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Southern California Gas Company A2013-66 CITY OF CHINO HILLS INTEROFFICE MEMORANDUM DATE: November 27, 2013 TO: Raymond Hansen, Senior Administrative al / • FROM: Mary M. McDuffee, City Clerk in I RE: A13-66 —SoCalGas Contractor: Southern California Gas Company Attn: David Mercer, Network Technology Manager 555 West Fifth Street Los Angeles, CA 90013 At their regular meeting held November 26, 2013, the City Council approved License Agreement No. A13-66 with Southern California Gas Company for the installation of network communication antennas on five (5) City-owned domestic water storage reservoirs. Enclosed for further processing is one original executed agreement. MMM/LC Enclosure cc: Steve Nix, City Engineer 11!3 -66' LICENSE AGREEMENT BY AND BETWEEN THE CITY OF CHINO HILLS, CALIFORNIA AND SOUTHERN CALIFORNIA GAS COMPANY This Installation Agreement ("Agreement") is entered into this 21111 day of November, 2013, by and between the City of Chino Hills, a California municipal corporation, hereinafter referred to as the ("City") and Southern California Gas Company, a California corporation hereinafter referred to as the ("LICENSEE"). Hereinafter the term "Parties" shall refer collectively to all the foregoing named Parties. The effective date of this Agreement shall be the date indicated hereinabove (the "Effective Date"). RECITALS WHEREAS, LICENSEE is an investor-owned public utility that provides gas utility services to residents of City. WHEREAS, on July 28, 1992, City granted to LICENSEE a franchise to use and lay pipes and appurtenances necessary and convenient for the operation of a gas utility under, along, across or upon public streets, ways, alleys and places (collectively, "Rights-of-Way") in the City for transmitting and distributing gas (the "Franchise"). WHEREAS, LICENSEE has been authorized by the California Public Utilities Commission to implement its Advanced Meter Program, which consists of, among other things, the installation of advanced meter equipment, network communications devices, including but not limited to data collector units ("DCU's), antennas, gas repeaters and/or radio frequency local area network ("RFLAN") range extenders, and other advanced meter facilities, in connection with and necessary for LICENSEE's operation, transmission and distribution of gas in the City ("Advanced Meter Facilities"). WHEREAS, the installation of Advanced Meter Facilities requires the use of existing or new infrastructure, such as poles or streetlights of sufficient height and at appropriate locations in order to be effective. WHEREAS, in order to reduce the number of new Advanced Meter Facility installations with the City Rights-of-Way, City desires to allow the LICENSEE to LICENSEE install its Advanced Meter Facilities, which are further described herein, within "City Property" owned by City at sites identified in Exhibit A. " WHEREAS, City and LICENSEE have agreed to enter into this Agreement regarding LICENSEE's use and attachment of Advanced Meter Facilities at the Installation Sites upon the terms, conditions and other considerations set forth herein. WHEREAS, the proposed locations (known as "city property") is herein defined as any real property owned by and in the City of Chino Hills, 1 AGREEMENT NOW THEREFORE, in consideration thereof and for other valuable consideration as set forth herein below the parties hereto do mutually agree as follows: 1. Effective Date. This Agreement shall become effective as of the date of its execution by or on behalf of all the Parties hereto ("Effective Date"). 2. Term. The commencement date shall be first day of the month following the Effective Date of this Agreement. 3. Authorization. Subject to the terms and conditions contained herein, City hereby authorizes LICENSEE to install Advanced Meter Facilities upon existing city owned properties located within the boundaries as described, and to operate, use, maintain, repair, replace, improve, alter, inspect, test and remove such Advanced Meter Facilities on the terms and conditions set forth herein. 4. Scope of Agreement. This Agreement authorizes the LICENSEE to install the Advanced Meter Facilities in general locations identified in Section 5B, and to undertake all activities related to the installation, maintenance, operation, use, repair, replacement, improvement, alteration, inspection, testing and removal of LICENSEE's Advanced Meter Facilities. Nothing contained in this Agreement shall be deemed or construed to create the relationship of principal and agent or of partnership or of joint-venture or of any association whatsoever between City and LICENSEE, it being expressly understood and agreed that neither the computation of fees nor any other provisions contained in this Agreement nor any act or acts of the parties hereto shall be deemed to create any relationship between City and LICENSEE other than the relationship of City and LICENSEE. LICENSEE hereby acknowledges, agrees and covenants that this Agreement does not authorize or bestow any rights to LICENSEE to provide cable television service or commercial telecommunications services. 5. Term of Agreement a. This agreement is for a term of Twenty (20) years, commencing on the date first set forth above, and terminates on November 30, 2033. b. Installation sites are described in detail in Exhibit A. 6. Termination. a. CITY may terminate this License at any time with or without cause, 2 upon written or verbal notification. Termination will be effective upon notification, unless CITY specifies otherwise. b. LICENSEE may terminate this License at any time in writing at least five (5) days before the effective termination date. c. By executing this document, LICENSEE waives any and all claims for damages that might otherwise arise from CITY's termination under this Section. d. Upon termination, LICENSEE will remove all personal property and improvements from City Property within thirty (30) days. City Property will be left in a clean and orderly fashion. 7. Authority to Allow Installations. The City hereby represents and warrants to the LICENSEE that it has all rights necessary to allow for the installation of the Advanced Meter Facilities at the Installation Sites, and agrees to indemnify, defend and hold harmless the LICENSEE from and against losses, liability or claims from owner of the real property where the Installation Sites are located and that are related to the rights conferred to the LICENSEE under this Agreement. 8. Workmanship and Responsibility of LICENSEE. All of LICENSEE's construction and installation work shall be performed at LICENSEE's sole cost and expense and in a good and workmanlike manner and in accordance with the rules and regulation of the CPUC and the Improvement Plans reviewed by the City Engineer, and in compliance with all applicable ordinances, regulations or law (to the extent not inconsistent with or preempted by the jurisdiction of the CPUC). LICENSEE shall remove all of LICENSEE's Advanced Meter Facilities at its sole expense within one hundred eighty (180) days after the termination of the Agreement, unless an agreement is otherwise reached between the City and LICENSEE to abandon the LICENSEE's Facilities in place. LICENSEE shall bear full responsibility for repairs to any damage to the Rights-of-Way caused by LICENSEE's or its employees', contractors', subcontractors' or agents' installation, construction, maintenance, repair, operation and removal of the LICENSEE's Advanced Meter Facilities. 9. LICENSEE to Bear All Costs. The LICENSEE, or any successor or authorized assign, shall bear all costs incurred in connection with LICENSEE's or its employees', contractors', subcontractors' or agents' planning, design, installation, construction, maintenance, repair, operation and removal of the LICENSEE's Advanced Meter Facilities. City shall not be responsible or bear any cost for repair of any damage or movement of the LICENSEE's Advanced Meter Facilities due to repair, maintenance and/or failure/collapse of any existing gas, water and sewer lines or any other improvements or works approximate to LICENSEE's Advanced Meter Facilities, except for the active negligence or willful misconduct of 3 the City, its officers, agents, employees, contractors or subcontractors. 10. Interference. The LICENSEE installation and use of its Advanced Meter Facilities under this Agreement shall not damage or interfere in any way with City's use or operations of those City owed locations identified in Section 5B. The City at all times during this Agreement, reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the City owned locations , which may temporarily interfere with the LICENSEE's improvements as may be necessary in order to carry out any of such activities. The City agrees to give 30 day advance notice of such interference to the LICENSEE and to reasonably cooperate with the LICENSEE to carry out such activities with a minimum amount of interference with the LICENSEE's operations. 11. LICENSEE to Secure Approval and Permits. Not less than thirty (30) days prior to commencement of construction and installation of LICENSEE's Advanced Meter Facilities, LICENSEE shall, at its sole cost and expense, prepare and submit for review as described in Section 2 above. LICENSEE shall, at its sole cost and expense, submit traffic control plans for approval by City Engineer. All work within the Rights-of- Way shall be performed in compliance with the Improvement Plans and reviewed by the City Engineer and non-discretionary administrative permits obtain by LICENSEE. 12. Indemnification of City. LICENSEE shall defend, indemnify and hold harmless the City and its council members, officers, agents and employees against all claims, losses, damages, costs, expenses, liabilities, causes of action, fines or penalties, including but not limited to reasonable attorney's fees (collectively, "Claims"), for injury to or death of persons or damage to property incurred by City arising from LICENSEE's Advanced Meter Facilities being located on the City owned property described in Exhibit A, except to the extent such Claim arise from the sole negligence or willful misconduct of the City, its officers, agents, or employees, provided, however, that LICENSEE's indemnification obligations shall not include any punitive, consequential or special damages, except to the extent asserted by a third party against the City arising from a Claim for which LICENSEE is obligated to indemnify the City under this paragraph. 13. Condemnation. If all or part of City Property is acquired by eminent domain or purchase in lieu thereof, LICENSEE acknowledges that it will have no claim to any compensation awarded for the taking of Property or any portion thereof. City shall promptly notify LICENSEE of any indication of such eminent domain affecting City Property listed in Exhibit A. 14. Relocation benefits. LICENSEE acknowledges that it has been informed that CITY is a public entity and that Property was previously acquired by CITY for a public purpose. LICENSEE further acknowledges that any 4 rights acquired under this License arose after the date of acquisition of Property and that said rights are subject to termination when Property is needed by CITY. LICENSEE hereby acknowledges that at the time of said termination of this License by CITY, it will not be a "displaced person" entitled to any of the relocation assistance or benefits offered to displaced persons under State or Federal law. 15. Alterations. LICENSEE will not make, or cause to be made, any alterations to Property, or any part thereof, without CITY's prior written consent. 16. Hazardous/toxic waste. CITY has not, nor, to CITY's knowledge, has any third party used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (as defined below) on, under, about or within Property in violation of any law or regulation. LICENSEE agrees that it will not use, generate, store or dispose of any Hazardous Material (as defined below) on, under, about or within Property in violation of any law or regulation. LICENSEE agrees to defend and indemnify CITY, to the extent stated in Section 12, against any and all losses, liabilities, claims or costs arising from any breach of any warranty or agreement contained in this Section. As used in this Section, "Hazardous Material" means any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation (including petroleum and asbestos). 17. Signs. LICENSEE will not place any sign upon Property without CITY's prior written consent. LICENSEE will pay for all costs of any approved signage and comply with all applicable sign codes and ordinances. 18. Assignment. LICENSEE will not be permitted to assign this License or any interest therein. 19. Insurance. a. Before commencing performance under this License, and at all other times this License is effective, LICENSEE will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: (i) Commercial general liability insurance will meet or exceed the requirements of the most current ISO Forms. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies must be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried 5 by CITY will be excess thereto. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable except upon thirty (30) days prior written notice to CITY except for nonpayment of premiums which may be cancelable upon ten (10) day notice. (ii) LICENSEE will furnish to CITY duly authenticated Certificates of Insurance and Endorsements evidencing maintenance of the insurance required under this License and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A:VII." Certificate(s) must reflect that the insurer will provide thirty (30) day notice of any cancellation of coverage. CONTRACTOR will require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions. b. Should LICENSEE, for any reason, fail to obtain and maintain the insurance required by this License, CITY may obtain such coverage at LICENSEE's expense and charge the cost of such insurance to LICENSEE under this License or terminate pursuant to Section 6. c. Notwithstanding anything to the contrary contained herein, in lieu of maintaining insurance set forth above, Licensee may self-insure for the requirements and in the amounts set forth above. 20. Breach of agreement. The violation of any of the provisions of this License will constitute a breach of this License by LICENSEE, and in such event said License may be terminated. 21. Waiver of breach. Any express or implied waiver of a breach of any term of this License will not constitute a waiver of any further breach of the same or other term of this License. 22. Entry by city and public. This License does not convey any property interest to LICENSEE. Except for areas restricted because of safety concerns, CITY and the general public will have unrestricted access upon Property for all lawful acts. 23. Insolvency: receiver. Either the appointment of a receiver to take possession of all or substantially all of the assets of LICENSEE, or a general assignment by the LICENSEE for the benefit of creditors, or any action taken or offered by LICENSEE under any insolvency or bankruptcy 6 action, will constitute a breach of this License by LICENSEE, and in such event said License will automatically cease and terminate. 24. Governing Law: Jurisdiction. This Agreement shall be governed and construed by and in accordance with the Laws of the State of California. Nothing in this section shall be interpreted to preclude either party's right to seek redress from the CPUC. 25. Amendment of Agreement. This Agreement may not be amended except pursuant to a written instrument signed by both parties. 26. Notices. All notices, demands, requests, consents or other communications that this Agreement contemplates or authorizes, or requires or permits either party to give to the other, shall be in writing and shall be personally delivered or mailed or sent by reputable overnight courier, such as FedEx, to the respective party as follows: TO CITY: City of Chino Hills 14000 City Center Drive Chino Hills,_CA 91709 Attn: City Clerk Tel: (909) 364-2620 TO LICENSEE: Southern California Gas Company 555 West Fifth Street Los Angeles, CA 90013 Attn: David Mercer, Network Technology Manager Tel: (213) 244-5415 Either party may change its address by notice to the other party as provided herein. Communications shall be deemed to have been given and received on the first to occur of (i) actual receipt at the offices of the party to whom the communication is to be sent, as designated above, or (ii) three working days following the deposit in the United States Mail of registered or certified mail, postage prepaid, return receipt requested, or with reputable overnight courier, such as FedEx, addressed to the offices of the party to whom the communication is to be sent, as designated above. 27. Other Regulations. All LICENSEE's use of the Rights-of-Way under this Agreement shall be in accordance with the laws of the United States of 7 America, the State of California and in accordance with all applicable rules and regulations and ordinances of the City of Chino Hills now in force, or hereinafter prescribed or promulgated by resolution or ordinance or by State or Federal law (to the extent that the same are not inconsistent with or preempted by the jurisdiction of the CPUC). 28. Powers to Enter into Agreement. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the LICENSEE and the City. 29. Assignment or Transfer of Authorization. This Agreement may be assigned or transferred to any qualified person or entity subject to the prior written approval of the City, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, City's prior written consent shall not be required for any of the following: (a) the transfer of any shares or stock in or change in control of LICENSEE's parent company, or (b) any merger, consolidation or reorganization of, by or with LICENSEE or transfer of all or substantially all of the stock or shares in LICENSEE or assets of LICENSEE. 30. Entire Agreement; Successors and Assigns. This Agreement contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements, or understandings, whether oral or written, between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. Each party has relied on advice from its own attorneys, and the warranties, representations, and covenants of this Agreement itself. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 8 IN WITNESS WHEREOF the parties hereto for themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Agreement to be executed by setting hereunto their signatures on the day and year respectively written herein below. THE CITY OF CHINO HILLS: By_griC1 o 0.430.7 Peter J. r.:11--Mayor Q ATTEST: APPROVED AS TO FORM: /2ui 7/ /, // Mary M rU Duffee Mark D'. Hensley City Cl rk City Attorney LICENSEE: SOUTHERN CALIFORNIA GAS COMPANY DATE: /0 - 'l g By: Tina"Costa, Contracts and Special Projects Manager, Advanced Meter 9 EXHIBIT "A" DCU Location Survey Measurements Latitude Longitude ID City land adjacent to Chino Hills water 1) North of 16757 Hillside Drive; east reservoir R-8; of water tank LH313 inside gate via 2) 16 feet east of measuring tool 33.94975000 -117.78064000 private access attached to water tank road; just outside 3) Outside of chain link fence fence around tank City land adjacent 1) Water Tower on Dudley Street to Chino Hills water 2) Approximately 610 Ft South of reservoir R-15; South Curb Face of Grand Avenue LH316 inside gate at 3) 4 Ft East of East Curb Face of 33.99145000 -117.76401000 Water Access Road bottom of access (253 Ft East of East Curb Face of road Willow Wood Lane is Access Road) 1) South of 16420 Canon Lane; City land adjacent Inside gated water tank area LH317 to Chino Hills water 2) 70 feet west of west edge of 33.95494444 -117.76851388 reservoir R-7; pavement of Canon Lane inside gate 3) 3 feet north of south side of chain link fence City land adjacent to Chino Hills water reservoir R-42; 1) North of 15628 Vellano Club Drive access via on Water Access Road Stonefield Vellano 2) Approximately 983 Ft North of LH338 Gated community; West Curb Face of Vellano Club 33.95573000 -117.75697000 install at top of Drive 3) 4 Ft West of West Curb Face of access road (not Water Access Road (Access Road is paved) outside Valley Springs Road) fence around the tank City land adjacent 1) South of 2071 Miramonte Court on to Chino Hills water Water Access Road L1032 reservoir R-12; just 2) 117 Ft West of West Curb Face of 34.00888000 -117.75995000 outside the gate at Miramonte Court bottom of the 3) 5 Ft South of South Curb Face of access road Water Access Road 10