HomeMy WebLinkAboutReso 054-96 PG&E PoleAttachRESOLUTION NO. 54 - 96
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING POLE ATTACHMENT AGREEMENT WITH
PACIFIC GAS & ELECTRIC CO.
RELATIVE TO STREET LIGHTING FACILITIES
WHEREAS, the City of Dublin will acquire street lights from Pacific Gas and Electric Co.
(PG&E) effective May 31, 1996, which street lights are affixed to PG&E electric distribution poles; and
WHEREAS, PG&E requires that an agreement be entered into which sets parameters for
attachment to the poles, including, but not limited to, working on the poles, service connection and
disconnection, indemnification, insurance, removal or replacement of poles, removal or abandonment of
attachments, and annual rental fees; and
WHEREAS, the City Council has reviewed the agreement and determined that said agreement is
acceptable;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby
approves the Pole Attachment Agreement with PG&E which is substantially as attached hereto as
"Exhibit A."
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement.
PASSED, APPROVED AND ADOPTED this 281h day of May. 1996.
AYES:
NOES:
Councilmembers Burton, Howard, Moffatt, and Mayor Houston
None
ABSENT: None
ABSTAIN: Councilmember Barnes
ATTEST:
Mayor
CUSTOMER-OWNED STREETLIGHTS
POLE ATTACHMENT AGREEMENT
This Pole Attachment Agreement (this "Agreement") is entered into as of the. ~:~;
day of ]~lco~o 1996, by and between Pacific Gas and Electric Company, a
California ration, including any of its successors, (hereinafter, "PG&E") and
the City of T'LtJO UAu, which shall include any subsequent modification of that
public agency by annexation or other municipal reorganization (hereinafter, the
"Permittee") (together, the "Parties"), in consideration of the mutual promises .and
agreements set forth herein, the Parties hereby agree as follows:
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ARTICLE I
SCOPE OF AGREEMENT
1.1 SCOPE OF PERMIT. PG&E hereby gives Permittee permission, on the
terms and conditions stated herein, to maintain existing luminaires, lamps,
photocells, support arms and service wiring facilities connected therewith
(hereinafter sometimes collectively referred to as "Pole Attachments") on poles and
anchors solely-owned or jointly owned by PG&E on the poles and or streetlights
listed in the inventory in Exhibit A hereto (the "PG&E Poles") located on
distribution rights of way CPG&E Right of Way") owned or otherwise held and
maintained by PG&E as further described in Exhibit B. The term "Pole
Attachment" shall mean a single contact on a pole to accommodate a single
streetlight. Additional contacts required for a second streetlight will be considered
a second attachment. The installation of power supplies or amplifiers, either on
PG&E Poles or Streetlights, shall also be considered additional attachments and are
not within the scope of this Agreement. In the event that any Pole Attachment
includes unmetered equipment, Permitme shall notify PG&E in writing prior to
using the Pole Attachment in order to arrange for electric service and appropriate
billing.
1.2 PG&E DISCLAIMER. Permittee expressly acknowledges that PG&E does
not represent and warrant that the PG&E Right of Way, whether by easement,
franchise, or other form of permission, is broad enough to permit Permittee's Pole
Attachments on PG&E Poles or for the exercise by Permittee of any other rights set
forth in this Agreement. It shall be the sole responsibility and obligation of
Permittee to secure any such further rights or permission for the placement and use
of the Permittee's Pole Attachments on the PG&E Poles and PG&E Right of Way
as may be necessary as set forth in Section 4. l(b) of this Agreement. The license
to Permittee hereunder does not include a conveyance of any interest in real
property or the PG&E Poles and Permittee agrees to never claim such interest. The
license shall be revocable at will by PG&E as set forth in Section 11.2.
1.3 PERSONAl, NATURE. The license to Permittee hereunder is personal to the
Permittee and shall not be assigned in whole or in part whether voluntary,
involuntary, or by operation of law without the prior written consent of PG&E,
which may be withheld in PG&E's sole discretion. Unless otherwise agreed to in
writing by PG&E, any consent by PG&E shall not relieve Permittee of any
obligations under this Agreement. Any assignment which does not comply with the
provisions of this Section 1.3 shall be null and void; and without limiting the
foregoing, Permittee agrees that it will give PG&E prior written notice of any
change in its name, any transfer of all or a portion of Pole Attachments system, any
transfer of substantially all its assets and/or any major change in its form of doing
business, including but not limited to incorporation, dissolution, merger,
reorganization, and bankruptcy proceedings.
ARTICLE II
PLACING POI ,E ATTACHMENTS
2.1. RESERVATION OF RIGHTS. PG&E EXPRESSLY RESERVES THE
RIGHT TO DENY PERMITTEE ADDITIONAL ATTACHMENTS TO PG&E
POLES OR OTHER POLES AND/OR FACILITIES. THIS PARAGRAPH DOES
NOT PERTAIN TO PERMITTEE'S REPLACEMENT OF EXISTING POLE
ATTACHMENTS ON EXISTING PG&E POLES.
2.2 ADDITIONAl, CONTACTS. The Permittee shall not install any additional
Pole Attachments on the PG&E Poles without first securing PG&E's written
approval Qn a Contact Permit form. Upon receiving the written consent of PG&E,
Permittee shall have the privilege of installing, maintaining, and placing additional
Pole Attachments on such PG&E Poles specified in said consent on the terms and
conditions specified in this Agreement, except as modified therein, which shall be
considered a part of each and every such consent irrespective of whether this
Agreement is expressly referred to in such consent.
3.1
ARTICLE III
COMPI ,IANCE WITH SAFETY REQUIREMENTS
APPLICABI,E I,AW AND 1/EQUIRF, MENTS.
(a) The Permittee shall install and maintain the Pole Attachments in
conformity with all applicable laws, rules, and regulations of state and federal
governments, agencies, and other governmental authorities, including, but not
limited to, the California Public Utilities Commission (the "CPUC"), and in
conformity with any safety standards or requirements as may be required or
specified by PG&E in its sole discretion. All Pole Attachments must adhere to the
clearance, separation, windloading and dead-end tensions and other requirements of
General Order No. 95. Neither the requirement that Permittee follow said
practices, applicable laws, rules and regulations or special instructions given by
PG&E nor the adherence thereto by Permittee shall relieve Permittee for the sole
responsibility to maintain safe and efficient working conditions. Nothing herein
shall limit, restrict, or otherwise affect the right of Permittee to oppose or otherwise
object to any safety standard or requirement as may be required or specified by
PG&E under this paragraph, through any legal or administrative remedy or
proceeding, including through the CPUC, that may be available to Permittee.
Notwithstanding the above, Permittee shall comply with and perform in accordance
with said practices, applicable laws, rules, and regulations or special instructions
given by PG&E during any opposition or objection.
(b) The Permittee shall be solely responsible for the Pole Attachments and
shall take all necessary precautions during construction, installation, maintenance
on or near PG&E Poles and PG&E Right of Way so as to protect all persons and
the property of PG&E and others from injury and damage. Without limiting the
foregoing and without assuming any obligation to maintain or monitor the Pole
Attachments, if PG&E believes that Permittee's Pole Attachments are in any. way
endangering any person or property or is in noncompliance with any requirement
referenced in Section 3. l(a) above (a "Hazardous Condition"), PG&E shall give
Permittee reasonable notice under the circumstances prior to taking any steps it
deems advisable to remedy the Hazardous Condition unless there is an imminent
threat as solely determined by PG&E. In such case, PG&E may immediately take
any steps it deems advisable, without prior notice. In any case, Permittee shall be
required to reimburse PG&E for PG&E's costs. In addition, if PG&E notifies
Permittee of the existence of any Hazardous Condition, Permittee shall remediate
such condltion promptly, and in no case more than ten (10) days of receipt of such
notice.
3.2 WORK ON POI,F,S. Permittee and its duly authorized contractors, agents
and employees (the "Permittee's Workers") shall avoid directly climbing on PG&E
Poles and, if possible, use of ladder or bucket trucks to perform work on the Pole
Attachments. If the use of ladder or bucket trucks is not feasible, Permittee's
Workers shall exercise best efforts to make certain that the poles or structures are
strong enough to safely sustain the ~workers weight or the change in applied stress
before climbing any PG&E Poles or structures. However, in no event shall
Permittee's Workers climb or make contact with any portion of the power space on
the PG&E Poles as designated by PG&E. All work on PG&E Poles or under this
Agreement to be performed in the proximity of energized electrical conductors shall
only be performed by qualified electrical workers in accordance with Title 8 -- State
of California High Voltage Safety Orders. Permittee's Workers shall conduct its
work so as not to interfere or delay any other work performed or scheduled to be
performed by PG&E or its authorized agents on or near PG&E Poles i~r PG&E
Right of Way. PG&E and its authorized agents shall have priority in accessing the
PG&E Poles and PG&E Right of Ways at any time and Permittee's Workers must
adhere to any requests made by PG&E to modify or interrupt the work of
Permittee's Workers.
3.3 SERVICE CONNECTION/DISCONNECTION. Any connection or
disconnection of Permittee's service to or from PG&E's overhead or underground
electric system shall only be performed by PG&E and in accordance with PG&E's
rates established by applicable tariffs.
3.4 IDENTIFICATION TAGS. Permittee shall coordinate with PG&E regarding
the appropriate means of identifying Permittee's Pole Attachments. Such
appropriate means shall include using PG&E's numbering system.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT. Notwithstanding any other provision herein
to the contrary, this Agreement and all the rights, duties, obligations and liabilities
of the Parties hereunder shall be expressly conditioned on:
(a) PG&E obtaining t6 its sole satisfaction, the prior action of the CPUC, in
a form acceptable to PG&E, either authorizing the transaction contemplated by this
Agreement and the Purchase Agreement or declining jurisdiction or authority with
respect thereto (this subsection shall not apply in the event the transaction
contemplated by this Agreement solely involves property that is acquired, or
possession is obtained, through the exercise of Permittee's power of eminent
domain); and
(b) Permittee obtaining any easement, franchise, or other form of
permission that may be necessary for the installation and/or maintenance of
Permittee's Pole Attachments on PG&E Poles and facilities located on the PG&E
Right of Way and for the exercise by Permittee of any other rights or the
performance by Permittee of any duties contemplated by this Agreement, copies of
which shall be provided to PG&E Qt its request and shall be subject to PG&E's sole
satisfaction. In addition, PG&E may also require, to its sole satisfaction, written
acknowledgments by the grantor or land owner of Permittee's easement, franchise
or permit (the "Granting Authority") that Pcrniittee's authority under such grant is
adequate to permit the Pole Attachments and the exercise of any rights granted or
the performance of any duties contemplated hereunder to use the PG&E Poles and
facilities located on the PG&E Right of Way and is consistent with PG&E's
authority or rights under and the terms and conditions of PG&E's easement,
franchise or form of permission with such Granting Authority and does not result in
increased Right of Way Fees (as defined below).
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ARTICLE V
INDEMNIFICATION AND 1 IABII ,ITY
5.1 INDEMNIFICATION. Permittee shall indemnify, defend and hold harmless
PG&E, its officers, directors, agents, and employees (collectively, the "PG&E
Indemnitees"), from and against all claims, demands, losses, damages, costs,
expenses, including workers' compensation expense, and legal liability connected
with or resulting from (i) injury to or death of persons, including but not limited to
employees of PG&E or Permittee; injury to property of PG&E, Permittee, or a
third party, or to natural resources, or violation of any local, state, or federal law
or regulation, including but not limited to, environmental laws or regulations, or
strict liability imposed by any law or regulation; arising out of, related to, or in any
way connected with the Pole Attachments, the exercise by Permittee of the
privileges or performance of any duties contemplated herein, however caused,
except to the extent such claims, demands, losses, damages, costs, expenses,
liability, or violation of law or regulation are caused by the active negligence or
willful misconduct of PG&E Indemnitees; (ii) except as otherwise provided by an
applicable PG&E streetlight tariff or other PG&E tariff, interruption,
discontinuance, or interference with Permittee's service, or economic or
commercial loss of Permittee, caused by any act or omission, including the
negligence of any PG&E Indemnities; (iii) Permittee's failure to comply with
applicable rules, regulations or safety standards; and (iv) any and all claims or
assessments of any kind or nature, including increased franchise fees, right of way
or easement fees (the "Right of Way Fees"), made or asserted against a PG&E
Indemnitee by any third party, including any Granting Authority, franchise
authority, governmental authority or other property owner as a result of or in any
way connected with the Permittee's Pole Attachments or this Agreement.
Permittee acknowledges that any claims, demands, losses, damages, costs,
expenses, and legal liability that arise out of, result from, or are in any way
connected with the release or spill of any legally designated hazardous material or
waste as a result of the Pole Attachments or otherwise related to this Agreement are
expressly within the scope of this indemnity, and that the costs, expenses, and legal
liability for environmental investiga~tions, monitoring, containment, abatement,
removal, repair, cleanup, restoration, remedial work, penalties, and fines arising
from the violation of any local, state, or federal law or regulation, attorney's fees,
disbursements, and other response costs are expressly within the scope of this
indemnity.
5.2 AD VALQREM INDEMNITY. If the ad valorem property taxes, special
assessments, local improvement district levies, or other levies or taxes (collectively,
"Ad Valorem Taxes") or bases for ad valorem taxation payable by PG&E with
respect to the PG&E Poles or facilities increase as a result of the Permittee's Pole
Attachments or an increase or change attributable to any construction, installation
or improvements provided pursuant to this Agreement, PG&E shall deliver to
Permittee copies of relevant tax bills and supporting materials along with a detailed
calculation of such taxes to be paid by Permittee. Such taxes shall be paid by
Permittee within forty-five (45) days of the delivery to Permittee of such tax bills,
supporting materials and calculations, or the due date of such tax, whichever is
later. Permittee may make such reimbursements or payments under protest, in
which event Permittee and PG&E shall attempt to agree upon a calculation of the
amount payable by Permittee hereunder. If such agreement cannot be reached,
either party' may refer the dispute to mediation in accordance with the provisions of
Section 9.1. Permittee also shall be responsible for timely payment of any Ad
Valorem Taxes or other taxes and fees levied against the Permittee's Pole
Attachments or other of Permittee's property or equipment located on PG&E's
Poles, facilities or PG&E Right of Way that are billed directly to Permittee by the
taxing authority. However, in the event the same property or interests are assessed
an Ad Valorem Tax or sales or use tax in the same year to both PG&E and
Permittee, each party agrees to promptly notify the other upon becoming aware
thereof and to cooperate with the other in seeking appropriate redress from the
authority or authorities assessing the property or imposing the tax; and, provided
PG&E has notice of such potential double taxation, PG&E agrees at Permittee's
request, not to pay such tax and seek reimbursement from Permittee hereunder
without having first protested, at Permittee's expense, such assessment at the
appropriate administrative level.
5.3 DEFENSE OF CLAIMS. Permittee shall, on PG&E's request, defend any
suit asserting one or more claims covered by the indemnities set forth in Sections
5.1 and 512. Permittee shall pay any costs that may be incurred by PG&E in
enforcing this indemnity, including reasonable attorney's fees.
5.4 I,IMITATION OF LIABII,ITY. PG&E SHALL NOT BE LIABLE FOR
SPECIAL, INDIRECT OR CONSEQUENTIAL CONTRACT DAMAGES,
ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY RELATED TO
THIS AGREEMENT. IN NO EVENT SHALL THE TOTAL CUMULATIVE
CONTRACTUAL LIABILITY OF PG&E, ARISING OUT OF OR IN
CONNECTION WITH THE USE OF PG&E POLES AND/OR FACILITIES OR
'RELATING TO THIS AGREEMENT, EXCEED THE HIGHER OF $25,000 OR
THE SUM OF THE POLE RENTAL FEES RECEIVED BY PG&E AND
FORECASTED TO BE RECEIVED BY PG&E UNDER THIS AGREEMENT
WITH PERMITTEE.
5.5 NO WARRANTIES. PG&E MAKES NO WARRANTY, EXPRESS OR
IMPLIED WITH RESPECT TO THE POLE ATTACHMENTS OR THE USE OF
THE PG&E POLES OR ANCHORS BY PERMITTEE. THE PG&E POLES
AND ANCHORS ARE "AS IS." PG&E DISCLAIMS ALL WARRANTIES
EXPRESS OR IMPLIED INCLUDING THE WARRANTIES OF
MERCHANTABILITY AND HTNESS FOR PARTICULAR PURPOSES.
ARTICLE VI
INSURANCE
Permittee shill maintain the following insurance coverage or self-insurance and be
responsible for its contractors and subcontractors maintaining sufficient limits of the
same insurance coverage.
6.1 WORKERS' COMPENSATION AND EMPLOYER,q' I,IABII,ITY
6.1.1
Workers' Compensation insurance indicating compliance with any
applicable labor codes, acts, laws or statutes, state or federal, where
Permittee uses any Pole Attachments.
6.1.2 Employers' Liability insurance shall not be less than $2,000,000 for
injury or death each accident.
6.2 COMMERCIAL GENERAL LIABILITY
6.2.1
6.2.2
Coverage shall be at least as broad as the Insurance Services Office
(ISO) Commercial General Liability Coverage "occurrence" form,
with no coverage deletions.
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The limit shall not be less than ISIS,000, 0] each occurrence. for
bodily injury, property damage and personal injury.
6.2.3
Coverage shall: a) by "Additional Insured" endorsement add as
insureds PC&E, its directors, officers, agents and employees with
respect to liability arising out of the work performed by or for the
Permittee, or if the Permittee shall, at all times, be able to and shall
keep PG&E in the same position as if PG&E were an-"additional
Insured" under a policy of primary coverage; b) be endorsed to
specify that the Permittee's insurance is primary and that any
insurance or self-insurance maintained by PG&E shall not contribute
with it.
6.3
BUSINESS AUTO
6.3.1 Coverage shall be at least as broad as the Insurance Services Office
(ISO) Business Auto Coverage form covering Automobile Liability, code 1
"any auto."
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6.3.2 The limit shall not be less than $f-(f,0 ,000 each accident for bodily injury
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and property damage.
6.4 ADDITIONAL INSURANCE PROVISIONS
6.4.1
Before commencing use of any Pole Attachments, Permittee shall
furnish PG&E with certificates of insurance and endorsements of all
required insurance for Permittee.
6.4.2
The documentation shall state that coverage shall not be canceled
except after thirty (30) days prior written notice has been given to
PG&E.
6.4.3 The documentation must be signed by a person authorized by that
insurer to bind coverage on its behalf and shall be submitted to:
Pacific Gas and Electric Company
Insurance Department--B24H
Post Office Box 770000
San Francisco, CA 94177
A copy of all such insurance documents shall be sent to PG&E's Contract
Negotiator and/or Contract Administrator.
6.4.4 PG&E may inspect the original policies or require complete certified
copies, at any time.
6.4.5
Upon request, Permittee shall furnish PG&E the same evidence of
insurance for its contractors and subcontractors as PG&E requires of
Permittee.
ARTICLE VII
REMOVALS AND EMERGENCY CONDITIONS
7.1 DISCONTINUATION. NotCvithstanding any provision to the contrary here,
PG&E shall be entitled at any time to discontinue its use and operation of PG&E
Poles or other facilities located on the PG&E Right of Way, thereby requiring
Permittee to relinquish the use of, or right to use, the Pole Attachments. In the
event of any such discontinuation, PG&E shall give Permittee advance written
notice as soon as reasonably practicable, and PG&E may in its discretion propose
alternative poles or facilities to meet the needs of the Permittee. The costs of
relocating to such other poles or facilities shall be governed by the provisions of
Section 7.2 below.
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7.2 RELOCATION. PG&E at any time may also relocate all or any portion of
the PG&E Poles or other facilities to another location. In the event of any such
relocation, PG&E may in its discretion allow Pole Attachments at such alternate
location in accordance with the terms and conditions of this Agreement, and
PG&E shall give Permittee advance written notice of such intended relocation and
of the particulars of the alternate location as soon as reasonably practicable. To
the extent practicable, PG&E shall take into consideration the locational preference
of Permittee for street lighting purposes; however, the final decision regarding any
relocation and/or alternate location shall be solely made by PG&E. In the case of
a relocation of the Pole Attachments, PG&E may, at its option: (a) require
Permittee to move its equipment and facilities to the alternate location, or (b)
choose to move the Permittee's equipment and facilities with reimbursement from
Permittee for the costs and expenses of moving such equipment and facilities to
accommodate the relocation.
7.3 REMOVALS. On being given at least thirty (30) days' written notice by
PG&E to do so or in cases of emergency on such notice less than thirty (30) days as
the circumstances reasonably permit, the Permittee shall remove its equipment from
the PG&E Poles as PG&E shall designate in said notice and at the expiration of
the time specified in said notice all rights and privileges of the Permittee hereunder
in and to the PG&E Poles designated shall terminate. Such notice may be given by
PG&E if: (i) PG&E needs the space or capacity occupied by the Permittee's
equipment for its own use and the existing equipment on the subject pole or anchor
(including Permittee's equipment) cannot be so rearranged in accordance with
Section 7.5 hereof to create the required space or capacity for PG&E's use and the
Pole Atta6hment; or (ii) an ownership interest in the pole and/or anchor is being
transferred to a third party or parties, and the space occupied by the Permittee's
Pole Attachment is needed by the third party.
7.4 REMAINING POIJES. If PG&E shall so terminate its permission hereunder
as to only a portion of the PG&E Poles on which Permittee maintains Pole
Attachments, then Permittee shall retain the right to maintain Pole Attachments on
all remaining PG&E Poles for which there are approved contact permits hereunder,
subject to PG&E's right at any tim,e, or from time to time hereafter, to terminate its
permission as to any portion or all of the remaining PG&E Poles pursuant to the
terms of this Agreement.
7.5 REPLACEMENT POI,ES. Permittee shall pay all costs to rearrange and/or
install larger or additional poles whenever such rearrangement and/or larger or
additional pole(s) are necessitated solely by reason of the existence of the Pole
Attachment, including, but not limited to, if such rearrangement and/or larger or
additional pole(s) are necessitated by the subsequent addition of PG&E's or other
pole owners' equipment to the subject pole(s) and the rearrangement and/or larger
or additional pole(s) would not be required in the absence of the Pole
Attachment(s). Permittee's replacement obligation hereunder shall not arise as a
result of the addition of third party (excluding other pole owners) equipment to
PG&E poles.
Absent an emergency or safety hazard, PG&E shall provide Permittee (i) thirty (30) days'
prior written notice of the need of such pole replacements, and (ii) an estimate of
Permittee's cost of the replacement. Permittee shall notify PG&E within said thirty (30)
days in writing of its intent to remove its Pole Attachments or to accept the replacement
cost. If Permittee intends to remove its Pole Attachments, it shall reimburse PG&E for the
reasonable cost of generating the estimate of the cost of the replacement pole(s).
7.6 REPLACEMENT ANCHORS. Permittee shall pay all costs to install larger
or additional anchors whenever such larger or additional anchor(s) are necessitated
solely by reason of the existence of the Pol,e Attachment, including, but not limited
to, if such larger or additional anchor(s) are necessitated by the subsequent addition
of PG&E's or other pole owners' equipment to the PG&E Pole(s) and the larger or
additional anchor(s) would not be required in the absence of the Pole
Attachment(s). Permittee's replacement obligation hereunder shall not arise as a
result of the addition of third party (excluding other pole owners) equipment to
PG&E poles.
Absent an emergency or safety hazard, PG&E shall provide Permittee (i) thirty (30) days'
prior written notice of the need of such anchor replacements, and (ii) an estimate of
Permittee's cost of the replacement. Permittee shall notify PG&E within said thirty (30)
days in writing of its intent to remove its Pole Attachments or to accept the replacement
cost. If Permittee intends to remove its Pole Attachments, it shall reimburse PG&E for the
reasonable cost of generating the estimate of the cost of the replacement anchor(s).
7.7 INCOME TAXES. The costs to be paid by 'Permittee to PG&E as set forth in
Sections 7.5 and 7.6 above shall include a gross-up amount for potential income tax
liability of PG&E with respect to contributions in aid of construction arising for the
acquisition and installation of new or replacement poles and/or anchors, which
gross-up amount shall be equal to the gross-up percentage for such contributions set
forth in PG&E's current filed electric tariffs. Permittee may obtain a refund of any
gross-up amounts paid to PG&E b3; obtaining a favorable ruling from the Internal
Revenue Service (IRS) that the costs paid by Permittee are not taxable to PG&E.
Such a ruling shall be prepared and submitted by Permittee, at Permittee's expense,
but must be filed with a verification by PG&E that the facts presented therein are
true, correct, and complete. In cases where Permittee obtains a favorable ruling
with respect to taxes previously paid by PC&E, no refund will be paid by PG&E to
Permittee until PG&E obtains a corresponding refund or credit from the IRS.
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7.8 NOTICE OF REMOVAl,. Permitme may remove its Pole Attachments from any
pole(s) and/or anchor(s) hereunder upon giving ten (10) days written notice to PG&E.
Such notice shall not be required where there is an imminent danger. 'However, in such
case, Permittee shall notify PG&E immediately after Permittee determines an imminent
danger, and Permittee shall remedy the imminent danger situation in accordance with
paragraph 3.2 of this Agreement. Removal or abandonment of its equipment by the
Permittee shall terminate all of its rights and privileges hereunder as to the abandoned
pole(s) and/or anchor(s).
ARTICLE VIII
APPI ~ICATION FEF~S AND RF, NTAI. RATES
8.1 Permittee shall pay to PG&E fee(s) at the applicable rate set forth in Exhibit C
to this Agreement per year. The Permittee shall pay an initial set up fee of $0 and
an annual contract administration fee of $0 to cover PG&E's cost of administrative
processing and legal review costs, as applicable. In addition, for each Pole
Attachment discovered without PG&E's authorized consent, Permittee shall pay a
one-time surcharge of one hundred dollars ($100) towards PG&E's cost of audit,
notification, and correction.
All rates and fees under Article VIII of this Agreement and Exhibit [E] shall apply only to
the extent they are authorized by the CPUC. Permittee reserves the right to oppose before
the CPUC or court of law as may be appropriate any rate or fee that PG&E proposes to
apply under Article VIII and/or Exhibit [El.
Commencing each January 1 for the term of this Agreement, Permittee shall pay to
PG&E the applicable sum set forth in Exhibit C to this Agreement as full payment
for each Pole Attachment maintained by Permittee on PG&E Poles for the prior
year.
PG&E has granted its authorized consent to Permittee for Permittee's Pole
Attachments only to PG&E Poles in existence as of the date of possession by
Permittee.
ARTICLE IX
DISPUTE RESOI ,UTION
9.1 The Parties shall attempt in good faith to resolve any dispute arising out of or
relating to this Agreement promptly by negotiations between a vice president of
PG&E or his or her designated representative and an executive of similar authority
of the Permittee. Either Party may give the other Party written notice of any
dispute. Within 20 days after delivery of said notice, the executives shall meet at a
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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 30 days of the first meeting, either Party may
initiate a mediation of the controversy or may pursue any other legal, equitable, or
administrative remedy such Party may have.
9.2 All negotiations and any mediation conducted pursuant to this clause are
confidential and shall be treated as compromise and settlement negotiations, to
which Section 1152.5 of the California Evidence Code shall apply, and Section
1152.5 is incorporated herein by reference.
9.3 Notwithstanding the foregoing provisions, a party may seek a preliminary
injunction or other provisional judicial remedy if in its judgment such action is
necessary to avoid irreparable damage or to preserve the status quo.
9.4 Each Party is required to continue to perform its obligations under this
Agreement pending final resolution of any dispute arising out of or relating to this
Agreement.
ARTICLE X
MISCEI ,l ,ANEOUS
10.1 NOTICES. Any notice given pursuant to this Agreement given by a Party
to the other, shall be in writing and given by letter mailed, hand or personal
delivery, 9vernight courier, or facsimile to the following:
If delivered to PG&E:
Rocco J. Colicchia
123 Mission, Mail Code H16B
San Francisco, CA 94105
Telephone: (415) 973-1064
Facsimile: (415) 973-8488
with a copy to:
Denise M. Rosales
PG&E, Law Dept.
77 Beale Street, Mail Code B30A
San Francisco, CA 94105
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Attn :Tz[~ ~/7~
Telephone: ('5/0) ~,.~- ~"~
Facsimile: 65/0) 8~-~5- ~,~,_5"i
or to such other addresses as either party may, from time to time, designate in
writing for that purpose.
10.2 APPLICABLE LAW. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of California, exclusive of
conflicts of laws provisions.
10.3 CONFIDENTIAL INFORMATION. The Permittee may be given access
to technical information and materials including, but not limited to, information
relating to drawings, maps, reports, specifications and records, and related
documentation, which are owned by PG&E, its subsidiaries or affiliates, and/or
owned by third parties and in the possession of or licensed to PG&E, and which
constitute valuable, confidential and proprietary information, know-how, and trade
secrets, belonging to PG&E, its subsidiaries or affiliates and/or third parties
(hereinafter referred to as "Proprietary Information"). If PG&E provides Permittee
with any copies of technical information or materials described above, the copies
will only be provided at Permittee's expense.
Permittee hereby agrees to hold the same in strict confidence, and not to disclose it,
or otherwise make it available, to any person or third party without the prior
written consent of PG&E. The Permittee agrees that all such Proprietary ,
Information: (a) shall be used only for the purpose of executing its obligations with
respect to the Pole Attachments under this Agreement; Co) shall not be reproduced,
copied, in whole or in part, except as specifically authorized and in conformance
with PG&E's instructions when necessary for the purposes set forth in (a) above;
and (c) shall, together with any copies, reproductions or other records thereof, in
any form, and all information and materials developed by PG&E therefrom, be
returned to PG&E when no longer needed for the pUrpOses set forth in (a) above or
as requested by PG&E. Permittee ~hereby agree that any third parties owning any
Proprietary Information are express third party beneficiaries of this Section 10.3 of
this Agreement. The Permittee hereby agrees that for any violation of any provision
of this Section 10.3, a restraining order and/or injunction may be issued against
Permittee in addition to any other remedy PG&E may have at law. Any
Proprietary Information provided to Permittee shall be considered and maintained
by Permittee as exempt from disclosure to the extent permitted by law under the
California Public Records Act (Cal. Govt. Code Sec. 6250, ¢,t seq.). In the event
Permittee is served with any action to obtain disclosure of such Proprietary
Information, Permittee shall oppose such disclosure and provide written notice of
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such action (with a copy of the Petition) to PG&E within seven.(7) business days,
via overnight mail or delivery via overnight courier to:
Denise M. Rosales
PG&E, Law Dept.
77 Beale Street, Mail Code B30A
San Francisco, CA 94105
10.4 FORCE MAJEURE. Except for Permittee's obligations to make payment
hereunder, neither Party hereto shall be liable for any failure to perform the terms
of the Agreement when such failure is due to "force majeure" as hereinafter
defined. The term "force majeure" as employed in this Agreement shall mean acts
of God, strikes, lockouts, or industrial disputes or disturbances, civil disturbances,
arrests and restraint from rules or people, interruptions by government or court
orders, present and future valid orders of any regulatory body having proper
jurisdiction, acts of the public enemy, wars, riots, blockades, insurrections,
inability to secure or delay in securing labor or materials (including delay in
securing or inability to secure materials by reason of allocations promulgated by
authorized governmental agencies), epidemics, landslides, lightning, earthquakes,
fire, storm, floods, washouts, explosions, inability to obtain easements or rights-of-
way, or any other cause, whether of the kind herein enumerated or otherwise, not
reasonably within the control of the Party claiming "force majeure." The "force
majeure" shall, so far as possible, be remedied with all reasonable dispatch. The
settlement of strikes or lockouts or industrial disputes or disturbances shall be
entirely within the discretion of the Party having the difficulty, and the above
requirement that any "force majeure" shall be remedied with all reasonable dispatch
shall not require the settlement of strikes, lockouts or industrial disputes or
disturbances by acceding to the demands of any opposing Party therein when such
course is inadvisable in the discretion of the Party having the difficulty. The Party
claiming any failure to perform due to "force majeure" shall provide verbal
notification thereof to the other Party as soon as practicable after the occurrence of
the "force majeure" event.
10.5 SEVERABIIjITY. The invalidity of one or more clauses, sentences,
Sections or Articles of this Agreem~ent shall not affect the validity of the remaining
portions of the Agreement so long as the material purposes of this Agreement can
be determined and effected.
ARTICLE XI
TERM OF AGREEMENT
11.1 TERM AND EXTENSION. Subject to the provisions of Section 4.1, this
Agreement shall commence on the Effective Date and unless terminated sooner
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shall continue until December 31, 2006; proviaed, however, that the Parties may
elect by mutual agreement to extend the term of this Agreement on an annual basis
following the initial term. If Permittee wishes to extend the term pursuant to the
foregoing, it shall advise PG&E in writing at least __ months in advance prior to
the date this Agreement would otherwise expire, and both Parties shall thereupon
enter into discussions concerning such extension and any modifications to the
Agreement.
11.2 TERMINATION.
(a) If Permittee fails, in PG&E's opinion, to (i) make any payment due
hereunder within the time frame specified or otherwise comply with any term or
condition of this Agreement; (ii) obtain or maintain the appropriate authorizations
from any Granting Authority; PG&E, at its sole election upon ten (10) days
written notice to Permittee (or such shorter period of time as may be determined by
PG&E in order to comply with a notice from a Granting Authority, if applicable),
may terminate without further liability the license granted to Permittee hereunder
as to all or any portion of the Pole Attachments and Permittee shall immediately
relinquish use of the PG&E Poles and remove its Pole Attachments from PG&E
Poles in accordance with this Agreement prior to the effective date of termination.
(b) Notwithstanding the foregoing, either party at its sole election upon one
hundred eighty (180) days' written notice to the other party may terminate without
further liability the license granted to Permittee hereunder as to all or any portion
of the Pole Attachments and Permittee shall relinquish use of the PG&E Poles and
remove its Pole Attachments from PG&E Poles in accordance with this Agreement
prior to the effective date of termination.
11.3 REMOVAL OF POLE ATTACHMENTS. Any expiration or termination
of Permittee's rights and privileges hereunder shall not relieve the Permittee of any
obligation, whether indenmity or otherwise, which has accrued prior to such
termination or completion of removal of Permittee's Pole Attachments, whichever
is later, or which arises out of an occurrence happening prior thereto. Upon any
expiration or termination, Permittee shall relinquish use of the PG&E Poles and
remove its Pole Attachments from PG&E Poles in accordance with this Agreement
prior to the effective date of expiration or termination. If Permittee fails to remove
the Poles Attachments from the PG&E Poles by the expiration of this Agreement or
as may be required by PG&E within the time period designated in a notice pursuant
to Article 8, Section 11.2 or otherwise required by this Agreement, PG&E shall be
entitled to consider Permittee's equipment on the Pole Attachments abandoned as
set forth in Section 11.4 below without the necessity of additional notice or passage
of time.
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11.4 ABANDONMENT. If Permittee fails to use its equipment on the Pole
Attachments for any period of ninety (90) days, Permittee shall be deemed to have
abandoned the equipment which shall terminate all rights of Permittee hereunder,
whereupon PG&E shall have the right on giving Permittee ten (10) days written
notice of its intention to do so to remove said equipment at Permittee's sole risk and
expense and retain same as PG&E's own, and Permittee agrees to reimburse PG&E
for such expense. Such abandonment shall not relieve Permittee of any obligation,
whether of indemnity or otherwise, accruing prior to completion of such removal of
PG&E or which arises out of an occurrence happening prior thereto.
11.5 ADDITION OF NEW POI.ES. PG&E will not add new poles to existing
distribution facilities or build new distribution facilities for the sole purpose of
accommodating a customer-owned streetlight unless the Permittee agrees to
reimburse PG&E for the cost of new facilities.
11.6 NO EFFF, CT ON FRANCHISES. Nothing herein shall be construed as
modifying, restricting, limiting, expanding, extending, renewing, granting, or
otherwise affecting any franchise, permit, or license that has been granted or issued
to PG&E by Permittee (or any successor of Permittee).
11.7 COMMISSION JURISDICTION. This Agreement shall be subject to all of
PG&E's tariff schedules on file with and authorized by the CPUC and shall at all
times be subject to such changes or modifications as the CPUC may direct from
time to time in the exercise of its jurisdiction. These may include, but are not
limited to, changes or modifications to monthly cost of ownership charges (higher
or lower percentage rates), extension rules, and rate schedule.
PERMITTEE (CITY OF
(Type or Print Name)
Title:
) PACIFIC GAS AND ELECTRIC
COMPANY
By:
(Authorized Signature)
(Type or Print Name)
Title:
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EXHIBIT C
ANNUAL RENTAL FEES
The initial rental fee to be charged shall be $0; provided however, that PG&E
reserves the right to assess a rental fee for the Pole Attachment and shall provide
Permittee days_ notice prior to the effective date of such fees.
-' a:\polecot5 .doc
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