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HomeMy WebLinkAboutOrdinance 9533 Oi:ffClAl RECDRQ ~' CITY SECRETARY FT. WORTff, TEX. .~ - .... 4, br ORDINANCE NO. ~~~~ AN ORDINANCE AMENDING IN ITS ENTIRETY CITY OF FORT WORTH ORDINANCE N0. 9411 AND PROVTDING IN LIEU THEREOF PROVI- SIONS PERMITTING AND REGULATING THE CONSTRUCTION, MAINTE- NANCE AND USE OF A LONG DISTANCE TELECOMMUNICATIONS SYSTEM BY AT&T COMMUNICATIONS - INTERSTATE DIVISION, ACROSS, OVER AND UNDER CERTAIN STREETS, HIGHWAYS AND PUBLIC RIGHTS-OF- WAY OF THE CITY OF FORT WORTH; MAKING THIS ORDINANCE CUMULATIVE OF ALL PROVISIONS OF ORDINANCES AND THE CODE OF THE CITY OF FORT WORTH (1964), AS AMENDED, AND REPEALING ALL PRIOR ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR A 5EVERABILITY CLAUSE; PROVIDING FOR ENGROSSMENT AND ENROLL- MENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, AT&T Communications - Interstate Division, a division of American Telephone and Telegraph Company, hereinafter referred to as "AT&T", desires use of certain public rights-of-way within the City of Fort Worth for the purposes set forth below pursuant to the provisions of the laws of the State of Texas, including, but not limited to, Article 1416 V.A.C.S.; and WHEREAS, it is the position of the City of Fort Worth that AT&T must obtain a license in order to use the public rights-of-way; and WHEREAS, the Fort Worth City Council has determined that it is appropriate to grant the said license to AT&T; and WHEREAS, the Fort Worth City Council at its regularly scheduled meeting of July 2, 1985, authorized said license by the adoption of City of Fort Worth Ordinance No. 9411; and WHEREAS, since the adoption of City of Fort Worth Ordinance No. 9411, City of Fort Worth and AT&T have agreed that said Ordinance No. 9411 should be amended to clarify and supplement cer- tain terms and provisions contained therein; WHEREAS, AT&T is willing to accept this license solely on a compromise and settlement basis, to avoid the time and expense of litigation, without waiving any rights it may have under Article 1416, V.A.C.S.; NOW, THEREFORE: BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: That City of Fort Worth Ordinance No. 9411, on file in the office of the City Secretary of the City of Fort Worth, is hereby amended in its entirety and, following such amendment, City of Fort Worth Ordinance No. 9411 shall be and read as follows, to wit: SECTION 1. PURPOSE That the City of Fort Worth (hereinafter referred to as the "City'°) hereby grants to AT&T and its successors and assigns, for the full term of twenty-five ( 25 ) years from the date of passage of this ordinance, a license to acquire, erect, construct, replace, reconstruct, maintain, use, and operate in, over, under, along, and across certain streets and other public rights-of-way of the City (hereinafter the "public right-of-way") all necessary or desirable wires, cables, underground conduits, manholes, or other structures or appurtenances (hereinafter the "facility" or "facilities") in connection with a long distance telecommunications system or systems (not including cable television or local exchange telephone service) that provides long distance telecommunications service (hereinafter the "system"), subject to the provisions of this ordinance. The only public right-of-way which AT&T shall use pursuant to this ordinance shall be that portion of the City streets extending for a length of approximately one thousand six hundred (1,600) feet, beginning at the point where the Texas and Pacific Railroad right-of-way inter- sects with South Jennings; thence along Jennings in a northerly direction crossing Lancaster, 13th and Texas Streets, to a point north of St. Patrick's Catholic Church; thence crossing Jennings in an easterly direction and continuing across the park between the John Peter Smith statue and the church; thence crossing Throckmorton Street; thence eastward in 1 1 th Street to a point on the west side of South Houston Street, where it will enter into the southeast corner of the Southwestern Bell Telephone Company Building, which is located at 1116 South Houston Street. Said route is shown specif- ically on Exhibit "A" attached hereto and incorporated herein for all purposes incident hereto. -2- r,, \ ~' r a SECTION 2. REGULATION OF CONSTRUCTION The work done by AT&T in erecting, constructing, replacing, reconstructing, maintaining, or repairing the system shall be sub- ject to and governed by all laws, rules, and regulations of the City and State of Texas, that are applicable to insuring the work done does not inconvenience the public in the use of the public right- of-way including, but not limited to the following: A. Prior to construction of any significant changes to the system which will require any digging, cutting or any other such disruption of City right-of-way or City property after the effective date of this ordinance, AT&T shall submit engineering plans to the City for review and approval, pursuant to the standards generally applicable to requests for the privilege to use the public right- of-way, including the City's utility location and coordination policy. Approval of such plans will not be unreasonably delayed, unreasonably ,withheld or unreasonably denied by the City. B. All excavations and other construction in the streets shall be carried out so as to interfere as little as practicable with the surface use of the streets and sidewalks and with the surface use of private property, in accordance with any lawful and reasonable direction given by or under the authority of the govern- ing body of the City under the police and regulatory powers of the City necessary to provide for public convenience. AT&T shall promptly restore all public right-of-way excavated by AT&T to sub- stantially the same condition as before such excavation and to the reasonable satisfaction of the City. AT&T shall comply with all other construction requirements of the City and its Transportation/ Public Works Director with respect to hours of construction opera- tions in peak-busy traffic hours, barricading requirements, and/or any other reasonable construction rules which may be lawfully pro- mulgated. -3- C. Except in an emergency, AT&T shall not excavate any pave- ment in any public right-of-way or significant amounts of any un- paved public right-of-way without first securing the permission of the City, but such permission shall not be unreasonably delayed, unreasonably withheld or unreasonably denied if the proposed excavation is in accordance with the terms of this ordinance. The City shall be notified as soon as practicable regarding work performed under emergency conditions. D. The City shall have the power at any time to order and re- quire AT&T to remove or abate any facility that is dangerous to life or property, and in the event AT&T, after notice, fails or refuses to comply, the City shall have the power to remove or abate same at the expense of AT&T, all without compensation or liability for damages to AT&T. SECTION 3. WORK BY OTHERS The City reserves the right, subject to further conditions described in this paragraph, to lay and permit to be laid, sewer, gas, water, and other pipelines or cables and conduits, and to do and permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the governing body of the City of Fort Worth, in, across, along, over or under any public right-of-way occupied by AT&T, and to change any curb or sidewalk or the grade of any street. In permitting such work to be done, the City shall not be liable to AT&T for any damage so caused, nor shall the City be liable to AT&T for any damages arising out of the performance of said work by the City, its licensees, invitees, contractors or sub- contractors; provided, however, nothing herein shall relieve any other person or corporation from liability for damage to the facil- ities of the system. If the City requires AT&T to remove, alter, change, adapt, or conform its facilities because of changes in the grade of a street or in the location or manner of constructing a -4- a r `,. water pipe, sewer pipe, or other underground or aboveground struc- ture owned by the City, AT&T shall make the alterations or changes as soon as practicable when ordered in writing by the City, without claim for reimbursement or damages against the City. If these requirements impose a financial hardship upon AT&T, AT&T shall have the right to present alternative proposals for the City's considera- tion. Notwithstanding anything to the contrary contained herein, if the City requires AT&T to remove, alter, change, adapt or conform its facilities installed hereunder to enable any other corporation or person ("Non-permitted User"), except the City or any person or corporation or other entity franchised by the City as of July 2, 1985, or having an existing use agreement in those portions of the City streets and rights-of-way described and set forth in Section 1 hereof (hereinafter collectively referred to as "Permitted User") to use, or to use with greater convenience, such public right-of-way, it shall be a condition precedent to AT&T's obligation set forth above that such Non-permitted User shall have undertaken with solvent bond to reimburse At&T for any such loss and expense which will be caused by or arise out of such removal, alteration, change, adaptation or conformance of AT&T's facilities; provided, however, the City shall not be liable for any reimbursement, loss or expense which will be caused by or arise out of such removal, alteration, change, adaptation or conformance of AT&T's facilities. It is expressly understood that, save and except the provisions contained in Section 2 and Section 9 A. and B. herein, no other provision of this ordinance creates an unconditional obligation on the part of AT&T to remove, alter, change, adapt or conform its facilities. SECTION 4. CONSTRUCTION BY ABUTTING OWNERS In the event that the governing body of the City of Fort Worth authorizes abutting landowners to occupy space under the surface of -5- any public right-of-way after the adoption of this ordinance, such grant to abutting landowners shall be subject to the prior rights of AT&T described in this ordinance. SECTION 5. RIGHTS IN THE EVENT OF ABANDONMENT In the event that the governing body of the City of Fort Worth closes or abandons any public right-of-way which contains the facil- ities of AT&T installed hereunder, any conveyance of land contained in such closed or abandoned street, alley, highway or public place shall be subject to the rights of AT&T described in this ordinance. In the event that any portion of the public right-of-way that includes facilities of the system becomes the subject of condemna- tion proceedings, it is agreed that AT&T's property rights and interest in such public right-of-way shall be severed from the City's interest in such proceedings and any such condemnation awards shall be specifically allocated between AT&T's interest and the City's interest. The City shall make a diligent effort to notify AT&T within a reasonable time of any condemnation action (or threatened action) filed against the public right-of-way that affects any facility of the system, or any proposed sale in lieu of condemnation. SECTION 6. AT&T shall indemnify and save and hold harmless the City and all of its officers, agents, and employees from all suits, actions, or claims of any character, style, and description, brought for or on account of any injuries or damages, including death, received or sustained by any person or any property occasioned by, arising out of or in connection with the erection, construction, location, re- placement, reconstruction, maintenance, repair or operation of AT&T's system; and AT&T will be required to pay any judgment, with costs, which may be obtained against the City arising out of such injury or damage. -6- SECTION 7. RECORDS The governing body of the City of Fort Worth and its Public Utilities Supervisor shall have the right to be kept fully informed as to matters pertaining in any way to AT&T's exercise of its rights under this ordinance, including the erection, construction, loca- tion, replacement, reconstruction, maintenance, repair or operation of the facilities of the system in Fort Worth. AT&T shall keep complete and accurate maps, construction drawings and specifications describing the location of facilities of the system in Fort Worth. Maps, construction drawings and specifications kept by AT&T in accordance with this ordinance shall provide for separate and specific identification of those facilities of the system that are located in the public right-of-way. Any and all maps, construction drawings, and specifications required by this ordinance shall be kept and maintained within the City limits of Fort Worth. The City shall have the right, at reasonable times, for municipal purposes, to inspect and/or copy such maps, construction drawings and specifi- cations, provided, however, that copies of such maps, construction drawings and specifications taken by the City shall be returned to AT&T immediately upon completion of City's use of same. AT&T shall fully cooperate in making available its maps, construction drawings and specifications for inspection. Maps, construction drawings and specifications required by this ordinance and maintained by AT&T shall not leave the possession of AT&T, subject to the above. SECTION 8. NOTICE Any notice or communication required in the administration of this ordinance shall be sent as follows: City Secretary City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 with copy to: -7- Public Utilities Supervisor City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Notice to AT&T-Communications will be to: Vice President External Affairs-Texas 4412 Spicewood Springs Road Austin, Texas 78759 with copy to: General Attorney AT&T Communications, Inc. 1111 Main Street Kansas City, Missouri 64105 or to such other address as AT&T may designate from time to time by written notice. SECTION 9. FEE A. AT&T shall make an initial payment of $10,000 representing the fee for the first year of the twenty-five (25) year term of the agreement, and AT&T shall make annual payments during each of the remaining successive 24 years, in the amount of not less than $1,600.00 per year. The above fees shall be adjusted on a percentage basis and proportionally to the percentage change in the Implicit Price Deflator for Gross National Product as determined by the Federal Reserve Bank of St. Louis, at one (1) year intervals during the course of this ordinance. AT&T shall be .notified of the adjust- ment 45 days prior to the date a fee is due under this ordinance. The base for the adjustment shall be the Implicit Price Deflator for Gross National Product as determined by the Federal Reserve Bank of St. Louis reported for the first quarter of the calendar year in which the first annual payment is due. There is no fee hereunder applicable to AT&T cable currently located in Southwestern Bell Telephone Company conduit or any new construction along railroad rights-of-way within the City. This ordinance is intended to grant use of the public right-of-way only in connection with the uses pre- scribed hereunder, and any other use of public right-of-way, includ- -8- 4 ~~ ing use for previously existing facilities, are not authorized by this ordinance. The fee payment shall be exclusive of and in addi- tion to all general municipal taxes of whatever nature, including but not limited to ad valorem taxes and special taxes and assess- ments for public improvements except as• hereinafter provided. B. The initial fee of Ten Thousand Dollars ($10,000) shall be paid to the City of Fort Worth prior to the start of construction hereunder, and subsequent annual payments shall be made on or before July 2 of each year during the term hereof. The fee is payable to "City of Fort Worth" and shall be directed or delivered to the City Public Utilities Supervisor/Department of Law or to such other person whom the City may designate by giving written notice to AT&T. C. The fee established in Section 9A hereof shall not be affected by any relocation of AT&T facilities required by the City pursuant to Section 3 of this ordinance. SECTION 10. ASSIGNMENT OF RIGHTS The rights granted by this ordinance inure to the benefit of AT&T and any parent, subsidiary, affiliate or successor entity now or hereafter existing. The rights shall not be assignable without the express written consent of the governing body of the City of Fort Worth, except AT&T may assign its rights under this ordinance to a parent, subsidiary, affiliate or successor entity without such consent, so long as (i) such parent, subsidiary, affiliate or suc- cessor assumes all obligations of AT&T hereunder, and (ii) is bound to the same extent as AT&T hereunder. Such consent shall not be capriciously or unreasonably withheld, unreasonably delayed or unreasonably conditioned. Any required consent is to be evidenced by an ordinance or resolution of the governing body of the City that fully recites the terms and conditions, if any, upon which consent is given. -9- i~ < i SECTION 11. LEASING OR DEDICATION OF FACILITIES AT&T, without the consent of the City, shall not lease any of the public right-of-way it uses, in connection with its system, to any non-AT&T company; provided that AT&T shall have the right to lease or dedicate its system or any portion thereof, or otherwise make available facilities of the system to other companies in the ordinary conduct of its business as a long distance telecommunica- tions company, so long as AT&T retains responsibility for servicing and repairing the facilities of its system. Notwithstanding the foregoing, AT&T will not lease any conduit space in the system to any non-AT&T company for the .placement of any additional cable with- out the express written consent of the City. SECTION 12. MISCELLANEOUS The Public Utilities Supervisor, or his duly authorized repre- sentative, is the principal City official responsible for the administration of this ordinance, and AT&T recognizes that questions regarding the interpretation or application of this ordinance shall be raised initially with that designated official. SECTION 13. CUMULATIVE PROVISIONS This ordinance shall be cumulative of all provisions of ordi- nances and of the Code of the City of Fort Worth, Texas (1 964) , as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 14. SEVERABILITY It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of -10- . * ~K- ,. f ,~. ~ j this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitu- tional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 15. ENGROSSMENT The City Secretary of the City of Fort Worth is hereby directed to engross and enroll this ordinance by copying the Caption and Sections ~15 and 16 of this ordinance in the minutes of the City Council and by filing the ordinance in the ordinance records of the City. SECTION 16. EFFECTIVE DATE This ordinance shall take effect and be in full force and effect from and after its passage, and it is so ordained. APPROVED AS TO FORM AND LEGALITY: City Attorney Date: 1~-' l 3-`$ S ADOPTED : /o~ " ~ 7- ~ S EFFECTIVE: ~a' ~7 ',8 JJ ACCEPTED AND AGREED TO BY AT&T COMMUNICATIONS - INTERSTATE DIVISION, A Division of American Telephone and Telegraph Company By: Regional,~Vice President-External Affairs -11- o-~~ 0 ~o 4 h, °b 2 f f ~ , ro a J = ` W ~ x~-I~C31T ° A J g ~ u u ~ f ~+r + r n r f / `r r k ~~.~- __ ~ ~ ~ + x ~ ~ ~ / ' • , y 1 1 ~ ,. ~~- .. } ~ ~_,-_-.--~ o .; aa.. .:. ~.:. /~/ ~ ..< . -- ~ << ~ yy rryAMfPCf ~ N \ .b W ~ r----~ _~ ®`~- t __ -, -.~ c ~i r. ~ ~ i+~ `l ~ n ~i.KMORTON ~~ /' i / b h ~ / I / ~ ~ ff /i i I 11M ~/ 7 l; M 1' / \ o ~ ii ~ r~ ~) ~~i 1 o_ i C x~ pity ®f' 1F~rt ~~~orth, ~e~c~c~ MASTER FILE•~ ~,. ACCOUNTING 2 / V ll. ~j lLJ/ u./ U ~~~ ~~ IL~IV 0 lli~ (L~ ~®~U U (V 11/1L~~~L/~l.W~~®~11~ 7RANSPORTATION'f'U©LIC WORKS.6 e.l~ th a'YER AiN~lN14' La~V:T Rr,DRTf~•r CE SUBJECT Amendment to Ordinance No. 9411 PAGE 12-17-85 NUMBER **G-6514 AT&T Communications, Inc., Privilege 1 for Use of City of Fort Worth Street lot igt-o-ay Recommendation It is recommended that the City Council adopt an ordinance amending Ordinance No. 9411. Background On July 2, 1985 (M&C G-6372), City Council adopted Ordinance 9411, which per- mits AT&T to install fibreoptic cable facilities on certain city streets for a term of twenty-five years. Following its adoption, AT&T requested that certain changes be made to Ordinance No. 9411 to provide the following 1. That by agreeing to the terms of the ordinance, AT&T is not waiving any rights it may have under Article 1416, V.A.C.S., 2. That if the City requires AT&T to rernove or alter its facilities installed hereunder to enable any other corporation or person (non-permitted user), to use such streets, except the City or any other person or corporation franchised by the City as of July 2, 1985, or having an existing use agreement in those portions of the city streets to be used hereunder, then it shall be a condition precedent to AT&T's obligation to remove or alter the cables that the non-permitted user furnish a bond to reimburse AT&T for any damages, and 3. That the base for adjustment of the annual fee to be paid by AT&T to the City will be the Implicit Price Deflator for Gross National Product as determined by the Federal Reserve Bank of St. Louis reported for the first quarter of the calendar year in which the first annual payment is due. The remainder of the changes in the ordinance are minor in nature and are made for clarification and to remove certain ambiguities. The City staff has reviewed these changes and interposes no objections to them. These proposed changes are satisfactory to AT&T. APPROVED BY DAI •;w CITY COUNCIL Attachment EC ~'~ d985 D /~ "~ ~ /L~ly'h. ~~.~~-y Crty Seoretazp o: the _.___-•-- __- ._~_ _ City of Fort W~ ~i~#sas-_-_._ • SUBMITTED FOR THE ~ ~ ~ CITY MANAGER'S 1 7. ' CIFFICE BY ./~/ -~ ~ ~ /' DISPOSITION BY COUNCIL: ^ APPROVED PROCESSED BV ORIGINATING /~ DEPARTMENT HEAD: W Adkins ! ^ OTHER (DESCRIBE) , ~ CITY SECRETARY FOR AODIfIONAL INFORMATION CONTACT Aughinbaugh 6798 r~''y`~ rrii ~~~~~~(~ dJIl,IC~~G{{~~.~ r~~+ _-- DATE