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HomeMy WebLinkAboutRes1987-029 . . . Sponsored by: Garzini CITY OF SEWARD, ALASKA RESOLUTION NO. 87-029 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A CONSTRUCTION AGREEMENT WITH MCCAW/ROCK SEWARD CABLE SYSTEM, INC., FOR CONSTRUCTION OF A CABLE TELEVISION SYSTEM WHEREAS, McCaw/Rock Seward Cable System, Inc., dba Seward Cablevision, has received the necessary permits and certificates to construct and operate a cable television system in Seward; and WHEREAS, Seward Cablevision desires to construct its cable television system on rights-of-way and easements owned and/or leased by the city of Seward; and WHEREAS, Seward Cablevision desires to cooperate with the city of Seward and General Telephone in the construction of this new cable television system and to have its system attached to the city's poles or buried in the city's rights- of-way or easements; and WHEREAS, the city administration has reviewed the attached Construction Agreement, incorporated herein by reference, and recommends approval of same; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to execute the attached Construction Agreement between the city of Seward and McCaw/Rock Seward Cable System, Inc., dba Seward Cablevision. Section 2. This resolution shall take effect immedi- ately upon its adoption. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 27 day of April , 19 87 . THE CITY OF SEWARD, ALASKA -1- . . . CITY OF SEWARD, ALASKA RESOLUTION NO. R7-029 AYES: NOES: ABSENT: ABSTAIN: BOOHER, GIESELER, HILTON, MEEHAN, NOLL & SIMUTIS NONE DUNHAM NONE ATTEST: (City Seal) APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Attorneys for the City of Seward, AK f~M~ Fred B. Arvidson City Attorney -2- . . . CONSTRUCTION AGREEMENT BETWEEN CITY OF SEWARD AND McCAW/ROCK SEWARD CABLE SYSTEM, INC. I. PARTIES The parties to this agreement McCaw/Rock business as Seward Cablevision, having its hereinafter called "SCV"), and City of Seward, State of Alaska (hereinafter called "Seward"). Seward Cable System, Inc) doing offices in Seward, Alaska a municipal corporation of the II. RECITALS SCV desires to construct a cable television system on rights-of-way, and easements owned and/or leased by Seward. Exhibit "B", Construction Manual, attached and incorporated herein by reference, describes the proposed installations and attachments that will be used to construct the system on Seward's poles or in Seward's underground system. General Telephone Company of Alaska (GTE) also has attachments on Seward's poles or underground rights-of-ways and easement pursuant to an earlier agreement. SCV desires to cooperate with Seward and GTE in the construction of this new cable television system and to have its new system, attached to Seward 's poles or buried in Seward's rights-of-ways or easements. Both parties desire that following the construction phase of the cable television system, Seward will own and maintain the poles and its electrical lines. Both parties further desire that SCV own and maintain its cable television system underbuild attached to Seward's poles or buried in Seward's underground rights-of-way and easements. I I II AGREEMENT In consideration of the mutual covenants herein, Seward and SCV hereby agree to the following reasonable terms and conditions concerning the construction of the new cable television. IV. EASEMENTS AND RIGHTS-OF-WAY Seward agr~es to concur in the granting to SCV by a separate agreement known as "Joint Use Agreement," attached and incorporated herein by reference, to allow SCV to attach its cable television system to Seward's poles or bury the system in Seward I s rights-of-way and easements. Seward shall have the right to review all easement documents which SCV secured in connection with the new cable television system. Seward shall be given a choice to be named as an additional party to any rights-of-way acquired in connection with the cable television system, and Seward shall have the right of approval as to any such rights-of-way that may effect its service SCV will be responsible for the costs associated with the purchase of such rights-of-way. Seward shall have the right to inspect in a reasonable manner the construction which takes place in the right-of-way in connection with the cable television system. Such inspections shall not relieve SCV of any responsibility, obligation or liability assumed under this agreement with regard to the construction. Nor shall the failure to make such inspections, or the failure to make inspections with reasonable care, create any liability by Seward to SCV or any other person. Said inspections do not constitute any undertaking of responsibility by Seward in any way regarding SCV's facilities or the conditions thereof. Seward may, but need not, advice SCV of the results of any part of all of any particular Seward inspection. Seward has the right to halt construction if Seward finds there may be a threat of imminent harm to Seward and GTE or if the construction may be in violation of applicable code provisions or disruptive of existing services as set forth in Article VI herein. This indemnification provision shall continue in effect so long as SCV owns or operates the cable television system in Seward. 2-- . . . Any reclearing of existing rights-of-way and tree trimming necessary for the construction of the cable television system shall be performed by SCV and the costs of such clearing shall be borne by SCV, except Seward may claim the right to do any clearing that could endanger the electrical service. If such clearing is solely for the benefit of SCV, the cost of such clearing performed by Seward shall be paid by SCV. V. SPECIFICATIONS 1. Sub ject to Seward I s approval which shall include the right to review and approve the plans and specifications for the construction work, SCV will perform the work to construct the cable television system by their personnel or by contract administered by SCV. Seward's review and approval of the plans and specifications does not make Seward responsible for the form or the validity of such plans and specifications. The work shall conform to the requirements of the National Electrical Safety Code, latest edition, and the rules and regulations of any governmental entity having authority over the subject matter, including the applicable bulletins and the specifications of the Rural Electrification Administration. 2. Where the work by SCV is attached to a pole or is placed in an underground right-of-way or easement already occupied by GTE, GTE has a prior right to occupy its space, and SCV wi 11 coordinate with GTE prior to installing its cable television system. Should it be necessary for GTE to relocate its telephone system to accommodate cable television, such costs, will be exclusively borne by GTE and/or SCV as they may agree, except that in no circumstances shall the City be responsible for either party's failure to agree or failure to conform to applicable codes. 3. SCV shall be responsible for and reimburse Seward for the reasonable costs which Seward incurs in the administration of this agreement. Seward shall submit to SCV on a monthly basis documents which indicate the total costs incurred by Seward in the administration of this contract. Costs include out-of-pocket expenses necessitated by administration of the contract as well as the burdened salary rate for time spend by Seward employees on administration vf the agreement. SCV shall pay the costs owning to Seward within 30 days of the receipt by SCV of a bill form Seward. Bills unpaid beyond this time shall accrue interest at the then current prime rate quoted by National Bank of Alaska or its successor institution. 4. Seward shall select a fully qualified field inspector to inspect the construction work being done by SCV to insure that it is in compliance with applicable codes and does not endanger electrical service. SCV will pay for the costs of the time for a field inspector spent inspecting the installation of the new cable television system. It is not expected this will be a full time activity. Such inspection shall not relieve SCV of any responsibility, obligation or liability assumed under this agreement with regard to the construction. Nor should the failure to make inspections with reasonable care, create any liability by Seward to SCV or any other person. Seward need not advise SCV of the results of any particular inspection. 5. Seward shall not be responsible for the construction methods employed by the contractor in the performance of the construction work and shall not be responsible for the failure of the contractor to carry out work in accordance with the SVC documents. 6. SCV shall maintain in good order all records in connection with the construction work of the new cable television system. Seward shall have the right on reasonable notice to inspect such records. 'I . . . VI SERVICE DISRUPTION It is the desire of both parties to minimize to the extent reasonably possible any disruption in service to Seward customers and to minimize to the extent reasonably possible any disruption in Seward customers' property during the construction contemplated in this Agreement. Seward has the right to review and approve the Operational Plan of the contractor on the COT'struction project to insure that Seward's customers will not unnecessarily be out of service or unnecessarily disturbed by the construction project. Such right of review and approval shall be exercised in a reasonable manner by Seward. If SCV while on the construction project fails to perform in accordance with the Operational Plan or if service disruption through Seward 1 s customers becomes unreaso~able, or if Seward's customers 1 property is unreasonably disturbed, Seward has the right to halt construction until the Operational Plan is complied with or until both parties agree upon a new Operational Plan. Furthermore, if there is an unreasonable disruption in service to Seward's customers or if there is an unreasonable disruption to Seward's customers' property as a result of this construction, then Seward may notify SCV of such a disruption. If the service disruption is not immediately corrected by SCV, Seward shall be allowed to perform such work as is necessary to remedy the unreasonable disruption in service to its customers. The reasonable costs of such work by SCV to correct the service disruption including the cost of operating the Seward Generation Plant shall be reimbursed to Seward by SCV. VII DAMAGE REPORTS, LIABILITY, AND INDEMNIFY/CONTRIBUTION (a) Seward and SCV shall each make an immediate report to the other of any damages caused by the reporting party to the other's facilities. (b) Liability in tort or for breach of contract or otherwise as between Seward and SCV for damages to property of Seward or SCV, not involving claims of third parties, shall be as follows: 1. SCV shall be liable to Seward for the reasonable costs for the physical repair of Seward's facilities damaged by the SCV, but Seward shall not be liable for any interference with the operation of SCV's facilities or for any special, incidental, indirect or consequential damages to SCV arising in any manner. ~ J 2. Seward shall be liable to SCV for the reasonable costs for the physical repair of SCV's facilities damaged by the negligence of Seward, but Seward shall not be liable for any interference with the operation of SCV's facilities or for any special, incidental, indirect, or consequential damages to SCV arising in any manner. With respect to claims by third parties, including but not limited to GTE, or employees, agents, or contractors of Seward or SCV, SCV shall indemnify and defend Seward against any and all claims and demands for damages to property or injury or death to persons, including any payments made under any workmen's compensation law or any plan for employees' disability and death benefits, which may arise out of or be caused by any negligence of Seward, its agents, contractors, or employees in the construction of the new pole line. The intent of this provision is to protect Seward against claims, demands, losses and damages, which would not have arisen but for SCV's work in connection with the new cable television system. VIII INDEMNIFY/INSURANCE Seward Cablevision shall indemnify and hold Seward harmless from any cause of action, claim or proceeding of any type relating to, or in any way connected with, SCV's licensing, construction, or operation of the cable television system referred to in this Agreement. The Seward Cablevision shall carry insurance issued by an insurance carrier satisfactory to the City to protect the parties hereto from and against any and all claims, demands, actions, judgments, costs, expenses and liabilities of every kind and nature which may arise or result, direct ly or indirect ly from or by reason of such loss, injury or damage. {? . . . The amounts of such insurance shall be sufficient to cover any damage or injury but not less than: 1. against liability due to damage to property shall be not less than $300,000 as to any ~ occurrence and $500,000 aggregate, and 2. against not less than liability due to injury to or $500,000 as to anyone person to death of persons shall be and $1,000,000 as to anyone occurrence. SCV shall also carry such insurance as Compensation Law and Employers Liability $500,000 per occurrence. required by an applicab le Workers Insurance with limits of at least All insurance must be effective before the City will authorize SCV to begin construction and shall remain in force until such construction is completed. The SCV shall submit to the City certificate by each company ensuring to the effect that it has insured SCV for all liabilities of SCV covered by this Agreement and that it will cancel or change any such policy of insurance issued to SCV except after 60 days written notice to the City. SCV shall be fully responsible for any persons or property injured through the negligence of or from or by reason or on account or as a result of the activities of Seward Cablevision under this Agreement. IX UNCONTROLLABLE FORCES An uncontrollable force shall mean an act of God, act or omission of government, failure of or threat of failure of facility, unscheduled maintenance and repair, labor or material shortage, strike, lockout, or other industrial disturbances, act of the public enemy, war, blockade, insurrection, riot, 7 epidemic, landslide, avalanche, earthquake, fire, storm, lightening, flood, washout, civil disturbance, restraint by court order or public authority, action or nonaction by or inability to obtain necessary authorization or approval from any governmental agency or authority, and any other act of omission similar to the kind herein enumerated. Each of these matters enumerated constitutes an uncontrollable force to the extent that it is not within the reasonable control of the affected party, and to the extent that such party by the exercise of due diligence is unable to overcome it. Strikes, lockouts, and other labor disturbances shall be considered uncontrollable forces and nothing in this Agreement shall require either party to settle a labor dispute against its best judgment. In the event either party, by reason of an uncontrollable force, is rendered unable, wholly or in part, to perform its obligations under this Agreement, then upon said party giving notice and particulars of such uncontrollable force, its obligation to perform (other than the obligation to pay money) shall be suspended during the continuance of any inability so caused, but for no longer period, and the affects of such cause shall, so far as possible, be remedied with all reasonable dispatch; provided, however, that the settlement of labor disputes shall be considered wholly within the discretion of the party involved. The affected party shall not be responsible for its delay in performance under this Agreement during delays caused by an uncontrollab le force, nor shall such uncontrollable force give rise to claim for damages or constitute default. X BREACH AND WAIVER: SEVERABILITY: ARTICLE HEADINGS (a) The failure of either Seward or SCV to enforce any provision of this Agreement or the waiver thereof in any instance shall not be construed as a general waiver or relinquishment on its part of any such provision but the same shall nevertheless be and remain in full force and effect. (b) The Article headings contained in this Agreement are for convenience and reference, and are not intended to define or limit the scope of any provision of this Agreement. g . . . (c) In the event that any provision of this Agreement should for any reason be held invalid, ineffective, unenforceable or contrary to public policy, the remainder of this Agreement shall remain in full force and effect. With respect to any provision of this Agreement that may be so nullified, the parties shall in good faith attempt to negotiate any required replacement provision. X\CONSTRUCTION This Agreement shall be deemed to have been jointly drafted by Seward and SCV. The parties to this Agreement agree that this Construction Agreement along with all appendices attached and incorporated herein by reference constitute the complete and entire Agreement between' the parties. XII SERVICE OF DOCUMENTS Whenever in this Agreement an application, notice, or communication is provided or required to be given by either party to the other, such application, notice or communication shall be in writing and transmitted by certified United States mail, return receipt requested, or by personal delivery: (a) For Seward Cablevision, by mail to: Seward Cablevision P.O. Box 929 Seward, Alaska 99664 (b) l!:'5ft~~!*I'O. Lu...kt City of Seward P.O. Box 167 Seward, Alaska 99664 or to such other address as either party hereto may, from time to time, designate for that purpose. Whenever a transmittal required to be submitted by a specific date hereunder is delivered by mail as above permitted, it shall be considered timely submitted if deposited in the mail on or before the specified date. XIII TERM OF AGREEMENT This Agreement shall remain in effect until the construction work contemplated by the Agreement is completed and all the payments in connection with the construction work are made. In any event, this Agreement shall terminate no later than December 31, 1988, unless it is further extended by an agreement of both parties. 7 XIV COLLECTIVE BARGAINING AGREEMENTS SCV agrees that it will not cause Seward to violate the terms of any collective bargaining agreement to which Seward may be party. XV COMPLIANCE WITH RULES AND REGULATIONS Both parties agree that all work done in connection with this project will comply with the applicable rules and regulations of all governmental agencies having jurisdiction over the subject matter, including the applicable bulletins of the Rural Electrification Administration. If current installation violates applicable code provisions, SCV may not perform any type of construction work which would also violate code provisions. In particular, all environmental rules and regulations of governmental entities which are applicable in connection with this Agreement shall be followed. XVI INTERPRETATION OF AGREEMENT This Agreement shall be interpreted according to the laws of the State of Alaska. Any legal disputes between the parties pertaining to this Agreement shall have venue in the Third Judicial District of the State of Alaska. XVII ASSIGNMENT Except as otherwise provided in this Agreement, SCV shall not assign or otherwise dispose of this Agreement or any of its rights or interests thereunder without the written consent of the other party. Such consent of the other party shall not be unreasonably withheld. XVIII AMENDMENTS Amendments to this Agreement are permissible if in writing and mutually agreeable to both parties. XIX POLICIES AND PROCEDURES Appendix A, entitled Policies and Procedures attached and incorporated herein by reference, carries the full force and effect of this Agreement and its terms and conditions become the terms and conditions of this Agreement. 10 . . . APPENDIXES The following appendixes are a part of this agreement and incorporated herein by reference. The Appendixes carry the full force an effect of the agreement. Appendix A Appendix B Appendix C Appendix D Appendix E Policy and Procedures Construction Manual Joint Use Agreement Permit To Work In Right-Of-Way Schedule E If JOINT USE AGREEMENT BETWEEN MCCAW/ ROCK SEWARD CABLE SYSTEM, INC. AND CITY OF SEWARD SEWARD, ALASKA CONTRACT SIGNATURE PAGE IN WITNESS WHEREOF the parties hereto have executed this Agreement, the day and year first above written. CITY OF SEWARD OWNER by TITLE (date) WITNESS S E u.) ~(.?~ CA.8-U:;\//SHJ U CONTRACTOR t/-, 2---c' - ~ 7 (Corporate Seal) /~ . . . ATTEST: APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWEll AND BRUNDIN, Attorneys for the .City of Seward, Alaska f~N~ Fred B. Arvidson, City Attorney Linda S. Murphy, City Clerk <City Seal) STATE OF ALASKA ss THIRD JUDICIAL DISTRICT THIS IS TO CERTIFY that, on the day of 19 , before me, the unders igned, a Notary Pub lic in and for the State of Alaska, duly commissioned and sworn as such, personally appeared , known to me and to me known to be the of the City of Seward, Alaska, and acknowledged to me that the foregoing instrument was executed by him in his official corporate municipal capacity, and that he executed the same pursuant to the authorization of the City Council of the City of Seward, Alaska; that the same was executed as the free and voluntary act and deed of the municipal corporate seal of said municipal ity. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year hereinabove written. Notary Public for State of Alaska My Commission expires: STATE OF ALASKA ss THIRD JUDICIAL DISTRICT THIS IS. TO 'CERTIFY that on this .20 day of JL ,-, I 198'7 before me, the undersigned, a Notary Public in and Ifor the State of Ala~a, duly commissioned and sworn as such, personally appeared ~V\ (1" vl '^--"- :".-\- lawful agent for ~ I cL c known to me and to me known to b the person 0 ex uted the instrument for and on behalf of c". K' ~ r ,~, VI , and acknowledged that he signed the freely and volunt rily for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the day and year first hereinabove written. /3