RES 2013-1427 - Agmt with Alegent Creighton Health for installation of communication cable Public Works Department
U~ s ii r Omaha/Douglas Civic Center
i��'f � October 22� 2013 13 C�> : J I 1819 barnam Street,Suite 601
o .• Omaha,Nebraska 68183-0601
Aok 4�ti• (402)444-5220
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° ° Robert G. Stubbe,P.E.
City of Omaha ' '� �• �
Jean Stothert,Mayor Public Works Director
Honorable President
and Members of the City Council,
The attached Resolution approves the Communications Cable and Facilities Agreement between
Alegent Creighton Health and the City of Omaha. This Agreement grants permission to Alegent
Creighton Health to install and operate communication facilities within City Right of Way.
This Agreement stipulates the conditions of approval to install communication facilities within City
Right of Way, as well as applicability of fees.
The Public Works Department requests your consideration and approval of the attached Resolution
and Communications Cable and Facilities Agreement.
Respectfully submitted, This action has been reviewed and found to be
in conformance with the Master Plan.
-3° /2 , j /4{3/i3
R Robe G. Stubbe, P.E. Date mes R. Thele Date
Public Works Director cting Planning Director
Approved as to Funding: Referred to City Council for Consideration:
0- a J 10
Allen Herink Date Mayor's Office ate
'JD Acting Finance Director
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C-25A
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, Alegent Creighton Health proposes to install overhead and/or
underground communication cable in City Right of Way; and,
WHEREAS, Alegent Creighton Health will submit plans to the Public Works
Department pursuant to the terms of the agreement; and,
WHEREAS, a Communications Cable and Facilities Agreement has been prepared
setting forth all the provisions mentioned above.
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF OMAHA:
THAT, the Communications Cable and Facilities Agreement between the City of
Omaha and Alegent Creighton Health,as recommended by the Mayor,providing for the installation
of communication cable in City Right of Way is hereby approved. The location of the
communication cable will be reviewed and approved by the Public Works Department.
P:\rah\1144rah.doc APPROVED AS TO FORM:
CITY ATTORNEY DATE
By 444141 ,4taldhe%
Councilmember
Adopted OCT 2.2.201 724
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,,ted
A� City Clerk
Approved�L1 > ./o 3
Mayor
COMMUNICATIONS CABLE AND FACILITIES AGREEMENT
THIS AGREEMENT is made and executed effective as of this a,13` day of,ek6AL
„%3 by and between Alegent Creighton Health, whose address for notice purposes under this'
Agreement is The McAuley Center, 12809 W. Dodge Rd. Ste. 300 Omaha, NE 68154 ("Permit-
tee") and THE CITY OF OMAHA, NEBRASKA, a municipal corporation organized under the
laws of the State of Nebraska("City").
In consideration of the covenants and agreements herein contained, the parties agree as
follows:
1. In consideration of and pursuant to the "Statement of Policy and Standard Specifications
for Communications Cable on City Property," attached hereto as Exhibit "A" and incorporated
herein, and of the conditions hereinafter set out, City hereby grants and gives to Permittee its
consent to survey and construct, subsequent to acquisition of all necessary permits and payment
of all applicable fees, and then install, operate, inspect, maintain, protect, repair, alter, replace or
remove its communications facilities, as shown on documents to be added to this Agreement
from time to time, which documents are described in Paragraph 2 below and shall collectively be
known as Exhibit `B," each of which shall be dated and attached hereto and made a part hereof.
The communication facilities referred to herein shall consist of existing or future underground
conduits, cables, wires, splicing boxes, and appropriate appurtenances located on, above or be-
neath the surface of any street, alley, sidewalk or other public ground with the City. The grant
contained in this paragraph includes the right of reasonable access to Permittee's communica-
tions facilities.
2. Permittee shall secure all permits required to be issued by the appropriate City officials in
connection with the installation of the communications facilities which shall be laid substantially
in accordance with plans and specifications submitted to and approved by the City and subject to
specific conditions as may be set forth from time to time in the permits granted pursuant hereto,
which permits, plans, and specifications shall be attached hereto as Exhibit"B."
3. This Agreement shall be binding upon and inure to the benefits of the parties hereto and
their respective successors and permitted assigns. Neither party hereto shall assign or otherwise
convey any of its rights, title, or interest under this Agreement without the prior written consent
of the other party, which consent shall not be unreasonably withheld or delayed.
4. This Agreement shall not be effective until the execution of this Agreement by the City
has been approved by resolution of its City Council.
5. Permittee and/or the contractors from time to time employed, used or hired to plan, con-
struct or maintain said communications system shall not, in the performance of the aforemen-
tioned work, discriminate or permit discrimination in violation of state or federal law on account
of race, color sex, age, disability,political or religious opinions, affiliations or national origin.
1
6. Pursuant to Section 8.05 of the Home Rule Charter of the City of Omaha (the "HRC"), no
elected official or officer or employee of the City shall have a financial interest, direct or indirect
in any City contract. Any violation of this section, with the knowledge of the person or corpora-
tion entering into said contract with the City may render said contract voidable by the City
Council. City recognizes and acknowledges that ownership of less than controlling shares of
stock of Permitee by an elected officer/employee of the City does not render this Agreement void
or voidable.
7. The parties expressly reserve any rights either of them may have under state or federal
law concerning the subject matter of this Agreement and further agree that by execution and per-
formance of this Agreement, neither party shall be deemed to have waived any such rights.
8. This Agreement, including the permits granted pursuant to it, encompasses the entire
agreement upon the parties. No representations were made or relied upon by either party in exe-
cuting this Agreement other than those expressly set forth herein. No agent, employee or other
representative of either party is empowered to alter any of the terms hereof, unless done in writ-
ing and signed by an authorized officer of the respective parties hereto.
The City of Omaha
i,U --is-i3
/� Mayor
Attest: 441/O .C3
4)4,1,5/ City lerk
ACCEPTED AND AGREED TO:
77
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By: t''' .9 Attest:
Title: ' ( Gi 0 Title: S f> E
Date: Jy, %- e-t 214 T 0 I 3 Date: 3
APPROVED AS TO FORM:
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SS . DEPUTY CITY ATTORNEY
2
CITY OF OMAHA
REVISED JUNE 2010
STATEMENT OF POLICY AND STANDARD SPECIFICATIONS FOR
COMMUNICATIONS CABLE ON CITY PROPERTY.
SECTION A—PERMIT REQUIRED
No person shall use any space above, on or beneath the surface of any street, alley, side-
walk or other public ground within the City of Omaha for the installation, operation and mainte-
nance of any underground fiber optic cable, coaxial cable, or any other communication cable,
line or appurtenance, unless such person has received a permit therefore granted by agreement
approved by Resolution of the City Council or as otherwise provided herein. This policy shall
not apply to any cable installed or operated by the holder of any City franchise under its terms
for telephone or cable communications purposes wherein such telephone, communications, or
cable television service is provided to the inhabitants of the City as described in such franchise.
SECTION B—APPLICATION FOR PERMIT
(i) Application for such permit shall be made to the Permits and Inspections Division
of the Planning Department, and such application shall be in writing, stating specifically the
space desired, its length, breadth and depth, the streets, alleys, sidewalks or other public space
intended to be used, the use intended to be made thereof, a description of the users if the facility
is not to be available to the general public, a description of all users if any conduit is to be shared
by a number of users, and the carrying capacity and diameter of the cable or other facilities being
installed. In addition thereto, the Permits and Inspections Division or the Public Works Depart-
ment may request such additional information as they deem reasonable or appropriate for their
determination or that of the City Council with reference to such application. All such applica-
tions, for which there is no agreement in effect conforming to this policy and these specifica-
Exhibit A Page 1 of 9
tions, shall be referred to the City Council for an agreement to be approved by Resolution prior
to the granting of any permit. Other permits (for which such an Agreement is in effect) may be
granted by the Permits and Inspections Division with the approval of the Public Works Depart-
ment.
(ii) Following initial application and discussions with the Public Works Department
concerning the placement of such cable and its appurtenances, the applicant shall supply accurate
drawings sealed by a Nebraska-licensed professional engineer produced to a scale of one inch
equaling fifty feet. The plans shall be a plan and profile of the proposed route, with right of way
lines and pavement lines shown. Such plans must show typical sections for pavement cuts and
crossings, with specific details for conflicts with other utility structures and conduits.
(iii) Thirty days after completion of the work, as-built construction drawings, signed
and certified by a Nebraska-licensed professional engineer, must also be submitted to the Public
Works Department on Mylar and a C.D. with each sheet being a .tif file. Updated route maps
and required drawings must be provided to the Public Works Department whenever a change is
made to the approved cable placement.
SECTION C—CONSTRUCTION SPECIFICATIONS
(i) The work shall be constructed in accordance with plans and specifications ap-
proved by the Public Works Department, which approval shall be granted in a competitively neu-
tral and non-discriminatory manner. All excavations in public streets shall comply with Article
II of Chapter 34 of the Omaha Municipal Code, except that the provisions concerning bonds con-
tained within this policy shall control. Where the cable is located beneath the pavement in all
major traffic streets and arterial streets, the minimum depth from the top of the cable to the sur-
face of the ground shall be thirty inches. Cable buried beneath residential streets shall have a
Exhibit A Page 2 of 9
minimum depth of twenty-four inches. In no instances shall cable be buried to a depth of less
than twenty-four inches. Pull boxes and other items shallower than the depth above specified
shall be clearly shown on the completed plans covering the installation work.
(ii) All land surfaces and all pavement shall be restored to the same or similar condi-
tions existing prior to the Permittee's construction, and shall comply with Article II of Chapter
34 of the Omaha Municipal Code. In addition thereto, all established lawns which have been
disturbed by the installation shall be resodded and all other earth surfaces shall be seeded unless
otherwise specified in the permit.
(iii) All cable buried beneath public streets must be encased in a protective sheath
strong enough to avoid damage from the first accidental contact with hand tools. All pavement
cuts must be completed in accord with current City Ordinances and specifications.
SECTION D—BOND, INSURANCE AND PUBLIC LIABILITY
(i) Every applicant for such permit shall file with the City a continuing bond in the
amount of Fifty Thousand dollars ($50,000.00) to cover all construction efforts during the term
of this Agreement or until Permittee is no longer operating its telecommunications facilities
within the City, whichever is sooner. All bonds and sureties shall be approved by the City before
such permit becomes effective. All bonds shall be conditioned that the person to whom such
permit shall be issued, and their heirs, successors and assigns, shall save and keep the City free
and harmless from any and all loss or damages or claims for damages arising from or out of the
use of the space therein mentioned(except those arising from the City's negligence or intentional
misconduct), and for the maintenance of the street, alley, sidewalk or other public ground in such
condition that the street, alley sidewalk or other public ground shall at all times after the comple-
tion of the work be safe for public use; for the full and complete protection of the City against
Exhibit A Page 3 of 9
any and all litigation growing out of the granting of such permit or anything done under such
permit (except to the extent previously specified), and for the removal of any cable or other facil-
ity buried by the Permittee to the extent that the same is required by the City, at the sole expense
of the Permittee or its appropriate heirs, successors or assigns; for the faithful performance and
observance of all of the terms and conditions of this division and the conditions and provisions of
Article II of Chapter 34 of the Omaha Municipal Code; and such bond shall also be conditioned
for the prompt and full payment of the compensation required by this division, or by any other
Ordinance, during the period said permit shall be outstanding. Following the issuance of such
permit, and as long as the use continues in such public space, the owners of the permitted facility
from time to time shall also be responsible to the City for the performance of all of the conditions
of the bond above described.
Whenever the City shall be of the opinion that the surety on such bond given for such
permit issued hereunder has become insufficient and shall so declare in writing sent by regular
U.S. Mail to the applicant, a new bond for such permit shall thereupon be filed with a new surety
to be approved by the City.
(ii) In addition to the bond, the applicant shall at all times have in full force and effect
a policy of liability insurance in the minimum amount of One Million Dollars ($1,000,000.00)
for the injury or death of any number of persons per occurrence, and Two Hundred Fifty Thou-
sand Dollars ($250,000.00) for property damage per occurrence. Such coverage shall name the
City of Omaha as an additional insured, as its interest may appear, for all acts and omissions of
Permittee, its agents and contractors arising out of or in any way connected with the permit and
their use and occupation of the public right-of-way. All such policies and certificates in insur-
ance shall be issued by companies authorized to do business in the State of Nebraska and shall be
Exhibit A Page 4 of 9
approved by the City of Omaha Law Department prior to the commencement of such use and
provide that any such policy shall not be cancelled until thirty (30) days' written notice of such
cancellation shall have been filed with the City Clerk. Any termination or lapse of such insur-
ance will automatically revoke any permit issued pursuant to this division.
SECTION E —INTERFERENCE WITH OTHER PUBLIC FACILITIES, RELOCATION,
IDENTIFICATION OF COMMUNICATIONS CABLE
(i) No person, whether permitted under this policy or otherwise shall ever use the
space under any street, alley, sidewalk or public ground in such manner as to interfere with any
traffic control or energy cable, sewer, gas or water conduit, or any other public facilities or utili-
ties lawfully in such street, alley, sidewalk or other public space unless by consent of the City
specially granted in the permit. Whenever any applicant or permittee under this policy is given
permission to relocate any existing public facility, such relocation shall be entirely at the cost and
expense of the applicant or permittee. All such relocation work shall be subject to the control of
the City of Omaha or other public entity controlling such public facility, and all such work shall
be done promptly in accordance with the directions of the Public Works Department so as to
minimize the interruption of the public's use of such facilities.
(ii) All work undertaken by the applicant or permittee which requires inspection by
the City shall be performed subject to the requirement that the City be fully reimbursed for its
reasonable and documented inspection costs, whether the same are part of the initial installation
or the relocation of either permittee's facilities or those belonging to the City or any other utility
service.
(iii) In addition thereto, all permits governed by these specifications are granted sub-
ject to the requirement that whenever any work is initiated by the City of Omaha, the State of
Nebraska, Douglas County, the Omaha Public Power District or the Metropolitan Utilities Dis-
Exhibit A Page 5 of 9
trict, or any other publicly owned body, the facilities of the applicant must be relocated within a
reasonable time, not to exceed sixty (60) days from written demand for the same, in order to rea-
sonably accommodate such public use. If the permittee fails to undertake or cause the relocation
of its facility within a reasonable time, then the City of Omaha retains the right to relocate or al-
low relocation of the cable and other appurtenant facilities and to assess and collect the reasona-
ble and documented cost from the permittee or any other owner of the facility if the same fail to
relocate the cable in a timely manner.
(iv) The permittee shall, at its own cost, maintain a local agent available on a twenty-
four hour per day, seven day per week basis, to provide to the City, any public entity, or any oth-
er persons, permitted to do work in the street right-of-way, detailed and accurate information
concerning the locations, whether in plan, section or profile, or any combination of the same, of
the permittee's cable, appurtenances or other facilities. This requirement can be satisfied by the
permittee's utilization of a local utility locating service maintained by others, or this provision
may be satisfied by any other local, competent agency.
(v) The permittee, its heirs, successors and assigns, shall at all times remain responsi-
ble for injuries to its cable, its appurtenances and other facilities injured by any party and due to
any inaccuracies in the information given with respect to such facility's location. The City of
Omaha, and all other parties working on public property, shall be responsible for injuries to the
permittee's facilities only to the extent that such injuries result from the intentional damage or
willful disregard for the facilities of the permittee.
SECTION F—REVOCATION OF PERMIT; REMOVAL OF FACILITIES
(i) A permit issued under this policy may be revoked by Resolution of the City
Council upon a finding by the Council of such facts shown below and a failure of permittee to
Exhibit A Page 6 of 9
cure such breach within thirty (30) days of sending written notice to such person by the City
Clerk, for the following reasons:
a) Failure of the permittee to pay the compensation required within thirty (30) days
after the payment due date;
b) Failure or neglect of the permittee to comply with the material provisions of these
specifications or any provision of the Omaha Municipal Code applicable to the
permit and the use and occupancy of right-of-way.
(ii) Upon revocation of the permit, the permit holder shall forthwith, at the option of
the City, either remove or abandon in place the cable and appurtenances for which the permit
was granted. All directly buried cable, however, may be abandoned in place at the option of the
permit holder. All removals and restoration of the public facilities shall be at the cost of the
permittee, and the permittee shall hold the City of Omaha free from any and all encroachments
or claims of any type. Such facilities which are not removed by the permission of the City of
Omaha shall become the property of the City of Omaha upon the City's certification that the
permittee has complied with all requirements of abandonment or cancellation with respect to the
specific segment of cable involved. Whenever the permittee has failed or refused to undertake
such removal, abandonment and restoration within six (6) months after such revocation of any
such permit, then the City may cause such work to be done and the cost of such work shall be
paid by the permittee and become a lien against the property of the permittee.
(iii) Upon a determination by the City Council that the space for which the permit is
granted is needed for other public use and that no relocation within the specific right-of-way is
an available, reasonable alternative, then the rights under said permit shall be transferred, to the
extent possible by the co-operation of the City and the permit holder, to another specific nearby
Exhibit A Page 7 of 9
•
right-of-way. Such relocation work shall be accomplished by the permit holder at its costs with-
in the time frame specified in Section E(iii) hereof.
(iv) This Agreement shall continue in force and effect for a period of ten (10) years
from the execution date of this Agreement, and thereafter from year to year unless terminated by
either party by giving written notice of its intention to do so not less than ninety (90) days prior
to the end of any period.
SECTION G—RENTAL FEE FOR SPACE (FOR NON-PUBLIC USE)
(i) When the permittee is using the public space in a capacity other than as a tele-
communications company offering telecommunications service for a fee, the permittee shall pay
to the City an annual rental for the use and occupancy of the space on or beneath said public
street, alley, sidewalk or other public ground occupied by such use, which rental shall be the sum
of One Dollar and Eighty Cents ($1.80) per lineal foot of space occupied on or underneath the
public street, alley, sidewalk or other public ground. "Telecommunications" shall be defined as
the transmission, between or among points specified by the subscriber, of information of the sub-
scriber's choosing, without a change in the form or content of the information as sent or re-
ceived.
(ii) All payments made under the provisions of this division shall be made to the City
Finance Department and shall be due and payable on the first day of January of each year; pro-
vided, however, if the permit is issued for such space after the first day of January, the amount of
the initial payment shall be prorated from the day when such permit is issued to the first day of
January of the next year, and payment shall be due and payable on or before the first day of Jan-
uary thereafter. Any such rent shall become delinquent on the first day of January of each year,
and such delinquent rent shall draw interest at the rate which is the maximum legal rate of inter-
Exhibit A Page 8 of 9
est chargeable in the State of Nebraska under such circumstances, or at any lesser rate of interest
specified, if any in the permit.
SECTION H—COSTS TO BE PAID FOR PUBLIC USE PROVIDERS
(i) When the permittee is a telecommunications company offering telecommunica-
tions service for a fee and is using the public space for such purpose, the rental fee stated in sec-
tion G above shall not apply, but the permittee shall pay the City the following costs: So as to
prevent expense to the public for such private use of right-of-way, and to fully compensate the
public for all regulatory expenses resulting from such use, and in addition to the permittee paying
for all inspection, relocation and facility location costs mentioned above, the permittee shall
promptly pay the actual and reasonable costs of the City of all barricading, traffic detour or
warning signing or flagging not actually performed by the permittee and for all other actual and
reasonable direct expenses actually incurred by the City in regulating the permittee's use of pub-
lic right-of-way granted in this Agreement. "Telecommunications" shall be defined as the
transmission, between or among points specified by the subscriber, of information of the sub-
scriber's choosing, without a change in the form or content of the information as sent or re-
ceived.
Exhibit A Page 9 of 9
NO. ....,/.�7' 7
Resolution By
Res. that, the Communications Cable and
Facilities Agreement between the City of
Omaha and Alegent Creighton Health, as
recommended by the Mayor,providing for the
installation of communication cable in City
Right of Way is hereby approved. The
location of the communication cable will be
reviewed and approved by the Public Works
Department.
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z
Presented to City Council
44,
OCT 222013
Adopted '7 o
City Clerk