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HomeMy WebLinkAbout000458 Original ContractPREAMBLE ARTICLE I SCOPE OF AGREEMENT ARTICLE II TERM OF AGREEMENT GENERAL AGREEMENT FOR CITY OF PORT ANGELES POLE CONTACTS City of Port Angeles 1 Record #000458 Public Utility District No. 1 of Clallam County, a municipal corporation organized under the laws of the State of Washington (hereinafter called the "Licensor"), and City of Port Angeles (hereinafter called the "Licensee mutually agree that the following terms and conditions shall govern Licensee's contact on and use of Licensor's poles located outside The City of Port Angeles and in Clallam and Jefferson Counties, State of Washington, as Licensor may, upon application as hereinafter provided, permit Licensee to use. A. This agreement shall be in effect in the areas in which both of the parties render service in the state of Washington, and shall cover all poles of the parties now existing or hereafter erected in the above territory when said poles are brought under this agreement in accordance with the procedure hereinafter provided. B. The Licensee's use of such poles shall be confined to supporting those cables, wire, and appliances, together with associated messenger cables and other appurtenances, all hereinafter called "equipment," which the Licensor shall have given the Licensee written permission hereunder to install. C. The Licensor may permit the Licensee to attach such equipment to poles which are jointly used by the Licensor and other utilities, in which case the Licensee shall be responsible to the others also attached to Licensor's poles to the same extent as though their equipment were property of the Licensor; and the Licensee shall indemnify the others again and hold them harmless from any and all damage and liability.incident to the installation, presence, maintenance, or use of the Licensee's equipment upon such jointly used poles. The Licensor shall collect and retain all amounts payable by the Licensee under the provisions of Article VIII hereof for the privilege of placing and maintaining said equipment upon said jointly used poles. Unless sooner termination as herein provided and subject to the provisions of Article III, Termination of Agreement, and Article IV, Defaults, herein, this agreement shall continue in effect from year to year. ARTICLE III TERMINATION OF AGREEMENT At the expiration of one (1) year from the date hereof, or at any time thereafter, either party hereto may terminate the agreement in whole or in part by giving the other party at least six (6) months written notice to that effect. At the expiration of such six (6) months, all rights and privileges of the Licensee as to the poles affected by said notice shall forthwith terminate. The Licensee shall remove its equipment from the poles within such six (6) months; and if it fails to do so, the Licensor may remove same or have it removed at the Licensee's risk and expense. Any termination of this agreement in whole or in part shall not release either party from any liability or obligation hereunder, whether of indemnify or otherwise, which may have accrued or which may be accruing or which arises out of any claim that may have accrued or may be accruing at the time of termination. ARTICLE IV DEFAULTS A. If the Licensee shall default in any of its obligations under this agreement and such default continues thirty (30) days after due notice thereof in writing by the Licensor, the Licensor may, by written notice to the Licensee, forthwith terminate its participation under this agreement or forthwith terminate any or all permits granted by it hereunder, in which event the Licensee shall be allowed thirty (30) days from such notification within which to remove its equipment from the poles to which such termination applies. B. If the Licensee should default in the removal of its equipment from any pole within the time allowed for such removal or should default in the performance of any other work which it is obligated to do under this agreement, the Licensor may elect to do such work at the Licensee's sole risk and expense, and the Licensee, on demand, will reimburse the Licensor for the reasonable expense thereby incurred. C. In the event of litigation concerning an alleged claim or default in the performance of any of the terms and conditions of this agreement by either party, the substantially prevailing party shall be entitled to receive costs, expenses, and reasonable attorney's fees expended or incurred in connection therewith. ARTICLE V SPECIFICATIONS The use of the poles covered by this agreement shall at all times be in conformity with generally accepted industry methods and shall at all times conform all applicable policies of Licensor to the State of Washington Electrical Construction Code and to the requirements of the National Electrical Safety Code®, most recent edition, and subsequent revisions thereof, except where the lawful requirements of public authorities may be more stringent, in which case the latter will govern. More specifically, the Licensee shall comply with the construction specifications in Exhibit D. ARTICLE VI ESTABLISHING JOINT USE OF POLES AND ANCHORS A. Before the Licensee shall make use of any of the poles and anchors of the Licensor under this agreement, it shall request permission therefore in writing on the application form attached hereto and identified as Exhibit A, and shall comply with the procedure set forth therein and in this article. In addition, the Licensee shall furnish the Licensor detailed construction plans and drawings for each pole line, together with necessary maps, indicating specifically the poles and anchors of the Licensor to be used, the number and character of the circuits to be placed on such poles, any rearrangement of the Licensor's fixtures and equipment necessary, any relocations or replacements of existing poles, and any additional poles or anchors that may be required. B. Within fifteen (15) days after the receipt of such application, the Licensor shall notify the Licensee in writing whether the application is approved or rejected; and if the application is rejected, the Licensor shall specify such corrective measures needed to secure approval. Failure for Licensor to respond in fifteen (15) days shall not automatically grant Licensee a permit for attachment. The Licensor will also inform the Licensee if any additional work will need to be done prior to making contacts. If, in the judgment of the Licensor, joint use under the circumstances is not practical, the Licensor shall have the right to reject the application. Upon receiving a signed copy of the permit, but not before, the Licensee shall have the right to install, maintain, and use its equipment described in the application upon the pole or poles identified therein. Licensee shall abide by any specific limitations or restrictions provided in the permit. Failure to abide by said restrictions shall be a breach of this agreement. C. The Licensee will 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 hereunder; and the Licensee shall submit to the Licensor evidence of compliance with the foregoing requirements prior to or at the time of making application for permission to place such equipment upon such pole or poles. D. The Licensee shall, at its own sole risk and expense, place and maintain its equipment upon such pole or poles: a. In safe condition and in thorough repair. b. In a manner suitable to the Licensor and so as not to conflict or interfere with the working use of such poles by the Licensor or others using such poles, or with the working use of facilities of the Licensor or others upon or from time to time placed upon such poles; provided, however, the Licensee shall not have to rearrange or modify its facilities to accommodate any subsequent attachments. c. In conformity with Exhibit "D" and with all laws, regulations, orders, and decrees of all lawfully constituted bodies and tribunals pertaining to pole line construction, including, but not limited to, the National Electrical Safety Code. E. If, in the reasonable judgment of the Licensor, the accommodation of any of the Licensee's equipment would necessitate the rearrangement of facilities on an existing pole or the replacement of any existing pole to provide adequate pole facilities, the Licensor will indicate on such application the necessary changes and the cost thereof and return it to the Licensee. If the Licensee still desires to use such pole and returns the application marked so to indicate, the Licensor will provide new pole facilities if required. The Licensor and any other utility owning said facilities shall make such transfers or rearrangements of existing facilities as may be required, all to be done at the sole risk and expense of the Licensee. The Licensee, on demand, will reimburse the Licensor and each such other owner for the reasonable expense thereby incurred. F. The Licensee shall at any time, at its own sole risk and expense, upon notice from the Licensor, relocate, replace, or renew such equipment or transfer it to provide increased clearance, or perform any other work in connection with such equipment that may be reasonably required by the Licensor; provided, however, that in case of emergency, the Licensor may, at the Licensee's sole risk and expense, perform any other work in connection with such equipment that may be required in the maintenance, replacement, removal, or relocation of such poles or the facilities thereon or which may be placed thereon, or for the service needs of the Licensor. The Licensee, on demand, will reimburse the Licensor for the reasonable expense thereby incurred. G. If, in the Licensor's reasonable judgment, the Licensee's existing equipment on any pole interferes with or would make substantially more difficult or expensive the placing thereof any additional facilities required by the Licensor, and if such additional facilities could be placed upon such pole by removing the Licensee's equipment therefrom or by rearranging the existing facilities (excluding rearrangements of the Licensee's equipment alone) thereon, the Licensor may notify the Licensee of the rearrangements of facilities or pole replacement and transfers of facilities required in order to continue the accommodation of the Licensee's equipment, together with the cost of making any such changes; and if the Licensee desires to continue to maintain its equipment on such pole and so notifies the Licensor, the Licensor shall make such pole replacement if required, and the Licensor and any other utility owning such existing facilities shall make such rearrangements or transfers, all at the sole risk and expense of the Licensee; and the Licensee, on demand, will reimburse the Licensor and each such other owner for the entire expense thereby incurred. If the Licensee does not so notify the Licensor, the Licensee shall be allowed five (5) days from such notification by the Licensor within which to contact Licensor and arrange to remove its equipment from such pole; provided, however, that the Licensor in any emergency beyond its control, may require the Licensee to remove its equipment in the time required by such emergency. If the Licensee does not contact Licensor within the five (5) day period, or in such shorter time as required by emergency, or if Licensee has contacted Licensor and Licensee's plan for removal is not acceptable given the circumstances, the Licensor may remove the Licensee's equipment and the Licensee, on demand, will reimburse the Licensor for the reasonable expense thereby incurred. H. Nothing in this agreement shall be construed to obligate the Licensor to grant the Licensee permission to use any particular pole or poles. If such permission is refused, the Licensee shall be free to make any other arrangement it may wish to provide for its equipment. I. No use, however extended, of any of such poles under this agreement shall create or vest in the Licensee any ownership or property rights therein, but the Licensee's rights therein shall be and remain a mere license, which as to any particular pole or poles may be terminated regardless of Licensee's breach at any time by the Licensor upon thirty (30) days written notice to the Licensee, and the Licensee shall remove its equipment from such pole or poles within said thirty (30) days; provided, however, that in cases where the Licensor, for reasons beyond its control, cannot maintain a pole or poles in the existing location for such thirty (30) days, the Licensee will remove its equipment in the time required by the Licensor. In the event of Licensee's breach of this agreement, Licensee shall remove all equipment immediately upon Licensor's demand. Nothing herein contained shall be construed to compel the Licensor to maintain any particular pole or poles for a period longer than demanded by its own service requirements. J. In those cases where the Licensee's anchoring requirements are not coincident with those of the Licensor, the Licensee shall, at its own sole risk and expense, place its own guys and anchors. K. When existing anchors are adequate in size and strength to support the combined loads of both parties, the Licensee may, after written request and approval of the Licensor, attach its guys thereto and pay a one -time anchor license fee (see Exhibit E). When the Licensor determines the existing anchor to which the Licensee desires to attach is inadequate to hold the tensions of both parties, the Licensee can either pay the Licensor the cost to replace the anchor with one of adequate strength or install a separate anchor. If, at any time, the Licensor of the pole increased it own facilities and as a result the anchor is no longer adequate to support the combined load, and the Licensor replaces the existing anchor with one of adequate size and strength, the Licensee shall pay the Licensor one -half of the value in place of the new anchor (see Exhibit E). The Licensor may require the Licensee to install its own anchor. Each party shall transfer its own guys. L. The Licensee shall, at its own expense, make attachments in such manner as not to interfere with the service of the Licensor and shall utilize guys and anchors to sustain any unbalances loads caused by its attachments. M. Upon completion of the attachments, the Licensee shall date and sign the post inspection form (Exhibit B) and submit it to the Licensor no later than 30 (thirty) days from the date the attachments were connected. N. The Licensee may at any time remove its equipment from any of such poles, and in such case the Licensee shall immediately give the Licensor written notice of such removal in the number of copies and in the form of Exhibit C attached hereto or as may be from time to time prescribed by the Licensor. Removal of such equipment from any pole and submittal of the proper Exhibit C shall constitute a termination of the Licensee's right to use such pole and obligation to pay for such use. Advance payment for contacts that are removed during the subsequent period will not be prorated or refunded. O. The Licensee shall at any time, at its own sole risk and expense, upon notice from the Licensor, relocate, replace, or renew such equipment or transfer it to substituted poles, or temporarily relocate such equipment in order to provide increased clearance, or perform any other work in connection with such equipment that may be reasonably required by the Licensor; provided, however, that in cases of emergency, the Licensor may, at the Licensee's sole risk and expense, relocate, replace, or renew such equipment, transfer if to substituted poles, or perform any other work in connection with such equipment that may be required in the maintenance, replacement, removal, or relocation of such poles or the facilities thereon, or which may be placed thereon, or for the service needs of the Licensor, and Licensee, on demand, will reimburse the Licensor for the reasonable expense thereby incurred. P. The Licensee shall not assign, transfer, or sublet any privilege granted to it hereunder without the proper consent in writing of the Licensor; but otherwise this Agreement shall inure to the benefit of and be binding upon the heirs and successors and assigns of the parties hereto. Assignments of this Agreement to Licensee's affiliates in connection with the financing and refinancing, from time to time, of the Licensee's business shall be permitted upon written notice to the Licensor. ARTICLE VII MAINTENANCE OF POLES AND ATTACHMENTS The Licensor reserves to itself the right to maintain its poles and to operate its facilities thereon in such manner as will best enable the Licensor to fulfill its service requirements. The Licensor shall not be liable to the Licensee for any interruption to the Licensee's service or for any interference with the operation of the Licensee's equipment arising from the maintenance of poles and the facilities, where the Licensor has exercised reasonable diligence and care. ARTICLE VIII LICENSE FEES A. For the privilege of placing and maintaining its equipment upon the Licensor's poles, the Licensee will pay to the Licensor Annually, in advance, amounts to be computed on or about the first days of July of each calendar year during the existence of this agreement. The Licensor will keep the records of the number of poles contacted. This total shall include all new contacts that have been installed during the preceding six -month period and shall be reduces by the number of all attachments removed. This tabulation shall indicate the number of poles on which license fees shall be paid by the Licensee. B. The pole license rate will be established by the Licensor, using the following formula and factors: License Rate (PV) (ACR) (PR). PV Accumulated Average Pole Value. ACR Annual Cost Ratio. PR Pole Use Ratio. PV Calculation A B C (A) Pole plant value at the end of preceding calendar year. (B) 15% adjustment for crossarms, fixtures, etc. (C) Total number of poles in service. ACR Calculation (A) (B) (C) (D) (E) (F) (A) Current interest rate. (B) Depreciation rate based on 25 years. (C) Distribution Expense: Operation Distribution Plant (D) Distribution Expense: Maintenance Distribution Plant (E) Administrative General Expense Total Plant (F) Taxes: Utility Tax Privilege Tax Total Plant PR Calculation P -(S1 +S2... +SN) +SN N P SN Space assigned to party whose PR is to be calculated. S1 Space assigned to first party. S2 Space assigned to second party. S3 Space assigned to third party. P Total pole length. N Total of parties on pole. The applicable pole license rate computation will be detailed in Exhibit E. The Licensor may from time to time, but not more frequently than every year, increase or decrease the pole license rate as the factors above noted change. The Licensor will notify the Licensee at least four (4) months prior to the next annual payment of any change in the pole license rate. Licensee shall have the opportunity to provide comment and input to any rate change. If such changed rate is not acceptable to Licensee, Licensee may terminate this agreement as hereinafter provided. The parties hereto may, by mutual agreement, change the rate formula or factors listed above if industry changes so warrant (applicable rate found in Exhibit E). C. The fees herein provided for shall be paid within thirty (30) days after the bill has been mailed to the Licensee. D. The license fees per anchor shall be a one -time, up -front fee equal to 50 percent of the Licensor's unit cost of installation (applicable rate found in Exhibit E). This fee shall be paid at the time of the application and prior to the installation of any facilities. ARTICLE IX UNAUTHORIZED POLE CONTACTS In the event the Licensee contacts any pole of the Licensor without following the procedures outlined in Article VI, the Licensee will pay $50.00 for each unauthorized contact, and such license fees as would be charged if the connection was authorized. Unless evidence to the contrary is provided, or Licensor has reason to suspect a longer period, Licensor may assume that any unauthorized contacts have been in place for twelve (12) months. Said penalty shall be paid by the Licensee within thirty (30) days of the date the Licensor notified the Licensee of the unauthorized pole contact. In addition to the payment of the penalty for unauthorized contacts, within fifteen (15) days of notification the Licensee shall submit application for permission for the contact as outlined in Article VI. If the installation is not approved by the Licensor, the Licensee shall be given thirty (30) days in which to modify the installation and resubmit the application or to complete removal of the unauthorized contact. ARTICLE X EXISTING RIGHTS OF OTHER PARTIES The Licensor has not and shall not grant any exclusive right, permit, or privilege to the Licensee, and nothing herein contained shall be construed as affecting any rights or privileges previously conferred or which may be conferred hereafter by the Licensor, by contract or otherwise, to others not parties to this Agreement to use any poles covered by this agreement; and the Licensor shall have the right to continue and extend such rights or privileges. Both parties recognize that the joint use of poles for contact purposes can result in lower cost service for all of our customers; therefore, both parties agree to cooperate with all users to achieve that end. ARTICLE XI WAIVER OF TERMS OR CONDITIONS The failure of the Licensor 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. ARTICLE XII PAYMENT OF TAXES Each party shall pay all taxes and assessments lawfully levied on its own property upon said jointly used poles, and any taxes or assessments which are levied on said joint poles shall be paid by the Licensor thereof; but any tax, fee, or charge levied by an agency with the legal authority to do so on Licensor's poles solely because of their use by the Licensee shall be paid by the Licensee to the Licensor as an additional license fee. ARTICLE XIII INVOICES. PAYMENTS. AND LATE CHARGES License fees for contacts of poles shall be invoiced semi annually, on or immediately after January 1 and July 1 of each year, and shall, unless otherwise specified, be payable within thirty (30) days after the invoice has been submitted. Anchor licenses shall be paid at the time of the application and prior to the installation of any facilities. Penalties for unauthorized contacts shall be paid by the Licensee within thirty (30) days of the date the Licensor notified the Licensee of the unauthorized pole contact. All payments not received within the times prescribed herein shall be subject to a late charge of 1.5 percent per month, based on an annual rate of 18 percent. If payment is not made within ninety (90) days, the Licensee shall be considered in default of its obligations under this agreement. ARTICLE XIV SERVICE OF NOTICES Whenever in this agreement notice is provided to be given by either party hereto to the other, such notice shall be in writing and given by letter mailed, or by personal delivery, to the District at its office at Post Office Box 1090, 2431 East Highway 101, Port Angeles, WA 98362; or to or to such other address as either party may from time to time designate in writing for that purpose. ARTICLE XV LIABILITY AND DAMAGES A. The Licensee will exercise all reasonable precautions to avoid damage to the facilities of the Licensor and others supported on such poles; and the Licensee assumes all responsibility for any and all loss from such damage. The Licensee will make an immediate report of the occurrence of any such damage to the Licensor of the damaged facilities and, on demand, will reimburse said Licensor for the reasonable expense incurred in making repairs. The Licensee will employ qualified and responsible personnel to perform work associated with the installation of facilities governed by this agreement. B. In addition to all indemnity and assumption of liability provisions herein contained, it is further expressly agreed that: a. The Licensee shall compensate the Licensor for any damage to the Licensor's property resulting directly or indirectly from the installation, presence, use, maintenance, repair, or removal of the Licensee's equipment caused by or resulting from the sole negligence of the Licensee. b. The Licensor shall not be liable for any damage to the Licensee's equipment or for any interruption or disturbance of or interference with the Licensee's services to any of its subscribers occasioned by any act or omission of the Licensor, unless said act or omission constitutes gross negligence on the part of the Licensor. c. The Licensee will indemnify, defend, and hold the Licensor harmless from all claims and any loss or damage, including costs and attorneys' fees, arising out of bodily injury to persons or damage to property directly or indirectly caused by or resulting from the Licensee's negligent installation, presence, use, or maintenance of the Licensees equipment on the Licensor's poles or by electric current transmitted by the Licensor's poles or by electric current transmitted by the Licensee's equipment including current from the Licensor's wires and equipment which may for any reason be transmitted to and carried by the Licensor's wires, cables, or other equipment; provided, however, that any current transmitted from the Licensor's wires and equipment is not caused by or resulting from the sole negligence of the Licensor. In cases of concurrent negligence involving the Licensor and the Licensee, the Licensee will indemnify the Licensor only to the extent of the Licensee's negligence. ARTICLE XVI INSURANCE REQUIREMENTS Throughout the life of this agreement, the Licensee will maintain in full force and effect with a carrier or carriers selected by the Licensee and reasonably satisfactory to the Licensor: A. Compensation insurance under and in compliance with all worker's compensation insurance and safety laws of the State of Washington and amendments thereto; B. Bodily injury liability insurance with minimum limits of $1,000,000 each person; C. Property damage liability insurance with minimum limits of $1,000,000 each occurrence and $2,000,000 aggregate; and D. Umbrella coverage minimum limit of $2,000,000. The insurance described in Items B and C above shall also provide contractual liability coverage satisfactory to the Licensor with respect to liability assumed by the Licensee under the provisions of foregoing Article XV when using subcontractors. Written proof of compliance with the requirements of this section shall be filed with and approved by the Licensor prior to signature of this agreement and prior to the expiration of each policy year thereafter. Such insurance coverage shall name the Licensor as an additional insured, and a thirty (30) day notice of cancellation must be given to the Licensor by the insurance company. ARTICLE XVII BOND REQUIREMENTS Requirements of this section are waived for 20 or fewer contacts. The Licensee will furnish a bond issued by a company selected by the Licensee and satisfactory to the Licensor in the amount of ten thousand dollars ($10,000) to cover the faithful performance by the Licensee of all of the terms and provisions of this agreement on its part to be performed. As an option to furnishing an executed bond as provided for above, the Licensee may deposit the sum of ten thousand dollars ($10,000) with the Licensor. The deposit shall be retained in a fund by the Licensor in an interest bearing escrow account in a bank, mutual savings bank, or savings and loan association. Escrow instructions shall be established by the Licensor directing that upon written request of the Licensee, any earned interest remaining after deductions for escrow fees and inflation adjustments shall be released to the Licensee on each anniversary date of this agreement, for the life of this agreement; provided that said funds shall not be returned to the licensee at the termination of the agreement if there are claims by the Licensor outstanding; further provided that payment of any escrow fees charged by the institution shall be the responsibility of the Licensee. Licensor may charge again said bond or deposit immediately upon Licensee becoming indebted to Licensor, for any reason, and without prior notice. ARTICLE XVIII EXISTING CONTRACTS All existing agreements between the parties hereto for pole contacts are by mutual consent hereby abrogated and superseded by this agreement. Nothing in the foregoing shall preclude the parties to this agreement from preparing such supplemental operating routines or working practices as they mutually agree to be necessary or desirable to effectively administer the provision of this agreement. ARTICLE XIX ENTIRE CONTRACT AMENDMENTS This agreement, together with any future addenda incorporated by the preceding paragraphs and any and all exhibits expressed and incorporated herein by reference and attached hereto, shall constitute the whole agreement between the parties. There are no terms, obligations, covenants, or conditions other than those contained herein. Both parties agree that the circumstances may change and that either party may find it necessary to amend any article of this agreement and that notice of intent to amend the agreement shall be submitted in writing to the other party; said notice to contain the full text of the proposed amendment. No modification or amendment of this agreement shall be valid or effective unless evidenced by an agreement in writing signed by both parties. ARTICLE XX AGREEMENT APPROVAL In witness whereof, the parties hereto have caused these presents to be executed in duplicate by their respective officers thereunto duly authorized, on the /day of jikAa, 20/j ATTEST: ATTEST: PUBLIC UTILITY DISTRICT NO. 1 OF CLALLAM COUNTY By: Title: General Manager CITY OF PORT ANGELES By: (;;4"---1617/60•7 /7 A CL• r c-erc Title /2E-ri9a V Gi 4. 0 21c- r