SCE Doc. 306332 Att. Contract No. 9.8611
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CITY OF FONTANA
L I C E N S E A G R E E M E N T
I N D E X O F A R T I C L E S
1. USE
2. TERM
3. CONSIDERATION
4. INSURANCE
5. LICENSOR’S USE OF THE PROPERTY
6. LICENSEE’S IMPROVEMENTS
7. LICENSEE'S PERSONAL PROPERTY
8. HEIGHT LIMITATIONS AND VERTICAL CLEARANCES
9. ACCESS AND CLEARANCES
10. PARKING
11. WEEDS, BRUSH, RUBBISH AND DEBRIS (WEED ABATEMENT)
12. FLAMMABLES, WASTE AND NUISANCES
13. PESTICIDES AND HERBICIDES
14. HAZARDOUS MATERIALS AND WASTE
15. SIGNS
16. FENCING AND EXISTING FIXTURES
17. PARKWAYS AND LANDSCAPING
18. IRRIGATION EQUIPMENT
19. UNDERGROUND TANKS
20. UNDERGROUND FACILITIES
21. UTILITIES
22. TAXES, ASSESSMENTS AND LIENS
23. EXPENSE
24. ASSIGNMENTS
25. COMPLIANCE WITH LAWS AND REGULATIONS
26. GOVERNING LAW
27. INDEMNIFICATION; ASSUMPTION OF RISK; RELEASE
28. TERMINATION
29. EVENTS OF DEFAULT
30. REMEDIES
31. LICENSEE’S PERSONAL PROPERTY UPON TERMINATION OR EXPIRATION
32. LIMITATION OF LIABILITY
33. NON-POSSESSORY INTEREST
34. WAIVER
35. AUTHORITY
36. ELECTRIC AND MAGNETIC FIELDS
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37. INDUCED VOLTAGES
38. NOTICES
39. RECORDING
40. COMPLETE AGREEMENT
41. SIGNATURE AUTHORITY
42. SURVIVAL
APPENDIX: GUIDELINES FOR STANDARD LICENSEE IMPROVEMENTS
ADDENDUM(S)
SCE Doc. 306332 Att. Contract No. 9.8611
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this “Agreement”) is entered into between SOUTHERN CALIFORNIA EDISON COMPANY, a corporation organized under the laws of the State of California, called "Licensor", and CITY OF FONTANA, a California municipal corporation, called "Licensee";
WITNESSETH: That Licensor, for and in consideration of the faithful performance by Licensee of the terms, covenants and agreements hereinafter set forth to be kept and performed by Licensee, does hereby give to Licensee, its designees and invitees (together identified hereinafter as “Licensee Parties”) the license for the purpose of constructing and maintaining an underground conduit and cable, a traffic signal and a temporary public road for the benefit of public use, including but not limited to facilitating the construction and development o f nearby properties , and storage of personal property during the construction of the conduit and road , on and within a portion of Assessor’s Parcel Number 0239-092- 08, situated in the City of Fontana, County of San Bernardino, State of California more fully described and depicted in Exhibit A attached hereto and made a part hereof (“Property”) , upon and subject to the terms, reservations, covenants and conditions hereinafter set forth, subject to any and all covenants, restrictions, reservations, exceptions, rights and easements, whether or not of record.
Acknowledgment of License and Disclaimer of Tenancy
Licensee acknowledges and agrees that the License constitutes a limited, revocable, non-possessory, personal and non-assignable privilege to use the Property solely for those permitted uses and activities expressly identified in this Agreement (the “License Privilege”). Licensee further acknowledges and agrees that:
● The consideration paid by Licensee pursuant to Article 3 of the Agreement is consistent with the value of the rights comprising the License Privilege; the consideration is not consistent with the higher market value for a greater right, privilege or interest (such as a lease) in the Property or similarly situated parcels.
● Licensee is not a tenant or lessee of Licensor and holds no rights of tenancy or leasehold in relation to the Property.
● The Agreement and/or any prior and/or future acts or omissions of Licensor shall not create (or be construed as creating) a leasehold, tenancy or any other interest in the Property.
● Licensor may terminate the License and revoke the License Privilege at any time, subject, if applicable, to a notice period agreed upon by the parties, as more particularly set forth in the Agreement.
● In consideration of Licensor’s grant of the License, Licensee specifically and expressly waives, releases and relinquishes any and all right(s) to assert any claim of right, privilege or interest in the Property other than the License.
● Licensee further acknowledges and agrees that without the representations and agreements set forth herein, Licensor would not enter into the Agreement.
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1. Licensee’s Use of the Property: Licensee will cause the construction and maintenance of an underground conduit and cable, and traffic signal for a temporary public road for the benefit of public use. Licensee and Licensee’s Parties will store their personal property at the Property during construction. Licensee will utilize the Property for temporary public road purposes. Licensor makes no representation, covenant, warranty or promise that the Property , and any fixtures thereon, are fit or suitable for any particular use, including the use for which this Agreement is made and Licensee is not relying on any such representation, covenant, warranty or promise. Licensee’s use of the property for any other purpose and/or failure to utilize the Property in accordance with this License as determined by the Licensor in its sole discretion will be deemed a material default and grounds for immediate termination of this Agreement in accordance with Articles 28 and/or 30.
2. Term: Unless otherwise terminated as provided herein, this Agreement will be in effect for a term of five (5) years commencing on the first day of , 2024 and ending on the last day of 2029. Licensee acknowledges that this Agreement does not entitle Licensee to any subsequent agreement, for any reason whatsoever, regardless of the use Licensee makes of the Property, the improvements Licensee places on or makes to the Property, or for any other reason.
3. Consideration: Licensee will pay to Licensor the sum of Six Thousand Two Hundred Seventy Five and 63/100 Dollars ($6,275.63) upon the execution and delivery of this Agreement for the full term of this Agreement. Payment to Licensor must be in the form of a check or money order payable to Southern California Edison Company. No cash payments will be accepted by Licensor.
In addition, Licensee shall pay to Licensor a nonrefundable administrative fee in the amount of Seven Hundred Fifty Dollars ($750), which is intended to defray some preparation costs and other expenses incurred by Licensor arising out of the development and implementation of this Agreement. Such payment shall be made with the initial license fee payment and is not refundable under any circumstances.
All accounts not paid within 30 days of the agreed upon due date will be charged a late fee equal to ten percent (10%) of the full amount that was due on said date. To the extent a payment is not made within sixty (60) days, Licensor may increase the late fee to twenty percent (20%) of the full amount due.
Licensor shall further be entitled to any other costs associated with collection of the unpaid amounts.
Payment will be paid to the Southern California Edison Company, Post Office Box 800 Rosemead, California, 91770, and Attention: Corporate Accounting Department – Accounts Receivable.
4. Insurance: During the term of this Agreement, Licensee shall maintain, or cause to be maintained, the following insurance:
(a) Workers’ Compensation with statutory limits, under the laws of the State of California and Employer’s Liability with limits of not less than $ 1,000,000.00 each accident, disease/each employee, and d isease/policy limit. Licensee shall require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the willful or grossly negligent acts of the Licensor. (b) Commercial General Liability Insurance , including contractual liability and products liability, with limits not less than $1,000,000.00 per occurrence and $1,000,000.00 in the aggregate. Such insurance shall: (i) name Licensor, its officers, agents and employees SCE Doc. 306332 Att. Contract No. 9.8611
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as additional insureds, but only for Licensee’s negligent acts or omissi ons; (ii) contain separation of insureds or cross-liability clause, and (i ii) require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the negligent acts of the Licensor. (c) Commercial Automobile Liability insurance with a combined single limit of $1,000,000.00. Such insurance shall cover the use of owned, non -owned and hired vehicles on the Property.
(d) Self - Insurance: Licensee may self-insure all of the insurance requirements above if they belong to an approved Secondary Use Category and the self -insurance is maintained under a self-insurance program reasonably satisfactory to Licensor. Licensee may submit written verification of self-insurance to meet the above insurance requirements.
The failure to maintain such insurance may be deemed by Licensor a material default of this Agreement and groun ds for immediate termination purs uant to Articles 28 and/or 30. Licensee shall provide Licensor with proof of such insurance by submission of certificates of insurance, pursuant to Article 38 “Notices”, at least ten days prior to the effective date of this Agreement, and thereafter at lea st ten days prior to each insurance renewal date. Licensee must provide Licensor at least thirty (30) days’ notice before any such insurance will be canceled, allowed to expire, or materially reduced. However, in the event insurance is canceled for the non -payment of a premium, Licensee must provide to Licensor at least ten (10) days’ prior written notice before the effective date of cancellation.
5. Licensor's Use of the Property: Licensee agrees that Licensor, its successors and assigns, have the right to enter the Property, at all times and for any purpose, and the right to conduct any activity on the Property ; provided, however, that Licensor shall endeavor to minimize its imp acts to Licensee Parties’ use of the Property while on the Property. Exercise of these rights by Licensor, its successors and assigns, will not result in compensation to Licensee for any damages whatsoever to personal property, structures, and/or crops loc ated on the Property , nor shall Licensee be entitled to any compensation for any loss of use of the Property or a portion thereof, and/or any related damages, as a result of Licensor’s activities under this Article.
6. Licensee's Improvements: Licensor has approved Licensee’s improvement plans, which were developed in accordance with the guidelines contained in the Appendix to this License. It is understood and agreed that the general guidelines contained in the Appendix are intended to provide a framework for the development of conceptual plans only; and that , should Licensee make any changes to the approved plans, Licensor may modify or add to the conditions contained in the Appendix hereto, based on determinants including but not limited to individual site characteristics, Licensor’s existing or potential operating needs or Licensee’s proposed use(s) after consultation with Licensee. Licensee must submit, for Licensor's prior written approval which shall not be unreasonably withheld, plans for any modifications to such improvements.
To the extent Licensor reviews and/or approves any improvement plans, Licensor is doing so only for purposes of determining whether said improvements are compatible with Licensor’s use of the Property.
Under no circumstances shall such review and/or approval be construed as a warranty, representation, or promise that the Property is fit for the proposed improvements, or that said improvements comply with any applicable city, state, or county building requirements , other legal requirements, or the generally accepted standard of care.
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Licensor is not required, at any time, to make any repairs, improvements, alterations, changes or additions of any nature whatsoever to the Property and/or any fixtures thereon.
7. Licensee's Personal Property: (i) Licensor grants Licensee permission to place Licensee’s personal property on the Property consistent with the use identified in Article 1 and other terms of this Agreement. Such permission granted by Licensor shall be r evoked upon the earlier of the termination or expiration of this Agreement. All equipment and other property brought, placed or erected on the Property by Licensee shall be and remain the property of Licensee, except as otherwise set forth herein.
Licensee shall be responsible for any damage to the Property and/or Licensor’s personal property arising out of Licen see’s activities on the Property, including its use and/or removal of Licen see’s personal property. Licensee further ackn owledges and agrees that L icensor is not responsible for Licensee’s personal property during the effectiveness of this Agreement, or upon termination or expiration. Licensor further assumes no duty or obligation to maintain or secure Licensee’s personal property at any time.
(ii) Unless as specifically provided for in an Addendum to this Agreement, Licensee shall not store on the Property, for a period longer than twenty-four (24) consecutive hours, any personal property owned by a non -party to this Agreement ; provided, however, th at Licensee may permit Licensee’s Parties to store their personal property on the Property during the construction on the temporary road .
Licensee will defend and indemnify Licensor, its directors, officers, agents, subcontractors, and employees, and its successors and assigns, from any and all claims, loss, damage, actions, causes of action, expenses and/or liability arising from the storage of, damage to, and/or loss of use of such non- Licensee’s Parties personal property.
8. Height Limitations and Vertical Clearances : Any equipment used by Licensee or Licensee’s Parties, on the Property, will be used and operated so as to maintain minimum clearance s from all overhead electrical conductors as designated in the table below:
Vehicle/ Equipment Vertical Clearance
500 kV 35 feet
220 kV – 66kV 30 feet
<66kV (Distribution facilities) 25 feet
Telecom 18 feet
All trees and plants on the Property will be maintained by Licensee at a maximum height of fifteen (15) feet. If requested by Licensor, Licensee will remove or relocate at Licensee’s expense, any tree and/or other planting.
9. Access and Horizontal Clearances: Licensee will provide Licensor with adequate access to all of Licensor's facilities on the Property and a t no time will there be any interference with the free movement of Licensor's equipment , personnel, and materials over the Property. Licensor may require Licensee to provide and maintain access roads within the Property, at a minimum usable width of sixteen (16) feet, with commercial driveway aprons and curb depressions capable of supporting a gross load of forty (40) tons on a three-axle vehicle. The minimum width of all roads shall be increased on curves by a distance equal to 400/inside radius of curv ature. All curves shall have a radius of not less than 50 feet measured at the inside edge of the usable road surface. Unless otherwise specified in writing by Licensor, Licensee will make no use of the area directly underneath Licensor's towers and will maintain the following minimum clearances:
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a. A 50-foot-radius around suspension tower legs , H-Frames and poles and 100-foot radius around dead-end tower legs, H-Frames and poles.
b. A 25-foot-radius around all other poles.
NOTE: Additional clearance may be required by Licensor for structures.
10. Parking: Licensee will not park, store, repair or refuel any motor vehicles or allow parking, storage, repairing or refueling of any motor vehicles on the Property unless specifically approved in a writing executed by Licensor. Notwithstanding the foregoing, (a) Licensee and Licensee’s Parties are permitted to park and store their motor vehicles in accordance with plans approved by Licensor during the construction and active repair and maintenance of the temporary road and (b) Licensee Parties are permitted to park malfunctioning motor vehicles that have become disabled temporarily (less than 24 hours) on the Property.
11. Weeds, Brush, Rubbish and Debris (Weed Abatement): Licensee will keep the Property clean, free from weeds, brush, rubbish and debris and in a condition satisfactory to Licensor.
12. Flammables, Waste and Nuisances : Unless permitted by Licensor in writing, Licensee will not, or allow others, to place , use, or store any flammable or combustible materials or waste materials on the Property or commit any waste to the Property. Licensee will be liable for any damage, nuisance or disturbance caused by the construction of Licensee’s improvements as it relates to the provisions of this section. Licensee will not permit dogs on the Property.
13. Pesticides and Herbicides: Any pesticide or herbicide applications and disposals will be made in accordance with all Federal, State, County and local laws. Licensee will dispose of all pesticides, herbicides and any other toxic substances declared to be either a health or environmental hazard , and all materials contaminated by such sub stances, including but not limited to, containers, clothing and equipment, in the manner prescribed by law.
14. Hazardous Material and Waste: Licensee will not engage in, or permit any other party to engage in, any activity on the Property that violates federal, state or local laws, rules or regulations pertaining to the use, management, storage, or disposal of waste, including, but not limited to hazardous, toxic or infectious materials. Unless permitted by Licensor in writing, Licensee will not, or allow others to, place, use, or store any hazardous, toxic or infectious materials and/or waste on the Property. Licensee will indemnify and hold Licensor, its directors, officers, agents and employees, and its successors and assigns, harmless from all claims, loss, damage, actions, causes of action, expenses and/or liability arising from leaks of, spills of, and/or contamination by or from hazardous materials as defined by applicable laws or regulations, which may occur during and after the Agreement term, an d are attributable to the actions of, or failure to act by, Licensee or any person claiming under Licensee.
15. Signs: Licensee must obtain written approval from Licensor prior to the construction or placement of any sign, signboard or other form of outdoor advertising. Licensee shall within five (5) days from the date on which the Licensee learns of graffiti on such approved signs shall remove, or shall cause to be removed, any signs containing graffiti or shall otherwise remove, or cause to be removed, such graffiti from the signs. Notwithstanding any other language in this Article, Licensee shall not advertise on any sign any product, service, or good which is (i) not directly related to Licensee’s use of the Property, (ii) offensive to the public , or (iii) which Licensor, in its reasonable discretion, deems objectionable.
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16. Fencing and Existing Fixtures : Licensee may install fencing on the Property with prior written approval from Licensor. Such fencing will include double drive gates, in locations specified by Licensor, a minimum of twenty (20) feet in width and designed to accommodate separate Licensor and Licensee locks. Licensee will maintain and repair all fencing and other fixtures affixed to the Property, including any grounding of the same as deemed necessary by Licensor . Grounding plans must be prepared and stamped by a licensed electrical engineer and submitted to Licensor.
17. Parkways and Landscaping: Licensee will keep parkway and sidewalk areas adjacent to the Property free of weeds, brush, rubbish and debris. Licensee will maintain parkways on the Property and provide landscaping that is compatible with adjoining properties and that is satisfactory to Licensor.
18. Irrigation Equipment : Any irrigation equipment located on the Property prior to the commencement of this Agreement, including but not limited to pipelines, well pumping equipment and other structures, is the property of Licensor and will remain on and be surrendered with the Property upon termination of this Agreement. Should Licensee desire to use the irrigation equipment, Licensee will maintain, operate, repair and replace, if necessary, all irrigation equipment at its own expense.
19. Underground and Above-Ground Tanks: Licensee will not install underground or above- ground storage tanks, as defined by any and all applicable laws or regulations, without Licensor's prior written approval in accordance with Article 6.
20. Underground Facilities : Any underground faciliti es must be approved by Licensor pursuant to Article 6. Licensee must contact Dig Alert and comply with the applicable processes, policies and/or procedures of Dig Alert, prior to any underground installation. Any underground facilities installed or maintained by Licensee on the Property must have a minimum cover of three feet from the top of the facility and be capable of withstanding a gross load of forty (40) tons on a three -axle vehicle.
Licensee will compact any earth excavated to a compaction of ninety percent (90%).
21. Utilities: If applicable, Licensee will pay all charges and assessments for, or in connection with, water, electric current or other utilities which may be furnished to or used on the Property.
22. Taxes, Assessments and Liens: If applicable, Licensee will pay all taxes and assessments which may be levied upon any crops, personal property, and improvements, including but not limited to, buildings, structures, and fixtures on the Property. Licensee will keep the Property free from all liens, including but not limited to, mechanics liens and encumbrances by use or occupancy by Licensee, or any person claiming under Licensee. If Licensee fails to pay the above -mentioned taxes, assessments or liens when due, Licensor may pay the same and charge the amount to the Licensee. All accounts not paid within thirty (30) days of the agreed upon due date will be charged a "late fee" on all amounts outstanding up to the maximum rate allowed by law.
23. Expense: Licen see Parties will perform and pay all obligations of Licensee under this Agreement. All matters or things required by Licensee will be performed and paid for at the sole cost and expense of Licensee Parties, without obligation by Licensor to make payment o r incur cost or expense for any such matters or things.
24. Assignments: The Parties will not assign, transfer or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party.
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25. Compliance with Laws and Regulations: In the matter of Licensee’s use of the Property, Licensee will comply with all applicable federal, state, county and local laws, all covenants, conditions and restrictions of record and all applicable ordinances, zoning restrictions, rules, regulations, orders and any requirements of any duly constituted public authorities now or hereafter in any manner affecting the Property or the streets and ways adjacent thereto. Licensee will obtain all permits and other governmental approvals required in connection with Licensee's activities hereunder. Licensee shall also comply with the requirements of every addendum attached hereto. Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising from or resulting from any violation of this provision.
26. Governing Law : The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions will be determined in accordance with the laws of the State of California.
27. Indemnification; Assumption of Risk; Release: Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising from or growing out of loss or damage to property, including that of Licensor, or injury to or death of persons, including employees of Licensor resulting in any manner whats oever, by reason of this Agreement or the use of the Property by Licensee or any person claiming under Licensee (collectively, “Claims”); provided, however, that Licensee’s obligation to hold harmless, defend and indemnify the indemnified parties shall not extend to Claims arising from Licensor’s gross negligence or willful misconduct . Licensee agrees to assume all risk of loss by fire, flood, earthquake, theft, accident, or casualty of any kind, which may affect the Property, any improvements constructed o r installed thereon by Licensee, Licensee’s use of the Property, or exercise of the rights granted herein. Licensee releases and waives all claims against Licensor and each of the indemnified parties for loss or damage caused by, arising out of, or in any way connected with Licensor’s or Licensee’s use of the Property or the exercise of the rights granted herein , except for those claims arising from of the indemnified parties’ gross negligence or willful misconduct .
28. Termination: Licensor may terminate this Agreement (a) at any time, and for any reason upon nine (9) months’ notice in writing to Licensee or (b) pursuant to Article 30, upon a material default.
Termination does not release Licensee from any liability or obligation (indemnity or ot herwise) which Licensee may have incurred prior to such termination. Upon termination, Licensor may immediately recover from Licensee all amounts due and owing hereunder, plus interest at the maximum rate permitted by law on such amounts until paid, as wel l as any other amount necessary to compensate Licensor for all the detriment proximately caused by Licensee’s failure to perform its obligations under this Agreement. Licensee's continued presence after termination shall be deemed a trespass. In the event of a termination for any reason other than non -payment of the License fee, Licensor shall refund any previously collected/pre -paid License fees covering the unused portion of the remaining term, to the extent such fees exceed any offset claimed by Licensor under the Agreement.
29. Events of Default : In addition to material defaults otherwise described herein, The occurrence of any of the following shall constitute a material default and breach of this Agreement by Licensee:
(a) Any failure by Licensee to pay the consideration due under Article 3.
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(b) The abandonment or vacating of the Property by Licensee.
(c) Any attempted assignment or subletting of this Agreement by Licensee in violation of Article 24.
(d) The failure to cure any violation by Licensee of any resolution, ordinance, statute, code, regulation or other rule of any governmental agency applicable to Licensee’s activities under this Agreement within thirty (30) days of learning of such violation.
(e) Any attempt to exclude Licensor from the Property.
(f) The making by Licensee of any general assignment for the benefit of creditors; the appointment of a receiver to take possession of substantially all of Licensee's privileges hereunder where possession is not restore d to Licensee within sixty (60) days; the attachment, execution or other judicial seizure of substantially all of Licensee's privileges hereunder, where such seizure is not discharged within sixty (60) days.
(g) Any case, proceeding or other action brought against Licensee seeking any of the relief mentioned in "clause f" of this Article which has not been stayed or dismissed within ninety (90) days after the commencement thereof.
(h) Any claim by Licensee that it has a possessory interest and/or irrevocable license in the Property.
(i) With respect to items not otherwise listed in Article 29.a -h, the failure by Licensee to observe and perform any other provision of this Agreement to be ob served or performed by Licensee, provided that Licensor shall first provide written notice of such fa ilure and Licensee shall be considered in material default where such failure continues for a total of thirty-one (31) or more consecutive days from the date of the notice. After providing initial notice under this provision, Licensor will not be required to provide any subsequent notice of breach of this Agreement.
30. Remedies: In the event of any material default by Licensee, in addition to any other remedies available to Licensor at law or in equity, Licensor shall have the option to immediately terminate this Agreement and all rights of Licensee hereunder by giving written notice of such immediate termination to Licensee.
31. Licensee’s Personal Property Upon Termination or Expiration : In the event that this Agreement is terminated, whether termination is effected pursuant to Article 28 and/or 30, or in the event this Agreement expires pursuant to Article 2, Licensee shall, at Licensee’s sole cost and expense , no less than forty-five (45) days from the earlier of t he effective termination date or expiration date, remove the road and all improvements installed by Licensee, as well as all weeds, debris, and waste from the Property and peaceably quit, surrender and restore the licensed Property to as close to the condition it was in at the inception of the Licensee’s use of the Property, in a manner satisfactory to Licensor.
If Licensee fails o r refuses to remove any of Licen see’s personal property, building(s), fixture(s) or structure(s) from the Property no less than forty-five (45) days from the earlier of the termination date or expiration date, said personal property, building(s), fixture(s) or structure(s) shall be deemed abandoned by the Licensee, and the Licensor shall have the right, but not the obligation, to remove, SCE Doc. 306332 Att. Contract No. 9.8611
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destroy, sell or otherwise dispose of them with no further notice to Licensee. Licensor shall not be required to seek and/or obtain judicial relief (including, but not limited to, the filing of an unlawful detainer action), nor shall Licensor be responsible for the value of Licensee’s personal property.
Licensor shall have the right to charge and recover from Licensee all costs and expenses incurred by Licensor related to (i) the removal, disposal or sale of Licensee’s personal property, building(s), fixture(s) or structure(s), (ii), the removal of any waste, weeds, or debris left on the Property by Licensee, (iii) environmental studies and environmental remediation and/or cleanup attributable to Licensee Parties’ use of the Property, and (iv) the restoration of the Property to the condition it was in at the inception of Licensee’s use of the Property. Licensee agrees to pay such expenses to Licensor upon demand.
32. Limitation of Liability for Damage to Licensees Personal Property, Buildings, Structures and Fixtures:
IN ORDER FOR LICENSEE TO OBTAIN THE BENEFIT OF THE FEE IDENTIFIED IN ARTICLE 3,
WHICH INCLUDES A LESSER ALLOWANCE FOR RISK FUNDING FOR LICENSOR, LICENSEE AGREES TO LIMIT LICENSOR’S LIABILITY PURSUANT TO THIS A GREEMENT. AS SUCH, IF LICENSEE IS ENTITLED TO ANY RELIEF FOR LICENSOR’S NEGLIGENCE, INCLUDING GROSS NEGLIGENCE, FOR DAMAGE OR DESTRUCTION OF LICENSEE’S PERSONAL PROPERTY,
BUILDING(S), STRUCTURE(S) OR FIXTURE(S), THE TOTAL LIABILITY OF LICENSOR SHALL NOT
EXCEED THE TOTAL FEES ACTUALLY PAID BY LICENSEE TO LICENSOR DURING THE TERM OF THIS AGREEMENT.
FURTHER, IN NO EVENT SHALL LICENSOR BE LIABLE UNDER ANY CIRCUMSTANCES FOR INJURY OR DAMAGE TO LICENSEE’S BUSINESS, IF ANY, INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFITS, LOSS OF RENTS OR OTHER EVENTS, LOSS OF BUSINESS OPPORTUNITY,
LOSS OF GOODWILL OR LOSS OF USE, IN EACH CASE, HOWEVER OCCURRING, RELATED TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 32 SHALL EXPR ESSLY SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
33. Non-Possessory Interest: Licensor retains full possession of the Property and Licensee will not acquire any possessory interest, whether temporary, permanent, or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest and Licensee will not claim that it has or ever had an irrevocable license in the Property .
34. Waiver: The parties shall not be deemed to waive any provision of this Agreement orally or by conduct. Any waiver of any provision of this Agreement must be in a writing signed by the waiving party. No waiver of any provision shall be deemed a w aiver of any other provision or of any subsequent breach of the same or any other provision. A party’s consent to or approval of any act shall not be deemed to render unnecessary the obtaining of consent to or approval of any subsequent act. Licensor’s acceptance of payment after providing notice of termination to Licensee shall not constitute a waiver of Licensor’s termination of the Agreement.
35. Authority: This Agreement is executed subject to General Order No. 69-C of the Public Utilities Commission of the State of California dated and effective July 10, 1985, incorporated by this reference. As set forth in General Order 69 -C, this Licens e is made conditional upon the right of the Licensor either on order of the Pub lic Utilities Commission or on Grantor’s own motion to resume the use of that property (including, but not limited to the removal of any obstructions) whenever, in the interest of Licensor’s service to its patrons or consumers, it shall appear necessary or desirable to do so.
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Licensee agrees to comply with all federal, state and local laws and regulations. This Agreement should not be construed as a subordination of Licensor’s rights, title and interest in and to its fee ownership, nor should this Agreement be construed as a waiver of any of the provisions contained in said License or a waiver of any costs of relocation of affected Licensor facilities.
36. Electric and Magnetic Fields (“EMF”) : There are numerous sources of power frequency electric and magnetic field (“EMF”), including household or building wiring, electrical appliances and electric power transmission and distribution facilities. There have been numerous scientific studies about the potential health effects of EMF. Interest in a potential link between long-term exposures to EMF and certain diseases is based on this scientific research and public concerns.
While some 40 years of research have not established EMF as a health hazard, some health authorities have identified magnetic field exposures as a possible human carcinogen. Many of the questions about diseases have been successfully resolved due to an aggressive international research program. However, potentially important public health questions remain about whether there is a link between EMF exposures in homes or work and some diseases including childhood leukemia and a variety of other adult diseases (e.g. adult cancers and miscarriages). While scientific research is continuing on a wide range of questions relating to exposures at both work and in our communities, a quick resolution of the remaining scientific uncertainties is not expected.
Since Licensee plans to license or otherwise enter Licensor property that is in close proximity to Licensor electric facilities, Licensor wants to share wi th Licensee and those who may enter the property under this agreement, the information available about EMF. Accordingly, Licensor has attached to this document a brochure that explains some basic facts about EMF and that describes Licensor policy on EMF. Licensor also encourages Licensee to obtain other information as needed to assist in understanding the EMF regarding the planned use of this property.
37. Induced Voltages: Licensee hereby acknowledges that any structures (including, but not limited to, buildings, fences, light poles) that exist or may be constructed on the Property licensed herein, (hereinafter, the “Structures”) in close proximity to one or more high voltage (66 kilovolt or above) electric transmission lines and/or substation facilities may be susceptible to induced voltages, static voltages and/or related electric fault conditions (hereinafter collectively referred to as “Induced Voltages”) unless appropriate grounding or other mitigation measures are incorporated into the Structures. If not properly mitigated, Induced Voltages can cause a variety of safety and/or nuisance conditions including, but not limited to, electric shocks or other injuries to individuals contacting the Structures or other utilities connected to the Structures (in cluding, but not limited to, natural gas lines, water lines or cable television lines), or interference with or damage to sensitive electronic equipment in or around the Structures. Measures to mitigate Induced Voltages, if required, will vary from case to case because of factors such as electric facility configuration and voltage, other utilities involved, or sensitivity of electronic equipment. Licensee will be responsible to determine what Induced Voltages mitigation measures should be undertaken regardi ng the Structures and to implement such mitigation measures at its sole cost and expense.
Licensee agrees for itself and for its contractors, agents, licensees, invitees, and employees, to save harmless and indemnify Licensor, its parent, subsidiaries and affiliated entities and their respective officers and employees against all claims, loss, damage, actions, causes of action, expenses and/or liability arising from or growing out of loss or damage to property, including Licensor’s own personal property, or injury to or death of persons, including employees of Licensor caused by or resulting from or connected to Induced Voltages on or related to the Structures.
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38. Notices: All notices required to be given by either party shall be made in writing and shall be deemed to have been given and received (a) when personally delivered, or delivered by same - day courier; or (b) on the third business day after mailing by registered or certified mail, postage prepaid, return receipt requested; or (c) upon delivery when sent by prepaid overnight express delivery service (e.g., FedEx, UPS); or (d) when sent by email and upon the receipt by the sending party of written confirmation by the receiving party. Notices shall be addressed as follows:
To Licensor: Southern California Edison Company
Vegetation & Land Management
Land Management – Eastern Region
2 Innovation Way
Pomona, CA 91768
Email: [email protected]
To Licensee: City of Fontana
Attn: Department of Engineering
8353 Sierra Avenue
Fontana, CA 92335
Email: [email protected]
Business Telephone No. (909) 350-6655
Notice will be deemed effective on the third calendar day after mailing. A party will immediately notify the other party in writing of any address change.
39. Recording: Licensee will not record this Agreement.
40. Complete Agreement: Licensor and Licensee acknowledge that the foregoing provisions and any appendix, addenda and exhibits attached hereto constitute the entire Agreement between the parties. Any appendices, addenda and exhibits attached hereto are incorporated herein and made an integral part hereof. This Agreement may not be modified, amended, contradicted, supplemented or altered in any way by any previous written or oral agreements or any subsequent oral agreements or unsigned written agreements. This Agreement may be modified or amended only by way of a writing executed by both parties. In case any provis ion in this Agreement shall be deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent o f such invalidity, illegality or unenforceability.
41. Signature Authority : Each of the persons executing this Agreement warrants and represents that he or she has the full and complete authority to enter into this Agreement on behalf of the Party for which he or she is signing, and to bind said party to the agreements, covenants and terms contained herein.
42. Survival: Any provision of this Agreement that imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate .
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LICENSOR:
SOUTHERN CALIFORNIA EDISON COMPANY
By___________________________________________
MONICA CONTRERAS
Real Estate Advisor
Land Management – Eastern Region
Vegetation & Land Management
_____________________
Date
LICENSEE:
________________________
CITY OF FONTANA
By: Matthew Ballantyne, City Manager
_____________________
Date
ATTEST:
Germaine Keys, City Clerk
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APPENDIX
Guidelines for Standard Licensee Improvements
The following criteria are provided to aid in developing a conceptual plot plan to be submitted to Southern California Edison Company herein a fter referred to as “Licensor” for consideration and approval prior to the start of any construction on “Licensor” property.
Plans should be developed indicating the size and location of all planned improvements. The plan should specify the dimensions of all planned improvements and the distance of all planned improvements from property lines and all adjacent “Licensor” towers, poles, guy wires or other “Licensor” facilities.
The plan must show the locations of all “Licensor” towers and poles, 16-foot-wide access roads, main water lines and water shut-off valves, electrical service lines and parking areas. All plans must indicate adjacent streets and include a “north arrow” and the Licensee’s name.
SHADE STRUCTURES
(Definition: A non-flammable frame covered on the top with a material designed to provide shade to aid in growing plants)
1. Shade structures must maintain minimum spac ing of 50 feet between shade structure locations, should be placed perpendicular to Licensor’s overhead electrical conductors (wires) unless otherwise approved in writing by Licensor, and should not exceed maximum dimensions of:
a. 100 feet in length
b. 50 feet in width
c. 15 feet in height
2. Shade structures will not be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50-foot radius around suspension tower legs, H-Frames, and poles c. 100-foot radius around dead-end tower legs, H-Frames, and poles d. 25-foot radius around anchors/guy wires, poles, and wood poles
3. Shade structures must utilize the following design:
a. Temporary/slip joint construction only
b. Non-flammable frame only
c. Adequately ground ed in accordance with plans approved and stamped by a California electrical engineer
d. Shade covering must be non-flammable and manufactured with non-hydrocarbon materials.
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SHADEHOUSES/HOTHOUSES
(Definition: A simple, non -flammable, enclosed structure design ed to control temperature without the benefit of heating and/or air conditioning units to aid in propagating and/or growing plants)
1. Shadehouses/hothouses must maintain minimum spacing of 50 feet between shadehouse/hothouse locations, should be placed in pe rpendicular to Licensor’s overhead electrical conductors (wires) unless otherwise approved in writing by Licensor, and should not exceed maximum dimensions of:
a. 100 feet in length
b. 50 feet in width
c. 15 feet in height
2. Shadehouses/hothouses will not be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot-wide access roads b. 50-foot radius around suspension tower legs, H-Frames, and poles c. 100-foot radius around dead-end tower legs, H-Frames, and poles d. 25-foot radius around anchors/guy wires, poles, and wood poles
3. Shadehouses/hothouses must utilize the following design:
a. Temporary/slip joint construction only
b. Non-flammable frame only
c. Adequately grounded in accordance with plans approved and stamped by a California electrical engineer
d. Covering must be non-flammable and manufactured with non-hydrocarbon materials
GREENHOUSES
(Definition: An enclosed structure designed to control temperature an d/or humidity by the use of heating and/or air conditioning units to aid in propagating and/or growing plants) Greenhouses will be considered on a case-by-case basis.
IRRIGATION SYSTEMS / WELLS
1. Maximum diameter of pipe: 3 inches
2. All pipes must be plastic Schedule 40 or better
3. No irrigation system will be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot-wide access roads b. 50 -foot radius around suspension tower legs, H-Frames, and poles SCE Doc. 306332 Att. Contract No. 9.8611
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c. 100-foot radius around dead-end tower legs, H-Frames, and poles
4. Sprinkler and drip irrigation controllers must be located at the edge of the right of way
5. Suitable identification markers will be required on main controllers and valves
6. Locations of main shut off valve will be provided and shown on a plot plan
7. Underground facilities must have a minimum cover of three feet
8. Earth disturbed must be compacted to ninety percent (90%)
LANDSCAPING
1. No trees will be permitted under the overhead electrical conductors or w ithin 20 feet of the area directly located under the outer circumference of the overhead conductors, which is commonly known as the “drip line.”
2. Trees must have slow to moderate growth, and must be of a variety that grows to a maximum height of only 40 feet and must be maintained by the Licensee at a height not to exceed 15 feet
3. Placement of large rocks (boulders) must be approved in writing by Licensor
4. Any mounds or change of grade must be approved in writing by Licensor
5. No cactus or thorny shrubs will be permitted
6. Retaining walls, planters, etc. may be considered on a case-by-case basis and must be approved in writing by Licensor
7. No crushed or freshly laid asphalt will be permitted
TRAILERS (Definition: Removable / portable office modules are not permitted without Licensor’s prior permission. Trailers must meet the following criteria to be considered : Trailers must meet the following criteria:
a. Must have axles and wheel and be able to be moved
b. Maximum length: 40 feet
c. Maximum height: 15 feet
d. Maximum width: 12 feet
2. No trailers will be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot-wide access roads b. 50-foot radius around suspension tower legs, H-Frames, and poles c. 100-foot radius around dead-end tower legs, H-Frames, and poles d. 25-foot radius around anchors/guy wires, poles, and wood poles SCE Doc. 306332 Att. Contract No. 9.8611
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e. Under or within 10 feet of the conductor “drip lines”
3. Sewer or gas lines to trailers must be approved in writing by Licensor
4. Location of all electrical and telephone lines must be approved in writing by Licensor
5. Electrical lines must be installed by a licensed -general contractor.
6. Trailers shall not be used for residential purposes
7. Toxic or flammable materials will not be permitted in trailers
8. Adequately grounded in accordance with plans approved and stamped by a California electrical engineer
PARKING AREAS
Parking areas should not be designed under the overhead electrical conductors or within 10 feet of the “drip lines” without Licensor’s prior written approval. Parking spaces to be identified under the approved site plan. “No Parking” striping may be required in areas where additional clearance is required.
MATERIAL STORAGE
1. If an emergency occurs, Licensee must immediately relocate all materials specified by Licensor to provide Licensor clear access to its facilities.
2. Licensee must provide Licensor with a list of material stored on the right of way
3. No toxic or flammable materials will be permitted
4. No materials shall be stored within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot-wide access roads b. 50 - foot radius around suspension tower legs, H-Frames, and poles c. 100 - foot radius around dead-end tower legs, H-Frames, and poles d. 25 feet from anchors/guy wires, poles and wood poles
5. Storage of materials not to exceed a maximum height of 15 feet
6. No storage of gasoline, diesel or any other type of fuel will be permitted
7. Any fencing around the storage areas must have Licensor’s prior written approval .