2003-152ORDINANCE NO. 2003-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS ADOPTING AND
APPROVING A UNIFORM POLE ATTACHMENT LICENSE AGREEMENT FOR
ALL POLE ATTACHMENT FEES AND CHARGES AND ALL CONDUIT FEES
AND CHARGES INVOLVING POLES AND CONDUITS OWNED BY THE CITY OF
DENTON, TEXAS; ESTABLISHING UNIFORM POLE ATTACHMENT FEES AND
CHARGES; ESTABLISHING UNIFORM CONDUIT FEES AND CHARGES;
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENTS;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the matter of pole attachments and conduit fees has been brought
before the City Council for its consideration; and
WHEREAS, over twenty (20) years has passed since the City Council last
approved a "Communication Pole Lease Agreement" by and between the City and the
University of North Texas; there are a total of three (3) agreements, with different terms,
different provisions, different termination procedures, different obligors, but uniform
rates, that are in existence regarding the subject of pole attachments; and
WHEREAS, both competition and deregulation have since occurred and have
impacted the market, and there is now competition for the limited amount of utility poles
and in utility underground conduit; over time, this pole space has become a valuable
commodity; and
WHEREAS, recently the Federal Communications Commission ("FCC") has
established guidelines on both the criteria and fees that may be applied by the owner of
poles for the use of such space, and has developed rules that interpret these guidelines;
and
WHEREAS, §54.204(c) of the Texas Public Utility Regulatory Act ("PURA")
provides that a municipal utility in Texas may not charge a pole attachment rate or
underground conduit rate that exceeds the fee the utility would be allowed to charge if the
utility's rates were regulated under federal law and the rules of the FCC; and
WHEREAS, City Staff has participated in a project where a group of cities in
Texas participated in a work group that developed a model pole attachment agreement
with pole attachment and conduit use rate development formulas that adhere to the FCC
standards; in December, 2002 this effort resulted in the American Public Power
Association ("APPA") Pole Attachment Work Book, which also contained the a Pole
Attachment License Agreement, which is substantially the "Pole Attachment License
Agreement" (the "Agreement") which is attached hereto; and
WHEREAS, the Agreement provides a uniform agreement applicable to all
entities attaching to the City's poles and to users of the City's communications facilities;
at a uniform rate of compensation to be paid to the City; in the form ora license; adopting
reasonable and uniform technical standards for such use, clearly permitt'mg the City to
remove such facilities, at the licensee's expense, if the licensee does not do so after thirty
(30) days notice; and
WHEREAS, the rates recommended by Staff are $24.45 per pole attachment/per
year and $.38 per linear foot of primary conduit used/per year. These rates were
developed by Staff utilizing the APPA Pole Attachment Work Book, and utilize
assumptions that do not result in the highest possible rates that are chargeable under the
formula; which rates arguably provide for cost-recovery, and include the recovery of both
ROI and franchise payments which are recoverable by the City's general government; the
Agreement provides for changes in rates by the City Council upon sixty (60) days notice;
and said rates are also factored by an annual cost-of-living provision; and
WHEREAS, the City Council understands that the new "Agreement" shall replace
the three (3) existing pole attachment agreements now in effect, when the terminations of
these three (3) previous agreements become effective. NOW THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the City CounciI hereby approves and adopts the attached
"Pole Attachment License Agreement" as the uniform agreement governing all pole
attachments and use of conduit applicable to all City-owned pole attachments and
conduits, from and after the effective date of this Ordinance.
SECTION 2. That the City Council hereby approves and adopts the fee of
$24.45 per pole attachment/per year as the "Pole Attachment Rate" until further
ordinance by the City Council is approved.
SECTION 3. That the City Council hereby approves and adopts the fee of $.38
per linear foot of primary conduit used/per year as the "Conduit Rate" until further
ordinance by the City Council is approved.
SECTION 4. The City Manager is hereby authorized to execute and deliver on
behalf of the City, a "Pole Attachment License Agreement" between the City of Denton,
Texas and any and all persons or entities desiring to attach to the City's poles or conduits,
which Agreement is attached hereto as Exhibit "A" and incorporated herewith by
reference.
SECTION 5. That the expenditure of funds as provided in the attached Pole
Attachment License Agreement(s) is hereby authorized.
SECTION 6. That this ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this the ~t~ day of c'~/ff.f, ,2003.
EULINEBROCK, MAYOR
ATTEST:
JENN~ERWALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By:
S:\Our Documents\Ordinances\03XPole Aitachment License Agreement Ordinance-2003.doc
STATE OF TEXAS §
COUNTY OF DENTON §
POLE ATTACHMENT LICENSE AGREEMENT
ThiS Pole Attachment Licensing Agreement (the "Agreement") dated this day
of.__ _, 2003 is made by and between DENTON MUNICIPAL ELECTRIC
(hereinafter referred to as "Utility" or as "Licensor"), a municipally-owned
electric utility of the State of Texas, and
(hereinafter referred to as "Licensee").
Recitals
Ao
Whereas, Licensee proposes to install and maintain Communications Facilities
and associated communications equipment on Utility's Poles to provide
Communications Services to the public; and
Whereas, Utility is willing, when it may lawfully do so, to issue one or more
Permits authorizing the placement or installation of Licensee's Attachments on
Utility's Poles, provided that Utility may refuse, on a nondiscriminatory basis, to
issue a Perrnit where there is insufficient Capacity or for reasons relating to safety,
reliability, generally applicable engineering purposes and/or any-other Applicable
Standard; and
Whereas, on the day of , 19 ., Utility and Licensee entered
into a [insert name of prior agreement] (e.g., the "19~Agreement"); and
Whereas, by U.S. Mail, Certified Mail, Return Receipt Requested, by letter dated
May , 2003, Utility gave notice to Licensee that Utility/Licensor was
terminating the 19 Agreement effective ., 200_; and
to
Whereas, the parties intend that this Agreement replace the 19
its termination; and
__ Agreement on
E
Therefore, in consideration of the mutual covenants, terms and conditions and
remunerations herein provided, and the fights and obligations created hereunder,
both parties hereto AGREE as follows:
Pole Affachment License Agreement I
AGREEMENT
Article 1 Definitions
For the purposes of this Agreement, the following terms, phrases, words, and their
derivations, shall have the meaning given herein, 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 the 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 defined shall be given their common and ordinary meaning.
1.1
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.
1.2
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 ('~NESC"), the National
Electrical Code ("NEC"), 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 requirements of Utility
or other federal, state or local authority with jurisdiction over Utility Facilities.
1.3
Assiened Sl~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.
1.4
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.
2 Pole Attachment License Agreement
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
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 wit/fin Utility'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 Attachment based on Apphcable Standards, including space and
loading considerations.
Climbing Space: means that portion o fa Pole's surface and surrounding space that is
flee from encumbrances 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 wires or cables but which jointly benefits all users of the Poles by supporting
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, thc 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.
Conduit System: means Utility's conduits, lnnerduct, 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 , its authorized
successors and assignees.
Attachment License Agreement 3
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
Make-Ready Work: means all work, as reasonably determined by Utility,
required to accommodate Licensee's Communications Facilities 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 Fadthties or
existing Attachments, inspections, engineering work, permitting work, tree trimming
(other than tree trimming 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.
Overlash: means to place an additional wire or cable Communications Facility
onto an existing Attachment owned by Licensee.
Pedestals/Vaults/Enclosures: means above- or below-ground 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).
Permit: means written or electronic authorization (see Appendix C) of Utility for
Licensee to make or maintain Attachments to specific Utility 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 Communications Facilities on a Pole or within a span of
the Conduit System. Such work includes, but is not limited to, field inspection and
administrative processing. The Pre-Construction Survey shall be coordinated with
Utility and include Licensee's professional engineer.
4 Pole Attachment License Agreement
1.22
1.23
1.24
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 eommunicatiuns eircnits for operation of
Utility's electric system, pursuant to a reasonable projected need or business plan.
Riser: means metallic or plastic encasement materials placed vertically on the
Pole to guide and protect communications wires and cables.
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 this Agreement.
2.3
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 (iii) such Permit(s) comply
with all Applicable Standards.
2.4
Reserved Capacity. Access to Assigned Space on Utility Poles will be made
available to Licensee with the understanding 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 this
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.
Pole Attachment License Agreement 5
2.5
2.6
2.7
2.8
2.9
2.10
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 in 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 rights to
Utility Facilities. Notwithstanding anything in this Agreement to the contrary,
Licensee shall, at all times, be and rema'm a licensee only.
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.
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 reqtfirements.
Expansion of Capacity. 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 tlfis Agreement
shall be construed to require Utility to install, retain, extend or maintain any Pole
or portion of the Conduit System for use 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 which 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 Overlashing pursuant to Article 6.
Absent such authorization, Overlashing constitutes an unauthorized
Attachment and is subject to the Unauthorized Attachment fee specified
in Appendix A, Item 3.
6 Pole Affachment License Agreement
2.12
2.11.2
I~ Licensee demonstrates that the Ovedashing of Licensee's Attachment(s)
is required to accommodate Licensee's Communications Facilities,
Utility shall not withhold Permits for such Overlasking if it can be done
consistent with Paragraph 2.3. Overlashing 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 ali Make-Ready Work and other charges associated with
the Overlashing but shall not be required to pay a separate Annual
Attachment 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
Permits 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 UtiIity allowing Overlashing of Licensee's Communications
Facilities unless Licensee has consented in writing to such Overlashing.
Overlashing performed under this Paragraph2.11.3 shall not increase
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 Article7 shall apply, as
necessary, to all Oveflashing.
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 bc per the
Specifications and Drawings in Appendix D of this Agreement and charges as
provided in Appendix A. Such permission shall not be unreasonably 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.
Po/s Attachment License Agreement 7
3.2
3.3
3.4
3.5
3.6
3.7
3.8
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 issues the invoice.
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
terminated. The invoice shall set forth the total number of Utility's Poles on
which Licensee was issued and/or holds a Permit(s) for Attachments during such
annual rental period, including any previously authorized and valid Permits.
Refunds. No fees and charges specified in Appendix A shall be refunded on
account of any surrender of a Permit granted hereunder. Nor shall any refund be
owed if a Pole or portion of Conduit System is abandoned by Utility.
Late Charg..e.. If Utility does not receive payment for any fee or other amount
owed within 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 pement (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 Pa.gment. At the discretion of Utihty, Licensee may be required to pay
in advance all reasonable costs, including but not limited to administrative,
construction, inspections and Make-Ready Work expenses, in 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
estimated expenses prior to undertaking an activity on behalf of Licensee and
8 Pole Attachment License Agreement
3.9
3.10
3.11
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 requires 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
overhead 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 work, 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.
Work Performed by Ufili,ty. Wherever this Agreement requires Utility to
perform any work, Licensee acknowledges and agrees that Utility, at its sole
discretion, may utilize its employees or contractors, or any combination of the
two to perform such work.
Default for Nonpayment. Nonpayment of any amount due under this Agreement
beyond sixty (60) days shall constitute a material default of this Agreement.
Article 4
4.1
- Specifications
Installation/Maintenance of Communications Facilities. When a Permit is
issued pursuant to this Agreement, Licensee's Commumcations Facilities shall be
installed and maintained in accordance with the requirements 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 shall, at its own expense,
make and maintain its Attachments in safe condition and good repair, in
accordance with all Applicable Standards. Notwithstanding anything in this
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.
Pole Attachment License Agreement 9
4.2
4.3
4.4
4.5
4.6
Interference. Licensee shall not allow its Communications Facilities to impair
the ability of Utility or any third party to use Utility's Poles or Conduit System,
nor shall Licensee allow its Communications Facilities to interfere with the
operation of any Utility Facilities.
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 ora 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.
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 corrected 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
such violation(s) pose an immediate threat to the safety of any person, interfere with
the performance of Utility'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 giving 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 Service. 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 this Agreement and/ur 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 needs 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 requirements of this Agreement,
including the Make~Ready Work provisions. Licensee may obtain a refund on a
10 Pole Attachment License Agreement
4.7
4.8
pro-rata basis of any Attachment Fees it has paid in advance with respect to
expired Permits.
Interference Test Equipment. To the extent Licensee fumishes 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
Appendix A, Item 3. Except as otherwise provided in this Agreement, Licensee
shall remove Nonfunctional Attachments 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 Attachment within sixty (60) days of receiving
the notice. Where Licensee has received a Permit to Overlash a Nonfunctional
Attachment, such Nonfunctional Attachment may remain in place until Utility
notifies Licensee that removal is necessary to accommodate Utility's or another
Attachmg Entity's use of the affected Pole(s). Licensee shall give Utility notice of
any Nonfunctional Attachments as provided in Article 15.
Article 5
5.1
Private and Regulatory Compliance
Necessary Authorizations. Licensee shall be responsible for obtaining from
thc appropriate public and/or private authority or other appropriate persons any
required authorization 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 issued 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
Pole A~techmont License Agreement
5.2
5.3
5.4
of private property, or other persons, that Licensee does not have sufficient rights
or authority to attach Licensee's Communications Facilities on Utility's Poles or
within its Conduit System.
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.
Forfeiture of Utilit3,'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 Communications Facilities would result in a forfeiture of Utility's
rights. Any Permit, which on its face would cover Attachments that would result
in forfeiture of Utility's rights, is invalid. Further, 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 will perform such removal at
Licensee's expense not sooner than the expiration of thirty (30) calendar days
from Utility's issuance of the written notice.
Effect of Consent to Construction/Maintenance. Consent by Utility to the
construction or maintenance of any Attachments by Licensee shall not be deemed
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 Attachment tSom all appropriate parties
or agencies.
Article 6
6.1
Permit Application Procedures
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 this
Agreement shall be grandfathered with respect to Permitting, but shall be subject to
the Attachment Fees. Licensee shall provide Utility with a list of all such pre-existing
Attachments within six (6) months of the effective date of this Agreement.
Attachments to or rights 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
12 Pole Attachment License Agreement
6.3
or other third party, as applicable, shall pay any necessary Make-Ready Work
costs to accommodate such Overlashing.
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 and 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 include 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.
6.4
6.5
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 will review the Permit
Application as promptly as possible, and discuss any issues with Licensee,
including 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
engineehng analysis.
Permit as Authorization to Attach. After receipt of payment for any necessary
Make-Ready Work, Utility 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 Utility determines that it can
accomraodate 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 Utility's actual cost of such Make-Ready Work.
Alternatively, Utility, at its discretion, may require payment in advance for Make-
Pole A~tachment License Agreement 13
7.3
7.4
7.5
7.6
Ready Work based upon the est'unated 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 treed up as per
Paragraph 3.8.
Who May Perform Make-Ready Work. Make-Ready Work shall be performed
only by Utility and/or a contractor authorized by Utility to perform such work.
If Utility cannot 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 f~om Utility for Licensee to
employ a qualified contractor to perform such work.
Scheduling of Make-Ready Work. In performing all Make-Ready Work to
accommodate Licensee's Communications 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
normal work hours, 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.
Written Approval of Installation Plans Required. Before making any
Attachments to Utility's Poles or Conduit System, including Overlashing of
existing Attachments, the applicant must obtain Utility's written approval of
detailed plans for the Attachments. Such detailed plans shall accompany a Permit
application as required under Paragraph 6.4.
Licensee's Installation/Removal/Maintenance Work.
7.6.1
All of Licensee's installation, removal and maintenance work shall be
performed at Licensee's sole cost and expense, in a good and workmanlike
manner, and must not adversely affect the structural integrity of Utility'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
All of Licensee's installation, removal and maintenance work performed
on Utility's Poles or within 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
14 Pole Attachment License Agreement
its Communications Facilities is fully qualified and familiar with all
Applicable Standards, the prowslons of Article 17, and the Minimum
Design Specifications contained in ~ppendix D.
Article 8
8.1
,Transfers
Required Transfers of Licensee's Communications Facilities. If Utility
reasonably determines that a transfer of LiCensee's Communications Facilities is
necessary, Licensee agrees to allow such trlansfer. In such instances, Utility will,
at its option, either perform the transfer using 1ts personnel, and/or contractors
and/or require Licensee to perform such transfer at its own expense within sixty
(60) calendar days after receiving notice fflom Utility. If Licensee falls to transfer
its Facilities within sixty (60) calendar days after receiving such notice fi.om Utility,
Utility shall have the right to transfer Licensee's Facilities using its personnel
and/or contractors at Licensee's expense plus the penalty specified in
Appendix A. Utility shall not be liable for damage to Licensee's Facilities except
to the extent provided in Paragraph 16.1. The written advance notification
requirement of this Paragraph shall not aplply to emergency situations, in which
case Utility shall provide such advance n~tice as is practical given the urgency
of the particular situation. Utility shall then provide written notice of any such
actions taken w~thin ten (10) days of the occurrence. Irrespective of who owns
them, Licensee is responsible for the transfer et Facilities that are overlashed on
to Licensee's Attachments.
8.2
Billing for Transfers Performed by Utility. If Utility performs the transfer(s),
Utlhty will b]I1 Licensee for actual costs per Paragraph 3.9. Licensee shall
reimburse Utility within thirty (30) calendar days of the receipt of the invoice.
Article 9---Pole Modifications . t
And/Or Replacements
9.1 Licensee's Action Requiring Modffication/Replacemen. In the event that
any Pole to which Licensee desires to m~tke Attachment(s) is unable to support
.I
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 adeqhate Pole, including but not limited to
replacement of the Pole and rearrangement or transfer of Utility s Facilities.
Licensee shall be responsible for separ
other Attaching Entities concerning the
itely entering into an agreement with
llocation of costs for the relocation or
Pole Attachment License Agreement
9.2
9.3
9.4
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 fumish/ng to Utility before the commencement of any 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.
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.
Guying. The use of guying to accommodate Licensee's Attachments shall be
provided by and at the expense of Licensee and to the satisfaction of Utility as
specified in Appendix D. Licensee 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 (including any related
costs for tree cutting or trimming required to clear the new location of Utility's
cables or wires) shall be allocated to Utility and/or Licensee and/or other
Attaching Entity on the following basis:
9.4.1
If Utility intends to modify or replace a Pole solely for its own
requirements, 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 Facilities. Prior to making any such
modification or replacement Utility shall provide Licensee written
notification of its intent in order to allow Licensee a reasonable
opporttmity 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 oftkis Paragraph 9.4.1 shall not
apply to routine maintenance or emergency situations. If Licensee elects
15 Pole Attachment License Agreement
9.5
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 the modification of an existing Attachment
sought by an Attaching 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
rearranging or transferring Licensee's Communications Facilities. Licensee
shall cooperate with such third-party Attaching Entity to determine the
costs of moving Licensee's facilities.
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 reimburse 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 administer
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.
Utility Not Required to Relocate. No provision of this 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.
Pole Attachment License Agreement 17
Article 10 Abandonment or
Removal of Utility Facilities
10.1 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 arc attached, it shall give Licensee notice
in writing to that effect at least sixty (60) calendar days prior to the date on which
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 therefrom and has not entered into an agreement to purchase Utility's
Facilities pursuant to Paragraph 10.2, Utility shall have the right, 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 from Utility
and either relocate its affected Facilities 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.
18 Pole Attachment License Agreement
Article 11 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.
Article 12--Termination of Permit
12.1
Automatic Termination of Permit. Any Permit issued pursuant to .this
Agreement shall automatically terminate when Licensee ceases to have authority
to cons~cuct and operate its Communications Facilities on public or private
property at the location of the particular Pole(s)/portion 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 within 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 shall correct all Attachments that are not found to be in compliance
with Applicable Standards with~ thirty (30) calendar days of notification. If it is
found that Licensee has made an A~tachment without a Permit, Licensee shall pay
a fcc as specified in Appendix A, Item 3 in addition to applicable Permit and
Make-l~cady charges. If it is found that five percent (5%) or more of Licensee's
Pole Altachment License Agreement 19
13.2
13.3
13.4
Attachments are either in non-compliance or not permitted, Licensee shall pay its
pro-rata share of the costs of the inspection.
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.
No Liability. Inspections performed under this Article 13, or the failure to do so,
shall not operate to impose upon Utility any hability of any kind whatsoever or
relieve Licensee of any responsibility, obligations or liability whether assumed
under this Agreement or otherwise existing.
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 Attachments in an electronic format specified by Utility.
Article 14 Unauthorized Occupancy orAccess
14.1 Penaltw Fee. If any cf Licensee's Attachments are found occupying any Pole
or segment of the Conduit System for which no Pemait has been issued, Utility,
without prejudice to its other fights 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, Utility 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 thc unlicensed usc and
if any Permit should be subsequently issued, such Permit shall not operate
retroactively or constitute a waiver by Utility of any of its rights or privileges
under this Agreement or otherwise; provided, however, that Licensee shall be
subject to all liabilities, obligations and responsibilities of this Agreement in
regards to the unauthorized use from its inception.
20 Pole Atfachment License Agreement
Article 15 Reporting Requirements
Concurrently with Licensee's Attachment Fee payment and using the reporting form
conta'med in Appendix E, Licensee shall report the following to Utility:
15.1 The Poles on which Licensee has installed, during the relevant reporting period,
Pdsers and service drops, where no Permit was required.
15.2
All Attachments that have become nonfunctional during the relevant reporting
period. The report shall identify the Pole on which the Nonfunctional Attachment is
located, describe the nonfunctional equipment, and indicate the approximate date
the Attackment became nonfunctional.
15.3
Any equipment Licensee has removed from Poles during the relevant reporting
period. The report shall identify the Pole from which 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.
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 Attachment 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.
Pole Attachment License Agreement 21
16.2
Indemnification. Licensee, and any agent, contractor or subcontractor
of Licensee, shall defend, indemnify 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") arising in any way, including any act, omission, failure, negligence or
willful misconduct, in connection with the construction, 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 willful
misconduct giving rise to such Covered Claims. Such Covered Cie'n-ns include,
but are not limited to, the following:
16.2.1
Intellectual property infringement, libel and slander, trespass,
unauthorized use of television or radio broadcast programs and
other program material, and infringement of patents;
16.2.2
Cost of work performed by Utility that was necessitated by Licensee's
failure, or the failure 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, rule, or regulation of the United States, State of Texas or any other
governmental entity or adm'mistrative agency.
22 Pole Attachment License Agreement
16.3 Procedure for Indemnification.
16.4
16.3.1
Utility shall give prompt notice to Licensee of any claim or threatened
claim, specifying the factual basis for such claim and the amount of the
claim If the clami 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 tune, 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 fully with Licensee. If Licensee so assumes control of the
defense of any third-party claim, Utility shall have the fight to participate
in the defense at its own expense. If Licensee does not so assume control
or otherwise participate in the defense of any third-party claim, Licensee
shall be bound 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,
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 Substances, that it will not store
or dispose on or about Utility'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 hazardous
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
Pole Attachment License Agreement 23
16.5
16.6
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, frees, taxes, special charges by others, penalties,
punitive damages, expenses (including reasonable attorney's fees and all 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 Utility's Poles
or Conduit System.
Should Utility's Poles be declared to contain Hazardous Substances, Utility,
Licensee and all Attaching Entities shall share 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 from the
sum of Assigned Space occupied by each Attaching 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.
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 indemnifies Utility shall be constmcd in any way to limit any
other indemnification provision contained in this Agreement.
Attorney's Fees. If Utility brings a successful action in a court of competent
jurisdiction to enforce this Agreement, 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 acknowledges and agrees that it has an obligation
24 Pole Attachment License Agreement
17.2
17.3
17.4
17.5
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 Systein.
Knowledge of Work Conditions. By executing 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.
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 WARRANTIES,
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.
Duty. of Competent Supervision and Performance. The parties further
understand and agree that in the performance of work under this Agreement, Licensee
and its agents, employees, contractors and subcontractors will work near electrically
energized lines, transformers or other Utility Facilities, and it is the intention that
energy therein will not be interrupted during the continuance of this Agreement,
except in an emergency endangering life, grave personal injury or property. Licensee
shall ensure that its employees, agents, contractors and subcontractors have the
necessary qualifications, skill, knowledge, training and experience to protect
themselves, their fellow employees, employees of Utility and the general public,
fxom 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 equipment for their work
to be performed in a safe manner. Licensee agrees that in emergency situations in
which it may be necessary to de-energize any part of Ufility's equipment, Licensee
shrill ensure that work is suspended until thc equipment has been de-energized and
that no such work is conducted unless and until the equipment is made safe.
Requests to De-energize. In the event Utility 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 reimburse Utility in full for all
Pole Attachment License Agreement 25
17.6
17.7
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 of
service by damaging or interfering with any equipment of Utility, Licensee at its
expense shall immediately do all things reasonable to avoid injury or damages,
direct and incidental, resulting therefrom and shall notify Utility immediately.
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 the term of this Agreement, Licensee shall
keep in force and effect all insurance policies as described below:
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 shall 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 liability not less than $2,000,000
commercial general liability, $2,000,000 products/completed operations
aggregate, $2,000,000 personal injury, $2,000,000 per each occurrence.
26 Pole Affachrnent License Agreement
18.2
18.3
18.1.3
Automobile Liability Insurance. Business automobile policy covering all
owned, hixed and non-owned private passenger autos and commercial
vehicles. Limits of liability 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 maintaining 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 known as "extended coverage" insurance or self-insure such exposures.
Qualification~ 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
general liability and automobile liability insurance coverages of the type that
Licensee is required 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 required by this
Agreement. Utility shall be given thirty (30) calendar days advance notice of
cancellation or nourenewal of insurance during thc term of this 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,
Pole Atfachment License Agreement 27
18.4
18.5
18.6
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 limits of liabihty 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 to 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 infi-ingement of patents or copyrights 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 hst of
prohibited provisions shall not be interpreted as exclusive.
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 rights or obligations
under this Agreement, nor any part o£ such rights or obligations, without the
28 Pole A~tachment License Agreement
20.2
20.3
prior written consent of Utility, which consent shall not be unreasonably
withheld. 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.
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 shall furnish Utility with prior written notice of
the transfer or assignment, together with the name and address of the transferee
or assignee. Notwithstanding any assignment 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.
Sub-licensing. Without Utility's prior written consent, Licensee shall not sub-
license or lease to any third party, including but not limited to allowing third
parties to place Attachments on Utility's Facilities, including Overlashing, or to
place Attachments for the benefit of such third parties on Utility'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
Attachment or Overlashing is not subject to this Paragraph 20.3.
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 give notice, or declare this Agreement, or any
authorization granted hereunder terminated, shall not constitute a waiver or reFmquishment
of any term or condition of this Agreement, but the same shall be and remain at all times
in full force and effect until terminated, in accordance with this Agreement.
Article 22--Termination of Agreement
22.1 Notwithstanding Utility'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:
Pole Attachment License Agreement 29
22.2
22.1.1 Construction, operation or maintenance of Licensee's Communications
Facilities in violation of law or in aid of any unlawful act or undertaking; or
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 governmental or private authority or violation of
any other agreement with Utility; or
22.1.3 Construction, 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 fifteen (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 condition(s) and~or fails to give the required confirmation,
Utility may immediately terminate this Agreement or any Pennit(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.
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 the end of
the initial 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 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
Agre~nent 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.
30 Pole Attachment License Agreement
23.2
Even after the termination 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.
Article 24 Amending Agreement
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 certified mail, remm 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:
or to such other address as either party, from time to time, may give the other
party in writing.
25.2
Licensee shall ma'mtain 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 Utihty'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
and Licensee for placement and maintenance of Licensee's Commanications Facilities on
Utility's Poles or within Utility's Conduit System within the geographical service area
Pole Attachment License Agreement 31
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 role of law, and such invalidity does not materially alter the essence
of this Agreement to either party, such provision shall not render unenforceable this entire
Agreement, but rather it is the intent of the parties that this Agreement be administered as
if it did not contain the invalid provision.
Article 28 Governing Law
The validity, performance and 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
the State of Texas.
Article 29---Incorporation of
Recitals and Appendices
The recitals stated above, and all appendices to this Agreement, are incorporated into and
constitute part of this Agreement.
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-Four and 45/100 Dollars ($24.45) per Licensee Pole
Attachment; and an amount of Thirty-Eight Cents ($.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 the totai number of Licensee's Pole Attachments,
and use of Conduit System. The bond shall be with an entity and in a form acceptable to
Utility. The purpose of the performance bond is to ensure Licensee's faithful
performance of all of its obligations under this Agreement and for the payment
by Licensee of any claims, liens, taxes, liquidated damages, penalties and fees due to
Utility which arise by reason of the construction, operation, maintenance or removal of
Licensee's Communications Facilities on or about Utility's Poles or within its Conduit
System.
32 Pole Attachment License Agreement
Article 31 Force Majeure
31.1 In 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, explosion, acts of terrorism,
embargo, acts of the government in its sovereign capacity, material changes
of laws or regulations, labor difficulties, including without limitation, strikes,
slowdowhs, 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 the 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 inability 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 further provided that this provision shall not operate
to excuse Licensee from the timely payment of any fees or charges akeady due
and payable to Utility under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
on the day and year first written above.
"UTILITY"
CITY OF DENTON, TEXAS
DENTON MUNICIPAL ELECTRIC
By:
Pole Attachment License Agreement 33
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
HERBERT L.PROUTY, CITY ATTORNEY
"LICENSEE"
By:
34 Pole Attachment License Agreement
ATTEST:
By:
APPROVED AS TO LEGAL FORM:
By:
S:\Our Documents\Contracta~03~Pole Attachment License Agreement.doc
Attachment License Agreement 35
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 in 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 Annual Index is 179.9.
2. Non-Recurring Fees:
One-time License Agreement Fee ........................ $ 100.00
Permit Application Fee ........................................ $35.00 per Permit Application
(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
Unauthorized Attachment Penalty Fee:
Three times the annual attachment £ee, per occun'ence.
Failure To Timely Transfer, Abandon or Remove Facilities Penalty:
One-fifth (1/5) annual attachment fee per day, per pole, first ~-W (30)days;
The annual attachment fee per day, per pole, for thc second thirty (30) days and
therea~er.
o
o
Pole Attachment License Agreement · I
Appendix A--Fees and Charges
Conduit Fees and Charges
1. Maximum CATV Conduit Rate per Linear Foot: $.10 per linear foot/per year.
2. Maximum Conduit Rate per Linear Foot: $.38 per linear foot/per year.
The two maximum Annual Conduit Attachment Fees set forth above shall be
adjusted annually by any change in 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 Annual Index is 179.9.
Non-Recurring Fees:
One-time License Agreement Fee ........................ $100.00
Permit Application Fee ........................................ $35.00 per Permit Application
(1-100 feet of conduit)
Permit Application Fee ........................................ $70.00 per Permit Application
(101 or more feet of conduit)
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
4. Unauthorized Conduit Usage Penalty Fee:
Three (3) times the annual fee, per occurrence.
Failure to Timely Transfer, Abandon or Remove Facilities Penalty:
One-ill'ch (1/5) annual conduit fee per day, per linear foot, for the first thirty (30)
days;
Annual conduit fee per day, per hnear foot, for the second thirty (30) days
and thereafter.
S:\Our Documents\Contracts\03XAppendix A-Fees & Charges-Pole Attachment.doc
2 Pole Attachment License Agreement
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 Pole Attachment Licensing Agreement.
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 Pm-
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 Agreement contains the minimum design review information that an
applicant must provide and a worksheet for determining the mimmum specifications
that the proposed Attachment must meet.
Following the Pre-Construction Inspection, Licensee shall submit a completed
Permit Application (Appendix C) that includes: mute map, information 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 Agreement) and specifications (Appendix D).
3. The Utility will review the recommendations from the inspection and discuss any
issues with the Licensee.
Upon receipt of written authorization, Utility will proceed with Make-Ready Work
according to the specific agreed-upon installation plans and the terms of the
Agreement, including payment for the Make-Ready Work charges as set out by
Utility and agreed to by the Licensee.
Upon completion of the Make-Ready Work, the Utility will sign and return the
Application for Penuit authorizing the Licensee to make its Attachment(s) in
accordance with agreed-upon installation plans.
The Licensee's professional engineer, utility-approved employee or contractor shall
submit written certification that he/she has completed the Post-Construction Inspection
and that the installation was done in accordance with the provisions of the Permit. The
Post-Coustmction Inspection shall be submitted within ninety (90) calendar days after
installation is complete.
Pole Attachment License Agreement 1
Appendix B--Pole Attachment
Permit Application Process
7. If the Utility waives the professional-engineer requirement, the Utility will perform the
Post-Construction Inspection and charge the Licensee per Article 3 of the Agreement.
S:\Our Documcnts\C ontracts\03~Appendix B-Permit Application Process-Pole Attachment.doc
2 Pole Attachment License Agreement
APPENDIX C APPLICATION FOR PERMIT
Application Date: __/ /
To: [Insert Address of Utility Permitting Department]
Desireto: Attachto UfilityPole(s) __ RemoveAttachmentfromUfilityPole(s)
Permit No.
Number of Poles This 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 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
documentation as required by Appandix F of the Agreement. If applicable, the engineer's
name, State of Texas registration number and phone number are:
Name: Phone
Registration #
Attachment License Agreement 1
Appendix C--Application 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 APPROVED/DISAPPROVED on this
2003.
UTILITY
__ day of _,
By:
Title:
S:\Our Documents\Contracts\03kAppendix C-Application for permit-Pole Attachment.doc
2 Pole Attachment License Agreement
APPENDIX D-~SPECIFICATIONS FOR
LICENSEE'S ATTACHMENTS TO UTILITY POLES
Licensee, when making Attachments to Utility Poles, will adhere to the following
engineering and construction practices.
A. All Attachments shall be made in accordanc with the Applicable Standards as defined
in Paragraph 1.2 of this Agreement.
B. Clearances
Attachment and Cable Clearances: Licensee's Attachments on Utility Poles,
including metal attachment clamps and bolts, metal cross-ann supports, bolts and
other equipment, must be attached so as to maintain the minimum separations
specified in the National Electrical Safety Code ('2qESC") and in drawings and
specifications Utility may from time to time furnish Licensee. (See Drawings A-01
to A-99.)
Service Drop Clearance: The parallel minimum 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 A-06 and A-07.)
Sag and Mid-Span Clearances: Licensee 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) achieved 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
connection/attachment. (See Drawing A-07.)
Vertical Risers: All Risers, including those providing 120/240 volt power for
Licensee's equipment enclosure, shall be placed on the quarter faces of the Pole
and must be installed in conduit with weatherhead attached to the Pole with stand-
offbrackets. 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).
Pole Attachment License Agreement I
Appendix D--Specifications for
Licensee's Attachments 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 Utility Pole. Licensee's
cable/wire Attachments shall be placed on the same side of the Pole as those 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 and Anchors
1. Licensee shall be responsible for procuring and installing all anchors and guy
wires 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 specific 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 wires 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 determine if guys should be grounded or insulated.
D. Certification of Licensee's Design
1. Licensee's Attachment Permit application must be signed and sealed by a
professional engineer, registered in the 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.
2 Pole Attachment License Agreement
Appendix D--Specifications for
Licensee's Attachments to Utility Poles
This certification shall include the confirmation that the design is in accordance
with pole strength requirements of the NESC, taking into account the effects of
Utility's Facilities and other Attaching Entities' facilities that exist on the Poles
without regard to the condition of the existing facilities.
E. Miscellaneous Requirements
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 detail 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/wires not owned by Utility
shall be attached within the Communications space that is located 40 inches
below the lowest Utility conductors (See Drawings A-01 through A-99).
Riser Installations: Ail Licensee's Riser installations shall be in utility-approved
conduit materials 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 obtain additional
construction specifications from 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.
S:\Our Documcnts\Contracts\03\Appendix D-Specifications for Pole Attachments.doc
Pole Attachment License Agreement 3
APPENDIX E--DISTRIBUTION LINE MINIMUM DESIGN
REVIEW INFORMATION AND SUGGESTED WORKSHEET
The following guidelines are provided, and corresponding information must be submitted
with each Permit appl/cation 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 Sparrate, for both phase and neutral. If a larger conductor size
exists, the larger size shall be used in the calculations.
All three-phase lines shall be assumed to have been reeonductored to 556 AAC
Code Name Mistletoe conductor for three (3) phases 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 strength
shall not be assigned to attaching pole users for line angles, i.e., pole should be
Pole Attachment License Agreement 1
Appendix £--Distdbution D'ne Minimum Design
Review Information and Suggested Worksheet
viewed as being void of other cables, conductors, wires or guys and considering only
the applicant's wires/cables for guying calculations.
6. Points of attachment shall 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 n/a 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 permits, if required.
(y/n) Notified other pole users of contacts or crossings.
Confirm that you have:
(y/n) Obtained appropriate franchise(s).
(y/n) Obtained pole/anchor easements from land owners.
(y/n) Obtained crossing and overhang permits.
(y/n) Obtained permit to survey R/W.
(y/n) Completed State of Department of
Transportation requirements.
(y/n) Placed permit number on plans.
(y/n) Complied with Underground Facility
Location requirements.
(y/n) Included sag/tension data on proposed cable.
Calculations are based upon the latest edition of the NESC and the latest editions of the
requirements of the State of Texas.
2 Pole Atfachment License Agreement
Appendix E--Distribution Line Minimum Design
Review Information and 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 Permit applicant shall provide for each Pole(s) the
following information:
Project ID
Pole number
Pole class
Pole size
Pole type
Pole fore span
Pole back span
Calculated bending
moment at ground level
[if pole tag missing, contact Utility]
[existing--i.e., 4, 3, 2...]
[existing--i.e., 35, 40...]
[Southern Yellow Pine, Douglas Fir...]
[feet]
[feet]
_ [R-lbs]
Existing:
Power phase condition
Power neutral condition
Power sec condition
Telco gl cables
CATV #2 cables
User #3 cables
User #4 cables
User #5 cables
User #6 cables
_quantity of
CU/AA/ACSR ~
quantity of~
CU/AA/ACSR ~.
quantity of
AWG/MCM
feet above ground line
AWG/MCM
feet above ground line
AWG/MCM
CU/AA/ACSR ~.
qty of dia ~
qty of dia ~
qty of dia ~
qty of dia ~
qty of dia @
qty of dia 6.
feet above ground line
ft above ground line
ft above ground line
ft above ground line
ft above ground line
ft above ground line
ft above ground line
Pole Affachrnent License Agreement 3
Appendix E--Dist#bution b'ne Minimum Design
Review Information and Suggested Worksheet
Proposed:
Proposed cables
Proposed cables
AGL = Above Ground Level
qty of dia ~.
qty of dia ~.
ft above ground line
fi above ground line
The minimum 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
minimum vertical clearance within a given span.
Calculated pole bending moment at ground level: [fi-lbs]
Pole breaking bending moment at ground level: lfi-lbs]
Calculated transverse safety factor: [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 = [fi/fi]
B. Tension data (final tensions on messenger)--
1. NESC maximum load for area of construction: [lbs]
2. 60° F, NO wind: [lbs]
Pemfit applicant's engineer shall provide for each transverse guy, or dead end to which
guys and/or 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?
[lbs]
IS, D]
[ms]
[degrees]
[lbs]
4 Pole A~tachment License Agreement
Appendix E--Distribution Line Minimum Design
Review Information and Suggested Wod(sheet
For each dead end:
Point of attachment fOr guy hook
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 attacbanent 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
[feet AGL]
[feet]
[lbs]
[lbs]
[feet AGL]
[feet]
[lbs]
[lbs]
[feet AGL]
[feet]
[lbs]
[lbs]
[feet]
[lbs]
[lbs]
[sandy, loam, clay, rock]
S:\Our Documents\Contracts\03~Appendix E-Minimum Design Review & Worksheet-Pole Attachment.doc
Pole Attachment License Agreement 5
APPENDIX F FIELD DATA
SUMMARY SHEET INSTRUCTIONS
Column Instructions,
Municipal Pole Number .................. If a Pole stencil is not in place, it may bc left for
Municipal if thc accompanying sketch is adequate
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
Municipal 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 Utility 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 listed 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
Electrical Safety Code (latest edition).
S:\Our Documents\Contracts\03~Appendix F-Field Data Summary Sheet Instructions~Pole Attachment.doe
Pole Attachment License Agreement I