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HomeMy WebLinkAboutContract 57616 CSC No. 57616 PUBLIC RIGHT-OF-WAY USE AGREEMENT This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made and entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation organized under the laws of the State of Texas and acting by and through its duly authorized Assistant City Manager (the "City"), and CENTRIC FIBER, LLC, a Delaware limited liability company, acting by and through its duly authorized representative ("Company"). The City and Company may be referred to individually as a "Party" and collectively as the "Parties" in this Agreement. The following recitals are incorporated into this Agreement, are true and correct, and constitute the basis upon which the City of Fort Worth has executed this Agreement. WHEREAS, Company wishes to construct its Fiber Optic Line to operate a Network under certain Public Rights-of-Way for the transportation of Data and Information Services to one or more specifically identified private customers; and WHEREAS, Company is not required to obtain a franchise from the City because Company's Fiber Optic Line is not available for use by the general public,Company acknowledges that it is not a public utility or telecommunications utility, as those terms are used in the City Charter, City Code, and the applicable state law, and because Company acknowledges that it does not and will not be providing video, cable, voice or telephony services, as defined under Texas law, to end user customers in the City; and WHEREAS, Company is required to obtain the City's consent pursuant to a non- exclusive license agreement that sets forth the terms and conditions under which Company may use the Public Rights-of-Way; and WHEREAS, the City has reviewed Company's request and agrees to grant Company a non-exclusive license to use certain Public Rights-of-Way in order to erect, construct, install, operate, maintain, repair and replace its Fiber Optic Line on the terms and conditions set forth herein, solely for the transportation of Data and Information Services and solely in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the covenants and agreement hereafter set forth, the Parties hereto agree as follows: 1. DEFINITIONS. Capitalized terms used in this Agreement and not otherwise defined within this Agreement shall have the following meanings: GP13-00005 OFFICIAL RECORD Centric Fiber,LLC Right-of-Way Use Agreement CITY SECRETARY Page 1 of 17 FT. WORTH, TX Affiliate shall mean any individual, partnership, association,joint stock company, limited liability company,trust,corporation,or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with, the entity in question. Agreement shall mean the authorization issued to Company hereunder to use the Public Rights-of-Way for (i) the erection, construction, installation, operation, maintenance, repair and replacement of Company's Fiber Optic Line; (ii) the use of such Fiber Optic Line to operate a Network and for the transportation of Data and Information Services; and (iii) any other directly related uses of the Public Rights-of-Way,pursuant to and in accordance with this Agreement. City shall mean the area within the corporate limits of the City of Fort Worth, Texas and the governing body of the City of Fort Worth, Texas. Commission shall mean the Federal Communications Commission or other authority succeeding to the regulatory powers of the Commission. Company shall mean Centric Fiber, LLC, a Delaware limited liability company, only, and shall not include any Affiliate or third party. Customer shall mean any Person located, in whole or in part, within the City. Data and Information Services or Services shall mean internet or data service or any combination thereof that is to be transmitted or transported through Company's Fiber Optic Line. Data and Information Services shall not mean "video service" or "cable service" as defined in Chapter 66 of the Texas Utilities Code or "local exchange telephone service," or "voice service" as defined in Chapter 283 of the Texas Local Government Code. Director shall mean the Director of the City's Department of Transportation/Public Works or authorized representative. Fiber Optic Line shall mean the fiber optic line and other facilities approved by the Director that are installed by Company in the Public Rights-of-Way to operate a Network and transport Data and Information Services in accordance with this Agreement. Future Rights-of-Way shall mean streets, highways, alleyways, and roads that will be dedicated to the City. Such dedication must be indicated on a plat or plan,including a construction plan, that has been accepted and formally approved by the City. Gross Revenues shall mean: (A) all consideration of any kind or nature including without limitation cash, credits, property, and in-kind contributions (services or goods) derived by Centric Fiber,LLC Right-of-Way Use Agreement Page 2 of 21 Company from the operation of Company's Network to provide Services within the City. Gross Revenues shall include all consideration paid to Company and its affiliates (to the extent either is acting as a provider of Services as authorized by this Agreement),which shall include but not be limited to the following: (i)all fees charged to customers for any and all Services provided by Company; (ii) any fee imposed on Company by this Agreement that is passed through and paid by customers (including, without limitation, the License Fee set forth in this Agreement); and (iii) compensation received by Company or its affiliates that is derived from the operation of Company's Network to provide Services with respect to commissions that are paid to Company as compensation for promotion or exhibition of any Services on Company's Network. Gross Revenues include a pro rata portion of all revenue derived by Company or its affiliates pursuant to compensation arrangements for advertising derived from the operation of Company's Network to provide Services within the City, subject to Paragraph (B)(iii). Advertising commissions paid to third parties shall not be netted against advertising revenue included in gross revenues. Revenue of an affiliate derived from the affiliate's provision of Services shall be included in Gross Revenues to the extent the treatment of such revenue as revenue of the affiliate and not of Company has the effect(whether intentional or unintentional) of evading the payment of fees which would otherwise be paid to the City. In no event shall revenue of an affiliate be included in Gross Revenues to Company if such revenue is otherwise subject to fees to be paid to the City. (B) For purposes of this Agreement, the term "Gross Revenues" does not include (i) any revenue not actually received, even if billed, such as bad debt; (ii) non- Services revenues received by any affiliate or any other person in exchange for supplying goods or services used by Company to provide Services; (iii) refunds, rebates,or discounts made to customers,leased access providers,advertisers,or the City; (iv) the sale of services for resale in which the purchaser is required to collect the fees set out in the Agreement from the purchaser's customer; (v) the provision of Services to customers at no charge if required by state law; (vi) any tax of general applicability imposed upon Company or upon customers by the City, state, federal, or any other governmental entity and required to be collected by Company and remitted to the taxing entity (including, but not limited to, sales and use tax, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes, and fees not imposed by this Agreement); (vii) any forgone revenue from Company's provision of free or reduced cost Services to any person including without limitation employees of Company; provided, however, that any forgone revenue which Company chooses not to receive in exchange for trades, barters, services, or other items of value shall be included in Gross Revenues; and (viii) sales of capital assets or sales of surplus equipment that is not used by the purchaser to receive Services from Company. Network shall mean the communication system operated by Company, through its Fiber Optic Line,to transport and provide Data and Information Services to its customers in the City. Centric Fiber,LLC Right-of-Way Use Agreement Page 3 of 21 Person shall mean, without limitation, an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust or any other form or business entity or association. Public Rights-of-Way or License Area shall mean Future Rights-of-Way and those dedicated public streets, highways, alleys and rights-of-way in the City identified and marked in Exhibit"A" of this Agreement, which is attached hereto and hereby made a part of this Agreement for all purposes. 2. GRANT OF RIGHTS. 2.1. General Use of Public Rights-of-Way for Provision of Data and Information Services. Subject to the terms and conditions set forth in this Agreement and the City Charter and ordinances, the City hereby grants Company a non-exclusive license to (i) erect, construct,install, operate,maintain,repair and replace its Fiber Optic Line in,under, along and across the Public Rights-of-Way and (ii) to operate a Network to provide Services through the portions of its Fiber Optic Line in, under, along and across the Public Rights- of-Way. No changes to the rights granted under this Section or Company's use of the Public Rights-of-Way may occur without review and approval by the City. Furthermore, any material changes to the rights granted under this Section or the Company's use of the Public Rights-of-Way shall require the City to review and determine whether the License Fee is to be adjusted. If the City determines that the License Fee requires an adjustment, the Parties may negotiate an adjusted amount. 2.1.1 Limitations on License. This Agreement is subject to easements, covenants, and conditions in existence as of the date hereof. Nothing in this Agreement shall be deemed to convey, create, or vest in Company a real property interest in land, including any fee, leasehold, or easement. Company hereby acknowledges and agrees that this Agreement allows only Company to provide Services through the City and does not allow Company to distribute, sell or otherwise provide any other services, including but not limited to telephony services,to any Customer. Furthermore,this License Agreement does not grant Company a license or the authority to use the Public Rights-of-Way in any way to provide "video service," or "cable service" pursuant to a State-Issued Certificate of Franchise Authority issued by the Public Utility Commission of Texas under Texas Utilities Code Chapter 66, as amended; or "local exchange telephone service" or "voice service" pursuant to a certificate issued by the Public Utility Commission of Texas under Texas Local Government Code Chapter 283, as amended. In the event Company offers or provides any services described above, then such act will constitute as an Event of Default and an Uncured Default as defined in section 10.1 of this Agreement. Centric Fiber,LLC Right-of-Way Use Agreement Page 4 of 21 2.2. Nonexclusive. This Agreement and all rights granted to Company herein are strictly nonexclusive. The City reserves the right to grant other and future licenses and other authorizations for use of the Public Rights-of-Way to other Persons and entities in accordance with applicable law and as the City deems appropriate; provided, however, that as to the grant of subsequent licenses for use of the Public Rights-of-Way that is solely within the discretion of the City,if a dispute arises as to priority of the use of the Public Rights-of-Way,the City will resolve such dispute in a manner that does not result in unreasonable interference with Company's operation of its Fiber Optic Line for the purposes provided for herein. This Agreement does not establish any priority for the use of the Public Rights-of-Way by Company or by any present or future licensees or other permit holders. In the event of any dispute as to the priority of use of the Public Rights-of-Way, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders, as determined by the City in the exercise of its powers,including the police power and other powers reserved to and conferred on it by the State of Texas. 2.3. Other Permits. This Agreement does not relieve Company of any obligation to obtain permits, licenses, and other approvals from the City or other regulatory agency necessary for the construction, installation,maintenance, or repair of Company's Fiber Optic Line. Nothing herein shall be construed as a promise, warranty, or guarantee of approval of any permit, license, or other land use approval which may be required. 2.4. Bonds. Prior to the commencement of any construction work in the Public Rights-of-Way in the City that requires a cut, opening, or other excavation, Company shall deliver to the City bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed in the Public Rights- of-Way. The bonds shall guarantee (i) satisfactory compliance by Company with all requirements,terms and conditions of this Agreement and(ii)full payments to all persons, firms, corporations, or other entities with whom Company has a direct relationship for the performance of such construction,maintenance, or repairs. If any such construction,maintenance and repair work is undertaken by a contractor of Company, Company shall also require such contractor to deliver to Company bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed by the contractor in the Public Rights-of-Way. The bonds shall guarantee (i)the faithful performance and completion of all construction, maintenance, or repair work in accordance with the contract between Company and the contractor and (ii) full payment for all wages for labor and services and Centric Fiber,LLC Right-of-Way Use Agreement Page 5 of 21 of all bills for materials, supplies, and equipment used in the performance of that contract. Such bonds shall name both the City and Company as dual obligees. 3. TERM 3.1 Initial Term and Renewals This Agreement shall become effective on the date as of which both Parties have executed it (the "Effective Date") and shall expire at 11:59 P.M. CST on December 31, 2042 (the "Initial Term"), unless terminated earlier as provided herein. Thereafter, this Agreement may be renewed for up to two (2) successive five (5) year terms (each, a "Renewal Term"),unless one Party provides at least six (6)months prior written notice to the other Party of its intent not to renew. At least six (6)months prior to the expiration of the Initial Term of this Agreement, Company shall inform the City, in writing, of its intent to seek renewal of the Agreement. During this time period, the City shall reappraise the License Fee, and the Parties may re-negotiate the License Fee and other terms of this Agreement. 4. FEES AND PAYMENTS TO CITY. 4.1. Right-of-Way Use Fee. Company shall pay the City as compensation for its use of the Public Rights-of-Way for the Term of this Agreement a license fee of three percent Q%) of the Company's Gross Revenues as set forth in this Agreement (the "License Fee"). Company hereby acknowledges and agrees that the amount of this License Fee constitutes just and reasonable compensation to the City for Company's use of the Public Rights-of-Way as provided by this Agreement. The City represents and warrants that the License Fee is reasonable and nondiscriminatory in comparison to the license fees charged to other similarly situated entities. 4.1.1. Due Date of License Fee. Company shall pay the License Fee to the City on a calendar quarterly basis. The License Fee shall be due within forty-five (45) days following the last day of each quarter. 4.1.2. Audits The City may audit Company at any time to verify the accuracy of License Fees paid to the City for the prior four(4)years. Company shall pay any additional amounts due the City as reported in any City audit within thirty(30)days following the City's submission to Company of an invoice for such sum. If the additional amount due exceeds ten percent (10%) of the License Fee which the audit shows should have been paid to the City for the period in which the audit covered, Centric Fiber,LLC Right-of-Way Use Agreement Page 6 of 21 Company shall pay the City's costs for the audit. Otherwise, the City shall pay its own costs for the audit. 4.2. Other Payments. In addition to the License Fee, Company shall pay the City all sums which may be due the City for property taxes,license fees,permit fees,or other taxes,charges or fees that the City may from time to time impose on all other similarly situated entities within the City. Company shall reimburse the City for publication of this Agreement if required by the City's Charter. 4.3. Interest. All sums not paid when due shall bear interest at the rate of ten percent (10%) per annum or the maximum amount allowed by law,whichever is less, computed monthly. If such outstanding sums are paid with interest within thirty (30) days following their respective due dates, Company's failure to pay such sums by their respective due dates shall not,in and of itself,constitute an Event of Default under Section 9 of this Agreement. 5. REGULATORY AUTHORITY OF THE CITY. Company's property, construction, and operations hereunder shall be subject to such regulation by the City,which regulation shall be in conformance with applicable federal, state and local laws, as may be reasonably necessary for the protection or benefit of the general public. In this connection, Company shall be subject to, shall be governed by, and shall comply with all applicable federal, state and local laws,including all ordinances,rules, and regulations of the City, as same may be adopted and amended from time to time. As the regulatory authority, City has the right to oversee and inspect the construction of Company's Fiber Optic Line in the Public Rights- of-Way. 6. USE OF PUBLIC RIGHTS-OF-WAY. 6.1. Compliance with Laws, Ordinances,Rules and Regulations. The City has the right to control and regulate the use of the Public Rights-of-Way, public places, and other City-owned property and the spaces above and beneath them. Company shall comply with all applicable laws, ordinances, rules and regulations, including, but not limited to, City ordinances, rules, manuals, and policies related to construction,rights-of-way,construction permits,construction bonds,permissible hours of construction, operations during peak traffic hours,barricading requirements, and any other construction rules or regulations that may be promulgated from time to time. 6.2. No Undue Burden. The Fiber Optic Line shall not be erected,installed,constructed,repaired,replaced, or maintained in any manner that places an undue burden on the present or future use of Centric Fiber,LLC Right-of-Way Use Agreement Page 7 of 21 the Public Rights-of-Way by the City and the public. If the City reasonably determines that the Fiber Optic Line does place an undue burden on any portion of the Public Rights- of-Way, Company, at Company's sole cost and expense and within a reasonable time period specified by the City, shall modify the Fiber Optic Line or take other reasonable actions determined by the City to be in the public interest to remove or alleviate the burden. Should a modification be required, the City will cooperate with Company to accomplish such modifications at the lowest reasonable cost and in a manner consistent with the general intent of this Agreement. 6.3. Minimal Interference. Prior to the undertaking of any kind of construction, installation, maintenance, repairs, or other work that requires the excavation, lane closure, or other physical use of the Public Rights-of-Way, Company shall, except for work required to address an emergency, provide at least twenty-four (24) hours' advance written notice to the owners of property adjacent to the Public Rights-of-Way that will be affected. In the case of emergencies, Company shall provide notice to the affected landowners within twenty-four (24) hours after commencement of work. In addition, during any such work, Company shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public. The use of such traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices. Company shall utilize appropriate warning lights at all construction and maintenance sites where one or more traffic lanes are closed or obstructed during nighttime conditions. 6.4. "As-Built"Plans and Maps. Company, at Company's sole cost and expense, shall provide the City with as-built plans of all portions of the Fiber Optic Line located in the City and the City's extraterritorial jurisdiction and maps showing such Fiber Optic Line within ninety (90) calendar days following the completion of such Fiber Optic Line. Company shall supply the textual documentation of such as-built plans and maps in computer format as requested in writing by the City and shall otherwise fully cooperate with the City in ensuring that the Fiber Optic Line is accurately reflected in the City's mapping system and in providing related responsive information to the City. 6.5. Marking of Fiber Optic Line. The Fiber Optic Line shall, if requested in writing by the Director, be marked, in a manner that is acceptable to the Director, to show conspicuously Company's name and a toll-free telephone number of Company that a Person may call for assistance. 6.6. Pavement Cut Coordination and Additional Fees. The City shall have the right to coordinate all excavation work in the Public Rights- of-Way in a manner that is consistent with and convenient for the implementation of the Centric Fiber,LLC Right-of-Way Use Agreement Page 8 of 21 City's program for street construction,rebuilding, resurfacing, and repair. All excavation work shall be in accordance with the applicable federal and state law,the City's ordinances, rules, regulations, and policies. Any fees related to any excavation work in the Public Rights-of-Way shall not be allocated or otherwise counted as part of the License Fee to the City. 6.7. Restoration of Public Rights-of-Way and Property. Company, at Company's sole cost and expense, and in a manner approved by the City,shall promptly restore any portion of the Public Rights-of-Way,City-owned property, or other privately-owned property that are in any way disturbed or damaged by the construction, operation, maintenance, or removal of any of the Fiber Optic Line to, at Company's option, as good or better a condition as such property was in immediately prior to the disturbance or damage. Company shall diligently commence such restoration within thirty (30) calendar days following the date that Company first became aware of the disturbance or damage or, if the Fiber Optic Line is being removed, within thirty (30) calendar days following such removal. 6.8. Relocation of Fiber Optic Line. Company acknowledges and agrees that the Public Rights-of-Way in which the Fiber Optic Line is located may, during the Term of this Agreement, be subject to Additional Projects, including, but not limited to, street or other public excavation, construction, repair, grading, regarding, or traffic conditions; the installation of sewers, drains,water pipes,or municipally-owned facilities of any kind;the vacation,construction, or relocation of streets or any other type of structure or improvement of a public agency; any public work; or any other type of improvement necessary,in the City's sole discretion, for the public health, safety or welfare. If the City determines in its sole reasonable discretion that the location of the Fiber Optic Line conflicts with an Additional Project,the City may submit to Company a written Request for Accommodation, including, but not limited to,protecting, supporting, deepening,relocating, disconnecting, or removing all or any portion of Company's Fiber Optic Line within the Public Rights-of-Way. City covenants and agrees that it will only request disconnection or removal if the City finds that no other Accommodation is reasonably or economically feasible. Within forty-five (45) calendar days following City's written Request for Accommodation, Company, at Company's sole cost and expense, shall make the requested Accommodation. If Company reasonably requires more than forty-five (45) days to comply with the City's Request for Accommodation, Company shall notify the Director in writing, and the City will work in good faith with Company to negotiate a workable time frame. 6.9. Emergencies. 6.9.1. Work by the City. For purposes of this Section 6.9.1, a public emergency shall be any condition which,in the opinion of the officials specified herein,poses an immediate threat to life,health or property and is caused by any natural or man-made disaster, Centric Fiber,LLC Right-of-Way Use Agreement Page 9 of 21 including,but not limited to, storms,floods,fires, accidents, explosion,water main breaks, and hazardous materials spills. In the event of a public emergency,the City shall have the right to take whatever action is deemed appropriate by the City Manager, Mayor, Police Chief or Fire Chief, or their authorized representatives, including, but not limited to, action that may result in damage to the Fiber Optic Line, and Company hereby (i) releases the City, its officers, agents, servants, employees and subcontractors from liability or responsibility for any Damages, as defined in Section 7.1,that may occur to the Fiber Optic Line or that Company may otherwise incur as a result of such a response, and (ii) agrees that Company, at Company's sole cost and expense, shall be responsible for the repair, relocation or reconstruction of all or any of its Fiber Optic Line that is affected by such action of the City. In responding to a public emergency, the City agrees to comply with all local, state, and federal laws, including any requirements to notify the Texas One Call System, to the extent that they apply at the time and under the circumstances. In addition, if the City takes any action that it believes will affect the Fiber Optic Line, the City will notify Company as soon as practicable so that Company may advise and work with the City with respect to such action. 6.9.2. Work by or on Behalf of Company. In the event of an emergency that directly involves that portion of the Fiber Optic Line located in the Public Rights-of-Way and necessitates immediate emergency response work or repairs, Company may initiate the emergency response work or repairs or take any action required under the circumstances provided that Company notifies the City as promptly as possible. After the emergency has passed, Company shall apply for and obtain a construction permit from the director of the City's Department of Transportation/Public Works and otherwise fully comply with the requirements of this Agreement. 6.10. Removal of Fiber Optic Line. Upon the revocation,termination,or expiration without extension or renewal of this Agreement, Company's right to use the Public Rights-of-Way under this Agreement shall cease and Company shall immediately discontinue its operation of its Network and Services in the City. Within six (6) months following such revocation, termination, or expiration and if the City requests, Company, at Company's sole cost and expense, shall remove the Fiber Optic Line from the Public Rights-of-Way (or disconnect and abandon the Fiber Optic Line, if consented to by the City), in accordance with applicable laws and regulations. If Company has not removed all of the Fiber Optic Line from the Public Rights-of-Way (or disconnected and abandoned the Fiber Optic Line, if consented to by the City) within six (6) months following revocation, termination, or expiration of this Agreement,the City may deem any portion of the Fiber Optic Line remaining in the Public Rights-of-Way abandoned and, at the City's sole option, (i) take possession of and title to such property or(ii)take any and all legal action necessary to compel Company to remove such property; provided, however, that Company may not abandon its facilities or discontinue its services within the City without the approval of the regulatory authority Centric Fiber,LLC Right-of-Way Use Agreement Page 10 of 21 with relevant jurisdiction over such matters, if such approval is required by applicable law or statute. Within six (6) months following revocation, termination, or expiration of this Agreement and in accordance with Section 6.7 of this Agreement, Company shall also restore any property, public or private, that is disturbed or damaged by removal (or, if consented to by the City, disconnecting and abandoning) of the Fiber Optic Line. If Company has not restored all such property within this time, the City, at the City's sole option, may perform or have performed any necessary restoration work, in which case Company shall immediately reimburse the City for any and all costs incurred in performing or having performed such restoration work. 7. LIABILITY AND INDEMNIFICATION. 7.1. Liability of Company. Company shall be liable and responsible for any and all damages,losses,liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands, defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including, without limitation,fees,disbursements and reasonable expenses of attorneys,accountants and other professional advisors and of expert witnesses and costs of investigation and preparation) of any kind or nature whatsoever (collectively, "Damages"),which may arise out of or be in any way connected with (i) the construction, installation, operation, maintenance or condition of the Fiber Optic Line or any related facilities or appurtenances; (ii) the operation of Company's Network and transportation of Services through the Fiber Optic Line; (iii) any claim or lien arising out of work, labor, materials, or supplies provided or supplied to Company, its contractors or subcontractors; or (iv) Company's failure to comply with any applicable federal, state, or local law, ordinance, rule, or regulation; in each case except to the extent directly caused by the negligent or grossly negligent act(s) or omission(s) or intentional misconduct of the City. 7.2. Indemnification. COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS, COMMISSIONS, AGENTS, REPRESENTATIVES, AND EMPLOYEES ("INDEMNITEES'), FROM AND AGAINST ANY AND ALL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE FOR PROPERTYDAMAGE AND PERSONAL INJURY, INCLUDING DEATH) WHICH MAYARISE OUT OF OR BE IN ANY WAY CONNECTED WITH (I) THE CONSTRUCTION, INSTALLATION, OPERATION,MAINTENANCE, OR CONDITION OF THE FIBER OPTIC LINE OR ANY RELATED FACILITIES OR APPURTENANCES; (II) THE TRANSPORTATION OF DATA AND INFORMATION SERVICES THROUGH THE FIBER OPTIC LINE; (III) ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS, OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS;OR(IT) COMPANY'S FAILURE TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAW, Centric Fiber,LLC Right-of-Way Use Agreement Page 11 of 21 ORDINANCE, RULE OR REGULATION; IN EACH CASE EXCEPT TO THE EXTENT DIRECTLY CAUSED BY THE NEGLIGENT OR GROSSL Y NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF THE CITY. 7.3. Assumption of Risk. Company hereby undertakes and assumes, for and on behalf of Company, its officers, agents, contractors, subcontractors, agents, and employees, all risk of dangerous conditions, if any, on or about any City-owned or City-controlled property, including, but not limited to, the Public Rights-of-Way. 7.4. Defense of Indemnitees. In the event any action, lawsuit, or other proceeding is brought against any Indemnitee by reason of any matter for which the Indemnitees are indemnified hereunder, the City shall give Company prompt written notice of the making of any claim or commencement of any such action, lawsuit, or other proceeding, and Company, at Company's sole cost and expense, shall resist and defend the same with reasonable participation by the City and with legal counsel selected by Company and specifically approved by the City. In such an event,Company shall not admit liability in any matter on behalf of any Indemnitee without the advance written consent of the City. 8. INSURANCE. Company shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverages as specified herein, naming the City as an additional insured and covering all public risks related to the use, occupancy, condition,maintenance, existence or location of the Public Rights-of-Way and the construction, installation, operation, maintenance or condition of the Fiber Optic Line,the operation of Company's Network,and the transportation Services through the Fiber Optic Line. The required insurance can be met by a combination of self-insurance,primary and excess policies. 8.1. Primary Liability Insurance Coverage. • Commercial General Liability: $1,000,000 per occurrence, including coverage for the following: (i) Premises Liability; (ii) independent contractors; (iii) products/completed operations; (iv) personal injury; (v)contractual liability; (vi)explosion,collapse and underground property damage. • Property Damage Liability: $10,000,000 per occurrence • Automobile Liability: Centric Fiber,LLC Right-of-Way Use Agreement Page 12 of 21 $1,000,000 per accident, including,but not limited to,all owned,leased,hired or non-owned motor vehicles used in conjunction with the rights granted under this Agreement • Worker's Compensation: As required by law; and,Employer's Liability as follows: $1,000,000 per accident. 8.2. Revisions to Required Coverage. At the reasonable recommendation of the City's Risk Manager, the City may at any time revise insurance coverage requirements and limits required by this Agreement. Company agrees that within thirty (30) days of receipt of written notice from the City, Company will implement all such reasonable revisions requested by the City. The policy or policies of insurance shall be endorsed to provide that no material changes in coverage, including, but not limited to, cancellation, termination, non-renewal or amendment, shall be made without thirty (30)days' prior written notice to the City. 8.3. Underwriters and Certificates. Company shall procure and maintain its insurance with underwriters authorized to do business in the State of Texas and who are acceptable to the City in terms of solvency and financial strength. Within thirty (30) days following adoption of this Agreement by the City Council,Company shall furnish the City with certificates of insurance signed by the respective companies as proof that it has obtained the types and amounts of insurance coverage required herein. In addition, Company shall, on demand, provide the City with evidence that it has maintained such coverage in full force and effect. 8.4. Deductibles. Deductible or self-insured retention limits on any line of coverage required herein shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line of coverage, or aggregate is otherwise approved by the City. 8.5. No Limitation of Liability. The insurance requirements set forth in this Section 8 and any recovery by the City of any sum by reason of any insurance policy required under this Agreement shall in no way be construed or effected to limit or in any way affect Company's liability to the City or other persons as provided by this Agreement or law. 9. DEFAULTS. Centric Fiber,LLC Right-of-Way Use Agreement Page 13 of 21 The occurrence at any time during the any Term of this Agreement of one or more of the following events shall constitute an"Event of Default"under this Agreement: 9.1. Failure to Pay License Fee. An Event of Default shall occur if Company fails to pay any License Fee on or before the respective due date. 9.2. Breach. An Event of Default shall occur if either Party materially breaches or violates any of the terms, covenants, representations, or warranties set forth in this Agreement or fails to perform any obligation required by this Agreement. 9.3. Bankruptcy,Insolvency or Receivership. An Event of Default shall occur if Company (i) files a voluntary petition in bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any petition filed against it seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief for itself under any laws relating to bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to, or acquiesces in the appointment of any trustee,receiver,master, custodian, or liquidator of Company, any of Company's property or any revenues, issues, earnings, or profits thereof, (v) makes an assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as they become due. 9.4. Violations of the Law. An Event of Default shall occur if Company violates any existing or future federal, state or local laws or any existing or future ordinances,rules and regulations of the City. 9.5 Unlicensed Services. An Event of Default shall occur if Company offers or provides any services not authorized under this Agreement, including, but not limited to "video service," or "cable service"pursuant to a State-Issued Certificate of Franchise Authority issued by the Public Utility Commission of Texas under Texas Utilities Code Chapter 66,as amended; or"local exchange telephone service" or "voice service" pursuant to a certificate issued by the Public Utility Commission of Texas under Texas Local Government Code Chapter 283, as amended. 10. UNCURED DEFAULTS AND REMEDIES. 10.1. Notice of Default and Opportunity to Cure. Centric Fiber,LLC Right-of-Way Use Agreement Page 14 of 21 If an Event of Default occurs on account of Company's failure to pay the License Fee in accordance with Section 9.1 or provide services described in 9.5, such Event of Default shall be deemed an Uncured Default and the City shall have the right to terminate this Agreement immediately upon provision of written notice to Company. If an Event of Default occurs for a reason other than for failure to pay the License Fee or provide unlicensed services,the non-defaulting Party shall provide the defaulting Party with written notice and shall give the defaulting Party the opportunity to cure such Event of Default. For an Event of Default by Company which can be cured by the immediate payment of money to the City, Company shall have thirty (30) days from the date it receives written notice from the City to cure the Event of Default. For any other Event of Default, the defaulting Party shall have sixty(60) days from the date it receives written notice from the non-defaulting Party to cure the Event of Default. If any Event of Default is not cured within the time period specified herein, such Event of Default shall,without further notice from the non-defaulting Party,become an"Uncured Default"and the non-defaulting Party immediately may exercise the remedies provided in Section 10.2. 10.2. Remedies for Uncured Defaults. Upon the occurrence of an Uncured Default, the non-defaulting Party shall be entitled to exercise, at the same time or at different times, any of the following remedies, all of which shall be cumulative of and without limitation to any other rights or remedies the non-defaulting Party may have: 10.2.1. Termination of Agreement. Upon the occurrence of an Uncured Default, the non-defaulting Party may at its option terminate this Agreement. Upon such termination, this Agreement shall automatically be deemed null and void and shall have no further force or effect. Company shall remain obligated to pay, and the City shall retain the right to receive License Fees and any other payments due up to the date of termination. If termination is by the City due to the Uncured Default of Company, Company shall remove the Fiber Optic Line from and restore the Public Rights-of-Way as and when requested by the City. The City's right to terminate this Agreement under this Section 10.2.1 for an Uncured Default by Company does not and shall not be construed to constitute any kind of limitation on the City's right to terminate this Agreement for other reasons as provided by and in accordance with this Agreement; provided, however, that Company may not abandon the Fiber Optic Line without the approval of the regulatory authority with jurisdiction, if such action without such approval is prohibited at the time by applicable federal or state law or regulation. In the event that this Agreement is terminated under Section 9.5, then the relationship between the Parties shall be governed by the applicable state law and the Parties may negotiate a new Agreement. 10.2.2 Legal Action Against Company. Centric Fiber,LLC Right-of-Way Use Agreement Page 15 of 21 Upon the occurrence of an Uncured Default, the non-defaulting Party may commence against the defaulting Party an action at law for monetary damages or in equity, for injunctive relief or specific performance of any of the provisions of this Agreement which, as a matter of equity, are specifically enforceable. 11. PROVISION OF INFORMATION. 11.1. Accounting Statements and Records. Company shall provide copies to the City of all documents concerning or related to its operations in the City, including, but not limited to, documents related to the (i) construction, installation, reconstruction, removal, maintenance, operation and repair of the Company's Fiber Optic Line and (ii) the operation of the Network Company shall cooperate in making available such records and otherwise assist in these activities. Upon written request by the City, Company shall provide City, within a reasonable amount of time, notices of all, if any, petitions, applications, communications and reports submitted by Company to the Federal Communications Commission, Securities and Exchange Commission, the Texas Public Utilities Commission, or their successor agencies, relating to any matters affecting the Company's use of the Public Rights-of-Way, the Company's Fiber Optic Line, or Network as authorized pursuant to this Agreement. 11.2. Lawsuits. Company shall provide the City with copies of all pleadings in all lawsuits to which Company is a party and that pertain to the granting of this Agreement, the construction of the Company's Fiber Optic Line, the operation of Company's Network, and/or Services provided within the City. Company shall provide such copies within thirty (30) days of Company's receipt of same. 11.3 Public Information. City is a governmental entity under the laws of the State of Texas and all documents held or maintained by the City are subject to disclosure under the Texas Public Information Act. In the event there is a request for information marked Confidential or Proprietary, City will promptly notify Company. It will be the responsibility of the Company to submit reasons objecting to disclosure. A determination on whether such reason are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. Company must inform and identify which documents that it provides to the City are confidential. 12. COMPANY AS INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor as to all rights and privileges granted by this Agreement and not as an agent, representative, or employee of the City. Company shall have the exclusive right to control the details of its business and other operations necessary or appurtenant to the transportation of data and information services Centric Fiber,LLC Right-of-Way Use Agreement Page 16 of 21 in accordance with the terms and conditions of this Agreement,and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Company acknowledges that the doctrine of respondent superior shall not apply as between the City and Company, its officers, agents, employees, contractors, and subcontractors. Company further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. 13. ASSIGNMENT PROHIBITED. Company may not assign or otherwise transfer any of its rights or obligations under this Agreement unless specifically authorized in writing by the City, which authorization shall not be unreasonably withheld. 14. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i)hand-delivered to the other party, its agents, employees, servants or representatives, or(ii)received by the other party by United States Mail,postage prepaid, return receipt requested, addressed as follows: To THE CITY: To COMPANY: City of Fort Worth Centric Fiber,LLC Assistant City Manager—Dana Burgdhoff Attn: Jason Palmenberg 200 Texas Street 61 Carlton Woods Dr., Building 2 Fort Worth,TX 76102 The Woodlands, TX 77382 with a copy to: City of Fort Worth Department of Law Attn: Attorney for Utilities 200 Texas St. Fort Worth,TX 76102 15. NON-DISCRIMINATION COVENANT. Company shall not discriminate against any person on the basis of race,color,national origin, religion,handicap,sex,sexual orientation,or familial status in the receipt of benefits from Company's business operations, in any opportunities for employment with Company or in the construction or installation of the Fiber Optic Line. 16. NO WAIVER. The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any rights that the City may have, either under this Agreement or the law, shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert any such right on any future occasion. Centric Fiber,LLC Right-of-Way Use Agreement Page 17 of 21 17. GOVERNING LAW AND VENUE. This Agreement shall be construed pursuant to and in accordance with the laws of the United States of America and the State of Texas. If any action,whether real or asserted, at law or in equity, arise out of the terms of this Agreement, including, but not limited to, the construction of the Company's Fiber Optic Line, operation of Company's Network, Services provided under this Agreement, or Company's use of the Public Rights-of-Way, venue for such action shall lie exclusively in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 18. CONFERENCES. At the request of either the City or Company,the City and Company shall meet at reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Company's Fiber Optic Line, Company's operations in the City, Company's Services in the City, or Company's use of the Public Rights-of-Way. 19. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final order entered by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement, a court order shall be final only to the extent that all available legal rights and remedies pertaining to such order,including,without limitation all available appeals,have been exhausted. In such an event, the City and Company agree that they shall amend or have amended this Agreement to comply with such final order entered by a court of competent jurisdiction. 20. FORCE MAJEURE. In the event Company's performance of any of the terms,conditions, or obligations required by this Agreement is prevented by a cause or event that is not within Company's reasonable control, Company's non-performance shall be deemed excused for the period of such inability. Causes or events that are not within the Company's control shall include, but not be limited to, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions, natural disasters, and declarations of disaster or emergency adopted in accordance with applicable law. 21. HEADINGS NOT CONTROLLING. Headings and titles, other than those captions in Section 1,that are used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 22. GOVERNMENTAL IMMUNITY It is understood and agreed that by the execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 23. AMENDMENTS/MODIFICATION/EXTENSION Centric Fiber,LLC Right-of-Way Use Agreement Page 18 of 21 No amendment, modification, or extension of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each parry. 24. COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart will, for all purposes, be deemed an original, but all such counterparts will together constitute one and the same instrument. 25. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that they have the legal authority to execute this Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement and any amendment hereto, may be executed by an authorized representative of Company. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 26. CHANGE IN COMPANY NAME OR OWNERSHIP Company must notify the contract compliance manager in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of Company or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board or director's resolution approving the action,or an executed merger or acquisition agreement. 27. ELECTRONIC SIGNATURES This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes"electronic signature"means electronically scanned and transmitted versions(e.g.via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. 28. REVIEW OF COUNSEL The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any of the attached Exhibits. 29. ENTIRETY OF AGREEMENT. Centric Fiber,LLC Right-of-Way Use Agreement Page 19 of 21 This instrument (including the schedule of exhibits attached hereto and any documents incorporated herein by reference)constitutes the entire understanding and agreement between the City and Company as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council of the City. [SIGNATURE PAGE TO FOLLOW] Centric Fiber,LLC Right-of-Way Use Agreement Page 20 of 21 EXECUTED as of the later date below: CITY OF FORT WORTH: CENTRIC FIBER, LLC By:Dana Burghdoff(May 26,20 16:50 CDT By: Name: Dana Burghdoff Name: Jason Palmenberg Title: Assistant City Manager Title: President APPROVAL ■QRECOMMEND: By:Steve(May 2•6,2022 16::29 CDT) Name: Steve Cooke Title: Director of Property Management CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: Name: Juanita Rigsby Title: Energy Manager APPROVED AS TO FORM AND LEGALITY: 0QA By:ChristopherA tria(May 26,202216:38 CDT) Name: Christopher Austria Title: Assistant City Attorney M&C: 22-0391 1295: 2022-881665 gd��4nn� IFORr ATTEST: �46 o o���d �vo 0=d e � Y 0 00�r�d By: Jannett �M�2 8CDT) 000000 0000 OOooOoo 4 Name: Janette Goodall a�n nEXpSoad Title: City Secretary OFFICIAL RECORD CITY SECRETARY Centric Fiber,LLC Right-of-Way Use Agreement FT. 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