Facilities Relocation Agreement March 2016
FACILITIES RELOCATION AGREEMENT
This Facilities Relocation Ag reement (“Agreement”) is made and entered into this 7th day of June, 2024 (the “Effective Date”) by and be tween Southern California Edison Company, a California corporation (“SCE”), and City of Visalia (the “Applicant”). SCE and the Applicant are sometimes individually referred to herein as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, the Applicant is proposing to de velop a Street Improvement project (the “Project”) within that area generally depicted in the attached Exhibit A (the “Project Location”).
WHEREAS, SCE currently operates and maintains certain transmission, distribution, and/or telecommunication facilities (collectively the “SCE Facilities”) within and proximate to the Project Location.
WHEREAS, the App licant has determined that implemen tation of the Project will require the relocation of portions of the SCE Facilities and, to that end, the Applicant has requested that SCE relocate some or all of the SCE Facilities.
WHEREAS, subject to the terms and provisions set forth herein, SCE is willing and able to relocate the identified SCE Facilities in order to accommodate the Project.
NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE APPLICANT AND SCE AS FOLLOWS:
AGREEMENT
1. SCOPE OF WORK
This Project will require that certain of SCE’ s overhead transmission , distribution, and/or telecommunication facilities be relocated from their current location to a new overhead location.
The Scope of Work for the overhead relocation is as follows:
TD1878101 / 802367284 / TD2226818- 100% City Expense: Remove 5 transmission poles and install 1 TSP pole and 6 wood po les with distribution and trans telecom underbuilt.
TD2207469- 50% City Expense: Distribution at the corner of Shirks St and Riggin Ave will relocate underground, one span in each direction.
2. RELOCATION PLANS
a. Approved Relocation Plans. In furtherance of the Applicant’s request, SCE has prepared certain plans/designs that identify (i) the SCE Facilities that will be impacted by the Project and (ii) the relocation areas for the affected SCE Facilities (the “Relocation Plans”). Copies of the Relocation Plans are attached hereto as Exhibit B. The Applicant expressly acknowledges that (a) it has reviewed and approved the Reloca tion Plans and (b) the Re location Plans do not present any conflicts with the Applicant’s development plans for the Project, nor do the Relocation Plans conflict with any other non-SC E utilities that are located, or will be located, in the Project Location. It is the Applicant’s sole responsibilit y to ensure that no co nflicts exist between the Relocation Plans and the Applicant’s development plans or other non-SCE utilities, and to timely inform SCE of the need for any refinements, modifications, or revisions to the Relocation Plans to resolve any such conflicts that may later arise, all in accordance with subsections (b) – (d) below.
Facilities Relocation Agreement March 2016
b. Refinements to Plans. Depending upon the design status of the Project as of the Effective Date, the Parties acknowledge th at refinements and/or adjustments to portions of the Relocation Plans may be required in order to eliminate minor conflicts. In such instance, SCE shall prepare such refinements to the Relocation Plans as may be necessary in order to address/eliminate said conflicts. The refined Relocation Plans shall be presented to the Applicant for review and approval; SCE shall not commence the Relocation Work ( see Section 4, below) unless and until the Applicant has reviewed and approved the refined Relocation Plans. The Applicant shall be responsible for all costs and ex penses reasonably incurred by SCE in relation to SCE’s refinement of the Relocation Plans.
c. Revised Plans. In the event that modi fications/revisions to the Relocation Plans are required in order to accommodate changes to the Project (including the elimination of conflicts with the Applicant’s development plans), to resolve conflicts with other non-SCE utilities within the Project area, or to address other changed circumstances, then SCE shall prepare such modifications/revisions as are necessary to address said changes and shall present same to the Applicant for review and approval. The Applicant shall be responsible for all costs and expenses reasonably incurred by SCE in relation to SCE’s preparation of the modifications/revisions to the Relocation Plans.
d. Potential Project Delays. The Applic ant expressly acknowledges that the preparation of refined, modified and/or revise d Relocation Plans may cause delays in SCE’s performance of the Relocation Work, and that said delays could impact the development schedule for the Project. The Parties agree that SCE shall not have any liability or obligation to the Applicant (or others) in the event that the preparation of refined, modified and/or revised Relocation Plans results in delays in the Project.
3. ACQUISITION OF LAND RIGHTS
The Applicant shall be responsible for securing a ll land rights required by SCE to allow SCE to relocate, construct and permanently operate and maintain the SCE Facilities on the areas depicted in the Relocation Plans (the “Relocation Areas”). The land rights acquired by the Applicant (the “SCE Land Rights”) shall be in a form prescribed by SCE (the “SCE Land Rights Form”); SCE shall provide the SCE Land Rights Form to the Applicant.
The SCE Land Rights shall also include permanent rights of ingress/egress that allow SCE to gain reasonable, unimpeded and non-escorted access to and from the Relocation Areas and the SCE Facilities (whether over lands owned by the App licant or otherwise). In connection with the acquisition of the SCE Land Rights, the App licant shall be responsible for clearing all encumbrances identified by SCE that could interfere with the Relocation Work and the exercise of the SCE Land Rights on/about the Relocation Areas (including access thereto/therefrom). Unless otherwise agreed (in writing) by SCE, the SCE La nd Rights shall be granted directly to SCE.
Notwithstanding any provision herein to the co ntrary, SCE will not begi n the Relocation Work unless and until all required SCE Land Rights have been executed, in writing, and presented to and approved by SCE.
4. RELOCATION WORK
Following (i) the Parties’ confirmation of the finality of the Relocation Plans and (ii) the Applicant’s acquisition (and SCE’s approval) of the SCE Land Rights, SCE shall cause the SCE Facilities to be removed and relocated to the Relocation Areas in accordance with the Relocation Plans (the “Relocation Work”). SCE shall perform the Relocation Work in accordance with all applicable laws, rules and regulations.
Facilities Relocation Agreement March 2016
5. COST ALLOCATION
a. SCE’s Cost Responsibility. SCE shall be responsible for the actual costs of the following items/activities associated with SCE’s implementation of the Relocation Plans:
TD2207469- 50% SCE Expense: Distribution at the corner of Shirks St and Riggin Ave will relocate underground, one span in each direction. Per agreement with city. TD2223487- 100% SCE Expense: Relocation of 18 distribution poles located West of Shirk Street and Riggin Avenue.
b. Applicant’s Cost Responsibility. Applican t shall be responsible for the actual costs of the following it ems/activities associated with SCE’s implementation of the Relocation Plans:
TD1878101 / 802367284 / TD2226818- 100% City Expense: Remove 5 transmission poles and install 1 TSP pole and 6 wood po les with distribution and trans telecom underbuilt.
TD2207469- 50% City Expense: Distribution at the corner of Shirks Street and Riggin Avenue will relocate underground, one span in each direction.
6. INITIAL COST ESTIMATE, PAYMENT(S) AND RECONCILIATION a. Initial Cost Estimate. The total estimated cost for the Relocation Work for which the Applicant is responsible is $1,081,000.00 (the “Initial Cost Estimate”).
The Initial Cost Estimate does not include an Income Tax Component of Contribution (“ITCC”) based on SCE’s understanding that this project is exempt from ITCC charges. In the event that the Internal Revenue Service, state, city, and/or local governmental taxing authority determines that this project is taxable, the Applicant will reimburse SCE for the full amount of the tax liability, plus interest, penalties, fees, and related costs. Such amounts will be paid to SCE within 60 days after notification of such event by SCE to the Applicant. By execution of this document, the Applicant hereby acknowledges that this project is funded by the Applicant. b. Prior Advances; Outstanding Balance. SCE has previously received an engineering advance from the Applicant in the amount of $85,000.00, which has been applied toward the total Initial Cost Estimate owed by the Applicant. Thus, the total remaining balance due to SCE at this time is $996,000.00 (the “Outstanding Balance”). c. Payment of Outstanding Balance. Concurrent with the Applicant’s execution and delivery of this Agreement, the Applicant shall pay to SCE the Outstanding Balance.
The Outstanding Balance shall be delivered to SC E at the address shown in Section 12.b, below, and shall reference the following SCE Project File Number: 2490. Notwithstanding any provision herein to the contrary, the A pplicant acknowledges and agrees that SCE will not begin the Relocation Work unless and until SCE has received the Outstanding Balance. d. Reconciliation. The Parties acknowledge that the Initial Cost Estimate is valid only for a period of 90 days following the Effective Date, and that the costs associated with SCE’s performance of the Relocation Work coul d increase prior to SC E’s completion of the Relocation Work. Upon completion of the Relocation Work (or cancellation of the Project or termination of this Agreement), the Applicant will be responsible for paying the total costs and
Facilities Relocation Agreement March 2016
expenses actually incurred by SCE in relation to implementation of the Relocation Plans. Thus, at the completion of the Relocation Work (or upon cancellation of the Project or termination of this Agreement), SCE will calculate the total actual costs and expenses for which the Applicant is responsible hereunder, and the Applicant will be provided with a final invoice identifying said costs and expenses. The Applicant will be billed or refunded, as applicable, for any difference between the amounts paid by the Applicant hereunder and the actual costs and expenses incurred by SCE. Any amount owed to SCE shall be due no later than 30 days after the Applicant’s receipt of the final invoice. Similarly, any amount owed by SCE to the Applicant shall be refunded by SCE to the Applicant within 30 days following SCE’s preparation and delivery of the final invoice.
If the Applicant fails to pay the final invoic e within 30 days of rece ipt, the Applicant is responsible for paying to SCE, in addition to the invoiced amount, any and all costs incurred by SCE to collect the past due amount, including but not limited to, collection agency fees and court costs, but excluding attorneys’ fees.
7. PROJECT SCHEDULING
The Parties acknowledge an d agree that completion of the Relocation Work is contingent upon mutually acceptable schedules, available resources, the timely obtaining of permits, licenses, real property rights, and other documents, outages or other key items and not being delayed by those forces described in Section 8, below. The Partie s shall work cooperatively and in good faith to timely meet all mutually-acceptab le schedules and to minimize delays; however, the Applicant expressly acknowledges and agrees that SCE offe rs no guarantees or warranties regarding the completion date for the Relocation Work.
8. NO RESPONSIBILITY FOR DELAYS
SCE shall not be responsible or liable to the Applicant (or others) for any delay in its performance hereunder, or for any delays in the Project, due to any reason including, but not limited to:
shortage of labor or materials, delivery delays, major equipment breakdown, load management, strikes, labor disturbances, war, riot, insurre ction, civil disturbance, weather conditions, epidemic, quarantine restriction, sabotage, act of public enemy, earthquake, governmental rule, regulation or order, including orders of judgme nts of any court or commission, requirement of additional or separate Environmental Impact Reports requested by the California Public Utilities Commission (“CPUC”), delay in receiving a Certificate of Public Convenience and Necessity from the CPUC, delay in obtaining necessary rights of way, act of God, or any cause or conditions beyond the control of SCE or the Applicant. The Applicant expressly waives and releases any and all claims for damages against SCE arising out of any delays in the Proj ect unless due to SCE’s sole negligence or willful misconduct.
9. COMPLIANCE WITH CEQA AND OTHER ENVIRONMENTAL LAWS
The Applicant, at no cost to SCE, but with SCE’ s reasonable cooperation, shall comply with the requirements of the California Environmental Quality Act (“CEQA”) and other environmental laws, as applicable, and shall prepare any and all Negative Declarations, Mitigated Negative Declarations and/or Environmental Impact Reports which may be required by any agency or entity having jurisdiction over the Project and the Relocation Work. The Applicant expressly acknowledges that SCE is relying upon the Applicant’s representations that the Relocation Work is covered by the environmental documentation, clearances and permits issued (or to be issued) in relation to the Project, and that the Applicant is responsible for satisfying all mitigation requirements and conditions attendant to SCE’s performance of the Relocation Work.
Notwithstanding any provision he rein to the contrary, the App licant acknowledges and agrees that SCE will not begin the Relocation Work unless and until SCE has confirmed that all
Facilities Relocation Agreement March 2016
environmental permits, approvals, certifications and authorizations have been issued in relation to the Project and the Relocation Work.
10. COOPERATION BY BOTH PARTIES; TIMELY COMMUNICATION
The Parties shall work cooperatively and in good faith to timely implement their respective duties and obligations set forth herein. To that end, the Parties shall timely communicate with one another regarding the status of the Project, the status of the Relocation Work, and ways that the Parties may work together to fa cilitate the completion of this Agreement. Notwithstanding any provision herein to the contrary, failure by the Applicant to timely respond to requests for information by SCE shall be considered a default of this Agreement.
11. INDEMNIFICATION
The Applicant agrees, for itself, and for its agents, contractors, and employees, to save harmless, defend, and indemnify SCE, its officers, agents, contractors, and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of action, expense and/or liability arising from or growing out of loss or damage to property, including SCE's own personal property, or injury to or death of persons, incl uding employees of SCE, resulting in any manner whatsoever, directly or indirectly, by reason of the Applicant’s Project necessitating the subject work. Applicant’s duty to indemnify SCE includes, without limitation, claims against SCE regarding approvals given by Applicant for SCE’s plans, claims against SCE pertaining to the location and/or underlying real property rights for SCE’s facilitie s in new locations (as may be applicable), and claims against SCE for the removal and/or remediation of pre-existing environmental contamination (provided such co ntamination was not caused by SCE). Applicant shall not be excused of its duty to indemnify for SCE’s ordinary negligence, but shall be excused to the extent claims, losses, or damages are attributable to SCE’s sole negligence, gross negligence, or willful misconduct.
12. NOTICES, CORRESPONDENCE, AND PAYMENT ADDRESS
a. Notices and Correspondence. Any notices and correspondence provided for in this Agreement, other than payments, to be given by either Party hereto to the other shall be deemed to have been duly given when made in writing and deposited in the United States mail, registered or certified and postage prepaid, addressed as follows:
To SCE:
Robert Castillo
Project Manager (Transmission)
Southern California Edison
3 Innovation Way
Pomona, CA 91768
To City of Visalia:
315 E Acequia Avenue
Visalia, CA 932291
Attention: Diego Corvera
b. Payments: Any payments provided for in this Agreement shall be forwarded to the addresses below.
Facilities Relocation Agreement March 2016
To SCE:
Southern California Edison Company
P.O. Box 800
Rosemead, California 91771-0001
Attention: Accounts Receivable
To City of Visalia:
315 E Acequia Avenue
Visalia, CA 932291
Attention: Diego Corvera
13. TERMINATION
a. Applicant’s Right to Terminate Agreement. The Applicant shall have the right to terminate this Agreement at any time upon written notice to SCE. If this Agreement is terminated by the Applicant, the Applicant shall be responsible to SCE for all costs and expenses actually incurred by SCE in connection with SCE’s preparation of the Relocation Plans, performance of the Relocation Work, and any other actions/activities under this Agreement, notwithstanding the cost allocation provisions in Section 5, above. Additionally, Applicant shall be responsible for any additional costs and ex penses incurred by SCE as a result of the termination, including but not limited to, restoring the SCE Facilities to a permanent operational state; all costs for equipment and/or materials; and all costs or expenses related to the cancellation of contracts, purchase orders, or other commitments or agreements entered into up to and including the date of the notice of term ination, between SCE and all parties furnishing labor, materials, and services in connection with this Agreement. SCE shall prepare and deliver to the Applicant an invoice that describes/identifies the costs and expenses thus incurred by SCE.
Within 30 days following SCE’s delivery of said invoice, the Applicant shall pay to SCE the amounts specified in the invoice.
b. Termination Due to Ap plicant’s Default. If the Applicant is in default of any of the terms, provisions, conditions, limitat ions and covenants of this Agreement, SCE may give the Applicant written notice of default (“Default Notice”) at the address provided for in Section 12.a, above. If the Applicant does not cure such default within the time specified in the Default Notice, SCE has the right, but not the obligation, to terminate this Agreement upon 30 days written notice to the Applicant (or such lesser time as may be appropriate under the circumstances). Except as otherwise provided, sh ould SCE exercise such right of termination, SCE shall be entitled to payment for all costs and expenses for materials, services, labor, overhead, and any other expenses related to the performance of this Agreement thus incurred by SCE, up to and including the date of term ination, notwithstanding the cost allocation provisions in Section 5, above. SCE shall also be entitled to payment for all costs and expenses required to effect the terminatio n of this Agreement, including but not limited to: all costs and expenses pertaining to the restoration of the SCE Facilities to a permanent operational state; all costs for equipment and/or materials; and all cost s and expenses related to the cancellation of contracts, purchase orders, commitments or other agreements entered into up to and including the date of the notice of termination, between SCE and all parties furnishing labor, materials, and services in connection with this Agreement. SCE shall prepare and deliver to the Applicant an invoice that describes/identifies the costs and expenses thus incu rred by SCE. Within 30 days following SCE’s delivery of said invoice, the Applicant shall pay to SCE th e amounts specified in the invoice.
Facilities Relocation Agreement March 2016
14. JURISDICTION OF PUBLIC UTILITIES COMMISSION
This Agreement shall at all times be subject to such changes or modifications as the California Public Utilities Commission may, from time to time, direct in the exercise of its jurisdiction pursuant to the authority conferred upon it by law.
15. AMENDMENTS
The provisions of this Agreement shall not be altered or amended by any representations or promises of any Party unless consented to in a writing executed by all Parties.
16. GOVERNING LAW
This Agreement shall be subject to and construed according to the laws of the State of California.
17. HEADINGS
The captions and headings used in this Agreem ent are strictly for convenience and are not intended to and shall not affect the Parties’ rights and obligations, or the construction or interpretation of this Agreement.
18. THIRD PARTY BENEFICIARIES
Nothing herein is intended to create any third party benefit.
19. NO AGENCY, PARTNERSHIP OR JOINT VENTURE
Nothing contained herein shall be deemed or construed as creating the relationship of principal and agent or of partnership or of joint venture by and between the Parties hereto.
20. WAIVER
No waiver of any default or breach hereunder sha ll be implied from any omission to take action on account thereof, notwithstanding any custom and practice or course of dealing. No waiver by any Party of any provision under this Agreement shall be effective unless in writing and signed by such Party, and no waiver shall affect any default other than the default specified in the waiver and then said waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant shall not be construed as a waiver of any subsequent breach of the same.
21. DUPLICATE ORIGINALS AND ELECTRONIC SIGNATURES
This Agreement may be executed in duplicate orig inals, each of which, when so executed and delivered, shall be an original but such counterparts shall together constitute one instrument and agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission, Portable Document Format ( i.e., PDF) or by other electronic means constitutes effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. This Agreement may be executed by SCE by way of an electronic signature, in which case, said electronic signature shall have the same force and effect as a written signature.
[THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURES TO FOLLOW]
Facilities Relocation Agreement March 2016
IN WITNESS WHEREOF, this Agreement and each and every term herein is agreed to by and between the undersigned.
DATED: _______________ City of Visalia,
a(n) ________________________________
BY: ____________________________________
Leslie Caviglia
City Manager
DATED: _______________ SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation
BY: ____________________________________
Blake Chalson
Manager – SCE
Construction and Techinical Support
Facilities Relocation Agreement March 2016
EXHIBIT A
DESCRIPTION OF THE PROJECT LOCATION
Facilities Relocation Agreement January 2015
EXHIBIT B
APPROVED RELOCATION PLANS