HomeMy WebLinkAbout2026-07-06 I01F_01 Pole Attachment AgreementAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: July 6, 2026
AGENDA ITEM:Consideration of approval of a resolution approving Pole Attachment
Contract between MidAmerican Energy Company and the City of
Waukee
FORMAT:Consent Agenda
SYNOPSIS INCLUDING PRO & CON: Mid American Energy requires a written agreement
with municipalities related to the municipalities use of Mid American
owned utility poles for City purposes. Nine of the eleven license plate
readers in use by the City of Waukee are currently installed on Mid
American Energy poles and this agreement was not executed in July of
2023 when the system was put in place and Mid American recently
notified the City of the missing agreement. No additional license plate
readers are being added, this simply ensures the City is in compliance
with Mid American Energy policies with those devices in place since
July of 2023.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
Mid American Energy charges $250 per pole application, and $35 per pole for an inspection fee.
With nine poles, we anticipate a cost of $2,565 for the application and inspection fees with no
ongoing fees applicable to the City.
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the resolution.
ATTACHMENTS: I. Proposed Resolution
II. Mid American Energy Agreement and Fee Schedule
PREPARED BY:Chad McCluskey, Police Chief
REVIEWED BY:Brad Deets, City Administrator
I1F1
THE CITY OF WAUKEE, IOWA
RESOLUTION 2026-
APPROVING AGREEMENT WITH MID AMERICAN ENERGY FOR CITY USE
OF MID AMERICAN OWNED UTILITY POLES.
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Iowa is a duly organized municipality within Dallas
County; AND,
WHEREAS, Mid American Energy owns a number of utility poles located within the
City Limits of Waukee; AND,
WHEREAS, the City utilized Mid American Energy Poles for the purposes of attaching
license plate reader devices in July of 2023 without realizing the need for an agreement
for such use; AND,
WHEREAS, the City was notified of the requirement for a written agreement for such
use and the City wants to ensure compliance with Mid American Energy requirements for
such use of their poles.
NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in
session this 6th day of July, 2026, that it hereby approves the Pole Attachment Agreement
with Mid American Energy Company.
____________________________
Courtney Clarke, Mayor
Attest:
___________________________________
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
Kala Anderson
Chris Crone
Rob Grove
Lori Lyon
Anna Bergman Pierce
1
POLE ATTACHMENT CONTRACT FOR A MUNICIPAL CAMERA SYSTEM
BETWEEN
MIDAMERICAN ENERGY COMPANY
AND
CITY OF WAUKEE
DEFINITIONS .................................................................................................... 3
SCOPE OF CONTRACT ................................................................................... 5
Section 2.01 License Denial .................................................................................................................. 6
Section 2.02 Maintenance of Poles ...................................................................................................... 6
REQUIREMENTS FOR ATTACHMENT TO POLES ................................. 6
Section 3.01 Application for Permission to Install Attachment ............................................................ 6
Section 3.02 Non-Interference ............................................................................................................. 6
APPLICATION FOR PERMISSION TO INSTALL ATTACHMENT ....... 7
Section 4.01 Application Process Generally.......................................................................................... 7
Section 4.02 Application Process for Attachments ............................................................................... 7
Section 4.03 Disclosure of Applications ................................................................................................ 8
Section 4.04 NESC Compliance ............................................................................................................. 8
Licensee’s USE OF POLES ............................................................................... 8
Section 5.01 Installed Attachments, Maintenance and Repairs by Licensee ....................................... 8
Section 5.02 Physical Location of Attachment ..................................................................................... 9
Section 5.03 Reserved. .......................................................................................................................... 9
Section 5.04 Operation ......................................................................................................................... 9
Section 5.05 Adjacent Facilities ............................................................................................................ 9
Section 5.06 Reserved ......................................................................................................................... 10
Licensee’s Installation Responsibilities ........................................................... 10
Section 6.01 Identification of Equipment ........................................................................................... 10
Section 6.02 Grounding ...................................................................................................................... 10
Section 6.03 Guying ............................................................................................................................ 10
Section 6.04 Nonconforming Equipment ........................................................................................... 10
Section 6.05 Reserved ......................................................................................................................... 11
Section 6.06 Reserved ......................................................................................................................... 11
Section 6.07 Vegetation Management ............................................................................................... 11
Section 6.08 Third-party Consents, Permits, Licenses, or Grants ....................................................... 11
Section 6.09 Relocation of Attachments at MidAmerican’s Option ................................................... 11
Section 6.10 Reserved ......................................................................................................................... 12
Section 6.11 Removal of Attachments by Licensee ............................................................................ 12
Section 6.12 Notice of Damage .......................................................................................................... 12
Section 6.13 Inspections and Occupancy Survey ................................................................................ 12
Section 6.14 Tax Liability ..................................................................................................................... 13
Section 6.15 Reserved ............................................................................ Error! Bookmark not defined.
Section 6.16 Interference with MidAmerican’s Facilities ................................................................... 13
2
FEE SCHEDULE.............................................................................................. 14
Section 7.01 Fee Schedule .................................................................................................................. 14
Section 7.02 Unauthorized Attachments ............................................................................................ 15
Section 7.03 Billing and Payments ...................................................................................................... 15
Section 7.04 Interest on Late Payments ............................................................................................. 15
Section 7.05 Adequate Assurances ..................................................................................................... 15
INDEMNIFICATION; Limitations of liability; WARRANTIES ................ 16
Section 8.01 Indemnification/Release ................................................................................................ 16
Section 8.02 Warranty ........................................................................................................................ 17
Section 8.03 Limitation of Liability ...................................................................................................... 17
INSURANCE and bond ................................................................................... 18
Section 9.01 Insurance ........................................................................................................................ 18
Section 9.02 Proof of Compliance ....................................................................................................... 19
Section 9.03 Bonding .......................................................................................................................... 19
TERM, DEFAULT AND TERMINATION ................................................... 19
Section 10.01 Term and Termination ................................................................................................... 19
Section 10.02 Default ............................................................................................................................ 20
Section 10.03 Notice of Default/Cure Period ....................................................................................... 20
Section 10.04 Remedies for Default ..................................................................................................... 20
GENERAL PROVISIONS ............................................................................... 20
Section 11.01 Confidentiality ................................................................................................................ 20
Section 11.02 Business Ethics ............................................................................................................... 21
Section 11.03 Entire Contract ............................................................................................................... 21
Section 11.04 Governing Law; Jury Waiver .......................................................................................... 21
Section 11.05 Compliance with Law; Changes in Law .......................................................................... 22
Section 11.06 Severability ..................................................................................................................... 22
Section 11.07 Encumbrances ................................................................................................................ 22
Section 11.08 Headings and Exhibits .................................................................................................... 22
Section 11.09 Force Majeure ................................................................................................................ 22
Section 11.10 Assignments ................................................................................................................... 22
Section 11.11 Waiver ............................................................................................................................ 23
Section 11.12 No Partnership ............................................................................................................... 23
Section 11.13 No Third Party Beneficiaries .......................................................................................... 23
Section 11.14 Notices ........................................................................................................................... 23
3
THIS POLE ATTACHMENT CONTRACT FOR A MUNICIPAL CAMERA SYSTEM (this
“Contract”), dated as of July 29th, 2024 (the “Effective Date”), is entered into by and between
MIDAMERICAN ENERGY COMPANY, an Iowa Corporation, hereinafter “MidAmerican,” and the
city of WAUKEE (“Licensee”), a municipality organized and authorized in the State of Iowa.
WHEREAS, Licensee desires to place one or more cameras on Poles within Licensee’s
jurisdiction for purposes related to automated traffic enforcement and to promote public safety; and
WHEREAS, MidAmerican is engaged in the business of providing electric service to customers
in certain areas within the state of Iowa; and as part of said service owns and operates utility Poles in
certain areas; and,
WHEREAS, Licensee desires to attach cameras, as shown in (the “Attachments”) to utility Poles
owned and operated by MidAmerican in said communities (the “Poles”). The Parties agree that
throughout this Contract the term “Attachment” refers to one camera and the term “Attachments” refers
to more than one camera, as indicated by context; and,
WHEREAS, MidAmerican desires to grant Licensee access to such Poles in accordance with the
terms and conditions of this Contract; and
WHEREAS, MidAmerican, in an effort to accommodate Licensee’s request for access to its
Poles while continuing to provide safe and reliable service to existing and prospective customers within
Iowa communities, seeks to memorialize the Parties’ intent and agreement in this Contract and to grant
Licensee access to such Poles in accordance with the terms and conditions of this Contract.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which
the Parties hereby acknowledge, the Parties agree to act in accordance with the following terms and
conditions:
DEFINITIONS
The following terms, when used herein with initial capitalization, whether in the singular or in the plural,
shall have the meanings specified in this Article I:
“Application” means an action where Licensee requests permission to add or modify its Attachments(s)
or sends notification of its removal of previous Attachments(s), according to the process set forth in
Article IV.
“Application Fee” means a fee that accompanies each Application intended to cover costs for data and
document support and necessary internal processing of Applications incurred by MidAmerican that are
caused by or attributable to Licensee’s Attachment, as set forth in Article IV.
“Attachment Fee” means the annual fee Licensee shall pay each year for each of its Attachments.
“Business Days” means days other than a Saturday, Sunday, or state or federal holiday when banks are
authorized to be closed.
4
“Complete Application” means an Application that provides all of the information required in Article
IV, Section 4.02 and provides MidAmerican with all information necessary to begin Survey of the
affected Streetlights.
“Existing Attacher” means any entity other than MidAmerican or Licensee with facilities, equipment, or
other property on a MidAmerican Pole.
“FCC” means the Federal Communications Commission.
“Illinois Commerce Commission” means the Illinois regulatory agency that regulates utilities within the
state of Illinois.
“Illinois Commerce Commission Rules” means the Illinois Administrative Code established by the
Illinois Commerce Commission that govern utilities.
“Inspection” means examination by MidAmerican of its Poles and all proposed or existing Attachments
for the purpose of verifying the number and location of all Attachments and any other Pole-mounted
equipment of Licensee or determining whether Licensee is in compliance with the terms of this Contract,
the NESC, and any other applicable federal, state, or local statutes, regulations, rules, or codes.
“Installation” means the action or process of affixing Attachments to MidAmerican Poles.
“Iowa Utilities Board” means the Iowa regulatory agency that regulates utilities within the state of Iowa.
“Iowa Utilities Board Rules” means chapter 20 of the rules established by the Iowa Utilities Board that
govern utilities.
“License” shall mean MidAmerican’s final approval and permission to install and maintain Licensee’s
Attachment(s) on the affected Poles as approved via an Application and under the terms and conditions
set forth in this Contract.
“Licensee” means the City of Waukee and includes its agents, contractors, employees, representatives,
and subcontractors, unless the context makes it clear a more restrictive definition is intended by the
Parties.
“Make-ready Work” means all work including, but not limited to, engineering analysis, site Inspections,
review of the design, strength and loading characteristics of the affected Poles to which they are attached
or a part of and performance of such tests, calculations, analyses, and other items reasonably necessary
to calculate the work necessary to accommodate Licensee’s Attachments on the affected Poles, including
without limitation, grounding mast arms that are not grounded, work related to transfers, rearrangements
and replacements of existing MidAmerican equipment, and/or the addition of new MidAmerican
equipment.
“National Electrical Safety Code” or “NESC” means the current edition published by the Institute of
Electrical and Electronics Engineers, Inc., as may be amended or supplemented from time to time. The
most recent NESC code or successor code adopted by the State of Illinois shall apply to any Pole located
in the State of Illinois. The most recent NESC code or successor code adopted by the State of Iowa shall
apply to any Pole located in the state of Iowa.
5
“Occupancy Survey” means a periodic effort to collect information through Inspection by MidAmerican
of all or any number of Poles that may have Licensee Attachments.
“OSHA” means the federal Occupational Safety & Health Administration.
“Party” means MidAmerican or Licensee, as the context requires; “Parties” means MidAmerican and
Licensee.
“Periodic Inspection” means any Inspection done at the option of MidAmerican to review the safety and
integrity of its Poles. Periodic Inspections do not include pre-installation activities, post installation
Inspections or Occupancy Surveys.
“Pole” means any wood Pole owned by MidAmerican that is designed to carry electric distribution
facilities (i.e., 39 kv or less). The term “Pole” also includes the vertical portion of any Pole, whether
wood or metal, that is utilized as a streetlight to illuminate a public road, street, or other public way or
area. The term “Pole” does not include a Pole containing security lights serving private property.
“Streetlight” means a light illuminating a public road, street, or other public way or area and mounted in
an elevated position via a Pole and associated mast arm. Unless specifically accepted and approved by
MidAmerican, “Streetlight” does not include security lights serving private property.
“Survey” means all work including, but not limited to, engineering analysis, Inspections, review of the
design, strength and loading characteristics of the affected Poles or are a part of and performance of such
tests, calculations, analyses, and other items reasonably necessary to calculate the Make-ready Work.
SCOPE OF CONTRACT
Section 2.01 Grant of License; Geographic Scope
a Licensee’s use of Poles shall be confined to the Attachments which MidAmerican may give
Licensee prior written permission to install for the sole purpose of establishing and operating
the cameras. Licenses may only be granted for Attachments specifically requested by Licensee
and approved by MidAmerican through the Application process set forth in Article IV.
b Nothing in this Contract shall be construed to obligate MidAmerican to grant Licensee
permission to use any particular Pole. Licenses granted under this Contract shall be limited as
follows.
(i) No more than one Attachment shall be attached to any individual Pole;
(ii) An Attachment shall only be attached to the vertical portion of a Pole;
(iii) An Attachment shall only be attached in the available vertical area of a Pole between 8 feet
and 15 feet from the surface of the ground. The determination as to whether there is sufficient
available vertical area to allow Licensee’s Attachment on each Pole shall be made solely by
MidAmerican;
(iv) An Attachment shall only be attached to a Pole by a band that encircles the Pole and holds the
Attachment in place. Attachments that in any way penetrate or drill into the surface of the
Pole are expressly prohibited.
6
(v) An Attachment shall not be permitted on:
1) Any area designated as supply space on the Pole;
2) any Streetlight mast arms, or other horizontal surfaces affixed to any Pole; or
3) any portion of any transmission Pole.
(vi) Licensee’s Attachments shall be used only for lawful purposes while attached to
MidAmerican Poles.
c. In the event Licensee intends to expand or modify its Permitted Purpose, Licensee shall
provide at least ninety (90) days advance written notice to MidAmerican. Following
receipt of such notice, MidAmerican shall determine in its sole discretion whether to
permit the modification or expansion and if permitted, whether this Contract shall be
amended accordingly or whether Licensee shall be required to enter into a new contract.
Section 2.02 License Denial
The parties agree that License(s) shall not be issued to Licensee when MidAmerican determines, in its
commercially reasonable discretion that such License(s) should be denied for (i) insufficient capacity,
(ii) unlawful or illegal purpose of Attachment, or (iii) for reasons of (a) safety, (b) reliability, or (c)
generally applicable engineering purposes. Such denial shall be in writing delivered to the Licensee no
later than 75 days after Application submission. Such written denial shall include all relevant evidence
and information supporting denial, and how such evidence and information relates to denial for reasons
of lack of capacity, safety, reliability, or engineering standards.
Section 2.03 Maintenance of Poles
MidAmerican assumes or accepts no responsibility or obligation to maintain its Poles, equipment, or
facilities in any manner inconsistent with its then current maintenance practices due to the presence of
Attachments.
REQUIREMENTS FOR ATTACHMENT TO POLES
Application for Permission to Install Attachment
Licensee shall locate Attachments only on the Poles consistent with Section 2.01 and in compliance with
MidAmerican’s instructions.
Licensee shall not permit any other party except its authorized contractor to physically attach cables,
facilities, or equipment on MidAmerican’s Poles.
Non-Interference
Licensee shall have the obligation and duty to verify that MidAmerican’s and other Existing Attacher’s
services will not be disrupted by Installation and operation of Licensee’s Attachment’s.
7
APPLICATION FOR PERMISSION TO INSTALL ATTACHMENT
Application Process Generally
Licensee shall not begin Installation of any of its Attachments without first making Application for a
License and obtaining written approval of the License from MidAmerican as provided in Section 4.02.
Application Process for Attachments
Licensee shall submit the Application Fee and a Complete Application through the Joint Use Portal, for
attaching or modifying any of its Attachments, identifying the Poles involved and such other information
required, which shall include, but is not limited to, any and all requisite engineering and technical
specifications and data for MidAmerican’s analysis of Licensee’s proposed Attachment, a description of
the intended use and purpose of the Attachment, and an image or drawing showing the intended field of
view of the camera. If the Application is incomplete, MidAmerican shall timely notify Licensee of the
errors or omissions in the Application and return the Application to Licensee for resubmittal. The
following provisions shall apply with respect to Licensee’s Attachment requests:
a Survey. Within seventy-five (75) days of MidAmerican’s receipt of a Complete Application and
the Application Fee, MidAmerican shall complete a Survey and based on the Survey and the
criteria set forth in Article II, Section 2.02, shall either grant or deny the Application and provide
Licensee written notification of approval or denial (the “Application Notification”).
b Make-Ready Estimate. If the Application is granted and the proposed Attachments require
Make-ready Work, MidAmerican will include with the Application Notification an invoice for
the estimated cost of the Make-ready Work (“the Estimate”). Determination of whether Make-
ready Work is necessary shall be and remain in the sole judgment and discretion of MidAmerican.
c Acceptance. Licensee may accept the Estimate by making payment to MidAmerican of the
amount set forth in the Estimate (the “Make-ready Payment”), within 30 days after receipt of the
Estimate.
d Completion of Make-ready Work. Licensee shall not begin Installation until MidAmerican
notifies Licensee the Make-ready work has been completed. MidAmerican shall complete the
Make-ready work and provide written notice of completion to Licensee (the “Approval to Attach
Notification”) within 120 days after MidAmerican’s receipt of the Make-ready Payment. The
Approval to Attach Notification shall include as an attachment an invoice for the cost of the post-
installation Inspection to be completed by MidAmerican following Licensee’s completion of
Installation (the “Post-Installation Inspection Invoice.”)
e Licensee Completion Installation and Notice of Completion. Upon receipt of MidAmerican’s
Approval to Attach Notification, Licensee may begin Installation. Licensee shall complete
Installation within one-hundred eighty (180) days of Licensee’s receipt of the Approval to Attach
Notification. Within five (5) Business days of Licensee’s completion of Installation, Licensee
shall notify MidAmerican by making payment of the amount set forth in the Post-Installation
Inspection Invoice.
f Permitting. MidAmerican will timely complete a post-installation Inspection following receipt
of Licensee’s payment of the Post-Construction Inspection Invoice. If the post-installation
8
Inspection is successful (meaning the Inspection reveals no deficiencies or violations under the
requirements of this Contract), MidAmerican will issue a License for the Attachments. If the
post-installation Inspection is not successful, MidAmerican will notify Licensee of the
deficiencies or violations documented, and within five (5) Business days (or longer if extended
by request of Licensee for good cause shown) Licensee shall correct the deficiencies or violations
and notify MidAmerican of completion, at which point MidAmerican will re-inspect and issue
the License if the Inspection is successful or provide additional notice of remaining deficiencies
or violations if not successful, in which case Licensee shall correct the deficiencies and provide
notice as required under this paragraph “f”. MidAmerican reserves the right to invoice Licensee
for the cost of any necessary post-installation re-Inspection, and Licensee shall submit payment
for same when Licensee provides notice of completion of the required corrections. The
Application is not deemed finally approved and completed, and the License will not be issued
until Licensee has provided notice of completion pursuant to paragraph “e” above and a
successful post-installation Inspection has been completed.
Anything in this paragraph “f” notwithstanding, MidAmerican reserves the right to a) treat a
deficiency or violation that has not been timely corrected as nonconforming Equipment under
Article VI, section 6.04, and b) correct any deficiency or violation that poses an immediate threat
as described section 6.04, according to the terms of said section.
In the event Licensee fails to complete Installation of its Attachments within the prescribed one-hundred
eighty (180) day time limit, MidAmerican may, upon Licensee’s request, grant Licensee additional time
to complete Installation, so long as Licensee began Installation within the prescribed one-hundred eighty
(180) day time limit. If Licensee failed to begin installation within the one-hundred eighty (180) day
time limit, the approval and grant of the Application and the Approval to Attach Notification may be
rescinded and withdrawn and the permission granted to Licensee to begin Installation may be terminated
upon written notice by MidAmerican, and Licensee shall be required to reapply and receive permission
to do so, all as prescribed in Section 4.02 as applicable to an initial Application. Licensee’s failure to
actually Install its Attachments, after it has received approval from MidAmerican, shall not constitute
entitlement for any refund or reduction of fees or rental charges incurred for its proposed Attachments.
Disclosure of Applications
To the extent necessary to accommodate Licensee’s Attachments or the attachments of other Licensees,
requests for access may be shared with all Existing Attachers.
NESC Compliance
All Attachments, including temporary Attachments and arrangements, shall comply with the current
edition of the NESC, including, without limitation, Rules 232, 233, 234, 235, 238, 239, 264a and Section
43 and any other requirements of this Contract.
LICENSEE’S USE OF POLES
Installed Attachments, Maintenance and Repairs by Licensee
Licensee shall, at its own expense, install all Attachments in a safe condition and maintain the same in
good repair and in compliance with MidAmerican’s Installation Guidelines and any reasonable manner
9
suitable to MidAmerican and so as not to conflict with the use of the Pole by MidAmerican or Existing
Attachers. Only licensed electrical workers may install and maintain Attachments permitted under this
Contract. MidAmerican shall not permit any Attachment that requires work performed by a certified and
trained electrical line worker. All persons performing work associated with MidAmerican’s power
facilities shall be trained and follow work procedures consistent with OSHA standards. Licensee shall
be responsible for assuring its representatives, contractors or subcontractors are familiar with
MidAmerican’s Pole standard tagging to identify the general condition of any Pole at the ground line.
Physical Location of Attachment
Licensee’s Attachments shall be applied for and installed in a location conforming with Section 2.01;
the applicable requirements and specifications of the NESC, the Illinois Administrative Code (for all
Poles located in Illinois), the Iowa Administrative Code (for all Poles located in Iowa) and any such
other requirements and specifications as MidAmerican prescribes.
Reserved.
Operation
When a License is issued pursuant to this Contract, Attachments shall be installed and maintained in
accordance with the applicable requirements and specifications of the then-current editions of the
American National Standards Institute, Commission Rules, National Electrical Code (NEC), and the
NESC, all of which are incorporated by reference in this Contract, and the rules and regulations of the
Occupational Safety and Health Act of 1970 (OSHA) and in compliance with any lawful rules,
regulations, or orders now in effect or that may hereafter be issued by MidAmerican, governmental
authority, or other authority having jurisdiction.
Licensee must furnish, own, install, operate, and maintain its Attachments at its own expense. In the
event there are changes in any such requirements or specifications, Licensee shall modify its
Attachments to comply with such changes at its sole risk and expense. This includes, but is not limited
to, changes in the Streetlight heads that require a change in Licensee’s adapters for purposes of acquiring
power.
Adjacent Facilities
Licensee recognizes that MidAmerican will need to use, or otherwise have access to, the site of any
Attachment and the area surrounding any site of Attachment in conjunction with the operation and
maintenance of MidAmerican’s facilities, equipment, and systems. Licensee agrees its rights under this
Contract are subordinate to MidAmerican’s rights to perform necessary, emergency, or otherwise
expedient operations on such surrounding or adjacent facilities, equipment, and systems.
10
Reserved
LICENSEE’S INSTALLATION RESPONSIBILITIES
Identification of Equipment
Licensee shall tag each Pole Attachment point to specify the Licensee's name, emergency contact number
and the site name of the Pole Attachment. All tags shall be UV resistant, readable from ground level,
and not interfere with other facility identification.
Grounding
Licensee, including its employees and contractors, shall not enter MidAmerican’s electric utility space
for any purpose, including but not limited to making connections to the MidAmerican neutral. If
Licensee requires grounding on an existing Pole where a grounding conductor does not exist, Licensee
shall request that MidAmerican install grounding at Licensee’s sole expense. Licensee, its employees,
and its contractors, shall at all times exercise Licensee’s rights and perform Licensee’s responsibilities
under the terms of this Contract in a manner that treats all MidAmerican electric facilities as energized.
Guying
Licensee agrees that Licensee’s Attachments will be installed and maintained in a manner that will not
place any tension on MidAmerican’s Poles and will not require guying or tensioning of Licensee’s
Attachments, equipment, or facilities. It is not permissible to attach to MidAmerican's anchors.
Nonconforming Equipment
If any Attachment is not placed and maintained in accordance with the requirements and specifications
of Sections 2.01, 4.04 and 5.04, MidAmerican will notify Licensee in writing. The notice shall include
the address and Pole location where the alleged violation occurred, a description of the alleged violation,
and suggested corrective action. Licensee shall have thirty (30) days from its receipt of the notice of
violation (unless extended at Licensee’s request for good cause shown) to correct the violation. Licensee
shall provide written notification to MidAmerican within five (5) Business days of completion of the
required work. If Licensee fails to correct the violation within the thirty (30) day time period (or any
extension thereof), MidAmerican reserves the right to correct the condition and perform the work
necessary to correct the violation at Licensee’s sole risk and expense.
Notwithstanding the foregoing, if MidAmerican determines any non-conforming Attachment poses an
immediate threat to the safety of utility workers or the public, interferes with the performance of
MidAmerican’s service obligations, or poses an immediate threat to the integrity of MidAmerican’s
Poles, facilities, equipment, or electric reliability, MidAmerican may perform such work, without prior
notice, and without regard to service interruptions at Licensee’s sole risk and expense.
As soon as practicable after MidAmerican performs any work hereunder, MidAmerican will notify
Licensee in writing of the work performed and Licensee shall pay, upon demand, costs incurred by
MidAmerican to correct the violations and the non-conforming Attachments.
11
Licensee shall pay any sanctions MidAmerican incurs as a result of Licensee’s failure to correct a
violation.
Reserved
Reserved
Vegetation Management
Licensee shall be responsible for and perform all initial vegetation management required for Installation
of any Attachments at Licensee’s sole risk and expense. Vegetation management must be conducted
following safety guidelines set forth in ANSI Z133.1, Section 4 Electrical Hazards. Appropriate
minimum approach distances shall be maintained at all times. If work cannot be accomplished within
the minimum approach distance, Licensee shall contact MidAmerican for further directions. Unless
agreed to otherwise, each Party shall be responsible for any and all ongoing vegetation management
related to the Equipment it owns. Anything in this section notwithstanding, MidAmerican may address
a failure by Licensee to perform vegetation management for which it is responsible that creates or causes
a failure to comply with the requirements and standards of sections 4.04 and 5.04 under the provisions
for nonconforming Equipment in section 6.04.
Third-party Consents, Permits, Licenses, or Grants
Licensee shall be solely responsible for obtaining from public authorities and private owners of real
property and maintaining in effect any and all consents, permits, licenses, or grants necessary for the
lawful exercise by Licensee of the License granted by MidAmerican. MidAmerican, at any time, may
require Licensee to submit written documentation of compliance with this Section. Upon notice from
MidAmerican to Licensee that necessary permission for the use of any Pole has expired, or has not been
secured from property owners or public authorities, any License granted covering the use of such Pole
shall immediately terminate and Licensee shall remove its Attachments from the affected Pole within
sixty (60) days of said notice, or within the period required by the property owners or public authorities,
whichever is shorter. If Licensee has not removed its Attachments within said period, MidAmerican
may remove Licensee’s Attachments from the affected Pole without incurring any liability and Licensee
shall, upon demand, pay MidAmerican all costs incurred by MidAmerican in the removal of Licensee’s
Attachments.
Removal or Relocation of Attachments at MidAmerican’s Option
Licensee shall at any time at its own sole risk and expense, upon notice from MidAmerican, transfer,
relocate, replace, repair, or perform any other work in connection with the Attachments that may
reasonably be required by MidAmerican, within thirty (30) days of receipt of notice (or longer if
extended at Licensee’s request for good cause shown). Licensee shall provide written notification to
MidAmerican within five (5) Business days of completion of the required work. Provided, however,
that in cases of emergency, or if Licensee does not complete the required work within the thirty (30) day
period (or any extension thereof), MidAmerican may, without incurring any liability, complete any work
in connection with Licensee’s Attachments that may be required, and Licensee will, upon demand,
reimburse MidAmerican for the entire expense thereby incurred.
12
Notwithstanding anything to the contrary in this Contract, Licensee’s Attachments upon the Poles may
be removed by MidAmerican at any time, with or without cause and without prior notice to Licensee
and at Licensee’s sole risk and expense.
Notwithstanding anything to the contrary in this Contract, Licensee shall immediately remove or relocate
its Attachment from any Pole upon receiving written notice from MidAmerican that its Attachment is in
violation of or in conflict with any applicable federal, state, or local laws, ordinances, rules, or
regulations applicable to pole attachments of cable television systems or providers of
telecommunications services, including, but not limited to, 47 U.S.C. §224 and the FCC pole attachment
regulations located at 47 C.F.R. §1.1401, et. seq.
Notwithstanding anything to the contrary in this Contract, MidAmerican can require Licensee to remove
their Attachments from MidAmerican’s Poles at any time, with or without cause, and at Licensee’s sole
cost and expense.
Reserved
Removal of Attachments by Licensee
Licensee may at any time remove its Attachments from any of the Poles, and, in each case, Licensee
shall immediately give MidAmerican written notice of such removal, using the Joint Use Portal
disconnect application. Inspection fees will apply to notices to remove Attachments pursuant to the Fee
Schedule in Exhibit A. Removal of the Attachments from any Pole shall constitute a termination of
Licensee's License for use of such Streetlight. Licensee shall not be entitled to a refund of any rental on
account of any such removal. When Licensee removes Attachments, the applicable Attachment count
will be reduced in the next annual billing cycle following Licensee’s proper notice to MidAmerican of
the removal.
In the event the Licensee abandons any Attachment and fails to remove the Attachment, MidAmerican
may remove the Attachment from the Pole without incurring any liability and Licensee shall, upon
demand, pay MidAmerican all costs incurred by MidAmerican in the removal of the Attachment. As
used herein, “abandon” includes turning the Attachment off for reasons other than service, repair,
maintenance, or replacement.
Notice of Damage
Each Party shall promptly notify the other Party of any damage to the equipment, facilities, or other
property of such other Party, or any claims for property damage, bodily injury, or death associated with,
caused by, or arising out of the Party’s acts, to the extent the Party is aware of same.
Inspections and Occupancy Survey
a) Inspections. MidAmerican shall have the right to perform an Inspection of each of Licensee's
Attachments upon and in the vicinity of MidAmerican Poles and Poles at any time. Except for
routine periodic Inspections, MidAmerican may charge Licensee for the expense of any such
Inspections, including Inspections for Make-ready Work, pre-Installation Inspections,
Inspections during Installation of Licensee’s equipment, post-Installation Inspections, and any
13
other Inspections requested by the Licensee or deemed necessary by MidAmerican. The
frequency of Periodic Inspections will be determined in MidAmerican’s sole and reasonable
discretion.
b) Occupancy Survey. MidAmerican may conduct an Occupancy Survey any time after the
effective date of this Contract and not more often than every fourth year subsequent to each such
Occupancy Survey. MidAmerican shall give Licensee at least thirty (30) days prior notice of
such Occupancy Survey. Licensee shall advise MidAmerican if Licensee desires to participate
in the planning scope of the Occupancy Survey with MidAmerican not less than fifteen (15) days
prior to the scheduled date of such Occupancy Survey. MidAmerican shall provide Licensee
with a summary report of such Occupancy Survey within a reasonable time after its completion.
The inventory data from MidAmerican’s Occupancy Survey shall be used to update
MidAmerican’s Attachment billing records where applicable. Licensee shall make any
objections to the inventory data within sixty (60) days of receipt of the summary report or such
objections shall be waived. Licensee shall reimburse MidAmerican for Licensee’s portion of
MidAmerican’s expenses incurred in performing the Occupancy Survey, which expenses shall
be allocated among all attaching parties, including MidAmerican, if applicable, based on each
count of Attachments inventoried.
Tax Liability
Licensee shall promptly pay any tax, fee, or charge that may be levied or assessed against
MidAmerican’s Streetlights, Poles, or property resulting from use by Licensee. If Licensee should fail
to pay any such tax or assessment on or before the date such tax or assessment becomes delinquent,
MidAmerican, at its own option, may pay such tax on account of Licensee and Licensee shall, upon
demand, reimburse MidAmerican for the full amount of tax and any penalties so paid.
Subordination
Licensee acknowledges that it is not a cable television system or a telecommunications carrier under
47 U.S.C. §224(f). Licensee further acknowledges that, in addition to the subordination of rights set
forth under section 5.05 of this Contract, any rights Licensee obtains under this Contract are
subordinate to all rights that a cable television system or telecommunications carrier may currently
have, or may obtain in future, under a pole attachment contract with MidAmerican. In the event of any
conflict between the provisions in this Contract and the provisions of any other pole attachment
contract between a cable television system or telecommunications carrier and MidAmerican, the terms
in the latter contract will prevail. In the event of any conflict between terms in this Contract and the
FCC rules relating to pole attachments at 47 CFR §1.1401, et., seq., the FCC rules will prevail.
Interference with MidAmerican’s Facilities
If, in MidAmerican’s judgment, any of Licensee’s Attachments interfere with MidAmerican’s existing
facilities or prevent the placing of any additional facilities by MidAmerican, MidAmerican will notify
Licensee in writing of rearrangements or transfers of Licensee’s Attachments, Pole or Pole replacements,
or other changes required to continue to accommodate Licensee’s Attachments. If appropriate, the
written notice will include an estimate of any applicable cost to complete work to continue to
accommodate Licensee’s continued attachment (an “Accommodation Estimate”).
14
If Licensee desires to continue to maintain its Attachments on a Pole for which MidAmerican has
provided an Accommodation Estimate, Licensee shall execute and return the Accommodation Estimate
within thirty (30) days of receipt of MidAmerican’s notice, and MidAmerican shall then complete the
required work and invoice Licensee for the actual cost of completing the work accordingly. If Licensee
does not accept the Accommodation Estimate, Licensee shall, within thirty (30) days of receipt of the
written notice (or longer if extended at Licensee’s request for good cause shown), remove its
Attachments from the affected Poles, and shall notify MidAmerican removal has been completed within
five (5) Business days of completion of removal.
If Licensee fails to remove any Attachment when required within the thirty (30) day period (or any
extension thereof), MidAmerican may, without prior notice, and without regard to service interruptions,
remove the Attachment at Licensee’s sole risk and expense. As soon as practicable thereafter,
MidAmerican will notify Licensee in writing of the work performed, and Licensee shall pay, upon
demand, the costs incurred by MidAmerican to remove the Attachment.
All rights in this section are in addition to the rights in section 6.04 regarding Nonconforming Equipment.
MidAmerican reserves the right to address any Attachment that poses an immediate threat as described
therein according to the terms of said section.
FEE SCHEDULE
Fee Schedule
As required in Article IV, section 4.02, Licensee shall pay, as set forth in Exhibit A, an Application Fee
at the time Licensee files an Application. The costs for Surveys are included in the Application Fee
provided for in Exhibit A.
Licensee shall pay each year the Attachment Fee set forth in Exhibit A for each of its Attachments as
determined by MidAmerican in accordance with MidAmerican’s internal records. The parties
acknowledge and agree that the Attachment Fee is a reasonable rate given the size, location, amount of
space used, and nature of the Attachment(s) and was negotiated at arm’s length in good faith. Licensee’s
Attachments attached for a portion, but not the entirety of, a calendar year will be pro-rated for such year
for the purpose of calculating the Attachment Fee for such year. As soon as practicable after the end of
each calendar year, MidAmerican will provide to Licensee an invoice setting forth the amount of the
Attachment Fee for all Attachments during the current calendar year. The amount due under each invoice
shall be due to MidAmerican within forty-five (45) days after the date of the applicable invoice.
The rental rate, the components of the rental rate, and the methodology employed to determine the rental
rate specified in the Fee Schedule (Exhibit A) of this Contract, may be modified or replaced at
MidAmerican’s option, upon sixty (60) days written notice to Licensee and subject only to limitations
imposed by applicable law. If the rental rate is increased by more than 10% in any single notice, the
Licensee shall have a period of sixty (60) days from receipt of the notice of increase in which to terminate
this Contract. Upon termination of contract, all facilities attached to MidAmerican Poles must be
removed within sixty (60) days of the date of termination.
Licensee will be required to pay in advance of making any Attachment the estimated cost for all Make -
ready Work necessary to accommodate access or modification to Poles for an Attachment, including,
without limitation, the cost of any Pole or Pole replacement.
15
Licensee acknowledges and agrees that Licensee remains responsible for the electricity used by or for
Licensee’s facilities, and that the fees required by or due under this Contract do not cover electrical
usage, which will be billed separately and as appropriate for the use.
Unauthorized Attachments
Licensee shall not make Attachments to MidAmerican’s Poles without obtaining MidAmerican’s written
permission as provided for in this Contract. MidAmerican may charge Licensee the amounts contained
in the Fee Schedule attached in Exhibit A upon the discovery of unauthorized Attachments, on each
Streetlight, belonging to Licensee. The imposition of such charges shall be without prejudice to
MidAmerican’s right to utilize additional other remedies, including, but not limited to, the remedies
available for default under Article X of this Contract. Licensee may avoid unauthorized Attachment
fees, except back rent, if it self-discloses any unauthorized Attachment and submits an Application for
the Attachment prior to MidAmerican’s discovery.
Billing and Payments
MidAmerican shall send invoices to Licensee via regular U.S. Mail at the address specified below, or at
such other address as Licensee may designate from time to time in writing. Unless otherwise specified,
Licensee shall pay all charges within forty-five (45) days of the invoice date. Late charges and interest
shall be imposed on any delinquent amounts as specified in Section 7.04.
In the event Licensee disputes an invoice, Licensee shall provide written notice of the dispute to
MidAmerican within forty-five (45) days of the date of the disputed invoice, otherwise Licensee shall
forfeit its right to dispute the invoice. Notice shall include an explanation of the Licensee’s dispute.
MidAmerican reserves the right to impose late fees and/or interest as specified in Section 7.04 in the
event the dispute is unfounded.
Licensee’s billing address:
Interest on Late Payments
All amounts payable under the provisions of this Contract shall, unless otherwise specified, be payable
within forty-five (45) days of receipt of the invoice. An interest charge at the maximum rate allowed by
applicable law shall be assessed against all late payments.
Adequate Assurances
MidAmerican shall have the right to request adequate assurances from Licensee, including but not
limited to the posting of security, collateral, or a cash deposit in the event the credit rating of Licensee
falls below the rating level of BBB- by Standards and Poor’s and Baa by Moody’s. In the event of a
credit rating downgrade below the levels set forth above, MidAmerican may demand adequate
assurances from Licensee in a form acceptable to MidAmerican within ten (10) Business Days.
16
INDEMNIFICATION; LIMITATIONS OF LIABILITY; WARRANTIES
Indemnification/Release
To the fullest extent permitted by law, Licensee agrees to defend, indemnify, and hold harmless
MidAmerican, its directors, officers, employees, agents, or representatives (the “MidAmerican
Indemnified Parties”) from all losses or liability, including personal injury, bodily injury, death or
property damage of any nature to any person or entity, including but not limited to third-parties owning
or maintaining attachments, equipment, or facilities on a Pole, arising from or caused by any of the
following:
a) Licensee’s use of the Attachment in a manner that violates state or federal law;
b) Licensee’s failure to perform any obligation under this Contract;
c) Licensee’s Installation, erection, maintenance, repair, replacement, presence, use, or removal of
Attachments or other property owned or maintained by Licensee, whether authorized under this
Contract or not;
d) Licensee’s failure to comply with any applicable safety code or requirement, including but not
limited to the NESC or any other code, regulation or requirement cited or required by this
Contract, and including but not limited to MidAmerican’s construction and Installation
requirements with respect to Licensee’s Attachments or other property owned or maintained by
Licensee on or around MidAmerican’s Poles or facilities, whether authorized under this contract
or not; and
e) Any other act or omission of Licensee
(the “Covered Claims”). As used in paragraphs (a) through (d) above, “Licensee” shall include
Licensee’s agents, representative, employees, or contractors or subcontractors, and the agents,
representatives, or employees of any of Licensee’s contractors or subcontractors.
If a Covered Claim is instituted by any person or entity against the MidAmerican Indemnified Parties,
Licensee will assume the defense of that claim, legal action, or suit, upon being notified to do so by
MidAmerican and will pay any judgment or settlement rendered in such action or suit. It is understood
and agreed by Licensee that if the MidAmerican Indemnified Parties are named a defendant in any such
claim, legal action or suit and Licensee fails or neglects to assume the defense thereof after having been
notified to do so, MidAmerican may compromise and settle or defend the claim, legal action or suit and
Licensee is bound to reimburse MidAmerican for the amount expended by MidAmerican in paying any
judgment or settlement, together with all reasonable attorney's fees and court costs, incurred by
MidAmerican by reason of its defense or settlement of such legal action or suit. Any judgment or amount
expended by MidAmerican in compromising or settling such legal action or suit shall be conclusive as
determining the amount for which Licensee is liable to reimburse MidAmerican.
If a Covered Claim is brought against any MidAmerican Indemnified Party by a) an agent, representative
or employee of Licensee or b) an agent, representative or employee of any of Licensee’s contractors or
subcontractors, or c) anyone directly or indirectly employed by Licensee or any of Licensee’s contractors
or subcontractors, or d) anyone for whose acts Licensee or any Licensee’s contractors or subcontractors
may be liable, Licensee’s indemnification obligations under this section shall not be limited by a
limitation on amount or type of damages, compensation or benefits payable by or for Licensee or any of
Licensee’s contractors or subcontractors under workers' compensation acts, disability benefit acts or
other employee benefit acts.
17
In addition to the foregoing:
a) Licensee shall at all times during the performance of any work or exercise of any right or
obligation under this Contract exercise due diligence to protect MidAmerican’s property and
facilities from damage and to prevent interference with or interruption of MidAmerican’s
services. Licensee shall reimburse MidAmerican for all damages, either immediate or
consequential, sustained by MidAmerican or by any of MidAmerican’s property and facilities or
in any manner affected by the performance of any work or exercise of any right or obligation
under this Contract caused by any act or omission (whether tortious or not) of Licensee, it agents,
representatives, employees, contractors or subcontractors, or the agents, representatives, or
employees of Licensee’s contractors or subcontractors. Any property so damaged shall be
repaired or replaced at Licensee’s expense in a condition equal to that existing immediately prior
to the damage and to MidAmerican’s satisfaction.
b) Licensee releases and holds harmless MidAmerican from any liability for damage or loss to
Licensee’s Attachments, equipment, and facilities or for any interruption, discontinuance, or
interference with Licensee’s service to its customers, caused by or resulting from such damage
or loss, which may be caused, or which may be claimed to have been caused, by any action of
MidAmerican undertaken in furtherance of the purposes of this Contract, except as limited by
this section. In addition, Licensee shall defend, indemnify, hold harmless and release the
MidAmerican Indemnified Parties from and against any and all claims, demands, causes of
action, costs (including attorneys’ fees), or other liabilities arising from any interruption,
discontinuance, or interference with Licensee’s service to its customers which may be caused, or
which may be claimed to have been caused, by any action of MidAmerican undertaken in
furtherance of the purposes of this Contract, except as limited by this section.
Licensee’s obligations under this section shall not extend to losses or liability caused by the negligence
or willful misconduct of MidAmerican, its agents, representatives, or employees.
Warranty
MidAmerican warrants that its work in constructing and maintaining the Poles covered by this Contract
shall be consistent with prudent utility practices. MIDAMERICAN DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND
SIMILAR WARRANTIES.
Limitation of Liability
Under no circumstances shall either Party be liable for economic losses, costs, or damages, including but
not limited to special, indirect, incidental, punitive, exemplary, or consequential damages, except as
specifically set forth in this Contract. This limitation of liability shall not apply to the indemnification
obligation related to any third-party claim.
The obligations of this Article VIII shall survive the expiration or termination of this Contract.
18
INSURANCE AND BOND
Insurance
Prior to beginning Installation, and at all times during the term of the License and this Contract, Licensee
shall, at its own expense, maintain such insurance as will protect Licensee from liability and claims for
injuries and damages which may arise out of or result from the Licensee’s operations under the Contract
and for which Licensee may be legally liable, whether such operations are by Licensee or by a
subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts
any of them may be liable.
MidAmerican intends that this Contract shall also be one of indemnity, and that such indemnification
shall be covered by insurance. For the further protection of Licensee and MidAmerican, but without
restricting or waiving any obligations of Licensee herein contained, Licensee shall insure the risks
associated with the work and this Contract with minimum coverages and limits as set forth below:
a. Commercial General Liability Insurance, written on an Occurrence Basis with limits not
less than $1,000,000 per occurrence / $2,000,000 general aggregate (on a per location and/or per job
basis) Bodily Injury and Property Damage, including the following coverages:
Premises and Operations Coverage
Independent Contractor’s Coverage
Contractual Liability covering liabilities assumed under this Contract
Products and Completed Operations Coverage
Broad Form Property Damage Liability endorsement
Personal Injury Liability, including Contractual
b. Workers’ Compensation Insurance and Occupational Disease Insurance (or maintenance
of a legally permitted and governmentally approved program of self-insurance) in accordance with
statutory requirements of the state and/or Federal Regulations (FELA, USL&H, Jones Act) and
Employers’ Liability Insurance with limits not less than:
Bodily Injury by Accident $500,000 Each Accident
Bodily Injury by Disease $500,000 Policy Limit
Bodily Injury by Accident $500,000 Each Employee
and covering location of all workplaces involved in this Contract.
c. Comprehensive Automobile Liability Insurance covering owned, hired and non-owned
vehicles with limits of $1,000,000.00 per occurrence Bodily Injury and Property Damage combined
single limits, including Sudden and Accidental Pollution Liability, as appropriate.
4. Umbrella Liability Insurance with a minimum combined single limit of $5,000,000.00 each
occurrence / aggregate where applicable to be excess of the coverage and limits required in a, b, and c.
above.
All above policies shall contain provisions that the insurance companies will have no right of recovery
or subrogation against MidAmerican, its parents, divisions, affiliates, subsidiary companies, co-lessees,
19
or co-ventures, agents, directors, officers, employees, servants, and insurers, it being the intention of the
parties that the insurance as affected shall protect all parties.
All required insurance policies shall provide that the policy is primary and will not contribute with any
policy carried by MidAmerican.
MidAmerican Energy Company, its parent, divisions, affiliates, subsidiary companies, co-lessees, or co-
ventures, agents, directors, officers, employees, and servants shall be named as an additional insured in
each of Licensee’s insurance policies, except statutory Workers’ Compensation. Licensee shall be
permitted to self-insure any or all of the insurance required under this Contract.
Proof of Compliance
Licensee shall provide written proof of current compliance with this Article in a form acceptable to
MidAmerican on an ongoing basis. Licensee’s proof shall also contain written verification from its
insurance provider that Licensee’s insurance shall not be terminated, reduced, or cancelled unless
MidAmerican is provided advance notice of not less than thirty (30) days.
Bonding
MidAmerican may require Licensee to furnish a bond to cover the faithful performance by Licensee of
its obligations hereunder. Any such bond shall be issued by a commercial bonding company selected
by Licensee and satisfactory to MidAmerican; shall not be subject to termination or cancellation except
upon one hundred twenty (120) days prior notice to MidAmerican; shall be in such form and in such
amount as MidAmerican shall specify from time to time; and, subject to termination or cancellation,
shall be maintained in full force and effect throughout the term of this Contract, including any renewals
thereof. Such bond shall be furnished within ninety (90) days written notice to Licensee by
MidAmerican. The furnishing of a bond shall not relieve Licensee of any of its obligations under this
Contract, and the bond shall not be released until all of Licensee’s obligations under this Contract have
been discharged.
TERM, DEFAULT AND TERMINATION
Term and Termination
This Contract shall be for a period of five (5) years. Thereafter, this Contract shall continue until
terminated as follows: (a) by mutual consent, or (B) by either Party by giving the other Party at least
sixty (60) days’ prior written notice of its intent to terminate, or (c) by a Party if the other Party (i)
terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding
under federal or state law, (iii) becomes insolvent or unable to pay its obligations as they accrue, (iv)
becomes subject to direct control by a trustee, receiver or similar authority, or (v) upon a change in law
that prohibits the use of the Attachment, camera, camera system or automated traffic enforcement in the
state, county or local jurisdiction where the Attachments are located.
This License can also be terminated immediately upon written notice by MidAmerican to Licensee that
the actions of the Licensee or any of the Attachments of the Licensee conflict with any applicable federal,
state, or local laws, ordinances, rules, or regulations applicable to pole attachments of cable television
systems or providers of telecommunications services, including, but not limited to, 47 U.S.C. §224 and
20
the FCC pole attachment regulations located at 47 C.F.R. §1.1401, et. seq. This License can also be
terminated immediately upon written notice by MidAmerican to Licensee that the actions of the Licensee
or any of the Attachments of the Licensee conflict with any terms or provisions of a pole attachment
agreement in effect between MidAmerican and any cable television system or provider of
telecommunications service.
On the date of termination specified in such notice, all rights and privileges of Licensee hereunder shall
cease; provided however that Licensee shall not be released from any liability hereunder, which may
accrue or be accruing or which arises out of any claim that may have accrued or may be accruing at the
time of termination. Should Licensee fail to remove its Equipment by the date of termination,
MidAmerican may remove and dispose of Licensee’s Equipment at Licensee’s sole risk and expense.
Default
The following shall constitute a default hereunder if not cured within thirty (30) days following notice:
(a) any material breach of this Contract; (b) violation of the Commission Rules; (c) the appointment of
a receiver to take possession of all of the assets of Licensee; (d) a general assignment for benefit of
creditors; (e) any action taken or suffered by Licensee under any insolvency or bankruptcy act.
Notice of Default/Cure Period
The non-defaulting Party shall provide written notice of the default to the other and the defaulting Party
shall have thirty (30) days from receipt of said notice to cure the default.
Remedies for Default
MidAmerican may utilize any and all remedies available to it at law and in equity in the event the other
Party fails to cure a default within the time period set forth above. Such remedies may include, without
limitation: (a) refusal to authorize any additional Attachments until the default is cured; (b) termination,
in whole or in part, of this Contract; (c) withholding amounts due to Licensee from MidAmerican
pursuant to this Contract or another Contract; (d) curing the default at the defaulting Party’s sole cost
and expense.
GENERAL PROVISIONS
Confidentiality
Additionally, each of the Parties agrees to keep strictly confidential the terms of this Contract, and not
to disclose the same except: (a) to its employees, agents and representatives to the extent necessary to
perform its obligations hereunder, (b) to the extent required by law or the rules of any regulatory agency,
or (c) if compelled by order of any court or governmental agency of competent jurisdiction, provided
that with respect to (b) and (c) above, the disclosing Party shall give the non-disclosing Party prompt
prior written notice of any disclosure request, application for court order, court order or other
governmental process, before making any disclosure and shall give the non-disclosing Party an
opportunity to object to and seek to prevent or omit such disclosure.
MidAmerican acknowledges that Licensee is a municipality and is therefore subject to certain open
records and public disclosure requirements. Licensee shall not be deemed to have violated this provision
21
when it is required to disclose information pursuant to a valid and enforceable subpoena or other lawful
process, including relevant provisions of any state or federal open records, open meetings, or freedom
of information laws. Licensee shall notify MidAmerican of any obligations to disclose such information
in advance of such disclosure so that MidAmerican can appear and protect its interests at its own cost,
should it choose to do so. The City recognizes that MidAmerican information may constitute a trade
secret or otherwise be protected from public disclosure by state or federal law on other grounds and
agrees to retain MidAmerican’s information in its non-public files. Furthermore, the City agrees that no
documents, maps, or other Information provided to the City by MidAmerican shall be made available to
the public or other entities if such documents or Information are exempt from disclosure under the
provisions of state or federal open records, open meetings or freedom of information laws, or the Federal
Energy Regulatory Commission Critical Energy Infrastructure requirements pursuant to 18 CFR 388.112
and 388.113, as such statutes and regulations may be amended from time to time.
Business Ethics
Licensee, its employees, officers, agents, representatives, and subcontractors shall at all times maintain
the highest ethical standards and avoid conflicts of interest in the performance of Licensee’s obligations
under this Contract. In conjunction with its performance under this Contract, Licensee and its employees,
officers, agents, and representatives shall comply with, and cause its subcontractor and its employees,
officers, agents, and representatives to comply with, all applicable laws, statutes, regulations, and codes
prohibiting bribery, corruption, kick-backs or similar unethical practices including, without limitation,
the United States Foreign Corrupt Practices Act and the United Kingdom Bribery Act 2010. Without
limiting the generality of the foregoing, Licensee specifically represents and warrants that neither
Licensee nor any subcontractor, employees, officers, representatives or other agents of Licensee have
made or will make any payment, or have given or will give anything of value, in either case to any
government official (including any officer or employee of any governmental authority) to influence his,
her, or its decision or to gain any other advantage for MidAmerican or Licensee in connection with the
obligations to be performed under this Contract. Licensee shall maintain and cause to be maintained
effective accounting procedures and internal controls necessary to record all expenditures in connection
with this Contract and to verify Licensee’s compliance with this section. MidAmerican shall be permitted
to audit such records as reasonably necessary to confirm Licensee’s compliance with this section.
Licensee shall immediately provide notice to MidAmerican of any facts, circumstances or allegations
that constitute or might constitute a breach of this section and shall cooperate with MidAmerican’s
subsequent investigation of such matters. Licensee shall indemnify and hold MidAmerican harmless for
all fines, penalties, expenses, or other losses sustained by MidAmerican as a result of Licensee’s breach
of this provision. The Parties specifically acknowledge that Licensee’s failure to comply with the
requirements of this section shall constitute a condition of default under this Contract.
Entire Contract
This Contract constitutes the entire Contract of the parties and supersedes and terminates any prior
contracts. Any amendments hereto shall be in writing.
Governing Law; Jury Waiver
In the event of any matter or dispute arising out of or related to this Contract, it is agreed between the
parties that the law of the State of Illinois (including statute of limitations provisions) will be given the
interpretation, validity, and effect of this Contract without regard to the place of execution or place of
performance thereof, or any conflicts of law provisions. TO THE FULLEST EXTENT PERMITTED
22
BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS CONTRACT. EACH PARTY FURTHER WAIVES
ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. Notwithstanding the foregoing, should the dispute be subject to the exclusive jurisdiction
of a regulatory body, including, but not limited to, the Federal Communications Commission, any such
dispute will be heard in such regulatory body.
Compliance with Law; Changes in Law
The Parties shall comply with all applicable federal, state, and local laws, ordinances, rules, regulations,
permits, licenses, and requirements in connection with performance under this Contract. The Parties
agree to negotiate in good faith any changes to this Contract necessitated to conform to changes in
regulations or law or authoritative interpretation thereof.
Severability
If any provision or part of this Contract is or becomes invalid under any applicable statute, regulation,
or law and such invalidity does not materially alter the essence of this Contract with respect to either
Party, the invalidity shall not render this entire Contract unenforceable and such provision or part shall
be deemed void.
Encumbrances
Licensee shall prevent any and all liens or other encumbrances from attaching, as result of Licensee’s
activities hereunder, to MidAmerican’s property.
Headings and Exhibits
The captions and headings herein are for convenience in reference only and not for interpretation
purposes. All exhibits referred to herein and recitals are incorporated by reference.
Force Majeure
Except for the payment of monies due under this Contract, neither Party shall be deemed in default
hereunder to the extent that any delay or failure in the performance of its obligations hereunder is caused
by an event of Force Majeure, including acts of the United States of America or any state, territory or
political subdivision thereof, acts of God or a public enemy, fire, flood, freight embargos, civil
disturbances, public health pandemic, or any other cause beyond the reasonable control of the Party
claiming Force Majeure. The Party claiming Force Majeure shall provide prompt written notice to the
other Party and shall immediately commence cure and so notify the other Party once it is reasonably
practicable to do so.
Assignments
Licensee shall not voluntarily or involuntarily assign, transfer, sublease or sublet this Contract, in whole
or in part, or any right, privilege or obligation hereunder, without MidAmerican’s prior written consent,
at which time MidAmerican may require that the proposed assignee or successor enter into a new
23
contract or other reasonable conditions. MidAmerican’s consent shall not be unreasonably withheld.
Approval of assignment may require Application to remove from each Pole by the assignor and an
Application to attach to each Pole by assignee if the record of attachments is in dispute.
Waiver
Failure by either Party to enforce any of the terms or provisions of this Contract shall not be construed
as a waiver hereunder.
No Partnership
Nothing herein shall be construed to create a partnership, trust, joint venture, or association between the
Parties.
No Third Party Beneficiaries
This Contract shall not be construed for the benefit of any third party, including without limitation,
customers of either Party.
Notices
Both Parties will provide notice to each other in writing and shall be considered given if personally
delivered, transmitted by e-mail, facsimile, sent via overnight delivery, or via US Mail, shall be
addressed to the Party to be notified at the addresses set forth below or at such other address as a Party
may designate for itself from time to time by notice:
If to MidAmerican: If to City of Waukee:
MidAmerican Energy Company
3500 104th Street
Urbandale, IA 50322
Attn: Joint Use Administration
E-mail: E-mail:
poleattachments@midamerican.com
With a copy, which is not notice, to:
.
.
24
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their duly
authorized officers as of the date first herein written.
CITY OF WAUKEE MIDAMERICAN ENERGY COMPANY
Signed Signed
Bill Albertsen
Printed Printed
Program Manager Joint Facilities Management
Title Title
Date Signed Date Signed
FEE SCHEDULE
EXHIBIT A
Page 1
Initial set-up of Attachment agreement: Waived
Application Fee is defined in Article I and identified in section 4.02. The Application Fee owed
under section 4.02 is $250 per Pole applied for, with a limit of 1 Pole per Application, plus a
pre-inspection fee of $35 per pole, which will be invoiced at the time of Application (for a total
of $285 per Application).
Make-ready Payment is defined and described in section 4.02, and is set on a per Application
basis, based on the estimated cost of the Make-ready Work.
Post-Construction Inspection Invoice
is defined and described in section 4.02. The amount set forth in the initial Post-Construction
Inspection Invoice will cover one (1) field inspection post-construction at the rate of $25 per
pole. Any Post-Construction Inspection Invoice for re-Inspection of Installations that did not
successfully pass a previous Inspection will reflect the current engineering time and equipment
hourly rate incurred by MidAmerican to complete the re-Inspection.
Attachment Fee
Fee is defined in Article I and described in section 7.01. The Attachment Fee will be calculated
each year using the Federal Communications Commission rental rate formula, and shall be
charged on a per foot, per Pole , per year basis. For the Attachment of additional associated
Equipment (Licensee’s base station or cabinet mount Equipment) or usage outside of designated
Communications Space, the Attachment Fee will be determined by MidAmerican based upon
review and assessment by MidAmerican Distribution Engineering staff. The Attachment Fee is
subject to modification or replacement at MidAmerican’s option with sixty (60) days written
notice as set forth in section 7.01.
Unauthorized Attachment Fees are described in section 7.02. The fee or charge for
unauthorized Attachments shall be $100 per Attachment, per Pole. Unauthorized attachments
shall also be subject to back rent, regardless of whether an unauthorized Attachment charge or
fee is due. Back rent shall be determined by applying the current Attachment Fee to the number
of years the unauthorized Attachment has existed. If the number of years the unauthorized
Attachment has existed cannot be reasonably determined, back rent shall be determined by
applying the then-current Attachment Fee to the number of years since the last inventory or five
years, whichever is less.
Time incurred by MidAmerican to resolve disputes, undertake redesigns, or participate in field
meetings will be invoiced at the then-current hourly engineering time and equipment rate.
All amounts payable shall, unless otherwise specified, be payable within forty-five (45) days of
the invoice date. An interest charge at the maximum rate allowed by applicable law shall be
assessed against all late payments.