HomeMy WebLinkAboutRES 00-326 RESOLUTION N0. 06 -,3&-2(p
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute an agreement
between Adelphia Business Solutions of Texas L.P. and the City of Beaumont for the
placement of fiber optic cable in the public right-of-way. The agreement is
substantially in the form attached hereto as Exhibit "A."
PASSED BY THE CITY COUNCIL of the City of Beaumont this the /T�6 day
of , 2000.
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- Mayor -
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PUBLIC RIGHT-OF-WAY USE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
WHEREAS, Adelphia Business Solutions of Texas (herein "ABS") desires to use certain
public right-of-way within the City of Beaumont for the purposes set forth below; and,
WHEREAS, it is the position of the City of Beaumont that ABS must obtain a license in
order to use the public right-of-way; and,
WHEREAS, the City Council of the City of Beaumont has determined that it is appropriate
to make the following agreement with ABS; and,
NOW, THEREFOR;
The City of Beaumont, hereinafter called "City" for and in consideration of the receipt of
good and valuable consideration,as set out more fully herein,hereby agrees with ABS that ABS may
lay, maintain, operate, replace or remove a fiber optic communication system (the"system") for the
transportation of communications in, on, under or across the streets, alleyways and easements set
forth in Exhibit "A" and situated in the City of Beaumont, Jefferson County, Texas, as more
specifically set out herein and subject to the following conditions:
(a) The system shall be installed in such a manner as has been approved by the
City Engineer and/or the Texas Department of Transportation, if applicable,
so that the finished installation shall, in no way, interfere with the use of the
public streets and alleys by the public. Permits shall be obtained by ABS or
ABS contractor from the Public Works Department of the City prior to any
installation, maintenance or removal requiring excavation.
(b) The system shall be buried at a depth of no less than thirty(30) inches unless
otherwise authorized by the City Engineer and/or the Texas Department of
Transportation, if applicable. The system is to be installed a minimum of
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EXHIBIT "A"
thirty-six inches (36")below the existing flow line of the adjacent drainage
ditch, when crossing or placed in said ditch. ABS will notify the Public
Works Department of the City of Beaumont prior to installation of the system
under this agreement, and shall obtain City permits at no cost.
(c) The installation and operation of the system shall not interfere with the
natural drainage in that area nor with the drainage system of the City, nor
with sanitary sewer lines,water lines, or other facilities.
(d) All excavations within the right-of-way shall be backfilled in accordance with
City Standards. All surplus material shall be removed from the right-of-way.
(e) Excavations necessary for the installation, repair or maintenance of the
system shall be performed in such a manner as will cause the least
inconvenience to the public and ABS shall promptly restore to as good a
condition as before and to the reasonable satisfaction of the City Engineer
and/or the Texas Department of Transportation, all streets, alleys, or
easements, excavated by it.
(f) The system will be installed in accordance with the drawings approved by the
City and to the specifications which set out the specific location, depth,
method of construction, etc., of the installation.
(g) Construction along roadways shall be performed in such a manner that
excavated materials shall create the minimum hazard and obstruction. All
property where operations are performed will be restored to original
condition or better. The cost of any repairs to road surface, roadbed,
structures or other right-of-way features as a result of this installation will be
borne by the owner of the system.
(h) Any installation which takes place in, on, under, above, or across property
which is not owned by the City or not a City easement or right-of-way shall
require additional permission by the owner(s) of the property involved.
Approval of this license agreement excludes permission to do any installation
on property which is not owned by the City of Beaumont.
(i) Barricades,warning signs, lights, and flagmen will be provided and installed
in accordance with the Texas Manual of Uniform Traffic Control Devices
(current edition) by ABS contractor when, in the opinion of the City
Engineers, such is necessary for the safe installation of the system. ABS or
its contractor will provide supervision of the work which is knowledgeable
in the standards referred to above. Nothing herein is to be construed as
prohibiting the use by ABS or its contractor of additional barricades,warning
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signs and lights or flagmen as be necessary. In the event ABS or its
contractor does not comply with the barricading standards, the City Engineer
may order ABS and its contractor to stop work; but only until compliance is
achieved.
(j) City reserves the right to lay and to permit to be laid sewer, gas, water and
other pipes and cables, and to do or permit to be done any municipal
underground work that may be deemed to be necessary or proper by City in,
across,along,or under any of the streets,alleys and easements,and to change
any curb or sidewalk or the grade of any of said streets. In doing or
permitting any such work, the City of Beaumont shall not be liable to ABS
for any damage occasioned; it being understood that nothing herein shall be
construed as foreclosing ABS rights to recover damages against any
contractor or third party who may be responsible for damages to ABS
facilities.
(k) If the City requires ABS to remove, alter, change, adapt, or conform its
facilities because of changes in the grade of a street or in the location or
manner of constructing a water pipe, sewer pipe, or other underground or
above ground structure owned by the City, on alternative right-of-way
provided by the City, ABS shall make the alterations or changes as soon as
practicable when ordered in writing by the City, without claim for
reimbursement or damages against the City at no additional charge to ABS.
If these requirements impose a financial hardship on ABS, ABS shall have
the right to present alternative proposals for the City's consideration. If the
City requires ABS to remove, alter, change, adapt or conform its facilities to
enable any other corporation or person, except the City, to use,or to use with
greater convenience, any public right-of-way, ABS shall not be required to
make any such changes until such other corporation or person shall have
undertaken, with solvent bond, to reimburse ABS for any loss and expense
which will be caused by or arise out of such removal, alteration, change,
adaptation or conformance of ABS facilities; provided, however, the City
shall never be liable for such reimbursements.
(1) ABS shall indemnify,save and hold harmless the City of Beaumont from any
and all claims for injuries and damages to persons or property occasioned by
or arising out of the installation, maintenance, operation, repair or removal
of the system by ABS,except to the extent arising from the sole negligence,
or wanton conduct or gross negligence of the City of Beaumont, its
employees or agents. Neither party shall be liable to the other for any
consequential, special, or indirect damages hereunder.
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(m) If the system or any part thereof installed by ABS shall be in any respect
damaged or injured by the City or any public entity in connection with any
construction or maintenance of any public facility, ABS shall not be entitled
to prosecute or maintain a claim against the City or such public agency unless
such damage is occasioned by the City or such public agency or wanton
conduct or gross negligence. However,nothing contained in this paragraph
shall prevent ABS from prosecuting or maintaining a claim against a private
contractor employed by the City or such entity.
(n) Recovery by ABS for damages that occur to ABS facilities, as a result of
an adjoining residential homeowner's attempt to construct improvements to
his frontage shall be limited to actual damages only and no loss of revenue
as damages. Any additional cost shall be borne by ABS.
(o) The system shall be maintained and operated in such a manner as to cause no
damage to public facilities. Damage to public facilities occasioned by such
maintenance and operation shall be at ABS expense. Such damages shall be
limited to actual damages and no loss of revenue damages.
(p) ABS contractors shall furnish the City with a certificate of insurance issued
by an insurer acceptable to the City showing that the permittee hasin force,
and will maintain in force during the construction of the system, liability
insurance of not less than $1,000,000 for any one accident and property
damage insurance of not less than$1,000,000,or to applicable City insurance
requirements, at the time of such construction. Such insurance shall be
maintained in force during the life of the project and no modifications or
change of insurance coverage and provisions shall be made without ten(10)
days written advance notice to the City.
(q) ABS agrees that it shall mark the location of its system within forty-eight
(48) hours after receipt of notification of proposed construction. ABS
maintain a toll-free telephone number to be called for location of the system.
Should ABS fail to locate the system for the City within forty-eight (48)
hours of request duly acknowledged, ABS shall pay a late charge of Five
Hundred Dollars($500)per day. In the event of a dispute concerning notice,
ABS audio tape of telephone messages shall provide proof of notification
which tapes will be made available upon request. Alternatively, notice may
be shown by delivery of a certified letter to ABS .
(r) ABS, at no cost to the City, shall keep in the City and make available upon
request, complete"as built"drawings clearly showing locations and depth of
all facilities. Such drawings shall be provided by the City within sixty(60)
days after completion of the project.
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(s) "With the exception as set out herein,this agreement is personal to ABS and
may not be assigned to any other company or legal entity without written
approval by the City of Beaumont, Beaumont Public Works' Director.
However, any assignment or transfer or sale to a company owned, managed
or controlled by ABS, any of its affiliates, parents, subsidiaries, John J.
Rigas,or any member of his immediate family, shall not require the consent
of the City of Beaumont. Should ABS contemplate any assignment or
transfer of the rights under this agreement, whether with the approval or
without the approval of the City of Beaumont, notice of the proposed
assignment or transfer shall be given to the City of Beaumont thirty(30)days
prior to any such assignment. Such notice shall provide information
sufficient for the City to determine whether the assignment requires the
approval of the City of Beaumont or does not require such approval."
The City shall give ABS written notice of any violation of this agreement. If ABS fails to
correct such violation within sixty (60) days of such notice, this agreement shall be immediately
terminated upon said sixtieth day. Any notice to be given hereunder by either party to the other may
be effected either by personal delivery in writing or by registered or certified mail, postage prepaid
with return receipt requested. Mail notices shall be addressed to the addresses of the parties as
follows:
City of Beaumont Dave Sermons John Glicksman
PO Box 3827 Director of Outside Plant Vice-President & General Counsel
Beaumont, TX 77704 Adelphia Business Solutions Adelphia Business Solutions
One American Place, Suite 1520 One North Main Street
Baton Rouge, LA 70825 Coudersport PA 16915
The above-stated addresses may be changed to such addresses as the parties may from time to
time designate by written notice. ABS will provide City with a toll free telephone number to be
used pursuant to Paragraph "q" above within 15 days of completion of installation of the line(s)
contemplated by this agreement. If such telephone number is not furnished ABS will bear all
responsibility should such lines be severed.
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Commencement of work on the fiber optic system by ABS after the date of this agreement
shall be construed as evidence of ABS acceptance and approval of the conditions above set forth.
This agreement shall be governed by and construed in accordance with the laws of the State
of Texas.
This agreement embodies the entire agreement between the parties hereto and supersedes all
prior agreements and understandings, if any, relating to the matters addressed herein. This
agreement may be amended or supplemented only by a written instrument executed by both parties.
IN WITNESS WHEREOF, the City of Beaumont, Texas, has caused these presents to be
signed by its City Manager and the seal of the City to be herewith affixed by the City Clerk, this
day of , 2000.
THE CITY OF BEAUMONT
By:
Stephen J. Bonczek, City Manager
ATTEST:
City Clerk D p
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EXHIBIT"A"
ABS
(Exact Distance Will Be Determined When Route Map Is Complete)
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