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HomeMy WebLinkAbout2000-065 Pole Contact Agrmt - AFNCity of Ashland, Oregon Department of Electric Utilities Pole Contact Agreement The City of Ashland, Oregon, by and through its Department of Electric Utilities, ("City') and · ~Z~,-.¼'~,~,-,a, . ~-'~-'_..~-~...,~ r~.~-~, ,.-~ CLicensee") agree that the following terms and conditions govern Licenseo's non-exclusive use of such of City's poles as City may, upon application, permit Licensee to use in the City of Ashland. I. Scope of Use. Licensee's use of such poles is to be confined to supporting those cables, wires, and appliances, together with associated messenger cables and other appurtenances, all of which are further referred to in this agreement as "equipment" for which Licensee has been given written permission to install. This equipment must be used only for lawful purposes, including erecting and operating a coaxial cable system for television signal distribution to the homes or business locations of Licenseo's subscribers. 2, Application, Whenever Licensee desires to place equipment upon any of such poles, Licensee must make written application for permission to do so, in the number of copies and in the form as from time to time prescribed by City. If such application is approved, conditional permission to place the equipment described in such application upon those poles is granted upon execution by City and receipt by Licensee of one copy of such application, subject to the requirements of paragraph 6, 2.1. Upon receiving from City an approved copy of an application, and upon compliance with paragraphs 3.3, 6, 14, and 15, but not before, Licansee has the right to install, maintain, and use its equipment described in such application upon the poles identified in the application; provided, however, that before commencing any such installation, Licensee must notify City of the time when it proposes to do such work sufficiently in advance so that City may arrange to have its inspector present when such work is performed. Licensee agrees to reimburse City for any and all costs reasonably incurred through the use of an inspector. 2.2. On any poles used by Licensee, Licensee does not have the right to place, nor may it place, any additional equipment upon any such poles, including that portion of the pole from ground level to the first pole attachment of any type, without first making application for and receiving permission to do so, all as prescribed in paragraph 2; nor may Licensee change the position of any equipment attached to any poles without City's prior written approval. 3. Compliance with Regulations and Specifications, 3.1. Ucensee must, at its own sole risk and expense, place and maintain such equipment upon such poles: (i) in a safe condition and in thorough repair; (ii) in a manner satisfactory to City and so as not to conflict or interfere with the working use of such poles or facilities on such poles by City or by others using such poles; (i/i) in conformity with such requirements and specifications as City may from time to time prescribe; and (iv) in conformity with all laws and the regulations, orders and decrees of all lawfully constituted bodies and tribunals, pertaining to pole line construction, including without limiting the scope of the foregoing, the requirements of the latest edition of the National Electrical Safety Code and City's Construction Specifications. 3.2. Licensee must complete the installation of its equipment upon the poles covered by each approved individual application within 90 days of the date of such approval. In the event Licensee should fail to do so, the permission granted by City to place such equipment upon poles will automatically be revoked and Licensee will have no right to place its equipment upon such poles without first reapplying for and receiving permission to do so, all as prescribed in paragraph 2. 3,3, When an application for attachment to a pole, anchor or utilization of an anchor/guy strand is submitted by Licensee, a field inspection may be required to determine the existing adequacy ef the pole, anchor, and/or guy to accommodate Licenseo's facilities. Utilization of the existing available 1 - Pole Contact Agreement F:%USER\PAUL%Telecommunlcations\Forms~pole attachment ashland 12-99.wpd capacity of an anchor/guy strand, when such utilization does not result in a reduction of the holding capacity below the level normally required by City for safety or other purposes will be permitted at the option of City. 3.3.1. City has the right to inspect each new installation of Licensee's equipment upon and in the vicinity of such poles and to make subsequent periodic inspections as deemed necessary by City. City reserves the right to charge Licensee for the expense of any field inspections, including inspections for make-ready work, inspections during installation of Licensee's equipment, and any periodic inspections deemed necessary by City. Such inspections, made or not, will not relieve Licensee of any responsibility, obligation, or liability assumed under this agreement. The frequency of periodic inspections is dependent on the performance of the Licensee in conforming with the terms of this agreement. 3.3.2, If, in the judgment of City, the accommodation of any of Licensee's equipment requires the rearrangement of facilities on an existing pole or the replacement of any existing pole to provide adequate pole facilities, City will indicate on Licensee's application the necessary changes and the estimated cost of these changes, based on City's engineerin9 work standards, and return such application to the Licensee. Upon receipt of written authorization from Licensee, City will do such work. A bill will be submitted by City to Licensee each month for work completed during that month. Licensee must pay each monthly bfil within 30 days from date of issuance. 3.4. If, in City's judgment, Licensee's existing equipment on any poles interferes with or prevents the placing of any additional facilities required by City, or by others as permitted by City, and if such additional facilities could be placed upon such poles by removing Licensee's equipment or by rearranging City's existing facilities, City will notify Licensee. Such notice will state what rearrangemerit of City's facilities or pole replacement and transfer of City's facilities is required to continue the accommodation of Licensee's equipment, together with an estimate of the cost of making any such changes. If Licensee desires to continue to maintain its equipment on such poles and so notifies City, City will make such rearrangemerit or pole replacement and transfer, all at the sole risk and expense of Licensee, and Licensee, on demand, must reimburse City for the entire expense incurred. If Licensee does not so notify City, Licensee must remove its equipment from such poles within 30 days from such notification by City; provided, however, that City in any emergency may require Licensee to remove its equipment within the time required by such emergency. If Licensee's equipment is not removed from the pole at the end of the 30 day period, or in emergencies, within the period specified by City, City may remove Licensee's equipment and Licensee, on demand, must reimburse City for the entire expense incurred. 3.5. In those cases where Licensee's anchorage requirements are not coincident with those of City, City may elect to place, own and maintain such guys and anchors as are required to hold the strains of Licensee's equipment upon such poles, and Licensee, on demand, will reimburse City for the entire expense incurred. If City does not elect to place such guys and anchors, Licensee will, at its own risk and expense, place such guys and anchors and City will assume ownership. 3.5.1. In general, in those cases where the anchorage requirements of Licensee and City are coincident, the strains of Licensee's equipment and of City's facilities on such poles will be held by the same anchors, and Licensee, at its own sole risk and expense, will provide such guys as are required to hold the strains of its equipment upon such poles and City will assume ownership. In individual cases, when in City's judgment such procedure is desirable, Licensee, at its own sole risk and expense, will provide and maintain separate anchors as well as guys to hold the strains of its equipment upon the poles, and City will assume ownership, 3.5.2. In those cases where any existing guying facilities are inadequate to hold Licensee's strains, and separate guying facilities are not desired, or if guying facilities being used by Licensee should be inadequate to hold additional strains of City resulting from the placing of additional facilities on such poles and such guying facilities would have been 2- Pole Contact Agreement F:\USER\PAUL\Telecommunications\Forms~pote attachment ashland 12-99.wpd adequate to hold the additional strains if Licensee's strains were removed, City will replace the existing guying facilities with adequate guying facilities at the sole risk and expense of Licensee, and Licensee, on demand, must reimburse City for the entire expense incurred. Ownership of guying facilities will remain vested in City. 3.6. In order to keep the number of poles on public thoroughfares and other public and private property to a practical minimum in accordance with public policy, Licensee must consult with City prior to erecting any poles of Licensee. City and Licensee will, during such consultation, negotiate in good faith to determine whether the interests of Licensee and City, and their respective customers, are best served by the use of City's existing pole or a new pole to be installed by City, or by the installation of a pole by Licensee. 4. Right to Refuse Use. Nothing in this agreement is to be construed to obligate City to grant Licensee permission to use any particular poles. If such permission is refused, Licensee may make any other arrangement it may wish to provide for its equipment at the location in question; provided, however, that in the construction and maintenance of any pole line facilities which Licensee may install, Licensee agrees to conform to the requirements of the latest edition of the National Electric Safety Code, all state and local codes, and City's Construction Specifications. Because the parties agree that operating practices are such that poles jointly used by City and Mcensee should be owned and maintained by City, Licensee agrees that City has the option to purchase any poles which Licensee may have installed end on which City may later desire to place its facilities, for a price equal to Licensee's installed cost of such poles, less depreciation on such poles, calculated at City's then applicable rates of depreciation. After such purchase by City, Licensee's equipment on any such poles will be subject to all the terms of this agreement, including the payment provided in paragraph 9. 5. Non-exclusive Use. City reserves to itself the right to maintain such poles and to operate its facilities in such manner as will best enable it to fulfill its own service requirements, and to grant to others the right to place and maintain facilities upon such poles, and City will not be liable to Licensee for any interruption to Licensee's service or for any interference with the operation of Licensee's equipment arising in any manner from the use of such poles and the facilities by City or others to whom such rights are granted. 6. Permits by Licensee. Licensee must obtain from public authorities and private owners of real property any and all permits, licenses, or grants necessary for the lawful exercise of the permission granted by any application approved under this agreement. Further, all applications approved under paragraph 2 are conditional upon Licensee submitting to City evidence of compliance with the foregoing requirements prior to placing equipment upon such poles. Compliance with this provision is a continuing condition of the use of poles by Licensee and the sole responsibility of Licensee. 7. Relocation Requirements. Upon notice from City, Licensee must at any time, at its own sole risk and expense, relocate, replace or renew Licensee's equipment or transfer it to substituted poles, or perform any other work in connection with its equipment that may be required by City; provided, however, that in cases of emergency, City may, at Licensee's sole risk and expense, relocate or replace such equipment, transfer it to substituted poles or perform any other work in connection with the equipment that may be required in the maintenance, replacement, removal or relocation of the poles, or the facilities on such poles or which may be placed thereon, or for the service needs of City, and Licensee, on demand, must reimburse City for the entire expense incurred. 8. Removal by Licensee. Licensee may at any time remove its equipment from any of such poles and, in each such case, Licensee must immediately give City written notice of such removal in the number of copies and in the form as from time to time prescribed by City. Removal of such equipment from any poles witl constitute a termination of Licensee's right to use such poles. 9. Rental Pole Use Fee. For authorized attachments made to poles covered by this agreement, Licensee shall pay to City, on or before January 30~ of each year, an amount equal to 40% of the schedule of pole prices established by the City, divided by the 35-year estimated pole life. The rental 3- Pole Contact Agreement F:\USER\PAUL\Telecommunications\Forms~pole attachment ashland 12-99.wpd amount shall be based upon the number of authorized attachments on City's poles as of the December 30~h preceding the due date. 9,1. Should any unauthorized attachments be discovered by City, City will charge Licensee five times the annual rental rate from the date the attachment was installed until the appropriate rental rate is paid. 9.2. Annual rental charges will be subject to review every year from the date of this agreement. City will give Licensee 90 days written notice of any increase in the rate of the annual rental charges. Annual rental charges may also be adjusted as required by applicable state statutes or regulatory determination. 10. License Only. No use, however extended, of such poles under this agreement creates or vests in Licensee any ownership or property rights, but Licensee's rights will be and remain a mere license, which as to any padicular poles may be terminated at any time by City upon 30 days written notice to Licensee, and Licensee must remove its equipment from such poles within 30 days. Nothing in this agreement is to be construed to compel City to maintain any particular poles for a period longer than demanded by its own service requirements. 11. Damage by Licensee. Licensee must exercise special precautions to avoid Licensee's causing damage to the facilities of City and to the facilities of others located as permitted by City and Licensee must assume all responsibility for any and all loss from such damage. Licensee must make an immediate report to City of the occurrence of any such damage and will, on demand, reimburse City for the entire expense incurred in making repairs. 12. Taxes. Licensee will promptly pay any tax, fee, or charge that may be levied or assessed against City's poles or property solely because of their use by Licensee. If Licensee should fail to pay any such tax or assessment on or before such tax or assessment becomes delinquent, City, at its own option, may pay such tax on account of Licensee, in which case Licensee will promptly reimburse City for the full amount of tax so paid. 13. Indemnification. Licensee will indemnify and hold harmless City, its officers, employees, successors and assigns, against and from any and all claims, demands, causes of action, damages, costs or liabilities, at law or in equity, of every kind and nature whatsoever, directly or proximately resulting from or caused by: 13.1. the installation, maintenance, use or existence of Licensee's equipment on such poles; or 13.2. any interruption, discontinuance, or interference with Licensee's service to any of its subscribers occasioned or claimed to have been occasioned by any action of City pursuant to or consistent with this agreement unless caused solely by the negligence of City. Licensee must, upon demand, and at its own sole risk and expense, defend any and all suits, actions, or other legal proceedings which may be brought or instituted by third persons against City, or its successors or assigns, on any such claim, demand, or cause of action, and must pay and satisfy any judgment or decree which may be rendered against City, or its successors or assigns, in any such suit, action, or other legal proceeding; and further, Licensee must reimburse City for any and all legal expense incurred in connection therewith, including appeals. 14. Insurance. Licensee must comply with all applicable Workers' Compensation and Employers' Liability Acts of the State of Oregon and must furnish proof of such coverage satisfactory to City prior to commencing work. 14.1. Without limiting any liabilities or any other obligations of Licensee, City may require Licensee, prior to placing equipment upon any poles, to secure and continuously carry with insurers acceptable to City the following insurance coverage: 4- Pole Contact Agreement F:\USER~PAUL\Telecommunications~Forms\pole attachment ashland 12o99.wpd Commercial General Liability insurance with a minimum single limit of $1,000,000. The coverage must include: Bodily Injury and Property Damage Liability Contractual Liability, to protect against and from all loss by reason f injury to persons or damage to property including Licensee's own workers and all third persons, and property of City and all third padies based upon and arising out of Licensee's operations, including the operations of its subcontractors on any tier. Business Automobile Liability insurance with a minimum single limit of $1,000,000 for bodily injury and property damage with respect to Licensee's vehicles whether owned, hired or non-owned, assigned to and used in the performance of the work. 14.2. The policies must include i) provisions or endorsements naming City, its officers and employees, as additional insureds, and ii) a cross-liability and severability of interest clause. 14.3. All policies required by this agreement must include provisions that such insurance is primary insurance with respect to the interests of City and that any other insurance maintained by City is excess and not contributory insurance with the insurance required of Licensee, and provisions that such policies must not be canceled or their limits of liability reduced withgut 30 days prior written notice to City. A certificate in a form satisfactory to City certifying to the issuance of such insurance, must be furnished to City. Commercial general liability coverage written on a "claim-made" basis, if any, must be specifically identified on the cedificate. If requested by City, a copy of each insurance policy, certified as a true copy by an authorized representative of the issuing insurance company. must be furnished to City. 14.4. City must be notified by Licensee of any commercial general liability policies written on a "claims-made" form. Such insurance policies written on a "claims-made" basis must be maintained by Licensee for a minimum period of five years after the completion of this agreement and City may, at its discretion, require Licensee, at Licensee's sole expense, to institute other measures to guarantee future coverage for claims as contemplated by this agreement. 14.5. It is understood that the cost of insurance provided by Licensee under this agreement must be at Licensee's expense. 15. Performance Bond. City may require Licensee to furnish a bond to cover the faithful performance by Licensee of its obligations to make the payments provided for in this agreement; to pay the premiums for the insurance provided for in paragraph 14; and to remove or to pay for the removal of its equipment from poles, or any of them, if this agreement should be terminated in whole or in part pursuant to paragraph 17 or paragraph 22. Any such bond must be issued by a commercial bonding company selected by Licensee and satisfactory to City; must not be subject to termination or cancellation except upon 120 days prior written notice by certified mail to City; must be in such form and in such amount as City may specify from time to time; and, subject to termination or cancellation as provided in this paragraph, must be maintained in full force and effect throughout the life of this agreement. The initial bond under this paragraph is to be in the amount of ~ 16. Default and Remedies. If Licensee defaults in any of its obligations under this agreement and if such default continues for 30 days after written notice, or if Licensee should fail, after 20 days written notice, to maintain the bond required by paragraph 15, City may, by a written notice to Licensee, immediately terminate its participation under this agreement or immediately terminate any or all permits granted by it, and Licensee must remove its equipment from the poles to which termination applies within 30 days from such notification. 17. Reimbursement to City. If Licensee should default in the removal of its equipment from any pole within the time allowed for such removal or default in the performance of any other work which it is obligated to perform under this agreement. and cause City to reschedule the removal of the pole to a later date, Licensee must pay to City a $100 return-trip fee for each pole, plus City's current flat rate pole 5- Pole Contact Agreement F:\USER\PAUL\Telecommunications\Forms~ole attachment ashlan~J 12-99.wpd removal cost to remove the old pole, or City may elect to do such work at Licensee's sole risk and expense, and Licensee, on demand, must reimburse City for the entire expense incurred. 18. Attorney Fees. If City should bring any suit, action or other legal proceeding against Licensee, it shall be entitled to recover, in addition to any judgment or decree for costs, such reasonable attorney's fees as it may have incurred in such suit, action, or other legal proceeding, including appeals. 19. Waiver. The failure of City to enforce any provision of this agreement or the waiver thereof in any instance is not be construed as a general waiver or relinquishment on its part of any such provision, but the same is to nevertheless be and remain in full force and effect. 20. Payments. All amounts payable by Licensee to City under the provisions of this agreement are payable, unless otherwise specified, within 30 days after presentation of bills therefor. Nonpayment of any such amount when due constitutes a default under this agreement. 21. Non Exclusivity, Nothing contained in this agreement is to be construed as affecting any rights or privileges previously conferred or which may conferred by City in the future, by contract or otherwise, to others not parties to this agreement to use any poles covered by this agreement and City has the right to grant, continue and extend such rights or privileges. The privileges granted to Licensee are at all times subject to any such contracts and arrangements. 22. Term. Unless sooner terminated as provided in this agreement, this agreement will continue in effect for a term of five years from the date signed by the City. Either party may terminate its participation in whole or in part by giving the other party at least six months written notice. All rights and privileges of Licensee as to the poles affected by such notice will immediately terminate and Licensee must remove its equipment from such poles within the six-month notice period. 23. Assignment. Licensee may not assign, transfer, or sublet any privilege granted to it under this agreement without the prior written consent of City, but otherwise, this agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. 24. Prior Agreements Superceded. This agreement supersedes all previous agreements between City and Licensee for attachment and maintenance of Licensee's facilities on City's poles within the locality covered by this agreement. 25. Notice. Wherever in this agreement notice is provided or required to be given by one party to another, such notice shall be in writing and transmitted by United States mail or by personal delivery: To Licensee: Pete Lovrovich kshland Fiber Network 90 i'~orth 'qonnta~n ,Ashland, OR q7q20 To City: City Administrator City of Ashland, Oregon 20 East Main Street Ashland, Oregon 97520 or such other address as either party may, from time to time, designate in writing for that purpose. Dated this / / 'j:~ day of "~-j..)r~,--~-,---~--- , 2000 Licensee: Tit e: By: Title: City of Ashland 6- Pole Contact Agreement F:~USER\PAUL\Telecommunications~Forms~ole attachment ashland 12-99.wpd