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HomeMy WebLinkAboutRes1987-030 . . . Sponsored by: Garzini CITY OF SEWARD, ALASKA RESOLUTION NO. 87-030 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A JOINT USE AGREEMENT WITH MCCAW/ROCK SEWARD CABLE SYSTEM, INC., FOR USE OF CITY UTILITY POLES, RIGHTS-OF-WAY AND EASEMENTS 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 Joint Use Agreement, incorporated herein by refer- ence, 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 Joint Use 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 ~. C J"'-e~ l:1ARR . GIES:E1!if: MAYOR - -1- I. . . CITY OF SEWARD, ALASKA RESOLUTION NO. 87-030 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 7/V~ f1I ~ Fred B. Arvidson City Attorney -2- . . . JOINT USE AGREEMENT BETWEEN CITY OF SEWARD AND MCCAW/ ROCK SEWARD CABLE SYSTEM, INC. This Agreement, effective by and between The City of Seward, hereinafter called the City, and a corporation of the State of Alaska, hereinafter called the Seward Cablevision (SCV) WITNESSETH: WHEREAS, The City of Seward and Seward Cablevision (SCV) desire joint use of the City 's right-of-ways, easements, trenches and poles when and where such joint use will be of mutual advantage in meeting service requirements. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto, for themse 1 ves and their successors do hereby convenient and agree as follows: ARTICLE I EXPLANATION OF TERMS For the purpose of this agreement, the following terms shall have the following meanings: a. A JOINT USE POLE OR JOINTLY USED POLE is a pole which under the provisions hereof, is used or intended to be used as a cormnon support for the wires, cables, and other appurtenances of each party in the construction, operation and maintenance of its respective equipment. b. ATTACHMENTS are any material or apparatus now or hereafter attached to a joint pole in order to carry out their respective responsibilities which are distribution of electrical energy and cormnunication services. c. ANCHORS a metal rod connected to an anchor and to which a guy strand is attached. Also known as a guy rod. 1 d. JOINT USE TRENCH is a trench used or intended to be used as a comr. >- underground routing for wires, cab les, and other appurtenances of each party in the construction, operation and maintenance of the distribution of electrical energy and communication services. e. Guy Strand a metal to a pole and anchor rod ( cable of high tension strength which is attached or another pole) for the purpose of reducing pole stress. ARTICLE II SCOPE OF AGREEMENT a. This Agreement shall be in effect in all of the territory in the State of Alaska in which the Seward Electric Utility operates, and shall cover all poles now existing or hereafter erected in the above territory when said poles are brought hereunder in accordance with the procedure hereinafter provided. b. The City reserves the right to exclude from joint use: 1. Poles which in the City's judgement are necessary for its sole use; and 2. Poles which carry, or intended by the City to carry, circuits of such character that in the City's judgement the proper rendering of its service now or in the future makes joint use of such poles undesirable. c. City use of the poles will have priority over all other users and the City may require the user to relocate/remove their attachments at their expense when such attachments conflict with the City use of the poles. The City will not be liable for any cost associated with such relocation/removal. d. The City will require all parties desiring joint usage of poles and underground conduits to agree to and assume the same responsibilities as outlined in this agreement. Should other parties in addition to the City, and SCV jointly use a pole, the City will have priority over all other users, thereafter the date joint usage of a particular pole began will establish precedence between all other parties. This Agreement is subject to the Joint Use Agreement between the City of Seward and GTE. 2- . . . e. No joint pole tenant may permit a third party user to have joint usage of a City pole, irrespective of any agreement between the joint pole tenant and the third party. ARTICLE III JOINT USE SPECIFICATIONS a. Minimum requirements for jointly used poles covered by this Agreement together with all attachments on such poles shall be at all times placed and maintained in conformity with the National Electrical Safety Code, current edition, except where modified by authority of the State of Alaska and such other specifications as may be mutually agreed upon and approved in writing: except where the lawful requirements of public authorities may be more stringent, in which case the latter shall govern. Any jointly used poles including their attachments which are not in conformity with this article, shall be brought into conformity at the time of their normal replacement, rearrangement, rebuilding, or reconstruction, and whenever practicable, except if existing condition presents a hazard to life or property, or is likely to cause failure of continuous electrical service. Such hazardous conditions will be corrected at the expense of the responsible party within thirty (30) days of written notice by either party to the other. If the Manager of the Seward electric utility determines an unsafe condition exists that requires immediate repair to protect life and property or maintain electrical service, he will notify the responsible party by telephone or radio. Should that party not be able to respond in a timely manner emergency repairs will be accomplished by the City and charged to the responsible party. b. On joint-use poles, each party shall be responsible for placing, transferring, and rearranging its own attachments, including any tree trimmings or cutting incidental thereto, and obtaining the necessary right for such, and all work shall be done prompt ly upon request and in such a manner as not to interfere with the service of the other party or parties. 3 c. Anchors and/or guys needed to support SCV equipment shall be installed by SCV or by the City if requested by SCV and the City can respond or on cost plus basis if the joint pole tenant does not respond to written request within 30 days. Cost for any damages caused by joint pole tenant's equipment, po Ie strengthening shall be born by the tenant at fault as determined by the City. d. SCV attachments will be located in a one (1) foot space with the lower limit as per NESC. Exception will be noted in the application for permit, Appendix A. For poles taller than 45' the location will be as specified in the permit. ARTICLE IV MAINTENANCE a. On Joint Use poles, each party shall be responsible for maintaining its own attachments including any tree trimmings or cutting incidental thereto, and obtaining the necessary right for such, and all work shall be done promptly upon request and in such a manner as not to interfere with the service of the party or parties. b. In the event of any damage to a joint use pole, the City would be responsible for repairing and/or replacing the pole. SCV would be responsible for any other repairs and/or replacements incidental to the damage to the pole, including but not limited to mounting installments to the pole and splicing necessary wires, etc. ARTICLE V ESTABLISHING JOINT USE OF POLES a. Whenever SCV desires to reserve space for its attachments on any new or existing pole owned by the City, they shall promptly notify the City to that effect. Within a reasonable period after the receipt of notification of the proposed attachment, the City shall notify SCV whether the request for attachment is approved. If, in the judgement of the City, the poles are necessary for its own sole use, the request may be denied. Any additional cost resulting from the request for space shall be born by Seward Cablevision. I.f . . . b. Whenever the City proposes to replace, or requests the replacement of a jointly used pole, the other party or parties shall be given reasonable notice. Upon notification of the actual replacement of the pole, the party or parties receiving such notice shall promptly transfer its attachments from the old to the new pole. The expense of construction or of transferring each tenant I s facilities will rest with each tenant individually. The City will not normally budget or design for joint use unless the need is apparent or is requested by a joint user. c. If at the expiration of thirty (30) days following notice of the replacement of a jointly used pole, the City has removed all attachments on the old pole, but SCV has not removed all of its attachments therefrom, SCV shall indemnify and save harmless the City of such pole for and from all obligation, liability, damages, cost, expenses, or other charges incurred thereafter, because of, or arising out of, the presence or condition of such pole or of any attachment of the tenant thereon. If the City determines it necessary to remove the pole the City may remove/or relocate such attachments and remove the pole without assuming any liability, damage, cost expense or charges. SCV will reimburse the City for all expenses including delay cost of removal of the pole. d. If the City desires at any time to discontinue use of any jointly used poles, it shall give SCV notice in writing to that effect at least 30 days prior to the date on which it intends to remove its attachments from such pole. If at the expiration of such period, the city shall have no attachment on such pole but SCV shall wish to leave attachments on the City's abandoned pole, SCV may purchase the pole from the City at a salvage value determined by the City. e. If the City determines it is necessary to discontinue joint usage of a pole or to replace attachments on a pole due to changed requirements for service, or other valid reason the City shall give SCV notice in writing to that effect at least 30 days prior to the date joint usage must be discontinued. Upon notification, SCV shall promptly remove/relocate its attachments, if SCV fails to accomplish removal/relocation: the City may remove/relocate such attachments as necessary without assuming any obligations what so ever for liability, damages, cost, expense, or other charges incurred thereafter because of or arising out of such effort. f ARTICLE VI RIGHT OF WAYS a. While the City and the joint users will cooperate as far as may be practicable in obtaining rights-of-ways for all joint users on joint poles, the City does not warrant or assure to SCV any right-of-way privileges or easements on, over or across streets, alleys and public thoroughfares, and private or publicly owned property, and if SCV shall at any time be prevented from placing or maintaining its attachments on the City's poles, no liability on account thereof shall attach to the City. The costs to obtain rights-of-ways and/or easements shall be divided equally, provided an agreement was reached before hand between the City and SCV. b. If any conditions develop due to right-of-way description error, or location errors of any type, or by enforceable request for relocation in public right-of-ways, which require the pole line to be relocated, each joint user of the pole shall remove its own attachments at its own expense. ARTICLE VII ASSIGNMENT OF RIGHTS Except as otherwise provided in this Agreement, SCV shall not assign or otherwise dispose of this Agreement or any of its rights of interest hereunder, or in any of the jointly used poles, or the attachments or rights-of-way covered by this Agreement, to any firm, corporation, or individual, without the written consent of the other party; consent shall not be unreasonable withheld. Ie . ARTICLE YIII INDEMNITY/INSURANCE a. 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, SCy's licensing, construction, or operation of the cable television system referred to in this Agreement. b. 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, directly or indirectly from or by reason of such loss, injury or damage. c. 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 anyone occurrence and $500,000 aggregate, and . 2. against liability due to injury to or death of persons shall be not less than $500,000 as to anyone person and $1,000,000 as to any one occurrence. d. SCY shall also carry such insurance Workman(s) Compensation Law, and employers of at least $500,000 per occurrence. as required by an Liability Insurance applicable with limits e. All insurance must be effective before the City will authorize SCY to attach its communications facilities to any pole or place its communication facilities in the City's underground trenches and shall remain in force until such communications facilities have been removed from all such poles and or trench. 7 f. The SCV shall submit to the City certificates by each company insuring 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. g. 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. h. 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. 1. 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 report 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. 2. Seward shall be liable to SCV for the reasonable costs for the physical report 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 worker'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 or 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. B . . . ARTICLE IX FEES AND CHARGES a. SCV agrees to use reasonable care in keeping its records and to use standard procedures, as may be changed from time to time, in accounting for the joint use poles. b. Payments for annual rental will be made within 60 days after the close out date of April 30 of each year at the rate of $6.00 per pole. c. Within the first contractual year following the signing of this Agreement, a joint field audit will be conducted and the City and SCV joint pole records l.ill be updated to reflect the results of the audit. Subsequent audits prior to the annual billing will be conducted. Where annual audits are not conducted the latest audit count shall be used. d. The City shall provide and place a suitable insignia and number on all of its poles for the purpose of audit count. These numbers shall be used in recording deletions or additions to the joint pole prior to audit count. e. The SCV shall furnish the city maps of all underground now in place in in City owned easements and rights-of-ways and shall submit drawings of any future installations buried underground in City owned easements and Right-of-ways or submerged under water within the City's utility district. f. In addit ion, to the above fees and charges, SCV will pay all costs referenced within the Agreement for special work or expense incl: -red by the City due to joint use of its facilities. Such charges may include, but are not limited to emergency relocation of lines, installation of anchors, delays in backfilling trenches, damages caused by SCV work, etc. Such charges will be based on actual expenses incurred and due when billed by the City. 1) Any trench up to 200 feet in length - fixed fee of $100.00 2) Any trench exceeding 200 feet in length a minimum fee of $100.00 plus $1.00 per foot over 200 feet. g. Fees and charges may be readjusted annually as requested by the City. '7 ARTICLE X OCCUPANCY OF UNDERGROUND TRENCH Whenever practical, the City will inform SCV of expected trenching operations. SCV will be allowed to place their c01lUllunication lines in the City's trench but must be present at the time trenching occurs. In no case will the City leave a trench open, after the City's work is complete. SC,,- must be able to schedule their work to coincide with the City or forfeit the Right-to-enter the trench. If SCV chooses to enter a trench of the City's and at a future date the City has a problem which mandates the exposing of a distribution feeder, SCV will be informed of the operation, if not an emergency, and take full responsibility of their c01lUllunication cable. In an emergency, the City will take every precaution to protect SCV's cable but will not be responsible for any damage which may occur. If SCV installs a cable in the City's trench a minimum separation of twelve (12) inches shall be maintained between the City's power cable and SCV communication cable. If additional trenching expenses occurs to the City because of joint use, this additional expense shall be incurred by Seward Cablevision. ARTICLE XI COMMUNITY ANTENNA AGREEMENTS a. At anytime should the City wish to use space for c01lUllunications or license others subsequent to the effective date of this Agreement, video or the parties hereto agree to cooperate to the fullest extent possible to see that any attachments by an additional transmission company to poles owned by the City will cause the least inconvenience and additional costs to the present tenants. This provision is essential since the video transmission company must attach its equipment in close proximity to the telephone company facilities. In this regard the City specifically agree that a joint usage agreement between the City and subsequent applicant must be completed prior to the Company being permitted any joint usage of poles, and that the agreement will: /0 . . . 1. Require the video transmission company to comply with the latest edition of the National Electric Safety Code. 2. Require the video transmission company to compensate the City and other users for reasonable costs incurred in rearranging any of their facilities necessary to provide required clearance for video transmission facilities, whether such expenses are incurred initially or at any time when the existence of video transmission facilities upon the poles necessitate additional expenses on behalf of either the City or other users of the poles. ARTICLE 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 mail, return receipt requested, or by personal delivery: a. For City by mail or by personal delivery to: ~_.,~_[ R"Ml..__~l.,,, &. lJLi.liLldl <1iO O.~1c...- City of Seward P.O. Box 167 Seward, Alaska, 99664 b. For by mail or by personal delivery to: John Burnett Seward Cablevision P.O. Box 929 Seward, Alaska 99664 or to such other addresses as either party hereto may from time to time, designate for that purpose. Whenever a transmittal required to be submitted by a specified date hereunder is delivered by mail as above provided, it shall be timely submitted if deposited in the mail on or before the specified date. II ARTICLE XIII TERMINATION OF AGREEMENT a. Should SCV for any reason cease to provide its cOIIUlmnications services in the area( s) covered by this Agreement for a period in excess of 30 days, then all of SCV rights, privileges and authorizations under this Agreement, including all licenses-permits issued hereunder, shall automatically terminate. b. If SCV shall fail to comply with any of the terms or conditions of this Agreement or default in any of its obligations under this Agreement and shall fail within thirty (30) days after written notice from the City to correct such default or noncompliance, the City may at it option, forthwith terminate this Agreement and all authorizations granted hereunder, or the authorizations covering the poles as to which such default or noncompliance shall have occurred. c. The City shall have the right to forthwith terminate this entire Agreement, or any license issued hereunder, without prior notice to the SCV. 1. If SCV facilities are maintained or used by SCV in violation of any law or in aid of any unlawful act or undertaking: or 2. If SCV attaches to any of the City's poles without having first been issued a license-permit (permit for pole attachment in the form attached as Exhibit. d. If the insurance carrier shall at any time notify the City that the policy or policies of insurance required will be cancelled, this Agreement shall terminate upon the effective date of such cancellation. e. In the event of termination of this Agreement or any of the City's rights, privileges, or authorizations hereunder, SCV shall remove its communication facilities from the City's poles and abandon joint use trench within six (6) months from the date of termination; provided, however, that SCV shall be liable for and pay all fees pursuant to the terms of this Agreement to the City until SCV's facilities are actually removed from the City's poles. 1.;2. . . . f. If SCV does not remove its communication facilities from City's poles and abandon trench system within the applicable time periods specified in this Agreement, the City shall have the right to remove them at the expense of SCV and without any liability on the part of the City to SCV therefore, and SCV shall be liable for and pay fees pursuant to the terms of this Agreement to the City until such facilities are actually removed. ARTICLE XIV This Agreement shall remain in effect until terminated at the end of 25 years from the date hereof or thereafter upon the giving of written notice to the other party of not less than one (1) year prior to the date of termination, except the fees and charges may be readjusted annually as requested by the City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 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 (Corporate Seal) S G...,vARO CARL~Vl'SjOI.J CONTRACTOR b 18 Ii . . . ArnST: APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL AND BRUNO IN, Attorneys for the City of Sewatd, Alaska Linda S. Murphy, City Clerk Fred 6. Arvidson, Cl~y Attorney (City Seal) STATE OF ALASKA ss THIRD JUDICIAL DISTRICT THIS IS TO CERTIFY that, on the day of 19 , before me, the undersigned, a Notary Public 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 mun ic ipa 1 ity. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year hereinabove written. Notary Publ ic for State of Alaska My Commission expires: STATE OF ALASKA ss THIRD JUDICIAL DISTRICT THIS IS. TO 'CERTIFY that on this;:2-0 day of .11-11 v. I 198.7 before me, the undersigned, a Notary Publ ic in and I for the State of Alaska, duly commissioned and sworn as such, personally appeared ::Jul..", e......~~-\-~ lawful agent for 1f..(tQv.//1fock. S~...v-J!(lQ/I.5."<J..,,J..o known to me and to me known to be the person wh'o l1e~eputed the fdregoing instrument for and on behalf of lie {!q",t/i!or i 5~w"v.f~/(..5;'~k, and who acknowledged that he signed the same freely and voluntarily for the uses and purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my han'd and seal on the day and year first hereinabove written. /.5- JUA APPENDIX A ADMINISTRATIVE PRACTICES 1. Application and permit for attachments a. SCV shall prepare an application- permit on the form marked Exhibit A, attached hereto and made a part hereof, when applying for permission to make cable attachments to any pole or poles owned by the City or to place cable in any trenches jointly with the City. The original and three copies of the application-permit form shall be forwarded to the City as far in advance of construction as possible. The information provided on said form shall show the location of poles or trenches with respect to streets, alleys, addresses and other geographical markings with sufficient accuracy that the exact location of the poles can be readily determined. The application shall be reviewed and field checked by the City, and an estimate shall be made of the cost of any rearrangement and/or pole replacements required to provide suitable space for SCV attachments. Request for attachments for service drops only, may be phoned in, however, SCV will assume any cost to relocate if subsequent check by the City reveals a need to change the installation. The count will be verified during the annual audit. The cost of new attachments, between yearly audits, will be computed at ~ of the annual pole charge and be included with the annual rental request for payment. b. SVC shall request RIGHT-OF-WAY (Exhibit B) permit prior to doing any new work in a Seward right-of-way, easement or on City property. Such new work includes setting poles and excavation, which may interfere with other utilities or impede traffic. Ib '- . . . EXHIBIT A -1 Al'PLICATIOll - PDHn' rea POt.! AnAcmmn:S AND/Ol. NOTIl'!CAtIOll or UKOVAL AptJlicat10a No. Dat. To: CitT of S..ari-Util1tT Devutmmlt: S..ard. ~ka Att: CitT ~ftlift..~1 6 Utilit1e. Maaa.er A~~licat1oa aDd/or ~ot:1!icat1ou is hereby requested to(maka atta~ts to) (r-.aved froa) tbe follavizlS poles .. luced below GIll indicated oa tbe. sutCh attachad hereco, listin. pole au.ber, location, attaca.&ut: (a), acc..aorte., ecc. By !1 tls Pole NUllbsrs Pole Locat1om e.l Attaca..ut: ea)/Cable. (I)-aDd/or r.-aval /1 \ EXHIBIT A-2 PDHIt NUMBD. Lieea....Pe1:ll1c g:mced. .l9. aubj eel. to your aplIroval or the follov1A& chaD.e. ad. r..rrm.~ts at: _ ..t:imaud. co.c co you of $ STATUS OF POLE ArrAC1lf!lftS POLES A1'UCDD LICDSOI. 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