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HomeMy WebLinkAboutC-6439 - License Agreement for Streetlight PolesAMENDMENT NO. TWO TO LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND SOUTHERN CALIFORNIA GAS COMPANY THIS AMENDMENT NO. TWO TO LICENSE AGREEMENT ("Amendment No. Two") is made and entered into as of this to day of JVNE , 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SOUTHERN CALIFORNIA GAS COMPANY, a California corporation ("SoCalGas"), whose address is 555 West Fifth Street, Los Angeles, California 90013, and is made with reference to the following: RECITALS A. On January 22, 2016, City and SoCalGas entered into a License Agreement ("Agreement") allowing SoCalGas to attach, install, operate, maintain and remove Advanced Meter Facilities in or on City -owned streetlight poles and other existing vertical structures owned by the City at locations within the public right-of-way ("Attachment Sites"). B. On August 1, 2017, City and SoCalGas entered into Amendment No. One to License Agreement ("Amendment No. One") to reflect an increase in the total number of specific Attachment Sites to be licensed by City to SoCalGas. C. Pursuant to Agreement Section 32.5, the parties desire to enter into this Amendment No. Two to reflect an increase in the total number of specific Attachment Sites to be licensed by City to SoCalGas. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. EXCLUSIVE ATTACHMENT SITE LIST Exhibit A of the Agreement is amended in its entirety and replaced with the exclusive attachment site list attached hereto as Exhibit "A" and incorporated herein by reference. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: q%ly'2s By: �j�A0k�a 1 ron C. Harp 3 City Attorney pA�D' ATTEST: Date-.— : Leilani I. Bro, City Cle CITY OF NEWPORT BEACH, a California municipal corporation Date: !a f l I ?bZ3 By: 0,, We K. Leung aify Manager LICENSEE: SOUTHERN CALIFORNIA GAS COMPANY, a California corporation Date: Signed in Counterpart Bv: Dave Mercer Network Development Manager Advanced Meter Project fftw [END OF SIGNATURES] Attachments: Exhibit A — Exclusive Attachment Site List Southern California Gas Company Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: q/lo/`S By: ron C. Harp City Attorney pA� ' ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Grace K. Leung City Manager LICENSEE: SOUTHERN CALIFORNIA GAS COMPANY, a Cal' mia corporation Date: Dave Mercer Network Development Manager Advanced Meter Project [END OF SIGNATURES] Attachments: Exhibit A — Exclusive Attachment Site List Southern California Gas Company Page 2 EXHIBIT A EXCLUSIVE ATTACHMENT SITE LIST Advanced Meter Facilities may be installed on specific street light poles owned by the City of Newport Beach and located in the Rights of Way as identified below. 1 LH188-D Flagship Road 33.627184 -117.929916 1226 2 LH274-H Spyglass Hill Road 33.610097 -117.849238 3102 3 LH275-B Big Canyon Drive 33.627944 -117.87214 2652 4 LH278-H Irvine Avenue 33.622940 -117.914000 N/A 5 LH279-C Dover Drive 33.630002 -117.901496 1441 6 LH3015-B Old Newport Blvd. 33.622518 -117.928303 1253 7 LH3016-A Jamboree Road 33.612069 -117.890730 4637 8 LH401-F Marguerite Avenue 33.607805 -117.859531 3738 9 LH428-G Camelback Street 33.642657 -117.866976 2527 10 LH441-M Coast Highway 33.599830 -117.872150 5008 Southern California Gas Company Page A-1 11 LH494-1 Coast Highway 33.625402 -117.946414 5398 12 LH516-1 MacArthur Blvd 33.620440 -117.86125 7478 13 LH5243-A Santiago Dr. 33.622879 -117.900059 1774 14 LH5244-B Jamboree Road 33.619890 -117.884274 5026 15 LH5246-B San Joaquin Hills Rd. 33.625654 -117.878120 N/A 16 LH5247-B Hampden Road 33.589009 -117.858195 4803 17 LH5248-B Ford Road 33.627569 -117.857453 3706 18 LH6384-A W Balboa Blvd 33.620364 -117.937464 0938 19 LH6385-A 32"d Street 33.615695 -117.930910 0886 20 LH6387-A W Balboa Blvd 33.60610 -117.91610 N/A 21 LH6424-A Jamboree Road 33.635192 -117.871804 2571 22 LH6425-B Bayview Place 33.653204 -117.868932 2105 23 LHx222-B E Balboa Blvd 33.599410 -117.892581 0186 24 LHx276-B Jamboree Road 33.640430 -117.869497 2160 25 LHx277-A San Nicolas Drive 33.61520277 -117.87086388 5740 Southern California Gas Company Page A-2 26 27 LHx283-B Santiago Drive 33.641631 LHx429-B El Capitan Drive 33.608544 -117.893608 1910 -117.841467 3124 Southern California Gas Company Page A-3 0 - CO S AMENDMENT NO. ONE TO LICENSE AGREEMENT v BETWEEN THE CITY OF NEWPORT BEACH AND SOUTHERN CALIFORNIA GAS COMPANY THIS AMENDMENT NO. ONE TO LICENSE AGREEMENT ("Amendment No. One") is made and entered into as of this � day of August, 2017 ("Effective Date'), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SOUTHERN CALIFORNIA GAS COMPANY, a California corporation ("SoCalGas"), whose address is 555 West Fifth Street, Los Angeles, California 90013, and is made with reference to the following: RECITALS A. On January 22, 2016, City and SoCalGas entered into a License Agreement ("Agreement') allowing SoCalGas to attach, install, operate, maintain and remove Advanced Meter Facilities in or on City -owned streetlight poles and other existing vertical structures owned by the City at locations within the public right-of-way ("Attachment Sites"). B. Pursuant to Agreement Section 32.5, the parties desire to enter into this Amendment No. One to reflect an increase in the total number of specific Attachment Sites to be licensed by City to SoCalGas. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. EXCLUSIVE ATTACHMENT SITE LIST Exhibit A of the Agreement is amended in its entirety and replaced with the exclusive attachment site list attached hereto as Exhibit "A" and incorporated herein by reference. f�I���xei:L����IK�P►��:LC�� Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: F. Aaron C. Harp ar oel+�ln City Attorney ATTEST: Date: 2 iniffliff 0 M �20=0 City Attachments: CITY OF NEWPORT BEACH, a California municipal corporation Date: 1.2 1. By: Dave Kiff City Manager LICENSEE: SOUTHERN CALIFORNIA GAS COMPANY, a California corporation By: Dave Mercer Network Development Manager Advanced Meter Project [END OF SIGNATURES] Exhibit A — Exclusive Attachment Site List Southern California Gas Company Page 2 EXHIBIT A EXCLUSIVE ATTACHMENT SITE LIST Advanced Meter Facilities may be installed on specific street light poles owned by the City of Newport Beach and located in the Rights of Way as identified below. 1 2 3 4 5 6 7 8 9 10 LH188-D Flagship Road 33.627184 -117,929916 1226 LH274-H Spyglass Hill Road 33.610097 -117.849238 3102 LH275-B Big Canyon Drive 33.627944 -117.87214 2652 LH278-H Irvine Avenue 33.622940 -117.914000 N/A LH279-C Dover Drive 33.630002 -117.901496 1441 LH3015-B Old Newport Blvd. 33.622518 -117.928303 1253 LH3016-A Jamboree Road 33.612069 -117.890730 4637 LH401-F Marguerite Avenue 33.607805 -117.859531 3738 LH428-G Camelback Street 33.642657 -117.866976 2527 LH441-M Coast Highway 33.599830 -117.872150 5008 Southern California Gas Company Page A-1 11 LH494-1 Coast Highway 33.625402 -117.946414 5398 12 LH516-1 MacArthur Blvd 33.620440 -117.86125 7478 13 LH5243-A Santiago Dr. 33.622879 -117.900059 1774 14 LH5244-B Jamboree Road 33.619890 -117.884274 5026 15 LH5246-B San Joaquin Hills Rd. 33.625654 -117.878120 N/A 16 LH5247-B Hampden Road 33.589009 -117.858195 4803 17 LH5248-B Ford Road 33.627569 -117.857453 3706 18 LH6384-A W Balboa Blvd 33.620364 -117.937464 0938 19 LH6385-A 32nd Street 33.615695 -117.930910 0886 20 LH6387-A W Balboa Blvd 33.60610 -117.91610 N/A 21 LH6424-A Jamboree Road 33.635192 -117.871804 2571 22 LH6425-B Bayview Place 33.653204 -117.868932 2105 23 LHx222-B E Balboa Blvd 33.599410 -117.892581 0186 24 LHx276-B Jamboree Road 33.640430 -117.869497 2160 25 LHx277-A San Nicolas Drive 33.61520277 -117.87086388 5740 Southern California Gas Company Page A-2 26 LHx283-B Santiago Drive 33.641631 -117.893608 1910 Southern California Gas Company Page A-3 StateFarm • 0�— rQ :T W" STATE FARM GENERAL INSURANCE COMPANY A STOCK COMPANY WITH HOME OFFICES INBLOOMINGTON, ILLINOIS DECLARATIONS AMENDED OCT 12 2017 P9 9ox 853925 Ric ardson, TX 75085-3925 001033 3123 M-12-1102-FABB F U Addl Insured -Section II Only CITY OF NEWPORT BEACH ATTN LEILANI BROWN CITY CLERK ATTN CITY CLERKS OFFICE 100 CIVIC CENTER DR NEWPORT BEACH CA 92660-3267 Office Policy Policy Number 90-XK-7593-4 U11Gy ronoa Effective Date Expiration Date 12 Months MAR 2 2017 MAR 2 2018 The policy period beggins and ends at 12:01 am standard time atthe premises Tocatron. Named Insured TAVD VIRTUAL ASSISTANT INC DBA CYBERTARY.COM STE 140-329 1420 E ROSEVILLE PKWY ROSEVILLE CA 95661-3080 Automatic Renewal - If theotic p y period is shown as is months , this policy will be renewed automatically sub' forms the premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we will give you and the Mortgagee/Lienhold compliance with the policy provisions or as required by law. er written notice in Entity: Corporation Reason for Declarations: Your policy is amended OCT 12 2017 ADDITIONAL INSURED ADDED PREMIUM ADJUSTMENT FORM CMP -4786.1 ADDED f=ffuersement Nremium None Discounts Applied: Claim Record Prepared OCT 23 2017 CMP -4000 009868 290 Al N © Copyright, State Farm Mutual Automobile Insurance Company, 20D8 , Includes copyrighted material of Insurance Services OfficeInc„ with its permission. Continued on Reverse Side of Page Page 1 of 6 53D 686 a.705 -:f1-'7011 I()1f37.,jj, DECLARATIONS (CONTINUED) Office Policy for CITY 90 NEWPORT BEACH Policy Number * As Location Location of Number Described Premises 001 416 CRESCENT DR I ROSEVILLE CA 95678-6105 policy, Cov A - Inflation Coverage Index: Cov B - Consumer Price Index: Insurance* Limit:Buildings Limit of Insurance* Increase Crage A - Coverage B - Business Personal Business Personal property Property $ 12,300 25% No Coverage nsurance as shown Basic Deductible $500 Special Deductibles: Money and Securities $250 Equipment Breakdown $500 Other deductibles may apply - refer to policy. N/A 241.7 any increase Employee Dishonesty Prepared © Copyright, State Farm Mutual Automobile Insurance Company, 2008 OCT 23 2017 Includes copyrighted material of Insurance Services Office, Inc., with its permission. CMP -4000 Continued on Next Page 009868 $250 rage. Page 2 of 6 StateFarm • • •„ DECLARATIONS (CONTINUED) Office Policy for CITY OF NEWPORT BEACH Policy Number 90-XK-7593-4 SECTION I - EXTENSIONS OF COVERAGE - LIMIT OF INSURANCE EACH DESCRIBED PREMISES The coverages and corresponding limits shown below apply separately to each described premises shown in these Declarations, unless indicated by "See Schedule." If a coverage does not have a corresponding limit shown below, but has 'Included" indicated, please refer to that policy provision for an explanation of that coverage. COVERAGE Accounts Receivable On Premises Off Premises Arson Reward Back -Up Of Sewer Or Drain Collapse Damage To Non -Owned Buildings From Theft, Burglary Or Robbery Debris Removal Equipment Breakdown Fire Department Service Charge Fire Extinguisher Systems Recharge Expense Forgery Or Alteration Glass Expenses Increased Cost Of Construction And Demolition Costs (applies only when buildings are insured on a replacement cost basis) Money And Securities (Off Premises) Money And Securities (On Premises) Money Orders And Counterfeit Money Newly Acquired Business Personal Property (applies only if this policy provides Coverage B - Business Personal Property) Newly Acquired Or Constructed Buildings (applies only if this policy provides Coverage A - Buildings) Prepared OCT 23 2017 © Copyright, State Farm Mutual Automobile Insurance Company, 2008 CMP -4000 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 009869 290 Continued on Reverse Side of Page N LIMIT OF INSURANCE $50,000 $15,000 $5,000 $15,000 Included Coverage B Limit 25% of covered loss Included $5,000 $5,000 $10,000 Included 10% $5,000 $10,000 $1,000 $100,000 $250,000 Page 3 of 6 DECLARATIONS (CONTINUED) Office Policy for CITY OF NEWPORT BEACH Policy Number 90-XK-7593-4 SECTION I EXTENSIONS OF COVERAGE LIMIT OF INSURANCE - PER POLICY The coverages and corresponding limits shown below are the most we will pay regardless of the number of described premises shown in these Declarations. COVERAGE Dependent Property - Loss Of Income Employee Dishonesty Utility Interruption - Loss Of Income Loss Of Income And Extra Expense LIMIT OF INSURANCE $5,000 $10,000 $10,000 Actual Loss Sustained - 12 Months Prepared © Copyright, State Farm Mutual Automobile Insurance Company, 2008 OCT 23 2017 P-4000 Includes copyrighted material of Insurance Services Office, Inc., with its permission. CM P-4000 Continued on Next Page Page 4 of 6 Included Ordinance Or Law - Equipment Coverage $5,000 Outdoor Property Personal Effects (applies only to those premises provided Coverage B - Business $5,000 Personal Property) $15,000 Personal Property Off Premises Pollutant Clean Up And Removal $10,000 30 Days Preservation Of Property Property Of Others (applies only to those premises provided Coverage B - Business $2,500 Personal Property) $2,500 Signs $5,000 Unauthorized Business Card Use Valuable Papers And Records $50,000 On Premises $15,000 Off Premises Water Damage, Other Liquids, Powder Or Molten Material Damage Included SECTION I EXTENSIONS OF COVERAGE LIMIT OF INSURANCE - PER POLICY The coverages and corresponding limits shown below are the most we will pay regardless of the number of described premises shown in these Declarations. COVERAGE Dependent Property - Loss Of Income Employee Dishonesty Utility Interruption - Loss Of Income Loss Of Income And Extra Expense LIMIT OF INSURANCE $5,000 $10,000 $10,000 Actual Loss Sustained - 12 Months Prepared © Copyright, State Farm Mutual Automobile Insurance Company, 2008 OCT 23 2017 P-4000 Includes copyrighted material of Insurance Services Office, Inc., with its permission. CM P-4000 Continued on Next Page Page 4 of 6 StateFarm • . DECLARATIONS (CONTINUED) Office Policy for CITY OF NEWPORT BEACH Policy Number 90-XK-7593-4 SECTION II - LIABILITY COVERAGE LIMIT OF INSURANCE Coverage L - Business Liability $3,000,000 Coverage M - Medical Expenses (Any One Person) $10,000 Damage To Premises Rented To You $300,000 AGGREGATE LIMITS LIMIT OF INSURANCE Products/Completed Operations Aggregate $6,000,000 General Aggregate $6,000,000 Each paid claim for Liability Coverage reduces the amount of insurance we provide during the applicable annual period. Please refer to Section II - Liability in the Coverage Form and any attached endorsements. Your policy consists of these Declarations, the BUSINESSOWNERS COVERAGE FORM shown below, and any other forms and endorsements that apply, including those shown below as well as those issued subsequent to the issuance of this policy. FORMS AND ENDORSEMENT CMP -4101 Businessowners Coverage Form CMP -4786.1 *Addl Insd Owners Lessee Sched CMP -4787 *Waiver of Trans Rgt of Recov FE -6999.2 Terrorism Insurance Cov Notice CMP -4819.1 Unauthorized Business Card Use CMP -4698 Back -Up of Sewer or Drain CMP -4704 Dependent Prop Loss of Income CMP -4710 Employee Dishonesty CMP -4709 Money and Securities CMP -4703 Utility Interruption Loss Incm CMP -4705.1 Loss of Income & Extra Expnse FD -6007 Inland Marine Attach Dec NOTICE: INFORMATION CONCERNING Prepared OCT 23 2017 © Copyright, State Farm Mutual Automobile Insurance Company, 2008 CMP -4000 Includes copyrighted material of Insurance Services Office, Inc„ with its permission. 009870 290 Continued on Reverse Side of Page N Page 5 of 6 DECLARATIONS (CONTINUED) Office Policy for CITY OF NEWPORT BEACH Policy Number 90-XK-7593-4 CHANGES IN YOUR POLICY LANGUAGE IS INCLUDED. PLEASE CALL YOUR AGENT IF YOU HAVE ANY QUESTIONS. * New Form Attached This policy is issued by the State Farm General Insurance Company, Participating Policy You are entitled to participate in a distribution of the earnings of the company as determined by our Board of Directors in accordance with the Company's Articles of Incorporation, as amended. In Witness Whereof, the State Farm General Insurance Company has caused this policy to be signed by its President and Secretary at Bloomington, Illinois. rn. 4 C� Secretary President IMPORTANT NOTICE: California law requires us to provide you with Information for filing complaints with the State Insurance Department regarding the coverage and service provided under this policy. Complaints should be filed only after you and State Farm or your agent or other company representative have failed to reach a satisfactory agreement on a problem. Please forward such complaints to: California Department of Insurance Consumer Services Division 300 South Spring Street Los Angeles, CA 90013 You also may call toll free at 1 -800 -927 -HELP or visit www.insurance ca aov/01-consumers Prepared OCT 23 2017 CMP -4000 009870 290 N © Copyright, State Farm Mutual Automobile Insurance Company, 2008 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 6 of 6 StateFarm STATE FARM GENERAL INSURANCE COMPANY • A STOCK COMPANY WITH HOME OFFICES IN BLOOMINGTON, ILLINOIS PO �ox 8539?�5 Ric ardson, X 75085-3925 INLAND MARINE ATTACHING DECLARATIONS rolley Number 90-XK-7593-4 Policy Period Effective Date Expiration Date M-12-1102-FABB F U 12 Months MAR 2 2017 MAR 2 2018 Named Insured The policy period begins and ends at 12:01 am standard time atthe premises location. TAVD VIRTUAL ASSISTANT INC DBA CYBERTARY.COM STE 140-329 1420 E ROSEVILLE PKWY ROSEVILLE CA 95661-3080 ATTACHING INLAND MARINE Automatic Renewal - If the policy period is shown as 12 months, this policy will be renewed automatically subjectto the premiums, rules and forms in effectfor each succeeding policy period. If this policy is terminated, we will give you and the Mortgagee/Lienholder written notice in compliance with the policy provisions or as required by law. Annual Policy Premium Included The above Premium Amount is included in the Policy Premium shown on the Declarations. Your policy consists of these Declarations, the INLAND MARINE CONDITIONS shown below, and any other forms and endorsements that apply, including those shown below as well as those issued subsequentto the issuance of this policy. Forms, Options, and Endorsements FE -8739 Inland Marine Conditions FE -8745 Inland Marine Computer Prop FE -6271 Amendatory Endorsement See Reverse for Schedule Page with Limits Prepared OCT 23 2017 © Copyright, State Farm Mutual Automobile Insurance Company, 2008 FD -6007 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 009871 530-606x.2 U5-31-2011 MN2320 90-XK-7593-4 ATTACHING INLAND MARINE SCHEDULE PAGE ATTACHING INLAND MARINE ENDORSEMENT NUMBER FE -8745 Prepared OCT 23 2017 FD -6007 COVERAGE Inland Marine Computer Prop Loss of Income and Extra Expense LIMIT OF INSURANCE 25,000 25,000 DEDUCTIBLE AMOUNT 500 OTHER LIMITS AND EXCLUSIONS MAY APPLY - REFER TO YOUR POLICY © Copyright, State Farm Mutual Automobile Insurance Company, 2008 Includes copyrighted material of Insurance Services Office, Inc., with its permission. ANNUAL PREMIUM Included Included 009871 530-600 0.2 05-31 2011 lolf3233c1 qj— LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE SOUTHERN CALIFORNIA GAS COMPANY CJ This License Agreement ("Agreement") is made and entered into as of this 22nd day of January, 2016 ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and the Southern California Gas Company, a California corporation ("SoCalGas"), whose address is 555 West Fifth Street, Los Angeles, California 90013. City and SoCalGas are referred to hereinafter individually as "Party' and collectively as "Parties." RECITALS A. City is the fee title owner of certain streetlight poles and existing vertical structures located within the City of Newport Beach, California; B. SoCalGas is an investor-owned public utility that provides gas utility services to residents of the City; C. SoCalGas desires to implement a new wireless 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, antennas, gas repeaters and/or radio frequency local area network range extenders, and other advanced meter facilities (collectively, "Advanced Meter Facility(ies)"); D. The installation of the Advanced Meter Facilities requires the use of poles and other existing vertical structures of sufficient height and at appropriate locations to be effective; E. To eliminate to the greatest extent possible the installation of Advanced Meter Facility installations on new poles, City desires to allow SoCalGas to install its Advanced Meter Facilities on streetlight poles and other existing vertical structures owned by the City at the locations within public right-of-way generally depicted in Exhibit "A" ("Attachment Sites"), subject to the execution of this Agreement and subject to the review and final location approval by City; F. Pursuant to a letter from the City Manager dated December 7, 2015, City is directing SoCalGas to install the Advanced Meter Facilities at the Attachment Sites, pursuant to Newport Beach Municipal Code Subsection 20.49.020(C)(5)); G. Pursuant to City Council Policy F-7, Section (E) the City did not conduct an open bid process or charge fair market value for the use of the Attachment Sites because the Advanced Meter Facilities provide an essential and unique service to the community that might not otherwise be provided were full market value of the property charged. Additionally, SoCalGas's proposed use of the Attachment Sites promotes goals of the City to support high quality utility service to our residents; and Southern California Gas Company Page 1 H. City and SoCalGas have agreed to enter into this Agreement regarding SoCalGas's use and attachment of the Advanced Meter Facilities at the Attachment Sites upon the terms, conditions and other considerations set forth herein. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. LICENSE 1.1 City grants a non-exclusive license ("License") to SoCalGas for the term of this Agreement, to install, operate, and maintain the Advanced Meter Facilities on the Attachment Sites. All Advanced Meter Facilities to be installed on the Attachment Sites shall conform to the improvement drawings, designs and specifications ("Improvement Drawings") as depicted in Exhibit "B" and as reviewed by and on file as a public record with the City's Public Works Director and Community Development Departments 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. 1.2 All installation, maintenance, and operation activities shall be at SoCalGas's sole cost and expense, including but not limited to the fees and costs associated with all activities related to the installation, maintenance, operation, use, repair, replacement, improvement, alteration, inspection, testing and removal of the Advanced Meter Facilities and any required utilities or meters, as identified in said Improvement Drawings. The City is not responsible for any damage caused to the Advanced Meter Facilities by third -parties or acts of God. SoCalGas shall at its sole cost and expense comply with all applicable federal, state and/or local laws and regulations. The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and SoCalGas covenants, as a material part of the consideration for this License, to keep and perform each and every term, covenant and condition of this Agreement. 1.3 All of SoCalGas's construction and installation work shall be performed at SoCalGas's sole cost and expense and in a good and workmanlike manner and the Improvement Plans reviewed by the City Engineer, and in compliance with all applicable ordinances, regulations or law. 1.4 Notwithstanding the SoCalGas's construction and installation of the Advanced Meter Facilities, it is the Parties' intention that the SoCalGas's interest in the Attachment Site is restricted to this License and the City retains all rights, title and interest in the Attachment Site. 1.5. This Agreement does not authorize SoCalGas to install new poles or support within the public right -of way. SoCalGas shall undertake all reasonable efforts to site all Advanced Meter Facilities on existing City owned street lights or other existing vertical structures. If any Advanced Meter Facilities cannot be located on existing City owned street lights or other existing vertical structures, then SoCalGas shall review, seek input, and prior written approval on alternative site construction designs and locations from the Public Works Director and Community Development Director. SoCalGas shall also obtain all applicable approvals and permits from the City and other governmental entities prior to installation of the Advanced Meter Facilities. Southern California Gas Company Page 2 2. PERMITS, APPROVALS AND PUBLIC NOTIFICATION 2,1 In addition to this License, SoCalGas shall also secure all applicable encroachment permits, traffic control permits, and/or other permits and approvals necessary to install the Advanced Meter Facilities at the Attachment Sites. 2.2 Any future modifications to SoCalGas's Advanced Meter Facilities shall require further review, submittal, and written approval by City, including any additional permits required from City. 2.3. Prior to City approval of any installation at any Attachment Site, SoCalGas shall provide written public notice to the City, all residents, businesses, homeowners associations, and property owners within three hundred (300) feet of any proposed location. The written notice shall clearly identify the location of the proposed facility; include a complete description including photographs or depictions of what the facility will look like. The notice shall include appropriate company contact information to receive additional information. The notice shall also include a statement that those who have questions regarding or objections to the proposed facility should contact SoCalGas, but also send their objection, and the reasons why they object, to the City's designated representative. The Community Development Director or his/her designee, may meet with SoCalGas and any person that objects to the installation of a proposed facility to attempt to amicably resolve any objections. If resolution is not possible, the Community Development Director or his/her designee shall decide in his/her discretion whether installation of a facility may continue as proposed by SoCalGas. 3. USES 3.1 Construction and operation of the Advanced Meter Facilities shall be at SoCalGas's sole expense. SoCalGas shall keep the Attachment Sites free from hazards or risk to the public health, safety or welfare. 3.2 Except as provided under this Agreement, SoCalGas shall not make or permit to be made any alterations, additions or improvements to the Attachment Sites, or paint, install lighting or decorations, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the Attachment Sites without the prior written consent of City. Notwithstanding the foregoing, SoCalGas shall place warning signs on or about the Advanced Meter Facilities in the event that such signs are required by Federal, State or local law. 3.3 SoCalGas hereby acknowledges, agrees and covenants that this Agreement does not authorize or bestow any rights to SoCalGas to provide or to sublease the Attachment Sites to provide, cable television service or commercial telecommunications services. 4. TERM This Agreement shall commence upon the Effective Date (which is a date consistent with the notice period provided in City Council Policy L-23, or any successor policy) and terminate upon the SoCalGas's non-use of the Advanced Meter Facilities for a period of one hundred eighty (180) consecutive calendar days, or on Southern California Gas Company Page 3 JAnUpatl 22,201a, , whichever occurs first, or if this Agreement is otherwise terminated pursuant to Section 20. Both Parties understand and agree, this Agreement is for a limited period of time and this is not, and will not result in the permanent location of SoCalGas's Advanced Meter Facilities on the Attachment Sites. 5. FEES AND COSTS 5.1 Within five (5) calendar days following the full execution of this Agreement, SoCalGas shall pay to City a one (1) time License Fee in the amount of Seven Hundred Eighty Dollars and 00/100 ($780.00) per Attachment Site (as compensation for the SoCalGas's use of Attachment Sites). 5.2 Place for Payment of License Fee: All payments of the License Fee shall be made in lawful money of the United States of America and shall be paid to City on line at www.newportbeachca.gov, in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such other address as City may from time to time designate in writing to SoCalGas. SoCalGas assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal. 5.3 A ten percent (10%) penalty shall be added to the License Fee if not received by City within five (5) days following the due date. In addition all unpaid fees shall accrue interest at the rate of five percent (5%) per month or any portion of a month until paid in full. 5.4 SOCaIGas, or any successor or authorized assign, shall bear all costs incurred in connection with SoCalGas'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 the 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 the Advanced Meter Facilities, except for the active negligence or willful misconduct of the City, its officers, agents, employees, contractors or subcontractors. City shall not be responsible or bear any cost for repair or replacement of any streetlight, or any other City property which may be damaged as a result of installation, except for the active negligence or willful misconduct of the City, its officers, agents, employees, contractors or subcontractors. City shall not be responsible for damage caused to the Advanced Meter Facilities as a result of the actions or inactions of other parties, including, but not limited to, damage resulting from traffic accidents or contractors not employed by the City. 6. INTERFERENCE WITH CITY TELECOMMUNICATIONS 6.1 SoCalGas installation and use of its Advanced Meter Facilities under this Agreement shall not damage or interfere in any way with City's streetlight poles. 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 its street light poles, which may temporarily interfere with SoCalGas's Attachment Sites as may be necessary in order to carry out any of such activities. The City agrees to give five (5) Southern California Gas Company Page 4 calendar days' advanced notice, unless in case of emergency, of such interference to SoCalGas and to reasonably cooperate with SoCaIGaS to carry out such activities with a minimum amount of interference with SoCalGas's operations. 6.2 SoCalGas agrees that its operation of the Advanced Meter Facilities shall at all times comply with all Federal Communications Commission ("FCC") requirements and shall not cause any interference with the City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time -to -time hereafter exist ("City's Facilities"). 6.3 In the event of any interference with City Police and Fire Department public safety communications, SoCalGas shall work with the affected Department to correct the interference within two (2) hours of City's written or telephone notice to SoCalGas. In the event of interference with City's wireless communications system or external radio signals and communications other than Police or Fire Department, SoCalGas shall work with City to correct the interference within twenty-four (24) hours of City's written or telephone notice. If it is determined the interference is caused by the Advanced Meter Facility(ies) and if SoCalGas is unable to correct interference to City's satisfaction within the time frames agreed upon above, SoCalGas shall immediately cease its operation of the Advanced Meter Facility(ies) causing said interference until the cause of the interference is corrected to City's satisfaction. If SoCalGas fails to correct any interference, City may, in addition to and without compromising any other available remedy cut off power to the Advanced Meter Facility(ies) as set forth in this Agreement after notifying SoCalGas of City's intent to cut off power. 6.4 Prior to making any changes to the frequency or operating conditions of the Advanced Meter Facilities, SoCalGas shall submit plans for the proposed changes to City for its review and approval. SoCalGas agrees to fund any studies required to ensure that any contemplated changes will be compatible with the City's Facilities. No SoCalGas change shall occur prior to the City's approval. 7. EMERGENCY 7.1 SoCalGas understands that the Advanced Meter Facilities are located on public property and emergency situations may develop from time -to -time that require power to the Advanced Meter Facilities to be immediately shut off and thereby interfere or temporarily terminate SoCalGas's use of its Advanced Meter Facilities and Attachment Sites. SoCalGas agrees that if such a situation occurs, and/or there are frequency interferences of any nature between City's Police and Fire Department public safety communications equipment or City's Facilities affecting operation of sewer or water service and that of SoCalGas in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the Advanced Meter Facilities and any equipment of SoCalGas's located on the Attachment Sites for the duration of the emergency. SoCalGas agrees not to hold City responsible or liable for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Advanced Meter Facilities by the shut off of power. Southern California Gas Company Page 5 7.2 SoCalGas agrees to install a clearly marked and accessible master power "cut-off' switch on their equipment at each Attachment Site for the purpose of assisting City in such an emergency. 7.3 Unless otherwise specifically provided in a notice of termination of this Agreement, City's exercise of the right to shut off any power to the Advanced Meter Facilities is not intended to constitute a termination of this Agreement by either Party and such event is a risk accepted by the SoCalGas. SoCalGas and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. 7.4 City shall have the right to reasonably determine what constitutes an "emergency situation" pursuant to this section. 8. ACCEPTANCE OF CONDITION OF SOCALGAS AREA SoCalGas accepts use of the Attachment Sites in an "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the Attachment Sites, including its suitability for the use intended by SoCalGas. To the best of City's knowledge, the Attachment Sites have not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in this Agreement. SoCalGas has conducted its own appropriate due diligence investigation of the Attachment Sites prior to its execution of this Agreement. 9. NO INTEREST IN PROPERTY Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the Attachment Sites, or any public right-of-way, other than a license to use and access the Attachment Sites, revocable and for a temporary term as set forth in this Agreement. 10. RESERVATION OF RIGHTS SoCalGas understands, acknowledges and agrees that any and all authorizations granted to SoCalGas under this Agreement are non-exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 11. 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 SoCalGas and the City. 12. UTILITIES SoCalGas shall not do, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the public right-of-way, except as may be specifically permitted by this Agreement. SoCalGas and City may enter into an Southern California Gas Company Page 6 agreement directly with Southern California Edison allowing SoCalGas to pay for all electricity usage for the Advanced Meter facility at a streetlight pole that has an Advanced Meter Facility installed. In addition to the License Fee, SoCalGas shall be responsible for the cost of all utility services necessary for the operation of the Advanced Meter Facilities and the underlying utility (e.g., street light, etc.). 13.INSPECTION City shall be entitled, at any time, without prior notice, to inspect the Attachment Sites and Advanced Meter Facilities for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 14.CITY RETENTION RIGHTS SoCalGas's right to use the Attachment Sites during the term of this Agreement shall be subordinate and junior to the rights of City to use and occupy the Attachment Sites for any purpose that does not interfere with SoCalGas's use of the Attachment Sites as provided herein. 1S.SOCALGAS'S RETENTION OF TITLE Title to the Advanced Meter Facilities placed on the Attachment Sites by SoCalGas shall be held by SoCalGas or its equipment lessors, successors, or assigns. The Advanced Meter Facilities shall not be considered a fixture. SoCalGas has the right to remove the Advanced Meter Facilities at its sole expense from time -to -time and in all events by the expiration of this License or within thirty (30) calendar days after an early termination of this License. 16.SURRENDER Upon expiration or termination of this Agreement, SoCalGas at its sole cost and expense, shall within thirty (30) calendar days of written notice from City, remove the Advanced Meter Facilities, restore the Attachment Sites to its original condition or to a condition satisfactory to and approved by City, and vacate the Attachment Sites. Should SoCalGas fail to restore the Attachment Sites to a condition satisfactory to City, City may perform such work or have such work performed by others and SoCalGas shall within sixty (60) calendar days reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. SoCalGas shall continue to pay the License Fee until the Attachment Sites is so restored as required by this Agreement. 17.ASSIGNMENT 17.1 All of the terms and provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Agreement and the rights and obligations of the SoCalGas shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part, without the express written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned and may be withheld if assignee is of lesser financial status than SoCalGas when this Agreement was executed. Any Southern California Gas Company Page 7 attempted transfer in violation of this Section shall be null and void. Except as provided below, the transfer of the rights and obligations of SoCalGas to any successor in interest or entity acquiring fifty-one percent (51%) or more of SoCalGas's stock or assets, shall be deemed an assignment requiring consent. SoCalGas shall provide City at least thirty (30) calendar days advance written notice of any proposed transfer. 17.2 If SoCalGas desires at any time to effect a transfer, it shall first deliver to City: (1) a written request for approval; (2) the name, address and most recent financial statements of the proposed transferee; and (3) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of this Agreement arising from and after the effective date of assignment. City may approve or deny SoCalGas' transfer request in its sole and absolute discretion. 17.3 Notwithstanding Section 17.1 above, SoCalGas may, without prior approval from time -to -time, do any of the following: 17.3.1 Grant to any person or entity a security interest in some or all of SoCalGas's Advanced Meter Facilities which lien shall be subordinate and junior to this Agreement; 17.3.2 Assign its rights hereunder: (i) to any entity which has, directly, or indirectly, a thirty percent (30%) or greater interest in SoCalGas (a "Parent") or in which SoCalGas or a Parent has a thirty percent (30%) or greater interest (an "Affiliate"); (ii) to any entity with which SoCalGas and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of SoCalGas or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the Advanced Meter Facilities are operated, upon FCC approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until SoCalGas cures any defaults under this Agreement and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of SoCalGas's past, current and future obligations under the Agreement; and 17.3.3 No assignment by SoCalGas shall release SoCalGas from continuing liability under this Agreement with the exception of a buyout of the SoCalGas by another entity which formally assumes all past, current, and future obligations of SoCalGas under this Agreement. 18. TAXES SoCalGas shall pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the Advanced Meter Facilities authorized herein. City hereby gives notice to SoCalGas, pursuant to Revenue and Tax Code Section 107.6 that this Agreement may create a possessory interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of SoCalGas. 19. RELOCATION SoCalGas agrees that whenever any City improvements may be required (for example, the widening of a street), the City may require the relocation of the Advanced Southern California Gas Company Page 8 Meter Facilities at SoCalGas's expense, without making any claim against the City for reimbursement or damage therefore. Except in the event of an emergency or other situation requiring immediate relocation of the Advanced Meter Facilities, City shall provide SoCalGas with not less than thirty (30) calendar days written notice of relocation specifying a date by which the relocation is to take place. 20. TERMINATION SoCalGas shall remove all of the Advanced Meter Facilities at its sole expense within ninety (90) calendar days after the termination of the Agreement, unless a written agreement is otherwise reached between the City and SoCalGas to abandon the Advanced Meter Facilities in place. SoCalGas shall bear full responsibility for repairs to any damage to the Rights -of -Way caused by SoCalGas's or its employees', contractors', subcontractors' or agents' installation, construction, maintenance, repair, operation and removal of the Advanced Meter Facilities. The City with or without cause may terminate this Agreement upon three hundred sixty-five days (365) prior written notice to SoCalGas. In the event of termination under this section by City without cause, City shall issue a prorated refund to SoCalGas of the money paid under Section 5.1. 21. CONSTRUCTION 21.1 SoCalGas agrees to take all prudent action to protect the Attachment Sites and City Facilities from any damage or injury caused by any work performed by or on behalf of SoCalGas regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of the Advanced Meter Facilities or the failure, deterioration or collapse of such Advanced Meter Facilities. 21.2 SoCalGas shall, at its sole cost and expense, continually maintain and repair any damage to the Attachment Sites, to the extent such damage is caused by SoCalGas or any of its agents, representatives, employees, contractors, subcontractors, or invitees. SoCalGas shall immediately notify the City Manager and the appropriate public safety agency (e.g., police and fire department) of any damage or injury caused by work authorized pursuant to this Agreement. 21.3 Without limitation of any other remedy available hereunder or at law or in equity, if SoCalGas fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and SoCalGas shall reimburse City of all costs and expenses incurred in such repair or refinishing. 22.MAINTENANCE At its sole cost and expense, SoCalGas shall take good care of the Advanced Meter Facilities and keep Attachment Sites and Advanced Meter Facilities clean and free from graffiti at all times. 23. INDEMNIFICATION To the fullest extent permitted by law, SoCalGas shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any Southern California Gas Company Page 9 and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, California Coastal Commission enforcement actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to SoCalGas's breach of the terms and conditions of this Agreement, any latent or patent defects in the design and construction of the Advanced Meter Facilities, or work thereon conducted under this Agreement including, without limitation, defects in workmanship or materials or SoCalGas's presence or performance of duties on the Attachment Sites (including the negligent and/or willful acts, errors and/or omissions of SoCalGas, its principals, officers, agents, employees, vendors, suppliers, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them), Notwithstanding the foregoing, nothing herein shall be construed to require SoCalGas to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by SoCalGas. 24.INSURANCE 24.1 Without limiting SoCalGas's indemnification of City, and prior to commencement of work, SoCalGas shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. 24.2 Proof of Insurance. SoCalGas shall provide certificates of insurance to City as evidence of the insurance coverage required herein, or a Letter of Self Insurance (LOSI). Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. SoCalGas shall have the option to self -insure all or a portion of the required insurance coverages. 24.2.1 SoCalGas shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by SoCalGas, or its employees. SoCalGas shall also require that its agents, representatives, and contractors maintain the insurance required hereunder. 24.3 Acceptable Insurers. All insurance policies shall be issued by an insurer currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. Southern California Gas Company Page 10 24.4 Coverage Requirements. 24.4.1 Workers' Compensation Coverage. SoCalGas shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) each accident and per employee for disease for SoCalGas's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, SoCalGas shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. In lieu of such insurance, SoCalGas may maintain a self-insurance program meeting the requirements of the State of California along with the required Employer's Liability insurance. 24.4.2 Proof of Insurance. SoCalGas shall submit to City, along with the certificate of insurance or letter of self-insurance (LOSI) in favor of City. 24.4.3 General Liability Coverage. SoCalGas shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, and property damage, including without limitation, blanket contractual liability. 23.4.2.2 SoCalGas's insurance coverage shall be primary insurance and/or primary source of recovery as respects to City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the SoCalGas's operations or services provided to the City. Any insurance or self- insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 24.4.4 Automobile Liability Coverage. SoCalGas shall maintain automobile insurance covering all owned, non -owned and hired vehicles in the amount of one million dollars ($1,000,000) combined single limit for each accident for bodily injury and property damage. 24.5 Other Insurance Provisions or Requirements. 24.5.1 Enforcement of Agreement Provisions. SoCalGas acknowledges and agrees that any actual or alleged failure on the part of the City to inform SoCalGas of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 24.5.2 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements. Southern California Gas Company Page 11 24.6 Timely Notice of Claims. SoCalGas shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from SoCalGas's performance under this Agreement. 24.7 Additional Insurance. SoCalGas shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 25. HAZARDOUS SUBSTANCES 25.1 From the date of execution of this Agreement throughout the Term, SoCalGas shall not store, manufacture or maintain on the Attachment Sites or any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of the Advanced Meter Facilities approved by this Agreement, (ii) natural gas, or petroleum and petroleum products contained within regularly operated motor vehicles. SoCalGas shall handle, store and dispose of all Hazardous Substances it brings onto the Attachment Sites or Real Property in accordance with applicable laws. 25.2 For purposes of this Agreement, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seg.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 at seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 at seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended, (the above-cited statutes are here collectively referred to as "the Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. 25.3 Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of SoCalGas set forth in this Agreement, SoCalGas agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and Southern California Gas Company Page 12 against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the Attachment Sites provided under this Agreement by SoCalGas, arising from or attributable to the storage or deposit of Hazardous Substances on or under the Attachment Sites by SoCalGas. This Section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. 25.4 City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the Attachment Sites in violation of any law or regulation. City and SoCalGas each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs arising from any breach of any representation, warranty or agreement contained in this Section. This Section shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, SoCalGas shall surrender and vacate the Attachment Sites and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the Attachment Sites that are directly attributable to SoCalGas. 26. COMPLIANCE WITH LAWS 26.1 SoCalGas, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the Advanced Meter Facilities and the Attachment Sites, or the use thereof, including all RF safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. SoCalGas shall not occupy or use the Advanced Meter Facilities and Attachment Sites or permit any portion of the Advanced Meter Facilities and Attachment Sites to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 26.2 All SoCalGas'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 its franchise agreement and 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. 27. NOT AGENT OF CITY 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 SoCalGas, 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 SoCalGas other than the relationship of City and Southern California Gas Company Page 13 SoCalGas. 28. NO THIRD PARTY BENEFICIARIES City and SoCalGas do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Agreement, to the other Party. 29. NOTICES All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the Party intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: To City: Real Property Administrator City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 To SoCalGas: Southern California Gas Company 555 West Fifth Street Los Angeles, CA 90013 Attn: David Mercer, Network Technology Manager Tel: (213) 244-5415 Southern California Gas Company Page 14 30. PREVAILING WAGE Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime work for each craft or type of workman needed to execute the work contemplated under the Agreement shall be paid to all workmen employed on the work to be done according to the Agreement by SoCalGas and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement A copy of said determination is available by calling the prevailing wage hotline number (415) 703- 4774, and requesting one from the Department of Industrial Relations. SoCalGas is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of SoCalGas or any subcontractor under it to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 31.TIME IS OF THE ESSENCE Time is of the essence for this Agreement. 32.STANDARD PROVISIONS 32.1 Waiver. The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 32.2 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions 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. 32.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and any other attachments attached hereto, the terms of this Agreement shall govern. 32.4 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or Southern California Gas Company Page 15 against either Party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32.5 Amendments. This Agreement may be modified or amended only by a written document executed by both SoCalGas and City and approved as to form by the City Attorney. 32.6 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 32.7 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 32.8 Equal Opportunity Employment. SoCalGas represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 32.9 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing Party shall not be entitled to attorney's fees. 32.10 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 32.11 Exhibits. All exhibits attached to this Agreement are hereby incorporated by reference herein. [SIGNATURES NEXT PAGE] Southern California Gas Company Page 16 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: ell— Aaron By: C. Harp City Attorney ATTEST: / ai Date: (• (. By: 4 mm/ Leilani I. Brown City Clerk r±!1 CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Qv� Dave Ki v City Manager SOUTHERN CALIFORNIA GAS COMPANY, A California corporation Date: it S lS By: Dave Mercer Network Deployment Manager Advanced Meter Project [END OF SIGNATURES] Exhibit A: Attachment Sites Exhibit B: Improvement Drawings Attachment Sites Southern California Gas Company Page 17 Exhibit A Attachment Sites Subject to the execution of this Agreement and to review and approval by City. LH428-F Jamboree Road 33.643332 -117.867531 2525 LH516-I MacArthur Blvd. 33.620440 -117.861250 7478 LIx222-B East Balboa Blvd. 33.599410 -117.892581 0186 LH494-H East Pacific Coast 33.62509 -117.94647 5398 Highway LHx277-A San Nicolas Drive 33.615203 -117.870864 5740 Southern California Cas Company Page C-1 L145243-A 33 622879 117909b59 1' 1774 Santiago Dave LH5244-B Jamboree Road 33.619890 -117.884274 5026 LH5246-A Jamboree Road 33.625993 -117.878291 2632 LH5248-B Ford Road 33.627569 -117.857453 3706 LH278-H Irvine Avenue 33.622940 -117.914000 N/A LH441-M Coast Highway 33.599830 -117.872150 N/A LH3016-A Jamboree Road 33.612069 -117.890730 4637 Southern California Gas Company Page 2 Exhibit B Advanced Meter Facility Specifications Subject to the execution of this Agreement and to review and approval by City. 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LJlKW6 an v&ma 1� vsurc mu°r° cgR�miim 19wxKngBtlq — AmnKw wmveKm+ The Ys Q9 2AILA D NLB MTAIL0 RUAIL0 MAN LE v1R an ire�lc maw E u-in art wY mm NR iR�l C ruaavarmv W � iM tffiOr iNtlBN il&V Yb Lri. 14T121EPGLE rmwa4MvvxR 11E iKE W IVU Iy I6M1iA fY11TT[R WwIRmc aeiKKY mmilc .� vamieq rwrx wtt eKe emivw mE.0 wr�0°ae mimrw e�LvrKvn miur. xxcosLr Mme ELEVATION$ Aµ aw im m�ias. ®.nvra exw LWYq ®imK Rc s+v rRNA 6mlwM KM pC �� A�BmopeiL�ymfe' P@.sCl KOf W01MY ^Mar _q`t ae A A Southern California Gas Company Page 3 December 7. 2015 Ms. Jennifer Vaughn Public Affairs Manager Southern California Gas Company 12631 Monarch St. Garden Grove, CA 92841 CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3001 1 949 644-3020 FAX newportbeachca.gov Re: Direction to Southern California Gas Company to Install and Operate Wireless Meters Prsuant to Newport Beach Municipal Code Subsection 20.49.020(C)(5) Dear Ms. u The City f ewport Beach (City) understands that Southern California Gas Company (SoCal Gas) is installing a wireless meter communication system across Los Angeles and Orange County. SoCal Gas has approached the City requesting the use of certain City -owned streetlight poles to mount radio equipment to wirelessly read gas meters throughout the City. We understand this radio equipment also provides gas pressure monitoring and real time notice regarding gas leaks or pressure drops in a home or neighborhood. SoCal Gas has stated that this new technology will provide increased safety for the City's residents and businesses. This project is a benefit to our residents and businesses and provides increased safety in our community. In the interest of making a safer community, I am directing SoCal Gas to to install wireless meters on City -owned street poles, subject to the approval of a City license agreement and any ministerial encroachment, building permits or other approvals. This direction will exempt SoCal Gas from the City's telecom ordinance as outlined in Newport Beach Municipal Code Subsection 20.49.020(C)(5); however, there will be terms inserted into our license agreement to ensure that proper review and public notice is a part of this project. The license agreement, among other thing, will outline requirements for public noticing, staff review of design, location and total number of wireless meters, responsibility of equipment, maintenance, damage, and any cost incurred such as electrical use. The City looks forward to working together with SoCal Gas to make this project successful and beneficial to our community. ThD�avKiff nk you, City Manager City of Newport Beach