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HomeMy WebLinkAboutQWEST COMMUNICATIONS RIGHT OF WAY DEED -"..-!I AUGUSTA, GEORGIA UNDERGROUND RIGHT-OF-WAY PERMIT Permission is hereby granted by Augusta-Richmond County, Georgia (now known as Augusta, Georgia and hereinafter referred to as "Augusta") to Qwest Communications Corporation (hereinafterrefelTed to as "Permittee") to make excavation into the rights-of-way of the streets listed below, under the terms and conditions set forth in this permit. 1. Term. This permit shall be valid for a period of fifteen (15) years beginning January 1, 2006 and for the period in 2005 beginning May 3, 2005 through December 31, 2005 unless notice of the intent to cancel is provided by Permittee to Augusta no later than sixty (60) days prior to expiration of the then-current term, subject to the City's right to adjust the fee for such Permit. 2. Rights not exclusive. Nothing contained in this Permit shall ever be held or construed to confer upon Permittee, its successors and/or assigns, exclusive rights or privileges of any nature whatsoever. 3. Conditions of Use. a. Prior to beginning any work in any public streets or rights of way, Permittee shall submit detailed engineering drawings to the Augusta Engineering Department for approval and obtain from the Augusta Engineering Department, the Augusta License & Inspection Department and any other Augusta Department for any permit.;; which may be required by Augusta or any other governing authority for the installation of a total of 36,435 linear feet of fiber optic cable in two (2) routes under the authority of this Permit as is more specifically described in this Permit in Section 4(b). Permittee is further required, before beginning any excavation in a right-of-way, to contact all applicable utility companies for location of buried cable, water services or mains, gas lines, and the like. All construction allowed under this Permit shall be accomplished under the supervision and direction of the Engineering Department, or such other offices as Augusta may designate. Permittee shall not unnecessarily obstruct or impair traffic upon any street, road or other public way of Augusta and shall comply with all of Augusta's rules and regulations designed to prevent damage to trees and shrubbery on or adjacent to such public streets or rights of way which may be caused its installation of System hereunder. b. Upon making an opening in any public way, street, sidewalk or road as authorized by this Franchise for the purpose of laying, constructing, repairing and/or maintaining said System, Permittee shall, without unnecessary delay, replace and restore same to its former condition as nearly as possible, and in full compliance with the provisions of Augusta's policies, rules, regulations and/or ordinances. Permittee shall re-sod disturbed grassed areas and replace all excavated areas to their original or better condition in order to minimize the disruption of public property. Permittee shall, at its sole cost, repair paving cuts in a good and workmanlike manner to specifications outlined by the Engineering Department. c. Permittee shall provide safe passageway for pedestrians and vehicles through, in and around the work site areas. Work shall be performed at night, if requested by I Augusta, so as not to impede regular business traffic. Permittee shall use directional boring in all areas where possible unless otherwise required or approved by Augusta. Permittee shall meet all local and State requirements for traffic control and notify Augusta at least 24 hours prior to the commencement of work or the accessing of Augusta conduit, except in cases of emergency. d. Permittee shall not cut or install any ditches or trenches within the root zone of any tree but rather shall bore under the same unless written permission to do otherwise is provided in advance by the Augusta Engineering Department or its designee. e. In all sections of Augusta where the cables, wires or other like facilities of public utilities are placed underground, Permittee shall place its cable, wires or other 'like facilities underground to the maximum extent that existing technology reasonably permits Permittee to do so; provided, however, where Augusta's ordinances require stich facilities to be placed underground, nothing herein shall be deemed a waiver of such requirement. f. Permittee shall file with the Augusta-Richmond County Engineering Department true and correct maps or plats of all existing and proposed installations and the types of equipment and facilities installed or constructed, properly identified and described as to the type of equipment and facility by appropriate symbols and marks and which shall include annotations of all public ways, streets, road and conduits where the work is to be undertaken. Maps shall be drawn in a scale and in such detail so as to allow proper review and interpretation by the Engineering Department, and the same will be filed with Augusta not less than ten (10) working days before any excavation or installation of said cable or equipment or facilities commences. g. If, at any time during the term of this Permit or any extension thereof, Augusta shall lawfully elect to vacate, relocate, abandon, alter, reconstruct or change the grade of any street, sidewalk, alley or other public way including any related drainage and utility areas, Permittee, upon reasonable notice from Augusta, shall remove, relay and relocate its wires, cables and other fixtures and equipment at its own expense and within reasonable time schedules established by Augusta. Should Permittee refuse or fail to remove its equipment or plant as provided for herein within 45 days after written notification, and should such failure result in a danger to the public or cause a delay in a public project, Augusta shall have the right to do such work or cause it to be done and the full cost thereof shall be chargeable to the Permittee, or in the alternative, to consider such failure by the Permittee to remove its equipment or plant as abandonment of all ownership rights in said property. h. Permittee shall keep Augusta fully informed as to all matters in connection with or affecting the construction, reconstruction, removal, maintenance, operation and repair of Permittee's System installed hereunder. Permittee shall report to Augusta such other. information relating to the Permittee as Augusta may consider useful and shall comply with Augusta's determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made under oath. Augusta may at any time make inquiries pertaining to Permittee's operation of its System within Augusta. Permittee shall respond to such inquiries on a timely basis. 2 i. Permittee shall install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of all applicable Augusta codes, ordinances and regulations, and in such a manner that they will not interfere with any existing installations of Augusta or of a public utility serving Augusta. 4. Permit specifications; Payment a The rights-of-way granted herein by this Permit are in addition to the rights of occupancy in Augusta's right-of-way heretofore granted in a Permit dated October 29, 1998 and a First Amendment thereto dated August 21, 2001. b. The right-of-way occupancy permitted by this Permit shall be 36,435 feet of Permittee's System, to be installed in the rights-of-way of the following streets and roadways: 6th Street Hale Street Twiggs Street Martin Luther King Blvd. and Milledgeville Road as is more particularly shown on a drawing attached to this Permit, as Exhibit "A". c. The granting of this permit is conditioned upon the payment by Permittee to Augusta of the additional sum of $34,500.00 annually (which is in addition to the payments made under the existing Permit dated October 29, 1998 and the Amendment thereto dated August 21, 2001), and which represents the additional number of linear feet of Permittee's System to be installed in the rights-of-way of Augusta pursuant to this Permit according to the following formula: Permittee shall pay the Georgia Department of Transportation (hereinafter referred to as "GDOT') urban per mile rate of $5,000.00 annually as presently set forth in the GDOT Regulations at Section 672-11-.03 which are incorporated herein by reference. The rate herein is indexed to said GDOT urban rate and is subject to being recalculated on January 1,2006 for the year 2006 and on a like date each year thereafter through the last year of this Permit. If changes are made in the GDOT rate incorporated herein by reference, the rate of charge shall be adjusted by a like amount as of January 1st next following. The minimum annual payment shall be at the rate computed in Section 4( d) and shall be paid annually on or before January 31st of each year which is Permit is in effect. All payments shall be computed to the nearest one hundredth (1/1 00) of a mile as is set forth in the GDOT formula incorporated herein by reference. d. The annual payment for the primary route for the calendar year 2005 is $17,200.00 which as prorated from May 3, 2005 is $12,112.00; the annual payment for the secondary route for the calendar year 2005 is $17,300.00 which as prorated from May 3, 2005 is $12,153.00. Said prorated payments to Augusta shall be remitted on or before June 30, 2005. 3 Said payment being in the total amount of $24,265.00. In the event that Permittee's payments are not timely made, a ten percent surcharge shall be due and payable to Augusta. e. Annual payments for all of Permittee's system shall be due and payable on or before January 31 st of each year commencing for the year 2006 and shall be due and payable at a like date each year during the term of this Permit. In the event that Permittee's payments are not timely made, a ten percent surcharge shall be due and payable to Augusta. f. The total annual payment for the primary route for 2006 shall be $17,200.00 and the total payment for the secondary route shall be $17,300.00 and the total payment for both routes shall be $34,500.00. The payments set forth herein are the minimum annual payments due Augusta as computed under the GDOT rate in effect on the date of the approval of this Permit by the Augusta Commission. In the event the GDOT rate is adjusted to a higher rate, the Permittee agrees to pay such additional charge as required to pay said increased rate which shall be effective in the calendar year next following the year in which the GDOT increase is made effective. 5. Safety Requirements. a Permittee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injury to the public or to constitute a nuisance. Permittee shall install such equipment and employ such personnel to maintain its facilities so as to assure efficient service, and shall have the equipment and personnel necessary to make repairs promptly. b. Permittee shall install and maintain its System in accordance with the requirements of applicable building codes and regulations of Augusta and the statutes and regulations of appropriate Federal and State agencies, including but not limited to the Federal Communications Commission and the U.S. Army Corps of Engineers, which may now be in effect or enacted, and in such a manner that will not interfere with any installations of Augusta or of any public utility serving Augusta. c. Permittee's System, wherever situated, or located, shall at all times be kept and maintained in a safe, operating condition and in good order and repair. 6. Liability and Indemnification. a. By acceptance of this Permit, Permittee agrees that it shall indemnify, protect and hold forever hannless Augusta, its elected officials, officers, agents, representatives and employees, and their successors, legal representatives and assigns, from any and all claims of every kind and nature whatsoever, and from liabilities, losses, costs, judgments, penalties, damages and expenses, including reasonable attorney's fees and expenses of litigation incurred in the defense of any such claim arising out of or relating to the installation, operation or maintenance by the Permittee of the Permittee's System or the Permittee's failure to perform any of the obligations of this Permit, including but not limited to claims for injury or death to 4 any person or persons, or damages to any property, as may be incurred by or asserted against Augusta, its elected officials, officers, agents, representatives and/or employees, directly or indirectly, by reason of the installation, operation or maintenance by the Permittee of the Pennittee's System within Augusta. Pemlittee shall pay, and, by acceptance of this Permit, the Permittee specifically agrees that it will pay all damages and penalties which Augusta may legally be required to pay as a result of installation, operation or maintenance by the Permittee of the Permittee's System or the Permittee's failure to perform any of the obligations of this Permit. These damages or penalties shall include, all damages arising from the installation, operation or maintenance of the System authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this Permit, and Augusta shall not be responsible in any manner for any damage to the System and which may be caused by Augusta's employees or other persons regardless of the cause of damage. b. Permittee shall pay, and by its acceptance of this Permit, specifically agrees that it will pay, all expenses incurred by Augusta in defending itself with regard to all damages and penalties mentioned in subsection (a) above. These expenses shall include all out-of-pocket expenses, including reasonable attorneys fees and expenses oflitigation. c. Permittee shall maintain, and by its acceptance of this Permit, specifically agrees that it will provide throughout the term of this Permit, workers compensation insurance in such amounts of coverage as required by the State of Georgia and liability insurance coverage with regard to all damages mentioned in subsections (a) and (b) above in the following minimum amounts, whichever is greater: 1. General Liability Insurance - public liability including premises, products and completed operations. (a) Bodily injury liability $1,000,000 each person $2,000,000 each occurrence (b) Property damage liability $1,000,000 each occurrence, (c) Or, in lieu of (a) and (b) above, bodily injury and property damage - $2,000,000 combined single limit. 2. Comprehensive - Automobile Liability Insurance including owned, non-owned and hired vehicles. (a) Bodily injury liability $1,000,000 each person $2,000,000 each occurrence, (b) Property damage liability $1,000,000 each occurrence, (c) Or, in lieu of (a) and (b) above, bodily injury and property damage $2,000,000 combined single limit. d. Permittee agrees that all insurance contracts providing any of the above required coverage will be issued by one or more insurance carriers duly authorized to do business in the State of Georgia and will contain the following required provisions: 1. Augusta, its elected officials, officers, agents, employees and representatives shall be named as additional named insureds (as the interests of each may appear) as to all applicable coverage; 5 2. All such contracts shall provide for thirty (30) days notice to Augusta prior to cancellation, revocation, nonrenewable or any material change; 3. All "deductible amounts" contained in all such contracts providing such insurance coverage shall not exceed $10,000 in the aggregate; and 4. The notice required by this Section shall be delivered to the person specified hi Section 10 herein by certified mail, return receipt requested. The amount and conditions of said liability and comprehensive insurance may be increased upon 60 days written notice by Augusta should the protection afforded by this insurance be deemed by Augusta to be insufficient for the risk created by this Permit. At no time, however, will any such increase in the amount of required liability and comprehensive insurance exceed that which is customarily required of other franchises or contractors of services for similar situations of risk. e. Permittee shall funllsh Augusta at least annually (and at such other times as may be reasonably required by Augusta) a certificate from the insurance carrieres) providing such insurance coverage certifying that such coverage is in full force and effect. Such certificates shall be in such form as is approved by Augusta and shall contain a provision requiring not less than 30 days notice to Augusta prior to cancellation, non-renewal or any material change. 7. City rights in Permit. a Permittee shall construct, maintain and operate said System in such locations as may be reasonably required by Augusta, and will at all times comply with all reasonable requirements, regulations, laws and ordinances now in force, and which may hereafter be adopted by Augusta and be applicable to the construction, repair or maintenance of said system or use of Augusta-owned rights-of-way. Failure of the Permittee to comply with any of the terms of this Permit or failure to pay the Permit fees prescribed by this Agreement shall be cause for Augusta to revoke this Permit. Without limiting the generality of the foregoing, Augusta also reserves the right to terminate and cancel this Permit and all rights and privileges of the Permittee hereunder in the event that the Permittee: (1) violates any rule, order or determination of Augusta made pursuant to this Permit, except where such violation is without fault or through excusable neglect; (2) becomes insolvent, unable or unwilling to pay its legal debts, or is adjudged a bankrupt; (3) attempts to evade any of the provisions of this Permit; (4) practices any fraud or deceit upon Augusta; or (5) fails to begin construction of its System within one hundred eighty (180) days from the date this Permit is granted and to continue such construction without unreasonable delay or interruption until completed. b. Augusta's right to revoke this Permit may be exercised only after written notice of default and a 30 day period for Permittee to cure such default except for any act of default involving the payment of money or failing to provide any insurance coverage required hereunder in which event said 30 day period shall be reduced to three (3) business days. The right is hereby reserved to Augusta to adopt, in addition to the provisions contained herein and in existing applicable ordinances, such additional regulations of general application to all similarly situated permittees as it shall find necessary in the exercise of its police power; 6 provided, that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein gnmted. 8. No right to transfer or lease. Permittee shall not transfer this Permit to another person without prior written approval of Augusta. This provision shall not be construed as requiring Augusta's approval of secured financing arrangements. 9. Notice. For the purpose of giving notice as provided for in this Permit, the following addresses are provided: Permittee: Qwest Communications Corporation 700 West Mineral Avenue Littleton, Colorado 80120 Attention: Right-of-Way & Franchising Augusta: Augusta-Richmond County Commission Eighth Floor, Municipal Bldg (11) 530 Greene Street Augusta, Georgia 30911 Attention: Administrator and Qwest Communications Co~oration 1801 California Street - 52" Floor Denver, Colorado 80202 A TTN: General Counsel Unless Augusta is notified in writing to the contrary, the placing of notices in the United States Mail addressed to the Permittee as set forth above by registered or certified mail, return receipt requested, shall constitute compliance with the provisions of this Section. 10. Miscellaneous. If any section, subsection, sentence, clause, phrase or portion of this Permit is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, independent, and severable provision and such holding shall not affect the validity of the remaining portions hereof. This Permit shall be interpreted and construed in accordance with the laws of the State of Georgia. All claims, disputes and other matters in question between the Permittee and Augusta arising out of or relating to this Permit, or the breach thereof, shall be decided in the Superior Court of Richmond County, Georgia. The Permittee, by accepting this Permit, specifically consents to venue in Richmond County and waives any right to contest the venue in the Superior Court of Richmond County, Georgia WHEREFORE, this Permit has been authorized by the Augusta-Richmond County Commission in open meeting of May 3, 2005 and the Commission has caused this Permit to be executed by the Mayor of Augusta-Richmond County and attested by its Clerk and the Permittee has accepted the terms and conditions of this Permit as evidenced by its corporate presents which have been executed by and through its authorized officers and the seal of the corporation affixed. 7 This 0/'" day of !YJ 11 {/ ( ,2005. Permittee: Qwest Communications Corporation ~ By: Colleen Lt#rig y i ~ Title: Director ofEngineenng Augusta, Georgia Title: Mayor A~~~ l/tA... /, SES Draft May 4. 2005 F: \ UserslSShepardlSTEVEICITYI Underground right-ai-way permit.2005,doc 8 r ~ D :I . ' o ,g ~g- l:i ::r: ~ '-JCZp"O o (1) 8'"1. .....0 ~ 0, ;;:; is. ~ O~~ ~ ~ 10 ~ 0 (1) ~ S. I s:: (1) (tl I -a ~ (D 0.. (JQ (1) ~ (D ~ tl:itrl (1) ::; (JQ 0.. 5' tj (')0 ::;.' ..., ~~ VJ -- 0\ 00 00 ~N';..... VJ ..j::.. 00 Vl 00 -....J ~~~ ~~~ tl:itrl (1) ::; (JQ 0.. 5' (') tj ::;.' 0'< ...,~ ~ ~ ~ 10 ~ (1) tI> ..... (') ~ - O\c s-::; (/13 ;+ ~ ~!: (1) 0.. EXHIBIT "A" > ~ ~ 00 ~ ~ -.. o > I n ""'"'" . ~ '-< o ~ > ~ (Jq ~ 00 ~ ~ .- ~,<c--"'--'---""'_ j, ,~, . ::.::'~ AUGUSTA-RICHMOND COUNTY COMMISSION /~ STEPHEN E. SHEPARD BOB YOUNG Mayor STAFF ATTORNEYS Vanessa Flournoy Harry B. .James, m Betty Beard Marion Williams Barbara Sims Richard Colclough Bobby G Hankerson Andy Cheek Tommy Boyles Jirrrmy Smith Wrn. "Willie" H. Mays, III Don A. Grantham County Attorney Augusta Law Department Wm. "Willie" H. MayS, m Mayor Pro Tem Frederick L. Russell Administrator TO: Donna Williams, Accounting Department Stephen E. Shepard ~ June 1,2005 Reply to: 701 Greene Street, Suite 104 Augusta, Georgia 30901 FROM: DATE: RE: Qwest Communications Corporation Please find enclosed a check (no. 0100306785 in the amount of $24,265.00) from Qwest Communications for payment of an underground permit. SES:lmb Enclosure cc: Lena Bonner, Clerk of Commission F: \UsersISShepardlSTEVEICITY\ciry.2005.doc Augusta Law Department 501 Greene Street, Suite 302. Augusta, Georgia 30901 (706) 842-5550 - Fax (706) 842-5556 County Attorney 701 Greene Street, Suite 104, Augusta, Georgia 30901 (706)724-6597 - Fax (706) 722-4817 " Qwest Communications Corporation 700 West Mineral A venue H26.17 Littleton, CO 80120 J.L Shives Manager of Engineering Right-Of-Way & Franchising (303) 707-7472 Qwest@ Via UPS RECEIVED MAY 3 1 2005 COUNTY ATTORNEY 27 May 2005 Mr. Steve E. Shepard, esq. County Attorney - Augusta 700 Green Street - Suite 104 Augusta, GA 30901 Re: Qwest Communications Corporation's Underground Right of Way Permit Dear Mr. Shepard: Attached is our check number 0100306785 in the amount of $24,265.00 as full payment for the calendar year 2005. We aooreciate vour assistance and suooort in comoletina this aareement. If vou . . .I I I ...., """ '" have any questions or concerns please contact me at the above noted address and telephone number. Sincerely, ~J-~ J. L. Shives cc: Gary Hunt - acc George Stokes - acc ~~-] J ,_ ~J I ~ ~.--1 1---- L_,_~J c.::~ ~ c;;~ J 1- .., '--'- ~.=~~ '.:~~=,~ S2021 ..,.;' (:. ~); '" ! ;:;:~:, ~ ,; ~ ) _'u .,:v,~!:, ,_, ' ::_~.t~ ~~: Z;': ;=~~~~~ t t~r~~'t.~tQ Twenty-Four Thousand Two Hundred Remove check along this pertoration t QWEST BUSINESS & GOVERNMENT SERVIC ... - -". ...... ."-'" . ...... ,... ... .. ...- -- " ' , .,... ... ... .-- . .,....-.. -...'.... .............'"'..,', .... .... ....., - , AUGus'fAtR:fCHMOND COUNTY ACCOUNTlfiG<DEPT 530 GREENE ST , RM 105 0100306785 II 1 OS/2012005 NO. ~ n~'~J.#F~~.oo .11 ."QIt......'.'...fJ'. '......,.." t..~ . :1 wes · J Solrlt of Ssrvlcs- :1' AUTHORIZED ~IGNATURE 1 " ;1 :1 '1 , I' /{ .'j 1 DATE: AUGUSTA GA 30911 1110 .00 :l 0 (; 78 5 III 1:0(;...2788': 3; 2 ~ ~ 0 2 7 0 ~ 7 III --,.,.. -='., -=--=- " . ._- --! _...:..1 l--~-~ _ _ ..::::i !---~ ~--_! ~-: ~- :=-1 - - --_.---, .- -I -' L- ~. - '~~f \,-" RESOLUTION RESOLUTION AUTHORIZING THE GRANTING OF A RIGHT-OF-WAY PERMIT TO QWEST COMMUNICATIONS. WHEREAS, Qwest Communications has requested two new right-of- ways through the City streets of Augusta and Augusta will realize new revenues from the granting of two new right-of-way permits indexed to the Georgia Department of Transportation per mile franchise fees; NOW, THEREFORE, BE IT RESOLVED that the Mayor is authorized to execute an Underground Right-of-Way Permit agreement with Qwest Communications for a fifteen (15) year period on the terms and at the rates set forth in the specimen Permit attached hereto as Exhibit "A". ADOPTED, this ~rtt day of May, 2005. Augusta, Georgia ~~ By:~J-o ATTEST: ~if/~ Cl rk