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HomeMy WebLinkAbout2023-667-P-Duke Energy Carolinas-Fiber attachment Agreement STATE OF North Carolina: LICENSE i COUNTY OF Orange THISAGREEMENT, made this 27th day of September, 2023 , by and between Orange County Government, hereinafter called Licensee, and DUKE ENERGY CAROLINAS , LLC, hereinafter called Licensor , WI TNESSE TII. That in consideration of the mutual covenants and agreements herein contained on the part of the i respective parties to be performed, said parties have agreed and do agree as follows . WHEREAS, Duke Energy Carolinas, LLC owns a certain electric distribution system located along a route(s) US 70 East, Revere Rd, N. Nash Street, W. Union Street, N. Occoneechee Street, W. Tryon Street, N. Hassel Street, W. King Street, S . Wake Street, W. Margaret Lane , as shown on Exhibit " A" and Exhibit "B ", dated 22nd of May, 2023 , a copy of which is attached hereto and made a part hereof; and, WHEREAS, Licensee desires to attach its fiber optic cable to approximately Eighty-Seven (87) poles of Licensor along the route shown on Exhibit " A " and Exhibit "B " hereto attached, and WHEREAS, that for and in consideration of the payment by the Licensee for the sum of $ 1 . 00 , and the agreement on the part of Licensee that it shall reimburse Licensor for any field survey and make-ready cost incurred in preparation of its facilities for use by the Licensee, the Licensor grants to Licensee permission, to the extent that the same may be lawfully given, and subject to the provisions of any and all Acts of Assembly, Municipal Ordinance and Regulations and Orders of the State Public Utility Commission now in force, or hereafter enacted, to attach its fiber optic cable to the aforesaid poles of Licensor for a period of ten ( 10) years , subject to renewal at the expiration thereof. In consideration of the granting of this attachment permit, Licensee agrees that its attachments to said poles shall be made and maintained at its sole expense, in accordance with the specification set forth in the current edition of the National Electrical Safety Code and any amendments or revisions thereof, and any Acts of Assembly, Municipal Ordinance and regulation and rules or orders of the North Carolina Utilities Commission or South Carolina Public Service Commission, as applicable, now in force, or hereafter enacted. Licensor reserves to itself, its successors, assigns and lessees, the right to operate its wires on said poles in any manner it sees fit, and shall not be liable to Licensee for any interruption to, or interference with, the operation of the wires of Licensee on said poles, caused by the wires used by Licensor, or the activity of its agents or employees, successors, assigns or lessees . All cables, conductors , wires , fixtures and other attachments placed on the poles by Licensee shall be and remain the property of Licensee and shall be utilized for its internal use for non-commercial public purposes . Licensee ' s use of Licensor ' s facilities shall not include the transmission, distribution, or sale of electricity and shall not involve the sale, lease or any other conveyance of fiber capacity to third parties . All crossarms, conductors, wires, fixtures and other attachments now and hereafter placed on the said poles by Licensor shall be and remain the property of Licensor. Said poles shall at all times be and remain the sole property of Licensor. All future renewals or necessary changes , relocations or alterations of said poles shall be made by Licensor at its expense, except such renewal, changes, relocations or alterations which are caused by the Licensee and which shall be at Licensee' s expense . In connection with such work, each party shall, at its own cost and expense, remove its lines, cables and facilities from the poles to be relocated, changed, altered or renewed and place same upon the new poles . Licensee shall label the communication line at each pole attachment with Licensee' s name and a 24 -hour telephone response number. Licensee agrees to utilize the National Joint Utility Notification System ( " NJUNS " ) , or, other system as designated by Licensor as means to notify , monitor, and update status of work associated with relocation needs of Licensee ' s facilities . In the event of any emergency, Licensor shall have the right to remove or transfer the facilities of Licensee without prior notice . - 2 - Licensee hereby agrees to secure all necessary consents or permits required by Municipal or Government Authorities and property owners to place and maintain the attachments herein specified . It is understood and agreed that the permission here given is a mere license and that the Licensee hereby assumes any and all risk in connection with the exercise thereof. Licensor shall not be liable for any i personal injury sustained by Licensee' s officers, employees , agents , contractors or any other persons while upon or about the poles or other facilities of the Licensor under the authority of this agreement, regardless of i how such injury may be sustained and whether resulting from acts of negligence of Licensor or from the action of the elements upon the poles or other facilities of Licensor . Licensee acknowledges that it shall be the duty and responsibility of any person who shall be on or upon any pole under the authority of this agreement to first examine such pole to insure that such pole is in good condition and will support the person who shall be on or about such pole . Licensee further agrees to indemnify and save harmless Licensor from and against any and all claims, damages , suits or causes of action for damages resulting from any injury to person or damage to property or loss of life sustained by any person or persons, to include any costs , charges , expenses and attorney' s fees reasonably incurred in connection with the defense of any claim made against Licensor, or any payment made by Licensor to an employee of Licensor or such employee' s relatives or representative in conformity with the provisions of any Employers' Liability or Workers' Compensation Act, hereinafter collectively termed " Loss " , resulting directly or indirectly from or incurred in connection with the presence, use, maintenance and removal of Licensee' s attachments, wires and fixtures . The foregoing notwithstanding, Licensee shall not be required to indemnify and hold harmless Licensor from any loss arising out of the sole fault of Licensor, and, to the extent that any Loss arises out of the fault of both Licensee and Licensor, if the degree of fault of Licensor exceeds the degree of fault of Licensee, Licensee shall be obligated to indemnify Licensor for only that portion of any Loss that is equal to the degree of Licensee' s fault. However, if the degree of fault of the Licensee is equal to or exceeds the - 3 - degree of fault of Licensor, or a Loss occurs under circumstances which make it impossible to determine the degree of fault of the Licensor and Licensee, then in either event, Licensee shall indemnify Licensor to the full extent of any Loss . Licensee shall carry insurance in such form and issued by such companies with a minimum A .M. Best rating of ANII or higher to protect the Parties from and against claims , demands , actions , judgments , costs , expenses and liabilities 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, the following occurrence form insurance (where these limits can be met with inclusion of umbrella/excess liability limit) : Workers ' compensation and employer ' s liability insurance , as required by law, covering all employees who perform any of Licensee ' s obligations under this Agreement, with statutory limits and employer ' s liability insurance limits of not less than One Million Dollars ($ 1 , 000 ,000) . Commercial general liability or equivalent insurance with a per occurrence limit of not less than Five Million Dollars ($ 5 , 000 , 000) per occurrence . Such insurance shall include but not be limited to products/completed operations liability , blanket contractual liability, personal injury liability and broad form property damage . Business automobile liability or equivalent insurance with a combined single limit of not less than Two Million Dollars ($2 , 000 , 000) each accident. Such insurance shall 'include coverage for owned, hired and non- owned automobiles , and contractual liability . Such other insurance as may be necessary to insure the indemnity agreement and to protect Licensor from and against any and all insurable claims , demands , suits , actions , causes of action, proceedings , judgments , awards , losses , fees , costs , expenses and liabilities of every name and nature - 4 - which may arise or result, directly or indirectly, from or by reason of this Agreement and any injury, loss i or death that may result from this Agreement. The policies required shall be endorsed to include Licensor and its directors , officers , members and employees as additional insureds (except for workers ' compensation and employer liability) and shall f stipulate that the insurance afforded for Licensee, its directors , officers, members and employees shall be primary insurance and that any insurance carried by Licensor, its directors , officers , members or employees shall be excess and not contributory insurance . Licensee and its insurers providing the required coverage shall waive all rights of subrogation against Licensor and its directors , officers, employees and agents except in the event of gross negligence or malicious conduct on the part of Licensor . Before Licensee may affix any Attachments to or make use of any of Licensor ' s Poles under this Agreement, Licensee shall furnish Licensor with certificates of insurance as evidence that policies providing the required coverage, conditions and limits are in full force and effect . The certificates shall identify this Agreement and state that the insurer or Licensee shall provide that not less than thirty (30) days ' advance notice of cancellation or non renewal . In the event of the Licensee ' s failure to maintain any insurance required, the Licensor shall have the right to cancel this Agreement . Licensor shall not be obligated to review any of Licensee ' s certificates of insurance, insurance policies and/or endorsements or advise Licensee of any deficiencies in such documents , and any receipts of copies or review by Licensor shall not relieve Licensee from or be deemed a waiver of Licensoe ' s right to insist on strict fulfillment of Licensee ' s obligations . All such notices will be sent directly to Licensor at the following address (or other address as may be specified by Licensor) : - 5 - Joint Use DUKE ENERGY 400 South Tryon ST26A Charlotte , NC 28201 - 1006 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, and shall demonstrate such full compliance upon request of Licensor . Failure of LICENSEE to maintain adequate insurance coverage shall not relieve LICENSEE of any contractual responsibility or obligation. The requirement, provided herein as to type, limits , and coverages to be maintained by LICENSEE is not intended to , and shall not in any manner, limit or quantify the liabilities and obligations assumed by LICENSEE . 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 stated in this agreement. The contractual liability coverage shall insure the performance of all obligations assumed hereunder, including specifically, but without limitation, the indemnity provisions in this Agreement. Licensor may periodically amend the insurance requirements to require additional insurance coverage or other changes, as deemed necessary by Licensor but only after providing the Licensee with 90 days notice of such change . This permit, together with all the terms and conditions, shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto ; however, Licensee shall not, without the written consent of Licensor first had and obtained, assign this permit in whole or in part. This agreement shall remain in effect for a period of ten ( 10) years from the date hereof, unless either party shall give written notice of sixty (60) days in advance of its intention to terminate same. - 6 - Upon termination of this agreement, Licensee shall have the right to remove its cables, conductors, wires and all its other facilities and property from said poles within sixty (60) days after said termination and shall have no further rights thereunder . i i i - 7 - IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in duplicate as of the day and year first above written. DUKE ENEi RGY CAROLINAS, LLC By : I'risti McCall Title : GM CD Resource Planning Contracts Date : l 5 a3 Orange County Government By : Printed Name : Bonnie Hammersley Title : Co7P . ty Manag r 2 Date : '3 ��✓ - 8 - ORANGE COUNTY-INTERNAL USE ONLY Finance Information Vendor Name : Duke Energy Carolinas , LLC . Vendor Contact Person : Kristi McCall Phone . Address : PO Box 70515 City Charlotte State : NC Zip : 28272- 0515 Department : IT Amount: $11 Purpose : Fiber Attachment Agreement Budget Code(s) : 10315020 - 540010 Vendor # 139 Vendor Status with NCSOS : Current-Active Vendor is a BOCC consultant: []Yes ® No Contract Details Contract Type : ® New ❑ Amendment (Original Contract: ) (Most Recent Amendment ) Effective Date 27 September 2023 End Date Notice Date (Notice Purpose ) Award ❑ Approved by Board (Agenda Date . _�; ElMade or Administered by Signature Authority ❑ BOCC Express Delegation (Agenda Date : Policy 9 . 4 : Under $ 5 , 0000, ® Servi❑ ce Under $ 90 , 0008 ❑ Construction Under $ 250 ,000 ❑ Budget Policy Section XV (Capital Improvement Project : ) Biddin Informal Biddin 30k- 901c Formal RFP $ 90k+ Other <$ 30k • Exce tion(# i Department Affirmation ® This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to execution of the agreement. ❑ Services related to this agreement have already begun or been completed . Description of the nature of the emergency condition that was addressed . x Department Director ' s Signature � f Dater P h � �T , y Information Technolo ies This agreement has been reviewed and is approved as to information technolo content and specifications : Office of the Chief Information Officer . - w a Date : ° �w ❑ Inapplicable because no hardware/software purchases or related services R$ ° sic Management This agreement is approved for sufficiency of 1n5p r atw e standard cific s , and requirements : Office of the Risk Management Officer Date . Z (L)) Financial Services This instrument has been pre- audited in the manner required b the Local Government Budget and Fiscal Control Act: CH Office of the Chief Financial Officer Date : L gal Services This agreement is approved as to legal form and sufficiency . Office of the County Attorney Date : 2 3 Perk to the Board All Docusign contracts must be copied to the Cleric upon completion : occlerkdocs@orangecountync . gov The following signature block is for hard copies only and is not required for Docusign contracts : Received for record retention . Office of the Cleric to the Board Date . Revised 04 / 23 1 ORANCOU -50 JSHARMA ACORO `3 DATE (MM/DD/YYYY) CERTIFICATE LIABILITYINSURANCE 7/19/2023 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND , EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S) , AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy( ies) must have ADDITIONAL INSURED provisions or be endorsed . If SUBROGATION IS WAIVED , subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s) . PRODUCER CONTACT NAME: Alliant Insurance Services, Inc. PHONE 619 238 -1828 FAX 101 N . Tryon St, Ste 6000 (A/C, No, Ext) : ( (A/C, No) : Charlotte, NC 28246 ADDRESS : INSURERS AFFORDING COVERAGE NAIC # INSURERA : Charter Oak Fire Insurance Company 25616 INSURED INSURER B : Phoenix Insurance Company 2623 Orange County , NC INSURER c : Travelers Property Casualty Company of America 25674 300 West Tryon Street INSURER D : Farmington Casualty Company 41483 Hillsborough, NC 27278 INSURER E : Syndicate 2623/623 at Lloyd's (Beazley Furlonge Ltd .) INSURER F COVERAGES CERTIFICATE NUMBER : REVISION NUMBER . THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED , NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN , THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS , EXCLUSIONS AND CONDITIONS OF SUCH POLICIES , LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS , INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSD WVD MM/DD/YYYY MM/DD/YYYY A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1 , 000 , 000 CLAIMS-MADE ® OCCUR ZLP91 N5373023PA 7/1 /2023 7/1 /2024 DAMAGE TO RENTED PREMISES Ea occurrence) $ MED EXP (Any oneperson) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2 , 0001000 X POLICY F1PECOT- LOC PRODUCTS - COMP/OP AGG $ OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 2 , 0001000 Ea accident $ X ANY AUTO H8106T107454PHX23 7/1 /2023 7/1 /2024 BODILY INJURY Perperson) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY Per accident $ A�T OS ONLY AUOTOOS ONLYY PeOr accRden DAMAGE $ C X UMBRELLA LIAR X OCCUR EACH OCCURRENCE $ 41000 , 000 EXCESS LIAR CLAIMS-MADE ZUP16P3255723PA 7/ 1 /2023 7/112024 AGGREGATE $ 41000 , 000 DED RETENTION $ $ D WORKERS COMPENSATION PER OTH- AND EMPLOYERS' LIABILITY Y / N UBST76883623PAD 7/1 /2023 7/1 /2024 STA UTE I I ER 100007000 ANY OFFICER/MEMBER/ EXCLUDED? ECUTIVE ® N / A E. L. EACH ACCIDENT (Mandatory in NH) E. L. DISEASE - EA EMPLOYEE 1 , ®00 , ® ®® If yes, describe under 1 , 000 , 000 DESCRIPTION OF OPERATIONS below E. L. DISEASE - POLICY LIMIT $ E Cyber Liability FN2311046 7/1 /2023 7/1 /2024 Limit 1 , 000 , 000 A Prof. Liability ZLP91 N6373023PA 7/1 /2023 7/1 /2024 Limit 21000 , 000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101 , Additional Remarks Schedule, may be attached if more space is required) Evidence of coverage only. Y CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Evidence of Insurance THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE U ACORD 25 ( 2016/03 ) © 1988 =2015 ACORD CORPORATION . All rights reserved . 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