RES 2000-2515 - Agmt with Qwest Communications Corporation for installation of communication cables y sees.
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4 .� `� °�,� Public Works Department
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c��► � l�0�, Omaha/Douglas Civic Center
Jr l� 1 _« n l ! Ati II 1819 Farnam Street,Suite 601
� I•ArA '�► r,=a; September 12, 2000 U. 4 , Omaha,Nebraska 68183-0601
OA'F4•_ -.r.^. '*' (402)444-5220
(�/ JCITY tii( fir ' {� Telefax(402)444-5248
O�'TED FEBikV.a-L 3/dy y�.Tl, , "1`-(1 ir4 4` •
.5��' ti Don W.Elliott,P.E.
City of Omaha Public Works Director
Hal Daub,Mayor
Honorable President
and Members of the City Council,
The attached Resolution approves the Agreement between the City of Omaha and Qwest
Communications Corporation to allow the installation of a communications cable in the City of
Omaha. The initial installation will be in Union Pacific Railroad right-of-way with a street crossing
at 21 s` Street and Gilmore Avenue.
The entire cost•of the installation and maintenance of.the.system-will be paid for by Qwest
Communications Corporation.
The Public Works Department requests your consideration and,approval of the attached Resolution
and Agreement.
Respectfully submitted, Refe 'ty ncil for Consideration:
yodA:,„, --0 3
Don W. Elliott,P:E. Date Ma or's Office/Title COS ate
Public Works Director.i ..
Approved: This action has been reviewed and found to be
•¢• --in conformance with the Master Plan.
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Stanley P. Ti Date Steven N. Jensen, AIC Date
Acting.Finance Director Acting Planning Director
P:\PW\10927skz.doc
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AGREEMENT
• COMMUNICATIONS CABLE AND FACILITIES
THIS AGREEMENT is made and executed effective as of this 20th day of June, 2000,by and between Qwest
Communications Corporation,whose address is for notice purposes of this Agreement is Attn: Assistant Vice
President,Right of Way and Real Estate, 13952 Denver West Parkway, Suite 200, Golden, Colorado 80401,
("Permittee"),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:
I 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 system, as shown on documents to be added to this document 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 system referred to herein shall
consist of existing or future underground conduits, cables, wires, splicing boxes (including reasonable access thereto),
appropriate appurtenances (and where deemed appropriate suspended beneath roadway structures) and above ground
location markers, where practical.
2. Permittee shall secure all permits required to be issued by the appropriate City officials in connection with the
installation of the communications system 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 benefit 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.
Notwithstanding anything to the contrary, Permittee (or its successors and assigns) may assign, without any such
consent, all of its rights,title and interest here under to any successor entity (whether by merger, consolidation or sale
of substantially all of the assets of such entity)and to any subsidiary or affiliate of such entity.
4. This Agreement shall not be effective until the execution of this Agreement by the City has been approved by
resolution of its City Counsel.
5. Permittee and/or the contractors from time to time employed, used or hired to plan, construct or maintain said
communications system shall not, in the performance of the aforementioned work, discriminate or permit
discrimination in violation of race,color,sex,age,political or religious opinions, affiliations or national origin.
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 corporation entering into said contract with the City may render said
contract voidable by the City Council. Permittee is a subsidiary of Qwest Communications International, Inc.
("Parent") a publicly traded stock corporation in an open market; therefore, Permittee does not expressly or by
implication warrant strict compliance or adherence to Section 8.05 of the HRC. City recognizes and acknowledges
that ownership of less than controlling shares of stock of Parent 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 performance of this Agreement, neither party shall
be deemed to have waived any such rights.
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• 8. This Agreement, including the permits granted pursuant to it, encompasses the entire agreement binding upon the
parties. No representations were made or relied upon by either party in executing 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 writing and signed by an authorized officer of the respective parties hereto.
9. As to Section F of Exhibit "A",notwithstanding anything therein to the contrary,the City Clerk shall give written
notice of not less than thirty(30)days to provide Permittee the right and opportunity to cure any alleged default
within thirty(30) days after receipt of said notice from the City Clerk.
10. The parties agree,with respect to Section G of the attached Exhibit"A",to delete Section G and insert in lieu thereof.
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 under Section E hereof, the Permittee shall promptly pay the costs of the City of all barricading,
traffic detour or warning signing or flagging not actually performed by the Permittee and for all other direct expenses
actually incurred by the City in regulating the use of public right-of-way granted in this Agreement.
11. In lieu of the per block bond requirements set forth in Section D(i) of the attached Exhibit A, Permittee shall file with
the City a continuing bond in the amount of fifty thousand dollars ($50,000)to cover the terms of this Agreement, or
until Permittee is no longer operating its communications facilities within the City, whichever is sooner.
12. Subject to Section F of Exhibit "A" 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.
13. Any modifications to the attached Exhibit "A" made by the City will be made by Resolution of the City Council, at a
public hearing as provided by law. The City acknowledges that any modifications made to the attached Exhibit "A"
shall be in conformance with applicable state and federal law and that all telecommunications providers shall be
treated on a competitively neutral and nondiscriminatory basis.
City o f Qwest Communications Corporation
By: ®ou/ie By: anArz.,
Name: J t aDA, Name: _ L. . l�eS
Title: Okkiv Title:4-5S 1 S U I c 2 1 Ak5
ATTEST:
City Clerk •- APPROVED AS TO FORMA:
DEPUTY CITY ATTORNEY
• • CITY OF OMAAA
NOVEMBER 1986 .
* REVISED OCTOBER 1990
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, sidewalk or other public ground
within the City of Omaha for the installation, operation, and
maintenance of any underground ,fiber optic cable, coaxial
cable, or any other communication 'cable, line or appurtenance,
unless such person has received a permit therefor 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 franchise
granted by the City for telephone or cable communications
purposes wherein general telephone service or communication, •
including television, is provided: to the inhabitants of the
City.
•
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
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cable or other facilities being installed . In addition •
thereto , the Permits and Inspections Division or the Public
Works Department may request such additional information as
they deem reasonably appropriate : for their determination or
that of the City Council with reference to such application.
All such applications a request for which there is no agreement
in effect conforming to this policy and these specifications
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 Department.
(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 produced to a •scale of one inch equaling
fifty feet. 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 licensed
professional engineer, must also 'be submitted to the Public
Works Department on microfilm aperture cards . Updated route
maps and required drawings must be : provided to the Public Works
Department whenever a change is •made to the approved cable
placement.
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Section C . . Construction Specifications .'
(i) The work shall be constructed in accordance with
plans and specifications approved by the Public Works
• Department. All excavations in public streets shall comply
• with Article II of Chapter 34 of, the Omaha Municipal Code, •
except that the provisions concerning bonds contained within
this division shall control . Where the cable is located
beneath the pavement in the Central Business District and on
i all major traffic streets and arterial streets , the minimum
depth from the top of the cable_ to the surface of the ground
shall be thirty inches . Cable ;buried beneath residential
streets shall have a minimum depth of twenty-four inches . In
no instance shall cable be buried to a depth of less than
twenty-four inches . Cables buried beneath the nonpaved
portions of street right-of-way shall have a depth of at least
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 condition specified in the permit, 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
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• 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 application a continuing bond in the sum of riot less than
ten thousand dollars ($10,000) per city block - for the first
three years following installation, and two thousand dollars
($2,000) per city block thereafter, with such surety as the
City may approve, but in the event .that the City Council in the
Resolution authorizing the initial ',permit shall fix a different
sum, then a bond for such sum so fixed shall be substituted and
filed with the, application and control these specifications .
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, all
appropriate 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 gross
. 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 completion of the work be
safe for public use; for the full and complete protection of
the City against 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 facility 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,
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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 five hundred thousand
dollars ($500 ,000) for the injury; or death of any number of
persons per occurrence, and one hundred thousand dollars
($100 ,000) for property damage per occurrence. Such coverage
shall name the City of Omaha as an additional insured, as its
interests may appear, for all acts' and omissions of Permittee,
it agents and contractors arising out of or in any way
connected with the permit and their use and occupation of
public right-of-way. All such policies and certificates of
insurance shall be issued by companies authorized to do
business in the State of Nebraska :and shall be approved as to
form by the City of Omaha I.aw Department before the
commencement of such use and provide that any such policy
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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 insurance will
automatically revoke any permit issued pursuant to this
division.
•
Section E . Interference with Other Public . Facilities ,
Relocation , Identification of Communications Cable.
•L
(i.) No person, whether permitted under this division
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 utilities 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 division 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 inspection costs , whether the same are part of the
initial installation or the relocation of either the
permittee' s facilities or those belonging to the City or any
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other utility service .
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(iii) In addition thereto., all permits governed by these •
specifications are granted subject 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 District, or any other- publicly
owned body, the facilities of the• applicant, must be relocated
within a • easonable time, not to exceed sixty (60) days from
written demand for the same, in order to reasonably 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 allow
relocation of the cable and other appurtenant facilities and to
assess and collect the 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 other persons permitted to do work in the street
.right-of-way, detailed and accurate information concerning the
location, 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.
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(v) The permitcee, •. ics appropriate heirs , successors
and assigns , shall at all times remain responsible 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 pe'mictee'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 division may be revoked .
by Resolution of the City Council upon a finding by the Council
of such fact and giving of five (5) days ' written notice to
such person by the City Clerk, for the following reasons :
•
a) Failure of the permittee to pay the compensation
required within ten t10) days after the payment
due date;
b) Failure or neglect of 'the permittee to comply with
the 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;
c) Failure to use the space for which the permit was
granted for a continuous period of at least one
(1) year.
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• (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 right-of-way. Such relocation work
shall be accomplished by the permit holder at its costs within
the time frame specified in Section E (iii) hereof.
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Section G. Rental Fee for Space . .FAc..' )-t'e.S
(i) The permittee shall pay to the City an - .nual
ren 1 for the use and occupancy . of the space benea said
publi • street, alley, sidewalk or other public group• occupied
by such use, which rental shall be the sum of on- dollar and
eighty c-nts ($1. 80) per lineal foot of s ►ace occupied
underneath he public street, alley, sidewalk •r other public .
ground; provi.ed however, that the permit - e shall receive
credit against ch annual rental for all s -ms paid to the City
•L
of Omaha as an •occupation tax on cou•.unications under the
provisions of Artic - VI of Chapter I' of the Omaha Municipal
Code. f
(ii) All payments m- .e under the provisions of this
division shall be made to the ty .Finance Department and shall
be due and payable on the • irsc day of January of each year;
provided, however, if the (permit is 'ssued for such space after
the first day of Janus., , the amoun of the initial payment
shall be prorated fro• the day when su. h permit is issued to
the first day of Jan -ry of the next year, and payment shall be
due and payable ••n or . before .the firs . day of January
thereafter. Any - ch rent shall become delinq -nt on .the first
day of January of each year, and: such delinqu- .t rent shall
draw interest at the rate which is the maximum 1- : al rate of
interest c -rgeable in the State of Nebraska u .er such
circumstan•es , or at any lesser rate of interest speci 'ed, if
any, in e permit . •
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• Exhibit B p. 3 of 3
Linear footage of Qwest's fiber system in City Right of Way:
Location Distance
Gilmore Avenue 35 linear feet
t l
•
C-25A CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebr September 12, 2000 *.
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, Qwest Communications Corporation proposes: to install
communication cables in the City of Omaha; and,
WHEREAS, an Agreement.has been prepared-setting the procedures,to be followed
- for the installation of same.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE'
CITY OF OMAHA:
THAT, the Agreement between the City of Omaha and Qwest Communications
Corporation, as recommended by the Mayor, allowing for the installation of communication cables
within the City of Omaha is hereby approved.
APPROVED TO FORM:
CITY ATTORNEY DATE
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Adopted :Epa 2 2000
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