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HomeMy WebLinkAboutResolution - 2526 - Contract - NTS Communications - Communication Services, Pole Usage - 02_12_1987Resolution #2526 February 12, 1987 Agenda Item #21 DGV:js RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract by and between the City of Lubbock and NTS Communications, Inc., attached here- with, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Res- olution as if fully copied herein in detail. Passed by the City Council this 12th day of February 1 1987. 'B. C. McMINN, MAYOR ATTEST: , City Secretary APPROVED AS TO CONTENT: Carroll McDonald, Director of Electric Utilities APPROVED AS TO FORM: uonala u. Vanalver, First ASS City Attorney Resolution #2526 February 12, 1987 Agenda Item #21 THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § THAT subject to the terms, conditions and provisions herein contained, the City of Lubbock, Texas, hereinafter referred to as "City," does hereby enter into this Agreement with NTS Catnmunica- tions, Inc., hereinafter referred to as Licensee;" WITNESSETH: WHEREAS, Licensee proposes to furnish telephone communica- tion services to residents of the City of Lubbock, Texas, and vicinity, and the Licensee will need to erect and maintain aerial cables, wires and associated appliances within the area to be served, and desires to attach such cables, wires and appliances to poles of the City; and WHEREAS, the City is willing to permit, to the extent it may lawfully do so, the attachment of said cables, wires and appli- ances to its poles where, in its judgment, such use will not in- terfere with its own service requirements, including considera- tions of economy and safety; NOW THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto do hereby mutually covenant and agree as follows: 1. Licensee covenants that it will utilize the electric utility pole installations of the City where available and necessary to carry out its obligation under the 1 terms and conditions of its franchise from the City of Lubbock. Provided, however, before making attachments to any pole or poles of City, Licensee shall make writ- ten application at least thirty (30) days prior to the intended connection, addressed to the Director of Lubbock Power and Light or his agent and receive a per- mit therefor in such form as may from time to time be prescribed by the City. The application will include detailed drawings of the proposed work and specific lo- cation data of the pole. 2. Licensee shall, at its own expense, make and maintain said attachments in safest condition and in good repair and in a manner suitable to the City; and so as will not conflict with the use of said poles by the City or by other Licensees or permittees currently using said poles, or interfere with the working use of facilities thereon or which may from time to time be placed thereon by City. Licensee shall at any time, at its own expense, upon adequate notice from the City, promptly relocate, replace or remove its facilities placed on said poles and transfer them to substituted poles, or perform any other work in connection with said facilities that may be required by the City; pro- vided, however, that in cases of emergency the City may arrange to relocate, replace or remove the facilities placed on said poles by Licensee, transfer them to sub- stituted poles or perform any other work in connection with said facilities that may be required in the main- tenance, replacement, removal or relocation of said poles, the facilities thereon, or which may be placed thereon, or for the service needs of the City, and the Licensee shall, on demand, reimburse the City for the expense thereby incurred. In the event the City should, in case of emergency, arrange to relocate, re- place or remove facilities placed on said poles by Li- censee, or in the event the City should transfer them to substituted poles or perform any other work in con- nection with said facilities which may be required in maintenance, replacement, removal or relocation of said poles, the facilities thereon or facilities which may be placed thereon, the Licensee hereby waives any and all claims against the City arising from such action on the part of the City, and the Licensee shall indemnify, save and hold harmless the City from any and all claims for injuries and damage as a result of the City taking - 2 - any of such actions as set out in this paragraph, and said Licensee hereby waives all claims against the City for liability for interference with service because of any activity of the City during such emergencies or repair of City facilities. Licensee agrees to make no claims whatsoever against the City for any activities on the part of the City taken under any provisions of this paragraph. 3. Licensee's cables, wires and appliances, in each and every location, shall be erected and maintained in ac- cordance with the requirements and specifications of the City, and in compliance with any rules or ordi- nances of the City now or hereafter placed in effect by the City or other authority having jurisdiction. 4. In the event that any pole or poles of the City to which Licensee desires to make attachments are inade- quate to support the additional facilities in accor- dance with the aforesaid specifications, the Licensee shall indicate on the application the changes necessary to provide adequate poles, thereby requesting that these changes be made. The City will replace such in- adequate poles with suitable poles and Licensee will, on demand, reimburse the City of the entire nonbetter- ment portion of the cost and expense thereof, including the increased cost of larger poles, sacrificed life value of poles removed, cost of removal less any sal- vage recovery, and the expense of transferring the City's facilities from the old to the new poles. Where Licensee's desired attachments can be accommodated on present poles of the City by rearranging the City's fa- cilities thereon, Licensee will compensate the City for the full expense incurred in completing such rearrange- ment. Licensee will also, on demand, reimburse the owner or owners of other facilities attached to said poles for any expense incurred by it or them in trans- - 3 - ferring or rearranging said facilities. Any strength- ening of poles (guying) required to accommodate the at- tachments or Licensee shall be provided by and at the expense of Licensee. 5. The City reserves to itself, its successor and assigns, the right to maintain its poles and to operate its fa- cilities thereon in such manner as will best enable it to fulfill its own service requirements. The City shall not be liable to Licensee for any interruption to service of Licensee or for interference with the opera- tion of the cables, wires and appliances of Licensee arising in any manner out of the use of the City's poles hereunder. 5. The City, because of the importance of its service, re- serves the right to inspect each new, changed or rear- ranged installation of Licensee on its poles; and Li- censee shall, on demand, reimburse the City for the ex- pense of such inspections. Such inspections, made or not, shall not operate to relieve Licensee of any re- sponsibility, obligation or liability assumed under this Agreement. 7. Licensee shall pay to the City, for attachments made to poles under this Agreement, a rental at the rate of FIVE AND N0/100 DOLLARS ($5.00) per pole per year. Said rental shall be payable semi-annually in advance on the first day of January and the first day of July of each year during which this Agreement remains in ef- fect. Semi-annual rental payments shall be based on the number of poles upon which attachments are being maintained on the first day of May and the first day of November, respectively. The first payment of rental hereunder shall include pro rata amount as may be due for use of poles from the effective date hereof. A ten percent (10%) late payment penalty will be charged if payment is not received by the City of Lubbock by - 4 - 8. Op thirty (30) days after the statement is rendered. This rental fee shall be subject to renegotiation on each five (5) year interval after the approval date of this Agreement. If the parties cannot reach agreement on the rental rate within sixty (60) days after the an- niversary date of this Contract on each fifth (5th) year, then the Licensee shall, within a reasonable time, remove its cables, wires and appliances from all poles of the City. If not so removed, the City shall have the right to remove them at the cost and expense of Licensee and without and liability therefore. Licensee shall exercise such precautions to avoid dam- age to facilities of the City and all other facilities currently supported on said poles, and hereby assumes all responsibility for any and all loss or damage caused by Licensee. Licensee shall immediately report to the Director of Lubbock Power and Light the occur- rence of any damage done by Licensee, and hereby agrees to reimburse the City for the expense incurred in mak- ing necessary repairs. Licensee shall indemnify, protect and save harmless and insure the City from and against any and all claims and demands for damages to property and injury or death to person, including payments made under any workmen's compensation law or under any plan for employee's dis- ability and death benefits, which may arise out of or be caused by the erection, maintenance, present use or removal of said attachments or by the proximity of the respective cables, wires, apparatus and appliances of the parties hereto or by any act of Licensee on or in the vicinity of the city's poles. Licensee shall carry insurance, in such form and in such companies as are satisfactory to the City, to protect the parties hereto from and against any and all claims, demands, actions, judgments, costs, expenses and liabilities of every - 5 - name and nature which may arise or result, directly or indirectly, from or by reason of such loss, injury or damage. The amounts of such insurance against lia- bility due to damage to property shall be in the mini- mum amount of ONE HUNDRED THOUSAND AND N0/100 DOLLARS ($100,000.00) as to any one person and FIVE HUNDRED THOUSAND AND N0/100 DOLLARS ($500,000.00) as to any one accident, and against liability for injuries or death of persons, FIVE HUNDRED THOUSAND AND N0/100 DOLLARS ($500,000.00) as to any one person and ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00) as to any one accident, but in no event will Licensee's liability be limited in the event of loss or damage in excess of such sums. Licensee shall also carry such insurance as will protect it from all claims under any workmen's compensation laws in effect that may be ap- plicable to it. All insurance required shall remain in force for the entire life of this Agreement, and until all Licensee's lines and attachments are removed from City's poles. The company or companies issuing such insurance shall be approved by the City and each policy shall have attached thereto a waiver of subrogation. Licensee shall submit to the City certificates by each company insuring Licensee to the effect that it has in- sured Licensee for all liabilities of Licensee under this Agreement, and that it will not cancel or change any policy of insurance issued to Licensee except after thirty (30) days notice to the City Secretary of the City of Lubbock. 10. Licensee may at any time remove its attachments from any pole or poles of the City that are not needed to carry out its obligation under its franchise from City of Lubbock, but shall immediately give the City written notice of such removal in a form prescribed by the - 6 - City. No refund of any rental shall be due on account of such removal. 11. Upon notice from the City to Licensee that the use of any pole or poles is forbidden by law or objectionable to any public authority, the permit covering the use of such pole or poles shall immediately terminate and the cables, wires and appliances of Licensee shall be re- moved at once from the affected pole or poles. 12. Bills for inspection expenses and the other charges properly prepared and documented under this Agreement other than rentals shall be payable at the office of the Assistant City Manager for Financial services/ Director of Finance, City Hall, Lubbock, Texas, within thirty (30) days after presentation. Nonpayment of bills shall constitute a default of this Agreement. 13. Failure to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and re- main at all times in full force and effect. 14. Nothing herein contained shall be construed as affect- ing the rights or privileges previously conferred by the City, by contract or otherwise, to others, not par- ties to this Agreement, to use any poles covered by this Agreement; and the City shall have the right to continue and extend such rights or privileges. The at- tachment privileges herein granted shall at all times be subject to such existing contracts and arrangements. 15. No use, however extended, of the City's poles under this Agreement, shall create or vest in Licensee any ownership or property rights in said poles, but Li- censee's rights therein shall be and remain a mere li- cense. Nothing herein contained shall be construed to compel the City to maintain any of said poles for a pe- - 7 - riod longer than demanded by its own service require- ments. 16. If Licensee shall fail to comply with any of the provi- sions of the Agreement, including the specifications hereinabove referred to, or default in any of its obli- gations or covenants under this Agreement, and shall fail within thirty (30) days after written notice from the City to correct such default or noncompliance, or to comply with any covenant herein made, the City may, at its option, forthwith terminate Licensee's franchise granted by the City of Lubbock, but failure to termi- nate the franchise shall not be construed to act as an estoppel or waiver of any cause of action for damages for breach of contract or any other action in law or equity available to City. 17. This Agreement shall become effective upon its execu- tion, and if not terminated in accordance with other applicable provisions of this Agreement, shall continue in effect during the term of the franchise heretofore granted to Licensee by Lubbock City Ordinance. Upon termination of this Agreement by termination of Li- censee's franchise in accordance with any of the terms of said franchise ordinance, Licensee, shall, within a reasonable time, remove its cables, wires and appli- ances from all poles of the City. If not so removed the City shall have the right to remove them at the cost and expense of the Licensee and without any lia- bility therefore. 18. Licensee shall furnish bond or evidence of contractual insurance coverage in an amount not less than FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) in a form and with companies satisfactory to the City to guarantee the payment of any sums which may become due to the City for rentals, inspections, or for work performed for the benefit of the Licensee under this Agreement, - 8 - including the removal of attachments upon termination of this Agreement by any of its provisions. 19. A complete set of updated maps showing all cable facil- ities and locations and specifying City poles shall be provided to the City as requested ninety (90) days af- ter execution of this Agreement. 20. Subject to all other provisions of this Agreement, this Agreement shall extend to and bind the successors and assigns of the parties thereto. EXECUTED by the duly authorized officers of NTS Communica- tions, Inc., and by the Mayor of the City of Lubbock, Texas, in duplicate on this the 32th day of Fahrirary , 1987 CITY OF LUBBOCK: N COMMUNICAAo TIONS, INC. X'�C' B. C. McMINN, MAYOR PRES ENT ATTEST: Ranette d, City Secreta APPROVED AS TO CONTENT: Carroll McDonald, Director of Electric Utilities APPROVED AS TO FORM: Donald G. Vandiver, First Assistant City Attorney ATTEST: Secretary - 9 -