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HomeMy WebLinkAboutItem 4.11 PoleAttachAgmtPGE (2) -- .. . . .' .. CITY CLERK File # @]~~~-~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 28,1996 SUBJECT: Pole Attachment Agreement with PG&E (Related to City-Owned Street Lights) Report Prepared by: Lee S. Thompson, Public Works Director . I . EXHIBITS ATTACHED: 1) 2) Resolution Agreement RECOMMENDATION: rJ;J' Adopt resolution approving agreement and authorize Mayor to eXecute. FINANCIAL STATEMENT: This agreement has no financial impact at this time but contains a provision that, with proper notice, PG&E may charge a fee in the future. DESCRIPTION: This agreement relates to the attachment of street lights to Pacific Gas and Electric Co. (PG&E) distribution poles. Approximately 415 of the street lights which the City is acquiring from PG&E consist of a fixture and arm attached to a wood or metal PG&E power pole. Any agency which attaches a facility to a PG&E pole (examples: telecommunications or cable television) is required to sign a similar agreement. The City will take possession of the PG&E street lights effective May 31 st and will therefore become subject to the Pole Attachment Agreement. The agreement sets parameters for the City in terms of working on the poles, service connection and disconnection, indemnification, insurance, removal or replacement of poles, removal or abandonment 0.f attachments, and annual rental fees. At this time, there is no rental fee; however, the agreement specifies that, with proper notice, PG&E may impose a fee in the future. If this occurs, it is likely that other provisions of the agreement will also be renegotiated. Changes in fees are subject to review and approval of the California Public Utilities Commission. At the time this report was written, the final form of the agreement had not been received from PG&E; therefore, the attachment to the resolution is an "edited" copy. The final agreement form is to indicate insurance coverage in the amount of $5,000,000, which is the City's current limit, rather than the $10,000,000 coverage shown in the attachment (see pages 7 and 8 of the agreement). Staff recommends !hat the City Council adopt the resolution approving the agreement and authorize the Mayor to execute. --------------------------------------------------------------------- COPIES TO: PG&E ITEM NO. 'I. / / g:\agenmisc\polecon . . . RESOLUTION NO. - 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, indeI1Ulification, 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 28th day of May. 1996. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk [;)( hi b ~ t .. /\ " L~ K(~t, tV.. -h ~"l CUSTOMER-OWNED STREETLIGHTS POLE A TT ACHMENT AGREEMENT .' This Pole Attachment Agreement (this" Agreement") is entered into as of the :3 i ~t: day of 1..-\ (J-',; 1996, by and between Pacific Gas and Electric Company, a California co oration, including any of its successors, (hereinafter, "PG&E") and the City of n .Lb ~1V , which shall include any subsequent modification of that public agency by annexa'tfon 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: 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 ("PG&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, Permittee 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 permissjon, 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. 1 (b) of this Agreement. The license to Permittee hereunqer 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 SectiQL11.3 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 POLE ATTACHMENTS e- 2.1. RESERVATION OF RIGHTS. PG&E EXPRESSLY RESERVES THE RIGHT TO DENY PERMITTEE ADDITIONAL A TT ACHMENTS 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 Attaclunents on the PG&E Poles without first securing PG&E's written approval on 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. ARTICLE III COMPLIANCE WITH SAFETY REQlJIREMENTS - 3.1 APPLICABLE LAW AND REQUIREMENTS. . (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 2 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 parag.raph, through any legal or administrative remedy or proceeding, including tbfough 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 3.1(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 condition promptly and in no case more than ten (10) days__of receipt of such notice. -. 3.2 WORK ON POLES. 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 o~ 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 or PG&E Right of Way. PG&E and its authorized agents shall have priority in accessing the -. 3 . 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 opJy be performed by PG&E and in accordance with PG&E's rates established by app,1cable 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 to 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, Jhrough 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 '!t 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 pennit (the "Granting Authority") that Pt:lfliittee'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). 4 ARTICLE V INDEMNIFICA TION AND LIABILITY . 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 regul~tior.; 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 Indenmitees; (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; (Hi) 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 investig~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 VALOREM 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 Pennittee's Pole . 5 . 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 aild 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 5.2. Permittee shall pay any costs that may be incurred by PG&E in enforcing this indemnity, including reasonable attorney's fees. 5.4 LIMITATION OF LIABILITY. 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 A~REEMENT. 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 rill-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 6 EXPRESS OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSES. . ARTICLE VI INSURANCE Permittee shall 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' COMPRNSATION AND EMPLOYERS' LIABILITY 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 Coverage shall be at least as broad as the Insurance Services Office (ISO) Commercial General Liability Coverage "occurrence" form, with no coverage deletions. 5 6.2.2 The limit shall not be less than [sj6:0Q0,OQO] each occurrence for bodily injury, property damage and personal inj.ury. . 6.2.3 Coverage shall: a) by "Additional Insured" endorsement add as insureds PG&E, its directors, officers, agents and employees with respect to liability arising out of the work performed by or for the Pennittee, or if the Permittee shall, at all times, be able to and shall keep PG&E in the same position as ifPG&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 BUSIJ\TESS 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." '. 7 -- . . . . ./ f) 6.3.2 The limit shall not be less than $}{),OOO,OOO each accident for bodily injury and property damage. 6.4 ADDITIONAL INSURANCE PROVISIONS 6.4.1 Before commencing use of any Pole Attachments, Permittee shall furnish P.G&E with certificates of insurance ami 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 DISCONTINlJATION. Notwithstanding 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. 8 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 I 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 Attachment; or (ii) an ownership interest in the pole and/or anc~or 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 POLES. 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~, 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 POLES. 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 . 9 . 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 Pole 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. Permim::~ 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, whic~ 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 by 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 PG&E, no refund will be paid by PG&E to Permittee until PG&E obtains a corresponding refund or credit from the IRS. 10 7.8 NOTICE OF REMOVAL. Permittee may remove its Pole Attaclnnents 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 APPLICATION FEES AND RENTAL 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 ~rticle VIII OfpthicS Agpree~ent and Exhibit [~] shall apply ObnlY to . the extent they are authorIzed by the CU. enmttee reserves the rIght to oppose efore 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 RESOLUTION 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 . 11 - . . . . 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 De 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 LANEOUS 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, overnight 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 12 . If delivered to Permittee: Ct hi /l-f af] [i c:; e.-r Attn: '1i1 C!1(.":Jrrl /)n7l:J1?):x!.~ Telephone: ('SIC) 633~t-~~5L- Facsimile: (SID) 8-33 - Cr-t/5/ 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; (b) 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 (Ca!. Govt. Code Sec. 6250, e! gq.). 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 . 13 - . . 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 strike.s, 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 SEVERABILITY. The invalidity of one or more clauses, sentences, Sections or Articles of this Agree~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 14 -- .. 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 I s rights and privileges hereunder shall not relieve the Permittee of any obligation, whether indemnity 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. . 15 - , . 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. Suc_h 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 POLES. 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 EFFECT 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 .flJRISDICTION. 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 vaof..;1 ) PACIFIC GAS AND ELECTRIC COMPANY By: By: (Authorized Signature) (Authorized Signature) G~U.f.5 fie u6ic71 (Type or Print Name) (Type or Print Name) Title: ILl";', ~"... {I en/ ,,/ I Title: . 16 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 .. . 17