HomeMy WebLinkAboutResolution - 5820 - Joint Utility Pole Usage Agreement - SPPL Inc - Tel. Comm. Services - 04_23_1998RESOLUTION NO. 5820
Item #19
April 23, 1998
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 Joint Utility Pole Usage
Agreement and any associated documents, between the City of Lubbock and SPPL, Inc.,
attached hereto, 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 Resolution as if
fully copied herein in detail.
Passed by the City Council this 23rd c
ATTEST:
a Darnell, City Secretary
APPROVED AS TO CONTENT:
/a4�"
Richard Burdine, ssistant City Manager
AS TO FORM:
ver,
DGV:gs/SPPL,1nc.res
ccdocs/April 13, 1998
RESOLUTION NO.5820
Item # 19
April 23, 1998
AGREEMENT
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
SPPL, Inc., hereinafter referred to as Licensee;
WITNESSETH:
WHEREAS, Licensee proposes to furnish telephone communication 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 appliances to its poles where, in its judgment, such use will
not interfere with its own service requirements, including considerations 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 may utilize the electric utility pole installations of the City where
available and necessary to carry out its obligation under the 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 written 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 permit 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 location 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 reasonably required by the City; provided, 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 substituted poles or
perform any other work in connection with said facilities that may be required in
the maintenance, 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 reasonable expense
thereby incurred. In the event the City should, in case of emergency, arrange to
relocate, replace or remove facilities placed on said poles by Licensee, or in the
event the City should transfer them to substituted poles or perform any other work
in connection with said facilities which may be required in maintenance, replace-
ment, removal or relocation of said poles, the facilities thereon or facilities which
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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 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 accordance with the requirements and specifications of
the City, and in compliance with any rules or ordinances 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 inadequate to support the additional facilities in accordance 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 inadequate poles with suitable poles
and Licensee will, on demand, reimburse the City of the entire betterment 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 salvage 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
3
the City by rearranging the City's facilities thereon, Licensee will compensate the
City for the full expense incurred in completing such rearrangement. 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 transferring or rearranging
said facilities. Any strengthening of poles (guying) required to accommodate the
attachments 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 facilities 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 operation of the
cables, wires and appliances of Licensee arising in any manner out of the use of
the City's poles hereunder.
6. The City, because of the importance of its service, reserves the right to inspect
each new, changed or rearranged installation of Licensee on its poles; and
Licensee shall, on demand, reimburse the City for the expense of such
inspections. Such inspections, made or not, shall not operate to relieve Licensee
of any responsibility, 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 FOUR AND 51/100 100 DOLLARS ($4.51)
per pole per year from the date of execution of this Agreement. On each
July 1 st thereafter, the pole rental rates shall be increased by four percent (4%)
during the term of this agreement Said rental shall be payable and billed semi-
annually in advance on the first day of January and the first day of July of each
4
year during which this Agreement remains in effect. Semi-annual rental payments
shall be based on the number of poles upon which attachments are being
maintained on the first day of each payment period. The first payment of rental
hereunder shall include pro rata amount as may be due for use of poles from the
effective date hereof until the next succeeding adjustment date. A ten percent
(10%) late payment penalty will be charged if payment is not received by the City
of Lubbock by thirty (30) days after the statement is rendered.
8. Licensee shall exercise such precautions to avoid damage 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 Managing Director of Lubbock Power and Light the
occurrence of any damage done by Licensee, and hereby agrees to reimburse the
City for the expense incurred in making necessary repairs.
9. 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 disability 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
5
liabilities of every 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 liability due to damage to property shall be in the minimum
amount of ONE HUNDRED THOUSAND AND NO1100 DOLLARS
($100,000.00) as to any one person and FIVE HUNDRED THOUSAND AND
N01100 DOLLARS ($500,000.00) as to any one accident, and against liability for
injuries or death of persons, FIVE HUNDRED THOUSAND AND N01100
DOLLARS ($500,000.00) as to any one person and ONE MILLION FIVE
HUNDRED THOUSAND AND N01100 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 applicable 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 insured 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
,T
Lubbock, but shall immediately give the City written notice of such removal in a
form prescribed by the 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 removed as soon as reasonably practical 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 Director of Financial Services, 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 remain at all times in full force and
effect.
14. Nothing herein contained shall be construed as affecting the rights or privileges
previously conferred by the City, by contract or otherwise, to others, not parties 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 attachment
privileges herein granted shall at all times be subject to such existing contracts
and arrangements.
7
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 Licensee's
rights therein shall be and remain a mere license. Nothing herein contained shall
be construed to compel the City to maintain any of said poles for a period longer
than demanded by its own service requirements.
16. If Licensee shall fail to comply with any of the provisions of the Agreement,
including the specifications hereinabove referred to, or default in any of its
obligations 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
terminate 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 execution, 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
Licensee's franchise in accordance with any of the terms of said franchise ordi-
nance, 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 the Licensee and without any
liability therefore.
8
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, 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 facilities and locations and
specifying City poles shall be provided to the City as requested ninety (90) days
after 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.
21. If federal or state law changes during the term of this Agreement with respect to
the permissible scope or substantive content of agreements such as this, the City
and Grantee agree that upon final passage of such change in law, this Agreement
shall be amended to comply with such changes if practical or it may be canceled if
the parties agree that amendment is not practical.
E
EXECUTED by the duly authorized officers of SPPL, Inc., and by the Mayor of the City
of Lubbock, Texas, in duplicate on this the 23rd day of April , 1998.
LUBBOCK:CITY OF
..'T
ATTEST:
City Secretary
APPROVED AS TO CONTENT:
Rithard Burdine, Assistant City Manager
APPROVED AS TO FORM:
Ll
G. Vandiver, First Assistant City Attorney
da/dgvI/ddcon/a-spplLdoc
rev. February 19, 1998
SPPL, INC.:
BY:
Title:
ATTEST:
10
RESOLUTION NO 5820
ACCEPTANCE OF FRANCHISE
"The Honorable Mayor and City Council of the City of Lubbock:
S.P.P.L.• Inc. , for themselves, their successors and assigns, hereby accepts the attached franchise
ordinance as finally passed by the City Council of the City of Lubbock on the 22Ld day of AV!
JM, and hereby agrees to be bound by all of its terms and provisions.
GRANTEE:
TITLE:
SENDER:
• Complete Items 1 and/or 2 for additional services.
1 also wish to receive the
• Complete Items 3, and 4a & b.
following services (for all extra
• Print your name and address on the reverse of this form so that we can
fee): -
return this card to you.
• Attach this form to the front of the meliplece, or on the back
If space
11. ❑ Addressee's Address
does not permit.
• Write "Return Receipt Requested" on the mailplece below the article numbar
2. ❑ Restricted Delivery
• The Return Receipt Fee will provide you the signature of the PIG delivers
to and the date of delivery.
..
Consult postmaster for fee.
3. Article Addressed to:
4a. Article Number
S P P L,
Z 2,00 .2M "183
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.
4b. Service Type
❑ Registered ❑ insured ., .
`'Cw�uolc.t�. 'C�, —1,9313 • {3�to
04 Certifies '. 1:1 COD
❑ Express Mail ❑ Return Receipt for
,
er andise
7. Date o
i atur ,
dr sse
ressee's Address (Only if requested ,
and feels paid)
'.
9CEIPT
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US Postal Service
Receipt for Certified Mail
No Insurance Coverage Provided.
Do not use for International Mall See reverse
Sent to
SQPI.
Street Q 'fix I
Post Office, State, S ZIP Cads
VV4m-AmAx Tx fl3-13
Postage
$
Certified Fee
Special Delivery Fee
u)
Restricted Delivery Fee
Return Receipt Showing to
^
Whom h Date Delivered
Rehm Receipt 5flowhq to Whom,
Date, A Addressee's Address
TOTAL Postage & Fees
�.
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Postmark or Date
6 -C'
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Stick postage stamps to articls to cover First -Class postage, Ce
charges for any selected optional services (Ses front), riffled mail fee, and
1. if You want this receipt postmarked, stick the gummed stub to the right of the return
address leaving the receipt attached, and present the article at a st om
window or hand it to your rural carrier (no extra charge), Po ffice service
2. If You do not want this receipt Postmarked, stick the gummed stub to the right of the m
return address of the article, date, detach, and retain the recei
3. If you wart( a return Pt, and mail the article.
receipt, write the Certified mail number and
on a return receipt card, Form 3811. and attach It to the front of theroanidneame and address
gummed ends it space permits. Otherwise, affix to back of articlk Endorse front of article '4
CC
RETURN RECEIPT REQUESTED adjacent to the number: � means � tl1e
4 If Y� ward delivery restricted to the addressee, or to an
addressee, endorse RESTRICTED DELIVERY on the front of the agent of the Cr
5. Enter fees for the services requested in the a (G
receipt: If returnreceipt is requested, check the appficblenb odcven item 1 0l Form 3 ces onthe frord f thi$
6. Save this receipt and present rt d €
You make an inquiry. LL
102595-97-8-0145 (0
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