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HomeMy WebLinkAboutResolution - 2573 - Lease Agreement - CESC - Electronic Communication Cables - 05/14/1987DGV:js RESOLUTION Resolution #2573 May 14, 1987 Agenda Item #26 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 Lease Agree- ment by and between the City of Lubbock and Commodity Exchange Services Com- pany for the installation of electronic communication cables in the public right-of-way, attached herewith, 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 14th day of May , 1987. Z& G B. C. MCMIN , MAYOR ATTEST:. Ranette o d, City Secretary APPROVED AS TO CONTENT: Carroll McDonald, Director of Electric Utilities APPROVED AS TO FORM: Odned G. Vandiver, First Assistant City Attorney Resolution #2573 THE STATE OF TEXAS 5 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK 5 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 Commodity Ex- change Services Company, hereinafter referred to as "Licensee;" WITNESSETH: WHEREAS, Licensee proposes to install electronic communication cables in the public right-of-way of the City of Lubbock, Texas, pursuant to a Street Use License granted by the City Council upon Mayes 1987, 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 ap- pliances 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 mutu- ally 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 terms and conditions of its license 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 connec- tion, 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 ade- quate 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; 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 expense thereby incurred. In the event the City should, in case of emergency, arrange to relocate, replace or re- move 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 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 - 2 - 3. 4. all claims against the City for liability for interfer- ence 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 un- der any provisions of this paragraph. Licensee's cables, wires and appliances, in each and every location, shall be erected and maintained in accor- dance 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. 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 nonbetterment 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 transfer- ring 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 facilities 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 transferring or re- arranging said facilities. Any strengthening of poles (guying) required to accommodate the attachments or Li- - 3 - censee shall be provided by and at the expense of Li- censee. 5. The City reserves to itself, its successor and assigns, the right to maintain its poles and to operate its facil- ities 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. C. 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 respon- sibility, 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 effect. 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, re- spectively. 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 re- ceived by the City of Lubbock by thirty (30) days after the statement is rendered. This rental fee shall be sub- ject to renegotiation on each five (5) year interval af- ter the approval date of this Agreement. If the parties - 4 - B. 9. cannot reach agreement on the rental rate within sixty (60) days after the anniversary 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 ex- pense of Licensee and without and liability therefore. Licensee shall exercise such precautions to avoid damage to facilities of the City and all other facilities cur- rently 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 Di- rector 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 re- pairs. 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 com- pensation 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 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 prop- erty shall be in the minimum amount of ONE HUNDRED THOU- - 5 - 10. 11. SAND AND N0/100 DOLLARS ($100,000.00) as to any one per- son and FIVE HUNDRED THOUSAND AND N0/100 DOLLARS ($500,000.00) as to any one accident, and against liabil- ity for injuries or death of persons, FIVE HUNDRED THOU- SAND AND NO/100 DOLLARS ($500,000.00) as to any one per- son and ONE MILLION FIVE HUNDRED THOUSAND AND N0/100 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 applicable to it. All insurance required shall remain in force for the entire life of this Agree- ment, and until all Licensee's lines and attachments are removed from City's poles. The company or companies is- suing such insurance shall be approved by the City and each policy shall have attached thereto a waiver of sub- rogation. 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 un- der 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. 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 no- tice of such removal in a form prescribed by the City. No refund of any rental shall be due on account of such removal. 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, - 6 - wires and appliances of Licensee shall be removed at once from the affected pole or poles. 12. Bills for inspection expenses and the other charges prop- erly prepared and documented under this Agreement other than rentals shall be payable at the office of the Assis- tant City Manager for Financial Services/ Director of Finance, City Hall, Lubbock, Texas, within thirty (30) days after presentation. Nonpayment of bills shall con- stitute 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 con- stitute 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 contractor otherwise, to others, not parties to this Agreement, to use any poles covered by this Agree- ment; and the City shall have the right to continue and extend such rights or privileges. The attachment privi- leges 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 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 de- manded by its own service requirements. 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 obliga- tions 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 com- - 7 - ply with any covenant herein made, the City may, at its option, forthwith terminate Licensee's license granted by the City of Lubbock, but failure to terminate the license 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 license in accordance with any of the terms of said Street Use Li- cense, 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. 18. Licensee shall furnish bond or evidence of contractual insurance coverage in an amount not less than FIVE THOU- SAND AND N0/100 DOLLARS ($5,000.00) in a form and with companies satisfactory to the City to guarantee the pay- ment of any sums which may become due to the City for rentals, inspections, or for work performed for the bene- fit 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 facili- ties 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 as- signs of the parties thereto. - 8 - EXECUTED by the duly authorized officers of Commodity Exchange Services Company and by the Mayor of the City of Lubbock, Texas, in duplicate on this the 14th day of May 1987 . CITY OF LUBBOCK: B. C. McMINN, MAYOR COMMODITY EXCHANPERVICES CO. PRESI bENT ATTEST: ATTEST: Ranett oyd City Secret Se etary APPROVED AS TO CONTENT: i Carroll McDonald, Director of Electric Utilities APPROVED AS TO FORM: e 4Dall d G�-V a �.d 1, ��er, First Assistant City Attorney - 9 -