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HomeMy WebLinkAbout0015_2_Purchase Sale Agreement - Exhibit APage 1 of 24 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of ___________, 2017 (“Effective Date”), by and between SOUTHERN CALIFORNIA EDISON, a California corporation (“SCE”), and the City of Lake Elsinore, a California municipal corporation (“Buyer”). SCE and Buyer are referred to herein individually as a “Party,” and together as “Parties”. RECITALS A. SCE currently owns Three Thousand Five Hundred Ninety (3,590) LS-1 electric streetlight facilities located in the City of Lake Elsinore, of which, Three Thousand One Hundred Eighty-Six (3,186) are to be purchased by Buyer. B. Buyer has expressed a desire to purchase the Facilities (defined below) from SCE, and SCE is willing to sell the Facilities to Buyer, on the terms and conditions set forth in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the respective covenants and agreements contained in this Agreement, SCE and Buyer each agree as follows: 1. DEFINITIONS. The following terms shall have the meanings ascribed to them below for purposes of this Agreement. “Agreement” has the meaning given in the first paragraph. “Applicable Requirements” means all laws, statutes, ordinances, rules, regulations, requirements or orders of any Governmental Authority now in force or that may later be in force, and the terms and conditions of any permit, certificate, license or other requirement. “Bill of Sale” means a document setting forth the Purchase Price and Transition Costs as well as any Taxes for which Buyer is responsible with respect to the Facilities specified to be transferred to Buyer (including Reconfigured Facilities), which document shall be substantially in the form of Exhibit B attached hereto. “Business Day” means a day other than Saturday, Sunday or a day on which (i) banks are legally closed for business in the State of California; or (ii) SCE is closed for business. “Buyer” has the meaning given in the preamble paragraph. “CEQA” has the meaning given in Section 5.1. “Claims” has the meaning given in Section 7.1. Page 2 of 24 “Closing Date” means the day on which the closing of the purchase and sale of the Facilities shall occur. “Commencement Date” has the meaning in Section 6.1. “CPUC” means the California Public Utilities Commission, or its regulatory successor, as applicable. “CPUC Approval” means a final, unconditional and unappealable decision of the CPUC under Section 851 of the Public Utilities Code (including exhaustion of all administrative and judicial remedies or the running of time periods and statutes of limitation for rehearing and judicial review without rehearing or judicial review being sought) approving this Agreement and the transactions contemplated hereby on terms and conditions acceptable to SCE and Buyer, in their good faith discretion, including approval of SCE’s proposed accounting and rate making treatment of the sale in accordance with CPUC’s decisions. “CPUC Approval Date” means the date on which the CPUC Approval occurs. “Effective Date” has the meaning given in the preamble paragraph. “Environmental Requirements” means any applicable federal, state and local statutes, regulations or ordinances now in force or that may later be in force relating to the protection of human health or safety, or regulating or relating to industrial hygiene or environmental conditions, or the protection of the environment, or pollution or contamination of the air, soil, surface water or ground water, including federal, state and local laws, requirements and regulations pertaining to reporting, licensing, permitting, investigating and remediating emissions, discharges, releases or threatened releases of such substances into air, surface water or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of such substances. Environmental Requirements include without limitation: the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. 5101 et seq.); and the Resource Conservation and Recovery Act (42 U.S.C. 6901et seq.) “Excluded Taxes” means (a) taxes (other than any sales, use, gross receipts, or any taxes in the nature of sales, use or gross receipts taxes) imposed on SCE that are capital gains taxes, minimum or alternative minimum taxes, accumulated earnings taxes, franchise taxes or taxes on or measured by gross or net income, capital or net worth of SCE; and (b) personal property taxes to the extent the payment is addressed in Section 3.4(b), and is not required to be reimbursed to SCE by Buyer. “Facilities” has the meaning given in Section 2.2 and further described in Exhibit A. Page 3 of 24 “Governmental Authority” means any federal, state, local or other governmental, regulatory or administrative agency, commission, department, board, subdivision, court, tribunal, or other governmental arbitrator, arbitral body or other authority, but excluding Buyer. “Hazardous Substances” means any hazardous or toxic material or waste, which is or becomes regulated by Environmental Requirement. Without limiting the generality of the foregoing, Hazardous Substances includes any material or substance: (a) now or hereafter defined as a “hazardous substance, “ “hazardous waste,” “hazardous material,” “ extremely hazardous waste,” “ restricted hazardous waste” or “toxic substance” or words of similar import under any applicable Environmental Requirements; or (b) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, and is now or hereafter regulated as Hazardous Substance by the United States, the State of California, any local governmental authority or any political subdivision thereof, or which cause or are listed by the State of California as being known to the State of California to cause, cancer or reproductive toxicity; or (c) the presence of which poses or threatens to pose a hazard to the health or safety of persons or the environment; or (d) which contains gasoline, diesel fuel or other petroleum hydrocarbons; or (e) which contains lead-based paint or other lead contamination, polychlorinated biphenyls (“PCBs”), or asbestos or asbestos-containing materials or urea formaldehyde foam insulation; or (f) which contains radon gas; or (g) fuel or chemical storage tanks, energized electrical conductors or equipment, or natural gas transmission or distribution pipelines; and (h) other potentially hazardous substances, materials, products or conditions. “Inventory Inspection Activities” means the activities referenced in Section 6.2(a) and set forth in Exhibit C to be performed by Buyer and SCE during the Inventory, Planning and Inspection Period. “Inventory Inspection Period” has the meaning set forth in Section 6.2(a). ” “Land” means the real property on which the Facilities are located, together with any other real property that is encumbered by Land Rights. “Land Rights” means the easements, leases, permits, franchise agreements or other agreements that grant SCE the right to locate the Facilities on the Land and/or permit access to the Facilities by SCE. “Local Service Planning Office” means SCE’s local service planning office located at ______________________________________________________________. “Potential Environmental Hazards” means electric fields, magnetic fields, electromagnetic fields, electromagnetic radiation, power frequency fields, and extremely low frequency fields, however designated, and whether emitted by electric transmission lines, other distribution equipment or otherwise. Page 4 of 24 “Purchase Price” has the meaning given in Section 3.1. “Reconfigured Facilities” means any additional facilities the Parties identify during the Inventory Inspection Period which serve purposes in addition to street lighting, which the Parties agree that SCE will reconfigure to remove such other (non-street light) uses, and which will be purchased by Buyer from SCE. Buyer shall coordinate all activities relating to Reconfigured Facilities with SCE’s Local Service Planning Office. “SCE Parties” means SCE, its affiliates, and each of their respective past, present and future officers, directors, partners, employees, agents, representatives, shareholders, attorneys, affiliates, parent and subsidiary corporations, divisions, insurance carriers, heirs, legal representatives, beneficiaries, executors, administrators, predecessors, transferees, successors and assigns. “Transition Activities” means the activities referenced in Section 6.2(a) and set forth in Exhibit C to be performed by SCE and Buyer. (after the applicable Inventory and Inspection Period expires) with respect to the Facilities to be transferred from SCE to Buyer. “Transition Costs” has the meaning in Section 3.3. “Tax Claim” has the meaning given in Section 3.4(e). “Taxes” mean all federal, state, local or foreign income, ad valorem, gross receipts, license, payroll, employment, excise, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property including assessments, special assessments, special district assessments, escape assessments, benefit assessments and maintenance assessments, fees or other charges or surcharges of any nature based on the use or ownership of real property), personal property, sales, use, documentary transfer, registration, value added, alternative and add-on minimum, estimated taxes, and all other taxes of any kind whatsoever, including all interest, penalties, fines and additions thereto, whether disputed or not, including all items for which liability arises as a transferee or successor-in-interest. 2. PURCHASE AND SALES OF FACILITIES. 2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, SCE agrees to sell, convey, assign, transfer and deliver to Buyer, and Buyer agrees to purchase and acquire from SCE, all of SCE’s right, title and interest in the Facilities. 2.2 Description of Facilities. The “Facilities” consist of Three Thousand One Hundred Eighty-Six (3,186) electric streetlight facilities owned by SCE and located within the Buyer’s service territory. A detailed description and listing of the Facilities to be purchased and sold is provided Exhibit A. The Parties Page 5 of 24 believe that Exhibit A contains a reasonably accurate inventory and map of the LS-1 streetlight facilities owned by SCE within the Buyer’s service territory that are considered for sale. 3. PURCHASE PRICE AND OTHER COSTS. 3.1 Purchase Price. Subject to adjustment as provided in this Section 3.1, the purchase price for all Facilities described in Exhibit A (“Purchase Price”) $2,321,303. The Purchase Price is exclusive of Transition Costs and Taxes. (a) Prior to the Closing Date, the Parties shall mutually agree on the final Purchase Price, and any additional costs for any Reconfigured Facilities transferred to Buyer in accordance with Section 6.2 (b). (b) Prior to the Closing Date, if the number of Facilities does not equal Three Thousand One Hundred Eighty Six (3,186) then, the Parties will amend the Bill of Sale to increase or decrease the Purchase Price, as appropriate, using the dollar amount of SCE’s average price for each type of streetlight facility in the Buyer’s municipality (concrete poles will be valued at SCE’s average price for concrete poles, steel poles will be valued at SCE’s average price for steel poles, wood poles will be valued at SCE’s average price for wood poles, and fiberglass poles will be valued at SCE’s average price for fiberglass poles). 3.2 [NOT USED] 3.3 Transition Costs. In addition to the Purchase Price, Buyer shall pay to SCE thirty dollars ($30.00) for every sellable pole to be transferred listed in the final bill of sale, which shall represent SCE’s good faith estimate of the cost of SCE’s Transition Activities with respect to the Facilities (“Transition Costs”). The estimated Transition Costs is set forth in Exhibit A. 3.4 Taxes. (a) Except for any Excluded Taxes for which Buyer will have no liability, Buyer shall pay all Taxes arising in connection with the sale and transfer of the Facilities, this Agreement or the transactions contemplated herein, or the receipt of the Purchase Price or other amounts hereunder, which Taxes are levied or imposed on or with respect to SCE, Buyer or all or any part of the Facilities or any use thereof on or after the Closing Date. The estimate of the Buyer’s Taxes is set forth in Exhibit A. (b) State and local personal property Taxes relating to the Facilities for the tax year (ending June 30) will be prorated between Buyer and SCE on the following basis: SCE is to be responsible for all such Taxes for the period up to the Closing Date for such Facilities; and Buyer is responsible for all such Taxes for the period on and after the Closing Date. All Taxes assessed on an annual basis Page 6 of 24 will be prorated on the assumption that an equal amount of Taxes applies to each day of the year, regardless of how many payments are billed or made, except that Buyer will bear all supplemental or other state and local personal property Taxes which arise out of change in ownership of the Facilities. In addition, Buyer acknowledges that the Facilities are assessed by the California State Board of Equalization as of January 1 of each year, and, if the Closing Date occurs between January 1 and June 30, SCE must pay personal property taxes arising out of the ownership of the Facilities for the subsequent fiscal year. If the Closing Date occurs between January 1 and June 30, Buyer will deposit with SCE the full amount to pay personal property taxes for the tax year beginning on July 1, in addition to the prorated amount of personal property taxes for the current tax year (ending June 30), and SCE will pay the personal property taxes for these tax years before they become delinquent; provided however, SCE may pay such taxes in installments as permitted by law. If the personal property tax amounts owing for the tax year beginning on July 1 are not available as of the Closing Date, then the amount due from Buyer to SCE for such tax year will be estimated on the basis of the prior year’s personal property taxes and such amount will be subject to adjustment after the Closing Date. If the Closing Date occurs between July 1 and December 31, Buyer will deposit with SCE the prorated amount of personal property taxes for the tax year in which the Closing Date occurs and SCE will pay the personal property taxes for such tax year before they become delinquent; provided however, SCE may pay such taxes in installments as permitted by law. (c) SCE will be entitled to any refunds or credits of Taxes relating to the Facilities that are allocable to the period prior to the Closing Date. Buyer will promptly notify and forward to SCE the amounts of any such refunds or credits to SCE within five (5) Business Days after receipt thereof. Buyer will be entitled to any refund or credit of Taxes relating to the Facilities that are allocable to the period on and after the Closing Date. SCE agrees to reasonably cooperate with Buyer’s efforts to obtain such refund or credit. (d) After the Closing Date, Buyer will notify SCE in writing, within five (5) Business Days after Buyer’s receipt of any correspondence, notice or other communication from a taxing authority or any representative thereof, of any pending or threatened tax audit, or any pending or threatened judicial or administrative proceeding that involves Taxes relating to the Facilitates for the period prior to the Closing Date, and furnish SCE with copies of all correspondence received from any taxing authority in connection with any audit or information request with respect to any such Taxes relating to the Facilities for the period prior to the Closing Date. (e) Notwithstanding any provision of this Agreement to the contrary, with respect to any claim for refund, audit, examination, notice of deficiency or assessment or any judicial or administrative proceeding that involves Taxes relating to the Facilities for the period either entirely prior to the Closing Date or Page 7 of 24 both prior to and after the Closing Date (collectively, “Tax Claim”), the Parties will reasonably cooperate with each other in contesting any Tax Claim, including making available original books, records, documents and information for inspection, copying and, if necessary, introduction as evidence to any such Tax Claim contest and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder with respect to such Tax Claim or to testify at proceedings relating to such Tax Claim. SCE will control all proceedings taken in connection with any Tax Claim that pertains entirely to the period prior to the Closing Date, and SCE and Buyer will jointly control all proceedings taken in connection with any Tax Claim pertaining to the period both prior to and after the Closing Date. Buyer has no right to settle or otherwise compromise any Tax Claim which pertains entirely to the period prior to the Closing Date; and neither Party has the right to settle or otherwise compromise any Tax Claim which pertains to the periods both prior to and after the Closing Date without the other Party’s prior written consent. (f) The obligations of the Parties pursuant to the Section 3.4 shall survive the termination of this Agreement. 4. CONDITIONS PRECEDENT 4.1 Conditions to Buyer’s Obligations. Buyer’s obligation under this Agreement to purchase the Facilities is subject to the fulfillment or waiver of each of the following conditions precedent: (a) SCE shall have performed or complied in all material respects with all covenants, agreements and conditions contained in this Agreement to be performed or complied with by SCE at or prior to the Commencement Date and the Closing Date. (b) The City Council shall have identified, approved and obtained structured financing to pay the Purchase Price, Transistion Cost and Taxes. The acceptable terms of a feasible financing shall be determined solely by the City Council. (c) No suit, action or other proceeding shall be pending before any court or Governmental Authority which seeks to restrain or prohibit any of the transactions contemplated by this Agreement or to obtain material damages or other material relief in connection with this Agreement or the transactions contemplated hereby. 4.2 Conditions to SCE’s Obligations SCE’s obligation under this Agreement to sell the Facilities to Buyer is subject to the fulfillment or waiver of each of the following conditions precedent: (a) Buyer shall have performed or complied in all material respects with all covenants, agreements and conditions contained in this Agreement to be Page 8 of 24 performed by Buyer at or prior to the Commencement Date and the Closing Date. (b) No suit, action or other proceeding shall be pending before any court or Governmental Authority which seeks to restrain or prohibit any of the transactions contemplated by this Agreement or to obtain material damages or other material relief in connection with this Agreement or the transactions contemplated hereby. 4.3 CPUC Approval. The obligation of each Party to consummate the purchase and the sale of the Facilities is conditioned upon obtaining CPUC Approval. If the purchase and sale must be submitted to the CPUC through a full application, SCE agrees to make reasonable efforts to draft and file an application seeking CPUC approval within ninety (90) days following the Effective Date of this Agreement. If the purchase and sale may be submitted to the CPUC through an advice letter filing, SCE agrees to draft and file an application seeking CPUC approval no later than ninety (90) days following the Effective Date of this Agreement. Buyer agrees to cooperate with SCE’s efforts to obtain CPUC Approval, including by promptly reviewing and commenting on the application for CPUC Approval. Buyer acknowledges and agrees that SCE makes no representation or warranty with respect to the likelihood of obtaining CPUC Approval, and Buyer hereby waives all Claims against SCE that may arise as a result of the need for CPUC Approval or SCE’s failure to obtain CPUC Approval. The application seeking CPUC Approval will request such approval within six months of the date the application is filed. SCE makes no representations as to when or in what manner the CPUC will act on the application. 4.4 Satisfaction or Waiver of Conditions Precedent. Buyer may waive in writing any of the conditions precedent set forth in Section 4.1, and SCE may waive in writing any of the conditions precedent set forth in Section 4.2. Neither Party shall have the right to waive the condition precedent set forth in Section 4.3. Subject to the foregoing, in the event that any of the conditions precedent set forth in this Section 4.1 or Section 4.2 have not been satisfied or waived on or before the Commencement Date or the Closing Date (as the same may be extended), then the Party whose obligations are subject to such condition precedent shall have the right to rescind this Agreement ab initio upon written notice to the other Party, and SCE and Buyer shall thereupon return to the other Party all performances received from the other Party (except for the Transition Costs actually paid), and each Party shall be released from all other obligations under this Agreement, except those which expressly survive termination. 5. CONDITION OF FACILITIES AND LAND RIGHTS 5.1 Compliance with Applicable Requirements and Governmental Approvals. Except for CPUC Approval, Buyer is solely responsible for complying, at Buyer’s sole expense, with all Applicable Requirements and obtaining all authorizations, Page 9 of 24 consents, licenses, permits and approvals of Governmental Authorities and third persons in connection with the consummation of the transactions contemplated by this Agreement and with Buyer’s operation of the Facilities, whether as result of the PCB content or otherwise. Without limiting the foregoing, Buyer is responsible for any costs of complying with the California Environmental Quality Act (“CEQA”), if and to the extent applicable to the sale and transfer of the Facilities, and satisfying, at Buyer’s sole expense, any and all mitigation measures under CEQA that may apply to Buyer’s acquisition or operation of the Facilities. Buyer shall promptly notify SCE of any and all mitigation measures that may affect SCE. If SCE determines in good faith that any such mitigation measures may adversely affect SCE, SCE shall have the right without liability to Buyer to terminate this Agreement upon written notice to Buyer. In the event of such termination, SCE and Buyer shall each be released from all obligations under this Agreement, except those that expressly survive termination. Buyer’s obligations under this Section 5.1 shall survive the termination of this Agreement. 5.2 Disclosure Regarding Hazardous Substances. SCE hereby discloses to Buyer that Potential Environmental Hazards and Hazardous Substances, including PCBs, may be present at, in, on, under, about, contained in, or incorporated in the Facilities. Buyer represents that it is purchasing the Facilities for Buyer’s own use, and not for resale (provided that Buyer contemplates that Buyer may transfer title to the Facilities in connection with financing and/or refinancing of the Facilities). If Buyer sells the Facilities, or any part thereof, it shall disclose, in writing, to all potential Buyers, prior to the sale, that Potential Environmental Hazards and Hazardous Substances, including PCBs, may be present at, in, on, under, about, contained in, or incorporated in the Facilities, or portions thereof. Further, in the event the Facilities (or any portion thereof) are sold, conveyed or transferred in any manner to a person other than SCE, Buyer shall incorporate in the agreement effectuating such transfer, language substantially in the same form as this paragraph. Buyer’s obligations under this Section 5.2 shall survive the termination of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, SCE approval shall not be required for any conveyance of the Facilities, whether or not such conveyance is made in connection with a financing or refinancing of the Facilities or any part thereof. 5.3 Disclaimers Regarding the Facilities and the Land. BUYER ACKNOWLEDGES THAT IT IS RELYING UPON ITS OWN INDEPENDENT INVESTIGATION IN DECIDING TO PURCHASE THE FACILITIES. BUYER EXPRESSLY DISCLAIMS RELIANCE ON ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES, EITHER EXPRESS OR IMPLIED, BY SCE, ITS OFFICERS, DIRECTORS, COUNSEL, REPRESENTATIVES OR AGENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE FACILITIES, THE PROSPECTS (FINANCIAL Page 10 of 24 AND OTHERWISE) OF THE FACILITIES, THE QUALITY OF WORKMANSHIP OF THE FACILITIES, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. SCE FURTHER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING POTENTIAL ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS SUBSTANCES, COMPLIANCE OF THE FACILITIES OR THE LAND WHERE THE FACILITIES ARE LOCATED WITH ENVIRONMENTAL REQUIREMENTS, OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL REQUIREMENTS. NO SCHEDULE OR EXHIBIT TO THIS AGREEMENT, NOR ANY OTHER MATERIAL OR INFORMATION PROVIDED BY OR COMMUNICATIONS MADE BY SCE, WILL CAUSE OR CREATE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS: (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR MATERIALS. 5.4 “AS IS” SALE. THE FACILITIES ARE BEING TRANSFERRED “AS IS, WHERE IS, AND WITH ALL FAULTS” IN THEIR EXISTING CONDITION, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND BY SCE, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE AGAINST SCE. 5.5 Specific Disclaimer Regarding Land Rights. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SCE IS NOT ASSIGNING OR OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST IN AND TO ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING UNDER OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF ADEQUATE OR APPROPRIATE LAND RIGHTS. 5.6 Maintenance of Facilities Prior to Closing. From the Effective Date until the Closing Date, SCE will, at its expense, operate and maintain the Facilities in accordance with SCE’s rate “Schedule LS-1 LIGHTING - STREET AND HIGHWAY - UNMETERED SERVICE COMPANY-OWNED SYSTEM,” and consistent with SCE’s custom and past practices. 5.7 New Facilities. Until the Commencement Date, SCE may continue to install new streetlights in the City of Lake Elsinore in accordance with SCE’s standard practices and tariffs and CPUC rules and regulations. 6. COMMENCEMENT AND POST-COMMENCEMENT ACTIVITIES. 6.1 Commencement Date. The “Commencement Date” shall be the date that is sixty (60) days after the CPUC Approval Date or after the approval of a financing Page 11 of 24 plan by the City Council, whichever occurs later. The application seeking CPUC Approval will request such approval within six months of the date the application is filed. SCE makes no representations as to when or in what manner the CPUC will act on the application. 6.2 Actions on Commencement Date. On the Commencement Date, the Parties shall commence the following actions for the Facilities to be transferred to Buyer: (a) For a period not to exceed four (4) months following the Commencement Date an “Inventory Inspection Period” shall occur, the Parties will perform their respective Inventory Inspection Activities set forth in Exhibit C, including identifying any Reconfigured Facilities. During the Inventory Inspection Period, SCE’s Local Service Planning office shall provide written notice to Buyer before the expiration of the Inventory Inspection Period identifying any potential Reconfigured Facilities and stating the work necessary to reconfigure such facilities for sale to Buyer and the estimated time and cost to complete the work (“Reconfigured Facilities Notice”). (b) For a period of ten (10) Business Days following Buyer’s receipt of the Reconfigured Facilities Notice, Buyer shall have the right to accept or reject the Reconfigured Facilities described in the Reconfigured Facilities Notice, which acceptance or rejection shall be evidenced by a written notice delivered to SCE’s Local Service Planning Office. (c) At any time during the Inventory Inspection Period, each Party shall perform and complete its respective Transition Activities for all Facilities, excepting only the Reconfigured Facilities identified in the Reconfigured Facilities Notice, which Reconfigured Facilities shall be invoiced for following the Closing Date. Notwithstanding the foregoing, prior to or during the Inventory Inspection Period, each Party shall perform and complete its respective Transition Activities for any Reconfigured Facilities. (d) Not later than thirty (30) days prior to the Closing Date, SCE shall deliver to Buyer the final Bill of Sale duly executed by SCE. The Parties agree that delivery of the Bill of Sale shall be effective upon the earlier of (i) delivery to Buyer by hand of an original Bill of Sale or (ii) Buyer’s receipt of a facsimile or other electronic transmission of the Bill of Sale. If delivery is made by facsimile or other electronic transmission, SCE shall concurrently send the original Bill of Sale to Buyer by registered or certified mail or overnight courier. (e) At any time prior to delivery of the final Bill of Sale, Buyer may elect at its sole and absolute discretion to remove any of the Facilities (except for Reconfigured Facilities) and deduct on a pro rata basis the value of such Facilities from the Purchase Price consistent with the valuation set forth in Exhibit A. Page 12 of 24 (f) On the Closing Date, Buyer shall pay to SCE in US Dollars the Purchase Price, Transition Costs, and the Taxes (but not Excluded Taxes) for the Facilities to be transferred to Buyer. (g) Following the Closing Date, SCE’s Local Service Planning Office will invoice Buyer separately for any duly accepted Reconfigured Facilities. 6.3 Assumption of Liabilities. Beginning on the Closing Date, Buyer will assume all obligations and liabilities of any kind or nature whatsoever related to, arising from, or associated with ownership or possession of the Facilities transferred to Buyer. 6.4 Post-Inventory Inspection Period Activities. (a) As soon as practicable after the Closing Date, but effective as of the Closing Date, SCE will formally change the charge for facilities and electricity furnished to the Facilities transferred to Buyer from the Streetlight Rate Schedule LS-1 to the Streetlight Rate Schedule “LS-2 LIGHTING - STREET AND HIGHWAY CUSTOMER-OWNED INSTALLATION - UNMETERED SERVICE” Multiple Service – Rate B and provide written notice to Buyer of such change (“Notice of Rate Change”). At the next available billing period following the Notice of Rate Change, SCE shall pay to Buyer, in the form of a bill credit, an amount equal to the difference between the amount charged to Buyer for facilities and electricity under the LS-1 Schedule and the amount that would have been charged to Buyer for the same facilities and electricity under the LS-2 Schedule for the period beginning with the Closing Date and ending on the date SCE’s billing system is adjusted to reflect the rate change. (b) Within ninety (90) days after Closing Date, SCE shall provide an updated map and inventory of the Facilities to Buyer. 6.5 Prohibition on Connecting Non-Conforming Load. Buyer acknowledges and agrees that Buyer’s purchase of the Facilities does not entitle Buyer to connect non-conforming load to the Facilities or supporting circuits beyond SCE’s initial point of connection. If Buyer wishes to connect such non-conforming load, Buyer agrees to comply with SCE’s applicable filed tariffs. 6.6 Closing Date. The Closing Date shall occur no later than the first working day immediately following the completion of the Inventory Inspection Period. The exact Closing Date shall be determined by the mutual consent of the Parties. 7. RELEASE. 7.1 Release. Buyer, for itself, and for any future owners of all or a part of the Facilities, and each of their respective predecessors, successors, assigns, licensees, officers, directors, employees, agents, partners, shareholders, Page 13 of 24 transferees, parent and subsidiary corporations, legal representatives, heirs, beneficiaries, executors and administrators hereby fully and forever releases, discharges and covenants not to sue the SCE Parties of, from or for any and all losses (including diminution in the value of the Land) and all other costs, claims, demands, actions, suits, orders, causes of action, obligations, controversies, debts, expenses, accounts, damages (including consequential or direct damages), judgments and liabilities of whatever kind or nature (including fines and civil penalties), and by whomsoever asserted, in law, equity or otherwise, whether known or unknown, (each a “Claim” and, collectively, “Claims”) arising from or in any way connected with the Facilities, Claims relating to Potential Environmental Hazards, and Claims relating to the presence of PCBs or any other Hazardous Substances in the Facilities, and/or in, on or about the Land. 7.2 Waiver of Civil Code § 1542. With respect to the matters being released in Paragraph 7, and as to those matters only, Buyer does knowingly, after having first obtained the advice of its attorneys, waive all of the provisions of California Civil Code § 1542 (“Section 1542”). Section 1542 reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Buyer acknowledges and agrees that: (a) the releases set forth in Paragraph 7 are intended to extend to and extinguish all claims, causes of action, etc. that are encompassed within the terms of the releases, including those that are not presently known to or suspected by Buyer and (b) it may hereafter discover facts in addition to or different from those which it now believes concerning the subject matter of this Agreement, and that notwithstanding any such new or different facts, the releases contained herein will remain effective. Buyer further acknowledges and agrees that the foregoing waiver of Section 1542 is an essential and material term of this Agreement, without which said consideration would not have been given. Buyer has been advised by its legal counsel regarding this release and waiver and understands and acknowledges the significance and consequences of this release and waiver of Section 1542. 8. INDEMNITY. Buyer shall, at its sole cost and expense, indemnify, protect, defend and hold the SCE Parties harmless, to the fullest extent permitted by law, from and against any and all Claims (including the payments of damages, both actual and consequential, the payment of penalties and fines, the payment of the actual fees and expenses of experts, attorneys and others, and the payment of the cost of environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work and other “response costs” under CERCLA or any other Environmental Requirements) arising from or in any way connected with: (a) any activities or failures to act in connection with this Agreement by Buyer, its employees, agents, or contractors; or (b) the ownership, possession, use or operation of the Facilities transferred to Buyer from and after the Closing Date applicable to such Page 14 of 24 Facilities; or (c) Potential Environmental Hazards relating to the Facilities or the presence, disposal, dumping, escape, seepage, leakage, spillage, discharge, emission, pumping, emptying, injecting, leaching, pouring, release or threatened release of PCBs or any other Hazardous Substances in connection with the Facilities, to the extent such Hazardous Substances were present or affecting the Facilities and/or in, on, or about the Land as of the Closing Date; or (d) the failure of the Facilities to comply with any Applicable Requirements following the Closing Date; or (e) Buyer’s breach of any of its obligations under this Agreement. In no event shall Buyer be required to indemnify SCE for any claims to the extent related to the gross negligence or willful misconduct of SCE. If any action or proceeding is brought against any one or more SCE Parties for any Claim against which Buyer is obligated to indemnify or provide a defense hereunder, Buyer, upon written notice from SCE, shall defend the SCE Parties. Buyer’s obligation to defend includes the obligation to defend claims and participate in administrative proceedings, even if they are false or fraudulent. The indemnity, defense and other obligations of Buyer in this Section 8 shall survive the termination of this Agreement. Notwithstanding any provision of this Section 8 to the contrary, the indemnity, defense and other obligations of Buyer in this Section 8 shall not include any Claim pending against SCE as of the Closing Date. 9. MISCELLANEOUS. 9.1 Time of Essence. Time is of the essence of this Agreement and each and every provision hereof. 9.2 Force Majeure. Except for the payment of money when due, performance by either Party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to force majeure events beyond the control of such Party, including, without limitation, war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, government imposed moratorium legislation, actions of failures to act by any regulatory authority with jurisdiction over SCE (including the CPUC), freight embargoes, lack of transportation, weather-caused delays, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplier, that are not attributable to the fault of the Party claiming an extension of time. An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the Party claiming the existence of the delay first provides the other party with written notice of the occurrence of the delay, within ten (10) days of the commencement of such occurrence of a force majeure event and, thereafter, takes prompt and reasonable action within its control to remedy such force majeure event. 9.3 Further Assurances. Each Party hereto agrees to execute and deliver to the other Party such further documents or instruments as may be necessary or Page 15 of 24 appropriate in order to carry out the intentions of the Parties as contained in this Agreement. 9.4 Binding Effect; Assignment. This Agreement shall be binding upon, and shall inure to the benefit of, the heirs, successors and assigns of the Parties hereto. Notwithstanding the foregoing, Buyer shall have no right to assign this Agreement or any of its rights or obligations under this Agreement. 9.5 Severability. If any provision of this Agreement shall be unenforceable or invalid, the same shall not affect the remaining provisions of this Agreement and the provisions of this Agreement are intended to be and shall be severable. 9.6 Survival. The covenants, agreements, obligations, indemnities and releases contained in Sections 3.4, 5, 6.3, 6.4, 6.5, 7 and 8 of this Agreement shall survive the termination of this Agreement. 9.7 Governing Laws. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California without reference to its conflicts of laws provisions. 9.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 9.9 Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be either personally delivered or transmitted by registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier, such as FedEx or Airborne Express, addressed to the Parties as follows: If to SCE: If to Buyer: City of Lake Elsinore Attn: City Manager 130 S. Main Street Lake Elsinore, CA 92530 The date of any notice or communication shall be deemed to be the date of receipt if delivered personally, or the date of the receipt or refusal of delivery if transmitted by mail or overnight courier. Any Party may change its address for notice by giving notice to the other Party in accordance with this Section 9.9. 9.10 Limitation on Liability. Buyer expressly agrees that the obligations and liabilities of SCE under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, employees, Page 16 of 24 agents, affiliates, members, representatives, stockholders or other principals or representatives of SCE. SCE expressly agrees that the obligations and liabilities of Buyer under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, employees, agents, affiliates, members, representatives, stockholders or other principals or representatives of Buyer. The limitations contained in this Section 9.10 shall survive the termination of this Agreement. 9.11 Exhibits. The following Exhibits are attached hereto and incorporated by reference into this Agreement. Exhibit A Description of the Facilities Exhibit B Form of Bill of Sale Exhibit C Inventory and Inspection Activities Exhibit D Communications Equipment Exhibit E Point of Demarcation Diagrams Exhibit F No-Fee Light pole License Agreement for Wireless Attachment 9.12 Dispute Resolution. In the event any dispute arises concerning the enforcement and/or interpretation of this Agreement, the Parties agree to attempt initially to settle such claims or disputes in good faith between themselves. Said obligation to discuss settlement of such claims or disputes shall be initiated by written notice of such claim or dispute. Should the Parties not settle such claims or disputes within thirty (30) days of the date of mailing of such notice or within such additional time period to which the Parties agree in writing (the “Negotiation Period”), the Parties may mutually agree to submit any such claim or dispute to mediation. In such case, the Parties will select an independent mediator within thirty (30) days of the expiration of the Negotiation Period (the “Selection Period”), either by mutual agreement or, in the absence of agreement on a mediator, by requesting during the Selection Period that the American Arbitration Association in Los Angeles, California appoint a mediator. The mediation shall be commenced within thirty (30) days of the selection of a mediator by the Parties or the American Arbitration Association. Except as provided herein or by written agreement of the Parties, the mediation shall be conducted in Los Angeles pursuant to the rules of the American Arbitration Association. If the Parties are unable to settle the dispute through discussions or in mediation, each Party shall have the right to pursue all of its remedies at law or in equity. The covenants of Buyer and SCE contained in this Section 9.12 shall survive the termination of this Agreement. 9.13 Communications Equipment. Buyer acknowledges that the Facilities have certain SCE-owned and operated radio equipment, used for the collection and relay of data from SCE meters and the collection, relay, and communication with SCE distribution systems, attached to them as identified in Exhibit D (“Communications Equipment”). Concurrently with the Closing Date, Buyer shall Page 17 of 24 grant to SCE a cost-free license to leave in place, operate, maintain, replace and remove any Communications Equipment attached to Facilities pursuant to a Pole Attachment License Agreement. 9.14 Interpretation. The language in all parts of this Agreement shall be construed according to its normal and usual meaning and not strictly for or against either SCE or Buyer. The headings of the paragraphs of this Agreement are inserted solely for convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction of any terms or provisions hereof. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation.” 9.15 Authority. Each Party represents and warrants that the execution, delivery and performance of this Agreement has been duly authorized by such Party and each person signing this Agreement on its behalf is duly and validly authorized to do so. 9.16 Prior Agreements. This Agreement and the exhibits hereto contain the entire agreement and understating of the Parties relating to the subject matter hereto and shall supersede any prior written or oral agreements or communications between the Parties pertaining to such subject matter. IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be duly executed as of the date and year first written above. [SIGNATURES APPEAR ON FOLLOWING PAGE] Exhibit A-1   SCE: SOUTHERN CALIFORNIA EDISON, a California corporation By: Its: BUYER: CITY OF LAKE ELSINORE, a California municipal corporation By: Its: ATTEST: City Clerk APPROVED AS TO FORM City Attorney Exhibit A-2   Exhibit A Description of Facilities and Valuation Exhibit B‐1    Exhibit B Form of Bill of Sale BILL OF SALE Pursuant to that certain Purchase And Sale Agreement, dated___________, 2017 (“Agreement”), by and between Southern California Edison, a California corporation (“SCE”), and the City of Lake Elsinore, a California municipal corporation (“Buyer”), effective as of ___________, 20___ SCE hereby sells, assigns, transfers and delivers to Buyer all of SCE’s right, title and interest in and to the property described in Attachment A (“Facilities”), attached hereto and hereby incorporated herein by this reference. All capitalized terms not defined in this Bill of Sale shall have the meanings given them in the Agreement. THE FACILITIES ARE BEING TRANSFERRED “AS IS, WHERE IS, AND WITH ALL FAULTS” IN THEIR EXISTING CONDITION, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND BY SCE, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE AGAINST SCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE FACILITIES, THE PROSPECTS (FINANCIAL AND OTHERWISE) OF THE FACILITIES, THE QUALITY OF WORKMANSHIP OF THE FACILITIES, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. SCE FURTHER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING POTENTIAL ENVIRONMENTAL HAZARDS, THE PRESENCE OF HAZARDOUS SUBSTANCES, COMPLIANCE OF THE FACILITIES OR THE LAND WHERE THE FACILITIES ARE LOCATED WITH ENVIRONMENTAL REQUIREMENTS, OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL REQUIREMENTS. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SCE IS NOT ASSIGNING OR OTHERWISE TRANSFERRING ITS RIGHT, TITLE AND INTEREST IN AND TO ANY LAND RIGHTS (OR ANY CLAIM, RIGHT OR BENEFIT ARISING UNDER OR RESULTING FROM SUCH LAND RIGHTS) IN CONNECTION WITH ITS SALE OF THE FACILITIES TO BUYER, AND BUYER ASSUMES ANY AND ALL RISKS AND LIABILITIES IN CONNECTION WITH THE ABSENCE OF ADEQUATE OR APPROPRIATE LAND RIGHTS. This Bill of Sale is executed pursuant to the authorization contained in the order of the California Public Utilities Commission in its Decision No. ____________, dated _____________, and is subject to all the terms and conditions of the Agreement, including the provisions set forth above. Exhibit B‐2    The parties represent that they are duly authorized to execute this Bill of Sale. SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation By: __________________ (Name of Business Unit VP) (Title of VP) Accepted and Agreed: BUYER: CITY OF LAKE ELSINORE, a California municipal corporation By: ___________________________________ Name: _________________________________ Title: __________________________________ Attachment A: Facilities and Valuation [setting forth final Purchase Price, Transition Costs, and Taxes]   Exhibit C Inspection and Transition Activities [***Table to be added once agreement has been negotiated***]   Exhibit D Communications Equipment     Exhibit E Point of Demarcation Diagrams