor, its elected officials, staff, directors, invitees, employees, agents,
contractors, successors and assigns, from any and all costs, liabilities, claims and expenses,
including those from death or injury to any person or from a loss or damage to any real,
personal or other property, to the extent arising out of or pertaining to any Work, or any act
-3-
or failure to act by any of Licensee's employees, agents, or contractors in relation to the
Upgraded Attachments and Future Attachments.
d. The performance of any Work shall comply with the requirements for such
Work as contained in applicable industry standards, specific work requirements imposed by
Licensor or a third party, or in any Applicable Requirements associated with the Work.
e. Upon written notification from Licensor or a government authority that the
Attachment or any Equipment is out of compliance with any Applicable Requirement or is
unsafe or hazardous, Licensee shall promptly take whatever actions are necessary to come
into full compliance with such Applicable Requirements or to remedy the unsafe or
hazardous condition, as the case may be. Notwithstanding any other provision of this
Agreement, if at any time, in Licensor's sole judgment, an unsafe or dangerous condition
exists, Licensor shall immediately notify Licensee and Licensee shall have twenty-four (24)
hours from such notice to remedy the unsafe or dangerous condition. If Licensee does not
remedy the unsafe or dangerous condition within such twenty-four (24) hour period, then
Licensor may correct such condition and notify Licensee of such correction within three (3)
business days. If at any time, in Licensor's sole judgment, an imminent threat to human
life or safety exists, Licensor may correct such condition and notify Licensee of such
correction within three (3) business days.
f. Licensee shall not drill, burn or punch any holes in a Light Pole, without first
obtaining written consent from Licensor, which consent shall not be unreasonably withheld.
Licensee shall reimburse Licensor for any damage to any Licensor Light Pole in connection
with the use, repair, restoration or replacement of a Light Pole by Licensee.
g. Licensee shall follow Licensor's established procedures to request Licensor to
replace a Licensor Light Pole with a Custom Light Pole, and Licensee shall be solely
responsible for all costs of such request and any resulting replacement.
7. REMOVAL OF AN ATTACHMENT FROM A LIGHT POLE
a. Licensee may at any time remove an Attachment from any Light Pole.
b. Nothing in this Agreement shall be construed to limit Licensor's rights, at any
time, to remove a Light Pole from service or to require Licensee to remove its Attachment
from a Light Pole that is being removed from service. In the event Licensor requires
Licensee to remove its Attachment from a Light Pole that is being removed from service,
then Licensor will notify Licensee ninety (90) days prior to the removal and use reasonable
efforts to supply Licensee with an alternative Light Pole for such Attachment. Licensee shall
complete removal of its Attachment within ninety (90) days of Licensor's request to do so.
C. Whenever Licensee removes an Attachment, Licensee shall restore the Light
Pole to its original condition, reasonable wear and tear excepted, except where Licensor
notifies Licensee that restoration is unnecessary because the Light Pole is being removed
from service or Licensor agrees otherwise.
I"
d. When a Light Pole that contains an existing Attachment is relocated or
replaced by Licensor, and there is a suitable other location for a new Light Pole or an
existing Light Pole which could be used by Licensee for its Attachment, then Licensor and
the Licensee may agree that Licensee may so use the other location or Light Pole and amend
Exhibit A to reflect the transfer of Licensee's Attachment Rights. Except in emergency
situations, Licensor will notify Licensee ninety (90) days prior to relocation or replacement
of a Light Pole.
8. RISK OF LOSS; RESTORATION OR REPAIR OF LIGHT POLE
In the event a Light Pole is damaged or destroyed, restoration of Licensor's use of a
Light Pole shall take priority over Licensee's restoration of its use; provided, however, that
Licensor shall not unreasonably delay Licensee's opportunity to restore the use of its
Attachment. Licensor shall permit Licensee to make repairs to restore use of the
Attachment, as long as such restoration efforts do not interfere with Licensor's restoration
activities. In addition, Licensee shall fully cooperate with Licensor if Licensor performs any
repairs or other work on the Light Pole, which work may require a temporary shutdown of
Licensee's Attachment. The Licensor shall notify the Licensee at least 48 hours prior to
planned repairs that will require a shutdown of the Licensee's Attachment.
9. REGULATORY MATTERS
To the extent that this Agreement is subject to the jurisdiction of any regulatory
authority, Licensor and Licensee acknowledge that this Agreement may be subject to such
changes, modifications or termination as that regulatory authority may direct from time to
time in the exercise of its jurisdiction.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
a. Licensee shall indemnify, defend and hold harmless Licensor, its elected
officials, staff, directors, invitees, employees, agents, contractors, successors and assigns,
from any and all costs, liabilities, claims and expenses, including those from death or injury
to any person or from a loss or damage to any real, personal or other property, to the extent
arising from any negligent act or omission by Licensee, or by any of Licensee's employees,
agents, or contractors in performing this Agreement.
b. Licensor shall indemnify, defend and hold harmless Licensee, its affiliates and
each of their directors, invitees, employees, agents, contractors, successors and assigns,
from any and all costs, liabilities, claims and expenses, including those from death or injury
to any person or from a loss or damage to any real, personal or other property, to the extent
arising from any negligent act or omission by Licensor, or by any of Licensor's employees,
agents, or contractors in performing this Agreement.
C. The indemnified Party shall promptly notify the indemnifying Party of the
existence of any matters to which indemnifying Party's indemnity obligations apply. Upon
demand by indemnified Party, the indemnifying Party shall defend at its own expense with
-5-
B-31
mutually acceptable counsel any such matter; provided that indemnified Party shall at all
times also have the right to fully participate in the defense and consent to any settlement
or compromise.
d. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR
PUNITIVE DAMAGES (INCLUDING LOSS OF THE OTHER PARTY'S CUSTOMERS OR
GOOD WILL, OR LOST REVENUE OR PROFITS), FOR ANY CAUSE OF ACTION,
WHETHER IN CONTRACT OR TORT, ARISING IN ANY MANNER FROM THIS
AGREEMENT OR THE PERFORMANCE OR NON -PERFORMANCE OF OBLIGATIONS
HEREUNDER, REGARDLESS OF THE CAUSE OR FORESEEABILITY THEREOF.
11. TITLE AND RISK OF LOSS
a. Licensor shall have and retain sole and exclusive ownership of all Light Poles,
and Licensor's ownership shall not be affected by Licensee's Attachment to the Light Pole.
b. Except as otherwise provided for herein, Licensee shall retain its ownership of
the Attachment and any Equipment at all times.
12. INSURANCE
At all times during the term of this Agreement, Licensee shall maintain and shall
require its subcontractors that perform any Work pursuant to this Agreement to maintain
insurance coverage as described below:
a. Worker's Compensation Insurance with statutory limits, in accordance with
the laws of the State of California, and Employer's Liability Insurance with limits of not
less than one million dollars ($1,000,000). Licensee shall require its insurer to waive all
rights of subrogation against Licensor, its officers, agents and employees.
b. Commercial General Liability Insurance, including coverage for bodily injury,
property damage, products/completed operations liability and contractual liability, with a
per occurrence limit of not less than two million dollars ($2,000,000). Such insurance shall
(i) name the Licensor, its officers, agents, and employees as additional insureds, but only
for Licensee's negligent acts or omissions; (ii) be primary for all purposes; and (iii) contain
standard cross -liability provisions.
Written proof of compliance with the requirements of this Section, consisting of
Certificates of Insurance and a copy of the Additional Insured Endorsement for the
Commercial General Liability insurance policy, in a form acceptable to Licensor, shall be
provided to Licensor prior to any Attachment or the installation of any Equipment upon any
Light Pole and prior to the expiration of each policy year thereafter. The Certificates of
Insurance shall provide that this insurance shall not be terminated, canceled or reduced
except on thirty days' prior written notice to Licensor. Failure to provide and maintain such
I on
B-32
insurance shall constitute a default under this Agreement. Licensee may self -insure any
and all of the above insurance requirements.
13. REMEDIES IN THE EVENT OF DEFAULT
If either Party fails to comply with a material term or condition of this Agreement,
the non -breaching party shall provide written notice to the defaulting party of such non-
compliance. The breaching party shall then have thirty (30) days (except in the case of
health and safety issues, which shall require cure within forty-eight (48) hours) from receipt
of such notice to reasonably cure such non-compliance. If such a cure is not completed within
the thirty (30) day period (or 48 hour period as provided above), or if a cure is not possible
within such period and the breaching party has not taken steps to effect such cure, then the
non -breaching party may pursue its legal remedies relating to such non-compliance.
14. DISPUTE RESOLUTION
a. Except as may otherwise be set forth expressly herein, all disputes arising
under this Agreement shall be resolved as set forth in this Section 14. To be eligible for
resolution under this Section 14, all disputes concerning payments must be invoked within
sixty (60) business days of the payment due date.
b. Licensor and Licensee shall attempt in good faith to resolve any dispute arising
out of or relating to this Agreement promptly by negotiations between an authorized
representative of each of the Parties. Any dispute which cannot be resolved between the
authorized representative shall be referred to an officer or designee of Licensee and the City
Manager of Licensor. Licensor or Licensee shall give the other Party written notice of any
dispute following expiration of the applicable cure period pursuant to Section 13. Within
twenty (20) days after delivery of such notice, the designated parties shall meet at a
mutually acceptable time and place, and thereafter as often as they reasonably deem
necessary to exchange information and to attempt to resolve the dispute. If the matter has
not been resolved within thirty (30) days of the first meeting, the Parties will consider and
decide whether the dispute should be submitted to JAMS, or its successor, for mediation.
C. All negotiations and any mediation conducted pursuant to this Section 14 shall
be confidential and shall be treated as compromise and settlement negotiations, to which
Section 1152 of the California Evidence Code shall apply, which section is incorporated in
this Agreement by reference.
d. Notwithstanding the foregoing provisions, either Licensor or Licensee may
seek immediate equitable relief, a preliminary injunction or other provisional judicial
remedy.
e. Licensor and Licensee shall continue to perform their obligations under this
Agreement pending final resolution of any dispute arising out of or relating to this
Agreement.
-7-
B-33
f. If Licensor and Licensee, after good faith efforts to resolve a dispute under the
terms of this Agreement (as provided in Subpart b above), cannot agree to a resolution of
the dispute, either party may pursue whatever legal remedies may be available to such
party, at law or in equity, before a court of competent jurisdiction and with venue in Los
Angeles County, California.
15. TAXES AND LIENS
Licensee shall pay when due any and all taxes or assessment resulting from any
Attachment on any Light Pole including, but not limited to, special assessments and
governmental fees of any kind whatsoever which may be levied or assessed upon any
personal property which Licensee has caused to be placed or maintained upon Licensor's
facilities, or against Licensee's business and shall keep Licensor's property and facilities,
including any Light Poles, free from all liens, including but not limited to mechanics liens,
and encumbrances by reason of the use, occupancy, or maintenance of Licensor's facilities
or property by Licensee or by any person claiming under Licensee. It is further agreed that
in the event Licensee fails to pay the above-mentioned taxes, assessments, or liens when
due, Licensor shall have the right to pay the same and invoice Licensee for the amount
thereof and Licensee shall pay the same upon demand together with interest at the
maximum rate allowed by law from the date of such expenditure by Licensor.
16. NOTICES
Notices hereunder must be in writing and transmitted by United States mail or by
personal delivery to Licensor. Such notices shall be deemed given: (a) upon receipt in the
case of personal delivery or confirmed facsimile transmittal; (b) two (2) days after it is sent
by certified mail, with a return receipt requested, (c) three (3) days after deposit in the mail,
or the next day in the event of overnight delivery.
If to Licensor: City of Rancho Palos Verdes
Attention: Nicole Jules
30940 Hawthorne Blvd
Rancho Palos Verdes, CA 90275
If to Licensee: Southern California Edison
Manager of Streetlights Attention: John King
6042 A Irwindale Ave, Irwindale CA 91702
In
17. DISCLAIMER
LICENSOR MAKES NO REPRESENTATION OR WARRANTY
WHATSOEVER CONCERNING THE SUITABILITY OR CONDITION OF ANY
LIGHT POLE. FURTHERMORE, IT IS SPECIFICALLY UNDERSTOOD AND
HEREBY ACKNOWLEDGED BY LICENSEE THAT ANY LIGHT POLE MADE
AVAILABLE HEREUNDER, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW,
WILL BE PROVIDED BY LICENSOR ONLY ON AN "AS -IS" BASIS AND WITHOUT
ANY WARRANTY BY LICENSOR ABOUT THE CONDITION OF THE LIGHT POLE
OR ITS SUITABILITY FOR LICENSEE'S PURPOSES. FURTHER, LICENSEE'S
RIGHTS HEREUNDER SHALL BE SUBORDINATE TO LICENSOR'S USE OF THE
LIGHT POLE FOR STREET LIGHTING SERVICES.
18. GENERAL PROVISIONS
a. California Law. This Agreement, and performance pursuant to it, shall be
governed, interpreted, construed, and regulated by the laws of the State of California,
without reference to its conflicts of laws provisions.
b. Assignment. Neither Party may assign, transfer, sublease, or sublet any right,
obligation, or privilege given to it hereunder without the prior written consent of the other
Party. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the Parties hereto.
c. Interpretation. The language of each part of this Agreement shall be construed
simply and according to its fair meaning, and shall never be construed either for or against
either Party, regardless of which Party may have drafted the provision.
d. Nature of Rights. Nothing in this Agreement shall preclude Licensor from
granting any third -party permission to use available capacity on a Light Pole in ways that
do not interfere with the rights granted to Licensee under this Agreement.
e. Invalidity of Provisions. To the extent that any terms or provisions of this
Agreement shall be finally determined by a court of competent jurisdiction to be invalid,
(i) such invalidity shall not affect, release or modify any other terms or provisions, and (ii) in
lieu of each such provision which is invalid, illegal or unenforceable, there shall be
substituted or added as part of this Agreement a legal, valid and enforceable provision which
shall be selected to be as similar as possible, in achieving the economic and business
objectives of the Parties, to such illegal, invalid or unenforceable provision.
f. Waiver. The failure of either Party to enforce any provision of this Agreement or
the waiver thereof in any instance, including but not limited to the right to terminate, shall
not be construed as a general waiver or relinquishment on its part of any such provision but
the same shall nevertheless be and remain in full force and effect.
I US
B-35
g. Incorporation Clause. This Agreement, including attached Exhibits, incorporate
all the covenants and understandings between Licensor and Licensee regarding the subject
matter of this Agreement. No other verbal agreements or understandings exist between the
Parties nor shall any be binding upon either Licensor or Licensee unless reduced to writing
and signed by the Parties. Any addition, variation or modification to this or any other
Agreement shall be ineffective unless made in writing and signed by the Parties.
h. Radio Frequency Emission ("RFE") Compliance. Licensee shall be responsible, at
its sole cost and expense, for ensuring compliance with all regulations relating to RFE.
Licensor will cooperate with Licensee, where possible, to allow Licensee to place required
signage on a Light Pole where this is necessary to comply with RFE regulations. In addition,
Licensee shall use its best efforts to minimize the RFE impact on health of workers and on
future uses of the Light Pole.
i. Exhibits. Exhibits referenced herein are incorporated by said reference.
Licensee shall provide any updates of Exhibit A to Licensor within thirty (30) days of
Licensor's written request, delivered pursuant to Section 16 of this Agreement, but not more
often than once each calendar quarter. Specifically included as exhibits to this Agreement
hereto are:
Exhibit A: List of Installed Attachments
j. Confidentiality. Notwithstanding any language to the contrary in any
applicable non -disclosure or confidentiality agreement between the Parties, Licensor may,
without the prior consent of the Licensee, provide confidential or proprietary information
related to this Agreement to a governmental or regulatory entity that requests such
information. In addition, Licensee recognizes that Licensor is a public agency subject to the
California Public Records Act and that disclosures may be required thereunder.
SIGNATURES
By signing below, the signatories hereto represent and warrant that they have been
duly authorized to sign this Agreement on behalf of the Party for whom they sign.
CITY OF RANCHO PALOS VERDES, SOUTHERN CALIFORNIA EDISON
[a Municipal corporation] COMPANY, a California corporation
By:
Print
Name:
Title:
Date:
-10-
By:
Name: Greg Ferree
Title: VP, Distribution
Date:
EXHIBIT A
List of Attachments
SmartConnect Installed Devices
NetComm Installed Devices
-12-
B-37
Smart Connect Installations
Mit—Site—name
Site—address
city
Structure#
Pri Mount Subtype
Latitude
Longitude
44RREPO018
27602 FAWSKIN DR
PALOS VERDES
1320002E
STREET LIGHT
- CONCRETE
33.46272
-118.2247
44RREPO019
27645 FLAMING ARROW DR
PALOS VERDES
1725860E
STREET LIGHT
- CONCRETE
33.46449
-118.2213
44RREPO020
27837 LONGHILL DR
PALOS VERDES
1725869E
STREET LIGHT
- CONCRETE
33.773165
-118.3659
44RREPO021
27850 LONGHILL DR
PALOS VERDES
1666794E
STREET LIGHT
- CONCRETE
33.46393
-118.2196
44RREPO022
127890 LONGHILL DR
PALOS VERDES
11666796E
ISTREET LIGHT
- CONCRETE
33.46366
-118.2185