HomeMy WebLinkAboutRES 99-029 RESOLUTION N0. 9g"o?9
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute a lease agreement with
Qwest Communications for the placement of fiber optic cable. The contract is substantially
in the form attached hereto as Exhibit "A."
PASSED BY THE CITY COUNCIL of the City of Beaumont this the day
of , 1999.
- Mayor -
Vn 1D; D'.'Y I P.,^ 08
PUBLIC RIGHT-OF-WAY USE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
Corporation ("Qwest Communications")
WHEREAS, Qwest Communicationsldesirzs 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 Qwest Communications must
obtain a license in order to use the public right-of-way; and,
WFMREAS, the City Council of the City of Beaumont has determined that it is appropriate
to make the following agreement with Qwest Communications; 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 filly herein, hereby agrees with Qwest
Communications that Qwest Communications may lay,maintain,operate,replace or remove a fiber
optic communication system(the"system') for the transportation of long distance communications
in, on, under or across the streets, alleyways and easements 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. Pcrmits shall be obtained by Qwest
Communications or Qwest Communications 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
thirty-six inches (36")below the existing flow line of the adjacent drainage
ditch, when crossing or placed in said ditch. Qwest Communications will
notify the Public Works Department of the City of Beaumont prior to
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EXHIBIT "A"
T'. 1J14C D 1 I 1 1 OW .-I-1i 4Z)I I U 08
installation of the system under this agreement,and shall obtain City permits
at a cost not to exceed a one-time charge of Ten Dollars ($10) plus Five
Dollars($5) for each day of.construction.
(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 Qwest Communications 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 ofthis 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 Qwest Communications contractor when, in the opinion
of the City Engineers,such is necessary for the safe installation of the system.
Qwest Communications 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 Qwest Communications or its
contractor of additional barricades,warning signs and lights or flagmen as be
necessary. In the event Qwest Communications or its contractor does not
comply with the barricading standards,the City Engineer may order Qwest
Communications and its contractor to stop work,but only until compliance
is achieved-
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(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 Qwest
Communications for any damage occasioned; it being understood that
nothing herein shall be construed as foreclosing Qwest Communications
rights to recover damages against any contractor or third party who may be
responsible for damages to Qwest Communications facilities.
(k) If the City requires Qwest Communications 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 aboveground structure owned by the City, on alternative
right-of-way provided by the City, Qwest Communications 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 Qwest Communications. If these requirements impose
a financial hardship on Qwest Communications, Qwest Communications
shall have the right to present alternative proposals for the City's
consideration. If the City requires Qwest Communications 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,Qwest Communications shall not be required to make any such
changes until such other corporation or person shall have undertaken,with
solvent bond,to reimburse Qwest Communications for any loss and expense
which will be caused by or arise out of such removal, alteration, change,
adaptation or conformance of Qwest Communications facilities; provided,
however, the City shall never be liable for such reimbursements.
(1) Qwest Communications 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 Qwest Communications, except
to the extent arising from the sole negligence, or wanton conduct or gross
negligence of the City of Beaumont, its employees or agents.
(m) If the system or any part thereof installed by Qwest Communications 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,
Qwest Communications 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's wanton conduct or gross negligence. However,nothing contained
in this paragraph shall prevent Qwest Communications from prosecuting or
maintaining a claim against a private contractor employed by the City or such
entity.
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(n) Recovery by Qwest Communications for damages that occur to Qwest
Communications 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 Qwest Communications.
(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 Qwest Communications expense. Such
damages shall be limited to actual damages and no loss of revenue damages.
(p) Qwest Communications contractors shall furnish the City with a certificate
of insurance issued by an insurer acceptable to the City showing that the
permittee has in 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) Qwest Communications shall make payment to the City of Beaumont as
follows:
• initial agreement fee of $500, payable upon execution of this
agreement;
• annual fee of$1.20 per linear foot in the City right-of-way which
sums shall be payable January 1, 1999 and each year thereafter. Said
parties shall confer and negotiate in good faith on a new rate on or
before January 31, 2001, to become effective January 1, 2002 and
shall confer and negotiate on a rate in the year 2011 and every ten
(10)years thereafter.
• inspection, engineering and other costs during the period of initial
construction in the amount of 52000.00, payable upon receipt of
invoice.
(r) Actual expenses of inspection incurred by the City in connection with
maintenance of the system by Qwest Communications (except as provided
in Paragraph k)shall be reimbursed to City by Qwest Communications upon
written request therefor,which shall include evidence of such costs.
(s) Qwest Communications agrees that it shall mark the location of its system
within forty-eight (48) hours after receipt of notification of proposed
construction_ Qwest Communications maintain a toll-free telephone number
to be called for location of the system. Should Qwest Communications fail
to locate the system for the City within forty-eight(48)hours of request duly
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acknowledged, Qwest Communications shall pay a late charge of Five
Hundred Dollars(5500)per day. In the event of a dispute concerning notice,
Qwest Communications 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 Qwest
Communications.
(t) Qwest Communications, 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.
The City shall give Qwest Communications written notice of any violation of this
agreement. If Qwest Communications 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:
QUSC o0)
City of Beaumont oJeAd4 531--- �.7�
PO Box 3827 �
Beaumont, Texas 77704 /
NOTICE PURSUANT TO PARAGRAPH"S"SHALL BE GIVEN AS FOLLOW:
Toll-free Telephone Number: <f $V P / 0c90 2 03 ¢2-3 7
The above-stated addresses may be changed to such addresses as the parties may from time
to time designate by written notice.
Commencement of work on the fiber optic system by Qwest Communications after the date
of this agreement shall be construed as evidence of Qwest Communications 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.
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This agreement embodies the entire agreement between the parties hereto and supersedes all
prior agreements and understandings, if any, Telating 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 , 19—
THE CITY OF BEAUMONT
By:
Ray A.Riley, City Manager
ATTEST:
City Clerk
QWEST COMMUNICATIONS
OR ORAT ON -
By_
Title: Vr 4--- PrLe Ld.,NL
A
APPPnVM aG TO 1 Fra► FORM
JAN 2 7 7999
c
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EXHIBIT "A"
QWEST COMMUNICATIONS CROSSINGS OF CITY STREETS
STREET LINEAR FEET
MAIN 61
PEARL 61
ORLEANS/PARK 422
NECHES 61
TRINITY 61
AVENUE C/CROCKETT 100
CEDAR 50
4TH STREET 60
11 TH STREET 120
LANGHAM 60
PINCHBACK 50
COBURN 60
TODD 50
KEITH 60
TOTAL - 1,276