HomeMy WebLinkAboutResolution - 2089 - Agreement - Trans Video - Aerial Cables Pole Attachment - 07/25/1985DV:rm
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Resolution#2089
July 25, 1985
Agenda Item #19
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 agreement with
Trans Video Corporation, a subsidiary of Cox Cable Communications, Inc.,
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 25th day of
ATTEST:
Ranett Boyd, City Secretary
APPROVED AS TO CONTENT:
c
Carroll McDonald, Director of
Electric Utilities
APPROVED AS TO FORM:
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Donald G. Vandiver, Assistant City
Attorney
Resolution #2089
THE STATE OF TEXAS §
COUNTY OF LUBBOCK � KNOW ALL MEN BY THESE PRESENTS:
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 Trans Video Corporation, a subsidiary of Cox Cable
Communications, Inc., doing business in the City of Lubbock
as Cox Cable Lubbock, hereinafter referred to as "Licensee";
WITNESSETH:
WHEREAS, Licensee proposes to furnish cable television
service 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 throughout
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 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 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 30 days prior to the intended
connection addressed to the Director of Lubbock Power and
Light or his agent and receive a permit therefore in the
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
thorough 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; 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 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 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, replacement, removal or relocation
of said poles, the facilities thereon or 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
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. Licensees 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 facility 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 non -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 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 of Licensee shall be provided by
and at the expense of Licensee.
5. The City reserves to itself, its successors 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, but in accordance with
the specifications herein before referred to. 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
Three and 50/100 dollars ($3.50) per pole per year until
January 1,1986, and Three and 75/100 dollars ($3.75) per
pole per year thereafter. 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, 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 10% late
payment penalty will be charged if payment is not received
by the City of Lubbock by 30 days after the statement is
rendered.This rental fee will be subject to renegotiation on
each five 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 anniversary
date of this contract on each fifth 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 any liability
therefore.
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 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 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
$100,000.00 as to any one person and $500,000.00 as to any
one accident, and against liability for injuries or death of
persons, $500, 000. 00 as to any one person and $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 of 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 waive 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
Lubbock, but shall immediatley 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 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. Non-payment 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.
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 No. 8573. Upon
termination of this agreement by termination of Licensee's
franchise in accordance with any of the terms of said
franchise ordinance, 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
$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, April, 1986.
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 Trans Video
Corporation, a subsidiary of Cox Cable Communications, Inc.,
doing business in the city of Lubbock as Cox Cable Lubbock,
and by the Mayor of the City of Lubbock, Texas, in duplicate
on this the 25th—day of July —, 1985.
CITY OFOenry,
BY:-_-_4ayo�r Alan
A ST:
Ra nette Boyd,City Secretary
AATC:
CARROLL MCDONALD, Director
of Electric Utilities
_..A- F:
D NALD G. VANDIVER, Asst.
City Attorney
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