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HomeMy WebLinkAboutContracts & Agreements_142-2001_CCv0001.pdf Ai, ';F POLE USE AGREEMENTlj ; BETWEEN SOUTHERN CALIFORNIA EDISON AND THE CITY OF REDLANDS This Pale Use Agreement ("Agreement") is made as of this 4th day of September 2001, ("Effective Date") by and between Southern California Edison Company ("SCE"), a California corporation, and the City of Redlands, a municipal corporation ("Licensee"), who are individually sometimes referred to herein as a "Parry", and collectively as the "Parties." RECITALS SCE herein provides Licensee with a license to install cables, wires,or ancillary equipment on specified poles owned solely or jointly by SCE. In consideration of the mutual promises contained herein, and for such other good and valuable consideration,the receipt of which is hereby acknowledged,Southern California Edison and the City of Redlands agree as follows: I. Grant of License. SCE hereby grants Licensee a nonexclusive license permitting the attachment of Licensee's cables, wires and ancillary equipment, as specifically authorized by SCE (collectively, an "Attachment") to the SCE space ("SCE Pole Space") on each of the pole or poles specifically identified in Exhibit"A,"which is attached hereto and incorporated herein by this reference,subject to the terms and conditions set forth herein. Ancillary equipment, such as meters or power supply units,shall not be placed on the pole unless approved in writing by SCE.If Licensee requires electric service to operate any ancillary equipment located on or near such a pole,then Licensee shall comply with SCE's procedures for requesting such service. If electric service is requested,it will be supplied pursuant to the terms and conditions of SCE's applicable electric service tariffs. 2. Non-Interference With Utility Services or Attachments a. SCE reserves to itself the right to maintain SCE Pole Space and to operate its facilities in such a manner as will enable it to provide utility services and perform related utility operations. b. Licensee's Attachments must not in any way adversely affect or interfere with SCE's utility services or operations,or with the services or operations of utilities or other third parties using the pole.If SCE determines that any such Attachment is adversely affecting or interfering with SCE's utility services,or is notified by a third party that the Attachment is adversely affecting or interfering with other services or operations,upon written notice by SCE,Licensee must immediately cease said interference,repair the condition or remove the Attachment. 1Adjm\AgreementslPo1e Use Agreement.wpd 1 C. Licensee acknowledges that its license may be terminated by SCE in accordance with the terms of this Agreement for reasons related to SCE's operation of its electric utility system, including removal or abandonment of the pole. Licensee specifically acknowledges that nothing in this Agreement obligates SCE to maintain any pole for a period longer than the period SCE determines said pole is needed to meet the utility's electric service requirements. d. If an incident occurs whereby SCE's utility services and Licensee's service on a pole are both adversely affected, and restoration of both Parties' services cannot be accomplished at the same time, then restoration of SCE's utility services shall take priority over Licensee's restoration of its service. SCE shall permit Licensee to make repairs to restore its service, as long as such restoration efforts do not interfere with SCE's restoration activities. C. Licensee agrees that before installing a new Attachment or modifying an existing Attachment to a pole identified in Exhibit "A," Licensee shall notify SCE of the schedule for such work, at least 30 days prior to the start of any work, and obtain SCE's written approval pursuant to SCE's Request for Access procedures, the current form of-which is attached as Exhibit "B." Such procedures may be modified by SCE at any time without notice. The making of an Attachment without SCE's prior written approval shall constitute an"unauthorized attachment." SCE shall have the unilateral right to remove any unauthorized attachments at any time without liability. 3. Technical Specifications for Attachment by Licensee. Any Attachment authorized hereunder shall conform to and be installed or maintained in accordance with all applicable construction, safety and regulatory requirements, including General Order No. 95 of the California Public Utilities Commission ("CPUC") and the anchorage requirements included in Exhibit "B.". Further, all ancillary equipment placed on or near the pole shall be clearly and visibly marked in such a way as to identify it as Licensee's property. 4. Annual License Fee. Licensee shall pay an initial Annual License Fee of$ 5.00 per pole Attachment. The initial Annual License Fee is due upon execution of this Agreement or, as to subsequent Attachments, upon approval of such additional Attachments pursuant to Section 5. SCE may change the Annual License Fee once during each 12-month period of this Agreement by providing written notice thereof to Licensee not less than 60 days prior to the date the change is to be effective. Licensee shall pay all invoices within 30 days of receipt. 5. Addition Deletion or Termination of a Pole Attachment. a. If Licensee wishes to add an additional attachment(s) under this Agreement, then Licensee must make a written request for SCE's approval of the new attachment(s)pursuant to SCE's current Request for Access procedures (Exhibit "B"). If SCE approves the Licensee's request for a new pole Attachment, then Exhibit "A" of this Agreement will be deemed updated and the new I Ad-jm\Agreementsftle Use Agreement,),�pd 2 Attachment will be subject to the terms and conditions applicable to existing Attachments under this Agreement. b. Ifthe Licensee wishes to terminate an existing Attachment,then it will submit written notice to SCE using the applicable SCE forms (current copy of these forms are included in Exhibit "B"). If the notice is submitted at lease two months prior to the date of the invoice referenced in Section 4,then the Annual License Fee calculation for poles for the next invoice will not include the terminated Attachments.Termination of a pole Attachment,however,shall not release the Licensee from its obligations to pay the current installment of the Annual License Fee and any amounts otherwise due to SCE as of the termination date. C. In the event of a termination of an Attachment, unless otherwise directed by SCE, Licensee shall promptly remove any cable, wires or ancillary equipment associated with the terminated Attachment in accordance with the standards for performing work on a pole identified in Section I I(a)and at Licensee's sole risk and expense. If the Licensee does not promptly remove the terminated Attachment as described above, then SCE may remove the cable, wire or ancillary equipment associated with the terminated Attachment and invoice the Licensee for any costs incurred by SCE as a result, including any storage costs. In addition, SCE may suspend the Licensee's right to make new attachments pursuant to Section 5a and pursue remedies for a default under Section 15. 6. Installation' Maintenance and Repair. a. Licensee, at its sole risk and expense, shall be solely responsible for all work and materials required for the Attachment,including those required for the installation,maintenance and repair of ancillary equipment. If Licensee elects not to use its own personnel to perform the work, then Licensee shall select and supervise the licensed general contractor used by Licensee to perform the work and the Licensee shall remain responsible for the work. In addition,the Licensee shall be responsible for ensuring that said contractor fully complies with the obligations of Licensee under this Agreement. Licensee further agrees to require insurance from said independent contractor, as further described in Section 14 below. SCE shall have the right to require Licensee and its contractor to suspend immediately,upon oral notice,any work being performed or to be performed by Licensee or its contractor hereunder whenever such work is being performed or is to be performed in a manner contrary to this Agreement, or in any manner which is likely to cause injury to persons or damage to property. Licensee or its contractor shall not resume any such work until SCE has given its approval to do so. b. Licensee's Attachments shall at all times be maintained in a safe- condition and in good repair. Installation, maintenance and repair work by the Licensee, or as a result of work performed under Licensee's direction, shall be performed in conformity with the requirements and specifications prescribed by all applicable laws and regulations,orders and decrees pertaining to pole construction, including those of the CPUC and SCE. C. Licensee shall notify SCE when installation is complete. SCE shall reserve the right to inspect Licensee's Attachment and any installation of equipment upon a pole which is made under 1:\djm'Agreements\Po1e Use Agreementwpd 3 this Agreement.If SCE elects to exercise this right,then Licensee shall pay the actual costs incurred by SCE to perform this inspection within 30 days of receiving an invoice from SCE and SCE shall provide Licensee with the results of its inspection, including identification of any deficiencies identified by SCE as part of this inspection. SCE further reserves the right, at such other times as SCE in its judgment deems appropriate, to conduct additional inspections of the Attachment, including any related equipment,at no additional cost to Licensee.Any inspection under this section, whether made or not,shall not relieve Licensee of any responsibility,obligation,or liability assumed under this Agreement to install, maintain and operate an Attachment in a safe manner, and in compliance with all applicable ordinances, codes, statutes, regulations laws, and rules. Licensee further agrees not to hold SCE liable for any loss or damages resulting directly or indirectly from any inspection by SCE or SCE's failure to inspect,and to indemnify SCE from any third party claim that SCE's inspection or failure to inspect resulted, directly or indirectly in any loss or damage. d. If Licensee fails to install any Attachment within a four month period, then the approval granted by SCE for such Attachment shall be automatically revoked, the access rights granted herein shall revert back to SCE, and the Attachment shall be deemed terminated by default of the Licensee. Licensee shall not be entitled to a refund of any of the Annual License Fee. 7. Changes to an Attachment or to a Pole. a. Changes to an Attachment by SCE.In the event that SCE must rearrange any existing attachments to accommodate a new or modified Attachment by Licensee,then Licensee agrees to pay SCE's costs for said rearrangement promptly upon demand.Licensee understands that SCE may, from time to time,have to rearrange Licensee's Attachments to permit additional attachments to the pole.SCE may provide written notice to Licensee before Licensee's Attachment is rearranged.When the rearrangement is being made to accommodate new or modified attachments for the provision of SCE's electric or telephone utility service,Licensee will,upon demand,promptly pay its share of the rearrangement costs. b. Expansion or Replacement of a Pole. In the event that SCE, or a joint owner with SCE of a jointly-owned pole, must expand or replace an existing pole to accommodate a new or modified Attachment by Licensee, then Licensee agrees to pay the costs associated with the replacement or expansion of the existing pole. If SCE notifies Licensee that an expansion or replacement of a pole is otherwise needed to permit additional attachments to the pole, then SCE shall provide written notice to Licensee of the proposed replacement or expansion. Licensee will fully cooperate with SCE in making the needed changes, including promptly notifying SCE about whether the Licensee desires to maintain its Attachment. If Licensee elects to maintain its Attachment,said election to be presumed unless SCE is notified to the contrary by the Licensee,then Licensee will upon demand promptly pay its share of the costs of the pole expansion or replacement, including the costs associated with the change-out. C. Reclamation of Pole Space. SCE may reclaim any space occupied by the Licensee upon written notification to Licensee. In the case where SCE has need of existing space which is occupied by the equipment of Licensee, SCE may give Licensee the option to pkv for the cost of the 1Adjm\AgreementsTo1e Use Agreementwpd 4 rearrangement or expansion necessary to maintain its Attachment. d. Underground Conversions. If for any reason SCE, a Licensee or a joint owner of a Y— pole are required to convert its overhead attachments to underground facilities,then SCE shall have the right to terminate Licensee's right to use the affected pole without liability to SCE,by providing written notice thereof to Licensee. 8. Non-Exclusive and Non-Precedential Nature of Rights. Nothing in this Agreement shall preclude SCE from granting any third party permission to use available space on a pole. 9. Joint Use of Pole After Attachment by Licensee. a. Nothing in this Agreement shall be construed as affecting any rights or privileges conferred by SCE,by contract or otherwise,to others not Parties to this Agreement to use any poles covered by this Agreement; and SCE shall have the right to confer, continue or extend such rights or privileges. The privileges herein granted to Licensee shall at all times be subject to any such contracts and arrangements. b. Neither SCE, nor ajoint owner with SCE of ajointly-owned pole, shall be liable to Licensee for any interruptions to Licensee's service or for any interference with the Licensee's Attachment,or with the operation of Licensee's equipment arising in any manner from use by SCE, or other owners, of the pole or from use of any equipment located on or near the poles. 10. Property Rights. a. Licensee warrants that it has all necessary licenses,permits,authorizations,and rights necessary for it to perform this Agreement. b. Licensee shall obtain all the necessary access and/or use rights from the public or private owner(s)of the property on which the poles are located or over which any equipment will be suspended before attaching or installing any equipment. Licensee shall be solely responsible for obtaining, and maintaining in full force and effect, any necessary franchises, easements, licenses, permits, certificates or grants from state, county, regulatory or local authorities and private owners of real property to make an Attachment, as well as to install, operate and maintain any related equipment, within private or public rights-of-way. C. Licensee's interest under this Agreement shall be and remain a revocable license. Nothing in this Agreement shall be construed to confer any permit, license, or grant to use the property of any persons other than SCE. This license to Licensee is expressly subject to the requirement,as ftu-ther described above,that the Licensee obtain any necessary third party rights to access and/or use the non-SCE owned property before making any Attachments hereunder. 1:\djm\Agreemen&,Po1e Use Agreement.wpd 5 d. Nothing herein shall be deemed to grant to Licensee: (i) any rights or property interests in any of SCE's property, including to any poles,or(ii)any license,easement,assignment, lease,sublease,transfer or conveyance or other property or other legal right to exercise any of SCE's rights to erect or maintain any poles, electrical lines or other equipment or facilities, in, over, through, under, across, along or upon any property of another. Further, no such rights are given, created or transferred to Licensee pursuant to this Agreement, including without limit any aerial rights,despite the installation and maintenance of any type or form of improvements or equipment, no matter how long maintained.Licensee specifically agrees that it shall never claim any such rights based on this Agreement. e. Upon notice from SCE to Licensee that the use by Licensee of any pole is,or may be, forbidden by federal, state or municipal authorities, or private owners of real property, or that such use would constitute a trespass because of the expiration,termination,cancellation or revocation of any of Licensee's property rights,any permission to attach to such pole or poles which was provided under this Agreement shall immediately terminate and Licensee shall forthwith terminate its Attachment and remove any cables, wires or equipment from the pole unless the governmental authority or private owner consents to Licensee's continued occupancy while Licensee pursues administrative or judicial review or the owner is enjoined from demanding removal of the Attachment and equipment. 11. Duty of Care and Responsibilities for Damages. a. Licensee shall,at all times and at its sole expense,keep and maintain the Attachment and any related equipment in conformity with the requirements of this Agreement. Licensee shall install, operate and maintain the Attachment in compliance with SCE's standards for performance of such work,as updated from time to time,and in conformity with all applicable ordinances,codes, statutes,regulations and laws,including,but not limited to,the specifications in the CPUC's General Orders 95 and 128,as updated from time to time, and any other regulations subsequently issued by the CPUC applicable to Attachments,the National Electrical Safety Code and CAL/OSHA Title 8. Where the requirements of a General Order and a CAL/OSHA requirement are consistent or additive, then they both shall apply; in the event of any conflict between a General Order and a CAL/OSHA requirement,then the General Order shall govern. Licensee's rights hereunder also shall be subject to the provisions of applicable ordinances,codes, statutes,regulations and laws, including General Order 69-C, dated and effective July 10, 1985, as updated or modified from time to time. b. Licensee shall exercise special precautions to avoid causing damages to SCE property or the property of any third party. Licensee shall be fully responsible for any and all loss from any failure to exercise such care,including damages due to any loss of use or liability for consequential damages. Licensee shall make an immediate report of the occurrence of any such damage to the owner of the damaged properties and to SCE. C. Licensee covenants and agrees that SCE shall not be liable for any damage or injury of any kind or nature to Licensee's property,equipment,employees,agents,servants,or independent contractors or any other third party invitees of Licensee, except where SCE is determined to have 1Adjm\Agreements\PoIe Use Agreementwpd 6 caused this damage by its sole negligence or willful misconduct. 12. Liability and Indemnification. a. Licensee agrees to indemnify and hold harmless SCE, and its parent and affiliates, their agents, consultants, employees, officers, directors and shareholders from and against any and all fines,penalties,losses,costs,damages,judgments,expenses or liabilities(hereinafter individually and collectively called "Liabilities") including,but not limited to, Liabilities claimed to result from the injury to or death of any person, or damage to or loss or destruction of any property arising out of the Licensee's negligent performance or nonperformance of its obligations under this Agreement. Liabilities covered under this Section 12 shall include, any liability that SCE may suffer or incur arising out of any actual or alleged invasion or interference with the property rights of any third parties.Notwithstanding the foregoing,Licensee shall indemnify SCE for Liabilities which take the form of indirect, special, or consequential damages (including, without limit, loss of business, prospective business, revenues or profits); except where such Liabilities arise out of the willful misconduct of SCE. Licensee shall, as soon as practicable, notify SCE of any suit or other legal proceeding asserting a claim for Liabilities. b. If the Licensee fails to comply with any provision of Section 15 of this Agreement, including,without limit,any failure to:(1)obtain and maintain the required insurance;(2)name SCE as an additional insured and loss payee;or(3)require its insurance provider to pay a third party claim which is covered by the insurance required under Section 14, or if the claim for Liabilities relates to an Attachment for which the Licensee was required to obtain written authorization from SCE and did not do so, then Licensee shall indemnify, defend and hold harmless SCE, and its parent and affiliates, and the agents, consultants, employees, officers, directors and shareholders and its affiliates, and, at the option of SCE, defend it or them from and against any and all Liabilities resulting from such failure. C. In no event shall SCE be liable to Licensee,anyone claiming under Licensee,or any of Licensee's customers for any consequential,incidental or special damages or lost profits incurred or alleged to have been incurred by anyone. d. This Section 12 shall survive the termination, expiration or cancellation of this Agreement. 13, Performance Bond or Securitv Agreement. SCE may,at its option,whenever the credit rating of the Licensee falls below the rating level of CCC and as a condition to permitting an Attachment or the use of a pole hereunder, require Licensee to furnish a bond or security agreement in such sum and in such form, as SCE deems appropriate and/or any additional proof of credit worthiness. If proof of credit worthiness is requested by SCE,then Licensee shall provide such proof within 30 days.Moreover,ifrequired,this bond or security agreement shall remain in force for such time as Licensee has an Attachment. anv related equipment on SCE property, or any unsatisfied obligations under this Agreement. 1Adjm\Agreements\Po1e Use Agreement.wpd 7 14. Insurance. At all times during the term of this Agreement, Licensee shall maintain and shall require its subcontractors that do any work pursuant to this Agreement, to maintain insurance coverage, as described below: a. Worker's Compensation Insurance with statutory limits,in accordance with the laws of the State of California,and Employer's Liability Insurance with limits of not less than One Million Dollars ($1,000,000). Licensee shall require its insurer to waive all rights of subrogation against SCE, its officers, agents and employees. b. Comprehensive Bodily Injury and Property Damage Liability Insurance, including owner's and contractor's protective liability, product/completed operations liability, contractual liability and automobile liability, with a combined single limit of not less than$2,000,000 for each occurrence. Such insurance shall (a) name SCE, its officers, agents, and employees as additional insureds and loss payees, but only for Licensee's acts or omissions; (b)be primary for all purposes; and (c) contain standard cross-liability provisions. Written proof of compliance with the requirements of this section,consisting of Certificates of Insurance and a copy of the Additional Insured Endorsement to Licensee's insurance policy(s),in a form acceptable to SCE, will be provided to and approved by SCE prior to any Attachment hereunder,or the related installation of any equipment on a pole,and prior to the expiration of each policy year thereafter.Notwithstanding the previous sentence, SCE shall have the right at any time to notify the Licensee of any deficiency in insurance coverage which comes to its attention and Licensee shall be required to promptly provide acceptable proof of full compliance with these insurance requirements. The Certificates of Insurance shall provide that this insurance shall not be terminated, canceled or reduced except on thirty days' prior written notice to SCE. In the event of any termination, cancellation or reduction in the insurance coverage reflected by a Certificate of Insurance, Licensee shall promptly obtain replacement insurance, so as not to reduce or impair the coverage required to be maintained herein,and shall submit a new Certificate of Insurance reflecting the new insurance coverage to SCE. Failure to provide and maintain such insurance, without any lapse or reduction in coverage, shall constitute a default under this Agreement. 15. Remedies In the Event of Default. a. In addition to the other events of default specified herein,if Licensee should default in performance of any other obligations placed on Licensee under this Agreement,such failure may be declared by SCE to be an event of default hereunder and SCE may seek any remedy available to it at law or equity. If the event of a default involving any non-performance or inadequate performance of work required to be performed by the Licensee hereunder,except where such failure raises safety concerns in SCE's sole judgment, Licensee will have 30 days from the date of the default to cure the default to SCE's satisfaction. b. The occurrence of any of the following events shall constitute financial insolvency L\dimiAgreements\Polc Use Agreement.wpd 8 and shall serve as a default hereunder: (i) Licensee files for protection under the Bankruptcy Code of the United States or any similar provisions under the laws for the State of California. (ii) Licensee has a receiver,trustee,custodian or similar official appointed for all or substantially all of its business or assets; or (iii) Licensee makes an assignment for the benefit of its creditors. In the case of any financial insolvency event, as described above, SCE may also immediately suspend Licensee's right to maintain' existing Attachment, or make any new Attachments under Section 5a until Licensee demonstrates to SCE's satisfaction that the financial insolvency has been remedied. C. In addition to any other rights of SCE hereunder or at law or equity, if the Licensee fails to cure a default to SCE's satisfaction by the end of the cure period specified in Section 16,then SCE may elect to: (1)perform any unperformed or inadequately performed work at Licensee's sole risk and expense, and Licensee, on demand, will reimburse SCE for the entire expense thereby incurred or(2)terminate the Attachment in accordance with Section 5 or terminate this Agreement. d. In addition to the above remedies for an uncured default,SCE can suspend Licensee's ability to make new Attachments pursuant to Section 5a until Licensee establishes the event of default has been cured to SCE's satisfaction. 16. Payment of Bills. All amounts payable to SCE under the provisions of this Agreement shall,unless otherwise specified, be due and payable within thirty (30) days of the invoice date. Unless SCE otherwise specifies in writing,the amount shall be made payable to SCE and forwarded to the person to whom notices are sent under Section 21 of this Agreement. If payment is not made when due, then the unpaid amount shall accrue interest from the original payment date in the invoice at the maximum rate allowed by law. In addition, if payment is not received within three months of this date, then Licensee shall be in default and SCE may pursue the remedies set forth in Section 15. 17. Term and Termination. a. This Agreement shall continue in effect for a term of one year from the Effective Date hereof and said term will be automatically extended for another one year term period on the anniversary of the Effective Date, unless terminated by SCE for convenience or due to default by Licensee as set forth in Section 15, upon written notice to Licensee. SCE shall not be liable for anv costs, liabilities or damaged in the event of such termination. L\djmlAgreementsftic Use Agreement.wpd 9 b.Any termination of this Agreement in whole or in part shall not release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, which may have accrued or which may be accruing, or which arises out of any claim that may have accrued or may be accruing at the time of termination. 18. Assignment. Licensee may not assign,transfer,sublease,or sublet any right,obligation,or privilege given to it hereunder without SCE's prior written consent. 19. Taxes. Licensee shall pay when due all taxes as a result of any Attachment or installation of equipment on a SCE pole including,but not limited to,special assessments and government fees of any kind whatsoever which may be levied or assessed upon any personal property which Licensee has caused to be placed or maintained upon SCE's facilities,or against Licensee's business and shall keep SCE's facilities free from all liens, including but not limited to mechanics liens, and encumbrances by reason of the use,occupancy,or maintenance of SCE's facilities by Licensee or by any person claiming under Licensee. It is further agreed that in the event Licensee fails to pay the above-mentioned taxes, assessments, or liens when due, SCE shall have the right to pay the same and charge the amount thereof to Licensee, who shall pay the same upon demand together with interest at the maximum rate allowed by law from the date of such expenditure by SCE. 20. Notice. Whenever in this Agreement notice is provided or required to be given by one Party hereto to another, such notice shall be in writing and transmitted by United States mail or by personal delivery to SCE (Attention: Joint Pole Organization) at its office at 14005 South Benson Avenue, Chino, CA 91710 or to Licensee, ATTN: Contact Manager, or as the case may be or to such other address as either Party hereto may, from time to time, designate for that purpose, and shall be deemed given two (2) days after it is sent by certified mail, with a return receipt requested. 21. General Provisions. a. Encumbrances.Licensee shall prevent any and all liens from attaching,as a result of Licensee's activities respectively under this Agreement,to any property of SCE upon which Licensee has made an Attachment or upon which any of Licensee's equipment is attached or installed. b. Independent Contractual RelationshiZ Nothing in this Agreement shall create any special relationship between SCE and Licensee, such as an agency relationship; the Parties' only relationship under this Agreement is one of independent contracting parties. C. No Rights to Trademarks.Licensee shall not use"SCE,""Southern California Edison Company," "SCE" or any other words and marks owned by or used by SCE in identifying itself, or 1Adjm\A_=cments\PoIc Use Agreement wpd 10 by others in referring to it, without specific written permission from SCE to do so. d. Choice of Law. This Agreement and performance under this Agreement shall be governed, interpreted, construed, and regulated by the laws of the State of California. e. No Third Pattv Beneficiaries.All of the terms,conditions,rights and duties provided for in this Agreement are and always shall be solely for the benefit of SCE and Licensee,as specified herein. No third party (including customers of either SCE or Licensee) shall ever be the intended beneficiary of any performance,duty or right created or required pursuant to the terms and conditions of this Agreement. f. Force Maieure.Except for the payment of monies due under this Agreement,neither Party shall be deemed in default hereunder to the extent that any delay or failure in the performance of its obligations results from causes beyond its reasonable control and without its fault or negligence. In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay. If any excused delay occurs,the Party unable to perform shall give immediate notice to the other Party,while simultaneously seeking,in good faith to utilize reasonable alternative means for accomplishing the purposes of this Agreement and preventing delay. 9. Attorneys'Fee. In the event any suit, action or other legal or equitable proceeding is commenced to enforce or interpret the terms or conditions of this Agreement, the prevailing party in such action, in addition to any judgment or decree for costs,shall mean such reasonable attorneys, fees as it may have incurred in such suit,action,or other proceeding,together with other reasonable litigation expenses. h. Waiver.The failure of SCE to enforce any provision of this Agreement or the waiver thereof in any instance, including but not limited to the rights to terminate, shall not be construed as a general waiver or relinquishment on its part of any such provision but the same shall nevertheless be and remain in full force and effect. i. Void. Unenforceable or Invalid Provisions. If any part of this Agreement conflicts with any law or shall be held to be void, unenforceable or invalid by any court of competent jurisdiction,for reasons which are independent of those addressed in Section 12 of this Agreement, then such portion shall be deemed modified to the extent necessary in such court's opinion to render such portion enforceable and, as so modified, such portion and the balance of the Agreement shall continue in full force and effect. j. Scope of Agreement. This Agreement, including the attached exhibits,incorporates all covenants and understandings between SCE and the Licensee. No other verbal or written agreements or understandings exist between the Parties regarding an Attachment to SCE poles.Any modification to this Agreement shall be ineffective unless reduced to writing and signed by the Parties. This Agreement supersedes any prior agreements between the Parties which set forth the terms and conditions for Attachment to a SCE pole or for the installation of authorized equipment L\djmiAgreements\Pole Use Agreementwpd 11 as an adjunct to such Attachment. k. -ffs-adings and Exhibits.The captions of the paragraphs and sections of this agreement are for convenience in reference only and shall not affect the interpretation of this Agreement. Exhibits referenced herein are incorporated by said reference and may only be modified by written agreement of the Parties. By signing below,the signatories hereto represent and warrant that they have been duly and properly authorized to sign this Agreement on behalf of the Party for whom they sign. Southern California Edison Name: Title: Date: City of Redlands ATTEST: Mayor,Pat Gilbreath Y Ci Clerk, Lo Pyzer 1Adjm\Agreementg\PoIc Use Ageementmpd 12