Pole Attachment Agreement: Definition & Sample

A pole attachment agreement is a legal document that outlines the specifics of how your business will be using the poles owned by your local utility company.

Common Sections in Pole Attachment Agreements

Below is a list of common sections included in Pole Attachment Agreements. These sections are linked to the below sample agreement for you to explore.

Pole Attachment Agreement Sample

JOINT USE AGREEMENT

This Agreement, dated as of the 12th day of April , 2007, (Effective Date) is entered into by and between BLACK HILLS POWER Inc., a South Dakota corporation, whose post office address is P. O. Box 1400, Rapid City, South Dakota 57709-1400, hereinafter referred to as Company and Prairie Wave Black Hills, LLC, a SD Corporation, whose post office address is P.O. Box 89213, Sioux Falls, SD 57109-9213, hereinafter referred to as Licensee.

1.1 Definitions . The following capitalized words and phrases when used in this Agreement shall have the respective meanings as follows:

“Agreement” is this Joint Use Agreement.

“Attachment(s)” is the erection, installation, maintenance and attachment by Licensee of Licensee’s Facilities to Company’s Poles pursuant to this Agreement.

“Cable Operator” shall have the meaning given such term in 47 U.S.C. § 522(5)

“Cable Service” shall have the meaning given such term in 47 U.S.C. § 522(6).

“Company” is Black Hills Power, Inc., an electric utility and a party to this Agreement.

“Facilities” are Licensee’s cables, wires, all communication attachments, apparatus, appliances, antennas, and related equipment for Attachment to Company’s Poles.

“Fee Schedule” is the schedule of fee, charges, and rents attached hereto as Exhibit E , as may be amended from time to time by Company upon written notice to Licensee.

“Licensee” is Prairie Wave Black Hills, LLC, a party to this Agreement.

“Other Attachers” include any telephone, communications or cable utility or other party, excluding Company and Licensee, that has a statutory or contractual right of attachment to Company’s poles or use of Company’s trenches.

“Overlashing” refers to the practice by which a new cable or wire is wrapped around an existing cable or wire, rather than being strung and bolted separately.

“Poles” are the pole or poles belonging to Company to which Licensee has made or wishes to make Attachments.

“Telecommunications Carrier” shall have the meaning given such term in 47 U.S.C. § 153(44).

“Telecommunications Service” shall have the meaning given such term in 47 U.S.C. § 153(46).

1.2 Recitals . Licensee is a Cable Operator or a Telecommunications Carrier. Licensee will need to erect and maintain Facilities to make Attachment to Company’s Poles. The purpose of this Agreement is to set forth all the terms and conditions under which Company agrees to the Attachment, pursuant to and consistent with 47 U.S.C. § 224 et seq . as amended by 47 U.S.C. § 703, and the rules and regulations promulgated thereunder, to the extent applicable.

2. USE AND PURPOSE . The grant of a license and permit under the terms of this Agreement are for the purpose of enabling the Licensee to provide lawful communications services.

3. PERMIT . Company hereby permits Licensee to make Attachments to Company’s Poles for the purpose of providing lawful communications services, subject to the following terms and conditions set forth in this Agreement. The permit granted hereunder is and shall be deemed to be a revocable, nonexclusive license. Except as otherwise permitted herein, before making Attachments to any Poles, Licensee shall apply and receive a permit from Company. The permit requirement will be waived for new service drops added to Poles on which Licensee already has an Attachment. A sample of the application and permit are attached as Exhibit A and Exhibit B respectively.

3.1 Licensee shall make application to Company in the form of Exhibit A (each, an “Application”). Along with an Application, Licensee shall furnish Company with the necessary maps, specifically indicating the Poles to be attached, the span lengths between poles, the number and character of Attachments to be placed on such Poles, the proposed Attachment height, the proposed Attachment mid-span height, and any other information required by Exhibit A .

3.2 Licensee shall furnish Company pole strength calculations with each Application. Pole strength calculations will only be required for poles: (a) where BHP general rules for meeting NESC standards under heavy loading conditions aren’t used; or (b) poles that are class 3, class 4 or class 5; or (c) poles that have conductor spans greater than 275 feet; (d) or poles that have 3 or more existing attachments. Pole calculations may be performed on a representative basis if desired.

3.3 Company shall notify Licensee, in the form of Exhibit B (each, a “Permit), at the time of Application, if any of the requested space on Pole is reserved for Company’s use pursuant to a bona fide development plan that reasonably and specifically projects a need for such facilities for the provision of Company’s core utility services.

3.4 Company shall notify Licensee, in the form of Exhibit B , if Poles for which Application is being made are inadequate to support such additional Facilities. The Permit shall describe the make-ready changes required to accommodate Licensee’s Attachments.

3.5 The Notice of Completion by Licensee, attached as Exhibit C hereto, shall be signed by a Licensee representative. The Notice of Completion shall be returned to Company within thirty (30) days after installation has been completed. Company reserves the right to remove any Attachments that do not have a Notice of Completion by Licensee.

3.6 Company may deny Licensee access to its Poles where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering reasons.

3.7 No Application is required for Overlashing. However, Licensee must provide Company a pole strength calculation within sixty (60) days of Overlashing and is responsible for any make-ready costs attributed to its Overlashing.

4. MAINTENANCE AND REMOVAL . Licensee shall, at its own expense, make and maintain Attachments in a safe condition and in a manner suitable to Company that is consistent with the safe use of Poles by Company or Other Attachers. Said use shall not interfere with the working use of existing facilities.

4.1 Whenever it is necessary to replace or relocate a jointly-used Pole, Licensee shall, upon thirty (30) days advance written notice from Company, relocate, replace, or renew its Attachments, and transfer them to substituted Poles, or perform any other work in connection with Facilities that may be required by Company, unless upon such notice, Licensee requests that Company perform the work on Licensee’s behalf at the cost listed in the Fee Schedule (which may be amended from time to time without prior notice) and Company agrees to do such work. Should Licensee fail to transfer its Attachments to the new or relocated joint pole at the time specified, or fail to request Company to perform such work, Company may elect to do such work, and will do so under the same standards that Licensee is held to. Licensee shall be responsible for all costs incurred by Company associated with transfer of Licensee’s Attachments and removal of abandoned pole per the cost listed in the Fee Schedule. In the event the Licensee fails to transfer its Attachments and Company performs such transfer, Company shall not be liable for any loss or damage to Licensee’s Facilities, service interruptions or business losses which may result, except for losses resulting from the gross negligence or intentional misconduct of Company or its employees, agents, contractors, or subcontractors.

4.2 In cases of emergency, Company may arrange to relocate, replace or renew the Facilities, transfer them to substituted Poles or perform any other work in

connection with Facilities that may be required in the maintenance, replacement, removal or relocation of Poles. The Licensee shall, on demand, reimburse Company for the expense thereby incurred.

4.3 If a Pole is being removed pursuant to the request of a private property owner, where Company and Licensee’s Facilities are legally located on such private property, Company shall not remove the Pole until Licensee has removed Attachment.

5. POLE SUPPORT . In the event that any Poles of Company to which Licensee desires to make Attachments are inadequate to support such additional Facilities in accordance with Company specifications or where Licensee’s Attachments can be accommodated only by rearranging Company’s Facilities, Company will notify Licensee in writing, in the form of Exhibit B, of the make-ready changes necessary to accommodate Licensee’s Attachments. If Licensee still desires to make the Attachment and confirms the same in writing, in the form of Exhibit B, Company will make such make-ready changes or replace such inadequate Poles and Licensee will, on demand, reimburse Company for the entire nonbetterment portion of the cost and expense thereof. The costs and expenses shall include but not be limited to the increased cost of larger Poles, sacrificed life of Poles removed, cost of removal less any salvage recovery and the expense of transferring Company’s and, if applicable, Other Attachers’ Facilities from the old to the new Poles. In the event any Other Attacher refuses to accommodate Licensee’s Attachments upon reasonable notice from Licensee, Company shall cause such Other Attachers to accommodate Licensee’s Attachments when necessary.

5.1 If any Poles to which Licensee has made Attachments are inadequate to support additional Company facilities in accordance with the aforementioned specifications of this Agreement, and such additional Company facilities are required by Company pursuant to a bona fide development plan, as identified in the Permit, Company shall notify Licensee to this effect. Upon such notice, Licensee shall remove its Facilities from such Poles within thirty (30) days therefrom or shall indicate its desire to continue to maintain its Facilities on such Poles, in which event Company will make such changes or replace such inadequate Poles with suitable Poles and Licensee will, on demand, reimburse Company for the entire nonbetterment portion of the cost and expense thereof, including the increased cost of larger Poles, sacrificed life of Poles removed, cost of removal less any salvage recovery and the expense of transferring Company’s and, if applicable, Other Attachers’ Facilities from the old to the new Poles.

5.2 Any unbalanced loading of Company’s Poles caused by the placement of the Licensee’s Facilities shall be properly guyed and anchored by Licensee. Any strengthening of Poles (guying) required in accordance with the aforementioned specifications to accommodate the Attachments of Licensee shall be at the expense of Licensee. Licensee may not place new anchor Attachments on Company anchors without prior written approval from Company.

5.3 Upon completion of all changes, the Licensee shall have the right to use the Poles jointly and to make Attachments in accordance with the terms of the Permit and of this Agreement. Licensee shall, at its own expense, make Attachments in such manner so as not to interfere with the service of Company. All Poles jointly used under this Agreement shall remain the property of Company, and any payments made by the Licensee for changes in Pole lines under this Agreement shall not entitle the Licensee to ownership of any of said Poles.

6. CODE COMPLIANCE; SAFETY . No Attachment shall be made except as may be lawfully made. Licensee’s Facilities and Attachments shall be erected and maintained in accordance with the requirements and specifications of the most recent National Electrical Safety Code, and any amendments or revisions of said Code, in accordance with applicable grandfathering provisions. Attachments must be in compliance with any generally applicable rules or orders now in effect or that hereafter may be issued by any other authority having jurisdiction and with Company construction standards provided with the applicable Permit.

6.1 Licensee shall further comply with all applicable federal requirements that may be imposed by the Federal Energy Regulatory Commission and Occupational Safety and Health Administration as well as with any state and local requirements affecting pole Attachments.

6.2 Licensee shall comply with all applicable federal, state, and local laws and regulations and ordinances applicable to hazardous materials as defined in 40 CFR 260 et seq. Licensee shall not use any premises or easement on which any Pole is located for treatment, storage, use or disposal of hazardous materials. Licensee shall be responsible for any expense for compliance with the requirements of any federal, state, or local laws, regulations or ordinances for damage caused directly or indirectly, by the activities of the Licensee or Licensee’s agents, employees, or contractors.

6.3 In the event Company should change or adopt a rule(s) or practice(s) policy for the joint use of Poles by Licensee, Company shall give Licensee written notice of such change or adoption in the manner set forth in Section 27 of this Agreement, and Licensee agrees to make such changes or alterations as set forth in the policy, on a going-forward basis.

7. ACKNOWLEDGEMENT . Licensee hereby acknowledges and agrees that Company does not warrant the condition of the Poles, facilities and equipment on such Poles, or the premises surrounding such Poles as to its safety whatsoever, and Licensee hereby assumes all risk of any damage, injury or loss of any nature whatsoever caused by or in connection with the use of said Poles, facilities and equipment on such Poles, or the premises surrounding said Poles and Licensee agrees to indemnify, defend, protect and hold Company harmless in connection with Section 16 of this Agreement. It is further understood and agreed by and between the parties that in the performance of making Attachments under this Agreement, Licensee, its agents, employees, contractors and subcontractors will necessarily be required to work near, adjacent to, and in the vicinity of electrically energized lines, transformers

or other equipment of Company, and it is the intention that energy therein will not be interrupted during the continuance of this Agreement, except in an emergency endangering life, grave personal injury or property. Licensee is fully and solely responsible for seeing that its employees, agents, contractors and subcontractors have the necessary skill, knowledge, training and experience in order to protect themselves, their fellow employees, employees of Company, and the general public, from harm or injury while making the Attachments permitted pursuant to this Agreement. In the event Company de-energizes any equipment or line at Licensee’s request, Licensee shall reimburse Company in full for the actual, direct, and indirect costs and expenses incurred in order to comply with Licensee’s request for de-energization of any equipment or line. Licensee warrants that it is apprised of, conscious of, and understands the imminent dangers inherent in the work necessary to make the Attachments on Company’s Poles by Licensee’s personnel, employees, agents, contractors or subcontractors, and accepts it as Licensee’s duty and sole responsibility to notify and inform its personnel, employees, contractors and subcontractors of such dangers, and to keep them informed regarding the same.

8. ABANDONMENT OF JOINT USE POLES . If Company desires at any time to abandon any joint use Pole, it shall give Licensee notice in writing to that effect. Licensee shall be responsible for removal of its Attachments from such pole(s) within a sixty (60) day time period. If Licensee does not remove its Attachment within said time period, Licensee shall be responsible for all costs incurred by Company associated with removal of Licensee’s Attachments and removal of abandoned pole per the cost listed in the Fee Schedule.

8.1 Licensee may at any time abandon the use of a joint use Pole by giving Company written notice of such abandonment in the form of Exhibit D attached to this Agreement, and removing from such Poles all Attachments that Licensee may have. No refund of any rental will be due on account of such removal. Should Licensee wish to make Attachments to such Poles thereafter, it shall make Application and receive a Permit as provided in Section 3.

9. LIMITATION OF LIABILITY . Company reserves to itself, its successors and assigns, the right to maintain its Poles and to operate its facilities thereon in such manner as will best enable it to fulfill its own service requirements in accordance with applicable law. Company shall not be liable to Licensee for any interruption to service of Licensee, for interference with the operation of Licensee’s Attachments or damages to Licensee’s Facilities or property arising in any manner out of Company’s use of its Poles hereunder, except for losses resulting from the gross negligence or intentional misconduct of Company or its employees, agents, contractors or subcontractors.

10. AUTHORITY AND RIGHT OF WAY . Upon request, Licensee shall submit to Company evidence satisfactory to Company, of Licensee’s authority to make Attachments within public streets, highways and other thoroughfares and Licensee shall secure any necessary consent from federal, state or municipal authorities or from the owners of property to make Attachments at all the locations of Poles. Where Licensee does not have authority from the property owner to place its Attachments on or across said property, Company may deny the request for Attachments, or if in place, require the removal of said Facilities. Licensee shall