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
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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
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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
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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:
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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
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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
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