HomeMy WebLinkAboutResolution - 2001-R0211 - Contract Agreement - Touch America - 06/14/2001Resolution No. 2001-RO211
June 14, 2001
Item 37
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock an Agreement between the
City of Lubbock and Touch America to relocate and maintain telephone lines, and any
other related documents. Said Agreement is attached hereto and incorporated in this
Resolution as if fully set forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 14th
ATTEST:
O r�
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
Ed Bucy, Right -of -Way gent
APPROVED AS TO FORM:
Linda L. Chamales
Supervising Attorney/ Office Practice
LLC:ke/ccdocs/TouchAmerica..res
June 5, 2001
day of June , 2001.
JUN -M-201 MUN 1 U : U3 HCl JUDE UUKr
MA NU, 4Uti lbb4bU ! r, U4
Resolution No. 2001-RO211
June 14, 2001
Item No. 37
AGREEMENT TO RELOCATE AND MAINTAIN FIBER OPTIC CABLES
THIS AGREEMENT TO RELOCATE AND MAINTAIN FIBER OPTIC
CABLES, made this 14th day of June , 2001, subject to the terms and
conditions set forth herein, between the City of Lubbock, Lubbock International Airport,
located at 5401 N. MLK Blvd, Lubbock, Texas 79403 (herein called "City"), and Touch
America (hereinafter called "Utility Comp"any")
WHEREAS, the City of Lubbock desires to construct a rail spur to provide access
from Burlington Northern Santa Fe Railroad mainline to the proposed Interport Trade
Center at the Lubbock International Airport; and
WHEREAS, said construction activities will require certain adjustments, and/or
relocation of the existing facilities of FIBER OPTIC CABLES; and
WHEREAS, the parties desire to allocate the costs and responsibilities for
relocation of the existing facilities and maintenance of the relocated facilities across and
along the rail spur corridor;
NOW, THEREFORE, the parties hereto, for the consideration hereinafter expressed do
covenant and agree as follows:
Subject to the terms and conditions hereinafter set forth City grants permission for
Touch America to relocate, constrict and maintain two FIBER OPTIC CABLES
across and along the rail spur corridor at or near rail spur centerline station 42+60 and
station 43+42 in the north and south ditch lines of FM 1294, the location being more
particularly shown in Exhibit A and made a part hereof.
2. This agreement shall be effective June 14, 2001 , and shall continue so long as
City maintains the rail spur facility in this location.
3. Touch America agrees to acquire all required rights-of-way for the relocation of the
FIBER OPTIC CABLES_ City agrees to reasonably cooperate with Touch America
to make application for and obtain all necessary permits, licenses or grants of any
nature whatsoever required or imposed by any governmental body or other party with
respect to the FIBER OPTIC CABLES to be installed or relocation.
4. Touch America agrees to relocate the FIBER OPTIC CABLES in accordance with
applicable pipeline industry and railroad industry (AREMA) specifications, in a
manner satisfactory to City, and without interference with other structures now in
place_
City agrees to reimburse Touch America for reasonable costs and expenses, incurred
in a one-time relocation of the existing facilities, (including, but not limited to labor,
materials, and supplies, handling and storage charges, subcontractors, transportation
Utility Relocation & Maintenance Agreement
Page 1
JUN -U4-201 MUN 1U:33 All JUDE UUN? ?AX NU, 4Ub(bb4bU( Y, Ub
and equipment, preliminary engineering, construction engineering and inspection,
permit fees, taxes and overheads), which costs have been estimated to be
$ 8,500-00
a. Should the costs of the work materially exceed preliminary estimated cost,
due to conditions not known or anticipated at the time of the estimate
preparation, and/or substantial change in the scope of work, method of
installation, change in location, or other changes of similar nature have
taken place, Touch America shall notify City in writing of such fact and
the reasons therefore as promptly as possible and cease work until advised
by the City to continue.
b. Following completion of the relocation, Touch America shall submit a
final invoice detailing all direct and indirect costs incurred by Touch
America in installing the FIBER OPTIC CABLES. Touch America shall
maintain records verifying cost incurred for a period of two years and shall
provide said records to the City for review if requested.
If the relocation is not performed in accordance with applicable pipeline
industry and railroad industry (ARMEA) specifications, in a manner
satisfactory to City, or if it is placed in an unsatisfactory location, costs for
adjustments to the relocated utility shall be the responsibility of Touch
America.
d. By agreeing to or by abandoning, relocating or modifying any of its
FIBER OPTIC CABLES pursuant to this Agreement, Touch America shall
not thereby be deemed to have abandoned, modified, released, or
otherwise destroyed any of its rights existing at the time of the execution
of this Agreement under valid and subsisting public or private right-of-
way easements granted to or otherwise vested in the Touch America
unless Touch America shall have released same by written instrument. All
FIBER OPTIC CABLES relocated by Touch America will continue to be
owned and operated by Touch America.
6. Touch America agrees at its own cost and subject to the supervision and control of
City, to maintain the FIBER OPTIC CABLES in such a manner and to construct of
such material that it will not at any time be a source of danger to or interference with
the tracks, roadbed or rail corridor of City or the safe operation of the railroad.
a. Touch America will perform any maintenance or repairwork in such a
manner to preclude damage to the property of City and preclude
interference with the operation of the railroad spur. After performing
maintenance Touch America shall at its own cost restore City's premises
to their former state and within fifteen (15) days pay City the entire cost
incurred by City in providing flagmen protection or any other means of
Utility Relocation & Maintenance Agreement
Page 2
JUN -04-2001 MON 10:34 RM JUDE CORP h'AX NO. 4Ub (bb4bU'( F. Ub
protection which, in the judgment of City may be required during the
maintenance of the FIBER OPTIC CABLES.
b. Touch America assumes, and agrees to defend, indemnify and hold City
harmless from and against all loss, costs, expenses (including attorneys'
fees), claims, suits and judgments whatsoever in connection with injury to
or death of any person(s) or loss of or damage to any property caused by
or in any way connected with the installation, maintenance, use, presence,
reconstruction, relocation, renewal or removal of FIBER OPTIC
CABLES, except when caused by the sole fault or negligence of City.
When the railroad spur is in active use, Touch America will provide or
require all contractors employed for any construction, repair, maintenance,
replacement or removal to procure and to maintain during the course of
such work at Touch America or contractor's expense, a policy of
Commercial General Liability (CGL) Insurance and .11a lkmaad Protective
Liability (RPL) Insurance covering liability assumed by Touch America
under this Agreement with a coverage limit of not less than two million
dollars ($2,000,000) Combined Single Limit per occurrence for bodily
injury and property damage and at least six million dollars ($6,000,000)
aggregate limit during each annual policy period
d_ If at any time after being given timely notice, Touch America shall, in the
judgment of City, fail to perform properly its obligations under this
paragraph, City may, at its option, arrange for the performance of such
work as it deems necessary for the safe operation of its railroad, and in
such event Touch America agrees to pay, within fifteen (15) days after bill
is rendered therefor, the cost incurred by City. Failure on the part of City
to perform the obligations of Touch America shall not release Touch
America from liability for any loss or damage occasioned thereby.
7. Touch America agrees to comply with all federal, state and local environmental laws
and regulations in its use of the rail spur, including, but not limited to the Resource
Conservation and Recovery Act, as amended (RCRA), and the Comprehensive
Environmental Response, Compensation and Liability Act, as amended (CERCLA).
a. Touch America will not release or suffer the release of oil or hazardous
substances, or cause the sudden or nonsudden pollution of air, water, Iand,
and /or groundwater on City's rail. corridor arising from or in connection
with the FIBER OPTIC CABLES or resulting from any chemical or
electronic reaction caused by transmission in or over Touch America's
FIBER OPTIC CABLES. Touch America agrees to assume responsibility
for the investigation and cleanup of such release and shall indemnify and
defend City and it agents for all costs and claims, including consultant and
attorney fees, arising in any manner out of such a release or with Touch
America's failure to comply with environmental laws, except to the extent
Utility Relocation & Maintenance Agreement
Page 3
JUN -04-2001 MON 10:34 AM JODE CORP FAX N0, 4067554607 P. 0-1
such costs or claims are proximately caused by City's gross negligence or
intentional misconduct.
b. Touch America will give City timely notice of any release, violation of
environmental laws or inspection or inquiry by governmental authorities
charged with enforcing environmental laws with respect to City's rail
spur. Touch America will also give City timely notice of all measures
undertaken by or on behalf of Touch America to investigate, remediate,
respond to or otherwise cure such release or violation.
$_ This Agreement shall be governed by the Laws of the State of Texas.
9. If any part, section or paragraph of this Agreement is determined to be invalid, illegal,
or unenforceable, for any reason, such determination shall not affect the validity,
legality or enforceability of all other parts of this Agreement.
10. Unless otherwise so designated in this Agreement, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors, and assigns.
11. This Agreement is the full and complete agreement between the parties with respect
to all matters relating to the relocation and/or maintenance of the FIBER OPTIC
CABLES, and supercedes all other agreement between the parties on this subject.
IN WITNESS WHEREOF, the parties have executed this agreement in duplicate on the
day and year first above written.
' • •�
ATTEST:
Re ecca Garza, City Secretar
APPROVED AS TO CONTENT:
,�t— � � A tl�-�
�ANWMA
Ed Bucy, Right -of -Way Agent
Utility Relocation & Maintenance Agreement
Page 4
Touch Amen' civ
BY:
APPROVED AS TO FORM
Linda Chamales, Supervising Attorney
EXHIBIT A
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LUBBOCK
INTERNATIONAL
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RAILROAD SPUR TO SERVE
THE INTERPORT TRADE
CENTER
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INDUSTRIAL SPUR
PLAN AND PROFILE
STA. 35+00 TO 49+00
C04 of 28