HomeMy WebLinkAboutQWEST COMMUNICATIONS RIGHT OF WAY DEED
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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
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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.
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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.
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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
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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;
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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;
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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.
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This 0/'" day of
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,2005.
Permittee:
Qwest Communications Corporation
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By: Colleen Lt#rig y i ~
Title: Director ofEngineenng
Augusta, Georgia
Title: Mayor
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SES Draft May 4. 2005
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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.
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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
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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
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Twenty-Four Thousand Two Hundred
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QWEST BUSINESS & GOVERNMENT SERVIC
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530 GREENE ST , RM 105
0100306785 II 1
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AUGUSTA
GA 30911
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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:
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