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HomeMy WebLinkAboutRES 04-132 RESOLUTION NO. 04-132 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Council hereby approves the agreement between LightCore 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" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of June, 2004. NN - Mayor ro T m Becky Ames - PUBLIC RIGHT-OF-WAY USE AGREEMENT THE STATE OF TEXAS § COUNTY OF JEFFERSON § WHEREAS, Lightcore 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 Lightcore 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 Lightcore; 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 Lightcore that Lightcore 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 Lightcore or Lightcore contractor from the Public Works Department of the City prior to any installation, maintenance or removal requiring excavation. 1 EXHIBIT "A" (b) The system shall be buried at a depth of no less than thirty (30) inches t 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. Lightcore 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 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) The system shall be installed in such a manner as to provide a twelve (12) inch vertical clearance and a thirty-six (36) inch horizontal clearance with existing water or sanitary sewer lines. (e) 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. (f) 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 Lightcore 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. (g) 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. (h) 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, 2 r structures or other right-of-way features as a result of this installation will be borne by the owner of the system. (i) 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. (j) 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 Lightcore contractor when, in the opinion of the City Engineers, such is necessary for the safe installation of the system. Lightcore 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 Lightcore or its contractor of additional barricades, warning signs and lights or flagmen as be necessary. In the event Lightcore or its contractor does not comply with the barricading standards, the City Engineer may order Lightcore and its contractor to stop work; but only until compliance is achieved. (k) 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 Lightcore for any damage occasioned; it being understood that nothing herein shall be construed as foreclosing Lightcore rights to recover damages against any contractor or third party who may be responsible for damages to Lightcore facilities. (1) If the City requires Lightcore 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, Lightcore 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 3 Lightcore. If these requirements impose a financial hardship on Lightcore, Lightcore shall have the right to present alternative proposals for the City's consideration. If the City requires Lightcore 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, Lightcore shall not be required to make any such changes until such other corporation or person shall have undertaken, with solvent bond, to reimburse Lightcore for any loss and expense which will be causedby or arise out of such removal, alteration, change, adaptation or conformance of Lightcore facilities; provided, however, the City shall never be liable for such reimbursements. (m) Lightcore 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 Lightcore, 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 damage hereunder. (n) If the system or any part thereof installed by Lightcore 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, Lightcore 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 agencies wanton conduct or gross negligence. However, nothing contained in this paragraph shall prevent Lightcore from prosecuting or maintaining a claim against a private contractor employed by the City or such entity. (o) Recovery by Lightcore for damages that occur to Lightcore 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 Lightcore. (p) 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 Lightcore expense. Such damages shall be limited to actual damages and no loss of revenue damages. 4 F (q) Lightcore 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. (r) Lightcore shall make payment to the City of Beaumont as follows: • initial agreement fee of$500, payable upon execution of this agreement; • annual fee of$1.35 per linear foot in the City right-of-way which sums shall be upon execution of agreement and each year thereafter. Said parties shall confer and negotiate in good faith on a new rate on or before January 1, 2011, to become effective January 1, 2012, and shall confer and negotiate on a new rate in the 2021 and every ten(10) years thereafter. • inspection, engineering and other costs during the period of initial construction in the amount of$2000.00,payable upon receipt of invoice. (s) Actual expenses of inspection incurred by the City in connection with maintenance of the system by Lightcore (except as provided in Paragraph k) shall be reimbursed to the City by Lightcore upon written request therefore, which shall include evidence of such costs. (t) Lightcore agrees that it shall mark the location of its system within forty- eight (48) hours after receipt of notification of proposed construction. Lightcore maintains a toll-free telephone number to be called for location of the system. Should Lightcore fail to locate the system for the City within forty-eight (48) hours of request duly acknowledged, Lightcore shall pay a late charge of Five Hundred Dollars ($500) per day. In the event of a dispute concerning notice, Lightcore 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 Lightcore . 5 r (u) Lightcore, 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 to the City within sixty (60) days after completion of the projec L (v) This agreement may not be assigned by Lightcore to any other company or legal entity without the prior written approval by the City of Beaumont's Public Works Direct or, except that Lightcore may assign its rights and obligations under this agreement to Lightcore's parent,subsidiary,affiliate or successor entity without such consent, so long as the parent, subsidiary, affiliate or successor (1) assumes all obligations of Lightcore under this agreement; and (2) is bound to the same extent as Lightcore, and (3) the City is notified of the assignment within sixty (60) days and is furnished a written document within which the assignee assumes all obligations under this license. (w) Should any other company or legal entity, other than Lightcore or Lightcore's parent, subsidiary, affiliate or successor as authorized in section (v), use the system installed under this agreement under the rights granted herein without notification of the City of Beaumont's Public Works Director, such use shall be a violation of this agreement and Lightcore will cease all use of the system and the City may take steps necessary to enforce a cancellation of this agreement, including removal of some portion or all of the system upon thirty (30) days written notice to Lightcore. The City shall give Lightcore written notice of any violation of this agreement. If Lightcore 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 Lightcore Public Works Department Address PO Box 3827 City/State/Zip Beaumont, Texas 77704 Telephone Numbe (409) 880-3725 6 NOTICE PURSUANT TO PARAGRAPH "S" SHALL BE GIVEN AS FOLLOW: Toll-free Telephone Number: 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 Lightcore after the date of this agreement shall be construed as evidence of Lightcore 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 ,s 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 , 2004. THE CITY OF BEAUMONT By: Kyle Hayes, City Manager ATTEST: City Clerk Lightcore By: Title: ATTEST: 7 M EXHIBIT "A" Lightcore STREET SEGMENTS LINEAR FEET 3 8