HomeMy WebLinkAboutRES 05-217 RESOLUTION NO. 05 - 217
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 with
Network USA, LLC, 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 25th day of
October, 2005.
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;�1C�s - Mayor Guy N. Goodson -
PUBLIC RIGHT-OF-WAY USE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
WHEREAS, Network USA, LLC 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 Network USA, LLC 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 Network USA, LLC; 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
Network USA, LLC that Network USA, LLC 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 Network USA, LLC or Network USA, LLC
contractor from the Public Works Department of the City prior to any
installation, maintenance or removal requiring excavation.
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EXHIBIT "A"
(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. Network USA, LLC 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.
(5) 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 Network USA, LLC 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, structures or other right-of-way features as a result
of this installation will be borne by the owner of the system.
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(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 Network USA, LLC contractor
when, in the opinion of the City Engineers, such is necessary for the
safe installation of the system. Network USA, LLC 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 Network USA, LLC or its contractor of additional
barricades, warning signs and lights or flagmen as be necessary. In
the event Network USA, LLC or its contractor does not comply with
the barricading standards,the City Engineer may order Network USA,
LLC 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 Network USA, LLC for any damage
occasioned; it being understood that nothing herein shall be
construed as foreclosing Network USA, LLC rights to recover
damages against any contractor or third party who may be
responsible for damages to Network USA, LLC facilities.
(1) If the City requires Network USA, LLC 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, Network USA,
LLC 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 Network USA,
LLC. If these requirements impose a financial hardship on Network
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USA, LLC, Network USA, LLC shall have the right to present
alternative proposals for the City's consideration. If the City requires
Network USA, LLC 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,
Network USA, LLC shall not be required to make any such changes
until such other corporation or person shall have undertaken, with
solvent bond, to reimburse Network USA, LLC for any loss and
expense which will be caused by or arise out of such removal,
alteration, change, adaptation or conformance of Network USA, LLC
facilities; provided, however, the City shall never be liable for such
reimbursements.
(m) Network USA, LLC 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 Network
USA, LLC, 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 Network USA, LLC 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, Network USA, LLC 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 Network USA, LLC from prosecuting or
maintaining a claim against a private contractor employed by the City
or such entity.
(o) Recovery by Network USA, LLC for damages that occur to Network
USA, LLC 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 Network USA, LLC.
(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 Network
USA, LLC expense. Such damages shall be limited to actual
damages and no loss of revenue damages.
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(q) Network USA, LLC 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) Network USA, LLC 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 Network USA, LLC (except as
provided in Paragraph k) shall be reimbursed to the City by Network
USA, LLC upon written request therefore, which shall include
evidence of such costs.
(t) Network USA, LLC agrees that it shall mark the location of its system
within forty-eight (48) hours after receipt of notification of proposed
construction. Network USA, LLC maintains a toll-free telephone
number to be called for location of the system. Should Network USA,
LLC fail to locate the system for the City within forty-eight (48) hours
of request duly acknowledged, Network USA, LLC shall pay a late
charge of Five Hundred Dollars ($500) per day. In the event of a
dispute concerning notice, Network USA,LLC 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 Network USA, LLC.
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(u) Network USA, LLC, 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
project.
(v) This agreement may not be assigned by Network USA, LLC to any
other company or legal entity without the prior written approval by the
City of Beaumont's Public Works Direct or, except that Network USA,
LLC may assign its rights and obligations under this agreement to
Network USA, LLC's parent, subsidiary, affiliate or successor entity
Without such consent, so long as the parent, subsidiary, affiliate or
successor(1)assumes all obligations of Network USA, LLC under this
agreement; and (2) is bound to the same extent as Network USA,
LLC, 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 Network USA,
LLC or Network USA, LLC'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 Network USA, LLC 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 Network USA,
LLC.
The City shall give Network USA, LLC written notice of any violation of this
agreement. If Network USA, LLC 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 Network USA, LLC
Public Works Department 3501 NW Evangeline Thwy
PO Box 3827 Carencro, LA 70520
Beaumont, Texas 77704 Attn: James Davis
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y (409) 880-3725 Telephone: 337-886-1600
Fax: 337-896-2695.
NOTICE PURSUANT TO PARAGRAPH "S" SHALL BE GIVEN AS FOLLOW:
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 Network USA, LLC after the
date of this agreement shall be construed as evidence of Network USA, LLC 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 9� day of :SFPi,FA6r_P- , 2005.
THE CITY OF BEAUMONT
By:
Kyle Hayes, City Manager
ATTEST:
City Clerk
Ne k USA,�G�1Q.�.b
By.
James Davis, President
ATT€ST:
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EXHIBIT "A"
Network USA, LLC
Total
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Beaumont, Texas, United States
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