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S:\Our Docum6nts\Ordinances\04\DISD Fiber lnterlocal Cooperation Agreement.doc
ORDINANCE NO. 2004- /4 /
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO
EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF
DENTON, TEXAS AND THE DENTON INDEPENDENT SCHOOL DISTRICT
REGARDING THE USE OF THE RIGHT OF WAY FOR DISD FIBER OPTIC SYSTEM;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Denton Independent School District, ("DISD"), desires to construct a
fiber optics system operated by DISD in order to interconnect all of DISD's facilities for use in
its computer network, for the purpose of interconnecting all of DISD's schools, support and
administrative facilities on a fiber optics system which DISD believes will provide for a vast
integration of educational materials and exchange of data; and
WHEREAS, there is a valid governmental purpose served by DISD to use City Right of
Way to provide high technology communications capability and connectivity for the DISD in
order that DISD may interconnect its facilities to provide enhanced services to the students of
DISD, as well as to DISD's support and administrative functions; and
WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas
Government Code (Vernon 1994), authorizes the CITY and DISD to enter into an Interlocal
Agreement for the purpose of achieving the governmental functions and providing the services
represented by DISD use of City Right of way, NOW, THEREFORE,
THE COUNC1L OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the Mayor, or in her absence, the Mayor Pro-Tem, is hereby
authorized to execute, on behalf of the City Council of the City of Denton, Texas, an Interlocal
Cooperation Agreement between the City of Denton, Texas and the Denton Independent School
District, ("DISD") for the use of the right of way for DISD fiber optic system, which Interlocai
Cooperation Agreement is attached hereto and incorporated by reference herein.
SECTION 2. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the~dayof ~/~/~ ,2004.
EUL1NE BROCK, MAYOR
S:\Our Documents\Ordinances\04~DISD Fiber Interlocal Cooperation Agreement.doc
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
Page 2 of 2
THE STATE OF TEXAS §
COUNTY OF DENTON §
INTERLOCAL COOPERATION AGREEMENT
USE OF STREET RIGHT-OF-WAY FOR DISD FIBER OPTIC SYSTEM
THIS AGREEMENT is made and entered into by and between the CITY OF DENTON,
TEXAS, a Texas Municipal Corporation (hereinafter "CITY") and the DENTON
INDEPENDENT SCHOOL DISTRICT (hereinafter "DISD"), organized and existing under the
laws of the State of Texas, acting by and through, and under the authority of their respective
governing bodies; and
WI'rEREAS, the CITY and DISD are local governmental entities, both of whom have the
authority to perform the services set forth in this Agreement individually and who mutually
desire to enter into an interlocal cooperation agreement, as provided for in Chapter 791 of the
Texas Governm~t Code (Vernon 2004) in order to maximize the benefits to the citizens of
Denton, Texas derived f~om public funds; and
WHEREAS, DISD desires to construct a fiber optics system operated by DISD in order to
intercoimect all of DISD's facilities for use in its computer network, for the purpose of
interconnecting all of DISD's schools, support and administrative facilities on a fiber optics
system which DISD believes will provide for a vast integration of educational materials and
exchange of data; and
WHEREAS, there is a valid governmental purpose served by this Agreement by DISD to
use City right-of-way to provide high technology communications capability and connectivity for
the DISD in order that DISD may interconnect its facilities to provide enhanced services to the
students of DISD, as well as to DISD's support and administrative functions; and
WHEREAS, the CITY and DISD agree that all payments made in connection with the
governmental functions provided for by this Agreement shall be made fi:om current revenues
available to the paying party and that the payments received are adequate and fairly compensate
the parties for the use of the street right-of-way; and
WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas
Government Code (Vernon 1994), authorizes the CITY and DISD to enter into this Agreement
for the purpose of achieving the governmental functions and providing the services represented
by this collective, cooperative undertaldng;
NOW THEREFORE, the CITY and DISD, for and in consideration of the street right-of-
way and the mutual covenants set forth in this Interlocal Cooperation Agreement do hereby
AGREE as follows:
- zl S:\Our Documents\Cont~cts~04\DISD Fiber Agreement 04 .DOC
ARTICLE I'
INCORPORATION OF DREAMBLES
The preambles to this Agreement are incorporated into this Agreement and are found and
determined to be true and correct.
ARTICLE II
SCOPE OF AGREi~MENT
Denton Independent School District ("DISD") intends to implement its Fiber Optic
System utilizing City of Denton ("CITY") street right-of-way. DISD will own and
provide all of the electronics equipment needed to implement its Fiber Optic System at its
sole cost and expense.
DISD shall furnish, at DISD's own cost and ~xpense, unless otherwise provided herein,
all labor, services, and materials necessary for the installation and connection of DISD's
fiber optic lines to each of the DISD sites.
DISD shall be responsible for providing suitable conduit ingress firom the street right-of-
way to a point as provided for in the construction plans and specifications. DISD shall
provide the construction plans and specifications to the City Engineer of the City of
Denton.
DISD shall promptly provide the CITY with any drawings or by other written document,
as the CITY may require to proceed with the ~work as provided for in this Agreement. All
such drawings and written documents shall be consistent with, and reasonably inferable
15om this Agreement.
CITY and DISD agree that DISD's Fiber Optic System is limited to a point-to-point,
unswitched, private service. CITY and DISD, further agree that DISD's use of the right-
of-way for its fiber optic system shall be limited to DISD operations. Any use of the
DISD Fiber Optic System by other governmental or educational users shall be by separate
agreement and, that DISD will not offer access of the system to the public.
This Agreement is subordinate to CITY's interests in the street right-of-way. CITY
reserves the right to use the street right-of-way and the airspace above the street right-of-
way for any public purpose allowed by law and to do and permit to be done, any work in
connection therewith which may be deemed fiecessary or proper by the CITY, including
but not limited to Denton Municipal Electric,I on, across, along, under or over said street
right-of-way; and whenever by reason of ~aid' work in connection with said other
purposes it shall be necessary by the CITY t9 alter, change, adapt, conform or relocate
DISD's lines or other property in any part of~ the street right-of-way occupied by DISD,
such alterations or changes or relocations ~hall be made by DISD when ordered in
writing by the CITY pursuant to directions fr~m the City Manager without any claim for
reimbursement for the costs of the relocfition or for damages against the CITY;
provided,' that DISD shall at all times bel entitled to receive ~om the appropriate
governmental bodies, excluding the CITY, payment for alteration or relocation of its
Page 2 of 10
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lines or facilities to wh/ch DISD may be lawfully entitled under applicable federal, state
or local laws with respect to relocation payments.
The Agreement is subject to the additional conditions contained in Exhibit "A" attached
hereto and made a part hereof by reference., DISD. shall comply with the additional
conditions contained in Exhibit A.
ARTICLE 1]I
TERM OF AGREEMENT
The CITY and DISD agree that the term of this Agreement shall be five years fi:om the
effective date of this Agreement and DISD shall have the right to renew this agreement for
subsequent five year periods up to a total of 25 years?~ In the event that §791.001(f), or any other
provision of Chapter 791 of the Texas Government Code requires an annual or other period of
renewal of this Agreement, then the parties shall be deemed to have elected to renew this
Agreement annually on the atmiversary of the effectiye date of this Agreement unless the parties
each elect to terminate this Agreement.
ARTICLE Fi
CONSIDERATION TO BE PAID BY DISD TO THE CITY
DISD shall pay to the CITY an annual payment, beginning on the effective date of this
Agreement according to the payment schedule and continuing on each anniversary, set
forth below, so long as this Agreement is in force and effect.
Years 1-5 = $25,000
Years 6-10 = $27,500
Years 11-15 = $30,000
Years 16-20 = $32,500
Years 21-25 = $35,000
Charges for any new DISD facilities to be located on CITY property but outside City
street right-of-way shall be negotiated on a caSe-by-case basis and shall be in a separate
agreement.
Any connection to DM_E poles shall be gbvemed by the attached Pole Attachment
Agreement, Exhibit B, attached hereto and made a part hereof by reference.
This Interlocal Cooperation Agreement is ha}ed on the cable routes indicated on the map
in Exhibit C, attached hereto and made a par~ hereof by reference. Cable routes indicated
on Exhibit C shall not be approved unless ai permit for installation is obtained from the
City Engineer pursuant to Article VI of this agreement. Any consideration for expansion
of these cable routes shall be negotiated on a case-by-case basis and shall be in a separate
agreement.
Page 3 of 10
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ARTICLE V
TERMINATION OF AGREEMENT
Either party may voluntarily terminate this Agreement at any time upon giving to the
other party one hundred eighty (180) days written notice of such intention to terminate;
Provided, however, that CITY and DISD agree that if DISD terminates th/s Agreement
prior to the five (5) year extended term set forth in ARTICLE 1]I, above, DISD will pay
CITY a termination fee as specifically set forth below:
Termination Fee will be 25% of the then in effect annual payment
Either party may terminate this Agreement for cause by reason of the other party's
material breach or default in the performance of this Agreement. The party seeking to
term'mate this Agreement under this provision shall provide the defaulting party written
notice, specifically identifying the breach or default complained of, which notice shall
provide the defaulting party a period of not less than thirty (30) days in which to cure
such breach or default. In the event such breach or default is not fully cured within the
time period specified, then the party seeking to terminate tlfis Agreement shall provide
the defaulting party with further written notice expressly specifying that this Agreement
will be terminated if the breach or default is not wholly cured within ten (10) days after
the receipt of the written notice by the alleged defaulting party. In the event that the
defaulting party fails to cure the breach or default complained of, witkin the time
specified, then this Agreement shall be terminated, and the party terminating this
Agreement may seek appropriate legal relief.
At the time of expiration or termination of this Agreement, DISD shall remove all fiber
optics connections at the CITY right-of-way sites in a careful, prudent manner, unless
otherwise mutually agreed. If the CITY removes DISD fiber optic connections, DISD
shall pay the CITY its charge for removal.
ARTICLE VI
PERMITTING AND INSPECTIION OF THE FIBER OPTIC NETWORK
Prior to perform'mg any work within street right-of-way DISD or it's designated
representative shall obtain a permit from the CITY to provide such work. The application for the
permit shall conta'm plans and specifications for such work. The CITY may utilize such persons
as may be necessary to act as inspectors or agents for the purpose of supervising, in the interests
of the CITY, the materials furnished and the work done by DISD as construction of a project
proceeds. DISD or it's desigmated representative shall pay the City's permitting and inspection
fees. DISD shall pay the City a one percent (1%) development review fee, which is based on
total construction costs. DISD shall pay the City an inspection fee of $50.00 per hour based on
the actual time required to inspect the work performed by the contractor. DISD shall submit "as
built" drawings upon completion of the work.
Page 4 of 10
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ARTICLE VII
USE OF PROPRIETARY 1NFORM_ATION
All data exchanged between CiTY and DISD in connection with this Agreement or in
utilization of the Fiber Optic Network, which is identified as proprietary information, shall be
safeguarded by CITY and DISD to the same extent as CITY or DISD safeguards like information
relating to CITY's or DISD's own business. If, however, such data is publicly available under the
Pubhc Information Act (Chapter 552 nfthe Texas Government Code) or other applicable laws, is
already in either party's possession or known to either party, or was rightfully obtained by either
party fi:om third parties, neither CiTY nor DISD shall bear any responsibility for its disclosure,
inadvertent or otherwise.
CITY acknowledges that certain data pecuhar to DISD contains personally identifiable
information, as that term is defined by the Family Educational Rights and Privacy Act,
concerning students. CITY agrees that in the event that such data comes into the CiTY's
possession that the CITY will not disclose to any individual or entity any personally identifiable
information concerning students of DISD, unless the CITY is required to disclose this
information as a result of an Order issued by a Court of competent jurisdiction.
ARTICLE VIII
OW2qERSHIP AND CONTROL OF PROPERTY
DISD shall own and maintain the fiber optic system that DISD installs in the City street
right-of-way. Signage is required at bore pits during construction indicating the project as a
DISD project with a contact number for a DISD official in charge of the installation of the
fiber optic system.
DISD shall own and maintain all electronic equipment located at each DISD site within
the street fight-of-way.
ARTICLE IX
RESPONSIBILITY FOR MAINTENANCE
DISD shall be solely responsible to determine the location of any problem within the
DISD electronics network and to remedy such problem at DISD's sole cost and expense.
ARTICLE X
HOLD HARMLESS
To the extent allowed by the Constitution and statutes of the State of Texas, and without
waiving any immunity or limitation to liability, DISD agrees to and shall indemnify and hold
harmless CITY, its officers, agents, and emploYees from and against any and all claims, losses,
damages, causes of action, suits, and liability of every kind, including all expenses of litigation,
court costs, and attorney's fees, for injury or death of any person, or for damages to any property;
real, personal, or intellectual, arising out of or in connection with the use, but not the installation
or maintenance, of the fiber optic network the subject of this Agreement, where the injury or
death or damage is caused by the negligence of DISD, its officers, agents, or employees, except
Page 5 of I0
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that DISD assumes no hability for the sole negligent acts of CITY, its officers, agents, or
employees.
ARTICLE XI
CONTRACTOR INSURANCE
INSURANCE AND INDEMNITY. DISD shall provide or cause it's contract to provide the
insurance described below upon execution of this agreement.
Commercial General Liability Insurance. This coverage should be a minimum
Combined Single Limit of $1;000,000 per occurrence for Bodily Injury and Property
Damage. The insurance shall also include coverage for environment impairment.
B. Automobile Liability Insurance.
(1) Minimum Combined Single Limit of $500,000 per occurrence for Bodily Injury
and Property Damage; and
(2) The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of
the hability section in Item 2 of the declarations page which includes coverage for hired,
leased and non-owned vehicles.
C. Worker's Compensation Insurance. In addition to the minimum statutory
requirements:
(1) Employer's Liabihty limits of at least $100,000 for each accident, $100,000 for
each employee, and a $500,000 policy limit for occupational disease; and
(2) The insurer agrees to waive rights of subrogation against the city, its officials,
agents, employees, and volunteers for any work performed for the city by the Licensee.
(3) The Licensee shall comply with the provisions of with Section 406.096 of the
Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation
Commission.
General provisions
(1)
All policies shall be endorsed to read "THIS POLICY WILL NOT BE CANCELLED OR
NON-RENEWED WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE TO THE
OWNER AND THE CITY EXCEPT WHEN THIS POLICY IS BEING CANCELLED
FOR NONPAYMENT OF PREMIUM, IN WHICH CASE 10 DAYS ADVANCE
WRITTEN NOTICE IS REQUIRED".
(2)
Commercial General Liability and Automobile Liability insurance shall be written by
companies with A: VIII or better rating in accordance with the current Best Key Rating
Guide
Page 6 of l0
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(3)
(4)
Commercial General Liability, Automobile Liability, and Excess Liability insurance
policies shall name as "Additional Insured" the Licensor and its officials, agents,
employees, and volunteers.
Certificates of insurance must reflect all coverages and endorsements required by this
section.
(5)
Coverage shall be placed with insurance carriers licensed to do business in the State of
Texas or with non-admitted carriers that have a financial rating comparable to carriers
licensed to do business in Texas approved by the City.
(6) The City and DISD shall be named as additional Insureds under the insurance.
ARTICLE XII
PERFORMANCE BOND
DISD, as required by Texas Government Code, Section 2253.021, shall require any
contractor to execute to the DISD a performance bond in the amount of Fifty Thousand Dollars
($50,000.00) executed by a surety company authorized to do business in the State of Texas in the
amount of the contract. DISD shall file a copy of this bond with CITY.
ARTICLE XffI
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties may agree to settle any disputes under this Agreement by submitting their
dispute to arbitration or other means of alternate dispute resolution such as mediation. No
arbitration or other alternate dispute resolution arising out of or relating to, this Agreement
involving one party's disagreement may include the other party to the disagreement without the
other's approval.
ARTICLE XIV
ASSIGNABILITY
DISD shall not assign any interest in this Agreement and shall not transfer any interest in
this Agreement (whether by assignment, novation or otherwise) without the prior written consent
of the CITY, which consent shall not be unreasonably be withheld. CITY shall not assign any
interest in this Agreement and shall not transfer any interest in this Agreement (whether by
assignment, novation or otherwise) without the prior written consent of the DISD, which consent
shall not be unreasonably be withheld.
ARTICLE XV
NOTICE
Any notice given by one party to the other in connection with this Agreement shall be in
writing and shall be by personal delivery, sent by registered mail or certified mail, return receipt
requested, postage prepaid, or by facsimile transmission actually received, to:
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S:\Our Documents\Conlraots\04XDISD Fiber Agreement 04 .DOC
CITY:
DISD:
City Manager
City of Denton
215 E. McKirmey
Denton, TX 76201
Fax: (940) 349-8596
Superintendent
Denton Independent School District
1307 N. Locust
Denton, Texas 76201
Fax: (940) 381-1093
Notices shall be deemed to have been received on the date of receipt as shown on the return
receipt or other written evidence of receipt.
ARTICLE XVI.
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or received in evidence in
any proceeding ar/sing between the parties hereto out of or affecting this Agreement, or the rights
or obligations of the parties hereunder, unless such waiver or modification is in writing, duly
executed. The parties further agree that the provisions of this section will not be waived: unless
as herein set forth.
ARTICLE XVII.
SAVINGS
In the event that any one or more of the provisions hereof concerning the subject matter
of this Agreement should be held by a court or admirfistrative agency of competent jurisdiction to
be illegal, invalid or unenforceable in any respect, the parties agree to make a good faith effort to
renegotiate another agreed provision to fulfill the purpose and intent of the present Agreement.
ARTICLE XVIII
GOVERNING LAW AND VENUE
This Agreement shall be construed under and governed by, and in accordance with the
laws of the State of Texas, and all obligations of the parties hereto, created by this Agreement are
performable in Denton County, Texas. Venue of any suit or cause of action under this
Agreement shall lie exclusively in Denton County, Texas.
ARTICLE XIX
ENTIRE AGREEMENT
This Agreement and the exhibits attached thereto, constitutes the entire agreement among
the parties hereto with respect to the snbject matter hereof, and supersedes any prior
understandings or written or oral agreements between the parties with respect to the subject
matter of this Agreement. No amendment, 'modification, cancellation or alteration of the terms
of this Agreement shall be binding on any party hereto unless the same is in writing, dated
subsequent to the date hereof, and is duly executed by the parties hereto.
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ARTICLE XX
WAIVER OF TERMS AND CONDITIONS
The failure of either party 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 XXI
BINDING AUTHORITY
This Agreement is entered into by the duly authorized officials of each respective
governmental entity.
ARTICLE XXII
CAPTIONS
The captions contained in this Agreement are for informational purposes only and shall
not in any way affect the substantive terms or conditions of this Agreement.
IN WITNESS WHEREOF, the City of Denton, Texas has caused this Interlocal
rafon Agreement to be executed by its duly authorized Mayor on this the~~~day of
2004; and the Denton Independent School District has caused this Interlo,'c~al-/
rati n Agreement to be executed by the President of its Board of Trustees on thi the J~i
f 1~~~~ Pti 2004, but to be effective from and as of the ~~ day of
,~,(,/~~ , 2004.
"CITY"
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: ~G{~in.~ ~r L
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
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"DISD"
DENTON INDEPENDENT SCHOOL DISTRICT
DR. JEAN B. SCHAAKE, President
Board of Trustees
ATTEST:
'Oqi~ '11, {~ri t,'~..~_, Secretary
Denton Independent School District
Board of Trustees
APPROVED AS TO LEGAL FORM
By:
Page 10 of 10
August 19,2004
Dr. Ray Braswell
Superintendent
Denton Independent School District
1307 North Locust Street
Denton, Texas 76202
Letter of Agreement
City of Denton, Texas - DISD Fiber Optics System
Dear Dr. Braswell,
This Letter of Agreement is to confirm that the City of Denton, Texas ("City") and the
Denton Independent School District ("DISD") have recently met, and both parties have
agreed upon the methodology for the base for future extensions of the DISD Fiber Optics
System. The pro rata charge will be based on the fees in accordance with Article IV,
Section A of the DISD Fiber Optic System Interlocal Agreement. The length for pro rata is
based on the as built plans filed in the office of the City Engineer of the City of Denton.
DISD may need additional time if the City of Denton exercises its right to voluntarily
terminate within 180 days pursuant to Article V of the DISD Fiber Optic System Interlocal
Agreement. If DISD should need additional time if the City of Denton exercises its right
to voluntarily terminate and DISD has good cause for such additional time, the City of
Denton shall support a reasonable extension for such additional time.
If you have any questions regarding this Letter Agreement and/or this project, you may
refer them to Jon Fortune, Assistant City Manager of the City of Denton, who may be
reached at (940) 349-8353. If you have no questions, please execute this Letter Agreement
at the place designated below.
~ IVl~ke Conduff, City Mana~)
DENTON INDEPENDENT SCHOOL DISTRICT
By: ~ ~
Jean B. Schaake, Board President
S:\Our Documents\Correspondence~Letters\04~DISD Fiber System Letter Agreement. doc
S:\0ur DocumcntskContracts\04L~DDITIONAL LICENSE PROVISIONS.doc
EXItlBIT A
ADDITIONAL PROVISIONS
This Agreement is granted subject to the following additional conditions, tc~rms and reservations:
(1)
At such time as tiffs Agreement is terminated or canceled for any reason whatsoever,
DISD, upon orders issued by the City acting through the CITY ENGINEER, or his
designee, shall remove all installations, improvements and appurtenances owned by it
situated in, under or attached to the street right-of-way, and shall restore the street right-
of-way to its former condition in accordance with the requirements of the CITY
ENGINEER at the sole cost of DISD. DISD may abandon the Fiber Optic System by
separate agreement. In the event, upon termination of this Agreement, DISD shall fail to
remove its installations, improvements and appurtenances and to restore the street right-
of-way in compliance with orders issued by City, or such work is not done to the
satisfaction of the CITY ENGINEER, then in any event the City shall have the right to do
all work necessary to restore said street right-of-way to its former condition or cause such
work to be done, and to assess the cost of all such work against DISD; in neither event
shall the City of Denton be liable to DISD on account thereof.
(2)
DISD is prohibited from using the street fight-of-way in any manner which violates
Federal, State or local laws, regulations, roles and orders, regardless of when they
become or became effective, including without limitation, those related to health, safety,
noise, environmental protection, waste disposal and water and air quality, and shall
provide satisfactory evidence of compliance upon the' request of the City of Denton.
Should any discharge, leakage, spillage, emission or pollution of any type occur upon or
from the street right-of-way due to DISD's use and occupancy thereof, DISD, at its
expense, shall be obligated to clean up the street right-of-way to the satisfaction of the
City of Denton and any governmental body having jurisdiction thereover. The City of
Denton may, at its option~ clean the street right-of-way. If the City of Denton elects to do
so, DISD shall promptly pay to the City of Denton the reasonable cost of such cleanup
upon receipt of bills therefore. DISD agrees that the indemnity provisions contained in
Article X shall be fully applicable to the requirements of this paragraph, in event of
DISD's breach of this paragraph, or as a result of any such discharge, leakage, spillage,
emission or pollution arising out of the DISD's use of the street right-of-way.
(3)
This Agreement is subject to all State laws, the provisions of the Charter of the City of
Denton as it now exists, or may hereafter be adopted or amended, and the ordinances of
the City of Denton now in effect or those which may hereafter be passed or adopted. The
City of Denton shall have the right to increase or decrease the compensation to be
charged for the use contemplated by this grant in accordance with the provisions of the
Denton City Code as it now exists, or as may hereafter be adopted or amended.
(4)
The Governing Body of the City of Denton reserves the right, at any time without notice,
to terminate and cancel this Agreement, by resolution, upon a finding by the Governing
Body that this Agreement is inconsistent with the public use of the property or whenever
the purpose or use of the Agreement is likely to become a nuisance and all rights granted
S:\Our Do euments\C ontra~ts~04kADDITIONAL LICENSE PROVISIONS.doc
(s)
(6)
(7).
(8).
(9).
hereunder shall thereupon be considered fully terminated and canceled and the City of
Denton shall not be held liable by reason thereof. The decision of the Governing Body
of the City in this matter shall be final mad binding upon all parties insofar as the City's
detorm/nafion aS to whether the DISD's use of this Agreement constitutes a nuisance or
is inconsistent with the public use of the property.
This Agreement is subject to any existing communication facilities, including &ainage,
presently located within the street fight-of-way, owned and/or operated by the City of
Denton or any utility or communications company, public or private, and to any vested
rights presently owned by an utility or communications company, public or private, for
the use of the street right-of-way for facilities presently located within the boundaries of
said street right-of-way. It is the intent of the foregoing that this permission herein is
made expressly subject to the utilization of the street right-of-way for commurdcation
and utility purposes, both public and private, including drainage, over, under, through,
across and along the street right-of-way. No buildings shall be constructed or placed
upon, over or across the street right-of-way in such a manner as to interfere with the
operation of any utilities and communication facilities. All and any communication
company and utility, both public and private, shall have the right to remove and keep
removed all or parts of any buildings which may in any way endanger or interfere with
the construction, maintenance or efficiency of its respective systems within the street
right-of-way. All communication companies and utilities, both public and private, shall
have the full right to remove and keep removed all parts of any buildings~ fences, trees,
or other improvements or. growths which in any way may endanger or interfere with the
construction, maintenance and efficiency of its respective system and shall at all times
have the full right of ingress and egress to or from and upon the street right-of-way for
the purpose of constructing, relocating, inspecting, patrolling, maintaining and adding to
or removing all or part of its respective systems without the necessity at any time of
procuring the pennissinn of anyone.
DISD shall not provide local exchange telephone serviqes or other services directly
regulated by the Texas Public Utility Commission ("PUC") without obtaining PUC
approval to provide the service and obtaining all necessary authorizations fi:om the City
of Denton.
DISD shall not lease, sell, permit or otherwise authorize others, which do not have.a City
of Denton telecommunications or video franchise, license, or permit, to use any or all of
its lines, facilities, conduit space or transmission capacity in any line, cable or facility
placed on the street right-of-way without the prior, written consent of the City of Denton.
DISD shall use its installations and facilities solely for itself, unless and until the other
user has received a franchise, license or permit from the City of Dentnn or until the City
of Denton has given its written consent.
DISD shall not directly connect or permit others using its lines, facilities, conduit space
or transmission capacity to directly connect to customers or offer retail services from all
or any portion of its lines or facilities, unless required by law and only after notice to the
City of Denton.
Page 2 of 3
. .. S:\0ur Docum~nts\Conlzacts\04kADDITIONAL LICBNSB PROVISIONS.doc
0o).
013
(120
DISD shall not use its aerial/subsurface cable and/or fiber optic lines to provide cable
services or other video services, as defined in Title 47, Chapter 5 of the United States
Code, as amended (47 U.S.C.A., Section 521, et seq.), or as recognized by the Federal
Communications Commission ("FCC").
If DISD desires to provide any telecommunications, video or cable services not
authorized by this Agreement, it agrees: (i) to pay a separate fee to the City of Denton for
the provision of local exchangc telephone services, other telephone services, a service
directly regulated by the PUC, cable services, other defined video services, other video
services recognized by the FCC, Personal Communication Service or like service, and
where necessary; (ii) to obtain a separate franchise, license or permit from the City of
Denton.
Should DISD viOlate any of the terms of this Exhibit, then the rights of DISD under this
Agreement shall automatically cease and terminate and the provisions of Article 5 of this
Agreement shall control.
Page 3 of 3
Exhibi~ B
STATE OF TEXAS §
COUNTY OF DENTON §
POLE ATTACHMENT LICENSE AGREEMENT
TiffsPole Attachment Licensing Agreement (the "Agreement") dated this day
of __,~ 2004 is made by and be,,t~veen ~ENTO,N,. MUNICIPAL
ELECTRIC (hereinafter referred to as "Utility' or as' Licensor ), a municipally-
owned electric utility o'f the State of Texas, and the DENTON INDEPENDENT
SCHOOL DISTRICT (hereinafter referred to as "Licensee").
Recitals
A. Whereas, Licensee proposes to install and maintain Communications Facilities
and associated commuaications equipment on Utility's Poles to provide
Communications Services to the public; and
Whereas, Utility is w/lling, when it may lawfully do so, to issue one or more
Permits authorizing the placement or installation of Licensee's Attachments on
Utihty's Poles, provided that Utility may refuse, on a nondiscriminatory basis, to
issue a Permit where there is insufficient Capacity or for reasons relating to safety,
reliability, generally applicable engineering purposes and/or any other Applicable
Standard; and
Therefore, in consideration of the mutual covenants, terms and conditions and
remunerations herein provided, and the rights and obligations created hereunder,
both parties hereto AGREE as follows: ·
AGREEMENT
Article 1--Definitions
For the purposes of this Agreement, the following terms, phrases, words, and their
derivations, shall have the meaning given lierein, unless more specifically defined within
a specific Article or Paragraph of this Agreement. When not inconsistent with the
context, words used in the present tense include the future tense, words in the plural
number include tlie singular number, and words in the singular number include the plural
number. The words "shall" and "will" are mandatory and "may" is permissive. Words
not de£med shall be given their common and ordinary meaning.
Pole Attachment License Agreement 1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
Affiliate: when used in relation to Licensee, means another entity that owns or
controls, is owned or controlled by, or is under common ownership or control
with Licensee.
Applicable Standards: means all applicable engineering and safety standards
governing the installation, maintenance and operation of facilities and the
performance of all work in or around electric Utility Facilities and includes the
most current versions of National Electric Safety Code ('2'q-ESC"), the National
Electrical Code ('%IEC"), and the regulations of the Occupational Safety and Health
Administration ("OSHA"), each of which is incorporated by reference in this
Agreement, and/or other reasonable safety and engineering requkements of Utihty
or other federal, state (~r local authority with jurisdiction over Utility Facilities.
Assigned SI)ace: means space on Utility's Poles or within Utility's Conduit
System that can be used, as defined by the Applicable Standards, for the
attachment or placement of wires, cables and associated equipment for the
provision of Communications Service or electric service. The neutral zone
or safety space is not considered Assigned Space.
Attaching Entity: means any public or private entity, other than Utility
or Licensee, who, pursuant to a license agreement with Utility, places an
Attachment on Utility's Pole or within Utility's Conduit System to provide
communications Service.
Attachment(s): means any and all of Licensee's Communications Facilities that
are placed directly on Utility's Poles or Overlashed onto an existing Attachment
or that are placed within Ufility's Conduit System, but does not include either a
Riser or a service drop attached to a single Pole where Licensee has an existing
Attachment on such Pole.
Capacity: means the ability of a Pole or Conduit System segment to accommodate
an additional Attaclu:aent based on Applicable Standards, including space and
loading considerations.
Climbing Space: means that portion of a Pole's surface and surrounding space that is
fi'ce fi'om encara~brances to enable Utility employees and contractors to safely climb,
access and work on Utility Facilities and equipment.
Common Space: means space on Utility's Poles that is not used for the placement
of wkes or cables but which jointly benefits all users of the Poles by supporting
2 Pole A~fachment License Agreement
1.9
1.10
1.11
1.12
1.13
1.14
the underlying structure and/or providing safety clearance between attaching
entities and electric Utility Facilities.
Communications Facilities: means wire or cable facilities including but not
limited to fiber optic, copper and/or coaxial cables or wires utilized to provide
Communications Service including any and all associated equipment. Unless
otherwise specified by the parties, the term "Communications Facilities" does not
includes wireless antennas, receivers or transceivers.
Communications Service: means the transmission or receipt of voice,
video, data, Interact or other forms of digital or analog signals over
Communications Facilities.
1.15
Conduit System: means Utility's conduits, Innerduct, manholes, vaults, Risers,
pull-boxes and trenches.
Innerduct: means flexible conduit installed inside a larger rigid conduit for the
placement of wire or cable.
Licensee,: means DENTON INDEPENDENT SCHOOL DISTRICT, its
authorized successors and assignees.
Make-Ready Work: means all work, as reasonably determined 'by Utility,
required to accommodate Licensee's Communications Fac/l/ties and/or to
comply with all Applicable Standards. ' Such work includes, but is not limited
to, Pre-Construction Survey, rearrangement and/or transfer of Utility Facilities or
existing Attachments, inspections, engineering work, permitting work, tree'trimming
(other than tree trlm'mJng performed for normal maintenance purposes), pole
replacement and construction, or Conduit System clearing.
Occupancy: means the use or specific reservation of Assigned Space for
Attachments on the same Utility Pole or portion of Utility's Conduit System.
1.16 .Overlash: means to place an additional wire or cable Communications Facility
onto an existing Attachment owned by Licensee.
1.17
Pedestals/Vaults/Enclosures: means above- or below-gronnd housings that are
used to enclose a cable/wire splice, power supplies, amplifiers, passive devices
and/or provide a service connection point and that shall not be attached to Utility
Poles (see Appendix D--Specifications).
Pole Affachment License Agreement 3
1.18
1.19
1.20
1.21
Permit: means written or electronic authorization (see Appendix C) of Utility for
Licensee to make or maintain Attachments to specific Util/ty Poles or spans of the
Conduit System pursuant to the requirements of this Agreement.
Pole: means a pole owned by Utility used for the distribution of electricity and/or
Communications Service that is capable of supporting Attachments for
Communications Facilities.
Post-Construction Inspection: means the inspection required by Utility to
determine and verify that the Attachments have been made in accordance with
Applicable Standards and the Permit.
Pre-Construction Survey: means all work or operations required by Applicable
Standards and/or Utility to determine the potential Make-Ready Work necessary
to accommodate Licensee's Commun/cafions Facilities on a Pole or with/n a span of
the Conduit System. Such work includes, but is not limited to, field inspection and
adminis~:afive processing. The Pre-Construction Survey shall be coordinated with
Utility and include Licensee's professional engineer.
1.22
Reserved Capacity: means capacity or space on a Pole or within a portion of the
Conduit System that Utility has identified and reserved for its own electric utility
requirements, including the installation of communications circuits for operation of
Ufility's electtic system, pursuant to a reasonable projected need or business plan.
1.23 Riser: means metallic or plastic encasement materials placed vertically on the
Pole to guide and protect communications wires and cables.
1.24 Utility Facilities: means all personal property and real property owned or
controlled by Utility, including Poles and Conduit System.
Article 2--Scope of Agreement
2.1 Grant of License. Subject to the provisions of this Agreement, Utility hereby
grants Licensee a revocable, nonexclusive license, authorizing Licensee to
install and maintain Permitted Attachments to Utility's Poles and to install
its Communications Facilities within Utility's Conduit System.
2.2
Parties Bound by Agreement. Licensee and Utility agree to be bound by all
provisions of tltis Agreement.
4 Pole Attachment License Agreement
2.3
2.4
2.5
Permit Issuance Conditions. Utility will issue a Permit(s) to Licensee only
when Utility determines, in its sole judgment, exercised reasonably, that (i) it has
sufficient Capacity to accommodate the requested Attachment(s), (ii) Licensee
meets all requirements set forth in this Agreement, and ('O J) such Permit(s) comply
with all Applicable Standards.
Reserved Capacity.. Access to Assigned Space on Utility Poles will be made
available to Licensee with the nnderstanding that such access is to Utility's
Reserved Capacity .only. On giving Licensee at least thirty (30) calendar days
prior notice, Utility may reclaim such Reserved Capacity anytime during the
period following the installation of Licensee's Attachment in which lids
Agreement is effective if required for Utility's future electric service use,
including the attachment of communications lines for internal Utility operational
or governmental communications requirements. Utility shall give Licensee the
option to remove its Attachment(s) from the affected Pole(s) or to pay for the
cost of any Make-Ready Work needed to expand Capacity so that Licensee can
maintain its Attachment on the affected Pole(s). The allocation of the cost of any
such Make-Ready Work (including the transfer, rearrangement, or relocation of
third-party Attachments) shall be determined in accordance with Article 9.
No Interest in Property. ~ No use, however lengthy, of any Utility Facilities, and
no payment of any fees or charges required under this Agreement, shall create or
vest hi Licensee any easement or other ownership or property right of any nature
in any portion of such Facilities. Neither this Agreement, nor any Permit granted
under this Agreement, shall constitute an assignment of any of Utility's fights to
Utility Facil/ties. Notwithstanding anything in this Agreement to the contrary,
Licensee shall, at all times, be and remain a licensee only.
2.6
Licensee's Right to Attach. Nothing in this Agreement, other than a Permit
issued pursuant to Article 6; shall be construed as granting Licensee any right to
attach Licensee's Communications Facilities to any specific Pole or within any
specific portion of the Conduit System.
2.'7
Utility's Rights over Poles. The parties agree that this Agreement does not in any
way limit Utility's right to locate, operate, maintain or remove its Poles or conduit
System in the manner that will best enable it to fulfill its service requirements.
2.8
Expansion of Capaci.ty. Utility will take reasonable steps to expand Pole/
Conduit System Capacity when necessary to accommodate Licensee's request for
Attachment. Notwithstanding the foregoing sentence, nothing in this Agreement
Pole Attachment License Agreement
2.9
2.10
shall be construed to require Utility to install, retain, extend or maintain any Pole
or portion of the Conduit System for ese when such Pole/Conduit System is not
needed for Utility's service requirements.
Other Agreements. Except as provided herein, nothing in this Agreement shall
limit, restrict, or prohibit Utility from fulfilling any agreement or arrangement
regarding Poles into whicl~ Utility has previously entered, or may enter in the
future, with others not party to this Agreement.
Permitted Uses. This Agreement is limited to the uses specifically stated in the
recitals stated above and no other use shall be allowed without Utility's express
written consent to such use. Nothing in this Agreement shall be construed to
require Utility to allow Licensee to use Utility's Poles or Conduit System after the
termination of this Agreement.
2.11 Overlashing. The following provisions will apply to Overlashing:
2.11.1
A Permit shall be obtained for each Overlashiug pursuant to Articl~ 6.
Absent such authorization, Overlashing constitutes an unauthorized
Attachment and is subject to the Unauthorized Attachment fee specified
in Appendix A, Item 3.
2.11.2
If Licensee demonstrates that the Overlashing of Licensee's Attachment(s)
is required to accorrmaodate Licensee's Communications Facilities,
Utility shall not withhold Pennits for such Overlashing if it can be done
consistent with Paragraph 2.3. Overlasking performed pursuant to this
Paragraph 2.11.2 shall not increase the Annual Attachment Fee paid by
Licensee pursuant to Appendix A, Item 1. Licensee, however, shall be
responsible for all Make-Ready Work and Other charges associated with
the Overlashing but shall not be required to pay a separate Annual
· Attacfunent Fee for such Overlashed Attachment.
2.11.3
If Overlashing is required to accommodate facilities of a third party, such
third party must enter into a license agreement with Utility and obtain
Perm/ts and must pay a separate Attachment Fee (Appendix A, Item 1)
as well as the costs of all necessary Make-Ready Work required to
accommodate the Overlashing. No such Permits to third parties may be
granted by Utility allowing Overlashing of Licensee's Communications
Facilities unless Licensee has consented in writh~g to such Overlashing.
Overlashing performed under this Paragraph2.11.3 shall not increase
6 Pole Atfachment License Agreement
the fees and charges paid by Licensee pursuant to Appendix A, Item 1.
Nothing in this Agreement shall prevent Licensee from seeking a
contribution from an Overlashing third party to defray fees and charges
paid by Licensee.
2.11.4 Make-Ready Work procedures set forth in Article 7 shall apply, as
necessaw, to all Overlashing.
2.12
Enclosures. Licensee shall not place Pedestals, Vaults and/or other Enclosures on
or within four (4) feet of any Pole or other Utility Facilities without Utility's prior
written permission. If permission is granted, all such installations shall be per the
Specifications and Drawings in Appendix D of this Agreement and charges as
provided in Appendix A. Such permission shall not be um:easonably withheld.
Article 3--Fees and Charges
3.1 Payment of Fees and Charges. Licensee shall pay to Utility the fees and charges
specified in Appendix A and shall comply with the terms and conditions specified
herein.
3.2
Payment Period. Unless otherwise expressly provided, Licensee shall pay any.
invoice its receives from Utility pursuant to this Agreement within thirty (30)
calendar days after Utility i~sues the invoice.
3.3
Billing of Attachment Fee. Utility shall invoice Licensee for the per-pole
Attachment Fee annually. Utility will submit to Licensee an invoice for the
annual rental period no later than June 30 of each year. The initial annual rental
period shall commence upon the execution of this Agreement and conclude on
June 30, 2004, with rental due and payable in arrears [calculated on a per diem
basis] on July 15, 2004; and' the next subsequent annual rental period shall
commence on July 1, 2004 and conclude on June 30, 2005, with rental due and
payable in arrears on July 15, 2005; and the annual rental period to continue on
the 1st day of July, 2005 until June 30, 2006, with rental due and payable in
arrears on July 15, 2006, and so on for subsequent one year terms, with rental due
and payable as specified as provided herein, until such time as this Agreement is
termh~ated. The invoice shall set forth the total number of Utility's Poles on
wlzich Licensee was issued and/or holds a Permit(s) for Attachments during such
mmual rental period, including any previously authorized and valid Permits.
Pole Attachment License Agreement ?
3.4
3.5
3.6
3.7
3.8
3.9
Refunds. No fees and charges specified in Appendix A shall be refunded on
account of any sun'ender of a Pen~ait granted hereunder. Nor shall any refund be
owed if a Pole or portion of Conduit System is abandoned by Utility.
Late Charge. If Utility does not receive payment for any fee or other amount
owed w/thin thirty (30) calendar days after it becomes due, Licensee, upon receipt
of fifteen (15) calendar days written notice, shall pay interest to Utility, at the rate
often percent (10%) per annum, on the amount due.
Payment for Work. Licensee will be responsible for payment to Utility for all
work Utility or Utility's contractors perform pursuant to this Agreement to
accommodate Licensee's Communications Facilities.
Advance Payment. At the discretion of Util/ty, Licensee may be required to pay
in advance all reasonable costs, including but not linfited to administrative,
constmcti0n,/nspections and Make-Ready Work expenses,/n connection with the
initial installation or rearrangement of Licensee's Communications Facilities
pursuant to the procedures set forth in Articles 6 and 7 below.
True Up. Wherever Utility, at its discretion, requires advance payment of
estknated expenses prior to undertaking an activity on behalf of Licensee and
the actual cost of activity exceeds the advance payment of estimated expenses,
Licensee agrees to pay Utility for the difference in cost. To the extent that the
actual cost of the activity is less than the estimated cost, Utility agrees to refund
to Licensee the difference in cost.
Determination of Charges. Wherever this Agreement requb:es Licensee to pay
for work done or contracted by Utility, the charge for such work shall include all
reasonable material, labor, engineering and administrative costs and applicable
o~¢erhead costs. Utility shall bill its services based upon actual, costs, and such
costs will be determined in accordance with Utility's cost accounting systems
used for recording capital and expense activities. All such invoices shall include
an itemization of dates of w6rk, location of work, labor costs per hour, persons
employed and materials used and cost of materials. When calculating labor costs,
it will be the greater of the loaded costs of municipal labor or that of the going
current "Union scale." If Licensee was required to perform work and fails to
perform such work necessitating its completion by Utility, Utility may either
charge an additional ten percent (10%)to its costs or assess the penalty specified
in Appendix A.
8 Pole Atfachment License Agreement
3.10
Work Performed by Utility. Wherever ti'ds Agreement requires Utility to
perform any work, Licensee aclmowledges and agrees that Utility, at its sole
discretion, may utilize its employees or contractors, or any combination of the
-two to perform such work.
3.11 Default for Nonpayment. Nonpayment of any mount due under this Agreement
beyond sixty (60) days shall constitute a material default of this Agreement.
Article 4--Specifications
4.1 Installation/Maintenance of Communications Facilities. When a Permit is
issued pursuant to finis Agreement, Licensee's Communications Facilities shall be
installed and maintained in accordance with the reqnirements and specifications
of Appendix D. Ail of Licensee's Communications Facilities must comply with
all Applicable Standards. Licensee shall be responsible for the installation and
maintenance of its Communications Facilities. Licensee shaI1, at its own expense,
make and maintain its Attachments in safe condition and good repair, in
accordance with all Applicable Standards. Notwithstanding anything in tkis
Agreement to the contrary, Licensee is not required to update or upgrade its
Attachments where not required to do so by either the NESC or the NEC.
4.2
Interference. Licensee shall not allow its Communications Facilities to knpair
the ability of Utility or any third party to use Utility's Poles or Conduit System,
nor shall Licensee allow its Comm~mJcations Facilities to interfere with the
operation of any Utility Facilities.
4.3
Protective Equipment. Licensee, and its employees and contractors, shall utilize
and install adequate protective equipment to ensure the safety of people and
facilities. Licensee shall at its own expense install protective devices designed to
handle the voltage and current impressed on its Communications Facilities in the
event of a contact with the supply conductor. Except as provided in Paragraph 16.1,
Utility shall not be liable for any actual or consequential damages to Licensee's
Communications Facilities or Licensee's customers' facilities.
4.4
Violation of Specifications. If Licensee's Communications Facilities, or any part
thereof, are installed, used or maintained in violation of this Agreement, and
Licensee has not cm~ected the violation(s) within thirty (30) calendar days from
receipt of written notice of the violation(s) from Utility, Utility at its option, may
correct such conditions. Utility will attempt to notify Licensee in writing prior to
performing such work whenever practicable. When Utility believes, however, that
Pole Attachment License Agreement 9
4.5
4.6
4.7
4.8
such violation(s) pose m~ mediate threat to the safety of any person, Interfere with
the performance of Lltil/ty's service obligations or pose an immediate threat to the
physical integrity of Utility Facilities, Utility may perform such work and/or take
such action as it deems necessary without first giv/ng written notice to Licensee.
As soon as practicable thereafter, Utility will advise Licensee of the work
performed or the action taken. Licensee shall be responsible for all costs incurred
by Utility in taking action pursuant to this Paragraph.
Restoration of .Utility. Servie~.' Utility's service restoration requirements shall
take precedence over any and all work operations of Licensee on Utility's Poles
or within Utility's Conduit System.
Effect of Failure to Exercise Access Rights. If Licensee does not exercise any
access right granted pursuant to tiffs Agreement and/or applicable Permit(s) within
ninety (90) calendar days of the effective date of such right and any extension
thereof, Utility may use the space scheduled for Licensee's Attachment(s) for its
own ne~ds or other Attaching Entities. In such instances, Utility shall endeavor to
make other space available to Licensee, upon written application per Article 6, as
soon as reasonably possible and subject to all requkements of th/s Agreement,
including the Make-Ready Work provisions. Licensee may obtain a refund on a
pro-rata basis of any Attachment Fees it has paid in advance with. respect to
expired Permits.
Interference Test Equipment. To the extent Licensee furnishes cable television
service it shall maintain test equipment to identify signal interference to its
customers, and shall not identify Utility as the source of such interference absent
a test report verifying the source.
Removal of Nonfunctional Attachments. At its sole expense, Licensee
shall remove any of its Attachments or any part thereof that becomes
nonfunctional and no longer fit for service (''Nonfunctional Attachment") as
provided in this Paragraph 4.9. A Nonfunctional Attachment that Licensee has
failed to remove as required in this paragraph shall constitute an unauthorized
Attachment and is subject to the Unauthorized Attachment fee specified in
AppendixA, Item 3. Except as otherwise provided in this Agreement, Licensee
shall remove Nonfimctional Attachinents within one (1) year of the Attachment
becoming nonfunctional, unless Licensee receives written notice from Utility that
removal is necessary to accommodate Utility's or another Attaching Entity's use
of the affected Pole(s) or portion of the Conduit System, in which case Licensee
shall remove the Nonfunctional Attachiuent within sLxty (60) days of receiving
Pole Attachment License Agreement
thc notice. Where Licensee has received a Permit to 0vcrlash a Nonfimcfional
Attachment, such Nonfunctional Attachment may remain in place until Utility
notifies Licensee that removal is necessary to accommodate Utility's or another
Attaching Entity's use of thc affected Pole(s). Licensee shall give Utility notice of
any Nonfunctional Attachments as provided in Article 15.
Article S---Private and Regulatory Compliance
5.1 Necessary, Authorizations. Licensee shall be responsible for obtaining from
the appropriate public and/or private authority or other appropriate persons any
required anthorization to construct, operate and/or maintain its Communications
Facilities on public 'and/or private property before it occupies any portion of
Utility's Poles. Utility retains the right to require evidence that appropriate
authorization has been obtained before any Permit is isaned to Licensee.
Licensee's obligations under this Article 5 include, but are not limited to, its
obligation to obtain all necessary approvals to occupy public/private rights-of-
way and to pay all costs associated therewith. Licensee shall defend, indemnify
and reimburse Utility for all loss and expense, including reasonable attorney's
fees, that Utility may incur as a result of claims by governmental bodies, owners
of private property, or other persons, that Licensee does not have sufficient rights
or authority to attach Licensee's Communications Facilities on Utillty's Poles or
within its Conduit System.
5.2
Lawful Purpose and Use. Licensee's Communications Facilities must at all
times serve a lawful purpose, and the use of such Facilities must comply with
all applicable federal, state and local laws.
5.3
Forfeiture of Utility's Rights. No Permit granted under this Agreement shall
extend to any Pole or within 'any Conduit System on/in which the Attachment of
Licensee's Conzmunications Facilities would result in a forfeiture of Utility's
rights. Any Perm/t, which on its face would cover Attachments that would result
in forfeiture of Utility's rights, is invalid. Frurther, if any of Licensee's existing
Communications Facilities, whether installed pursuant to a valid Permit or not,
would cause such forfeiture, Licensee shall promptly remove its Facilities upon
receipt of written notice from Utility. Utility wil/ perform such removal at
Licensee's expense not sooner than the expiration of thi~y (30) calendar days
from Utility's issuance of tlie written notice.
5.4
Effect of Consent to Construction/Maintenance. Consent by Utility to the
construction or maintenance of any Attachments by Licensee shall not be deemed
Pole Attachment License Agreement 11
consent, authorization or an acknowledgment that Licensee has the authority to
construct or maintain any other such Attachments. It is Licensee's responsibility
to obtain all necessary approvals for each Attachinent from all appropriate parties
or agencies.
Article 6 Permit Application Procedures
6.1 Permit Required. Licensee shall not install any Attachments on any Pole or within
any Utility Conduit System without first applying for and obtaining a Permit pursuant
to the applicable requirements of Appendix B. Unless otherwise notified, pre-
existing authorized Attachment(s) of Licensee as of the effective date of tiffs
Agreement shall be grandfathered with respect to Permitting, but shall be subject to
the Attachment Fees. Licensee sliall provide Utility with a list of all such pre-existing
Attachments within six (6) montl~s of the effective date of this Agreement.
Attackments to orrights to occupy Utility Facilities not covered by this
Agreement must be separately negotiated.
6.2
Permits for Overlashing. As set out in Paragraph 2.11, Permits are required for
any Overlashing allowed under this Agreement and Licensee, Licensee's Affiliate
or other third party, as applicable, shall pay any necessary Make-Ready Work
costs to accommodate such Overlasking.
6.3
Professional Certification. Unless otherwise waived in writing by Utility, as part
of the Permit application process and at Licensee's sole expense, a qualified and
experienced professional engineer, or an employee or contractor of Licensee who
has been approved by Utility, must participate in the Pre-Construction Survey,
conduct the Post-Construction Inspection and certify that Licensee's Communications
Facilities can be trod were installed on the identified Poles or within specified
portions of the Conduit System in compliance with the standards in Paragraph 4.1
and in accordance with the Permit. The professional engineer's qualifications
must inclnde experience performing such work, or substantially similar work,
on electric transmission or distribution systems. Utility, at its discretion, may
waive the requirements of this Paragraph 6.3, with respect to service drops.
12 Pole Attachment License Agreement
6.4
Utility Review of Permit Application. Upon receipt of a properly executed
Application for Permit (Appendix C), which shall include the Pre-Construction
Survey, certified per Paragraph 6.3 above, and detailed plans for the proposed
Attachments in the form specified in Appendix D, Utility wiil review the Permit
Application as promptly as possible, and discuss any issues with Licensee,
inclnding engineering or Make-Ready Work requirements associated with the
Permit Application. Utility acceptance of the submitted design documents does
not relieve Licensee of full responsibility for any errors and/or omissions in the
engineering analysis.
6.5
Permit as Authorization to Attach. After receipt of payment for any necessary
Make-Ready Work, Utihty will sign and return the Permit Application, which
shall serve as authorization for Licensee to make its Attachment(s).
Article 7--Make-Ready Work/Installation
7.1 Estimate for Make-Ready Work. In the event Ufihty determines that it can
accommodate Licensee's request for Attachment(s), including Overlashing of
an existing Attachment, it will, upon request, advise Licensee of any estimated
Make-Ready Work charges necessary to accommodate the Attachment.
7.2
Payment of Make-Ready Work. Upon completion of the Make-Ready Work,
Utility shall invoice Licensee for Utihty's actual cost of such Make-Ready Work.
Alternatively, Utility, at its discretion, may require payment in advance for Make-
Ready Work based upon the estimated cost of such work. In such case, upon
completion Licensee shall pay Utility's actual cost of Make-Ready Work. The
costs of the work shall be itemized as per Paragraph 3.9 and trued up as per
Paragraph 3.8.
7.3
Who May Perform Make-Ready Work. Make-Ready Work shall be performed
only by Util/ty and/or a contractor authorized by Utility to perform such work.
If Utility camaot perform the Make-Ready Work to accommodate Licensee's
Communications Facilities within ninety (90) calendar days of Licensee's request
for Attachments, Licensee may seek permission from Utility for Licensee to
employ a qualified contractor to perform such work.
7,4
Scheduling of Make-Ready Work. In performing all Make-Ready Work to
accormuodate Licensee's Cornmnnications Facilities, Utility will endeavor to
include such Work in its normal work schedule. In the event Licensee requests
that the Make-Ready Work be performed on a priority basis or outside of Utility's
Pole A~achmenf License Agreement
normal work honrs, Licensee agrees to pay any resulting increased costs. Nothing
herein shall be construed to require performance of Licensee's work before other
scheduled work or Utility service restoration.
7.5
Written Approval of Installation Plans Required. Before making any
Attachments to Utility's Poles or Conduit System, including Overlashing of
existing Attachments, tlie applicant must obtain .Utility's written approval of
detailed plans for the Attacl~ments. Such detailed plans sliall accompany a Permit
application as required under Paragraph 6.4.
7.6 Licensee's Installation/Removal/Maintenance Work.
7.6.1
All of Licensee's installation, removal and maintenance work shah be
performed at Licensee's sole cost and expense, in a good and workmanlike
manner, and must not adversely affect the structural integrity of Utllity's
Poles, Conduit System or other Facilities or other Attaching Entity's
facilities or equipment attached thereto. All such work is subject to the
insurance requirements of Article 18.
7.6.2
Ail of Licensee's installation, removal and maintenance work performed
on Ufllity's Poles or witt~in its Conduit System or in the vicinity of other
Utility Facilities, either by its employees or contractors, shall be in
compliance with all applicable regulations specified in Paragraph4.1.
Licensee shall assure that any person installing, maintaining, or removing
its Communications Facilities is fully qualified and familiar with all
Applicable Standards, the provisions of Article 17, and the Minimm
Design Specifications contained in Appendix D.
Article 8--Transfers
8.1 Required Transfers of Licensee's Communications Facilities. If Utility
reasonably determ'mes that a transfer of Licensee's Communications Facilities is
necessary, Licensee agrees to allow such. transfer, h such instances, Utility will,
at its option, either perform the transfer using its personnel, and/or contractors
and/or require Licensee to perform such transfer at its own expense within sixty
(60) calendar days after receiving notice from Utility. If Licensee falls to transfer
its Facilities within sixty (60) calendar days after receiving such notice from Utility,
UfiYlty shall have the right to transfer Licensee's Facilities using its persormel
and/or contractors at Licensee's expense plus the penalty specified in
Appendix A. Utility shall not be liable for danxage to Licensee's Facilities except
14 Pole Attachment License Agreement
8.2
to the extent provided in Paragraph 16.1. The written advance notification
requirement of this Paragraph shall not apply to emergency situations, in which
case Utility shall provide such advance notice as is practical given the urgency
of the pmticular situation. Utility shall then provide written notice of any such
actions taken within ten (10) days of the occurrence. Irrespective of who owns
them, Licensee is responsible for the transfer of Facilities that are overlashed on
to Licensee's Attachments.
Billing for Transfers Performed by Utili~... If Utility performs the transfer(s),
Utility will bill Licensee for actual costs per Paragraph 3.9. Licensee shall
reimburse Utility within thirty (30) calendar days of the receipt of the invo!ce.
Article 9--Pole Modifications
And/Or Replacements
9.1 Licensee's Action Requiring Modification/Replacement. In the event that
any Pole to which Licensee desires to make Attachment(s) is unable to support
or accommodate the additional facilities in accordance with all Applicable
Standards, Utility will notify Licensee of the necessary Make-Ready Work,
and associated costs, to provide an adequate Pole, including but not limited to
replacement of the Pole and rearrangement or transfer of Ufility's Facilities.
Licensee shall be responsible for separately entering into an agreement with
other Attaching Entities concerning the allocation of costs for the relocation or
rearrangement of such entities' existing Attachments. If Licensee elects to go
forward with the necessary changes, Licensee shall pay to Utility the actual cost
of the Make-Ready Work, performed by Utility, per Paragraph 3.9. Utility; at its
discretion, may require advance payment. Licensee shall also be responsible for
obtaining, and furnishing to Utility before the commencement of/ny Make-
Ready Work, agreements between Licensee and the other Attaching Entities
(including Overlashers) concerning the relocation or rearrangement of their
Attachments and the costs involved.
9.2
Treatment of Multiple Requests for Same Pole. If Utility receives Permit
Applications for the same Pole from two or more prospective licensees within
sixty (60) calendar days of the initial request, and accommodating their respective
requests would require modification or replacement of the Pole, Utility will
allocate among such licensees the applicable costs associated with such
modification or replacement. Such allocation applies only to those Attachments
involving cable/wire and not Risers and/or other equipment.
Pole Attachment License Agreernent 15
9.3
9.4
GuyinR. Thc use of guying to accommodate Licensee's Attachments shall be
provided by and at tile expense of Licensee and to the satisfaction of Utility as
specified in Appendix D. Licanscc shall not attach its guy wires to Utility's
anchors without prior written permission of Utility. If permission is granted,
charges may apply.
Allocation of Costs. The costs for any rearrangement or transfer of Licensee's
Communications Facilities or the replacement of.a Pole (incluEmg any related
costs for tree cutting or trimming required to clear the new location of Ufility's
cables or wires) shall be allocated to Utility and/or Licensee and/or other
Attactfing Entity on the following basis:
9.4.1
If Utility intends to modify or replace a Pole solely for its own
requ'~rements, it shall be responsible for the costs related to the
modifiCation/replacement of the Pole. Licensee, however, shall be
responsible for all costs associated with the rearrangement or transfer
of Licensee's Communications Fa/cilities. Prior to making any such
modification or replacement Utility shall provide Licensee written
notification of its intent in order to allow Licensee a reasonable
opportunity to elect to modify or add to its existing Attachment. Should
Licensee so elect, it must seek Utility's written permission per this
Agreement. The notification requirement of this Paragraph 9.4.1 shall not
apply to routine maintenance or emergency situations. If Licensee elects
to add to or modify its Communications Facilities, Licensee shall bear the
total incremental costs incurred by Utility in making the space on the
Poles accessible to Licensee.
9.4.2
If the modification or the replacement of a Pole is the result of an
additional Attachment or tile modification of an existing Attachment.
sought by an Attacking Entity other than Utility or Licensee, the Attaching
Entity requesting the additional or modified Attachment shall bear the
entire cost of the modification or Pole replacement, as well as the costs for
rearrang/ng or transferring Licensee's Communications Facilities. Licensee
shall cooperate with such third-party Attaching Entity to determine the
costs of moving Licensee's facilities.
16 Pole Attachment License Agreement
9.4.3
If the Pole must be modified or replaced for other reasons unrelated
to the use of the Pole by Attaching Entities (e.g., storm, accident,
deterioration), Utility shall pay the costs of such modification or
replacement; provided, however, that Licensee shall be responsible for
the costs of rearranging or transferring its Communications Facilities.
9.4.4
~If the modification or replacement of a Pole is necessitated by the
requirements of Licensee, Licensee shall be responsible for the costs
related to the modification or replacement of the Pole and for the costs
associated with the transfer or rearrangement of any other Attaching
Entity's Communications Facilities. Licensee shall submit to Utility
evidence, in writing, that it has made arrangements to r~imburse all
affected Attaching Entities for the cost to transfer or rearrange such
Entities' Facilities at the- time Licensee submits a Permit Application to
Utility. Utility shall not be obligated in any way to enforce or admirdster
Licensee's responsibility for the costs associated with the transfer or
rearrangement of another Attaching Entity's Facilities pursuant to this
Paragraph 9.4.4. :
9.5
Utility Not Required to Relocate. No provision of tins Agreement shall be
construed to require Utility to relocate its Attachments or modify/replace its
Poles for the benefit of Licensee, provided, however, any denial by Utility
for modification of the pole is based on nondiscriminatory standards of
general applicability.
Article 10--Abandonment or
Removal of Utility Facilities
103 Notice of Abandonment or Removal of Utility Facilities. If Utility desires at
any time to abandon, remove or underground any Utility Facilities to which
Licensee's Communications Facilities are attached, it shall give Licensee notice.
in writing to that effect at least sixty (60) calendar days prior to the date on winch
it intends to abandon or remove such Utility's Facilities. Notice may be limited
to thirty (30) calendar days if Utility is required to remove or abandon its Utility
Facilities as the result of the action of a third party and the greater notice period is
not practical. Such notice shall indicate whether Utility is offering Licensee an
option to purchase the Pole(s). If, following the expiration of the thirty-day
period, Licensee has not yet removed and/or transferred all of its Communications
Facilities therefrmn and has not entered into an agreement to purchase Utility's
Pole Attachment License Agreement 17
Facilities pursuant to Paragraph 10.2, Utility shall have the fight, subject to any
applicable laws and regulations, to have Licensee's Communications Facilities
removed and/or transferred from the Pole at Licensee's expense. Utility shall give
Licensee prior written notice of any such removal or transfer of Licensee's Facilities.
10.2
Option to Purchase Abandoned Poles. Should Utility desire to abandon any
Pole, Utility, in its sole discretion, may grant Licensee the option of purchasing
such Pole at a rate negotiated with Utility. Licensee must notify Utility in writing
within thirty (30) calendar days of the date of Utility's notice of abandonment that
Licensee desires to purchase the abandoned Pole. Thereafter, Licensee must also
secure and deliver proof of all necessary governmental approvals and easements
allowing Licensee to independently own and access the Pole within forty-five
(45) calendar days. Should Licensee fail to secure the necessary governmental
approvals, or should Utility and Licensee fail to enter into an agreement for
Licensee to purchase the Pole prior to the end of the forty-five (45) calendar days,
Licensee must remove its Attachments as required under Paragraph 10.1. Utility
is under no obligation to sell Licensee Poles that it intends to remove or abandon.
10.3
Underground Relocation. If Utility moves any portion of its aerial system
underground, Licensee shall remove its Communications Facilities from any
affected Poles within sixty (60) calendar days of receipt of notice fi:om Utility
and either relocate its affected Fac/lities underground with Utility or find other
means to accommodate its Facilities. Licensee's failure to remove its Facilities as
required under this Paragraph 10.3 shall subject Licensee to the penalty provisions
of Appendix A.
Article Il--Removal of Licensee's Facilities
Removal on Expiration/Termination. At the expiration or other termination
of this License Agreement or individual Permit(s), Licensee shall remove its
Communications Facilities from the affected Poles or portions of Conduit
System at its own expense. If Licensee fails to remove such facilities within
sixty (60) calendar days of expiration or termination or some greater period as
allowed by Utility, Utility shall have the right to have such facilities removed
at Licensee's expense.
18 Pole Attachment License Agreement
Article 12--Termination of Permit
Automatic Termination of Permit. Any Permit issued pursuant to this
Agreement shall automatically terminate when Licensee ceases to have authority
to construct and operate its Communications Facilities on public or private
property at the location of the particular Pole(s)/portiun of the Conduit System
covered by the Permit.
12.2
Surrender of Permit. Licensee may at any time surrender any Permit for
Attachment and remove its Communications Facilities from the affected Pole(s)
or segment of the Conduit System, provided, however, that before commencing
any such removal Licensee must obtain Utility's written approval of Licensee's
plans for removal, including the name of the party performing such work and the
date(s) and time(s) during which such work will be completed. All such work is
subject to the insurance requirements of Article 18. No refund of any fees or
costs will be made upon removal. If Licensee surrenders such Permit pursuant to
the provisions of this Article, but fails to remove its Attachments from Utility's
Facilities w/thin thirty (30) calendar days thereafter, Utility shall have the right to
remove Licensee's Attachments at Licensee's expense.
Article 13 - Inspection of Licensee's Facilities
13.1 Inspections. Utility may conduct an inventory and inspection of Attachments at any
time. Licensee sh~ll correct all Attachments that are not found to be in compliance
with Applicable Standards within tNrty (30) calendar days Of notification. If it is
found that Licensee has made an Attachment without a Permit, Licensee shall pay
a fee as specified in Appendix A, Item 3 in addition to applicable Permit and
Make-Ready charges. If it is found that five percent (5%) or more of Licensee's
Attachments are either in non-compliance or not permitted, Licensee shall pay its
pro-rata share of the costs of the inspection.
13.2
Notice. Utility will give Licensee reasonable advance written notice of such
inspections, except in those instances where safety considerations justify the
need for such inspection without the delay of waiting until written notice has
been received.
13.3
No Liability. Inspections performed under this Article 13, or the failure to do so,
shall not operate to impose upon Utility any liability of any kind whatsoever or
relieve Licensee of any responsibility, obligations or liability whether assumed
under this Agreement or otherwise existing.
Pole Attachment License Agreement 19
13.4
Attachment Records. Notwithstanding the above inspection provisions, Licensee
is obligated to furnish Utility on an annual basis an up-to-date map depicting the
locations of its A~tachments in aaa electronic format specified by Utility.
Article 14~Unauthorized Occupancy or Access
14.1 PenalW Fee. If any of Licensee's Attachments are found occupying any Pole
or segment of the Conduit System for which no Permit has been issued, Utility,
without prejudice to its other rights or remedies under this Agreement, may assess
an Unauthorized Access Penalty Fee as specified in Appendix A, Item 3. In the
event Licensee fails to pay such Fee within thirty (30) calendar days of receiving
notification thereof, Ufility has the right to remove such Communications
Facilities at Licensee's expense.
14.2 No Ratification of Unlicensed Use. No act or failure to act by Utility with regard
to any unlicensed use shall be deemed as ratification of the unlicensed use and
if any Permit should be subsequently issued, such Permit shall not operate
retroactively or constitute a waiver by Utility of any of its fights or pfivileges
under tins Agreement or otherwise; provided, however, that Licensee shall be
subject to all liabilities, obligations and responsibilities of this Agreement in
regards to the unanthorized use from its inception.
Article 15 Reporting Requirements
Concurrently with Licensee's Attachment Fee payment and using the reporting form
contained in Appendix E, Licensee shall report the following to Utility:
15.1 The Poles on winch Licensee has installed, during the relevant reporting period,
Risers and service drops, where no Penrdt was required.
15.2
Ail Attaclnnents that have become nonfunctional during the relevant reporting
period. The report shall identify the Pole on wlqch the Nonfunctional Attachment is
located, describe the nonfunctional equipment, and indicate the approximate date
the Attachment became nonfunctional.
15.3
Any equipment Licensee has removed from Poles during the relevant reporting
pefiod. The report shall identify the Pole from winch the equipment was
removed, describe the removed equipment, and indicate the .approximate date of
removal. This requirement does not apply where Licensee is surrendering a
Permit pursuant to Paragraph 12.2.
20 Pole A~tachment License Agreement
Article 16 Liability and Indemnification
16.1 Liability. Utility reserves to itself the right to maintain and operate its Poles
and Conduit System in such manner as will best enable it to fulfill its service
requirements. Licensee agrees to use Utility's Poles and Conduit System at
Licensee's sole risk. Notwithstanding the foregoing, Utility shall exercise
reasonable precaution to avoid damaging Licensee's Communications Facilities
and shall report to Licensee the occurrence of any such damage caused by its
employees, agents or contractors. Subject to Paragraph 16.5, Utility agrees to
reimburse Licensee for all reasonable costs incurred by Licensee for the
physical repair of such facilities damaged by the gross negligence or willful
misconduct of Utility, provided, however, that the aggregate liability of Utility,
to Licensee, in any fiscal year, for any other fines, penalties, claims or damages
stemming from interruption of Licensee's service or interference with the
operation of Licensee's Communications Facilities (including special, indirect,
punitive or' consequential damages) shall not exceed the amount of the total
.Annual Attactunent Fees paid by Licensee to Utility for that year as calculated
based on the number of Attachments'under Permit at the time of the damage
per Appendix A, Item 1.
16.2
Indenmification. Licensee, and any agent, contractor or subcontractor
of Licensee, shall defend, indernui~y and hold harmless Utility and its officials,
officers, board members, council members, commissioners, representatives,
employees, agents, and contractors against any and all liability, costs, damages,
fines, taxes, special charges by others, penalties, payments (including payments
made by Utility under any Workers' Compensation Laws or under any plan for
employees' disability and death benefits), and expenses (including reasonable
attorney's fees of Utility and all other costs and expenses of litigation) ("Covered
Claims") ar/sing in any way, including any act, omission, failure, negligence or
willful misconduct, in counection with the comtruction, maintenance, repair,
presence, use, relocation, transfer, removal or operation by Licensee, or by
Licensee's officers, directors, employees, agents or contractors, of Licensee's
Communications Facilities, except to the extent of Utility's negligence or willfal
misconduct giving rise to such Covered Claims. Such Covered Claims include,
but are not limited to, the following:
16.2.1 Intellectual property iniiingement, libel and slander, trespass,
unauthorized use of television or radio broadcast programs tu~d
other progranx material, and infringement of patents;
Pole Attachment License Agreement 21
16.2,2
Cost of wm'k performed by Utility that was necessitated by Licensee's
failure, or the £ailure of Licensee's officers, directors, employees, agents
or contractors, to install, maintain, use, transfer or remove Licensee's
Communications Facilities in accordance with the requirements and
specifications of this Agreement, or from any other work this Agreement
authorizes Utility to perform on Licensee's behalf;
16.2.3
Damage to property, injury to or death of any person arising out of the
performance or nonperformance of any work or obligation undertaken
by Licensee, or Licensee's officers, directors, employees, agents or
contractors, pursuant to this Agreement;
16.2.4
Liabilities incurred as a result of Licensee's violation, or a violation by
Licensee's officers, directors, employees, agents or contractors, of any
law, role, or regulation of the United States, State of Texas or any other
governmental entity or administrative agency.
16.3 Procedure for Indemnification.
16.3.1
Utility shall give prompt notice to Licensee of any claim or threatened
cia/m, specifying the factual basis for such claim and the mount of the
claim If the claim relates to an action, suit or proceeding filed by a third
party against Utility, Utility shall give the notice to Licensee no later than
ten (10) calendar days after Utility receives written notice of the action,
suit or proceeding.
16.3.2
Utility's failure to give the required notice will not relieve Licensee from
its obligation to indemnify Utility unless Licensee is materially prejudiced
by such failure.
16.3.3
Licensee will have the right at any time, by notice to Utility, to participate
in or assume control of the defense of the claim with counsel of its choice,
which counsel must be reaSOnably acceptable to Utility. Utility agrees to
cooperate frilly with Licensee. If Licensee so assumes control of the
defense of any third-party claim, Utility shall have the right to participate
in tlie defense at its own expense. If Licensee does not so assume control
or otherwise participate in the defense of any third-party claim, Licensee
sl~all be boand by the results obtained by Utility with respect to the claim.
16.3.4 If Licensee assumes the defense of a third-party claim as described above,
then in no event will Utility admit any liability with respect to, or settle,
22 Pole Affachment License Agreement
16.4
compromise or discharge, any third-party claim without Licensee's prior
written consent, and Utility will agree to any settlement, compromise or
discharge of any third-party claim which Licensee may recommend which
releases Utility completely from such claim.
Environmental Hazards. Licensee represents and warrants that its use of
Utility's Poles will not generate any Hazardous Snbstances, that it will not store
or dispose on or about Ufility's Poles/Conduit System or transport to Utility's
Poles/Conduit System any hazardous substances and that Licensee's
Communications Facilities will not constitute or contain and will not generate
any hazardous substance in violation of federal, state or local law now or hereafter
in effect including any amendments. "Hazardous Substance" shall be interpreted
broadly to mean any substance or material designated or defined as liazardous
or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive
substance, dangerous radio frequency radiation, or other similar terms by any
federal, state, or local laws, regulations or rules now or hereafter in effect
including any amendments. Licensee further represents and warrants that in the
event of breakage, leakage, incineration or other disaster, its Communications
Facilities would not release any Hazardous Substances. Licensee and its agents,
contractors and subcontractors shall defend, indemnify and hold harmless Utility
and its respective officials, officers, board members, council members,
commissioners, representatives, employees, agents and contractors against any
and all liability, costs, damages, fines, taxes, special charges by others, penalties,
punitive damages, expenses (including reasonable attorney's fees and ail other
costs and expenses of litigation) arising from or due to the release, threatened
release, storage or discovery of any Hazardous Substances on, under or adjacent
to' Utility's Poles/Conduit System attributable to Licensee's use of Utitity's Poles
or Conduit System.
Should Utility's Poles be declared to contain Hazardous Substances, Utility,
Licensee and all Attaching Entities shall sliare proportionately in the cost of
disposal of the affected Poles based on each entity's individual percentage use
of the same. For Attaching Entities, such percentage shall be derived fi:om the
sum of Assigned Space occupied by each Attaclfi,ng Entity plus its share of the
Common Space. For Utility, such percentage shall be equal to the space above the
NESC 40-inch safety space plus its share of the Common Space. Provided;
however, if the source or presence of the Hazardous Substance is solely
attributable to particular parties, such costs shall be borne solely by those parties.
Pole Atfachmenf License Agreemenf 23
16.5
16.6
Municipal Liability Limits. No provision of this Agreement is intended, nor
shall it be construed, to be a waiver for any purpose by Utility of any applicable
State limits on mUnicipal liability, or any applicable State law regarding
immunity. No indemnification provision contained in this Agreement under
which Licensee indermfffies Utility shall be construed in any way to limit any
other indemnification provision contained in tiffs Agreement.
Attorney's Fees. If Utility brings a successful action in a court of competent
jurisdiction to enforce this Agreem~t, Licensee shall pay Ufility's reasonable
attorney's fees.
Article 17 Duties, Responsibilities,
And Exculpation
17.1 Duty to Inspect. Licensee acknowledges and agrees that Utility does not warrant
the condition or safety of Utility's Facilities, or the premises surrounding the
Facilities, and Licensee further aclmowledges and agrees that it has an obligation
to inspect Utility's Poles or Conduit System and/or premises surrounding the
Poles or Conduit System, prior to commencing any work on Utility's Poles or
within Utility's Conduit System or entering the premises surrounding such Poles
or Conduit System.
17.2
Knowledge of Work Conditions. By exeouting this Agreement, Licensee warrants
that it has acquainted, or will fully acquaint, itself and its employees and/or
contractors and agents with the conditions relating to the work that Licensee will
undertake under this Agreement and that it fully understands or will acquaint itself
with the facilities, difficulties and restrictions attending the execution of such work.
17.3
DISCLAIMER. UTILITY MAKES NO EXPRESS OR IMPLIED
WARRANTIES WITH REGARD TO UTILITY'S POLES OR CONDUIT
SYSTEM, ALL OF WHICH ARE HEREBY DISCLAIMED, AND
UTILITY MAKES NO OTHER'EXPRESS OR IMPLIED WAKRANTIES,
EXCEPT TO THE EXTENT EXPRESSLY AND UNAMBIGUOUSLY SET
FORTH IN THIS AGREEMENT. UTILITY EXPRESSLY DISCLAIMS
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
17.4
Duty of Competent Supervision and Performance. The parties further
understand and agree that in the perfmrnance of work under this Agreement, Licensee
and its agents, employees, contractors and subcontractors will work near electrically
24 Pole Attachment License Agreement
17.5
17.6
17.7
energized lines, transformers or other Utility Facilities, and it is the intention that
energy therein will not be interrupted during thc continuance of this Agreement,
except in an cmcrgcmcy endangering life, grave personal injury or property. Licensee
shall ensure that its employees, agents, contractors and subcontractors have tho
necessary qualifications, skill, knowledge, training and experience to protect
themselves, their fellow employees, employees of Utility and thc general public,
from harm or injury while performing work permitted pursuant to this Agreement. In
addition, Licensee shall furnish its employees, agents, contractors and subcontractors
competent supervision and sufficient and adequate tools and cquipmcnt for their work
to be performed in a safe mariner. Licensee agrees that in eurcrgency situations in
which it may bc necessary to dc-cucrgizc any part of Ufility's equipment, Licensee
shall ensure that work is suspended uutil thc equipment has been dc-energized and
that no such work is conducted urdcss and until thc equipment is made safe.
Requests .to De-energize. In the event Utihty de-energizes any equipment or
line at Licensee!s request and for its benefit and convenience in performing a
particular segment of any work, Licensee shall rehnburse Utility in full for all
costs and expenses incurred, In accordance with Paragraph 3.9, in order to
comply with Licensee's request. Before Utility de-energizes any equipment or
line, it shall provide, upon request, an estimate of all costs and expenses to be
incurred in accommodating Licensee's request.
Interruption of Service. In the event that Licensee causes an Interruption o]?
service by damaging or interfering with any equipment of Utihty, Licensee at its
expense shall immediately do all things reasonable to avoid injury or damages,
direct and incidental, resulting therefrom and shall notify Utility mediately.
Duty to Inform. Licensee further warrants that it understands the imminent
dangers (INCLUDING SERIOUS BODILY INJURY OR DEATH FROM
ELECTROCUTION) inherent in the work necessary to make installations on
Utility's Poles or within Utility Conduit System by Licensee's employees,
agents, contractors or subcontractors, and accepts as its duty and sole
responsibility to notify and inform 'Licensee's employees, agents, contractors
or subcontractors of such dangers, and to keep them informed regarding same.
Article 18 Insurance
18.1 Policies Required. At all times during thc tcrm of this Agreement, Licensee shall
keep in force and effect all insr~rancc policies as described below:
Pole Affachrnent License Agreement 25
18.1.1 Workers' Compensation and Employers' Liability Insurance. Statutory
workers' compensation benefits and employers' liability insurance with a
limit of liability no less than that required by Texas law at the time of the
application of this provision for each accident. This policy shah be
endorsed to include a waiver of subrogation in favor of Utility. Licensee
shall require subcontractors and others not protected under its insurance to
obtain and maintain such insurance.
18.1.2
Commercial General Liability Insurance. Policy Will be written to
provide coverage for, but not limited to, the following: premises and
operations, products and completed operations, personal injury, blanket
contractual coverage, broad form property damage, independent
contractor's coverage with limits of liabi2ity not less than $2,000,000
cormnercial general liability, $2,000,000 PrOducts/completed operations
aggregate, $2,000,000 personal injury, $2,000,000 per each occurrence.
18.1.3
Automobile Liability Insurance. Business automobile policy covering all
owned, hired and non-owned private passenger autos and commercial
vehicles. Limits of liabil3ty not less than $1,000,000 per each
occurrence, $1,000,000 aggregate.
18.1.4
Umbrella Liability Insurance. Coverage is to be in excess of the sum
employers' liability, commercial general liability, and automobile liability
insurance required above. Limits of liability not less than $3,000,000 each
occurrence, $3,000,000 aggregate.
18.1.5
Property Insurance. Each party will be responsible for maintnlnlng property
insurance on its own facilities, buildings and other improvements,
including all equipment, fixtures, and utility structures, fencing or support
systems that may be placed on, within or around Utility Facilities to fully
protect against hazards of fire, vandalism and malicious mischief, and such
other perils as are covered by policies of insurance commonly referred to
and lmowax as "extended coverage" insurance or self-insure such exposures.
18.2
Qualifieation~ Priority; Contractors' Coverage. The insurer must be authorized
to do business under the laws of the State of Texas and have an "A-" or better
rating in Best's Guide. Such insurance will be primary. All contractors and all of
their subcontractors who perform work on behalf of Licensee shall carry, in full
force and effect, workers' compensation and employers' liability, comprehensive
26 Pole Atfachrnent License Agreemenf
18.3
18.4
18.5
general liability and automobile liability insurance coverages of the type that
Licensee is reqttired to obtain under this Article 18 with the same limits.
Certificate of Insurance~ Other Requirements. Prior to the execution of this
Agreement and prior to each insurance policy expiration date during the term
of this Agreement, Licensee will furnish Utility with a certificate of insurance
("Certificate") and, upon request, certified copies of the required insurance
policies. The Certificate shall reference this Agreement and workers'
compensation and property insurance waivers of subrogation requked by this
Agreement. Utihty shall be given thirty (30). calendar days advance notice of
cancellation or nmn'enewal of insurance during the term of tiffs Agreement.
Utility, its council members, board members, commissioners, agencies, officers,
officials, employees and representatives (collectively, "Additional Insureds")
shall be named as Additional Insureds under all of the policies, except workers'
compensation, which shall be so stated on the Certificate of Insurance. All
policies, other than workers' compensation, shall be written on an occurrence
and not on a claims-made basis. All policies may be written with deductibles,
not to exceed $100,000, or such greater amount as expressly allowed in writing
by Utility. Licensee shall defend, indemnify and hold harmless Utility and
Additional Insureds from and against payment of any deductible and payment
of any premium on any policy required under this Article. Licensee shall obtain
Certificates from its agents, contractors and their subcontractors and provide a
copy of such Certificates to Utility, upon request.
Limits. The 1/mits of liability set out in this Article 18 may be increased
or decreased by mutual consent 'of the parties, which consent will not be
unreasonably withheld by either party, in the event of any factors or occurrences,
including substantial increases in the level of jury verdicts or judgments or the
passage of state, federal or other governmental compensation plans, or laws
which would materially increase or decrease Licensee's exposure 1o risk.
Prohibited Exclusions. No policies of insurance required to be obtained by
Licensee or its contractors or subcontractors shall contain provisions (1)that
exclude coverage of liability assumed by this Agreement with Utility except as
to infringement of patents or cop'yrigI~ts or for libel and slander in program
material, (2) that exclude coverage of liability arising from excavating, collapse,
or underground work, (3) that exclude coverage for injuries to Utility's employees
or agents, or (4) that exclude coverage of liability for injuries or damages caused
by Licensee's contractors or the contractors' employees, or agents. This list of
prohibited provisions shall not be interpreted as exclusive.
Pole Atf~chment License Agreement 27
18.6
Deductible/Self-insurance Retention Amounts. It is agreed and understood
that Licensee shall be fully and expressly responsible for any deductible or self-
insured retention amounts contained in its insurance program or for any deficiencies
in the amounts of insurance maintained.
Article 19--Authorization Not Exclusive
Utility shall have the right to grant, renew and extend rights and privileges to others not
party to this Agreement by contract or otherwise, to use Utility Facilities covered by this
Agreement. Such rights shall not interfere with the rights granted to Licensee by the
specific Permits issued pursuant to this Agreement.
Article 20--Assignment
20.1 Limitations on Assignment. Licensee shall not assign its fights or obligations
under tiffs Agreement, nor any part of such rights or obligations, without the
prior written consent of Utility,, which consent shall not be uureasonably
witttheld. It shall be unreasonable.for Utility to withhold consent without cause
to an assignment of all of Licensee's interests in this Agreement to its Affiliate.
20.2 Obligations of Assignee/Transferee and Licensee. No assignment or transfer
under this Article 20 shall be allowed until the assignee or transferee becomes a
signatory to this Agreement and~ assumes all obligations of Licensee arising
under this Agreement. Licensee shah furnish Utility with prior written notice of
the transfer or assignment, together with the name and address of the transferee
or assignee. Notwithstanding any assi~ment or transfer, Licensee shall remain
fully liable under this Agreement and shall not be released from performing
any of the terms, covenants or conditions of this Agreement without the express
written consent to the release of Licensee by Utility.
20.3 Sub-licensing. Without Utility's prior written consent, Licensee shall not sub-
license or lease to any third pm-ty, including but not limited to allowing third
parties to place Attachments on Utility's Facihties, including Overlashing, or to
place Attachments for the benefit of such third parties on Ufility's Poles or within
Utility's Conduit System. Any such action shall constitute a material breach of
this Agreement. The use of Licensee's Communications Facilities by third parties
(including but not limited to leases of dark fiber) that involves no additional
Attaclxment or Overlashing is not subject to this Paragraph 20.3.
28 Pole Attachment License Agreement
Article 21--Failure to Enforce
Failure of Utility or Licensee to take action to enforce compliance with any of the
terms or conditions of this Agreement, or to g/ye notice, or declare this Agreement, or any
authorization granted hereunder terminated, shall not constitute a waiver or relinquishment
of any term or condition of this Agreement, but the same shall be and remain at all times
Jn full force and effect until terminated, in accordance with this Agreement.
Article 22--Termination of Agreement
22.1 Notwithstanding Utitity's rights under Article 12, Utility shall have the right,
pursuant to the procedure set out in Paragraph 22.2, to terminate this entire
Agreement, or any Permit issued hereunder, whenever Licensee is in default
of any term or condition of this Agreement, including but not limited to the
following circumstances:
22.1.1 Construction, operation or maintenance of Licensee's Communications
Facilities in violation of law'or in aid of any unlawful act or undertaldng; or
22.2
22.1.2 Construction, operation or maintenance of Licensee's Communications
Facilities after any authorization required of Licensee has lawfully been
denied or revoked by any gi)vemmental or private authority or violation of
any other agreement with Utility; or
22.1.3 Constmctiun, operation or maintenance of Licensee's Communications
Facilities without the insurance coverage required under Article 18.
Utility will notify Licensee in writing within fifteen (15) calendar days, or as
soon as reasonably practicable, of any condition(s) applicable to Paragraph 22.1
above. Licensee shall take immediate corrective action to eliminate any such
condition(s) within fiReen (15) calendar days, or such longer period mutually
agreed to by the parties, and shall confirm in writing to Utility that the cited
condition(s) has (have) ceased or been corrected. If Licensee fails to discontinue
or correct such condilian(s) and/or fails to give the required confirmation,
Utility may mediately terminate this Agreement or any Permit(s). In the event
of termination of this Agreement or any of Licensee's rights, privileges or
authorizations hereunder, Utility may seek removal of Licensee's Communications
Facilities pursuant to the terms of Article 11, provided, that Licensee shall be liable
for and pay all fees and charges pursuant to terms of this Agreement to Utility
until Licensee's Communications Facilities are actually removed.
Pole Aftachment License Agreement 29
Article 23--Term of Agreement
23.1 This Agreement shall become effective upon its execution and, if not terminated
in accordance with other provisions of this Agreement, shall continue in effect for
a term of five (5) years. Either party may terminate this Agreement at thc end of
thc initial five (5) year term by giving to thc other party written notice of an
intention to tcrininatc th~s Agreement at least n~ncty (90) calendar days prior to thc
end of thc term. If no such notice is given, this Agreement shall automatically be
extended for an additional five (5) year term. Either party may terminate this
Agreement at the end of the second five (5) year term by giving to the other party
written notice of an intention to terminate this Agreement at least ninety (90)
calendar days prior to the end of the second term. Upon failure to give such notice,
this Agreement shall automatically continue in force until terminated by either party
after ninety (90) calendar days written notice.
23.2 Even after the tenuination of this Agreement, Licensee's responsibility and
indemnity obligations shall continue with respect to any claims or demands
related to Licensee's Communications Facilities as provided for in Article 16.
· n
Article 24 Amendtng Agreeme t
NotWithstanding other provisions of this Agreement, the terms and conditions of this
Agreement shall not be amended, changed, or altered except in writing and with approval
by authorized representatives of both parties.
Article 25 Notices
25.1 Wherever in this Agreement notice is required to be given by either party to
the other, such notice shall be in writing and shall be effective when personally
delivered to, or when mailed by cmlified mail, return receipt requested, with
postage prepaid to, and except where specifically provided for elsewhere,
properly addressed as follows:
If to Utility, at: City of Denton, Texas
If to Licensee, at: Denton Independent School District
30 Pole Atfachmenf License Agreement
or to such other address as either party, from time to time, may give the other
party in writing.
25.2
Licensee shall maintain a staffed 24-hour emergency telephone number, not
available to the general public, where Utility can contact Licensee to report damage
to Licensee's facilities or other situations requiring immediate communications
between the parties. Such contact person shall be qualified and able to respond to
Utility's concerns and requests. Failure to maintain an emergency contact shall
subject Licensee to a penalty of $100 per incident, and shall eliminate Utility's
liability to Licensee for any actions that Utility deems reasonably necessary given
the specific circumstances.
Article 26 Entire Agreement
This Agreement supersedes all previous agreements, whether written or oral, between Utility
axed Licensee for placement and maintenance of Licensee's Communications Facilities on
Utility's Poles or within Utility's Conduii System within the geographical service area
covered by this Agreement; and there are no other provisions, terms or conditions to this
Agreement except as expressed herein.
Article 27--Severability
If any provision or portion thereof of this Agreement is or becomes invalid under any
applicable statute or rule of law, and such invalidity does not mater/ally alter the essence
of fl~s Agreement to either party, such provision shall not render unenforceable this entire
Agreement, bnt rather it is the intent nfthe parties that this Agreement be admin/stered as
if it did not contain the invalid provision. ~
Article 28--Governing Law
The validity, performance mhd all matters relating to the effect of this Agreement and any
amendment hereto, shall be governed by the laws (without reference to choice of law) of
tlie State of Texas.
Article 29--Incorporation of
Recitals and Appendices
The recitals stated above, mhd all appendices to this Agreement, are incorporated into and
constitute part of this Agreement.
Pole Atfachment License Agreement 31
Article 30--Performance Bond
On execution of this Agreement, Licensee shall provide to Utility a performance bond in
an amount that is equal to Twenty-Pour and 45/100 Dollars ($24.45) per Licensee Pole
Attachment; and au amount of Thirty-Eight Cents ($.38) per linear foot of Conduit
System occupied, which amounts shall be adjusted accordingly on an annual basis to
account for additions or reductions in thc total number of Licensee's Pole Attachments,
and use of Conduit System. Thc bond shall be with an cnlity and in a form acceptable to
Utility. Thc purpose of the performance bond is to ensure Liccnscc's faithful
performance of all of its obligations under this Agreement and for thc payment
by Licensee of any claims, liens, taxes, liquidated damages, penalties and fees due to
Utility which arise by reason of thc construction, operation, maintenance or removal of
Licensee's Communications Facilities on or about Utility's Poles or within its Conduit
System.
Article 31--Force Majeure
31.1 Irt the event that either Utility or Licensee is prevented or delayed from fulfilling
any term or provision of this Agreement by reason of fire, flood, earthquake or like
acts of nature, wars, revolution, civil commotion, explodion, acts of terrorism,
embargo, acts of the government in its sovereign capacity, material changes
of laws or regulations, labor difficulties, including without limitation, strikes,
slowdowns, picketing or boycotts,.unavailability of equipment of vendor, or any
other such cause not attributable to the negligence or fault of the party delayed
in performing the acts required by ~he Agreement, then performance of such acts
shall be excused for the period of the unavoidable delay, and any such party shall
endeavor to remove or overcome such hiability as soon as reasonably possible.
31.2
Utility shall not impose any charges on Licensee stemming solely from Licensee's
inability to perform required acts during a period of unavoidable delay as
described in Paragraph 31.1, provided that Licensee present Utility with a written
description of such force majeure within a reasonable time after occurrence of the
event or cause relied on, and furthez provided that this provision shall not operate
to excuse Licensee from the timely payment of any fees or charges already due
and payable to Utility under tlxis Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
on the day and year first written above.
32 Pole Atfschment License Agreement
"UTILITY"
CITY OF DENTON, TEXAS
DENTON MUNICIPAL ELECTRIC
By:
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
HERBERT L.PROUTY, CITY ATTORNEY
By:
Pole Aftachment License Agreement 33
"LICENSEE"
DENTON INDEPENDENT SCHOOL DISTRICT
By:
ATTEST:
By:
APPROVED AS TO LEGAL FORM:
HAYES, COFFEY & BERRY, P.C.
By:
S:\Our Documents\Contracts\04~P ole Attachment License Agreement-DISD 2004.do0
34 Pole Aftachment License Agreement
APPENDIX A--FEES AND CHARGES
Pole Attachment Fees and Charges
Effective Date / /
1. Annual Pole Attachment Fee: $24.45 per attachment/per year
The Annual Attachment Fees shall be adjusted annually by any change/n the Index now
known as 'United States Bureau of Labor Statistics, Consumer Price Index--All Urban
Consumers, base period 1982-84 = 100, (CPI-U)," hereinafter referred to as the .
"Index." The parties agree that the 2002 Index is . [to be supplied]
2. Non-Recurring Fees:
One-time License Agreement Fee ........................ $100.00
Permit Application Fee ........................ ~ ............... $35.00 per Permit Appllcation
(1-50 Poles)
Permit Application Fee ........................................ $70.00 per Permit Application
(51 or more Poles)
Make Ready Work Charges. ................................ See Article 3 of Agreement
Miscellaneous Charges ........................................ See Article 3 of Agreement [or
Attach Fee Schedule for Work
Performed for the Licensee]
Inspection Fees ..................................................... See Article 3 of Agreement
3. Unauthorized Attachment Penalty Fee:
Three times the annual attachment fee, per occurrence.
4. Failure To Timely Transfer, Abandon or Remove Facilities Penalty:
One-fifth (1/5) annual attachment fee per day, per pole, first thirty (30) days;
Annual attachment fee per day, per pole, second th'my (30) days and thereafter.
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Interim Pole Attachment License Agreement App encr~x "A"
APPENDIX B--POLE ATTACHMENT
PERMIT APPLICATION PROCESS
The following procedure is to be followed by each Licensee seeking to make new
Attachments on Utility's Poles. Note that no entity may make any Attachments to Utility's
Poles without having first entered into a binding Interim Pole Attachment Licensing
Agreement.
1. Licensee shall submit a written request to perform a Pre-Construction Inspection. The
request must include a preliminary route description. Licensee shall have a
professional engineer, or utility approved employee or contractor, participate in a Pre-
Construction Inspection, which will include a review of the proposed Attachment(s) to
determine the feasibility of the request and identify any potential Make-Ready Work.
Appendix F to this Interim Agreement contains the minimmm design review
information that an applicant must provide and a ~vorksheet for determining the
min/mum specifications that the proposed Attachment must meet.
2. Following the Pre-Construction Inspection, Licensee shall submit a completed
Permit Application (Appendix C) that includes: route map, kfformation required in
Appendix F, installation plans and' recommendations on Make-Ready Work.
Licensee shall prepare the Permit Application in adherence with the Applicable
Standards (Section 1.2 of Interim Agreement) and specifications (Appendix D).
3. The Utility will review the recommendations from the inspection and discuss any
issues with the Licensee.
4. Upon receipt of written authorization, Utility will proceed with Make-Ready Work
according t0 the specific agreed-upon installation plans and the terms of the Interim
Agreement, including payment for the Make-Ready Work charges as set out by
Utility and agreed to by the Licensee.
5. Upon completion of the Make-Ready Work, the Utility will sign and return the
Application for Pennit authorizing the Licensee to make its Attachment(s) in
accordance with agreed-upon installation plans.
6. The Licensee's professional engineer, utility-approved employee or contractor shall
submit written certification that he/she has completed tlie Post-Construction Inspection
and that the installation was done in accordance witli the provisions of the Perm/t. The
Post-Construction haspeotion shall be submitted within ninety (90) calendar days after
installation is complete.
Interkn Pole Attachment License Agreement
Appendix "B"
Appendix B--Pole Atfachmenf
Permit Application Process
If the Utility waives the professional-engineer requirement, the Utility will perform the
Post-Construction Inspection and chm'ge the Licensee per Article 3 of the Interim
Agreement.
S :\Our Doc uments\C ontracts~03~[n terim Pole Attachment License Agreement-Appendix B-Pc~rnit Application Process.doc
Interim Pole Attachment License Agreement
Appendix "B"
APPENDIX C APPLICATION FOR PERMIT
Application Date: __ / /__
To: [Iasert Address of Utili~ Permitting Department]
Desire to: Attach to Utility Pole(s) Remove Attachment from Utility Pole(s)
Permit No.
Number of Poles Tiffs Permit
Superseded Permit No.
Sheet 1 of
Licensee Name:
Address:
Contact Person:
Title:
Utility Contact Person:
Title:
Narrative Description of Proposed Activity:
Phone
Phone
In accordance with the terms and conditions of the Interim Pole Attachment Licensing
Agreement dated ,2003, application is hereby made for a Permit to
attach to and/or vacate Pole(s) in the locations detailed on the attached Route Map(s).
Also, attached is docmnentation as required by Appendix F of the Interim Agreement. If
applicable, the engineer's name, State of Texas registration number and phone number
are~
NalTle:
Phone
Registration No.
Interim Pole Attachment License Agreement
Appendix "C"
Appendix C~Applicafien for Permit
Permission is hereby granted to Licensee to attach and/or vacate poles listed on the
attached Field Data Summary Sheets, subject to payment of the necessary Make-Ready
Work charges as set out by Utility and agreed tO by the Licensee.
SUBMITTED on this day of
.,2003.
LICENSEE
By:
Title:
APPLICATION APPKOVED/DISAPPROVED on this day of
_,2003.
UTK~ITY
By:
Title:
S:\Our Documents\Contract$\03\lntedm Pole Attachment License A~reement-Appendix C Application for Perm/t.doc
2
Interim Pole Attachment License Agreement
Appendix "C"
APPENDIX D--SPECIFICATIONS FOR
LICENSEE'S ATTACIIMENTS TO UTILITY POLES
Licensee, when making Attachments to Utility Poles, will adhere to the following
engineering and construction practices.
A. Ail Attachments shall be made in accordance with the Applicable Standards as
defined in Paragraph 1.2 of this Interim Agreement.'
B. Clearances
1. Attachment and Cable Clearances: Licensee's Attachments on Utility Poles,
including metal attachment clamps and bolts, metal cross-arm supports, bolts and
other equipment, must be attached so as to maintain the minimum separations
specified in the National Electrical Safety Code ("NESC") and in drawings and
specifications Utility may from time to time fmmsh Licensee. (See Drawings A-01
to A-99.)
Service Drop Clearance: The parallel mi:airmkm separation between Utility's
service drops and communications service drops shall be twelve (12) inches, and
the crossover separation between the drops shall be twenty-four (24) inches. (See
Drawings A206 and A-07.)
Sag and Mid-Span Clearances: lJicensee will be particularly careful to leave
proper sag in its lines and cables and shall observe the established sag of power
line conductors and other cables so that minimum clearances are (a) ackieved at
poles located on both ends of the span; and (b) retained throughout the span. At
mid-span, a minimum of twelve (12) inches of separation must be maintained
between any other cables. At the pole support, a twelve (12) inch separation must
be maintained between Licensee and any other communications
cmmection/attachment. (See Drawing A-07.)
Vertical Risers: All Risers, including those providing 120/240 volt power for
Licensee's eqnipment enclosure, sl~all be placed on the qnarter faces of the Pole
and must be installed in conduit with weatherhead attached to the Pole with stand-
off brackets. A two (2) inch clearance in any direction from cable, bolts, clamps,
metal supports and other equipment shall be maintained. (See Drawings A-02
and A-05.)
Interim Pole Att ackrnent License Agreement
Appendix "D" I
Appendix D--Specifications for
Licensee's A~fechmenfs to Utility Poles
Climbing Space: A clear Climbing Space must be maintained at all times on the
face of the Pole. All Attachments must be placed so as to allow and maintain a
clear and proper Climbing Space on the face of the Utihty Pole. Licensee's
cable/wire Attachments shall be placed on the same side of the Pole as ~ose of
other Attaching Entities. In general, all other Attachments and Risers should be
placed on Pole quarter faces. (See Drawing A-08.)
6. Pedestals and Enclosures: Every effort should be made to install Pedestals, vaults
and/or Enclosures a minimum of four (4) feet from Poles or other Utility Facilities.
C. Down Guys ar~dAnchors
1. Licensee shall be responsible for procuring and installing ali anchors and guy
w/res to support the additional stress placed on the Utility's Poles by Licensee's
Attachments. Anchors must be guyed adequately.
Anchors and guy wires must be installed on each Utility Pole where an angle or
a dead-end occurs. Licensee shall make guy attachments to Poles at or below its
cable Attachment. No proposed anchor can be within four (4) feet of an existing
anchor without written consent of Utility,
3. Licensee may not attach guy wires to the anchors of Utility or third-party user
without the anchor owner's spec[fie prior written consent.
No Attachment may be installed on a Utility Pole until all required guys and
anchors are installed. No Attachment may be modified, added to or relocated in
such a way as will materially increase the stress or loading on Utility Poles until
all required guys and anchors are installed.
Licensee's down guys, if needed, shall be bonded to ground w/res of Utility's Pole.
The connections to the system neutral are to be made by the utility as an item of
Make-Ready Work. Utility will detezmine if guys should be grounded or insulated.
D. Certification of Licensee's Design
Licensee's Attachment Permit application must be signed and sealed by a
professional engineer, registered in the State of Texas, certifying that Licensee's
aerial cable design fully complies with the NESC and Utility's Construction
Standards and any other applicable federal, state or local codes and/or
requirements.
InterimPole Aitaclunent License Agreement
Appendix "D"
Appendix D--Specifications for
Licensee's Attachments to Utility Poles
This certification shall include thc confirmation that the design is in accordance
with pole strength requirements of the NESC, taking into account thc effects of
Utility's Facilities and other Attaching Entitles' facilities that exist on thc Poles
without regard to thc condition of thc existing facilities.
E. Miscellaneous Requirements
1. Cable Bonding: Licensee's messenger cable shall be bonded to Utility's Pole
ground wire at each Pole that has a ground wire. If no ground exists on a Pole,
Licensee shall install a Pole ground in accordance with the attached deta/1 drawing.
(See Drawings A-03 to A-05.)
2. Customer Premises: Licensee's service drop into customer premises shall be
protected as required by the most current edition of the NEC.
Communication Cables: All Communications cables/w/res not owned by Utility
shall be attached within the Commuuicat/ons space that is located 40 inches
below the lowest Utility conductor~. (See Drawings A-01 through A-99.)
Riser Installations: All Licensee's Riser installations shall be in utility-approved
conduit mater/als and placed on stand-off brackets. Ground wires may be
attached directly to Pole. (See Drawings A-02 to A-05.)
Utility Construction Drawings and Specifications
1. Refer to the attached Utility Construction Drawings, and obta/n additional
construction specifications Eom Utility in accordance with its requirements.
2. Apply the Utility's construction drawings and specifications in accordance with
the NESC, NEC and any other federal, state or local code requirements.
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Attachments.doc
Interim Pole Attachment License Agreement
Appendix "D" 3
APPENDIX E--DISTRIBUTION LINE MINIMUM DESIGN
REVIEW INFORMATION AND SUGGESTED WORKSBEET
The following guidelines are provided, and corresponding information must be submitted
with each Permit application for Pole Attachments on Utility's system. Utility may direct
that certain Attachments do not require the submittal of Design Review Information.
These Attachments are noted at the end of this section.
Each Permit application must include a report from a professional engineer registered
to practice in the State of Texas, and experienced in electric utility system design, or a
utility-approved employee or contractor of Licensee. This report must clearly
identify the proposed construction and must verify that the Attachments proposed
will maintain Utility's compliance with NESC Class B construction for the loading
district as outlined in the NESC Section 25.
Utility may or may not require that all of the following information be submitted at
the time of the Permit application. The applicant shall have performed all required
calculations and be ready to provide the detailed information below within fifteen
(15) calendar days of notice. Applicant shall keep copies of the engineering data
available for a period of twenty (20) years.
In determining compliance, the following minimum conditions shall be used in the
calculations for pole strength:
1. All single-phase lines shall be assumed to have been reconductored to No. 2 ACSR
conductor, Code Name Span-ate, for both phase and neutral. If a larger conductor size
exists, the larger size shall be used in ~lie calculations.
2. All three-phase lines shall be assumed to have been reconductored to 556 AAC
Code Name Mistletoe conductor for three (3) ph{~ses and neutral. If existing
conductors are larger than 4/0 AWG ACSR, the larger size shall be used in the
calculations.
3. All pole lines shall assume a secondary/service conductor, installed from pole to pole,
of #4/0 AWG triplex cable, with an ACSR messenger.
4. For pole strength calculations, all poles shall be as they actually exist, or be
considered Class 4 for calculations.
5. All line angles or dead ends shall be guyed and anchored. Transverse pole ~trength
shall not be assigned to attaching pole users for line angles, i.e., pole should be
Interim Pole Attachment License Agreement
Appendix "E"
Appendix E--Distribufion Line Minimum Design
Review Information and Suggesfed Worksheet
viewed as being void of other cables, conductors, wires or guys and considering only
the applicmWs wires/cables for guying calculations.
6. Points of attachment sliall be as they actually exist on the poles.
7. For a Utility-approved joint use of anchors, the Licensee shall utilize guy insulators
in its guys.
Lessee shall comply with any NESC and/or Utility safety factors, whichever is more
conservative, in their designs. The engineer for the Permit applicant shall provide for
each application the following confirmations:
Required permits that have been obtained (insert rJa if not applicable):
(y/n) U.S. Corp of Engineers.
(y/n) Highway--state, county, city.
(y/n) Raikoad.
(y/n) Local zoning boards, town boards, etc.
(y/n) Joint use perrt6ts, ifreqUked.
(y/n) Notified other pole users of contacts or crossings.
Confirm that you have:
(y/n) Obtained appropriate franchise(s).
(y/n) Obtained poie/anchor e~sements from land owners.
(y/n) Obtained crossing and overhang permits.
(y/n) Obtained permit to survey R/W.
(y/n) Completed State of Texas Department of Transportation requirements.
(y/n) Placed permit number on plans.
(y/n) Complied with applicable Underground Facility
Location requirements.
(y/n) Included sag/tension data on proposed cable.
NESC and the latest editions of the
Calculations are based upon the latest edition of the
requirements of the State of Texas.
Interim Agreement Pole Attachment License
Appendix "E"
Appendix E--Distribution Line Minimum Design
Review information end Suggested Worksheet
It is Licensee's responsibility to obtain all necessary permits and provide the Utility with
a copy of each.
The engineer for the
following information:
Prnj eot ID
Pole number
Pole class
Pole size
Pole type
Pole fore span
Pole back span
Calculated bending
moment at ground level
Ex/stin~:
Power phrase condition
Power neutral condition
Power sec condition
Permit applicant shall provide for each Pole(s) the
[if pole tag missing, contact Utility]
[existing--i.e., 4, 3, 2...]
[existing--i.e., 35, 40...]
[Southern Yellow Pine, Douglas Fir...]
[feet]
[feet]
Telco #1 cables
CATV #2 cables
User #3 cables
User #4 cables
· User #5 cables
User #6 cables
Proposed:
Proposed cables
[ft-lbs]
quantity of
CU/AA/ACSR ~
quautity of
CU/AA/ACSR ~_
.quantity of
CU/A-~ACSR ~.
qty of dia ~
qty of dia ~,
.qty of dia ~
qty of dia ~_
qty o( dia @.
qty of dia @_
qty of dia ~.
AWG/MCM
feet above ground line
AWG/MCM
feet above ground line
AWG/MCM
feet above ground line
ft above ground line
f~ above ground line
ft above ground line
f~ above ground line
ft above ground line
ft above ground line
ft above ground line
Interim Pole Attachment License Agreement
AppencF~x "E" 3
Appendix E--Distribution Line Minimum Design
Review Information and Suggested Worksheet
Proposed cables, qty of dia ~ il above ground line
AGL = Above Ground Level
The rnJnimum vertical clearance under all loading conditions measured from the proposed
cable to ground level on each conductor span shall be stated above. Variations in
topography resulting in ground elevation changes shall be considered when stating the
mtn]mum vertical clearance within a given span.
Calculated pole bending moment at ground level:
Pole breaking bending moment at ground level:
Calculated transverse safety factor:
[il-lbsl
.[ft-lbs]
[ratio should be greater than 1.00]
Proposed loading data [provide similar data for each cable proposed]:
A. Weight data (cable and messenger)--
1. Vertical weight, bare = [#/il]
B. Tension data (final tensions on messenger)--
1. NESC maximum load for area of construction: [lbs]
2. 60° F, NO wind: [lbs]
Permit applicant's engineer shall provide for each transverse guy, or dead-end to which
guys andTor anchors are attached, the following information:
Pole number
Calculated cable messenger tension under
NESC maximum loading conditions
if connection is:
A dead end, is it a single or double?
A change.in tension, what is change?
A line angle, what is angle change?
What is tension change at angle?
For each dead-end:
Point of attachment for guy hook
[lbs]
[S, D]
[lbs]
[degrees]
[lbs]
[feet AGL]
Interim Agreement Pole Attaclnnent License
Appendix "E"
Anchor distance from pole
Calculated guy tension
Rated guy working strength
For each change in tension:
Point of attachment for guy hook
Anchor distance from pole
Calculated guy tension
Rated guy working strength
]For each line angle:
Point of attachment for guy hook
Anchor distance from pole
Calculated guy tension
Rated guy working strength
For each anchor:
Anchor distance to nearest anchor
Calculated anchor tension
Rated anchor strength
Soil composition
Appendix E--Distribufion Line Minimum Design
Review Informafion and Suggesfed Worksheef
[feet]
[lbs]
[lbs]
.[feet AGL]
[feet]
[lbs]
[lbs]
[feet AGL]
[feet]
[lbs]
[lbs]
[feet]
[lbs]
[lbs]
[sandy, loam, clay, rock]
8:\Our Documents\Contracts\03llnterim Pole Attachment License Agreement-Appendix E Minimum Design Review & Worksheet.doe
~nterim Pole Attachment License Agreement
Appendix "H"
APPENDIX F--FIELD DATA
SUMMARY SHEET INSTRUCTIONS
Column Instructions
Municipal Pole Number .................. If a Pole stencil is not in place, it may be lef; for
Utility if the accompanying sketch is adeqnate to
determine the Location.
Communication Company's ............ This must correspond with the plan sheet or
Plan Sheet Pole Number Pole Sketch Pole identification number.
Pole Height and Class ...................... List the present Pole height and class and list the
proposed Pole height and class if it is necessary for
Utility to replace the Pole for clearance, etc.
Guy Attachments .............................. All unbalanced loading on Poles must be guyed.
Attachments to Utility's anchors will not be allowed.
Attachment Height ........................... communications Company attachment height
above ground level. List guy lead in feet.
Inches Below Municipal .................. The number of inches Communications Company is
to be attached below Util}ty while maintaining
clearance as required in Item #4.
Span Length ...................................... List the back span length for each attachment.
Inches Sag ......................................... List the messenger sag for the design l~sted on the
cover sheet at 60 degrees Fahrenheit.
Ground Clearance ............................ List the ground clearance at the low point of the
back .span. Must not be less than the National
Elect~4cal Safety Cede (latest edition).
S:\Our Documents\Contracts\03Xlntefirn Pole Attachment License Agreement-Appendix F Field Data Summm-2 Sheet Instructions.doc
I~xterim Pole Attachment License Agreement
Appendix "F"
Exhibit C (Pages Exhibit-24)
~ SCALE : NTS
DENTON ISP ~A~E: o~wo~
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lq
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AlexaadcrUtilitT~'-n~-cerlng,,[u¢. ' ,'.' ' SHEET NUMBER.'
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~,xaad~r U~ility ~,ng~rin~. Inc.
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ELEM
SEE SHEET 07
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DE
I'~I'T~J~ON lSD DATE: 04/27/04
NEWTON
RAYZOR
;LEM
SEE SHEET 08
' SCALE .'1" = 800'
DENTON. ISD DATE: 04/27/04
FIBER PT~;;CABEE ROUTE
SEE SHEET 01
STRICKLAND
MIDDLE
SEE SHEET 09
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_,,.,, DENTON. 1SD DATE: 04/'27/04
.AlexaaderOtilit~Eng,n~ring, Inc. _ ',,' ;,,;ii~;.::.,:.:[: ~J, SHEET NUMBER:
SEE SHEET 02
j SCALE :1" = 800'
DENTON ISD DATE= 04/27/'04
~-".": :.'=V7.:!~,~.~-', FIBER OPTIC.. CA'BLE ROUTE SHEET NU.BER:
SEE SHEET 03
CITY L 1Nil TS
SEE SHEET 11
DENTON ISD: DATE: 04/27/04
, ~, .,,..~;. ;, · :, SHEET:.NUMBER'.
FIBER OPTIC C~L~ .~NOU~E
SEE SHEET
· SEE SHEET 12
- ' SCALE :1" : 800'
DENTON ISD ~,~TE: 0,/~?,'o,~
SEE SHEET 13
Alexander Utility Engineering, Inc.
FIBER
DENTON 1SD
OPTIC CABLE
ROUTE
SCALE :1" = 800'
DATE: 04/27/04
SHEET NUMBER:
WINDLE
ELEM
SEE SHEET 14
SCALE :1" = 800'
DENTON 1SD OATS:
FIBER OPTIC CABLE ROUTE 10
~ERVI
.LY
SEE SHEET 15
SCALE :1" = 800'
.D E,~]' T O _/~ ISD DATE: 04/27/04
Utility Eng~eer~g, ~c. SHEET NUMBER:
,-*-~,~,,~,~,~,,~=~- FIBER OPTIC CABLE ROUTE 1 1
EL
FIBER
DENTON ISD
OPTIC CABLE
ROUTE
SCALE :1" = 800'
DATE: 04/27/04
SHEET NUMBER:
12
PROPOSED
PRIVATE
EASEMENT
McMATH
MIDDLE
SEE SHEET 16
T~ ~ SCALE :l" = 800'
DENTON 1SD OATE: 04/27/04
ii~xa~acr Utility Engineering, Inc. SHEET NU~BEP:
,~,~-,~,~-,=-~:,o~*~-~- FIBER OPTIC CABLE ROUTE 1 3
SEE SHEET 17
SCALE :1" = 800'
DENTON 1SD
Utility Engineering, Inc. SHEET "¢MBER:
EATMENT PLANT RO
FOSTI
SEE SHEET 18
SCALE :1" = 800'
.......... DENTON ISD OATE~ 0,/27/0,
AlexanderUtilityEn ineerJng,[nc. SHEET HUMBER:
P~,o~E..~,~E~.o~,*~o..~.~ FIBER OPTIC CABLE ROUTE 15
SEE 'SHEET 2O
SCALE :1" = 800'
"' DENTON 1SD OATE: 04/27/04
~ Z;;~der Utility Engineering, Ira;. SHEET NUMBER:
?~/""~'~"'~'~"~'~'°~'*~ FIBER OPTIC CABLE ROUTE
HOI
El. EM
SEE SHEET 21
SCALE :1" = 800'
....... DENTO]~ IS.D DATE: 04/27/04
AlexanderUtilityEngineeriag, Iac. SHEET NUMBER:
,~,~,~-,~,~o~*co~ FIBER OPTIC CABLE ROUTE 17
N
EDWARDS
//
SEE SHEET 22
~2der Utility Engineering, Inc.
FIBER
DENTON 1SD
OPTIC CABLE ROUTE
SCALE :1" = 800'
DATE: 04/27/04
SHEET NUMBER:
18
SCALE :1" = 800'
DENTON lSD OATE:
FIBER OPTIC CABLE ROUTE I
~.N
:M
SEE SHEET 23
SCALE :1" = 800'
DENTON 1SD DATE: 04/27/04
Utility Engineering, he. SHEET NUMBER:
,',-,~-.,o,~.~,,~,.*,-,,~,-,,,~,,,,*.,*c...,,~,~ FIBER OPTIC CABLE ROUTE
2O
SEE SHEET 24
'. SCALE :1" = 800'
DENTON lSD
~x~a~der Utili~ Engineering, Inc. ~EET
CROWNOVER
MIDDLE
SCALE :1" = 800'
DENTON 1SD DATE: 04/27/04
Alexander Utility Engineering, laac. SHEET NUMBER:
,~,..~.~.~.E~.~.,.~o..~ FIBER OPTIC CABLE ROUTE
22
:'McNA I R
ELEM
SCALE :1" = 800'
DENTON 1SD DATE: 04/27/04
Alcxauder Utility Engineering, Inc. SHEET NUMBER:
,~.~,~c.o~.*c~.~ FIBER OPTIC CABLE ROUTE
23
CITY LIMITS
CITY LIMITS
J H GUYER HS
; SCALE :1" = 800'
DENTON 1SD OATE: 04/27/04
~ ~xa~der Utility Engineering, Inc. SHEET NUMBER:
~,.~'"~'""~-'~,~,'~.-~,-'"'*~,.--,~-,~ FIBER OPTIC CABLE ROUTE 24