CUSTOMER OWNED SERIES STREET LIGHT SYSTEM PURCHASE, AND CONVERSION TO LS-1 AGREEMENT
THIS AGREEMENT (this “Agreement”) is made and entered into as of Month, Day, 2023 (“Effective Date”), by and between SOUTHERN CALIFORNIA EDISON, a California corporation (“SCE”), and the City of Fullerton, (“City”). SCE and City are referred to herein individually as a “Party,” and together as “Parties”.
RECITALS
A. City currently owns forty (40) LS-2 Series Street Light s (Lillie Street Area Circuit) subject to this purchase agreement . The streetlights are LS-2 (customer owned) electric streetlight facilities located in the City of Fullerton which upon city council approval and execution of this agreement and associated documents , SCE will purchase for the purpose of converting to the LS-1 tariff temporarily and then removing the facilities.
B. This agreement facilitates the removal of above ground LS-2 series streetlight facilities and replacement with newly installed SCE owned LS -1 overhead fed street lighting systems.
AGREEMENT
NOW, THEREFORE, in consideration of the respective covenants and agreements contained in this Agreement, SCE and City each agree as follows:
1. DEFINITIONS The following terms shall have the meanings ascribed to them below for purposes of this Agreement.
“Above Ground Facilities” means the existing LS-2 customer owned streetlights poles, mast-arms, fixtures, and internal wiring that is expected to be removed by SCE as part of the project to place new LS -1 streetlights “Agreement” has the meaning given in the first paragraph. “Applicable Requirements” means all laws, statutes, ordinances, rules, regulations, requirements or orders of any Governmental Authority no w in force or that may later be in force, and the terms and conditions of any permit, certificate, license or other requirement.
“Bill of Sale” means a document setting forth the Purchase Price and Facilities specified to be transferred to SCE. The document specifying the lights to be transferred to SCE shall be substantially in the form of Exhibit B attached hereto. “Business Day” means a day other than Saturday, Sunday or a day on which ( i) banks are legally closed for business in the State of California; or (ii) SCE is closed for business.
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“City” has the meaning given in the preamble paragraph. “CPUC” means the California Public Utilities Commission, or its regulatory successor, as applicable.
“Effective Date” has the meaning given in the preamble paragraph. “Environmental Requirements” means any applicable federal, state and local statutes, regulations or ordinances now in force or that may later be in force relating to the protection of human health or safety, or regulating or relating to industrial hygiene or environmental conditions, or the protection of the environment, or pollution or contamination of the air, soil, surface water or ground water, including federal, state and local laws, requirements and regulations pertaining to reporting, licensing, permitting, investigating and remediating emissions, discharges, releases or threatened releases of such substances into air, surface water or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of such substances. Environmental Requirements include without limitation: the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. 5101 et seq.); and the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)
“Facilities” has the meaning given in Section 2.2 and further described in Exhibit A.
“Governmental Authority” means any federal, state, local or other governmental, regulatory or administrative agency, commission, department, board, subdivision, court, tribunal, or other governmental arbitrator, arbitral body or other authority, but excluding Buyer.
“Hazardous Substances” means any hazardous or toxic material or waste, which is or becomes regulated by Environmental Requirement. Without limiting the gene rality of the foregoing, Hazardous Substances includes any material or substance: (a) now or hereafter defined as a “hazardous substance, “ “hazardous waste,” “hazardous material,” “ extremely hazardous waste,” “ restricted hazardous waste” or “toxic substance” or words of similar import under any applicable Environmental Requirements; or (b) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, and is now or hereafter regulated as Hazardous Substance by the United States, the State of California, any local governmental authority or any political subdivision thereof, or which cause or are listed by the State of California as being known to the State of California to cause, cancer or reproductive toxicity; or (c) the presence of which poses or threatens to pose a hazard to the health or safety of persons or the environment; or (d) which contains gasoline, diesel fuel or other petroleum hydrocarbons; or (e) which contains lead - based paint or other lead contamination, polychlorinated biphenyls (“PCBs ”), or asbestos or asbestos -containing materials or urea formaldehyde foam insulation; or (f) which contains radon gas; or (g) fuel or chemical storage tanks, energized electrical DRAFT
conductors or equipment, or natural gas transmission or distribution pipelines; and (h) other potentially hazardous substances, materials, products or conditions. “Inventory, Planning and Inspection Activities” means the activities to be performed by City and SCE in advance of the transfer of streetlights to SCE and the construction of new LS-1 streetlights.
“Land” means the real property on which the Facilities are located, together with any other real property that is encumbered by Land Rights.
“Land Rights” means the easements, leases, permits, franchise agreements or other agreements that grant SCE the right to locate the Facilities on the Land and/or permit access to the Facilities by SCE.
“LS-1 Series Street Lights ” – non-metered SCE owned, operated, and maintained streetlights as defined under CPUC approved tariff LS -1
“LS-2 Series Street Lights ” – non-metered Customer owned operated, and maintained streetlights as defined under CPUC approved tariff LS -2
Project Completion - The date at which SCE installs and energizes new streetlights and remove s existing above ground street light infrastructure remaining from the series system lights. This date will also serve as the time when the lights are considered to be operable and billing changes commence, capturing the new LED lights and appropriate tariff costs.
Potential Environmental Hazards means electric fields, magnetic fields, electromagnetic fields, electromagnetic radiation, power frequency fields, and extremely low frequency fields, however designated, and whether emitted by electric transmission lines, other distribution equipment or otherwise. “Purchase Price” has the meaning given in Section 3.1.
“New LS-1 Facilities” means new LS-1 SCE owned street light facilities the Parties agree to have installed to replace exiting LS -2 customer owned series street light facilities. Parties agree that SCE will remove existing above ground facilities. “SCE Parties” means SCE, its affiliates, and each of their respective past, present and future officers, directors, partners, employees, agents, representatives, shareholders, attorneys, affiliates, parent and subsidiary c orporations, divisions, insurance carriers, heirs, legal representatives, beneficiaries, executors, administrators, predecessors, transferees, successors and assigns.
2. PURCHASE AND SALES OF FACILITIES .
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2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, SCE agrees to purchase, and City agrees to sell to SCE, rights, title and interest in the above ground infrastructure associated with the LS-2 series street light Facilities.
2.2 Description of Facilities. The “Facilities” consist of customer owned series electric streetlight facilities owned by the City of Fullerton and located within the municipal boundaries of City of Fullerton, in the County of Orange, and in the State of California. A detailed description and listing of the Facilities to be purchased and sold is provided Exhibit A . The Parties believe that Exhibit A contains a reasonably accurate inventory of customer owned series streetlight facilities owned by the City of Fullerton and that are considered available for sale.
3. PURCHASE PRICE AND OTHER COSTS .
3.0 Purchase Price. The total purchase price for all Facilities described in Exhibit A (“Purchase Price”) is One Dollar ($1)
1.1 (a) Replacement System. SCE will construct at the company’s cost an overhead fed street light system utilizing LED technology to replace the customer owned series system streetlights subject to sale and transition to SCE.
4. CONDITIONS PRECEDENT
4.1 Conditions to City’s Obligations. City’s obligation under this Agreement is to sell the Facilities and enable the construction of new facilities through a no -fee encroachment permit and any approvals as may be required.
(a) City shall have complied in all material respects with conditions contained in this Agreement to be performed or complied with by the City at or prior to the start of the project and project completion date.
(b) No suit, action or other proceeding shall be pending before any court or Governmental Authority which seeks to restrain or prohibit any of the transactions contemplated by this Agreement or to obtain material damages or other material relief in connection with this Agreement or the transactions contemplated hereby.
4.2 Conditions to SCE’s Obligations SCE’s obligation under this Agreement to purchase the Facilities from City is subject to the approval of the Fullerton City Council, and the execution of this agreement documenting the purchase of the series system streetlights by SCE.
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(a) SCE shall have performed or complied in all material respects with all covenants, agreements and conditions contained in this Agreement .
(b) No suit, action or other proceeding shall be pending before any court or Governmental Authority which seeks to restrain or prohibit any of the transactions contemplated by this Agreement or to obtain material damages or other material relief in connection with this Agreement or the transactions contemplated hereby.
5. CONDITION OF FACILITIES AND LAND RIGHTS
5.1 “As Is” Sale . The Facilities Are Being Transferred “As Is, Where Is, And With All Faults” In Their Existing Condition, Without Any Representations Or Warranties Of Any Kind By City, Express, Implied Or Statutory, And Without Recourse Against City.
5.2 Specific Di sclaimer R egarding Land Rights . SCE Specifically acknowledges and agrees that city is not assigning or otherwise transferring its right, title and Interest in and to any land rights (Or Any Claim, Right Or Benefit arising under or resulting from such land rights) In Connection With Its Sale Of The Facilities To Buyer, and buyer assumes any and all risks and Liabilities In Connection With The Absence Of Adequate Or Appropriate Land Rights. SCE is Purchasing “Above Ground” Facilities Only (Poles, Mast -Arms, And Fixtures).
5.3 Maintenance of Facilities Pending Project Implementation . Fullerton will maintain the lights until they are transferred to SCE. Once SCE takes ownership of the existing lights, they will be removed. The new lights that will be installed will be LS -1 (SCE owned) and will be owned, operated, and maintained by SCE from the time they are energized.
5.4 New Facilities . Outside of this agreement , SCE may continue to install new streetlights in the City of Fullerton in accordance with SCE’s standard practices and tariffs and CPUC rules and regulations subject to Amendment to this agreement or/and a new agreement with city of Fullerton.
6. Project Activities
6.1 Post Project Completion Activities .
(a) As soon as practicable after the removal of existing facilities and the construction of new LS-1 streetlights, SCE will change the charge for electricity furnished to the Facilities transferred to SCE from the Streetlight Rate Schedule LS -2 to the Streetlight Rate Schedule LS -1 LIGHTING - STREET DRAFT
AND HIGHWAY SCE-OWNED INSTALLATION - UNMETERED SERVICE” Multiple Service (appropriate LED wattage) and provide written notice to City of Fullerton of such change (“Notice of Rate Change”).
(b) As soon as mapping and inventory system changes have been completed and after construction of the new LS -1 street light facilities , SCE shall provide an updated map and inventory of the newly constructed street lighting system to the City of Fullerton
6.2 Prohibition on Connecting Non -Conforming Load . City acknowledges and agrees that SCE’s purchase of the Facilities does not entitle City to connect non-conforming load to the Facilities or supporting circuits in alignment with SCE tariffs.
7. INDEMNITY. To the extent permitted by law each party agrees to indemnify, defend, and hold harmless the other party from and against any loss, cost, or damage of any kind (including reasonable outside attorneys' fees) to the extent arising out of its breach of this Agreement, and/or its negligence or willful misconduct .
8. MISCELLANEOUS.
8.1 Time of Essence. Time is of the essence of this Agreement and each and every provision hereof.
8.2 Force Majeure. Except for the payment of money when due, performance by either Party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to force majeure events beyond the control of such Party, including, without limitation, war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, government imposed moratorium legislation, actions or failures to act by any regulatory authority with jurisdiction over SCE (including the CPUC), freight embargoes, lack of transportatio n, weather-caused delays, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplier, that are not attributable to the fault of the Party claiming an extension of time. An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the Party claiming the existence of the delay first provides the other party with written notice of the occurrence of the delay, within ten (10) days of the commencement of such occurrence of a force majeure event and, thereafter, takes prompt and reasonable action within its control to remedy such force majeure event.
8.3 Further Assurances. Each Party hereto agrees to execute and deliver to the other Party such further documents or instruments as may be necessary or appropriate in order to carry out the intentions of the Parties as contained in this Agreement.
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8.4 Binding Effect; Assignment. This Agreement shall be binding upon, and shall inure to the benefit of, the heirs, successors and assigns of the Parties hereto.
Notwithstanding the foregoing, SCE shall have no right to assign this Agreement or any of its rights or obligations und er this Agreement.
8.5 Severability. If any provision of this Agreement shall be unenforceable or invalid, the same shall not affect the remaining provisions of this Agreement and the provisions of this Agreement are intended to be and shall be severabl e.
8.6 Governing Laws . This Agreement shall be governed by, and construed and enforced in accordance with , the laws of the State of California without reference to its conflicts of law provisions.
8.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
8.8 Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be either personally delivered or transmitted by registered or certified mail, return receipt requested, postage prepaid, or by a nationally recogniz ed overnight courier, addressed to the Parties as follows:
If to SCE: _____________
If to City: _____________
The date of any notice or communication shall be deemed to be the date of receipt if delivered personally, or the date of the receipt or refusal of delivery if transmitted by mail or overnight courier. Any Party may change its address for notice by giving notice to the other Party .
8.9 Limitation on Liability. SCE and City expressly agree that the obligations and liabilities of SCE under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, employees, agents, affiliates, members, representatives, stockholders or other principals or representatives of SCE.
SCE expressly agrees that the obligations and liabilities of City under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, employees, agen ts, affiliates, members, representatives, or other principals or representatives of Buyer.
8.10 Exhibits. The following Exhibits are attached hereto and incorporated by reference into this Agreement.
Exhibit A Description of the Facilities to be Purchased DRAFT
Exhibit B Form of Bill of Sale
Exhibit C Street Light Authorization Document
Exhibit D CSD-272 Application for Electrical Service
8.11 Dispute Resolution. In the event any dispute arises concerning the enforcement and/or interpretation of this Agreement, the Parties agree to attempt initially to settle such claims or disputes in good faith between themselves. Said obligation to discuss settlement of such claims or disputes shall be initiated by writ ten notice of such claim or dispute. Should the Parties not settle such claims or disputes within thirty (30) days of the date of mailing of such notice or within such additional time to which the Parties agree in writing (the “Negotiation Period”), the Parties may mutually agree to submit any such claim or dispute to mediation. In such case, the Parties will select an independent mediator within thirty (30) days of the expiration of the Negotiation Period (the “Selection Period”), either by mutual agreement or, in the absence of agreement on a mediator, by requesting during the Selection Period that the American Arbitration Association in Los Angeles, California appoint a mediator. T he mediation shall be commenced within thirty (30) days of the selection of a mediator by the Parties or the American Arbitration Association. Except as provided herein or by written agreement of the Parties, the mediation shall be conducted in Los Angeles pursuant to the rules of the American Arbitration Association. If the Parties are unable to settle the dispute through discussions or in mediation, each Party shall have the right to pursue all of its remedies at law or in equity. The covenants of Buye r and SCE contained in this section shall survive the termination of this Agreement.
8.12 Communications Equipment . Buyer acknowledges that the newly constructed Facilities may have certain SCE-owned and operated radio equipment attached to them to aid in the operation of SCE distribution or metering systems.
8.13 Interpretation. The language in all parts of this Agreement shall be construed according to its normal and usual meaning and not strictly for or against either SCE or City of Fullerton. The headings of the paragraphs of this Agreement are inserted solely for convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction of any terms or provisions hereof. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation.”
8.14 Authority. Each Party represents and warrants that the execution, delivery and performance of this Agreement has been duly authorized by such Party and each person signing this Agreement on its behalf is duly and validly authorized to do so.
8.15 Prior Agreements . This Agreement and the exhibits hereto contain the entire agreement and understating of the Parties relating to the subject matter hereto and shall supersede any prior written or oral agreements or communications between the Parties pertaining to such subject matter.
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IN WITNESS WHEREOF , the Parties hereto have caused this agreement to be duly executed as of the date and year first written above.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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Exhibit A-1
SCE:
SOUTHERN CALIFORNIA EDISON,
a California corporation
By:
Its:
BUYER:
CITY OF ________________,
By:
Its:
ATTEST:
City Clerk
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Exhibit A-2
Exhibit A
Description of Facilities to be Purchased
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Exhibit B-1
Exhibit B
Form of Bill of Sale
BILL OF SALE
Pursuant to that certain Fullerton Series Street light Replacement Agreement , dated___________, 2023 (“Agreement”), by and between Southern California Edison, a California corporation (“SCE”), and the City of _____________, (“City”), effective as of ___________, 20___ [Insert Project Completion Date], SCE hereby purchases right, title and interest in and to the property described in Attachment A (“Facilities”), attached hereto and hereby incorporated herein by this reference. All capitalized terms not defined in this Bill of Sale shall have the meanings given them in the Agreement.
THE FACILITIES ARE BEING TRANSFERRED “AS IS, WHERE IS, AND WITH ALL FAULTS” IN THEIR EXISTING CONDITION, WITHOUT ANY REPRESENTATIONS
OR WARRANTIES OF ANY KIND BY CITY OF FULLERTON, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE AGAINST CITY OF FULLERTON.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CITY OF
FULLERTON EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE
CONDITION, VALUE OR QUALITY OF THE FACILITIES, THE PROSPECTS (FINANCIAL AND OTHERWISE) OF THE FACILITIES, THE QUALITY OF
WORKMANSHIP OF THE FACILITIES, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. SCE FURTHER SPECIFICALLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING POTENTIAL
ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS SUBSTANCES,
COMPLIANCE OF THE FACILITIES OR THE LAND WHERE THE FACILITIES ARE
LOCATED WITH ENVIRONMENTAL REQUIREMENTS, OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL REQUIREMENTS. SCE
SPECIFICALLY ACKNOWLEDGES AND AGREES THAT CITY IS NOT ASSIGNING
OR OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST IN AND TO
ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING UNDER OR
RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS SALE OF
THE FACILITIES TO SCE, AND SCE ASSUMES ANY AND ALL RISKS AND
LIABILITIES IN CONNECTION WITH THE ABSENCE OF ADEQUATE OR APPROPRIATE LAND RIGHTS.
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Exhibit B-2
The parties represent that they are duly authorized to execute this Bill of Sale.
SOUTHERN CALIFORNIA EDISON COMPANY,
a California corporation
By: __________________
(Name of Business Unit VP)
(Title of VP)
Accepted and Agreed:
BUYER:
(CUSTOMER NAME),
a California corporation
By: ___________________________________
Name: _________________________________
Title: __________________________________
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Exhibit C
Street Light Authorization Document
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Exhibit D
CSD-272 Application for Electrical Service
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