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HomeMy WebLinkAboutRES 07-136 RESOLUTION NO. 07-136 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute a Public Right-of-Way Use Agreement, substantially in the form attached hereto as Exhibit"A,"with MClmetro Access Transmission Services LLC. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22"d day of May, 2007. Mp NI - Ma r Becky Ames - � LU Clot ii PUBLIC RIGHT-OF-WAY USE AGREEMENT THE STATE OF TEXAS § COUNTY OF JEFFERSON § WHEREAS, MCImetro Access Transmission Services LLC ("MCImetro") 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 MCImetro 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 MCImetro; 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 MCImetro that MCImetro 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 MCImetro or MCImetro's 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 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. MCImetro 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 City-owned 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. MCImetro 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 MCImetro 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. 2 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 MCImetro's contractor when, in the opinion of the City Engineers, such is necessary for the safe installation of the system. MCImetro 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 MCImetro or its contractor of additional barricades, warning signs and lights or flagmen as be necessary. In the event MCImetro or its contractor does not comply with the barricading standards, the City Engineer may order MCImetro 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 City-owned 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 on behalf of the 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. Except as otherwise provided i paragraph (m) below, in doing or permitting any such work, the City of Beaumont shall not be liable to MCImetro for any damage occasioned; it being understood that nothing herein shall be construed as foreclosing MCImetro rights to recover damages against any contractor or third party who may be responsible for damages to MCImetro facilities. (1) If the City requires MCImetro 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, MCImetro 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 MCImetro. If these requirements impose a financial hardship on MCImetro, MCImetro shall have the right to present alternative proposals for the City's consideration. If the City requires MCImetro 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, MCImetro shall not be required to make any such changes until such other corporation or person shall have undertaken, with solvent bond, to reimburse MCImetro for any loss and expense which will be caused by or arise out of such removal, alteration, change, adaptation or 3 conformance of the System; provided, however, the City shall never be liable for such reimbursements. (m) MCImetro 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 MCImetro, 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 MCImetro 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, MCImetro 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' sole negligence, wanton conduct or gross negligence. However,nothing contained in this paragraph shall prevent MCImetro from prosecuting or maintaining a claim against a private contractor employed by the City or such entity. (o) Recovery by MCImetro for damages that occur to the System, 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 MCImetro. (p) The system shall be maintained and operated by MCImetro 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 MCImetro's expense. Such damages shall be limited to actual damages and no loss of revenue damages. (q) MCImetro's 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. 4 (r) MCImetro shall make payment to the City of Beaumont as follows: • initial agreement fee of$500,payable upon execution of this agreement; • payments to the City in accordance with HB 1777; • inspection, engineering and other costs during the period of initial construction in the amount of$2000.00, but only as required by the City Code and the City's Department of Public Works, which shall be payable upon receipt of invoice. (s) Actual expenses of inspection incurred by the City in connection with maintenance of the system by MCImetro (except as provided in Paragraph k) shall be reimbursed to the City by MCImetro upon written request therefore, which shall include evidence of such costs. (t) MCImetro agrees that it shall mark the location of its system within forty- eight (48) hours after receipt of notification of proposed construction. MCImetro maintains a toll-free telephone number to be called for location of the system. Should MCImetro fail to locate the system for the City within forty-eight (48) hours of request duly acknowledged, MCImetro shall pay a late charge of Five Hundred Dollars ($500) per day. In the event of a dispute concerning notice, MCImetro 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 MCImetro. (u) MCImetro, 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 MCImetro to any other company or legal entity without the prior written approval by the City of Beaumont's Public Works Direct or, except that MCImetro may assign its rights and obligations under this agreement to MCImetro's parent, subsidiary, affiliate or successor entity without such consent, so long as the parent, subsidiary, affiliate or successor (1) assumes all obligations of MCImetro under this agreement; and (2) is bound to the same extent as MCImetro; 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. 5 (w) Should any other company or legal entity, other than MCImetro or MCImetro'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 MCImetro 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 MCImetro. The City shall give MCImetro written notice of any violation of this Agreement. If MCImetro fails to correct such violation within sixty(60)days of such notice, this Areement 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 or by nationally recognized overnight courier. Mail notices shall be addressed to the addresses of the parties as follows: City of Beaumont MCImetro Access Transmission Public Works Department Services LLC ("MCImetro") PO Box 3827 Attn: Manager, Franchises Beaumont, Texas 77704 2400 North Glenville Drive (409) 880-3725 Richardson, Texas 75082 Telephone: 972-729-7106 Fax: 972-729-6700 with a copy to: Verizon Business, Legal & External Affairs 2400 North Glenville Drive Richardson, Texas 75082 Telephone: 972-729-6751 Fax: 972-729-7926 NOTICE PURSUANT TO PARAGRAPH "S" SHALL BE GIVEN AS SET FORTH ABOVE: (y) The above-stated addresses may be changed to such addresses as the parties may from time to time designate by written notice. 6 i (z) Commencement of work on the System by MCImetro after the date of this Agreement shall be construed as evidence of MCImetro's acceptance and approval of the conditions above set forth. (aa) This agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its principles of conflicts of law. (bb) MCImetro certifies that it is a Competitive Local Exchange Carrier and Certified Telecommunications Provider under the laws of the State of Texas and any rules or regulations of the Texas Public Utility Commission. MCImetro certifies that it has obtained a Certificate of Operating Authority from the Texas PUC and that it is governed by the provisions of Texas HB 1777. (cc) 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 , 2007. THE CITY OF BEAUMONT By: Kyle Hayes, City Manager ATTEST: City Clerk MCImetro Access Transmission Services LLC(" MCImetro") By: Title: ATTEST: 7 EXHIBIT "A" MCImetro Access Transmission Services LLC ("MCImetro") Fiber Optic Installation Total Linear Feet 8