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HomeMy WebLinkAbout09 APPROVE ATTACHMENT AGREEMENT WITH SOUTHERN CALIFORNIA GAS CO.AGENDA REPORT MEETING DATE: FEBRUARY 7, 2023 TO: MATTHEW S. WEST, CITY MANAGER Agenda Item Reviewed: City Manager Finance Director FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER SUBJECT: APPROVE ATTACHMENT AGREEMENT WITH SOUTHERN CALIFORNIA GAS COMPANY SUMMARY The Southern California Gas Company (Gas Company) has been deploying advanced metering technology throughout their service area. As part of this deployment, the Gas Company is requesting authorization to attach a metering device to a City owned street light pole. RECOMMENDATION it is recommended that the City Council approve the Attachment Agreement with the Southern California Gas Company and authorize the Mayor and City Clerk to execute the agreement on behalf of the City. FISCAL IMPACT The agreement provides the City with two forms of compensation per installation site. A one-time payment of $780 for use of the pole and $233.60 in compensation for the electricity required to run the device. CORRELATION TO THE STRATEGIC PLAN This item contributes to the fulfillment of the City's Strategic Plan Goal D: Strong Community and Regional Relationships. Specifically, approval of this agreements implements or fosters the implementation of strategy #2, which among other items, is to identify opportunities to collaborate with private entities to advance issues or services of mutual interest. BACKGROUND/DISCUSSION Representatives from the Gas Company have expressed an interest in using a City owned street light pole for the installation of their advanced metering equipment. Placing a third party's equipment on a street light pole is common practice, as doing so eliminates the need for the construction of a new pole within the City's right-of-way. The City currently has Southern California Edison and Gas Company equipment on street lights, which was installed prior to the City acquiring the street light system. Since acquisition, the City has approved several installations for small cell sites. At this time, the Gas Company is proposing installation of equipment at one site, but the agreement will allow for additional installations in the future by written amendment. In summary, the agreement authorizes the Gas Company to instali their advanced metering equipment on City street light poles and defines compensation and maintenance responsibilities. The Gas Company's advanced meter program requires the installation of a device near 13821 Newport Avenue. 9 DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 1709106.1 1 ATTACHMENT AGREEMENT BY AND BETWEEN THE CITY OF TUSTIN, CALIFORNIA AND SOUTHERN CALIFORNIA GAS COMPANY This Attachment Agreement (“Agreement”) is entered into this ____ day of ____________, 2023, by and between the City of Tustin, a California municipal corporation, hereinafter referred to as the (“City”) and Southern California Gas Company, a California corporation hereinafter referred to as the ("Gas Company"). 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”). R E C I T A L S WHEREAS, Gas Company is an investor-owned public utility that provides gas utility services to residents of City. WHEREAS, on the 17th day of May, 1965, City granted to Gas Company 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, Gas Company 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 (“DCUs), antennas, gas repeaters and/or radio frequency local area network range extenders, and other advanced meter facilities, in connection with and necessary for Gas Company’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, towers, streetlights or buildings of sufficient height and at appropriate locations in order to be effective. WHEREAS, City desires to allow the Gas Company to install its Advanced Meter Facilities, which are further described herein, within property owned by City identified on “Exhibit A” and incorporated herein by this reference (“Installation Sites”). WHEREAS, City and Gas Company have agreed to enter into this Agreement regarding Gas Company’s use and attachment of Advanced Meter Facilities at the Installation Sites upon the terms, conditions and other considerations set forth herein. DocuSign Envelope ID: C6103257-74EE-42DC-92FA-460034B7B868DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 1709106.1 2 A G R E E M E N T 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 term shall be for 20 years from the Effective Date. 3. Authorization. Subject to the terms and conditions contained herein, City hereby authorizes Gas Company to install Advanced Meter Facilities upon Installation Sites 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 Gas Company to attach the Advanced Meter Facilities in the general locations identified on Exhibit “A” attached hereto, and to undertake all activities related to the installation, maintenance, operation, use, repair, replacement, improvement, alteration, inspection, testing and removal of the 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 Gas Company, 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 Gas Company other than the relationship of City and Gas Company. Gas Company hereby acknowledges, agrees and covenants that this Agreement does not authorize or bestow any rights to Gas Company to provide cable television service or commercial telecommunications services. 5. Compensation. The Gas Company shall pay to the City a one-time fee of $780 ($39 x 20 years) per Installation Site. The fee shall be due within thirty (30) days of the Effective Date. 6. Electrical Consumption Charge. Gas Company shall pay the City a one-time fee of $233.60 ($11.68 x 20 years) per location as compensation for electricity usage by the Gas Company’s Advanced Meter Facilities. The fee shall be due within thirty (30) days of the Effective Date. 7. Authority to Allow Attachments. The City hereby represents and warrants to the Gas Company that it has all rights necessary to allow for the installation of the Advanced Meter Facilities at the Installation Sites. Should DocuSign Envelope ID: C6103257-74EE-42DC-92FA-460034B7B868DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 1709106.1 3 a third-party energy provider determine that any of the Advanced Meter Facilities installed per this Agreement violate their tariffs, as approved by the California Public Utilities Commission, the Gas Company agrees to remove Advanced Meter Facilities from Installation Sites in a timely manner. Additionally, the Gas Company agrees to indemnify, defend and hold harmless the City from and against losses, liability or claims from any such third-party energy provider related to the installation of the Advanced Meter Facilities at the Installation Sites. 8. Workmanship and Responsibility of Gas Company. All of Gas Company's construction and installation work shall be performed at Gas Company's sole cost and expense and in a good and workmanlike manner and in accordance with the rules and regulation of the CPUC and in compliance with all applicable ordinances, regulations or law (to the extent not inconsistent with or preempted by the jurisdiction of the CPUC). Gas Company shall remove all of the 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 in writing between the City and Gas Company to abandon the Advanced Meter Facilities in place. Gas Company shall bear full responsibility for repairs to any damage to the Rights-of-Way caused by Gas Company’s or its employees’, contractors’, subcontractors’ or agents’ installation, construction, maintenance, repair, operation and removal of the Advanced Meter Facilities. 9. Gas Company to Bear All Costs. The Gas Company, or any successor or authorized assign, shall bear all costs incurred in connection with Gas Company’s or its employees’, contractors’, subcontractors’ or agents’ planning, design, installation, construction, maintenance, repair, operation and removal of the Advanced Meter Facilities. City shall not be responsible or bear any cost for repair of any damage or movement of 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 Advanced Meter Facilities, except for the active negligence or willful misconduct of the City, its officers, agents, employees, contractors or subcontractors. 10. Interference. The Gas Company installation and use of the Advanced Meter Facilities under this Agreement shall not damage or interfere in any way with City’s operations. 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 Installation Sites, which may temporarily interfere with the Advanced Meter Facilities. Except in instances where immediate repair, maintenance, alteration, or improvement is required, the City shall endeavor to give no less than 30 day’s advance notice of such interference to the Gas Company and to reasonably cooperate with the Gas Company to carry out such activities with a DocuSign Envelope ID: C6103257-74EE-42DC-92FA-460034B7B868DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 1709106.1 4 minimum amount of interference with the Gas Company’s operations. 11. Indemnification of City. Gas Company 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 the Advanced Meter Facilities being located on the Installation Sites, 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 Gas Company’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 Gas Company is obligated to indemnify the City under this paragraph. 12. 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. 13. Amendment of Agreement. This Agreement may not be amended except pursuant to a written instrument signed by both parties. 14. 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 Tustin Attn: Director of Public Works/City Engineer 300 Centennial Way Tustin, CA 92780 TO THE GAS COMPANY: Southern California Gas Company 555 West Fifth Street Los Angeles, CA 90013 Attn: David Mercer Manager, Advanced Meter Network Deployment Tel: (213) 244-5415 DocuSign Envelope ID: C6103257-74EE-42DC-92FA-460034B7B868DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 1709106.1 5 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. 15. Other Regulations. All Gas Company’s use of the Rights-of-Way under this Agreement shall be in accordance with the laws of the United States of America, the State of California and in accordance with all applicable rules and regulations and ordinances of the City 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). 16. 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 Gas Company and the City. 17. 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 Gas Company’s parent company, or (b) any merger, consolidation or reorganization of, by or with Gas Company or transfer of all or substantially all of the stock or shares in Gas Company or assets of Gas Company. 18. 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. DocuSign Envelope ID: C6103257-74EE-42DC-92FA-460034B7B868DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 1709106.1 6 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. CITY OF TUSTIN Austin Lumbard, Mayor APPROVED AS TO FORM: David E. Kendig, City Attorney ATTEST: Erica N. Yasuda, City Clerk SOUTHERN CALIFORNIA GAS COMPANY DATE: By: David Mercer Network Deployment Manager Advanced Meter DocuSign Envelope ID: C6103257-74EE-42DC-92FA-460034B7B868 01/18/23 DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305 1709106.1 7 EXHIBIT A SITE ADDRESS CITY POLE NUMBER 1 13821 Newport Avenue 3045 DocuSign Envelope ID: C6103257-74EE-42DC-92FA-460034B7B868DocuSign Envelope ID: 08295E19-F749-4108-AB4B-9F1A457ADE11DocuSign Envelope ID: 1A2EB726-B254-4B6D-B0CA-5BB398CA5305