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HomeMy WebLinkAboutRES 19-293RESOLUTION NO. 19-293 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 Public Right -of - Way Use Agreement with Fiberlight, LLC, of Alpharetta, Georgia, for the placement of an approximate 99,220 linear feet of fiber optic cable in the public right-of-way at Pietzsch MacArthur Elementary School, Central High School/Paul Brown Learning Center, Charlton Pollard Elementary School, Dishman Elementary School, Bennie Hickman AG Facility, Lucas Pre -School, Smith Middle School, Marshall Middle School, South Park Middle School, Regina Howell Elementary School, Beaumont United High School, BISD Administration Building, Trahan Center, Guess Elementary School, Minnie Rogers Juvenile Detention Facility, BISD Maintenance Facility, Thomas Educational Support Center, and West Brook High School with a fee in accordance with Chapter 283 of the Texas Local Government Code. The agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. The meeting at which this resolution was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 17th day of December, 2019. Tpayor Becky Ames - PUBLIC RIGHT-OF-WAY USE AGREEMENT THE STATE OF TEXAS § COUNTY OF JEFFERSON § WHEREAS, Fiberlight 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 Fiberlight 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 Fiberlight 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 Fiberlight LLC that Fiberlight LLC may lay, maintain, operate, replace or remove fiber optic and related appurtentant facilities used to provide telecommunications services, including dark fiber for the transportation of communications (the "system") in, on, under or across the streets, alleyways and easements situated in the City of Beaumont, Jefferson County, Texas, as more specifically set out in the permit drawings 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 Fiberlight LLC or Fiberlight LLC 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 1 EXHIBIT "A" 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. Fiberlight 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. 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 Fiberlight 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. (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. 0) Barricades, warning signs, lights, and flagmen will be provided and 2 installed in accordance with the Texas Manual of Uniform Traffic Control Devices (current edition) by Fiberlight LLC contractor when, in the opinion of the City Engineers, such is necessary for the safe installation of the system. Fiberlight 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 Fiberlight LLC or its contractor of additional barricades, warning signs and lights or Ragmen as be necessary. In the event Fiberlight LLC or its contractor does not comply with the barricading standards, the City Engineer may order Fiberlight 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 Fiberlight LLC for any damage occasioned; it being understood that nothing herein shall be construed as foreclosing Fiberlight LLC rights to recover damages against any contractor or third party who may be responsible for damages to Fiberlight LLC facilities. (1) If the City requires Fiberlight 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, Fiberlight 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 Fiberlight LLC. If these requirements impose a financial hardship on Fiberlight LLC, Fiberlight LLC shall have the right to present alternative proposals for the City's consideration. If the City requires Fiberlight 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, Fiberlight LLC shall not be required to make any such changes until such other corporation or person shall have undertaken, with solvent bond, to reimburse Fiberlight LLC for any loss and expense which will be caused by or arise out of such removal, alteration, change, adaptation or conformance of Fiberlight LLC facilities; provided, however, the City shall never be liable for such reimbursements. (m) Fiberlight LLC shall indemnify, save and hold harmless the City of Beaumont from any and all claims for injuries and damages to persons or 9 property occasioned by or arising out of the installation, maintenance, operation, repair or removal of the system by Fiberlight 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 Fiberlight 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, Fiberlight 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 Fiberlight LLC from prosecuting or maintaining a claim against a private contractor employed by the City or such entity. (o) Recovery by Fiberlight LLC for damages that occur to Fiberlight 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 Fiberlight 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 Fiberlight LLC expense. Such damages shall be limited to actual damages and no loss of revenue damages. (q) Fiberlight 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) Fiberlight LLC shall make payment to the City of Beaumont in accordance with Chapter 283 of the Texas Local Government Code. (s). Actual expenses of inspection incurred by the City in connection with maintenance of the system by Fiberlight LLC (except as provided in Paragraph k) shall be reimbursed to the City by Fiberlight LLC upon M written request therefore, which shall include evidence of such costs. (t) Fiberlight LLC agrees that it shall mark the location of its system within seventy-two (72) hours after receipt of notification of proposed construction. Fiberlight LLC maintains a toll -free telephone number to be called for location of the system. Should Fiberlight LLC fail to locate the system for the City within seventy-two (72) hours of request duly acknowledged, Fiberlight LLC shall pay a late charge of Five Hundred Dollars ($500) per day. In the event of a dispute concerning notice, Fiberlight 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 Fiberlight LLC. (u) Fiberlight 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 Fiberlight LLC to any other company or legal entity without the prior written approval by the City of Beaumont's Public Works Director, except that Fiberlight LLC may assign its rights and obligations under this agreement to Fiberlight 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 Fiberlight LLC under this agreement; and (2) is bound to the same extent as Fiberlight 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. Said consent by the City shall not be unreasonably withheld. (w) Should any other company or legal entity, other than Fiberlight LLC or Fiberlight 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 Fiberlight 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 Fiberlight LLC, its subsidiaries, affiliates or successors. The City shall give Fiberlight LLC written notice of any violation of this agreement. If Fiberlight LLC fails to correct such violations within sixty (60) days of such notice, this G agreement shall be immediately terminated upon said sixtieth day. Any notice to be given hereunder by either party to the other may be affected 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 Public Works Department PO Box 3827 Beaumont, Texas 77704 (409) 880-3725 Fiberlight LLC LLC 11700 Great Oaks Way Suite 100 Alpharetta, GA 30022 (727) 919-6005 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 Fiberlight LLC after the date of this agreement shall be construed as evidence of Fiberlight 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, including, but not limited to Chapter 283 of the Texas Government Code. 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. {INTENTIONALLY LEFT BLANK} 2 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 ATTEST: City Clerk ATTEST: day of , 2019. CITY OF BEAUMONT Kyle Hayes, City Manager FIBERLIGHT LLC 0.0 Tony D. Cash Title: EVP and General Counsel 7 Phase Three will include the following 18 Beaumont ISD schools/sites: Pietzsch MacAuther Elementary Central High School/Paul Brown Charlton Pollard Elementary Dishman Elementary Bennie Hickman AG Facility Lucas Pre -School Smith Middle. School Marshall Middle School South Park Middle School Regina Howell Elementary Beaumont United High School Administration Building Trahan Center Guess Elementary Minnie Rodgers Maintenance Facility Thomas Educational Support Center West Brook High School