HomeMy WebLinkAboutAGENDA REPORT 2017 0726 CCSA SPC ITEM 05A ITEM 5_&
CITY OF MOORPARK,CALIFORNIA
City Council Meeting
MOORPARK CITY COUNCIL , /
AGENDA REPORT
av:
TO: The Honorable City Council
FROM: Jessica Sandifer, Program Manag• _-
DATE: July 21, 2017 (Special CC Meeting of 07/26117)
SUBJECT: Consider Approval of Purchase and Sale Agreement and Light Pole
License Agreement with Southern California Edison (SCE) for
Acquisition of Streetlights
BACKGROUND
In 2013, Southern California Edison (SCE) changed their policy to allow for sales of
their streetlight systems to local governments and developed a standardized procedure
and valuation methodology (replacement costs, less depreciation) to facilitate the
purchasing process.
In October 2013, Governor Brown signed AB 719 into law, which required Investor
Owned Utilities (IOU's), such as SCE, to create and submit to the California Public
Utilities Commission (CPUC) a tariff rate for municipalities that want their streetlights
converted to Light Emitting Diode (IED). The tariff rate sets up a mechanism by which
municipalities can pay SCE to make the upgrades and finance the upgrades through the
tariff on their electrical bills. The tariff, Option E, that SCE submitted to the CPUC, and
the CPUC approved, assumes a 20 year amortization of the costs.
As there is no rule or regulation that requires IOU's to allow government entities to
purchase their streetlight systems, in July 2015, SCE decided to halt the streetlight
acquisition program effective in August 2015. Cities that were interested in purchasing
their streetlight systems were given until August 15, 2015, to pay the $10,000 fee to get
into the queue for a system valuation. The City of Moorpark made the payment and was
put into the queue. On June 1, 2016, SCE presented the valuation of the streetlight
system to City staff. The valuation identified 2,229 of the 2,367 SCE owned streetlights
in the City as available for purchase. At the time, staff believed that the City had one
year from the date of the presentation of the valuation to make a decision about moving
forward with the purchase of the system. On May 3, 2017, staff presented an analysis of
the potential costs savings and the City Council approved moving forward with
negotiations to purchase the streetlights.
1
Honorable City Council
July 26, 2017
Page 2
DISCUSSION
SCE has recently notified the City that in order for the purchase of the streetlights to be
valid, SCE needed to have a signed Purchase and Sale Agreement within one-year of
the system valuation provided to the City, not just an authorization to move forward with
the purchase, which was staff's understanding. SCE has provided us an extension to
August 15, 2017, to finalize the Agreements for the purchase. SCE has provided the
City with their standard Purchase and Sale Agreement for review and comment. In
addition to the Purchase and Sale Agreement, SCE requires a Light Pole License
Agreement that allows SCE to continue operating wireless data systems that are
currently in place in the community. These systems transmit data from SCE customer
meters and distribution facilities to SCE. The continued use by SCE of their wireless
systems will not impact the City's ability to develop and implement a broadband wireless
communication system of its own, should the City Council elect to do so.
Once signed, the Agreement will be submitted to the CPUC for approval which is
expected to take four to six months. The agreement requires, as a part of the transition
of the streetlights to the City, that the City and SCE do a physical inventory and audit of
each streetlight. At the conclusion of the inventory and once a final count has been
determined, the City and SCE will reconcile the number of streetlights to be transferred.
Any number less than 2,229 included in the Agreement will result in a credit to the City
and any number more than 2,229 will result in the City paying an additional cost per
streetlight to SCE. The reconciliation will be based on the average price per streetlight
for each type (wood, concrete etc.). The inventory and transfer of the streetlights will
likely take place over a several month period of approximately four to eight months,
which would commence within 60-days of the CPUC approval of the Agreement.
Currently, staff is in the process of engaging the firm of PFM to provide an analysis of
the economics of purchasing the streetlights, as well as providing the City different
financing options for the purchase. Once PFM has completed their analysis, a Request
for Proposals would be prepared and released to identify a vendor that would act as the
City's consultant in the light conversion, inventory process, and long term maintenance
of the system. Staff will return after the summer meeting recess with separate staff
reports for these items.
Staff has reviewed the Agreements and has recommended changes that will be shared
with SCE. Due to the City Council summer recess and in the interest of meeting the
August deadline, staff is requesting approval of the Purchase and Sale Agreement and
Light Pole License Agreement, subject to final language approval of the City Manager
and City Attorney, to allow staff to finalize negotiations with SCE within the extended
timeframe.
2
Honorable City Council
July 26, 2017
Page 3
FISCAL IMPACT
As previously, discussed, the system valuation provided to the City by SCE identified
2,229 of the 2,367 SCE-owned streetlight poles as available for purchase by the City.
Streetlight poles that contain distribution wiring or other utilities are not available for
sale. At the City Council meeting of May 3, 2017, the cost to purchase the 2,229 poles
from SCE was valued at $1,301,403,using their valuation methodology, which included
severance costs of $66,870. Since the initial valuation, SCE has increased the
contracted price for transition work from $30 per sellable pole to $32.15 per sellable
pole. This has resulted in an increase in the severances costs of$4,762. The new total
cost to purchase the streetlights is $1,306,195.
A summary of the savings presented at the May 3, 2017 meeting is outlined below:
O The costs to acquire the streetlight system are $1,306,195.
• The estimated costs to convert the system to LED are$1,200,000.
o Annual savings after initial purchase will be $35,664, and increase to $156,000,
after LED conversion. This savings includes maintenance costs for the system.
The savings would be lower if the City were to elect to finance the purchase and
conversion.
• The City would also need to set aside funds for reasonable replacement costs of
the poles, wiring and fixtures as they age, which could add an additional $40/pole
annually. The analysis by the financial consultant will assist with setting up a
reasonable replacement reserve to be set aside on an annual basis to ensure
that the City has the future funds to maintain the system.
SUMMARY
Staff is recommending that the City Council authorize the City Manager to sign the
Purchase and Sale Agreement for acquisition of the streetlight system and the Light
Pole License Agreement with SCE, subject to final language approval of the City
Manager and City Attorney. The agreements, as presented, have been reviewed by the
City's Attorney. As mentioned staff is still negotiating the language of the purchase
agreement, however, the cost will remain the same, subject to the final audit and
inventory. Language has been added to the Agreement that the City Council must have
approved a financing mechanism prior to the sale closing, and that the City can cancel
the Agreement at any time prior to the CPUC approval of the Agreements, These
clauses have been n included in other City's SCE purchase and Sale agreements and
have been recommended by the City Attorney to allow for the Agreement to be
cancelled, should the City elect to not move forward with the acquisition, expecially if
the acquisition should be determined infeasible by the financial consultant.
Staff will return with a separate agenda report on the funding of the project and the RFP
for a vendor to assist with the conversion and retrofit, once the financial consultant has
finalized the analysis.
3
Honorable City Council
July 26, 2017
Page 4
STAFF RECOMMENDATION
1. Authorize the City Manager to sign the Purchase and Sale agreement with
Southern California Edison for acquisition of the streetlight system in the City of
Moorpark, subject to final language approval of the City Manager and City Attorney; and
2. Authorize the City Manager to sign the Light Pole License Agreement with
Southern California Edison, subject to final language approval of the City Manager and
City Attorney.
Attachments:
1. Purchase and Sale Agreement
2. Light Pole License Agreement
4
ATTACHMENT $
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 Moorpark,
California, 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 three hundred sixty-seven (2,367) LS-1 electric
streetlight facilities located in the City of Moorpark, California, of which two thousand
two hundred twenty-nine (2,229) 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 25
5
ATTACHMENT 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 seq.); the Hazardous Materials Transportation
Act (49 U.S.C. 6101 et sm.); and the Resource Conservation and Recovery Act (42
U.S.C. 6901 et sg.)
"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 8,3jb), 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 25
6
ATTACHMENT 1
"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 62(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
"Phase" means the U periods of (U months each, during which the
Parties will undertake certain activities as set forth in this Agreement with regard to
Page 3 of 25
7
ATTACHMENT 1
the Facilities identified in each such Phase. The Parties may mutually agree at any
time in writing to change the Phase Commencement Date and/or the Phase Closing
Date for any or all Phases.
"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 62 and 64 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 3.1,
"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,
Page 4 of 25
8
ATTACH M l> NT 1
sales, use, documentary transfer, registration, value added, alternative and add-on
minimum, estimated taxes, and all other taxes of any kind whatsoever, including all
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,
BCE 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 two thousand two hundred
twenty-nine (2,229) 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 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.
3. PURCHASE PRICE AN 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 one
million two hundred thirty-four thousand five hundred thirty-three Dollars
($1,234,533.00)
(a) Prior to the last 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) Prior to the last Phase Closing Date, if the Parties determine that the
number of Facilities that have been transferred to Buyer pursuant to this
Agreement does not equal 2,229 then, the Parties will amend the Bill of Sale 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 as contained on the June 1, 2016 LS-1 Streetlight System Valuation
for the City of Moorpark (attached in Exhibit F).
3.2 Severance Costs. In addition to the Purchase Price, Buyer shall pay to SCE
$72,662.00 ("Severance Costs") which shall represent SCEs good faith
estimate of the cost of SCE's Severance Activities with respect to the Facilities.
Buyer shall pay the Severance Costs in equal installments, as invoiced by SCE
in each Phase.
Page 5 of 25
9
ATTACHMENT 1
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 ail supplemental or
other state and local personal property Taxes with 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.
(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.
Page 6 of 25
10
ATTACHMENT 1
(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, 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.
4. CONDITIONS PRECEDENT
4.1 Conditions to Buyer's Obligations. Buyer's obligation under this Agree, ent 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.
Page 7 of 25
11
ATTACHMENT 1
(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) The City Council shall have identified and approved a structured financing
plan or budget allocation to pay the Purchase Price and Severance Costs. The
terms of a feasible financing or purchase shall be determined solely by the City
Council.
4.2 Conditions to SCE's Obligations SCEs obligation under this Agreement to sell
the Facilities to Buyer are 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.
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.
Buyer agrees to cooperate with SCEs 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.
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 this 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 initia upon written
notice to the other Party, and SCE and Buyer shall thereupon return to the other
Page 8 of 25
12
ATTACHMENT 1
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.
Buyer, in its sole discretion, shall have the right to terminate this Agreement at any
time prior to satisfaction of the condition precedent set forth in Section 4.3 upon
written notice to SCE. In that event, 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.
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
f=acilities, 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 materially and 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 5.2 shall survive the
termination of this Agreement.
5.2 Disclosure Reqardi rq 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 (except 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
Page 9 of 25
13
ATTACH M ENT 1
substantially in the same form as this paragraph, Buyer's obligations under this
Section 52 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 these 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 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
Page 10 of 25
14
ATTACHMENT 1
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.
6.4 "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 Phase Closin! Date. 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 City of Moorpark in accordance with SCE's standard
practices and tariffs and CPUC rules and regulations. Unless otherwise agreed
between the Parties in writing, such new streetlights will be accounted for under
Section 3.1 of this Agreement.
6. COMMENCEMENT AND POST-COMMENCEMENT ACTIVITIES,
6.1 Commencement Date. The ''Commencement Date" shall be the date that is
sixty (60) days after the CPUC Approval Date. 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.
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. The Parties shall take the following actions
during each Phase for the Facilities to be transferred to Buyer in such Phase:
Page 11 of 25
15
ATTACHMENT 1
(a) For a period not to exceed a (a) 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. 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 SCEs Local Service Planning Office,
(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) SCE shall notify Buyer in writing prior to each applicable Phase Closing Date
if SCE obtains or possesses actual knowledge, at any time during the Phase
in which the Facility will be purchased by uyer, of any material damage to a
Facility or any third-party formal claim that the condition of a Facility caused
property damage, injury or death.
(f) At any time prior to any Phase Closing, 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 25
16
ATTACHMENT 1
(g) 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.
(h) After completion of the final Phase, SCEs 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 change the charge for 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 bill credit, an amount equal to the difference
between the amount charged to Buyer under the LS-1 Schedule and the
amount that would have been charged to Buyer under the LS-2 Schedule for
the period beginning with the Phase Closing Date and ending on the date
SCEs 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 Connectin+ Non-Conformin.. Load. Buyer acknowledges and
agrees that Buyer's purchase of the Facilities does not entitle Buyer to connect
non-conforming load (that is, load inconsistent with the requirements of then-
applicable tariff under which Buyer is taking service at a particular Facility) to the
Facilities or supporting circuits beyond SCEs 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,
Page 13 of 25
17
ATTACHMENT 1
discharges and covenants 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 SCEs 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. Notwithstanding the foregoing, this
release does not apply to actions after the last Phase Closing Date by SCE that
involve the Facilities and are unrelated to the purchase and sale contemplated by
this Agreement.
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 1 542 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 ail 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
Page 14 of 25
18
ATTACHMENT 1
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, 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. 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 of 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 (1 0) 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.
Page 15 of 25
19
ATTACHMENT 1
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.
Notwithstanding the foregoing, Buyer shall have no right to assign this
Agreement or any of its rights or obligations under this Agreement, except as
may be necessary in connection with any transfer of title to the Facilities in
connection with financing and/or refinancing of the Facilities.
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, 8, 9.10 and 9.12 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:
If to Buyer: City of Moorpark
Attn: City Manager
799 Moorpark Avenue
Moorpark, California 93021
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
Page 16 of 25
20
ATTACHMENT 1
representatives of SCE. SCE expressly agrees that the obligations and liabilities
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
Exhibit F Streetlight System Valuation
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 Ventura
County 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, used for the collection and
relay of customer electrical service data from SCE meters and the collection,
relay, and communication of SCE with SCE's electrical distribution systems
("Communications Equipment Use"), 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 for Communications Equipment Use
Page 17 of 25
21
ATTACH M ENT 1
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 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.
Page 18 of 25
22
ATTACHMENT 1
IN WITNESS WHEREOF, the parties hereto have caused this agreement
to be duly executed as of the day and year first above written.
CITY OF MOORPARK
a Municipal Corporation
By:
Steven Kueny, City Manager
ATTEST:
Maureen Benson, City Clerk
SCE:
SOUTHERN CALIFORNIA EDISON,
a California corporation
By:
Its:
Exhibit A-1
23
ATTACHMENT 1
Exhibit A
Description of Facilities
Exhibit A-2
24
ATTACHMENT 1
Exhibit B
Form of Bill of Sale
BILL OF SALE
Pursuant to that certain Purchase And Safe Agreement, dated , 2017
("Agreement"), by and between Southern California Edison, a California corporation
("SCE"), and the City of Moorpark, a Municipal Corporation ("Buyers), effective as of
, 20 'Insert Phase Closing Date], 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 ail the terms and conditions of the Agreement,
including the provisions set forth above.
Exhibit B-2
25
ATTACHMENT 1
The parties represent that they are duly authorized to execute this Bill of Sale.
SOUTHERN CALIFORNIA EDISON COMPANY,
a California corporation
By:
(Name of Business Unit VP)
(Title of VP)
Accepted and Agreed:
BUYER:
City of Moorpark
a Municipal corporation
By:
Name:
Title:
Exhibit B-2
26
ATTACHMENT 1
Exhibit C
Planning, Inspection and Severance Activities
Section
Reference Activity SCE Responsibility City Responsibili
2.2 Provide Bu er with draft 'hese ma's X MIIIIIIIIMII
6.2(a) Field validation to identi a i•Ilcable lS-1.Streetli: is — —_ -- X
IIIIIIMMII
identify/Confirmidentify/Confirm Points of s (POD)
Confirm . been . for
Confirm actual .wase maps and transition timelines
6.2(a) iCoammunicate with the Buyer any additional relocation/reconfiguration costs (assets and operational)
• Bu er accepts or refuses any additional reflocationf reconfiguLration costs(assets and operational) please see above X EMI<
Update the inventory(If applicable
_
U.date the Purchase price for the Final Phase(as applicable if pole count vades by 5%or more)
Provide revised maps and Inventory list to Buyer(if applicable)
6.2(b) 'Buyer si ns off on updated inventory list(if applicable) 1111111111111( X
6.2(d) Bill of Sale to Buyer for current Phase
5.2(a) SCE Pole tag removalX
6.2(a} Buyer installs Its pole
6.2(e) 8s
6.4(a) Convert from LS-1 to LS-2B rate at cam.letioro of each Phase X
6.4(b) Provide updated LS-2 B maps and inventory list to Buyer X
6.4(c) Buyer confirms rate change has gone into effect X
6.4(d) Phase is completeX X
N
v
ATTACHMENT 1
Exhibit D
Communications Equipment
SCE-owned and operated radio equipment, used for the collection and relay of
customer electric service data from SCE meters and the collection, relay, and
communication with of SCE with SCE's electrical distribution systems, which are part of
the NetComm and SMARTConnect systems or their predecessor:
28
ATTACHMENT 1
Exhibit F
Streetlight System Valuation
29
The City of Moorpark
LS-1 Streetlight System Valuation
June 1,2016
Overview of the Total LS-1 Streetlight System
Type Qty Type Overhead Underground
Non-Wood 2.134 9055 18 2.116
Wood 233 a0" 233 0
2,367 100% 251 2,116
11% 89%
1950-1959 67 3%
1960 1959 73 3%
1970-1979 252 11%
1980 1989 1,186 50%
1990-1999 452 19%
2000-2009 322 14%
2010-present 16 1%
Valuation of the Sellable LS-1 Streetlight System
QtY RCN LD
Marbelite(Concrete) 2,128 5789,355
Steel 3 $567
Wood 98 S122,137
Total: 2,229 $912,059
Ad Hoc Replacements — S268,835
Additional Asset Components S52,838
Subtotal $1,234,533
Severance Cost S71,682
Valuation Price $1,306,195
'Note:42%of Wood Poles are sellable{streetlights attached to distribution poles are excluded0
Ad Hoc Replacements represent poles replaced without developer's contribution
Additional asset components relevant to the sale(i.e.additional fixtures,insulators,down guys,etc.}
Severance Cost is the cost to transfer ownership of the asset
SCE CONFIDENTIAL
30
ATTACHMENT 2
•
NO-FEE
LIGHT POLE LICENSE AGREEMENT
FOR WIRELESS ATTACHMENT
BETWEEN
THE CITY OF MOORPARK
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 Moorpark, a
Municipal Corporation ("Licenser"), 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:
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 and 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 Licenser
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.
1. Licensor Light Pole: A standard light pole owned by Licensor used to provide
street lighting services.
-1-
31
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 (1) 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"), 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 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.
c. Licensor shall not be required to modify the Light Pole to accommodate use
by the Licensee.
-2-
32
•
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 andlor Future
Attachments shall not interfere with Licenser's street-lighting operations. If an
Attachment made under this Agreement interferes with Licensor's ability to use a Light
Pole for street-lighting purposes, then Licensor will inform the Licensee and Licensee
shall remedy the interference in a reasonably prompt period of time after receiving written
notice of the interference from Licensor.
f. Licensor shall not install any devices, and Licensor shall not allow third
parties to install any devices that interfere with Licensee's Attachment. If Licensor
interferes with Licensee's wireless communication, then Licensor shall remedy the
interference in a reasonably prompt period of time after receiving written notice of the
interference from Licensor..
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. Licensee shall provide Licensor the
structure number and address or location description where the Attachment will be
nstalled.
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 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.
-3-
33
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 Licenser'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 Licenser'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.
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
-4-
34
emergency situations, Licensor will notify Licensee ninety (90) days prior to relocation or
replacement of 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
Licenser'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 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,
-5-
35
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 Licenser'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
an 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 insurance shall constitute a default under this Agreement. Licensee may self-insure
any and all of the above insurance requirements.
-6-
36
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 or graffiti, 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 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 18
shall be confidential and shall be treated as compromise and settlement negotiations, to
which Section 1162 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-
37
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 Licenser'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 Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: City Manager
If to Licensee: Southern California Edison
Manager of Streetlights Attention: John King
6042 A Irwindale Ave, Irwindale California 91702
-8-
38
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 :Y 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.
-9-
39
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
Licenser'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 I a stalled Attachments
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.
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 MOORPARK, SOUTHERN CALIFORNIA EDISON
a Municipal corporation COMPANY, a California corporation
By: By:
Print Name:
Name:
Title: Title:
- -
Date: Date:
-10-
40
EXHIBIT A
List of Attachments
SmartConnect Installed Devices
NetComm Installed Devices
-11-
41