HomeMy WebLinkAboutAgenda Report - October 17, 2007 E-08AGENDA ITEM ;016101W
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDATITLE: Adopt resolution authorizing the City Manager to execute a Pole License
Agreement with Pacific Gas 8 Electric Company for gas meter
communication (EUD)
MEETING DATE: October 17,2007
PREPARED B Y Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution authorizing the City Managerto execute a Pole
License Agreement between the City of Lodi (Lodi) and Pacific Gas
& Electric Company (PG&E) allowing PG&E to install gas meter
communication equipment on designated Electric Utility Department
streetlight and utility poles.
BACKGROUND INFORMATION: PG&E is seeking to install SrnartMeterTll communication equipment
on designated Electric Utility Department owned poles (initially
seven locations). The devices are data collector units (DCUs) that
will be used to remotely read customer gas meters here in Lodi and transmit the data to the PG&E
central office for customer billing. The equipment will also allow PG&E to detect outages and leaks
remotely and allow customers to view gas usage via the I ntemet.
PG&E will install 24 DCUs throughout tie community, however, only seven of those DCUswill be
installed/attached to City -owned poles. The seven locationsthat were identified by PG&E were
reviewed/approved by EUD. Foreach PG&E gas meter in Lodi, three different DCUs will "read" the
meter, to provide an overlap of reading capabilities. The DCUs are powered by a rechargeable battery,
using 11 kWh of electricity per month for recharging.
The primary term of the agreement is five years, continuing thereafter year-to-year until terminated by
either party with notice. PG&E will pay Lodi a fee cf $298.82 per pole ($2,090.34 total for seven poles) in
advance for pole usage and electricity for the initial 5 -year period. The agreement has price escalators for
any subsequent period. The fee consists of a Pole Attachment Fee of $195.00 per pole (established by
negotiations) and an Electricity Charge of $103.62 per pole based on the applicable rate schedule.
FISCAL IMPACT: PG&E will pay Lodi a one-time lump sum amount of $2,094.34 for the first fwe-year
period under the agreement. This amount paysfirecharge
ht to place the commun' evioes on
seven poles throughout Lodi and the c--stof eie the eommuniCabo devices.
FUNDING: Not applicable
,
George�F. Morirow, Electric Utility Director
Prepared By: Ken Weisel, Manager, Electric woes and Rob Lechner, Manager, Customer Service & Programs
GFMrKnwIRsILnst
Attachment
APPROVED:
�Hf King, City Manager
AGREEMENT NO.
POLE LICENSE AGEEMENT
THIS POLE LICENSE AGREEMENT ("Agreement") is made and entered into on
, 2007, by and between the CITY OF LODI, a municipal corporation, ("CITY"
herein) and PACIFIC GAS AND ELECTRIC COMPANY, a California corporation
("PG&E" herein) each being referred to individually as a "Party" and collectively as the
"Parties."
RECITALS
WHEREAS, CITY owns, operates and maintains certain street light and utility
poles ("Poles" herein); and
WHEREAS, PG&E desires to enter into an Agreement for the attachment of
communication equipment used for the operation and maintenance of PG&E's
SmartMeter network, to CITY's existing Poles; and
WHEREAS, PG&E's SmartMeter equipment consists of telecommunications
equipment including, but not limited to, a Data Collector Unit, two whip antennas,
coaxial cable and photovoltaic adaptor ("SmartMeter Equipment"); and
WHEREAS, it is understood and agreed that this Agreement will permit the
placement of the SmartMeter communication equipment on certain of CITY's Poles; and
WHEREAS, CITY is willing to grant PG&E a non-exclusive, revocable license for
the attachment of the SmartMeter Equipment to CITY -owned Poles, subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, incorporating th foregoing recitals herein, the Parties
agree as follows:
1. EFFECTIVE TERM OF AGRE MENT. This Agreement shall be and
remain in effect for an initial period of five (5) years from the effective date, which is the
date of execution, and shall automatically exte d thereafter for successive terms of one
(1) year each, unless otherwise terminated b1 either party in accordance with Section
25, below.
2. POLE LICENSE. CITY does ereby confer on PG&E a non-exclusive,
revocable license to attach, replace, operate, aintain, and use SmartMeter Equipment
to certain support arms and Pole(s) owned b CITY, subject to CITY approval of the
specific location(s) to be used. Permission attach to CITY -owned Poles shall be
memorialized in the form of the Pole Permit, a ached to this Agreement as Exhibit "A,"
and incorporated herein by reference. The initial locations for which a Pole Permit is
requested are included in Exhibit "A", and are those specific locations that the Parties
Page 1 of
City of Lodi Pole Agreement
10/17/07
hereby agree are covered by this Agreement as of the date the Pole Permit is executed.
The location specified in the request for a Permit shall include the specific Pole(s) and
the specific location(s) on each Pole for which PG&E seeks permission to attach. For
utility poles, the location will be in or below the Communications Zone of the Pole. The
equipment will be so located that photocells will not be shaded.
3. LICENSE FEES. In consideration for the rights granted herein, PG&E
shall pay to CITY at one time for the initial five (5) year period, prior to installation, as
follows for each Pole:
Pole Attachment Fee $195.00 per Pole
Electricity Charge $103.62 oer Pole
Total License Fees $298.62 per Pole for the initial 5 -year period, not an annual
figure, paid in advance.
For each subsequent one (1) year term, the Pole Attachment Fee per Pole shall be 20%
of the above Pole Attachment Fee per Pole, adjusted by a 4% per year escalator from
the date of execution to the starting date of said term, and shall be paid in advance of
the year for which such payment is made.
In addition, for each subsequent one (1) year term, the Electricity Charge per Pole shall
be 20% of the above Electricity Charge per Pole adjusted by the ratio of CITY's annual
average retail energy charge for the applicable service class on the starting date of said
term to 15.7 cents per kWh, and shall be paid in advance of the year for which payment
is made. Furthermore, for both the initial five-year term and for any subsequent term,
the Electricity Charge per Pole shall be adjusted in proportion to the ratio of actual
equipment energy usage per Pole to 11 kWh/month. Actual equipment energy usage
per Pole shall be as specified by the manufacturer in documentation provided by PG&E
to CITY or as otherwise determined by CITY.
4. REPLACEMENTS AND MODIFICATIONS. In the event that any
installation requested by PG&E cannot be accommodated without Pole replacement or
other equipment modification by the City of Lodi, PG&E shall be responsible to pay in
advance the City of Lodes reasonable cost to replace or modify such equipment, in
addition to the License Fees provided for herein.
5. ADDITIONAL LOCATIONS. Prior to installing any SmartMeter
Equipment on any additional CITY -owned Poles, other than the locations identified in
Exhibit "A", PG&E will submit to CITY a revised Exhibit "A" seeking permission to install
such additional SmartMeter Equipment on specified CITY -owned Poles. PG&E will
pay additional License Fees (Pole Attachment Fee plus Electricity Charge) for each new
approved Pole as set forth in Section 3 of this Agreement.
CITY will use reasonable efforts to respond, in writing, to each request submitted by
PG&E within twenty (20) business days; provided that CITY is not required to approve,
in whole or part, any such request, and CITY may delay or deny any such request at its
sole option, without recourse by PG&E. PG&E shall pay CITY its reasonable cost to
Page 2 of 8
City of Lodi Pole Agreement
10/17/07
determine the acceptability of meeting such request. CITY will not deny such a request
unreasonably.
5.1 Each location approved by the CITY shall be memorialized in a
Pole Permit in the form of Exhibit "A" to this Agreement, and shall be incorporated by
reference herein at the time it is executed and delivered.
5.2 PG&E may, from time to time, request to replace, modify, update
and/or reposition existing SmartMeter Equipment. PG&E shall pay CITY its reasonable
cost to determine its physical acceptability with regard to factors including but not limited
to Pole capability, interference with photocells, and interference with communications.
6. SAFETY PRECAUTIONS. PG&E shall perform all work on CITY -owned
Poles in a workmanlike manner and in compliance with applicable federal, state, and
local laws, rules and regulations, including, but not limited, to CITY's applicable
standards.
7. RADIO FREQUENCY EMISSION REQUIREMENTS. PG&E will operate
the SmartMeter Equipment in a manner that complies with the FCC's (or any more
restrictive applicable standard subsequently adopted or promulgated by a governmental
agency with jurisdiction) Maximum Permissible Exposure (MPE) limits for electric and
magnetic field strength and power density for transmitters in an inhabited area.
8. INTERFERENCE. If equipment installed by the CITY or PG&E, after the
installation of equipment of the other party or a third party, causes electronic or physical
interference with such previously installed equipment, the City and PG&E will take such
steps as may be reasonable to eliminate such interference as soon as practicable.
S. REPAIRIMAINTENANCE OF CITY -OWNED POLES. For those Poles
owned, operated, and maintained by CITY, CITY agrees that it will maintain such Poles
in good working order during the effective term of the Agreement. If PG&E notifies
CITY that SmartMeter Equipment is non -operational due to required maintenance on
Poles, CITY will use its best commercially reasonable efforts to ensure that any
necessary repairs are performed within ten (10) business days of PG&E's initial
notification at no cost to PG&E other than the cost of removal and reinstallation of
PG&E's equipment, if necessary or convenient for Pole repair or replacement, in the
sole determination of CITY. If PG&E requests repair of Pole(s) within 72 hours of
PG&E's initial notification, CITY will use its best commercially reasonable efforts to
ensure that any necessary repairs are performed within the 72 hours at PG&E's sole
cost. If CITY initiates repair or replacement of any Pole or Poles for its own purposes,
CITY shall do so at CITY's cost, provided that PG&E shall be responsible at its own cost
for removal and reinstallation of PG&E's equipment, if necessary or convenient for Pole
repair or replacement, in the sole determination of CITY.
10. REMOVAL OF SMARTMETER EQUIPMENT. CITY will use its best
commercially reasonable efforts to provide PG&E five (5) business days prior written
notice of any non -emergency work that will, or may, affect the SmartMeter Equipment.
Written notice may include e-mail or fax.
Page 3 of 8
City of Lodi Pole Agreement
10/17/07
10.1 In the event that CITY is required by law or unavoidable
circumstance to remove any SmartMeter Equipment attached to CITY -owned Poles on
an emergency basis, CITY will use its best commercially reasonable efforts to notify
PG&E of such circumstance as soon as practicable and will take all due care in
removing and storing the SmartMeter Equipment.
10.2 PG&E will provide CITY written notice within ten (10) business days
of removing or reinstalling any SmartMeter Equipment from any CITY -owned Poles
specifying the SmartMeter Equipment removed or reinstalled and its location on CITY -
owned Poles.
10.3 PG&E will, at its expense, remove all remaining SmartMeter
Equipment from CITY -owned Poles within ninety (90) business days of the termination
or expiration of this Agreement.
10.4 In the event that PG&E fails to remove any SmartMeter Equipment
from the CITY -owned Poles within ninety (90) business days of the termination or
expiration of this Agreement, CITY may, at PG&E's expense, remove such SmartMeter
Equipment and CITY may either store such SmartMeter Equipment at PG&E's expense
or CITY may consider PG&E's equipment abandoned and retain it for any use or, at
PG&E's expense, dispose of it.
11. CITY USAGE. Subject to receiving such regulatory approvals as are
required, in the event that City shall install SmartMeters or compatible equipment for its
own system or systems and desires to use for its own purposes PG&E's
communications equipment installed within or adjacent to the CITY boundaries, then
PG&E shall cooperate with the CITY to determine the feasibility of providing such
communication service to CITY.
12. INDEMNITY. PG&E shall indemnify, defend, and hold harmless CITY, its
Elected and Appointed Boards, Commissions, officers, agents, employees, and
volunteers against any and all liability, claims, actions, causes of action or demands
whatsoever against them, or any of them, before administrative or judicial tribunals of
any kind whatsoever, arising out of, connected with, or caused by PG&E, PG&E's
employees, agents, independent contractors, companies, or subcontractors in the
performance of, or in any way arising from, the terms and provisions of this Agreement
whether or not caused in part by a party indemnified hereunder, except for any such
claims, damage or liabilities caused by CITY's active gross negligence or willful
misconduct.
13. ASSIGNMENT. Neither this Agreement, nor any interest in it, may be
assigned or transferred by any party without the prior written consent of the parties,
which shall not be unreasonably withheld.
14. BINDING EFFECT. The rights and obligations of this Agreement shall
inure to the benefit of, and be binding upon, the parties to the Agreement and their
administrators, representatives, successors and assigns.
Page 4 of 8
City of Lodi Pole Agreement
10/17/07
16. COMPLIANCE WITH ALL LAWS. PG&E shall, at PG&E's sole cost,
comply with all of the requirements of Municipal, State, and Federal authorities now in
force, or which may hereafter be in force, pertaining to this Agreement, and shall
faithfully observe in all activities relating to or growing out of this Agreement all
Municipal ordinances and State and Federal statutes, rules or regulations, and
permitting requirements now in force or which may hereafter be in force. Provided
however, that PG&E shall not be required to apply for a CITY encroachment permit for
the SmartMeter Equipment authorized under this Agreement.
16. CORPORATE AUTHORITY. Each individual signing this Agreement on
behalf of entities represent and warrant that they are, respectively, duly authorized to
sign on behalf of the entities and to bind the entities fully to each and all of the
obligations set forth in this Agreement.
17. EXHIBIT. In the event of a conflict between the terms, conditions or
specifications set forth in this Agreement and the exhibit attached hereto, the terms,
conditions, or specifications set forth in this Agreement shall prevail. The exhibit to
which reference is made in this Agreement is deemed incorporated in this Agreement,
whether or not actually attached.
18. GOVERNING LAW. The laws of the State of California will govern the
validity of this Agreement, its interpretation and performance.
19. FURTHER ASSURANCES. Each party shall execute and deliver such
papers, documents, and instruments, and perform such acts as are necessary or
appropriate, to implement the terms of this Agreement and the intent of the parties to
this Agreement.
20. INSURANCE. PG&E shall maintain coverage at least as broad as the
following insurance or self-insurance throughout the term of this Agreement.
20.1 Workers' Compensation and Employers' Liability: (1) Workers'
Compensation insurance complying with any applicable labor codes, acts, laws or
statutes, state or federal, where Contractor performs work. (2) Employers' Liability
insurance shall not be less than $1,000,000 for injury or death per occurrence
(BI/disease).
20.2 Comprehensive or Commercial General Liability coverage,
Insurance Services Office (no less than Occurrence form CG 0001): (1) Coverage
shall be for limits not less than $1,000,000 each occurrence and $2,000,000 general
aggregate for bodily injury, personal injury and property damage, including Contractual
Liability and Fire Legal Liability ($100,000). If Commercial General Liability Insurance
or other form with a general aggregate limit is used, the general aggregate limit shall
apply separately to this projecttlocation.
Page 5 of 8
City of Lodi Pole Agreement
10/17/07
20.3 Commercial (Business) Automobile Liability: Coverage shall
be at least as broad as the Insurance Services Office (ISO) Business Auto Coverage
form covering Automobile liability, code 1 "any auto." The limit shall not be less than
$3,000,000 each accident for bodily injury and property damage.
PG&E maintains a self-insurance program to cover exposures to General Liability and
Automobile Liability. PG&E agrees to provide indemnification and defense to the City
of Lodi, its elected officials, appointed boards and commissioners, officers, employees,
volunteers, and agents as a result of any loss covered by this Agreement. PG&E also
agrees that its self-insurance program will cover all losses and will not call upon any
insured or self insured programs maintained by the City of Lodi until the limits of liability
as required by Agreement are exhausted. The PG&E program will be primary
coverage for any and all losses that arise resulting from this Agreement. Certification of
Insurance Program letter shall be sent to:
City of Lodi
ATTN: Risk Management
221 W. Pine St.
Lodi, CA 95240
20.4 Certification of Insurance: By request, PG&E shall submit a letter
of self-insurance signed by a duly authorized representative, evidencing that the self-
insurance program is in full force and effect and in compliance with and subject to all the
terms, agreements, covenants, conditions and provisions of this Agreement
21. MERGER AND MODIFICATION. All prior agreements related to this
matter between the parties are incorporated in this Agreement which constitutes the
entire agreement. Its terms are intended by the parties as a final expression of their
agreement with respect to such terms as are included herein and may not be
contradicted by evidence of any prior agreement or contemporaneous oral agreement.
The parties further intend this Agreement constitutes the complete and exclusive
statement of its terms and no extrinsic evidence whatsoever may be introduced in any
judicial or arbitration proceeding involving this Agreement. This Agreement may be
modified only in a writing signed by all the parties.
22. NEGATION OF PARTNERSHIP. Neither party shall become or be
deemed a partner or joint venturer with the other party or associate in any such
relationship with the other party by reason of the provisions of this Agreement. Neither
party shall for any purpose be considered an agent, officer or employee of the other
party.
23. NO WAIVER OF DEFAULT. The failure of any party to enforce against
another party any provision of this Agreement shall not constitute a waiver of that party's
right to enforce such a provision at a later time, and shall not serve to vary the terms of
this Agreement. The acceptance of work or services, or payment for work or services,
by CITY shall not constitute a waiver of any provisions of this Agreement.
Page 6 of 8
City of Lodi Pole Agreement
10/17/07
24. NOTICES. All notices relative to this Agreement shall be given in writing
and shall be personally served or sent by certified or registered mail and be effective
upon actual personal service or depositing in the United States mail. The parties shall
be addressed as follows, or at any other address designated by notice:
CITY: CITY OF LODI
Attn: Electric Utility Director
1331 S. Ham Lane
Lodi, CA 95242
PG&E: PACIFIC GAS & ELECTRIC COMPANY
Attn: Land Department— Land Manager
245 Market Street, Mail Code N1 OA
San Francisco, CA 94105
25. TERMINATION. The parties hereto agree that either party may terminate
this Agreement, as it relates to any individual location of the SmartMeter Equipment,
upon one hundred eighty (180) days advance written notice to the other party. In the
event that CITY terminates this Agreement as it relates to any individual location of the
SmartMeter Equipment, CITY agrees to allow PG&E to find an alternate location for
such SmartMeter equipment subject to approval per Section 5 of this Agreement. Either
party may terminate this Agreement in its entirety, at any time during the term hereof by
giving written notice to the other party, not less than twelve (12) months prior to the date
when such termination shall become effective. Any termination of this Agreement shall
not relieve PG&E of any obligations, whether of indemnity or otherwise, which has
accrued prior to such termination or completion of removal of PG&E's equipment,
whichever is later, or which arises out of an occurrence happening prior thereto.
25.1 Except as specifically set forth herein, CITY and PG&E agree that
neither Party shall terminate this Agreement in the event of an alleged non -monetary
breach nor default hereunder before the defaulting Party has been given notice of and a
reasonable time and opportunity to respond to and cure any such non -monetary breach
or default. For purposes of the foregoing, a reasonable time to cure any non -monetary
breach or default shall be deemed to be thirty (30) days after notice, unless the nature
of the default in question is such that while it is reasonably susceptible of being cured, it
is not reasonably susceptible of being cured within such thirty (30) day period, in which
case the curing thereof shall have commenced within such thirty (30) day period and
shall hereafter be prosecuted to completion with reasonable diligence.
25.2 There shall be no refund for equipment removals of License Fees
previously paid by PG&E.
Page 7 of 8
City of Lodi Pole Agreement
10/17/07
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, the day and year first -above written.
PG&E
PACIFIC GAS AND ELECTRIC
C NY
hard A. Gigliotld
Manager, Land Energy Delivery
Technical & Land Services
Attachment: Exhibit "A" — Pole Permit
CITY
CITY OF LODI
Blair King, City Manager
APPROVED AS TO FORM:
D. Stephen Schwabauer, City Attorney
ATTEST:
Randi Johl, City Clerk
SmartMete,- is a trademark of Simusynch, Inc. and is used by permission. "PG & E" refers to Pacific Gas and
Electric Company, a subsidiary of PG & E Corporation. 02007 Pacific Gas and Electric Company. All rights
reserved.
Page 8 of 8
City of Lodi Pole Agreement
10/17/07
�Y•1���L•1i•li•L•��I���Z!
A RESOLUTION OF THE LODI CITY COUNCIL
AUTHORIZING THE CITY MANAGER TO EXECUTE A
POLE LICENSE AGREEMENT BETWEEN PACIFIC
GAS & ELECTRIC COMPANY AND THE CITY OF
LODI FOR GAS METER COMMUNICATION
WHEREAS, Pacific Gas & Electric Company (PG&E) desires to install gas meter
data communications equipment on streetlight and utility poles owned by the Lodi
Electric Utility: and
WHEREAS, PG&E and Lodi Electric Utility have reached agreement on terms
and conditions for such installation.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby
approves the Pole License Agreement; and
BE IT FURTHER RESOLVED that the Lodi City Council authorizes the City
Manager to execute the Agreement on behalf of the City of Lodi and authorizes the
Electric Utility Director or his designee to administer the Agreement.
Dated: October 17, 2007
I hereby certify that Resolution No. 2007-204 was passed and adopted by the
Lodi City Council of the City of Lodi in a regular meeting held October 17, 2007, by the
following vote:
AYES: COUNCIL MEMBERS— Hansen, Hitchcock, Katzakian, Mounce,
and MayorJohnson
NOES: COUNCIL MEMBERS—None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
City Clerk
2007-204