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EXHIBIT 10.7
POLE ATTACHMENT AGREEMENT
This Agreement is made and entered into the 1st day of January, 1998, by
and between Gulf Power Company, a Maine corporation, hereinafter called "Gulf,"
and BEACH CABLE, INC., hereinafter called "Licensee."
WITNESSETH:
WHEREAS, Licensee desires to furnish cable television services in the area
described in Exhibit A, attached hereto, which service will require the
installation and maintenance of cables, wires and appliances; and
WHEREAS, Licensee desires to attach certain cables, wires and appliances
to the poles of Gulf; and
WHEREAS, Gulf is willing to allow the attachment of cables, wires and
appliances to its poles in the area described in Exhibit A where, in Gulf's
judgment, that attachment will not interfere with its own service requirements,
including considerations of economy and safety, and where Gulf is protected and
indemnified against all costs to and liabilities against it arising from such
attachment.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained Gulf and Licensee hereby agree and contract with each other as
follows:
1. Term of Agreement. The term of this Agreement shall commence
on the 1st day of January, 1998 and subject to all of the provisions of this
Agreement, shall continue in full force and effect thereafter until the 31st
day of December, 2002, unless earlier terminated according to the provisions of
this Agreement. The parties may agree to extend this Agreement for an
additional five (5) year period
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and for consecutive five (5) year periods upon agreement as to terms, including
fees and charges, for each additional extension period.
2. Conditions Precedent. As conditions to Gulf accepting a
permit application from the Licensee or granting a permit to the Licensee to
attach to Gulf's distribution poles, Licensee shall submit evidence
satisfactory to Gulf of the following:
A. Licensee's authority to erect and maintain its
facilities within public streets, highways and other thoroughfares, and any
necessary consent or franchise from state or municipal authorities or from the
owners of the property upon which the poles are located to construct and
maintain its facilities on them;
B. Licensee's financial stability;
C. Certificate of Insurance required under Paragraph 20;
and
D. Licensee's operational expertise. Copies of the
necessary consents or franchises from state or municipal authorities are
attached hereto as Exhibit C.
3. Application and Permits.
A. Before attaching to any of Gulf's distribution poles
(hereinafter referred to as "Gulf's poles"), Licensee shall submit to Gulf an
Application for Pole Attachment Permit. The only exception shall be as
provided in Section 3.B. The application and permit form is set forth in
Exhibit B, attached hereto. The application shall be accompanied by two (2)
detailed copies of Licensee's construction drawings which clearly identify the
poles to which the Licensee will attach if a permit is granted. If the
proposed attachment is satisfactory to Gulf, a permit will be granted upon
payment of a one time permit fee of $1.00 per attachment plus Make Ready costs
as described in Section 12.A.. Prior to commencement of construction by the
Licensee, Gulf may require a preconstruction conference, at Gulf's discretion.
Notwithstanding the issuance of an
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attachment permit, Licensee shall at no time make or maintain an attachment to
Gulf's pole or substitute pole if the spacing on the pole, the ground
clearance, or other characteristics of the attachment are not in strict
conformity with the National Electrical Safety Code (the "Code") and any other
applicable codes, rules or regulations of any governing body having
jurisdiction. Except as provided in Section 3.B., the failure of the Licensee
to obtain such a permit prior to making an attachment shall constitute a
trespass and a violation of this Agreement. Gulf may forbid new attachments to
its poles by Licensee in the event Licensee is in default hereunder.
B. Attachment to Gulf's poles without obtaining a prior permit
shall be allowed only for service drops. Licensee shall ensure that such
attachments are in strict conformity with the National Electrical Safety Code
and any other applicable codes, rules or regulations of any governing body
having jurisdiction. In particular, Licensee shall not attach if Make Ready
work is required to obtain adequate clearance or for any other reason. Any
attachment made not in conformity with these requirements constitutes a default
under this Agreement. Gulf reserves the right to suspend this provision in the
event it is determined that Licensee is not properly reporting the installation
of service drops.
At the end of each month, Licensee shall submit a permit
application (Exhibit D) listing all such service drop attachments not
previously permitted. The listing shall include the location or address, TLM
pole number, number of poles attached to, and date of attachment. Each
application shall include a one-time permit fee of $1.00 per attachment.
4. Payment and Billing. Licensee shall pay Gulf a semi-annual
rent of $3.15 per pole for the years of 1998 through 2000. The rental rate for
2001 will be calculated in December, 2000 and the rental rate for 2002 will be
calculated in December, 2001, to the extent permitted by applicable law, and
will be based on the
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type of telecommunication services the Licensee is providing at that time.
Bills for rent shall be rendered by Gulf on or before January 15th and July
l5th of each year. All attachments permitted and those which exist on Gulf's
poles on December 31st and June 30th of each year will be invoiced. Licensee
shall pay Gulf in advance for the succeeding six (6) months and such payment
shall be based on the number of attachments permitted whether an attachment has
been made or continues. Upon the issuance of each attachment permit, Licensee
shall pay Gulf rental for such attachment based on the time remaining between
the date the permit is granted and the end of the semi-annual rental period.
Thereafter, such attachment shall be billed by Gulf with all other attachments
on a semi-annual basis. In the event a field survey, as described in Section
15.B., indicates that not all attachments have been permitted, the difference
between the number of attachments counted and the number of attachments
permitted shall be billed as if all such attachments were in place 2 1/2 years
prior to the field survey. The amount due from Licensee for such attachments
shall be based on the semi-annual billing rate in effect during each of the
prior billing periods, plus eighteen (18%) percent interest per annum. Gulf
shall notify Licensee of the amount due and payment shall be due upon receipt
of such notice. All bills for semi-annual rent, for inspections and for other
charges under this Agreement shall be due upon receipt. Failure to pay bills
within thirty (30) days after receipt is a default hereunder for which Gulf may
terminate this Agreement. All bills thirty-one (31 ) days past due shall bear
interest at eighteen (18%) percent per annum and interest shall begin to accrue
as of the date due.
5. Bond. At the beginning of or during the contract period
Licensee may be required at Gulf's discretion to furnish bond or satisfactory
evidence of contractual insurance coverage to guarantee the payment of any sums
which may become due to Gulf for rentals, for work performed for the benefit of
Licensee, and
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for other charges under this Agreement including the removal of attachments
upon termination of this Agreement in the amount as specified in the following
schedule:
Number of Attachments Amounts of Coverage
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0-500 $10,000
501-1000 20,000
1001-1500 30,000
1501-2000 40,000
2001-2500 50,000
Bond shall continue to increase by $10,000 for each increase in number of
attachments by increments of 500 up to a maximum of $250,000.
6. Attachment and Maintenance. As used herein, an attachment is
defined as the material or apparatus which is used by Licensee in the
construction, operation, or maintenance of its plant and which is attached to
Gulf's poles. One attachment is defined as a single wire or cable attached to
the pole and other equipment, apparatus or facilities of Licensee lashed to
such wire or cable or (except in the case of additional wires or cables)
attached to the pole and occupying a vertical section of the pole not exceeding
six (6) inches above and below the point of attachment of the single wire or
cable. Licensee shall erect and maintain at its own expense cables, wires and
appliances in safe condition and in thorough repair. It shall be the sole
obligation of Licensee to ensure compliance with the applicable requirements
and specifications of the National Electrical Safety Code and amendments
thereto, including clearance requirements between power and cable lines, safe
work practices, and any other applicable codes, rules or regulations now in
effect or which hereafter may be issued of any governing body having
jurisdiction. Upon identification of any violation by Licensee of any code,
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rule, or regulation Licensee shall immediately institute corrective action, at
its own expense. In the event Licensee fails to correct any violation within a
reasonable time, Gulf may take whatever corrective action it deems appropriate
in its sole discretion. Recognizing that strict compliance with the terms of
this agreement is essential to the fair and equitable allocation of limited
pole space among competing Licensees, and as a deterrent to such non-compliance
in order to preserve the public welfare, Licensee shall pay Gulf its actual
costs for such corrective action plus fifteen (15%) percent. Licensee further
agrees to indemnify and hold Gulf harmless for any injury or damages, including
but not limited to actual damage awards, fines, settlements, attorney's fees
and court or administrative costs, resulting from Licensee's noncompliance with
any applicable code, rule or regulation as described above.
Licensee shall also comply with Gulf's specifications for construction.
Licensee shall be responsible for installing anchors and guys of sufficient
size and strength to accommodate their own load. In order to avoid placing
undue stress on Gulf's poles, necessary anchors and guys shall be installed
prior to tensioning of the cable strand. Attached hereto are drawings marked
Plates 1 through 11 inclusive which are descriptive of required construction
under some conditions and are to serve as construction guides but may not apply
in all situations. These drawings may be changed from time to time by Gulf and
do not supersede any applicable National Electrical Safety Code requirements,
except to the extent that they are more stringent than the Code.
7. Attachment Identification. - Licensee may be required to xxxx
its facilities in accordance with the Florida Utilities Coordinating Committee
guidelines, or other method acceptable to Gulf. In any given area, the
requirement to xxxx will depend on the date of the original agreement between
Licensee and Gulf for that area, or the date of any amendment to such agreement
to expand to
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that area. The Licensee with the earliest agreement or amendment for a given
area shall not be required to xxxx its facilities. Subsequent Licensees shall
be required to xxxx all facilities installed in the given area.
If Licensee follows Florida Utilities Coordinating Committee guidelines,
Licensee shall request registration of a unique marking tag for its
attachments, if not already registered. Gulf will forward Licensee's request
to the appropriate authority.
8. Gulf's Service Requirements. Gulf reserves the right to
maintain its poles and to operate its facilities on them in the manner best
suited to fulfill its own service requirements, including considerations of
economy and safety. Use of Gulf's poles under this Agreement will create or
vest in Licensee no ownership or property rights in Gulf's poles,
notwithstanding the length of use. Gulf is in no way required to keep in place
any of its poles or other facilities for a period longer than is necessary to
meet its own service requirements. Gulf reserves the right to refuse to grant
an attachment permit to any pole on the basis of insufficient capacity or for
reasons of safety, reliability and generally applicable engineering purposes.
Gulf will exercise due care to avoid interfering with Licensee facilities.
However, Gulf will in no way be liable to Licensee for interruption of
Licensee's service or for interference with the operation of Licensee's cables,
wires and appliances, except for Gulf's negligence.
9. No Interference. Licensee's attachments shall not interfere
with the present or future use and maintenance of Gulf's poles by Gulf or with
other parties' use of Gulf's poles nor interfere with the use and maintenance
of facilities placed on the poles or which may from time to time be placed
thereon, provided such other parties' use is in accordance with applicable
regulations and specifications of Gulf and the National Electrical Safety Code,
and other applicable codes, rules and
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regulations. Gulf shall be the sole judge as to the requirements for the
present or future use of its poles and facilities and of any interference
therewith.
10. Rules and Procedures. Gulf reserves the right to establish
rules or procedures to implement and allocate Make Ready billing pursuant to
Section 12.A. and to provide for an orderly process of pole attachment in the
event Licensee and one or more other parties desire to attach to the same poles
and Licensee shall adhere to such rules or procedures.
11. Order on the Pole.
A. The existing telephone companies (Local Exchange
Carrier) contracting for attachments to Gulf's poles, pursuant to a joint use
agreement, are to be assigned to the lowest relative position on any given
pole. Other Licensees contracting with Gulf for pole attachments shall attach
above the telephone facilities. Among two (2) or more Licensees, position of
attachments on the pole shall be determined according to the date of the
original agreement between the Licensee and Gulf for a given area, or the date
of any amendment to such agreement to expand to a given area. In any given
area, the Licensee with the earliest agreement or amended agreement shall
occupy the first position above the telephone facilities, if space is
available. The second Licensee shall attach to the second position above the
telephone facilities, if space is available, and so on.
B. When two (2) or more Licensees desire to attach to
the same Gulf poles, preference for attachment will be given in order of
application for permit received. The attaching Licensee shall attach in their
assigned space, according to Section 1 1.A., if space is available. If any
company with priority under paragraph 11.A. above, has not exercised its right
to attach to space on a given pole, companies attaching under subsequent
agreements may make provisional attachment in the space which ordinarily would
be available to the company with priority, if their own assigned space is not
available. However, if the company
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having priority subsequently requests attachment rights, any other companies
with attachments in the area to which the earlier companies have priority shall
relinquish their position and reattach their facilities farther up the pole as
provided in Section 12 below. The company requesting attachment rights shall
pay all make ready costs, if any, associated with such reattachment, and
contact the other companies to initiate their transfer.
12. Make Ready, Substitutions, Changes and Rearrangements.
A. Make Ready. If it should appear to Gulf that a pole
is too short, or inadequate, or any rearrangement of Gulf's or other parties'
facilities is required to accommodate the attachments of Licensee, Gulf shall
notify Licensee of the pole substitutions, additions, changes and
rearrangements which Gulf deems necessary and their estimated cost. Such
notice shall constitute a denial of the applicable permit(s) unless Licensee
authorizes Gulf to make the substitutions, additions, changes and
rearrangements specified. Licensee shall authorize the make ready work within
thirty (30) days after notification from Gulf, otherwise the permit will be
denied. Upon such authorization, Licensee shall reimburse Gulf for all costs
incurred by it in connection with such changes. Licensee shall reimburse the
owner of any other facilities attached to that pole for any reasonable expense
incurred by that owner in conjunction with such changes. Licensee shall pay to
Gulf at the time of the issuance of each attachment permit Gulf's estimated
cost of providing the space for all of the attachments covered by that permit
pursuant to Section 3 of this Agreement.
In the event the Licensee elects to install their facilities underground
in Gulf's pole line, they shall remain underground for a minimum of five (5)
spans before attaching to Gulf's poles. Where Licensee shows sufficient
reason, Gulf may grant a waiver of this provision in specific cases.
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B. Substitutions, Chances, and Rearrangements. Licensee
shall, at its own expense, install the attachments and maintain them in safe
condition in a manner satisfactory to Gulf. Licensee shall, at its own
expense, at any time requested by Gulf for good cause remove, relocate,
replace, and renew its facilities on the poles, transfer them to substituted
poles or perform any other work in connection with the facilities that Gulf may
require. Licensee shall notify Gulf immediately after completing the requested
work. If the Licensee fails to comply with Gulf's request within thirty (30)
days of receipt of such request, Gulf may perform or have performed such work
at Licensee's expense with no liability therefor. Licensee shall pay Gulf its
cost for such work plus fifteen (15%) percent.
In any case deemed by Gulf to be an emergency, Gulf may, at the expense of
Licensee, arrange to remove, relocate, replace or renew the facilities of
Licensee, transfer them to substituted poles or perform any other work in
connection with the facilities that may be required in the maintenance,
replacement, removal or relocation of the poles or the facilities on them. An
emergency includes, but is not limited to, customer outages and circumstances
that threaten to cause property damage and/or personal injury. Gulf will
invoice Licensee for actual expenses incurred in performing these emergency
measures.
13. Use of Qualified Employees and Contractors. The Licensee
shall ensure that its employees and contractors are knowledgeable of the
requirements of the NESC and other safe work practice codes for maintaining
proper work practices in order to avoid dangerous conditions. Licensee
expressly agrees to take all necessary steps to ensure that its employees and
contractors are adequately trained and qualified to work with and around
energized conductors, and shall further ensure that its employees and
contractors are appropriately and strictly supervised while performing work on
Gulf's poles. Licensee agrees to indemnify and hold
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harmless Gulf for any failure of Licensee, its employees or contractors to
fulfill their obligations to perform work in a safe and proper manner.
14. Damage to Facilities. Licensee shall exercise caution to
avoid damage to facilities of Gulf and of others on Gulf's poles. Licensee
assumes responsibility for any and all loss or expense arising out of such
damage caused by it and shall reimburse Gulf or others occupying Gulf's poles
for such loss or expense. Licensee shall immediately report damage caused by
it to Gulf and to others occupying Gulf's poles which are in any way affected
by such damage.
15. Inspections and Surveys.
A. Inspections. Gulf reserves the right to inspect each
new attachment and to make periodic inspections of all attachments as plant
conditions may warrant. Licensee agrees to pay a $25.00 per attachment
violation fee for each Code violation found during such inspections. In
addition, Licensee agrees to pay a violation fee of $25.00 per attachment for
any unpermitted attachments found during these inspections. Gulf's right of
inspection as provided herein in no way operates to relieve Licensee of any
responsibility, obligation or liability arising hereunder nor does it impose
any obligation on Gulf.
B. Field Surveys. Gulf reserves the right to make field
surveys of its poles in the area described in Exhibit A as it may be amended
from time to time pursuant to subparagraph C hereof, at intervals not more
often than once every five (5) years, for the purpose of determining the actual
number of Licensee attachments. Licensee agrees to pay a violation fee of
$25.00 per attachment for any unpermitted attachments in excess of ten (10) or
two percent (2%) of the last verified reported total, whichever is greater.
Gulf shall bear the cost of such field surveys, unless the number of
attachments counted exceeds by five percent (5%) or more the number of
attachments for which permits have been issued. In the event the number
counted exceeds by five percent (5%) or more the number of
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attachments for which permits have been issued, Licensee shall pay, in addition
to the violation fee, the cost of field surveys attributable to the area
described in Exhibit A as amended, pursuant to Section 4 of this Agreement.
Gulf shall notify Licensee at least thirty (30) days in advance of the field
survey and shall specify the method to be used in performing the survey.
Should Licensee disagree with results of the survey, a new survey may be
performed by Gulf and Licensee at Licensee's sole expense.
C. Expansion of Service Area. Should at any time
following execution of this Agreement the Licensee desire to expand or modify
the area described in Exhibit A, Licensee shall provide Gulf in writing an
amended Exhibit A which shall include such areas, and shall receive Gulf's
written approval prior to such expansion or modification becoming a part of
this agreement. No new attachments shall be made in the amended area before
the amended Exhibit A is approved.
16. Franchises. Licensee shall provide copies of franchise
renewals to Gulf immediately upon Licensee's receipt of same. In the event
Licensee fails to acquire or retain a franchise required within the area
described in Exhibit A, such failure shall operate as grounds upon which Gulf
may cancel the permits in or terminate this Agreement as to the area affected
by such franchise pursuant to Section 23.
17. Removal. Licensee may at any time remove its attachments from
any pole upon prior written notice to Gulf. Upon verification by Licensee to
Gulf that pole attachments have been removed, Gulf will reimburse Licensee the
rental remaining from the date of the removal to the end of the semi-annual
rental period which will be included as a credit on the next semi-annual xxxx.
18. Pole Abandonment. If Gulf desires at any time to abandon any
pole, it shall give Licensee notice in writing to that effect at least sixty
(60) days prior to
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the date on which it intends to abandon such pole. Licensee may then purchase
the pole from Gulf at fair market value; however, if at the expiration of such
period Licensee has not removed all of its attachments therefrom or purchased
the pole, Gulf may proceed to remove such attachments at the expense of
Licensee with no liability therefor. Licensee shall pay Gulf for its cost of
removal plus fifteen (15%) percent.
19. Indemnification. Licensee shall indemnify and hold harmless
Gulf and its representatives, agents, officers and employees from and against
any and all loss, damage, or liability resulting from demands, claims, suits,
or actions of any character presented or brought for any injuries (including
death) to persons and for damages to property caused by or arising out of any
negligent (including strict liability), wanton or intentional act or omission
of Licensee, anyone directly or indirectly employed by it, or anyone for whose
acts it may be liable, in any way associated or connected with the performance
of the obligations herein, in whatever manner the same may be caused, and
whether or not the same be caused by or arise out of the joint, concurrent, or
contributory negligence of Gulf, or its representatives, agents, officers or
employees. The indemnity obligations hereunder shall extend only to that
proportion of the loss, damage or liability which is directly attributable to
the negligence, wanton or intentional acts of the Licensee, anyone directly or
indirectly employed by it, or anyone for whose acts it may be liable. It is
the expressed intent of the parties that Gulf shall be liable only for those
damages attributable to its own negligence and shall not be liable for any
damages (either economic or non-economic) attributable to the acts of any other
person or entity. The foregoing indemnity shall include, but not be limited
to, court costs, attorney's fees, costs of investigation, costs of defense,
settlements and judgments associated with such demands, claims, suits or
actions. The Licensee
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shall make an immediate report to Gulf of the occurrence of any personal injury
or property damage while working on Gulf's facilities.
20. Insurance. Licensee shall procure and maintain insurance to
protect it and Gulf against claims for damage to property or injury to or death
to persons, as described but not limited by Section 19, in the amount of at
least $1,000,000 for damages arising from one occurrence, which amount may be
modified by Gulf for good cause upon thirty (30) days prior written notice to
Licensee. Upon such notification, Licensee shall procure and maintain
insurance in the amount specified in the notification such amount not to exceed
$5,000,000. Licensee shall also carry such insurance as will protect it from
Workmen's Compensation Laws in effect as may be applicable to it. All
insurance requirements shall be kept in force by Licensee for the life of this
Agreement and the company or companies issuing such insurance shall be approved
by Gulf such approval not to be unreasonably withheld. Gulf shall be an
additional insured under Licensee's liability insurance policy and Licensee
shall furnish to Gulf, a certificate showing the issuance of such insurance and
the insurance company's agreement that it will not cancel, terminate or change
its policy except after thirty (30) days prior written notice to Gulf.
Licensee's obligation to indemnify Gulf specified in Section l9 is not limited
to the amount of liability insurance coverage purchased by Licensee.
21. Rights-of-Way. Gulf does not warrant the extent of its
rights-of-way. Upon notice from Gulf to Licensee that the use of any pole is
forbidden by governmental authorities or property owners, the permit covering
the use of that pole shall immediately terminate, and Licensee shall remove its
cables, wires and appliances immediately from the affected poles.
22. Types of Service. Licensee is authorized to attach its cable
plant to Gulf's poles for the purpose of delivering cable television services
to Licensee's
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commercial and residential subscribers in the area described in Exhibit A,
pursuant to the franchises granted by the governmental entities served by the
Licensee.
23. Termination and Cancellation.
A. Default. If Licensee fails to comply with any of the
provisions of this Agreement and fails within thirty (30) days after written
notice from Gulf to cure a default, Gulf may terminate this Agreement or cancel
the permits covering the poles as to which such default has occurred and
Licensee shall immediately remove all affected attachments. Should Licensee
fail to remove its attachments after such termination or cancellation within
the (30) day period after Gulf's written notice to cure a default, Gulf may
proceed to do so at the expense of Licensee with no liability to Gulf therefor.
Licensee shall pay Gulf its cost for such removal plus fifteen (15%) percent.
If Licensee fails to perform work required to cure a default, Gulf may elect to
perform such work at the expense of Licensee with no liability therefor.
Licensee shall pay Gulf its costs for performing such work plus fifteen (15%)
percent.
B. Termination Due to Nonattachment. If Licensee has
made no attachments to any of Gulf's poles within the area covered by an
attachment agreement within one (1) year after the date of the agreement, Gulf
may terminate the agreement immediately and shall provide notice to the
Licensee of such termination thereafter. Likewise, if Licensee under an
existing attachment agreement enters into an amendment to that agreement to
include a new area but does not attach to any Gulf's poles within the new area
within one (1) year after the date of the amendment, Gulf may terminate the
amendment in the same manner as it would be able to terminate the agreement.
Termination of any such amendment shall not affect the original agreement nor
the area covered by the original agreement, if attachments are made under the
original agreement within the applicable one (1) year period. If Licensee
makes attachments to Gulf's poles
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under an agreement or amendment of agreement but removes all such attachments
and fails to make any new attachment for a period of one (1) year after the
removal of the last attachment, Gulf may terminate the agreement or amendment
of agreement as provided above.
C. Obligations Upon Expiration. Licensee shall, within
thirty (30) days following the expiration of this Agreement remove its
attachment from Gulf's poles. Should Licensee fail to remove its attachments
within thirty (30) days after expiration of the term Gulf may proceed to do so
at the expense of Licensee with no liability of Gulf therefor. Licensee shall
pay Gulf its cost for such removal plus fifteen (15%) percent.
D. Obligations Prior to Removal of Attachments. Upon
expiration or termination of this Agreement, the rights and obligations
conferred hereunder shall remain in full force and effect until such time as
Licensee's attachments are removed from Gulf's poles, in accordance with
Section 23.C., except that no new attachments shall be made.
E. Temporary Extension of Agreement Beyond Expiration or
Termination. Upon expiration or termination and with the prior written
authorization of Gulf, all rights and obligations conferred hereunder may
remain in full force and effect, including the right to apply for and make new
attachments, in the event Gulf determines that the parties are actively and in
good faith negotiating a new agreement. If, however, in Gulf's sole discretion
it is determined that negotiations have been discontinued or are not proceeding
in good faith, then no new attachments shall be permitted or made; all other
rights and obligations conferred hereunder shall remain in full force and
effect until Licensee's attachments have been removed from Gulf's poles. Gulf
may terminate the negotiation period upon breakdown of negotiations or at any
time upon thirty (30) days prior written notice to Licensee. Licensee shall
remove its attachments from
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Gulf's poles within thirty (30) days after such notice. If not so removed,
Gulf may remove such attachments at Licensee's expense with no liability
therefor. Licensee shall pay Gulf its cost for such removal plus fifteen (15%)
percent.
F. Termination or Modification upon a Change of Law.
If, in a final and unappealable order or judgement, the Federal Communications
Commission (the "FCC") or any governing body or court with appropriate
jurisdiction repeals, overrules or modifies 47 U.S.C. Section 224 insofar as it
requires Gulf to provide pole access to Licensee, then Gulf shall be entitled
to terminate Licensee's rights hereunder including, but without limitation,
Licensee's right to attach to any or all of Gulf's poles immediately or after
such period of notice as may be required by law. If, in a final and
unappealable order or judgement, the FCC or any governing body or court with
appropriate jurisdiction repeals, overrules or modifies 47 U.S.C. Section 224
insofar as it sets a maximum attachment fee that Gulf may charge Licensee, then
Gulf shall be entitled to modify the attachment fee set forth in Section 4.
hereof to the extent then permitted by law. To the extent then permitted by
law, Licensee shall pay to Gulf retroactive fees for all poles previously used
by Licensee in an amount equal to the difference between the rate charged by
Gulf after such repeal, overruling, or modification less the fees previously
paid for such poles by Licensee.
24. Rights Previously Conferred. Nothing in this Agreement shall
be construed as affecting the rights or privileges to use Gulf's poles
previously conferred by Gulf to others who are not parties to this Agreement.
Gulf may continue to confer such rights or privileges. The attachment
privileges granted to Licensee in this Agreement are non-exclusive and subject
to contracts and arrangements between Gulf and others who are not parties to
this Agreement.
25. Waiver. Failure by Gulf to enforce any of the terms of this
Agreement shall not constitute a waiver of future compliance with any such term
or terms.
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26. Notice. All notices regarding the attachment, maintenance or
removal of Licensee's attachments shall be sent electronically using the
National Joint Utilities Notification System. All other notices under this
Agreement must be given in writing by registered or certified mail, return
receipt requested, and mailed with sufficient postage prepaid to the party to
be given such notice. Notice to Gulf shall be addressed to:
PROJECT SERVICES ADMINISTRATOR
GULF POWER COMPANY
XXX XXXXXX XXXXX
XXXXXXXXX, XX 00000
Notice to Licensee shall be addressed to:
BEACH CABLE, INC.
P. O. XXX 0000
XXXXXX XXXX, XX 00000
27. Assignment. Licensee shall not assign, transfer or sublet the
privilege hereby granted without the prior written consent of Gulf, which
consent shall not be unreasonably withheld. Gulf shall grant or deny a request
for Consent to Assignment within sixty (60) days from receipt of the request.
Such request shall be accompanied by the information described in Section 2.
28. Enforcement. In the event enforcement of any provisions of
this Agreement becomes necessary, each company shall pay its own costs incurred
in pursuing such enforcement including reasonable attorney's fees.
29. Laws of State. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
30. Severability. In the event any covenant, condition, or
provision of this Agreement is held to be invalid or unenforceable by a final
judgment of a court of
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competent jurisdiction after construing this Agreement, the invalidity or
unenforceability thereof shall in no way affect any of the other covenants,
conditions, or provisions hereof, provided that such remaining covenants,
conditions, or provisions can thereafter be applicable and effective without
material prejudice to either Gulf or Licensee. This instrument embodies the
entire Agreement of the parties hereto and supersedes all prior negotiations,
representations or agreements either written or oral. This Agreement may be
amended only by written instrument signed by both Gulf and Licensee and the
authorized representatives of Gulf and Licensee.
IN WITNESS WHEREOF, Licensee and Gulf have caused this Agreement to be
executed by their authorized representatives and be effective as of the day and
year first written above.
WITNESS: Beach Cable, Inc.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------- ----------------------------------
Title: General Manager
-------------------------------
ATTEST: Gulf Power Company
By: /s/ Xxxxx X. Xxxxxxx By: /s/ X.X. Xxxxxx, Xx.
--------------------------- -------------------------------------
Asst. Secretary Vice President - Power Delivery and
Customer Operations
19
20
EXHIBIT A
DESCRIPTION OF SERVICE AREA
Name of Company Beach Cable, Inc.
--------------------------------------------------------
For Agreement Dated January 1, 1998
--------------------------------------------------------
A description of the geographical boundaries of the Agreement by Township,
Range and Section:
1. The City of Panama City Beach, Florida.
2. The unincorporated areas of Bay County between Hathaway Bridge as the
Eastern boundary, the Xxxxxxxx Inlet Bridge as the Western boundary,
the Gulf of Mexico as the Southern boundary, and St. Xxxxxxx Bay,
North Bay and the Intercoastal Waterway as the Northern boundary.
WITNESS: Beach Cable, Inc.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------------- ---------------------------------------
Title: General Manager
------------------------------------
ATTEST: Gulf Power Company
By: /s/ Xxxxx X. Xxxxxxx By: /s/ X.X. Xxxxxx, Xx.
---------------------------- ---------------------------------------
Asst. Secretary Vice President - Power Delivery and
Customer Operations
20
21
EXHIBIT B
APPLICATION FOR POLE ATTACHMENT PERMIT
City of
-----------------------------
State of
----------------------------
County
------------------------------
Date
--------------------------------
NAME OF LICENSEE
------------------------------------------------------------
In accordance with the terms of Agreement dated
_____________________________, 19__________, application is hereby made for
permit to make attachments to the following poles:
Location/ TLN
Pole No. Map No. Location and Type of Attachments
-------- ------- --------------------------------
By
-------------------------------------
Title
----------------------------------
Licensee
Permit granted________________________________, 19_____, except is subject
to Licensee's approval below if pole rearrangements are required. Estimated
cost of pole rearrangements required to provide space for Licensee's
attachments:
$________________________________ as shown on DSO No._________________________
GULF POWER COMPANY
By
--------------------------------------
Title
-----------------------------------
Licensor
The above charges
for rearrangements approved
By Permit No.
----------------------------------------- -------------------
Title Total Poles
-------------------------------------- ------------------
Licensee
22
EXHIBIT D
APPLICATION FOR POLE ATTACHMENT PERMIT
AFTER-THE-FACT FORM FOR SERVICE DROPS
City of
-----------------------------
State of
----------------------------
County
------------------------------
Date
--------------------------------
NAME OF LICENSEE
---------------------------------------------------------------
In accordance with the terms of Agreement dated
_____________________________, 19__________, application is hereby made for
permit to make attachments to the following poles:
TLM Pole No. NO. Date of
Service Address If Available of poles Attachments
--------------- ------------ -------- -----------
Licensee certifies that the above attachments have been installed on Gulf's
poles in strict conformity with the National Electrical Safety Code and any
other applicable codes, rules, or regulations of any governing body having
jurisdiction.
By
------------------------------------------
Title
---------------------------------------
Licensee
Permit granted this day of _________________________________, 19____.
GULF POWER COMPANY
Permit No.: By
--------------------------- -------------------------------
Total Poles: Title
-------------------------- ----------------------------
Licensor
23
[DIAGRAM OF
SEPARATION OF SERVICE DROPS
APPEARS HERE]
PLATE
C-1
24
[DIAGRAM OF
SEPARATION AT POLE PARALLEL FACILITIES
APPEARS HERE]
PLATE
C-2
25
[DIAGRAM OF
JOINT USE CONSTRUCTION
TYPICAL SINGLE TRANSFORMER INSTALLATION
7.2 KV CONSTRUCTION
APPEARS HERE]
PLATE
C-3
26
[DIAGRAM OF
JOINT USE CONSTRUCTION
TYPICAL ATTACHMENT OF CATV DISTRIBUTION SYSTEMS TO
GPCO POLES TYPICAL OUTDOOR LIGHT INSTALLATION
APPEARS HERE]
PLATE
C-4
27
[DIAGRAM OF
GROUNDING CONNECTIONS
APPEARS HERE]
PLATE
C-5
28
[DIAGRAM OF
JOINT USE CONSTRUCTION
MINIMUM CLIMBING SPACE THROUGH COMMUNICATION CIRCUITS
APPEARS HERE]
PLATE
C-6
29
[DIAGRAM OF
SEPARATION OF DOWN GUYS
APPEARS HERE]
PLATE
C-7
30
[DIAGRAM OF
SEPARATION AT POLE UNDERGROUND RISERS
APPEARS HERE]
PLATE
C-8
31
[DIAGRAM OF
COMMUNICATION/SIGNAL TYPE ATTACHMENT
C.A.T.V. POWER SUPPLY INSTALLATION
APPEARS HERE]
PLATE
C-9
32
[DIAGRAM OF
BONDING OF PADMOUNT TRANSFORMER
TO COMMUNICATION COMPANY FACILITIES
APPEARS HERE]
PLATE
C-10
33
[DIAGRAM OF
JOINT USE CONSTRUCTION
SEPARATION OF COMMUNICATION CABLES
AND
GULF POWER CO. FACILITIES
APPEARS HERE]
PLATE
C-11
