24-R-14 Authorizing Pole Attachment License Agreement with GVECRESOLUTION NO. 24-R-14
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING ENTERING INTO A POLE
ATTACHMENT LICENSE AGREEMENT WITH GUADALUPE VALLEY
ELECTRIC COOPERATIVE, INC. (GVEC).
WHEREAS, the City of Schertz entered into a Joint Use Pole Agreement with
Guadalupe Valley Electrical Cooperative, Inc. (GVEC) in 2002; and
WHEREAS, the City of Schertz has overhead utilities located on 89 GVEC poles as
authorized under this agreement; and
WHEREAS, GVEC informed the City that they were providing notice to terminate the
current agreement and providing an updated Pole Attachment License Agreement; and
WHEREAS, in order to ensure essential services, provide for a safe community and high
quality of life, it is necessary for the City to continue to be able to locate overhead lines on
GVEC Poles.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS THAT:
Section 1. The City Council hereby authorizes entering into a Pole Attachment Licenser
Agreement with GVEC as per the Attached Exhibit "A".
Section 2. The recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this Resolution for all purposes and are adopted as
a part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any
provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved
herein.
Section 4. This Resolution shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person or
circumstance shall be held to be invalid, the remainder of this Resolution and the
application of such provision to other persons and circumstances shall nevertheless be
valid, and the City Council hereby declares that this Resolution would have been enacted
without such invalid provision.
Section b. It is officially found, determined, and declared that the meeting at which this
Resolution is adopted was open to the public and public notice of the time, place, and
subject matter of the public business to be considered at such meeting, including this
Resolution, was given, all as required by Chapter 551, Texas Government Code, as
amended.
Section 7. This Resolution shall be in force and effect from and after its final passage,
and it is so resolved.
PASSED AND ADOPTED, this4j�—dlay ofI&r 4.
i • •�!� i,1
' .
AT
Shei a Edmondson, ity Secretary
Exhibit "A"
GVEC Pole Attachment License Agreement
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is made and entered into this day
of ("Effective Date") by and between Guadalupe Valley Electric
Cooperative, Inc., a rural electric cooperative ("Licensor"), and
("Licensee"). Licensor and Licensee
may be referred to hereafter individually as a "Parry" and collectively as the "Parties." The
attached Terms and Conditions and all associated Exhibits are incorporated herein and made a
part hereof by this reference.
Notices. The addresses and electronic mail addresses of the Parties to which any notice, request,
consent, demand, designation, approval or statement required to be made to either Party by the
other are as follows:
(a) Licensor:
GVEC-Joint Use
6400 IH 10 West
Seguin, Texas 78155
email: jointuse@gvec.org
(b) Licensee:
Term of A cement. The term of this Agreement is from the Effective Date until
(if not lawfully terminated sooner), and thereafter from year to year,
unless terminated by either Parry by giving notice of its intention to terminate at least six months
prior to the end of any period.
Aa;flieable Law. This Agreement is deemed executed in the State of Texas and shall be
construed under the laws of the State of Texas, without regard to its conflict of laws principles.
Any legal action regarding enforcement of this Agreement shall be commenced and heard in
state court in Gonzales County, Texas ("Court"), and the Parties consent and submit to the
jurisdiction and venue of the Court.
Responsible Person. The addresses and electronic mail addresses of the Parties who are
familiar with the terms of this Agreement and who may be contacted by the other Party to
address contract compliance issues are as follows:
(a) Licensor:
GVEC Joint Use
6400 11110 West
Seguin, Texas 78155
email: jointuse(�gvec.org
(b) Licensee:
Licensee shall update the address and electronic mail address of its responsible person as that
person changes.
Fees
Pole Attachment Rental Fee. $17.87 per Attached Pole per year.
Amount of the Security Instrument. See Section 7.5
Unauthorized Attachment Fee. Two times the current Pole Attachment Rental Fee for every year
the Unauthorized Attachment exists (or if the attachment date cannot be established then five
years), plus $100.
Safety Violation Fee. $200
IN WITNESS WHEREOF, the Parties, each in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, intending to be legally bound,
have caused this Agreement to be executed by their duly authorized representatives as of the
Effective Date first above -written; provided, however, that this Agreement shall not become
effective as to either Party until executed by both Parties.
LICENSOR
By:
(Signature)
Title: _
Print Name:
Date:
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4891-8000-4227, v. 1
LICENSEE
By:
(Signature)
Title:
Print Name:
Date:
Table of Contents
LICENSEAGREEMENT..........................................................................................................................1
TERMS AND CONDITIONS....................................................................................................................8
1. DEFINITIONS......................................................................................................................
LI.
Application..........................................................................................................................8
1.2.
Application Processing Fee.................................................................................................8
1.3.
Attached Pole......................................................................................................................8
1.4.
Attachment..........................................................................................................................8
1.5.
Authorization.......................................................................................................................8
1.6.
Business Day............................................................................................................. ....8
1.7.
Control.................................................................................................................................8
1.8.
Cost.....................................................................................................................................8
1.9.
Default.................................................................................................................................8
1.10.
Imposition Cost...................................................................................................................9
1.11.
Licensee's Service Area......................................................................................................9
1.12.
Licensor Practices...............................................................................................................9
1.13.
Make Ready Costs...............................................................................................................9
1.14.
Make Ready Estimate.........................................................................................................9
1.15.
Make Ready Work..............................................................................................................9
1.16.
Overlashing.........................................................................................................................9
1.17.
Pole......................................................................................................................................9
1.18.
Pole Attachment Rental Fee................................................................................................9
1.19.
..........
Required Authorizations.................................................................................... .......9
1.20.
Security Instrument.............................................................................................................9
1.21.
Service Drop......................................................................................................................10
1.22.
Service Pole.......................................................................................................................10
1.23.
Services.............................................................................................................................10
1.24.
Term..................................................................................................................................10
1.25.
Tree Trimming..................................................................................................................10
1.26.
Unauthorized Attachment.................................................................................................10
1.27.
Unauthorized Attachment Fee...........................................................................................10
2. PURPOSE.....................................................................................................................................10
3. LICENSOR OBLIGATIONS......................................................................................................10
3.1.
Quiet Enjoyment...............................................................................................................10
3.2.
Access to Poles; Easements...............................................................................................11
3.3.
Maintenance of Attached Poles.........................................................................................11
4. LICENSEE OBLIGATIONS......................................................................................................11
4.1. Use of Attachments...........................................................................................................11
4.2. Licensee Service Area.......................................................................................................11
4.3. Compliance with Applicable Rules...................................................................................11
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4891-8000-4227, v. 1
4.4.
Technical Requirements and Specifications......................................................................11
4.5.
Assumption of Risk...........................................................................................................12
4.6.
Safety Precautions.............................................................................................................12
4.7.
Interference Precautions....................................................................................................12
4.8.
Qualifications of Employees, Agents and Contractors.....................................................13
4.9.
Identification Markers.......................................................................................................13
4.10.
Notification of Attachments..............................................................................................13
4.11.
Accommodation of New Attachers...................................................................................13
5. MUTUAL OBLIGATIONS.........................................................................................................13
5.1. Protection of Facilities......................................................................................................13
5.2. Responsible Persons..........................................................................................................14
5.3. Instruction of Employees and Contractors........................................................................14
6. ESTABLISHING ATTACHMENT TO POLES.......................................................................14
6.1.
Pole Attachment Application....................................................................... ..........14
6.2.
Application Processing and Fees.......................................................................................14
6.3.
Decision Regarding Application.......................................................................................14
6.4.
Make Ready Estimate.......................................................................................................14
6.5.
Tree Trimming..................................................................................................................15
6.6.
Overlashing.......................................................................................................................15
6.7.
Service Drops....................................................................................................................15
7. PAYMENT PROVISIONS..........................................................................................................15
7.1. Pole Attachment Rental Fee..............................................................................................15
7.2. Payment Period..................................................................................................................16
7.3. Contractor Invoices...........................................................................................................16
7.4. CPI Increases.....................................................................................................................16
7.5. Security.............................................................................................................................16
8. INSPECTIONS.............................................................................................................................16
8.1. Right to Conduct...............................................................................................................16
8.2. Safety Violations...............................................................................................................17
9. AUDITS.........................................................................................................................................17
9.1. Right to Conduct Audits....................................................................................................17
9.2. Challenge to Audit............................................................................................................17
9.3. Licensee Attachment Records...........................................................................................17
9.4. Licensee Contract Obligations..........................................................................................17
10. UNAUTHORIZED ATTACHMENTS.......................................................................................17
10.1. Unauthorized Attachment Fee...........................................................................................17
10.2. Licensor Failure to Act......................................................................................................18
11. REPLACEMENT AND RELOCATION OF POLES; REARRANGEMENT OF
FACILITIES.................................................................................................................................18
11.1. Replacement or Relocation of Poles.................................................................................18
11.2. Replacement Costs............................................................................................................18
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4891-8000-4227, v. 1
12.
13
14.
15.
11.3. Vacating Pole Space..........................................................................................................18
11.4. Costs for Installation, Removal and Transfer of Licensee's Attachments ........................19
11.5. Costs for Rearrangement or Transfer of Other Facilities..................................................19
11.6. Emergencies......................................................................................................................19
ABANDONMENT OR REMOVAL OF ATTACHED POLES; COMPLIANCE WITH
GOVERNMENT DIRECTIVES................................................................................................19
12.1. Right to Abandon or Remove; Licensee Obligations........................................................19
12.2. Governmental Requirement to Remove............................................................................19
12.3. Governmental Requirement to Shorten Pole.....................................................................20
12.4. Removal of Attachments...................................................................................................20
REPRESENTATIONS, WARRANTIES AND COVENANTS...............................................20
13.1. Common Representations.................................................................................................20
13.2. Required Authorizations...................................................................................................20
13.3. LIMITATIONS ON WARRANTIES...............................................................................20
INDEMNIFICATION..................................................................................................................20
14.1. Licensee Indemnification..................................................................................................20
14.2. Licensor Indemnification..................................................................................................21
14.3. Notice................................................................................................................................21
LIMITATIONS ON DAMAGES
.........................................................21
16. INSURANCE................................................................................................................................22
16.1. Insurance Requirement......................................................................................................22
16.2. Certificate of Insurance.....................................................................................................22
16.3. Responsibility for Contractors..........................................................................................23
16.4. No Limitation on Indemnities...........................................................................................23
17. DEFAULTS.........................................................................
.................23
17.1. Licensee Default................................................................................................................23
17.2. Licensee Cure Period........................................................................................................23
17.3. Termination Because of Licensee Default........................................................................23
17.4. Reimbursement for Licensor Work...................................................................................23
17.5. Licensor Default................................................................................................................23
17.6. Attorney Fees and Court Costs..........................................................................................23
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4891-8000-4227, v. 1
18.
TERMINATION OF AGREEMENT.........................................................................................24
19.
WAIVER OF TERMS OR CONDITIONS................................................................................24
20.
MODIFICATIONS......................................................................................................................24
21.
PAYMENT OF TAXES...............................................................................................................24
22.
NOTICES......................................................................................................................................24
23.
FORCE MAJEURE.....................................................................................................................24
24.
CONSTRUCTION OF AGREEMENT......................................................................................25
25.
OWNERSHIP RIGHTS..............................................................................................................25
26.
THIRD PARTY BENEFICIARIES............................................................................................25
27.
SEVERABILITY..........................................................................................................................25
28.
PRIOR AGREEMENTS SUPERSEDED..................................................................................25
29.
ASSIGNMENT AND TRANSFER.............................................................................................25
30.
ELECTRONIC SIGNATURES; COUNTERPARTS...............................................................26
31.
SURVIVAL; LIMITATIONS ON ACTIONS...........................................................................26
4891-8000-4227, v. 1
EXHIBITS
Exhibit 1.1 (Pole Attachment Application).............................................................................................27
Exhibit 1.11 (Location of Licensee Service Area)...................................................................................29
Exhibit 1.12 (Licensor Rules and Practices for Attachments)..............................................................30
Exhibit6.2 (Application Processing Tasks)...........................................................................................32
Exhibit12.1 (Transfer of Pole Ownership).............................................................................................34
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4891-8000-4227, v. 1
TERMS AND CONDITIONS
1. DEFINITIONS
The following definitions shall apply to this Agreement. Capitalized terms not defined herein shall have
the meaning otherwise set forth in the Agreement.
1.1. Application. The Pole Attachment Application Form attached hereto at Exhibit
1.1 that must be completed by Licensee and approved by Licensor in writing before Licensee may attach
to or make use of any of Licensor's Poles under this Agreement.
1.2. AppIication Processing Fee. The fee that Licensee must pay to reimburse
Licensor for the administrative Costs incurred by Licensor in processing Licensee's Application.
1.3. Attached Pole. A Pole owned or maintained by Licensor that contains at least
one attachment by an entity other than Licensor.
1.4. Attachment. Each affixation of Licensee's cables (including for example and
without limitation coaxial cables, copper cables, and fiber cables), lines, strands, wires and/or associated
apparatus, appurtenances and equipment, to Licensor's Poles.
1.5. Authorization. Licensor's grant of authority to Licensee to affix Attachments to
Licensor's Poles in accordance with the terms of this Agreement.
1.6. Business Da) . All days except Saturday, Sunday and officially recognized
Federal legal holidays.
1.7. Control. With respect to any entity, the possession, directly or indirectly, of: (a)
50% or more of its ownership interests; or (b) the power to direct or cause the direction of management
and policy, whether through the ownership of voting securities, partnership interests, by contract or
otherwise.
1.8. Cost. A Parry's "Cost" may include the costs of materials, labor, engineering,
supervision and allocated overhead but without markup for profit or margin, which costs shall be
determined using the regular and customary methods of such Party and shall be consistent with generally
accepted accounting principles. Such costs may include, by way of example and without limitation: (a)
external contractor or subcontractor labor costs and professional fees; (b) other costs and out-of-pocket
expenses charged on a pass -through basis (e.g., equipment, materials, supplies or contract services); and
(c) internal labor and material costs.
1.9. Default. When either Party: (i) fails to perform any of its covenants or
obligations set forth in this Agreement, (ii) makes any representation or warranty in this Agreement that is
untrue or incorrect, (iii) files a bankruptcy petition in any bankruptcy court proceeding, or (iv) admits in
writing its inability to pay its debts when due or its intention not to comply with any requirement of this
Agreement.
4891-8000-4227, v. 1
1.10. Imposition Cost. All Costs, including but not limited to the Cost of materials and
equipment, fully loaded direct and indirect labor, engineering, supervision and overhead, associated with
performance by Licensor or its contractors and subcontractors of certain tasks as specified in this
Agreement, plus an additional 25%.
1.11. Licensee's Service Area. The area in which Licensee does or plans to provide its
Services, as shown on Exhibit 1.11 attached hereto.
1.12. Licensor Practices. Licensor's rules and practices for Attachments as set forth in
Exhibit 1.12 attached hereto.
1.13. Make Ready Costs. All Costs necessary for Licensor to prepare its Poles for
Licensee's Attachments, including the Costs of materials, labor, engineering, supervision, overhead, and a
share of Tree Trimming Costs (as calculated in Section 6.5). Engineering includes, without limitation,
design, proper conductor spacing and bonding, calculations to determine proper ground clearances and
pole down guy and anchor strength requirements for horizontal and transverse loading, and compliance
with all applicable requirements in Section 4.4 hereto. Also included among "Make Ready Costs" are the
Costs of installing or changing out primary poles, secondary poles and Service Poles, including the Cost
of installation and/or removal of guys, anchors, stub poles, materials and equipment, temporary
construction and all other construction in accordance with the technical requirements and specifications of
Section 4.4.
1.14. Make Read' Estimate. The estimate prepared by Licensor for all Make Ready
Work that may be required by Licensor to accommodate Licensor's Poles for attachment by Licensee, in
the form set forth in Exhibit 1.1.
1.15. Make Ready Work. All work required by Licensor to ensure Licensor's Poles
have adequate space and strength to accommodate Licensee's proposed Attachment.
1.16. Overlashin. The practice whereby a service provider physically ties or
otherwise attaches new wiring to wiring that already has been affixed to a Pole.
1.17. Pole. A wood, concrete, fiberglass or metal pole which is owned by Licensor
bearing electric distribution lines.
1.18. Pole Attachment Rental Fee. The annual amount per Pole that Licensee must pay
to Licensor pursuant to this Agreement in order to affix each Attachment to Licensor's Poles.
1.19. Required Authorizations. All legally required authorizations that Licensee must
obtain from federal, state, county or municipal authorities, public or private landowners, or other third
parties, to erect, operate and maintain its Attachments, and to provide the Services, including all required
franchises, consents, easements, and certificates of convenience and necessity.
1.20. Security Instrument. A performance bond or its equivalent (e.g., irrevocable
letter of credit) to be used by Licensee to guarantee Licensee's payment in full of all amounts which may
be payable to Licensor under this Agreement.
4891-8000-4227, v. 1
1.21, Service Drop. A communications wire extending from Licensee's main line
distribution cable, or from a tap or splitter at the termination of Licensee's main line distribution network,
which is used to provide service to a single customer, building or location. The term "Service Drop" does
not include any messenger cable or strand that supports a coaxial, copper of fiber cable or wire.
1.22. Service Pole. An ancillary pole necessary to extend service from a mainline
distribution Pole to an individual customer(s).
1.23. Services. Cable television, telecommunications, Internet, data transmission or
other similar services or combination of services provided by Licensee, plus any other service that
Licensee is authorized, franchised, or licensed to provide.
1.24. Term. The period during which this Agreement remains in effect.
1.25. Tree Trimming. Any clearing or reclearing of existing rights -of -way or
easements and any tree or brush trimming necessary for the establishment and maintenance of
Attachments, as determined by Licensor in its sole judgment.
1.26. Unauthorized Attachment. Any affixation of any Licensee facility of any nature
to any property of Licensor, including Poles, that has not been authorized by Licensor as required by this
Agreement. Unauthorized Attachments may include facilities affixed to Licensor's property prior to the
Effective Date of this Agreement.
1.27. Unauthorized Attachment Fee. The fee to be paid by Licensee for each
Unauthorized Attachment.
2. PURPOSE
The purpose of this Agreement is to allow Licensee to install and maintain Attachments on Licensor's
electric distribution and fiber Poles in Licensee's Service Area for the limited purpose of providing
Licensee's Services.
This Agreement does not authorize Licensee to install any facilities on transmission poles or towers,
including transmission poles or towers with distribution underbuild.
This Agreement does not authorize Licensee to install any wireless antennas or associated apparatus on
Licensor's Poles or on Attachments affixed to Licensor's Poles. A separate agreement is required for
such installations.
The Authorization granted to Licensee hereunder with respect to any Pole shall be non-exclusive in that
Licensor reserves the right to use any and all such Poles for any lawful purpose of business or to grant any
other person or entity the right to use any or all Poles for any lawful purpose.
3. LICENSOR OBLIGATIONS
3.1. Quiet Enjoyment. Subject to the terms and conditions of this Agreement, and
throughout the Term of this Agreement, Licensor shall not intentionally disturb Licensee's authorized
Attachments, except as such disturbance may be necessary in an emergency or natural disaster situation,
provided that Licensee is performing in accordance with all terms and conditions of this Agreement.
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4891-8000-4227, v. 1
3.2. Access to Poles; Easements. Each Party shall be responsible for obtaining its
own rights -of -way and easements. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ANY
OF ITS RIGHTS -OF -WAY OR EASEMENTS ENTITLE LICENSEE TO ACCESS THE PROPERTY
UNDERLYING LICENSOR'S POLES. Licensor shall not be liable should Licensee at any time be
prevented from placing or maintaining its Attachments on Licensor's Poles because Licensee failed to
obtain appropriate rights -of -way or easements. Licensor may require Licensee to demonstrate that it has
secured its own rights -of -way or easements prior to authorizing any Attachments. If such a requirement is
imposed, the time for Licensor to respond to Licensee's Application shall be tolled pending Licensee's
response. Consistent with the terms and conditions of this Agreement, Licensor shall permit Licensee
access to Licensor's Poles and related overhead and other easements. Further, Licensee's use of the
overhead or other easements is contingent on, and may be prevented or otherwise constrained by, the
extent to which such use is permissible under applicable contracts and instruments between Licensor and
other entities, and under federal, state and local laws and regulations. THIS AGREEMENT APPLIES
ONLY TO DISTRIBUTION POLES AND DOES NOT PERMIT ACCESS OR AFFIXING OF
ATTACHMENTS TO TRANSMISSION POLES, TRANSMISSION TOWERS, OR OTHER
PROPERTY OF LICENSOR, REGARDLESS OF WHETHER THEY BEAR ELECTRIC
DISTRIBUTION LINES.
3.3. Maintenance of Attached Poles. At its own expense, Licensor shall maintain the
Attached Poles, and replace, reinforce or repair such poles as Licensor becomes aware that they are
defective, in Licensor's sole judgment.
4. LICENSEE OBLIGATIONS
4.1. Use of Attachments. Licensee shall use the Attachments solely to provide the
Services.
4.2. Licensee Service Area. Licensee shall identify the Licensee Service Area using
Exhibit 1.11.
4.3. Compliance with Applicable Rules. Licensee shall comply with all federal, state,
and local rules, regulations and ordinances and all technical rules and specifications applicable to
Licensee's affixation of Attachments to Licensor's Poles as authorized herein.
4.4. Technical Requirements and S �ecifications.
(a) At its own expense, Licensee shall erect, install, and maintain its Attachments in safe
condition and good repair in accordance with all applicable technical requirements and
specifications, including, but not limited to:
(i) requirements and specifications of the National Electrical Safety Code
("NESC"), the National Electrical Code ("NEC"), the Occupational Safety and
Health Act ("OSHA") and Rural Utilities Service ("RUS"), and to the extent
such requirements or specifications may conflict, then the most stringent of the
NESC, NEC, OSHA or RUS requirements and specifications;
(ii) any amendments or revisions o� or successor(s) to, the requirements and
specifications of the NESC, NEC, OSHA, and RUS;
(iii) the Licensor Practices set forth in Exhibit 1.12; and
(iv) any current or future rules or orders of any federal, state or local authority
having jurisdiction.
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4891-8000-4227, v. 1
(b) Licensee shall bring into conformity as soon as practical following notice by Licensor,
any existing Attachments of Licensee that do not conform to the technical requirements
and specifications listed in this section. Such Licensee correction shall occur no later
than thirty (30) days of notification of such nonconformance, unless in Licensor's sole
judgment safety considerations require Licensee to take corrective action within a
shorter period. In the event that Licensee fails to comply with this requirement,
Licensor in its sole discretion may elect to bring such Attachments into compliance and
Licensee shall reimburse Licensor for all Imposition Costs related thereto. Licensor
shall not be liable for any loss or damage to Licensee's facilities which may result, and
Licensee shall be responsible for any additional damages resulting from its failure to act
in a timely manner in accordance with these requirements. Failure by Licensor to
inspect Licensee's conformance to the technical requirements and specifications listed in
this section or to take action on its own to bring such Attachments into compliance shall
not cause Licensor to be liable for any loss or injury resulting from such failure of
conformance and shall not relieve Licensee of its obligations of indemnification
hereunder.
(c) The Licensor Practices may be amended from time to time by Licensor as necessary in
its sole discretion to promote the safe and efficient operation of its electric distribution
system, including the Poles, without resort to the provisions of Section 20
(Modifications), and Licensee agrees to be bound by any such amendment. In the event
that Licensor amends the Licensor Practices set forth in Exhibit 1.12, Licensee shall
make all required modifications within thirty (30) days after receipt of notice thereof
from Licensor.
4.5. Assumption of Risk. Licensee expressly assumes responsibility for determining
the condition of all poles to be climbed by its employees, agents, contractors or subcontractors, or that are
in the vicinity of where Licensee's employees, agents, contractors or subcontractors may be working.
Licensee assumes all risks related to the construction, operation and maintenance of its Attachments,
except as to those that may be caused by the gross negligence or willful misconduct of Licensor.
4.6. Safety Precautions. Licensee shall take all steps necessary to protect persons and
property against injury or damage that may result from the presence, installation, use, maintenance or
operation of Licensee's Attachments. Should any such injury or damage occur despite such steps,
Licensee shall promptly notify Licensor within 24 hours of such injury or damage. At Licensor's option,
Licensee shall promptly (within 15 days or within 30 days of invoice, as appropriate) either (i) repair such
damage, or (ii) compensate Licensor for the Cost of repairing any such damage, and shall indemnify
Licensor as provided in Section 14.1.
4.7. Interference Precautions. Licensee will operate its Attachments in a manner that
will not cause or create interference: (i) with Licensor's existing or proposed communications or electric
distribution or transmission operations; (ii) with the equipment of attaching entities whose facilities were
attached to the Pole prior to Licensee's authorized use of the Pole ("pre-existing attachers"); or (iii)
between the equipment of Licensor or any pre-existing attacher. Licensee shall cooperate in any
investigation into, and the resolution of, any such interference. Licensor in its discretion may cause an
independent third -party interference analysis to be conducted and require the entity found to be interfering
improperly to correct the interference or to cease all operations. Licensee shall cooperate with, and
comply with the determination and recommendations of, such third -party analysis. If Licensee is found to
be interfering with Licensor or a pre-existing attacher, Licensee will pay the reasonable Costs associated
with the analysis. If Licensor or the third party analysis determines that Licensee's equipment and/or
operations are interfering with Licensor's equipment and/or operations, or the equipment and/or
12
4891-8000-4227, v. 1
operations of a pre-existing attacher, then Licensee will use best efforts to immediately correct the
interference even if Licensee is operating in full compliance with applicable Federal, State or local
regulations. If Licensee fails to correct such interference within fifteen (15) days after receipt of notice
from Licensor, Licensor may terminate the Authorization for the Poles in question on fifteen (15) days
additional notice and Licensee will promptly remove its Attachments from the Poles.
4.8. Oualifications of Employees, Agents and Contractors. Licensee shall ensure that
all employees, agents and contractors of Licensee used to install or maintain the Attachments either (i)
have been certified or trained by an entity acceptable to Licensor to work in the vicinity of electric
distribution poles or (ii) have received training with respect to work on electric distribution poles that is
in Licensor's sole judgment at least as extensive as the training received by Licensor's employees
performing similar work. Licensee shall produce proof of such certification or training upon Licensor's
request.
4.9. Identification Markers.
(a) Licensee shall place and maintain permanent identification markers at every fourth Pole
on each of its Attachments to such Poles prior to affixing it to Licensor's Poles. All
identification markers must be located at or near the point where such Attachments are
affixed to each Pole, and must:
(i) be non-metallic;
(ii) be of a distinctive and uniform design;
(iii) include an alphanumeric code as specified by Licensor;
(iv) be legible, clearly visible and recognizable from the ground by a person having
normal vision; and
(v) not show Licensee's name or insignia, unless prior consent of Licensor is
obtained and it is made clear that Licensee is not the owner of the pole.
(b) Licensee shall be responsible for periodically inspecting its Attachments to ensure they
have permanent identification markers. Should Licensor encounter any of Licensee's
Attachments without permanent identification markers, Licensor may notify Licensee
provided that Licensor can identify the Attachments as belonging to Licensee. Licensee
shall have thirty (30) days from the date of notice to place such permanent identification
markers on those Attachments. If the markers are not placed within thirty (30) days, then
Licensor may remove such Attachments without incurring any liability to Licensee, and
Licensee shall reimburse Licensor for the Imposition Cost of such removal.
4.10. Notification of Attachments. Licensee shall notify Licensor upon Licensor's
request of the precise location and total number of Licensee's Attachments.
4.11. Accommodation of New Attachers. Licensee must rearrange or transfer its
Attachments to accommodate new attachers in a manner consistent with the technical requirements and
specifications of Section 4.4.
5. MUTUAL OBLIGATIONS
5.1. Protection of Facilities. Each Party shall take all precautions as are reasonably
necessary to avoid damaging the facilities of the other.
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5.2. Responsible Persons. Each Parry shall identify one or more persons who shall be
responsible for receiving notices and other correspondence from the other Party, and who shall be
familiar with the terms of this Agreement and may be contacted by the other Party to address contract
compliance issues. Each Party shall notify the other within seven (7) days if the person(s) responsible
for receiving notices or addressing contract compliance issues has changed, and identify within that
period the name of the new contact person(s).
5.3. Instruction of Employees and Contractors. Licensee shall provide instruction to
ensure that every employee, contractor, subcontractor and agent who may perform work for Licensee
under this Agreement is familiar with all relevant terms and conditions of the Agreement, including the
Technical Requirements and Specifications identified in Section 4.4(a) and the Licensor Practices
identified in Exhibit 1.12.
6. ESTABLISHING ATTACHMENT TO POLES
6.1. Pole Attachment Application. Before Licensee may affix any attachments to or
make use of any of Licensor's Poles under this Agreement, Licensee shall (a) submit to Licensor an
Application requesting Licensor's permission to attach to or make use of each such pole, including all of
the information required to be part of the Application; (b) receive written approval from Licensor
authorizing the attachment to or use of each such pole; and (c) comply with all procedures set forth in
this section. Licensee's failure to request and receive Licensor's permission as described herein will
subject each Unauthorized Attachment to an Unauthorized Attachment Fee.
6.2. Application Processing and Fees. To cover the administrative Costs incurred by
Licensor in processing Licensee's Application, Licensee shall pay to Licensor the Application
Processing Fee. Licensee must in addition pay the Cost of performing all survey, engineering and design
work necessary to prepare the Make Ready Estimate, which Licensor may charge for in advance or after
the work is completed. Licensee shall pay Licensor's Cost to double check information submitted as
part of the application, including the pole loading analysis. If Licensee's pole loading analysis is
insufficient, Licensee shall resubmit another pole loading analysis or may hire Licensor's contractor to
perform such analysis. Licensee shall pay for Licensor to perform post -construction inspection(s) to
verify Licensee's Attachments were installed properly and for Licensor to catalog such new
Attachments. A more detailed list of such Application processing tasks to be conducted by Licensor is
attached hereto at Exhibit 6.2.
6.3. Decision Regarding Application. If in the sole judgment of Licensor
attachment to Licensor's Poles as proposed in the Application is undesirable or impracticable
based on the technical requirements and specifications of Section 4.4, or because of other
capacity, safety, reliability or engineering concerns, including Licensor's current or future need
for such space, Licensor may reject all or part of the Application or limit the number and
character of Attachments on any Pole. Licensor shall notify Licensee in writing whether the
Application is approved, approved with modifications, or rejected.
6.4. Make Ready Estimate.
(a) Licensor shall, on the basis of the Application and associated construction plans and
drawings, submit to Licensee a Make Ready Estimate (based on Licensor's method of
computing Costs, which shall follow generally accepted accounting principles) for all
Make Ready Work which may be required for each Pole, including an estimated
completion date for such Make Ready Work.
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4891-8000-4227, v. 1
(b) Following notice pursuant to Exhibit 1.1 attached hereto that the Make Ready Estimate
has been accepted by Licensee, and upon payment of the Make Ready Estimate, Licensor
shall proceed with the Make Ready Work covered by the Make Ready Estimate. Nothing
shall preclude the Parties from making other mutually agreeable arrangements for
contracting for or otherwise accomplishing the necessary Make Ready Work. Upon
completion of all Make Ready Work, Licensor shall notify Licensee that the Make Ready
Work has been completed.
(c) Upon completion of the Make Ready Work, Licensee shall obtain Authorization to use
the Poles and to make Attachments in accordance with the terms of this Agreement.
6.5. Tree Trimming. Tree Trimming shall be performed by Licensor in its sole
judgment. Licensee shall pay for a proportional share of the Cost, including associated administrative
Costs, of any such Tree Trimming.
6.6. Overlashing.
(a) Any proposed Overlashing by Licensee shall constitute a separate Attachment subject to
the Application process and all other provisions of this Agreement.
(b) Licensee shall not allow third party Overlashing without Licensor's prior approval.
6.7. Service Drops.
(a) A Service Drop may use an existing approved Attachment to a mainline distribution Pole,
and may use new Attachment(s) to one or more Service Pole(s), or both, but cannot
extend along or attach to more than one (1) Licensor mainline distribution Pole.
(b) Licensee need not apply for and obtain Authorization in advance for installing (i) an
Attachment to a Service Pole, or (ii) a Service Drop from an existing Attachment, or
from the cables, strands, wires and associated apparatus of an existing Attachment.
However, Licensee shall apply for Authorization to attach to Service Poles and to install
Service Drops within 30 days following the last calendar day of the month such
Attachment or Service Drop is made. Such Applications shall follow the attachment
application process specified in this Section 6. To the extent Licensee fails to apply for
such Authorization, such Attachments and Service Drops shall be deemed Unauthorized
Attachments.
7. PAYMENT PROVISIONS
7.1. Pole Attachment Rental Fee. The annual rental period covered by this
Agreement shall be the calendar year period beginning on January 1 of each year that this Agreement is
in effect. Licensor shall invoice Licensee for the Pole Attachment Rental Fee after the end of the annual
rental period. The Pole Attachment Rental Fee for each period shall be based on the number of
Attachments on Licensor's Poles as of the day preceding the annual rental period. For Attachments that
are authorized during any part of the annual rental period, the Pole Attachment Rental Fee will be
assessed for the entire annual rental period. Licensor may invoice Licensee for Attachments authorized
during the annual rental period at any time after the Application for such Attachments is approved.
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4891-8000-4227, v. 1
7.2. PaL_ment Period. All amounts payable under this Agreement shall be due within
thirty (30) days of the date of invoice. Interest shall be charged at the rate of 1.5% or the maximum
amount allowed by law on the unpaid balance of delinquent bills for each month or part thereof that any
bill remains unpaid.
7.3. Contractor Invoices. With the exception of Make Ready Work and the Pole
Attachment Rental Fee, Licensor may empower its contractor to invoice Licensee directly for certain
amounts payable under this Agreement for work that the contractor performs on Licensor's behalf.
Licensee shall pay such invoices directly to the contractor in order to satisfy such amount payable. In
such event, if the work being performed by the contractor is work that is subject to an Imposition Cost,
Licensor may bill separately for the additional 25% Imposition Cost charge.
7.4. CPI Increases. Licensor in its sole discretion may increase all fees that are due
and payable under this Agreement effective on each annual anniversary date of the Effective Date to
reflect either the increase in the Consumer Price Index for All Urban Consumers that have occurred since
the Effective Date, or two percent (2%) per year since the Effective Date, whichever is greater. Licensor
shall provide notice to Licensee by November 15fl` for such fee increases which will be effective the
following January 1.
7.5. Security. Unless provided by Licensor in writing to the contrary, Licensee shall
furnish a bond or satisfactory letter of credit, the terms of which shall be subject to Licensor's approval, in
the amount listed below to guarantee the payment of any sums which may become due Licensor under
this Agreement (including the removal of Attachments upon the termination of this Agreement or as
otherwise specified herein), or for any expense that may be incurred by Licensor because of any default of
Licensee. Effective January 1 of any year, Licensor may require Licensee to increase the amount of the
bond or letter of credit consistent with the amounts listed below to reflect any increase in the number of
Poles to which Licensee is attached. All bonds or letter of credit must specify that Licensor be notified
thirty days prior to the expiration or cancellation of the underlying instrument and shall allow for direct
payment to Licensor from such bond or letter of credit of any outstanding amounts due by Licensee under
this Agreement upon default by Licensee of the terms of this Agreement. Licensee is obligated to
maintain the security in the full required amount for the term of the Agreement. The amount of the bond
or other financial security shall not operate as a limitation upon the obligations or liability of Licensee.
Poles
1-50
51-250
251-500
501-2,000
2,001-3,000
3,001+
S. INSPECTIONS
Security Amount
$5,000.00
$25,000.00
$50,000.00
$200,000.00
$300,000.00
$400,000.00
8.1. Right to Conduct. Licensor may conduct inspections of Licensee's Attachments
from time to time as necessary in Licensor's sole judgment to determine whether Licensee's
Attachments meet the technical requirements and specifications listed in Section 4.4. If practicable, as
determined in Licensor's sole judgment, Licensor shall provide three (3) business days notice of such
inspections to Licensee, and Licensee shall have the right to be present at and observe any such
inspections. Such inspections may be conducted no more frequently than once every year, unless
Licensor determines that more frequent inspections are necessary for reasons involving safety of persons
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4891-8000-4227, v. 1
or protection of property. Licensee shall reimburse Licensor for all Costs of conducting inspections to
the extent such expenses are attributable to Licensee's Attachments.
8.2. Safety Violations. If during inspection or otherwise Licensor determines that any
of Licensee's Attachments do not conform with the technical requirements and specifications listed in
Section 4.4, Licensee shall, upon notice by Licensor, pay a Safety Violation Fee for each such violation,
and shall correct such nonconformance within thirty (30) days of notification of such nonconformance,
unless in Licensor's sole judgment safety considerations require Licensee to take corrective action within
a shorter period. Should Licensee fail to take all steps necessary to comply with this requirement, or if
safety considerations so require, Licensor may elect to do such work itself, and Licensee shall reimburse
Licensor for all Imposition Costs incurred by Licensor. Licensor shall not be liable for any loss or
damage to Licensee's facilities which may result, and Licensee shall be responsible for any additional
damages resulting from its failure to act in a timely manner in accordance with these requirements.
9. AUDITS
9.1. Right to Conduct Audits. Licensor may conduct an audit of Licensee's
Attachments to verify the number of Licensee's Attachments. Any such audit may be conducted no
more frequently than once every three (3) years, unless Licensor in good faith believes that Licensee's
reported number of Attachments is inaccurate, in which case Licensor may audit as frequently as is
necessary in its sole discretion. Licensor must provide thirty (30) days notice of any such audit so that
Licensee may be present and observe such audit. Licensee shall reimburse Licensor for its proportionate
share of all Costs of conducting audits. For example, if Licensor conducts an audit of every Pole
Licensor owns, then Licensee shall pay a percentage of those Costs of conducting the full audit based
upon a fraction, the numerator of which is the number of Licensee Contacts, and the denominator of
which is the sum of all Contacts by all non -Licensor attachers, except that Licensor shall be deemed to
have a Contact on any Pole to which Licensor has installed fiber to be used for retail broadband service.
The number of "Contacts" is determined by identifying all attachments on all Licensor Poles, except that
if an attaching entity has more than one attachment on a single pole, the attaching entity will be deemed
to have only a single Contact on that Pole.
9.2. Challenge to Audit, Licensee shall have sixty (60) days within which to dispute
the findings of such an audit by providing written notice and supporting documentation to Licensor. If no
notice or supporting documentation is provided within that period, the audit results shall be deemed
conclusive.
9.3. Licensee Attachment Records. Licensee shall at times create and maintain full
and complete form plats, maps and records showing the exact location of all Licensee facilities and
equipment attached to Licensor's Poles.
9.4. Licensee Contract Obligations. No audit, or lack thereof, shall relieve
Licensee of any responsibility, obligation, or liability assumed under this Agreement.
10. UNAUTHORIZED ATTACHMENTS
10.1. Unauthorized Attachment Fee. Licensee shall pay to Licensor an Unauthorized
Attachment Fee within thirty (30) days of notification of each Unauthorized Attachment. In its
discretion, Licensor may require that such Unauthorized Attachment be removed by Licensee, or
Licensor itself may remove the Unauthorized Attachment without liability, at Licensee's Imposition Cost
expense. If the Unauthorized Attachment is not so removed, Licensee shall submit an Application for
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4891-8000-4227, v. 1
such Attachment, which shall be processed as if the Attachment were not already affixed to the Pole, and
Licensee shall pay for any Make -Ready Work and other charges required to process the Application and
accommodate such Attachment. The Unauthorized Attachment Fee shall be in addition to any and all
other applicable fees, including without limitation, Pole Attachment Rental Fees due and payable for the
current year and all prior years in which the Unauthorized Attachment existed. If it cannot be
determined when such Unauthorized Attachment was attached, it shall be presumed to have been
attached right after the last audit was conducted or five years, whichever is less. Nothing herein shall act
to limit any other remedies, including a remedy for trespass, that may be available to Licensor as a result
of any Unauthorized Attachment.
10.2. Licensor Failure to Act. No act or failure to act by Licensor with regard to any
Unauthorized Attachment shall be deemed to ratify or license the Unauthorized Attachment. If an
Application for such attachment is subsequently approved, such approval shall not operate retroactively
to constitute a waiver by Licensor of any of its rights under this Agreement regarding the Unauthorized
Attachment, and Licensee shall be subject to all liabilities, obligations and responsibilities of this
Agreement from its inception with regard to any such Unauthorized Attachment.
11. REPLACEMENT AND RELOCATION OF POLES; REARRANGEMENT OF
FACILITIES
11.1. Replacement or Relocation of Poles. Except in an emergency involving safety of
persons or protection of property, as determined by Licensor in its sole judgment, Licensor shall provide
twenty (20) days notice to Licensee whenever Licensor intends to replace or relocate an Attached Pole,
specifying the poles involved and the time of such proposed replacement or relocation. Notwithstanding
the foregoing, if a government authority or private landowner requires relocation in less than twenty (20)
days, the notice provided by Licensor shall be reduced accordingly. Licensee may, at the time so
specified, transfer its Attachments to the new or relocated Attached Pole. Should Licensee fail to
transfer its Attachments at the time specified for such transfer, Licensor may elect to transfer Licensee's
Attachments, and Licensee shall reimburse Licensor for all Imposition Costs of such transfer, and
Licensor shall not be liable for any loss or damage to Licensee's facilities which may result. Licensee
shall be responsible for any additional damages resulting from its failure to transfer its Attachments.
11.2. Replacement Costs. If Licensor determines that a Pole needs replacement in
order to accommodate Licensee's proposed Attachments and agrees to such expansion of capacity with a
taller or stronger pole, then Licensor may do so with Licensee's consent and Licensee will bear the
expense of such replacement.
11.3. Vacating Pole Space. In the event it becomes necessary for Licensor, Licensor's
subsidiary or affiliate or any other entity in which Licensor holds an interest, or another utility with
whom Licensor has a prior agreement for pole attachments, to use the space on a Pole occupied or to be
occupied by Licensee's Attachments, Licensee shall, upon receipt of twenty (20) days notice, either (a)
vacate the space by removing its Attachments at its own expense, or (b) if Licensor agrees to replace the
pole with a larger pole that can accommodate Licensee's Attachments, bear the expense of such
replacement and transfer its Attachments to the new pole. Should Licensee fail within the 20-day notice
period to vacate the space or arrange to have the pole replaced, Licensor may (x) remove Licensee's
Attachments, or (y) replace the pole with a larger pole that can accommodate Licensee's Attachments at
Licensee's Imposition Cost expense and transfer Licensee's Attachments.
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4891-8000-4227, v. 1
11.4. Costs for Installation. Removal and Transfer of Licensee's Attachments.
Licensee shall be solely responsible for all Costs of installation, removal or transfer of its Attachments on,
from or to Licensor's Poles.
11.5. Costs for Rearrangement or Transfer of Other Facilities_. In any case where the
facilities of Licensor and/or another attacher(s) are required to be rearranged on existing poles of
Licensor, or transferred to replacement poles of Licensor, in order to accommodate Licensee's
Attachments, Licensee shall reimburse Licensor and the other attacher(s) the total reasonable Costs
incurred by Licensor or the other attacher(s) in rearranging or transferring such facilities to accommodate
Licensee's Attachments.
11.6. Emergencies.
(a) In an emergency involving safety of persons or protection of property, as determined by
Licensor in its sole judgment, Licensor may, without prior notice to Licensee and at
Licensee's sole risk and expense, temporarily replace, relocate, remove, modify or
perform any other work in connection with Licensee's Attachments on any Pole.
Licensor will use commercially reasonable efforts to notify Licensee in advance of any
such replacement, relocation, removal, modification or other work, and to avoid
disruption of service to Licensee's customers, but will have no liability with respect to
any such disruption.
(b) Licensee shall reimburse Licensor for the Costs that Licensor may incur for such
emergency work. In such event, Licensor shall notify Licensee of both the Pole affected
and the work performed.
12. ABANDONMENT OR REMOVAL OF ATTACHED POLES; COMPLIANCE WITH
GOVERNMENT DIRECTIVES
12.1. Right to Abandon or Remove: Licensee Obligations. Upon thirty (30) days
notice to Licensee, Licensor may in its sole discretion abandon or remove any Attached Pole. Within this
30-day period, Licensee shall remove its Attachments and may place its facilities underground if
authorized to place its facilities underground, transfer its facilities to the nearest facilities owned by
Licensor if authorized by Licensor, or take other action not inconsistent with this Agreement. If, at the
expiration of the 30-day period, Licensor shall have no attachments on such pole but Licensee shall not
have removed all of its Attachments, ownership of such pole shall transfer to Licensee at the sole option
of Licensor. If Licensor elects to transfer ownership of such pole, Licensor shall provide Licensee with a
record of that transfer using the "Transfer of Pole Ownership" form attached hereto at Exhibit 12.1.
Licensee shall receive the pole "as is," and shall indemnify, defend and hold harmless Licensor from all
obligation, liability, Cost, claim, damage, expense or charge related thereto or raised thereafter, including
for Licensor's own negligence. Should Licensor elect to sell such pole, Licensee shall take title to the
pole for all purposes. Because poles and related items may contain various hazardous chemicals or
properties, Licensee shall comply with the terms and directions of the appropriate material safety data
sheet and with state and federal law regarding the maintenance, replacement, and/or disposal of the pole.
Licensor does not warrant, guarantee, or imply that such pole possesses sufficient mechanical strength as
required by or for any use of Licensee. Licensor makes no representations or guarantees concerning any
right to occupy the premises where the pole is currently located upon the removal of Licensor's facilities.
12.2. Governmental Requirement to Remove. In the event that the use of any Pole is
or becomes lawfully forbidden by federal, state, county or municipal authorities or by owners of private
19
4891-8000-4227, v. 1
property, Licensor shall provide thirty (30) days notice to Licensee that the Authorization covering the
use of such pole will be terminated, and that the Attachment(s) of Licensee must be removed from the
affected pole at Licensee's expense. Notwithstanding the foregoing, if the federal, state, county or
municipal authority, or private landowner requires discontinuance of the pole in less than thirty (30)
days, the notice provided by Licensor shall be reduced accordingly.
12.3. Governmental Requirement to Shorten Pole. If a governmental authority
requires Licensor to reduce the height of a Pole such that the continued presence of Licensee's
Attachments would not comply with the requirements of this Agreement, then the Authorization
covering Licensee's Attachments to the pole shall immediately terminate upon notice from Licensor, and
Licensee shall remove its Attachments from the affected pole at its own expense by the date specified by
Licensor.
12.4. Removal of Attachments. Licensee may at any time and in its sole discretion
remove any of its Attachments from Licensor's Poles, but shall provide seven (7) business days notice of
such removal to Licensor. Such notice shall fully identify, by pole number and location, the poles from
which such Attachments are being removed. Licensee's obligations to make Pole Attachment Rental
Fee payments shall continue until (i) Licensor receives such notice, and (ii) Licensee actually removes
its Attachments. No refund of any rental fee will be due on account of such removal unless that removal
is triggered by a Default of this Agreement by Licensor. Licensee shall immediately treat all affected
poles with an industry -acceptable wood preservative, plug all holes left by such Attachments, and repair
such facilities as reasonable and appropriate in Licensor's judgment.
13. REPRESENTATIONS, WARRANTIES AND COVENANTS
13.1. Common Representations. Each Party represents and warrants that: (a) it has
full authority to enter into and perform this Agreement; (b) this Agreement does not conflict with any
other document or agreement to which it is a party or is bound, and this Agreement is fully enforceable
in accordance with its terms; (c) it is a legal entity duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it was formed; (d) the execution and delivery of this
Agreement and performance hereunder will not conflict with or violate or constitute a breach or default
under its formation documents and will not violate any law, rule or regulation applicable to it; and (e) no
consents need be obtained from any governmental agency or regulatory authority to allow it to execute,
deliver and perform its obligations under this Agreement
13.2. Required Authorizations. Licensee represents and warrants that it has obtained
all Required Authorizations, and covenants that it will maintain and comply with the Required
Authorizations throughout the Term.
13.3. LIMITATIONS ON WARRANTIES. THERE ARE NO WARRANTIES
UNDER THIS AGREEMENT EXCEPT TO THE EXTENT EXPRESSLY AND UNAMBIGUOUSLY
SET FORTH HEREIN. THE PARTIES SPECIFICALLY DISCLAIM AND EXCLUDE ALL IMPLIED
WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SPECIFICALLY DISCLAIMS ANY
WARRANTY OR REPRESENTATION REGARDING THE CONDITION, SAFETY AND
LONGEVITY OF LICENSOR'S POLES.
14. INDEMNIFICATION
14.1. LICENSEE INDEMNIFICATION. LICENSEE SHALL INDEMNIFY,
PROTECT, SAVE HARMLESS AND INSURE LICENSOR, ITS OFFICERS, DIRECTORS,
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4891-8000-4227, v. 1
EMPLOYEES AND MEMBERS, FROM AND AGAINST ANY AND ALL CLAIMS AND DEMANDS
FOR, OR LITIGATION WITH RESPECT TO, SERVICE INTERRUPTIONS, DAMAGES TO
PROPERTY AND FOR INJURY OR DEATH TO PERSONS, INCLUDING PAYMENTS MADE
UNDER ANY WORKER'S COMPENSATION LAW OR UNDER ANY PLAN FOR EMPLOYEE
DISABILITY AND DEATH BENEFITS AND INCLUDING ALL EXPENSES INCURRED IN
DEFENDING AGAINST ANY SUCH CLAIMS OR DEMANDS, OR OTHER DAMAGES WHICH
MAY ARISE OUT OF, OR BE CAUSED BY LICENSEE OR ITS AGENTS, EMPLOYEES,
CONTRACTORS OR SUBCONTRACTORS WITH RESPECT TO, THE ERECTION, OPERATION,
MAINTENANCE, PRESENCE, USE, REPAIR, REARRANGEMENT OR REMOVAL OF
LICENSEE'S ATTACHMENTS OR UNAUTHORIZED ATTACHMENTS, LICENSEE'S
REARRANGEMENT, MODIFICATION OR TRANSFER OF THE FACILITIES OF ANOTHER
ATTACHER, OR THE PROXIMITY OF LICENSEE, ITS AGENTS AND EMPLOYEES ON OR IN
THE VICINITY OF LICENSER'S POLES. THIS INDEMNITY SHALL ALSO APPLY TO CLAIMS,
DEMANDS, LITIGATION OR OTHER DAMAGES CAUSED BY LICENSER'S NEGLIGENCE.
14.2. LICENSOR INDEMNIFICATION. LICENSOR SHALL INDEMNIFY,
PROTECT, SAVE HARMLESS AND INSURE LICENSEE FROM AND AGAINST ANY AND ALL
CLAIMS AND DEMANDS FOR, OR LITIGATION WITH RESPECT TO, DAMAGES TO
PROPERTY, AND FOR INJURY OR DEATH TO PERSONS, INCLUDING PAYMENTS MADE
UNDER ANY WORKER'S COMPENSATION LAW OR UNDER ANY PLAN FOR EMPLOYEE
DISABILITY AND DEATH BENEFITS AND INCLUDING ALL EXPENSES INCURRED IN
DEFENDING AGAINST ANY SUCH CLAIMS OR DEMANDS, WHICH MAY ARISE OUT OF OR
BE CAUSED BY ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LICENSOR OR
ITS AGENTS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS ON OR IN THE
VICINITY OF LICENSEE'S AUTHORIZED ATTACHMENTS.
14.3. NOTICE. IN THE EVENT OF ANY CLAIM, DEMAND OR LITIGATION
SPECIFIED IN THIS SECTION, THE PARTY TO BE INDEMNIFIED (THE "INDEMNIFIED
PARTY") SHALL GIVE PROMPT NOTICE TO THE OTHER PARTY (THE "INDEMNIFYING
PARTY") OF SUCH CLAIM, DEMAND OR LITIGATION. THE INDEMNIFYING PARTY SHALL
HAVE SOLE CONTROL OF THE DEFENSE OF ANY ACTION OR LITIGATION ON SUCH A
CLAIM OR DEMAND (INCLUDING THE SELECTION OF APPROPRIATE COUNSEL) AND ALL
NEGOTIATIONS FOR THE SETTLEMENT OR COMPROMISE OF THE SAME, EXCEPT THAT
THE INDEMNIFYING PARTY MAY NOT MAKE ANY NON -MONETARY SETTLEMENT OR
COMPROMISE WITHOUT THE INDEMNIFIED PARTY'S CONSENT, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD. THE INDEMNIFIED PARTY SHALL COOPERATE
WITH THE INDEMNIFYING PARTY IN THE DEFENSE AND/OR SETTLEMENT OF ANY
CLAIM, DEMAND OR LITIGATION. NOTHING HEREIN SHALL BE DEEMED TO PREVENT
THE INDEMNIFIED PARTY FROM PARTICIPATING IN THE DEFENSE AND/OR SETTLEMENT
OF ANY CLAIM, DEMAND OR LITIGATION BY THE INDEMNIFIED PARTY'S OWN COUNSEL
AT THE INDEMNIFIED PARTY'S OWN EXPENSE. NOTICE UNDER THIS SECTION MUST BE
PROVIDED VIA PERSONAL DELIVERY, OVERNIGHT DELIVERY, OR CERTIFIED U.S. MAIL.
15. LIMITATIONS ON DAMAGES
UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, LICENSOR SHALL
NOT BE LIABLE TO LICENSEE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY OR INDIRECT DAMAGES SUFFERED BY LICENSEE OR BY ANY SUBSCRIBER,
CUSTOMER OR PURCHASER OF LICENSEE FOR LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, WHETHER BY VIRTUE OF ANY STATUTE, IN TORT OR IN
CONTRACT, UNDER ANY PROVISION OF INDEMNITY, OR OTHERWISE, REGARDLESS OF
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4891-8000-4227, v. i
THE THEORY OF LIABILITY UPON WHICH ANY SUCH CLAIM MAY BE BASED. THE
TOTAL CUMULATIVE LIABILITY OF LICENSOR AND ITS SUBCONTACTORS AND
SUPPLIERS ARISING FROM THE PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO
THIS AGREEMENT, WHETHER IN TORT, CONTRACT, STRICT LIABILUTY, OR OTHERWISE,
INCLUDING ALL EXPENSES INCURRED OR PAYABLE BY LICENSOR IN SATISFACTION OF
ITS OBLIGATIONS UNDER THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL FEES
PAID TO LICENSOR PURSUANT TO THIS AGREEMENT BY LICENSEE. ALL ACTIONS
AGAINST LICENSOR BY LICENSEE IN WARRANTY, TORT, CONTRACT OR OTHERWISE
MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE DATE OF ACCURAL OF SUCH
ACTION.
16. INSURANCE
16.1. Insurance Requirement. Licensee shall carry insurance in such form and issued
by such companies as are reasonably satisfactory to Licensor to protect the Parties from and against any
and all claims, demands, actions, judgments, Costs, expenses and liabilities of every name and nature
which may arise or result directly or indirectly from or by reason of any loss, injury, death or damage
involving any Attachment. Throughout the Term of this Agreement, Licensee shall take out and
maintain, and shall ensure that its agents, contractors and subcontractors take out and maintain, insurance
that, at a minimum, conforms with the RUS insurance requirements of 7 CFR § 1788.11, as it may be
amended, which currently requires:
(a) Workers' compensation and employer's liability insurance, as required by law, covering
all employees who perform any of Licensee's obligations under this Agreement. If
workers' compensation or employer's liability insurance is not required by law in the
state in which the poles subject to this Agreement are located, then insurance shall be
obtained by Licensee that is equivalent to what would be applicable if workers'
compensation and employer's liability laws were in effect.
(b) Public liability insurance covering all of Licensee's operations under the Agreement with
limits for bodily injury or death of not less than $1 million each occurrence, limits for
property damage of not less than $1 million each occurrence, and $1 million aggregate
for accidents during the policy period. A single limit of $1 million of bodily injury and
property damage is acceptable. This required insurance may be in a policy or policies of
insurance, primary and excess including the umbrella or catastrophe form.
(c) Automobile liability insurance on all motor vehicles used in connection with the
Agreement, whether owned, non -owned, or hired, with limits for bodily injury or death of
not less than $1 million per person and $1 million per occurrence, and property damage
limits of $1 million for each occurrence. This required insurance may also be in a policy
or policies of insurance, primary and excess including the umbrella or catastrophe form.
16.2. Certificate of Insurance. Within thirty (30) days of the Execution Date, Licensee
shall furnish to Licensor a certificate evidencing compliance with the above insurance requirements. This
certificate shall list Licensor as additional insured and shall note specific cancellation language, as
follows: "In the event of cancellation or material change of said policies, the insuring company shall give
the Party to whom this certificate is issued thirty (30) days prior notice of such cancellation or material
change." If Licensee fails to renew adequate insurance, Licensor may terminate this Agreement pursuant
to Section 17 (Defaults).
22
4891-8000-4227, v. 1
16.3. Responsibility_ for Contractors. Licensee shall bear full responsibility for
ensuring that its agents, contractors and subcontractors are in full compliance with the requirements of
this section before they perform any work for Licensee in connection with this Agreement.
16.4. No Limitation on Indemnities. The purchase of the insurance required by this
section shall not relieve Licensee of its liability or obligations under this Agreement or otherwise limit
Licensee's liability under Sections 14.1 and 14.3.
17. DEFAULTS
17.1. Licensee Default. If Licensee is in Default under this Agreement and fails to
correct such Default within the cure period specified below, Licensor may, at its option, and without
further notice:
(a) declare this Agreement to be terminated in its entirety;
(b) terminate the Authorization covering the Pole(s) with respect to which such Default shall
have occurred;
(c) decline to authorize additional Attachments under this Agreement until such Defaults are
cured;
(d) suspend Licensee's access to or work on any or all of Licensor's Poles;
(e) correct such Default and charge Licensee as provided in this Agreement; and/or
(f) seek specific performance of the terms of this Agreement through a court of competent
jurisdiction.
17.2. Licensee Cure Period. For a period of thirty (30) days following receipt of notice
from Licensor, Licensee shall be entitled to take all steps necessary to cure any Defaults. The 30-day
notice and cure period does not apply to any Default by Licensee of its payment obligations under this
Agreement. Notice under this section must be provided via personal delivery, overnight delivery, or
certified U.S. mail.
17.3. Termination Because of Licensee Default. If Licensor terminates this Agreement
because of Licensee's Default, Licensee shall not be entitled to any refund of any Pole Attachment
Rental Fee.
17.4. Reimbursement for Licensor Work. If Licensee fails to cure a Default with
respect to the performance of any work that Licensee is obligated to perform under this Agreement,
Licensor may elect to perform such work, and Licensee shall reimburse Licensor for all Imposition Costs
related thereto.
17.5. Licensor Default. If Licensor is in Default under this Agreement, Licensor shall
have thirty (30) days following notice from Licensee within which to correct such Default. If Licensor
does not cure its Default within the allotted time period, Licensee may, at its sole discretion, either
terminate this Agreement or seek specific performance of the terms of this Agreement through a court of
competent jurisdiction. IfLicensee elects to terminate the Agreement, Licensor shall within thirty (30)
days refund to Licensee on a pro rata basis any Pole Attachment Rental Fee paid for the current annual
rental period. Notice under this section must be provided via personal delivery, overnight delivery, or
certified U.S. mail.
17.6. Attorney Fees and Court Costs. If either Party fails to cure a Default with respect
to any of its obligations under this Agreement and it becomes necessary for the other Party to obtain the
services of an attorney, who is not a salaried employee of that Party, to enforce its rights under this
23
4891-8000-4227, v. 1
Agreement, the defaulting Party agrees to pay all reasonable attorney fees and court costs of litigation
associated with such enforcement, if the other Party is successful.
18. TERMINATION OF AGREEMENT
Upon termination of this Agreement, Licensee shall remove all of its Attachments from all of Licensor's
Poles within sixty (60) days. If any Attachments are not so removed within sixty (60) days following
such termination, Licensor shall have the right to remove such Attachments, and to use, dispose of or sell
same, at Licensee's sole expense and without any liability to Licensee.
19. WAIVER OF TERMS OR CONDITIONS
The failure of either Party to enforce or insist upon compliance with any of the terms or conditions of this
Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but
such conditions and terms shall be and remain at all times in full force and effect.
20. MODIFICATIONS
Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented at any
time only upon written agreement by the Parties hereto. Notwithstanding the foregoing, all Exhibits may
be modified by Licensor upon thirty (30) days notice to Licensee. The names, addresses, facsimile
numbers and electronic mail addresses to which notices must be sent may be modified by either Party
upon notice to the other. Notice under this section must be provided via personal delivery, overnight
delivery, or certified U.S. mail.
21. PAYMENT OF TAXES
Each Party shall pay all taxes and assessments lawfully levied on its own property and services subject to
this Agreement.
22. NOTICES
Unless otherwise specified in this Agreement, any notice, request, consent, demand, designation, approval
or statement required to be made to either Party by the other shall be in writing and such written notice
may be delivered via personal delivery, Federal Express (or other equivalent, generally recognized
overnight delivery service), electronic mail transmission, or certified U.S. mail return receipt requested.
Notice given by electronic mail shall be deemed given when directed to an electronic mail address at
which the recipient has consented to receive such notice. Notice given by personal delivery, overnight
delivery, or certified U.S. mail shall be effective upon receipt.
23. FORCE MAJEURE
Except as may be expressly provided otherwise, neither Party shall be liable to the other for any failure of
performance hereunder due to causes beyond its reasonable control, including but not limited to: (a) acts
of God, fire, explosion, vandalism, storm, or other similar occurrences; (b) national emergencies,
insurrections, riots, acts of terrorism, or wars; or (c) strikes, lockouts, work stoppage, or other labor
difficulties. To the extent practicable, the Parties shall be prompt in restoring normal conditions,
establishing new schedules and resuming operations as soon as the force majeure event causing the failure
or delay has ceased. Each Party shall promptly notify the other Party of any delay in performance under
this section and its effect on performance required under this Agreement.
24
4891-8000-4227, v. 1
24. CONSTRUCTION OF AGREEMENT
This Agreement was reached by each Party after arms' length negotiations and upon the opportunity for
advice of counsel, and shall not in any way be construed against either Party on the basis of having
drafted all or any part of this document. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly provided, the words
"including" or "includes" do not limit the preceding words or terms.
25. OWNERSHIP RIGHTS
All Attached Poles under this Agreement shall remain the property of Licensor, and Licensee's rights in
Licensor's Poles shall be and remain a mere license for as long as authorized under the terms and
conditions of this Agreement. Nothing herein shall be construed to obligate Licensor to maintain any of
its Poles if Licensor no longer has a need for the Pole.
26. THIRD PARTY BENEFICIARIES
Except as otherwise provided in this Agreement, this Agreement is intended to benefit only the Parties
and may be enforced solely by the Parties, their successors in interest or permitted assigns. It is not
intended to, and shall not, create rights, remedies or benefits of any character whatsoever in favor of any
persons, corporations, associations, or entities other than the Parties, except as provided herein.
27. SEVERABILITY
Nothing contained in this Agreement shall be construed to require the commission of any act contrary to
law, and wherever there is any conflict between any provision of this Agreement and any law, such law
shall prevail. In such event, however, the provisions of this Agreement so affected shall be curtailed and
limited only to the extent necessary to permit compliance with the minimum legal requirement, and no
other provisions of this Agreement shall be affected thereby and all such other provisions shall continue
in full force and effect.
28. PRIOR AGREEMENTS SUPERSEDED
This Agreement embodies the entire agreement between Licensor and Licensee with respect to the subject
matter of this Agreement, and supersedes and replaces any and all previous agreements entered into by
and between Licensor and Licensee, written or unwritten, with respect to that subject matter. All
Licensee facilities attached to Licensor's Poles which had been subject to a previous agreement are now
subject to this Agreement.
29. ASSIGNMENT AND TRANSFER
Licensee shall not assign or otherwise transfer this Agreement or any of its rights and interests to any
firm, corporation or individual, without the prior consent of Licensor. Licensor may condition such
consent upon the assignee's or transferee's agreement to reasonable additional or modified terms or
conditions. If there is a change of Control of Licensee, then Licensor shall have the right, in its
reasonable discretion, immediately to terminate this Agreement in its entirety without further liability.
Licensor may assign or otherwise transfer this Agreement or any of its rights and interests to any firm,
corporation or individual, without the prior consent of Licensee.
25
4891-8000-4227, v. 1
30. ELECTRONIC SIGNATURES; COUNTERPARTS
This Agreement may be executed using electronic signatures and such electronic version of the
Agreement shall have the same legally binding effect as an original paper version. This Agreement may
be executed in counterparts, each of which shall be deemed an original.
31. SURVIVAL; LIMITATIONS ON ACTIONS
Notwithstanding the termination of this Agreement for any reason, Sections 14, 15, 19, 22, and 24
through 28 shall survive termination for the applicable statute of limitations. Notwithstanding any
provisions to the contrary, all rights, remedies, or obligations which arose or accrued prior to the
termination or expiration of the terms hereof shall survive and be fully enforceable for the applicable
statute of limitations.
[END OF TERMS AND CONDITIONS]
26
4891-8000-4227, v. 1
Exhibit 1.1
Application, Conditions and Permit to Make Attachments of Fiber
Optics/Telephone/Television Cable Along With Necessary
Appurtenant Facilities
Permit No. Application Exchange:
In accordance with the terms of our agreement dated , application is hereby made for
permission to make attachment of communication facilities to of your poles in and in
the vicinity at the locations shown on the sketch attached.
Licensee
Date:
The following information is attached as part of this Application:
(a) construction plans and drawings detailing Licensee's build out plan;
(b) maps indicating specifically the GVEC Poles that Licensee proposes to use;
(c) the number and character of the Attachments to be placed on each Pole;
(d) all equipment to be included in Licensee's attachments;
(e) Service Poles that Licensee intends to install;
(f) the total tension, weight, and transverse loading data for the wires, including
multiplication by the applicable overload factors of the NESC;
(g) the size and type of messenger wire including weight/feet and design tension;
(h) the size and type of cable including weight/feet, design tension, and diameter;
(i) pole loading analysis report, stamped by a Professional Engineer licensed in
Texas;
(j) a drawing showing the type and manner of bolted Attachments;
(k) a drawing showing installation specifications, rating, and guy and anchor
requirements proposed to be used by Licensee;
(1) any pedestal attachments; and
(m) any other information necessary, in GVEC's sole judgment, for GVEC Licensor to
determine if the requirements of Section 4.4 are met.
CONDITIONS:
In order to provide space on the poles set forth above, it will be necessary for the Guadalupe Valley
Electric Cooperative, Inc. to make the following changes in its distribution system:
The approximate cost of doing this work, which is chargeable against you, is $ . If this
meets with your approval, please indicate your acceptance in the space provided and pay the
estimated amount. After receipt of your acceptance and payment, we will proceed to make such
changes, and will true up your payment of the estimated amount based on the actual cost thereof
27
4891-8000-42273 V. 1
upon completion of the work.
n.'+nrnrrr.
By:
Date:
- By: -
Date:
PERMIT:
Permission is hereby granted Licensee to make attachments to the poles at the locations set forth in
the above application provided the following conditions are met:
1. Proper clearance must be maintained between Licensee's (Company Name) facilities
and GVEC's facilities as set forth in the NESC.
2. Proper ground clearance must be maintained on Licensee's (Company Name) facilities
as set forth in the NESC.
3. Licensee (Company Name) must add guy wires and anchors on all angles and dead -
ends.
4. Licensee shall complete installation of its attachments within 180 days following GVEC's
notice of completion of the Make Ready Work.
5. Were all property owners notified and all right-of-way easements obtained for these
facilities?
❑ Yes ❑ No
Inventory of Poles
Used by Licensee
Previous Added by this New
Balance Permit Balance
Guadalupe Valley Electric Cooperative, Inc.
By: - -
Date:
28
4891-8000-4227, v. 1
Exhibit 1.11
Name of Licensee Company:
LOCATION OF LICENSEE SERVICE AREA
Attached hereto is a map or sketch graphically depicting Licensee's Service Area. The map or sketch
shall be:
(i) no larger than 30" x 30";
(ii) properly folded to a size of no greater than 8 1/2" x 11" for inclusion in this Agreement;
and
(iii) stapled to the Agreement in the upper left comer.
This map need not show the precise location of each of Licensor's poles to which attachment is sought,
but should identify the general area in which Attachments currently exist or are planned.
LICENSEE:
By:
Title:
Date:
29
4891-8000-4227, v. 1
Exhibit 1.12
LICENSOR RULES AND PRACTICES FOR
ATTACHMENTS
1. Licensee shall install and maintain its Attachments at its own expense.
2. Any unbalanced loading of Licensor's Poles caused by the placement of Licensee's facilities shall
be properly guyed and anchored by Licensee with a guy and anchor provided by Licensee prior to
the placement of Licensee's Attachments, at Licensee's sole expense, risk and liability. Licensee
will place guy markers on all such down guys and Licensor shall have no responsibility for
placing, monitoring, or maintaining such markers. Licensee shall not attach any of its
Attachments to any guy or anchor or Licensor. Licensee may not place new guy attachments on
Licensor's anchors without Licensor's prior consent.
3. A preliminary "ride through" of the proposed route of Licensee's facilities shall be made by
representatives of Licensor and Licensee upon request by Licensor.
4. Licensee shall check and verify the condition of any pole prior to climbing or performing work on
it. If a pole is deemed unsafe, Licensee must immediately notify Licensor by telephone and in
writing as soon as practicable.
5. All Attachments shall be located on the same side of each pole as any existing telephone or
communications cable, or as otherwise designated by Licensor. (Designated side is typically the
same side the neutral is on).
6. On Attached Poles where Licensor has secondary conductors, all Attachments shall be located on
the same side of the pole as the secondary conductors, or as otherwise designated by Licensor.
7. Licensee shall cause all cabinets, enclosures, and messengers to be grounded by bonding to the
existing pole ground with #6 solid, bare, soft drawn copper wire.
8. Licensee shall install no power supply on any of Licensor's poles on which underground electric
services, capacitor banks, sectionalizing equipment or voltage regulators are already installed.
9. No electrical service connection to a communications power supply shall be made or installed by
Licensee until after Licensor shall have completed inspection of an approved fused service
disconnect switch or circuit breaker.
10. No bolt used by Licensee to attach its facilities shall extend or project more than one (1) inch
beyond its nut.•
11. All Attachments of Licensee shall have at least two inches clearance from unbonded hardware
such as pedestals and any other enclosures containing equipment.
12. All of Licensee's Attachments shall comply with NESC clearance requirements and shall be
30
4891-8000-4227, v. I
located a minimum of forty (40) inches below Licensor's lowest attached facilities. All mid -span
clearances between Licensee's facilities and Licensor's lowest conductors shall comply with
NESC clearance requirements.
13. Licensee may, with prior approval of Licensor, install cross arms, alley arms, or cable extension
arms for the support of any of its facilities. However, Licensee shall not use any cross arm or
alley arm brace above the arm that it supports.
14. Licensee shall install and maintain any and all of its facilities in a neat and workmanlike manner
consistent with the maintenance of the overall appearance of the jointly used pole, subject to the
approval of Licensor in its sole discretion.
15. In the event that any of Licensee's proposed attachments are to be installed upon poles already
jointly used by Licensor and another party(ies), Licensee shall negotiate with such other
party(ies) to determine clearances between its facilities and those of Licensor and such other
party(ies), except that Licensee may not in any way modify the clearance requirements set forth
in this Agreement.
16. Licensee shall provide to Licensor a statement summarizing the standards used by Licensee for its
standard pole attachment installations. Such standards shall be signed and approved by a
Professional Engineer representing Licensee, confirming that Licensee's standard installations
conform with the NESC and good engineering design. With respect to non-standard
Attachments, Licensee's Professional Engineer shall prepare or review plans for such non-
standard Attachments, and submit such plans to Licensor with a statement that such non-standard
Attachments comply with the NESC and good engineering design.
31
4891-8000-4227, v. 1
Exhibit 6.2
APPLICATION PROCESSING TASKS
1. Initial Application Review
Perform initial intake processing of Application upon receipt from Licensee. This review is
required to verify that the submitted Application is complete
2. Conduct Initial Field Inspections
Perform initial field inspection following receipt of Application from Licensee. This inspection
is required to verify that field physical data provided on the Application is accurate.
Prepare pre -construction inspection report noting any deficiencies and required corrections.
3. Review Submitted Pole Loading Analysis
Perform an engineering review of the Application and initial field inspection results to ensure
that all Poles requiring a pole loading analysis (PLA) have the required PLA(s).
Review the submitted PLA(s) to ensure compliance with all applicable engineering standards.
4. Perform Pole Loading Analysis (as necessary)
Perform PLA(s) to ensure compliance with all applicable engineering standards.
5. PE Stamping (upon request)
Have Professional Engineer review Make Ready design and PLA, and submit cover sheet
which includes PE stamp, signature and date
6. Make Ready Design
Produce communications and electric Make Ready construction design recommendations
7. Make Ready Estimate
Prepare the Make Ready Estimate by estimating the costs to perform Make Ready Work
specified in the Make Ready construction design recommendation
8. Make Ready Coordination
Coordination with Attaching Entities/Contractors and other Make Ready Work coordination,
including but not limited to: on site meetings, quality assurance/quality control (QA/QC),
preparing field inspection notes, staking locates, rejection notifications, invoice status, and
final permitting.
9. Post -Construction Field Inspections
32
4891-8000-4227, v. 1
Perform post -construction inspection following Licensee's notice that attachment installation
work is complete, to verify that all construction was installed in compliance with the technical
requirements and specifications of the Agreement. Data to be gathered at the job site includes:
identification and measurements of all attachments.
Prepare post -construction inspection report noting any deficiencies and required corrections.
Email notifications for each instance in which communication construction was improperly
performed
10. Follow-up Post -Construction Field Inspections (when corrective work needed)
Perform subsequent post -construction inspection following Licensee's notice that required
corrective work has been completed, to verify that all construction was installed in compliance
with the technical requirements and specifications of the Agreement. Data to be gathered at the
job site includes: identification and measurements of all attachments.
Prepare post -construction inspection report noting any deficiencies and required corrections.
Email notifications for each instance in which communication construction was improperly
performed
11. Application Close -Out
After an approved post -inspection, document all necessary "as -built" corrections, applicable
field measurements, and inspection reports, and provide information for Licensor's design
system.
Ensure all documentation related to the Application is complete and properly archived,
including any cancelled applications and relevant work orders.
33
4891-8000-4227, v. 1
Exhibit 12.1
TRANSFER OF POLE OWNERSHIP
Pursuant to Section 12.1 of the Agreement, Guadalupe Valley Electric Cooperative, Inc. ("Licensor') hereby
transfers to City of Schertz, ("Licensee") all right, title and interest in and to the Pole(s), identified on Exhibit
1 hereto, the responsibility for which Licensee accepts in exchange for Licensee's ability to remain on
the Pole(s).
As already agreed to by the Parties in the Agreement, Licensee shall receive the Pole(s) "as is," and shall
indemnify, defend and hold harmless Licensor from all obligation, liability, Cost, claim, damage, expense or
charge related thereto or raised thereafter, including for Licensor's own negligence. Licensee takes title to the
Pole(s) for all purposes. Because Poles and related items may contain various hazardous chemicals or
properties, Licensee shall comply with the terms and directions of the appropriate material safety data sheet
and with state and federal law regarding the maintenance, replacement, and/or disposal of the Pole(s).
Licensor does not warrant, guarantee, or imply that such pole(s) possesses sufficient mechanical strength as
required by or for any use of Licensee. Licensor makes no representations or guarantees concerning any right
to occupy the premises where the Pole(s) is currently located upon the removal of Licensor's facilities.
GUADALUPE VALLEY ELECTRIC COOPERATIVE, INC.
�1�
NAME/TITLE
34
4891-8000-4227, v. 1
Exhibit 1
Description ofPole(s)
The Pole(s) are listed individually below:
RELATIVE STREET 3P-D PARTY ATTACHERS
ADDRESS (IDENTIFY ALL
ATTACHERS)
35
4891-8000-4227, v. 1
GPS COORDINATES
(1F AVAILABLE)
LATITUDE LONGITUDE