HomeMy WebLinkAboutReso 1986-12722 RESOLUTION NO. 12722
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING MEMORANDUM OF AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO
GAS & ELECTRIC COMPANY FOR UNDERGROUND
UTILITIES ALLOCATION
The City Council of the City of Chula Vista does hereby
resolve as follows:
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula Vista does hereby approve that certain
Memorandum of Agreement between the City of Chula Vista and San
Diego Gas & Electric Company for underground utilities
allocation, dated the 16th day of September , 1986, a
copy of which is attached hereto and incorporated herein by
reference as if set forth in full.
BE IT FURTHER RESOLVED that the City Manager be, and he
is hereby authorized and empowered to execute for and on behalf
of the City of Chula Vista said Memorandum of Agreement.
BE IT FURTHER RESOLVED that the attached eleven (11)
year schedule for San Diego Gas & Electric allocation to the
utility undergrounding programs for the years 1987 through 1997,
be and the same is hereby approved.
Presented by Approved as to form by
Joh~ D. Goss, City Manager
/T~oma~ J.~ron, City Attorney
1/98a
ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF'
CHULA VISTA, CALIFORNIA, this 16th d(3y O[ September
19 86 , by the following vote, to-wit:
AYES: Councilmembers Moore, Malcolm, Cox, McCandliss, Campbell
NAYES: Councilmembers None
ABSTAIN: Counci lmembers None
ABSENT: Counci 1 members None
· ']V[a~'~ ~ the City oF [;hula Vista
ATTEST
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California,
DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO, 12722
,and that the same has not been amended or repealed
DATED
~ City Clerk
CrlY OF
CHUIA VISI'A
CC-660
Attachment to Resolution
ALLOCATION FOR UNDERGROUND
CONVERSION OF OVERHEAD FACILITIES
BY SDG&E
(Future Dollars)
Year Allocation
1987 $ 915 209
1988 997 600
1989 1 087 335
1990 1 185 219
1991 1 291 956
1992 1 407 243
1993 1 535 005
1994 1 673 129
1995 1 823 727
1996 1,987,856
1997 2,166,723
ORIGINAL
MEMORANDUM OF AGREEMENT
The City of Chula Vista (City) and San Diego Gas & Electric
Company (SDG&E) have for some time negotiated ways to reduce the
annual allocation for underground conversion of overhead facili-
ties required in Section 9(~) of City Ordinance No. 1427 grant-
ing SDG&E an electric franchise within the City. SDG&E and City
agree to the consideration set forth below which will allow City
to continue its beautification efforts and assist SDG&E in
stabilizing customer energy rates.
Agreement has been reached between SDG&E and City as
follows:
1. City
City waives the requirements of Section 9(b) of the
above-referenced ordinance and, in lieu thereof, shall
receive from SDG&E approximately $16 million in
undergrounding allocation through 1997 under an
allocation formula based upon City's pro rata 5.03% of
the total overhead service meters within SDG&E's
system. Specifically, SDG&E shall allocate %o City in
the years indicated the following amounts:
1987 $ 915,209
1988 997,600
1989 1,087,335 -
1990 1,185,219
1991 1 291,956
1992 1 407,243
1993 1 535,005
1994 1 673,129
1995 1 823,727
1996 1 987,856
1997 2 166,723
2. SDG&E
(a) SDG&E will initiate a three-year landscaping,
project (January 1987 through June 1989) for its
South Bay Power Plant, for a total expenditure
of $1.3 million. SDG&E will provide the draw-
ings and plans needed to complete the project.
Construction of an area agreed upon, referred to
as Phase 1, will begin after approvals and
permits are acquired and drawings have been
approved by City and SDG&E. Specifically, SDG&E
will allocate $600,000 for Phase 1 in 1987,
$400,000 in 1988 and $300,000 in the first six
months of 1989.
(b) SDG&E will provide an easement across the South
Bay Power Plant for purposes of the Telegraph
Canyon Flood Control project.
(c) SDG&E will agree to sell company-owned street
lights presently serving City at a price to be
determined using the same formula and credits as
SDG&E utilized in the recent sale of compa-
ny-owned street lights to the City of San Diego,
all of which is subject to California Public
Utilities Commission approval.
(d) SDG&E will allow the use of land under transmis-
sion power lines that traverse City's Bayfront,
east of Interstate 5, under the conditions of
SDG&E's License Agreement, a copy of which is
attached hereto.
3. Cooperation of the parties
City and SDG&E agree to exercise good faith in coordi-
nating and providing information to the other and to
execute any and all documents and take any necessary
action in order to facilitate the intent of the
parties expressed herein.
Dated: August , 1986
CITY OF CHULA VISTA SAN DIEGO GAS & ELECTRIC COMPANY
///J_ohn Goss Ja~Sk E. Thomas
~ocut~ve vice President
City Manager ~i~ O~rations
E~/~IBIT "B" -
STANDARD LICENSE PROVISIONS
TABLE OF CONTENTS
DESCRIPTION PAGE
1. Payment Review .......................... 1
2. Notices ................................. 2
3. General Restrictions .................... 2
4. Licensor's Facilities .................. 2-3
5. Alterations ............................ 3
6 Compliance With Law 3-4
7. Assumption of Risk ....................... 4-5
8. Indemnification .......................... 5
9 Public Liability Insurance 5-6
10. Obstructions ............................. 6-7
11 Attorney's Fees ........ 7
12 Condemnation 7-8
13. Breach of Conditions ..................... 8
14. Time of the Essence ...................... 8
15. Restoration and Growing Crops or
Tree Stock 8-9
16. General Order 69-B ........................ 9
17. Default ................................... 9
18. Removal of Licensee's Property ............ 9-10
19. Payment of Service Utilities .............. 10
20 Audit Rights 10-11
21. Governing Law ............................. 11
22. Severability .............................. 11
EXHIBIT "B"
Standard License Provisions
San Diego Gas & Electric, Licensor
1. Payment Review: As provided in the License, the base
annual consideration shall be increased yearly based on the
following formula:
The amount of annual consideration due will be
computed by using the Consumer Price Index
Number covering the cost of "all items" of
goods and services purchased by all urban
consumers in Los Angeles, Long Beach, Anaheim,
California, published by the United States
Department of Labor, using the period 1967 =
100 as the base period. The annual considera-
tion for each period subsequent to the first
year of the License shall be computed by
dividing the annual base consideration by the
Index Number for the first month of the first
year of the License. The amount derived is
then multiplied by the average Index Number
for the third and fourth months immediately
preceding the anniversary date of each sub-
sequent year of the License to determine the
annual consideration. Notwithstanding the
above, the annual consideration shall not be
reduced below the annual consideration for the
preceding year.
If there is no such Consumer Price Index published at
the time of any periodic mathematical computation required by this
paragraph, but a comparable Index is published by any agency of
the United States Government, such latter Index shall be selected
by Licensor. If no such comparable Index is then published, the
computation will be made in accordance with the change in the cost
of living and, if not arrived at by agreement of the parties, will
be determined by arbitration under the rules and procedures of the
American Arbitration Association.
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2. Notices: Notices to be given under the License shall be
deemed given when placed by either party in the United States
mail, postage prepaid, certified, and addressed to the Licensee at
the address in the License and to Licensor as follows:
San Diego Gas & Electric Company
Attn: Manager, Land & Environmental Dept.
P.O. Box 1831
San Diego, CA 92112
3. General Restrictions: No trailers or house trailers
shall be parked in or on the Licensed Premises. No storage
parking shall be allowed on the Licensed Premises unless speci-
fically allowed elsewhere in this License. Licensee shall not
live or reside on and shall not permit anyone, including its
agents, servants, employees, contractors or any third pexlson
whatsoever, to live or reside on the Licensed Premises. Licensee
shall (a) at all times keep the Licensed Premises clean, and free
from rubbish, public nuisances, weeds, brush, flammable materials,
growth, debris, and waste, and in a condition satisfactory to
Licensor, and (b) shall guard against erosion or fires occurring
upon the Licensed Premises.
4. Licensor's Facilities: Licensee's use of the Licensed
Premises shall not interfere or conflict with Licensor's use and
ownership of the Licensed Premises, and Licensor shall at all
times have the right to enter and use the Licensed Premises for
any purpose, including, but not limited to intallation and main-
tenance of facilities and equipment at such locations and at such
elevations as Licensor may or in the future deem advisable.
Licensee accepts the Licensed Premises subject to the foregoing
and agrees that Licensor shall not be responsible or liable for
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any injury to or destruction of any property of Licensee or others
using the Licensed Premises caused by the installation, main-
tenance or repair of Licensor's facilities whether on the Licensed
Premises or otherwise. Licensor shall have the right to_ trim any
trees, brush, or roots on the Licensed Premises when necessary for
the safety of its facilities.
5. Alterations: Licensee shall not make or allow to be
made any alterations of the Licensed Premises, except as provided
in the paragraph entitled "Use of the Premises" in the License.
For those alterations which are allowed by the License, Licensee
shall not begin work until prior written consent for specific
plans is obtained from Licensor which consent will not be unrea-
sonably withheld. Licensee shall keep the Licensed Premises free
from any liens arising from such work performed, material fur-
nished, or obligations incurred by Licensee, or arising from any
taxes or assessments levied or assessed upon Licensee or the
Licensed Premises by reason of the use of, or anything done or
permitted by Licensee upon such premises. Licensee shall obtain
appropriate permits prior to beginning any alterations.
6. Compliance With Law: Licensee shall comply with all
laws, ordinances, codes, zoning ordinances, and regulations of any
Federal, State, local or other public body or agency exercising
jurisdiction over the Licensed Premises. Licensee shall maintain
the Licensed Premises and any improvements according to zoning,
environmental and other standards, including, but not limited to
water, air and noise standards, set by such bodies or agencies.
The failure of Licensee to maintain the Licensed Premises and any
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improvements according to such standards, shall be construed as a
default of this License. Licensor may, after giving ten (10) days
written notice of such failure to Licensee, do any acts necessary
to bring the Licensed Premises and improvements.into compliance
with such standards. Licensee agrees to repay Licensor for all
costs, including but not limited to consulting, engineering,
construction and legal costs incurred by Licensor in abating a
violation of such standards, protecting against a threatened
violation of such standards and paying any fine or assessment
levied as a result of violation of such standards. Licensee shall
further indemnify and hold harmless Licensor from any claim, loss,
damage or injury, including any fines or penalties assessed by any
agency, body or court, resulting from any violation of such
standards in connection with Licensee's use of the Licensed
Premises and improvements, whether such claim, loss, damage or
injury arises in whole or in part from the negligence of Licensee.
Licensee shall, at its cost, undertake to respond to all such
claims.
7. Assumption of Risk: Licensee acknowledges and expressly
agrees that there are or may be high voltage lines, towers, poles,
underground electric ducts, cables, wires, and high pressure gas
or oil pipelines, valves and facilities, situated on, in or near
the Licensed Premises which are used by Licensor in its regular
course of business. Licensee for itself, its agents, employees,
independent contractors, invitees, Licensees, permittees, and the
agents and employees of each hereby assumes all risks, including
those of an extra-hazardous nature, of injury to persons and
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damage to property arising out of the use of the Licensed
Premises. Licensee for itself and for each of the above described
persons hereby waives and releases Licensor from all liability as
set forth above.
If agricultural or horticultural use is being made of
the Licensed Premises by Licensee, Licensee further agrees to
periodically warn and remind all of the above described persons,
at least on a weekly basis during picking or harvesting, of such
risk. Licensee also agrees to adopt any existing work methods or
procedures and to use any existing equipment which will measurably
reduce the amount of such risk.
8. Indemnification: Licensee agrees to indemnify and hold
Licensor, its officers, employees, agents or licensees harmless
from and against any and all demands, claims, suits, costs of
defense, attorneys' fees, witness fees, including expert witness
fees, liability, loss, costs, obligations or other expenses for
damage to property, or for injury to or death of any persons in
any manner arising from (a) Licensee's use, maintenance, presence
on or occupation of the Licensed Premises, (b) the presence of
Licensee's facilities upon the Licensed Premises, or (c) any act
or omission of Licensee, its employees, agents or licensees, or of
any employees, agents or licensees of its contractors, subcon-
tractors or independent contractors.
9. Insurance: Licensee shall, at its own expense, secure
and maintain in effect during the life of this License insurance
coverages as described herein, in amounts not less than the
minimum limits specified, to protect Licensor and Licensee from
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claims or liabilities in any way arising out of the ownership,
maintenance or use of the Licensed Premises: (a) Workers'
Compensation Insurance and Employer's Liability Insurance in
accordance with statutory requirements and limits, including U.S.
Longshoremen's and Harbor Workers' Compensation Act coverage,
where applicable, (b) Comprehensive General Liability Insurance to
include products-completed operations and contractual liability
coverage for liability assumed by Licensee under this License, and
automobile liability insurance, with limits of not less than
$1,000,000 each occurrence for bodily injury and property damage
combined. Such liability insurance shall name Licensor as
additional insured, shall contain a severability of interest or
cross liability clause and shall be primary for all purposes.
Certificates of insurance evidencing the coverages and provisions
required in (a) and (b) above shall be furnished to Licensor prior
to any use of the Licensed Premises by Licensee and shall provide
that written notice be given to Licensor at least thirty (30) days
prior to cancellation or reduction of any coverage. Licensee
agrees, at request of Licensor, to increase the limits of
insurance to meet the limits then required by Licensor for similar
licenses of this type. The provisions of this paragraph shall not
in any way limit any of Licensee's other obligations or
liabilities under this License.
10. Obstructions: Except as permitted by this License,
Licensee shall not place, install, maintain, or allow any combus-
tible materials, buildings, structures, or other improvements upon
B-6
the Licensed Premises and shall not cause or allow the surface
elevation therein to be changed in any way whatsoever.
11. Attorney's Fees: If either party hereto commences any
legal action or proceeding against the other by reason of the
alleged failure of the other to perform under this License, the
party prevailing in said action or proceeding shall be entitled to
recover, in addition to court costs, a reasonable attorney's fee
to be fixed by the court. Such recovery shall include court costs
and attorney's fees on appeal, if any. As used herein, "the party
prevailing" means the party in whose favor final judgment is
rendered.
12. Condemnation: If the whole or any part of the Licensed
Premises shall be taken by any public or quasi-public authority
under the power of eminent domain, this License shall cease as to
that part so taken from the day possession of that part shall be
required for any public purpose. On or before that day, Licensee
shall elect in writing either to cancel this License or to con-
tinue as to the remainder of the Licensed Premises under the terms
herein provided. If Licensee elects to continue, the considera-
tion paid by Licensee for all subsequent years of this License
shall be reduced by a percentage equivalent to the percentage the
· Licensed Premises was reduced in area by the taking. All damages
awarded for such taking shall belong to and be the property of
Licensor, with the exception that in the event Licensee should not
be allowed to remove any fixtures or other personal property as
provided by the terms of this License, then Licensee shall receive
B-7
that portion of the award, paid to Licensor, which shall represent
the value of Licensee's property so retained.
13. Breach of Conditions: Licensor's waiver of any one or
more of the covenants, conditions, or agreements of this _License
shall not be construed to be a waiver of a~y subsequent or other
breach of the same or any other covenant, conditions, or agreement
of this License. Licensor's failure to require or exact full
complete compliance with any of the covenants, conditions, or
agreements of this License shall not be construed as changing the
terms hereof, and such failure shall not stop Licensor from
enforcing the full provisions hereof. The terms of this License
shall be amended only in writing by Licensor and Licensee%
14. Time of the Essence: It is mutually agreed that time is
of the essence of each and all of the terms and provisions of this
License.
15. Restoration and Growing Crops or Tree Stock: Upon
revocation or termination of this License, Licensee agrees to
leave the Licensed Premises in good condition; and at Licensor's
request, to remove all improvements made by Licensee at no cost to
Licensor. If, however, at the revocation or termination of this
License there are growing crops or tree stock on Licensed Premises
in which Licensee has an interest, Licensee shall nonetheless
leave the Licensed Premises and Licensor shall have the right to
do with or dispose of said crops or stocks as Licensor sees fit
without compensation, renumeration or liability to Licensee on
account thereof. ~owever, in the event that said crops or stock
will mature within one month after the date of termination of this
B-$
License, and if during the term hereof Licensee shall have
requested extension of this License as herein provided, which
extension was denied by Licensor, Licensor shall extend the term
of this License for forty (40) days from ~he date of said termina-
tion for additional consideration based on a pro-rata amount of
the consideration in effect at such time.
16. General Order 69-B: Notwithstanding a~y other provi-
sions to the contrary, this License is expressly conditioned upon
the right of Licensor to commence or resume the use of the
property whenever in the interest of its service to its patrons or
consumers it shall appear necessary or desirable to do so, as
provided by General Order 69-B or any revision thereof or
amendment thereto, of the Public Utilities Commission of the State
of California.
17. Default: In the event of default by Licensee in the
performance of any of the covenants, conditions or agreements
hereof Licensor shall give Licensee written notice as provided
herein of the default. If the default is not cured or corrected
to the satisfaction of Licensor within ten (10) days of said
written notice Licensor may immediately revoke and terminate this
License and Licensee shall forfeit all consideration paid.
18. Removal of Licensee's Property: Immediately upon
revocation or termination of this License, Licensee shall remove
from the Licensed Premises all buildings, structures, facilities,
equipment, and personal property of whatever nature belonging to
Licensee and return the Licensed Premises to the condition in
which it was in immediately prior to commencement of this License.
If, within five (5) days after the revocation or termination date
Licensee has failed to remove its property and/or return the
Licensed Premises to its original condition, Licensor may, at its
option, remove Licensee's property and restore the Licensed
Premises to its original condition, and Licensee hereby agrees and
covenants that it shall pay to Licensor all expenses of Licensor
including, but not limited to labor costs including Overhead
expenses, rental of storage space, equipment rental, materials and
fuel costs of machinery.
19. Payment of Service Utilities: Licensee shall pay for
all utilities furnished to the Licensed Premises during the term
of this License or any renewal thereof, including but not limited
to electricity, gas, water and telephone service.
20. Audit Rights:
(A) Licensor reserves the right to audit any books,
records, receipts, purchase orders, settlements and other docu-
mentation and supporting information relating to this Agreement.
Any such audit(s) shall be undertaken by an employee of Licensor
or its contracted representative(s) from a Certified Public
Accounting Firm at reasonable business hours and in conformance
with generally accepted auditing standards. Licensee agrees to
fully cooperate with any such audit(s).
(B) If such audit shows a deficiency in any percentage
payment for the period covered, the amount thereof shall be paid
within fifteen (15) days by Licensee. If such audit shall show
percentage payments to have been overpaid, the excess shall be
applied to any amounts there due to Licensee. If any deficiency
B-10
in percentage varies by more than three percent (3%) over figures
submitted by Licensee, Licensee shall pay for the audit; if audit
verifies Licensee's figures within three percent (3%), expense of
audit shall be borne by Licensor.
21. Governing Law: This License shall be governed by and
construed in accordance with the laws of the State of California.
22. Severability: If any part, paragraph or provision of
this Agreement should be invalid, then all the remaining parts,
paragraphs and provisions shall continue to be fully effective.
I have read and accept the foregoing
Exhibit "B" to the License Agreement.
Licensee
Date:
LICENSE
THIS LICENSE, made and entered into as of this
day of , 19 , by and between SAN DIEGO GAS &
ELECTRIC COMPANY, a California corporation, hereinafter called
"LICENSOR," and , hereinafter called
"LICENSEE."
In exchange for the payment of consideration by Licensee, and
performance of the conditions and covenants herein contained,
Licensor hereby extends a license to Licensee to use Licensor's
real property as follows:
1. Licensed Premises: The real property which is the
subject of this License (hereinafter called "Licensed Premises"),
is located at County of San Diego, State of California, as further -
set forth on Exhibit "A", attached hereto and incorporated herein
by reference.
2. Standard License Provisions: In addition to the terms
set forth in this License, Licensee agrees to comply with, and be
bound by, the Standard License Provisions set forth in
Exhibit "B", attached hereto and incorporated herein by reference.
3. Term of License: This License shall be for a term of
__ year(s) commencing on , and terminating at
midnight on unless sooner revoked or terminated
as herein provided.
4. Consideration for License: Licensee shall pay to
Licensor as the first year's consideration, without deduction,
set-off, prior notice, or demand the sum of $ This sum
shall be referred to as the "base annual consideration." This
base annual consideration shall be subject to adjustment in
determining the annual consideration for this License for the
years following the first year of this License, if any, as set
forth in Paragraph 6 below.
The base annual consideration, and all consideration
for each subsequent years, shall be payable in advance in
installments due and owing on the day of each
commencing on Each installment payment shall
be in an amount determined by dividing the annual consideration
by the number of installment payments in one year.
Should this License be revoked by Licensor or terminated
at any time other than an installment payment date, Licensee shall
be reimbursed that portion of the installment consideration paid
pro-rata to the portion of the installment period for which this
License is not in effect.
5. Extension: Licensor grants to Licensee an option to
extend this License for ( ) year(s) after the
expiration of the original term hereof. Licensee may exercise
this option by giving written notice to Licensor at least ninety
(90) days prior to the expiration of this License. If this option
is exercised, all terms and conditions of this License shall
remain the same with the exception of base annual consideration.
The base annual consideration will be renegotiated to the mutual
satisfaction of each party prior to termination of the original
term.
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6. Payment Review: On each annual anniversary date of the
commencement of this License during the term of this License the
base annual consideration then due and owing shall be increased
based on the formula set forth in Paragraph 1 of Exhibit B.
7. Use of Premises: This License is non-exclusive,
personal to the Licensee, cannot be assigned and is valid for the
following uses only:
8. Surfacing: As additional consideration for this
License, Licensee agrees at its own expense: (a) to pave the
surface of the area to be used for the parking of vehicles, if
required by Licensor, to Licensor's specifications; (b) to
maintain the paving in good condition, reasonable wear and tear
excepted, during the term of this License, including any renewals;
(c) to paint, stripe, or provide barricades so as to promote
safety and the orderly flow and parking of vehicles in said lot;
(d) to construct and maintain fences as required by Licensor to
Licensor's specifications; and (e) to submit in writing for
Licensor's approval prior to construction a general plan showing
proposed parking, widths, obstructions and improvements.
9. Revocability: Licensor or Licensee may revoke and
thereby terminate this License for any reason, at any time,
without cause, by giving either party sixty (60) days written
notice.
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10. Notices: Pursuant to Paragraph 2 of Exhibit B, notices
to be given to Licensee shall be addressed as follows:
11. Taxes: As additional consideration for this License,
Licensee shall reimburse to Licensor within ten (10) days after
receiving written demand therefore, a sum of money equivalent to
the taxes levied or assessed against the Licensed Premises while
occupied by Licensee pro-rated to the extent this License was not
in effect for a portion of the applicable tax year. Licensee
shall also reimburse Licensor for taxes levied against
improvements and personal property placed or constructed on the
Licensed Premises by Licensee. Licensee shall not be responsible
for taxes levied against improvements and personal property placed
or constructed on the Licensed premises by Licensor.
IN WITNESS WHEREOF, the parties have executed this License as
of the above date first written.
LICENSOR: LICENSEE:
SAN DIEGO GAS & ELECTRIC COMPANY,
a california corporation
By: By:
E.M. Gabrielson, Manager
Land & Environmental
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