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HomeMy WebLinkAboutOrdinance 9494 r ,~ ~ ~ r ORDINANCE NO. `7 AN ORDINANCE PERMITTING AND REGULATING THE CONSTRUCTION, MAINTENANCE AND USE OF A LlJNG DISTANCE TELECOMMUNICATIONS SYSTEM BY MCI TELECOMMUNICATIONS CORPORATION ACROSS, OVER AND UNDER CERTAIN STREETS, HIGHWAYS AND PUBLIC RIGHTS-OF- WAY OF THE CITY OF FORT WORTH; PROVIDING FOR A SEVERA- BILITY CLAUSE; MAKING THIS ORDINANCE CUMULATIVE OF PRIOR ORDINANCES AND REPEALING ALL PRIOR ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, MCI Telecommunications Corporation, a Delaware corpo- ration, hereinafter "MCI," 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, in- cluding, but not limited to, Article 1416 V. A.C.S. ; and WHEREAS, the City Council has determined that it is appropriate to grant the following license to MCI; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. PURPOSE That the City of Fort Worth (hereinafter the " City") hereby grants to MCI and its successors and assigns, for the full term of twenty-five (25) years frcan the date of passage of this ordinance, a license to acquire, erect, construct, replace, reconstruct, main- tain, use and operate in, over, under, along and across certain streets of the City (hereinafter the "public right-of-way") all necessary or desirable wires, cables, ;underground conduits, man- holes or other structures or appurtenances (hereby 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 MCI shall use pursuant to this ordinance shall be that portion of the City street system extending for a length of approximately two thousand nine ,; ~, ~ , ,r .. hundred eighty-five (2, 985) feet beginning at the point where the Missouri Pacific Railway (MOPAC) right-of-way intersects with South Lamar Street, thence along Lamar Street in a northerly direction, crossing West Lancaster, West 13th Street, West Texas Street and West 10th Streets to intersection of West 7th Street; thence east on West ?th Street and crossing Taylor and Throckmorton Streets to the Texas Building (formerly Continental National Bank Building , which is located at 200 West 7th Street. The route thus described is shown on Exhibit "P," attached hereto and incorporated herein for all pur- poses incident hereto. SECTION 2. REGULATION OF CONSTRUCTION The work done by MCI in erecting, constructing, replacing, re- constructing , maintaining or repairing the system shall be subject 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 sys- tem which will require any digging , cutting or any other such dis- ruption of City right-of-way or City property after the effective date of this ordinance, MCI 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, withheld or denied by the City. -2 - B. All excavations and other construction in the streets shall be so carried out 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 governing body of the City under the police and regulatory powers of the City neces- sary to provide for public convenience.. MCI shall promptly restore all public right-of-way excavated by MCI to substantially the same condition as before such excavation and to the reasonable satisfac- tion of the City. MCI shall comply with all other construction requirements of the City and its Director of Transportation/Public Works Department with respect to hours of construction operations in peak-busy traffic hours, barricading requirements and/or any other reasonable construction rules which may be lawfully promulgated . C. Except in an ~nergency, MCI shall not excavate any pavement in any public right-of-way or significant amounts of any unpaved public right-of-way without first securing the permission of the City, but such permission shall not be unreasonably delayed, with- held or 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 ~nergency conditions. D. The City shall have the power at any time to order and re- quire MCI to remove or abate any facility that is dangerous to life or property, and in case MCI, after written notice, fails or refuses to comply within a reasonable period of time, the City shall have the power to remove or abate same at the expense of MCI, all without compensation or liability for damages to MCI. SECTION 3. WORK BY OTHERS The City reserves the right, subject to further conditions de- scribed 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 -3 - 'S 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 MCI and try change any curb or side- walk or the grade of any street. In permitting such work to be done, the City shall not be liable to MCI for any damages so caused, nor shall the City be liable to MCI for any damages arising out of the performance of said work by the City or its licensees, invitees, contractors or subcon- tractors; provided, however, nothing herein shall relieve any other person or corporation from liability for damage to the facilities of the system. If the City requires MCI 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 water pipe , sewer pipe or other underground or aboveground structure owned by the City, MCI 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 MCI, MCI shall have the right to present alternative proposals for the City's consideration. If the City requires MCI to remove, alter, change, adapt or conform its facilities installed hereunder to enable any other corporation or person, including the City, to use, or to use with greater conveni- ence, such public right-of-way, then City shall not be liable for any reimbursement, loss and expense which will be caused by, or arise aut of, such removal, alteration, change, adaptation or con- formance of MCI's 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 any public right-of-way after the adoption of this ordinance, such grant to abutting landowners shall be subject to the prior rights of MCI described in this ordnance . -4 - SECTION 5. RIGHTS IN THE EVENT OF A.BANDONM.ENT 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 MCI installed hereunder, any conveyance of land contained in such closed or abandoned street, alley, highway or public place shall be subiect to the rights of MCI described in this ordinance. In the event that any portion of the public right-of-way that includes facilities of the system become the subject of condemnation proceedings, it is agreed that MCI'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 spe- cifically allocated between MCI's interest and the City's interest. The City shall notify MCI within a reasonable time of_ any condemna- tion 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. INDEMNITY MCI 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 anv property occasioned by, or arising out of or in connection with, the erection, construction, location, replacement, reconstruction, repair, maintenance or operation of MCI's system; and MCI will be required to pa_y any iudgment with costs which may be obtained against the City arising out of such injury or damage; provided, however, that the City shall notify MCI of_ any pending action or suit which may affect MCI under the terms of this agreement. 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 MCI's exercise of. its rights under this ordinance, including the erection, construction, loca- -5- tion, replacement, reconstruction, maintenance, repair or operation of the facilities of the system in Fort Worth. MCI shall keep com- plete and accurate maps, construction drawings and specifications describing the location of facilities of the syst~n in Fort Worth. Maps, construction drawings and specifications kept by MCI in accor- dance 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 main- tained 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 specifications; provided, however , that copies of such maps , construction drawings and speci- fications taken by City shall be returned to MCI immediately upon completion of City's use of same. MCI shall sully cooperate in making available its maps, construction drawings and specifications for inspection. Maps, construction drawings and specifications required by this ordinance and maintained by MCI shall not leave the possession of MCI, 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 Fort Worth City Hall 1000 Throckmorton Fort Wox`th, Texas 76102 with copy to: Public Utilities Supervisor Fort Worth City Hall 1000 Throckmorton Fort Worth, Texas 76102 Notice to MCI Telecommunication Corporation will be to: Senior Vice President Transmission Systems Operations 1133 - 19th Street, N.W. Washington, D. C. 20036 -6 - with copy to: Senior Vice President and General Counsel 1133 - 19th Street, N.W. Washington, D. C. 20036 or to such other address as MCI may designate from time to time by written notice. SECTION 9. FEE A. MCI shall make an initial payment of $10, 000 representing the fee for the first year of the twenty-five (25) year term of the privilege granted hereunder, payable upon Fort Worth City Council' s approval of the Grant of Privilege, and MCI shall make annual pay- ments during each of the remaining successive twenty-four (24) years at the rate of not less than $1.00 per linear foot of City-owned right-of-way used per year (a distance of 2, 985 feet as shown on Exhibit "A" attached to this ordinance) , as determined from the engineering plans to be provided by MCI to the City in accordance with Section 1 of this ordinance. The above fees shall be adjusted on a percentage basis and pro- portionally 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. MCI shall be notified of the adjustment forty-five (45) days prior to the date said fee is due under this ordinance. The base for the adj ustment 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 annual payment is due . This ordinance is intended to grant use of the public right-of-way only in connection with the uses prescribed hereunder, and any other use of public right-of-way, including use for previously existing facilities, is not authorized by this ordinance. The fee payment shall be exclusive of and in addition to all general municipal taxes of whatever nature, including but not limited to ad valorem taxes and special taxes and assessments for public improvements except as hereinafter provided . -7 - n £ ~ t3. The initial fee of Ten Thousand Dollars (510,000.00) shall be paid to the City of Fort u7orth within thirty (30) days after the effective date of this ordinance, and the subsequent annual payments shall be made within thirty (30) days after the anniversary of the effective date of this ordinance. The fee is payable to "City of Fort Worth" and shall be directed or delivered to the City Public Utilities Supervisor/Department of Law. C. The fee established in Section 9A hereof shall not be affected by any relocation of MCI facilities required by the City pursuant to this ordinance. SECTION 10. ASSIGNMENT The rights granted by this ordinance inure to the benefit of MCI, and any parent, subsidiary, affiliated 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 MCI 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 substantially all of the obligations of MCI here- under, and (ii) is bound to the same extent as MCI hereunder. Such consent shall not be capriciously or unreasonably withheld, delayed or conditioned. Any required consent is to be evidenced by an ordi- nance or resolution of_ the governing body of the City that fully recites the terms and conditions, if any, upon which consent is g iven. SECTION 71. LEASING OR DEDICATION OF FACILITIES MCI, 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-MCI company; provided that MCI 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 ordi- nary conduct of its business as a long distance telecommunications company, so long as MCI retains responsibility for servicing and -8- repairing the facilities of its system. Notwithstanding the fore- going, MCI will not lease any conduit space in the system to any non-MCI company for the placement of any additional cable without 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 MCI 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 (1964), 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 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 jurisd fiction, 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 -9- 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: ` ~Z~ ~ ~ ~ ADOPTED: EFFECTIVE : ~~ f -10- n'nsTER F16E~1 - ~:+ ~ a ~i TRAN$PORTATION~PUBLIC WG, " ~~/"y~ Q111/~ VIA TER ADMINIaiRAT{ON ; 1(~/elyyJ ((/~ I/ Z„AY/•1. pity ~nf ' ~®~°t W'~rth, ~C~~c~~ DATE REFERENCE SUBJECT Request of MCI Telecommunica- ~ PAGE 10/1/85 NUMBER tions Corp. fora Grant of Privilege G-6451 I ' °` 2 Communications Cable System in Down- town Fort Worth Recommendation It is recommended that the City Council adopt the attached ordinance authorizing MCI Telecommunications Corp. (hereinafter MCI) to use City of Fort Worth rights- of-way for installation of afibre-optics communications cable system. Background In the past year, the City staff has discussed with a number of long-distance communication carriers, the installation of fibre-optics cable systems in the Fort Worth Central Business District. Fibre-optics cable transmission is the newest of the rapidly developing high technology media means, and utilizes a small light-transmitting strip of cable encased in a protective sheath. Typical cable configurations contain from three to seven continuous fibres, each capable of literally thousands of voice and data transmissions. The City Council was informed of these developments in a prior communication (letter from City Attor- ney) on April 18, 1985. Other communications companies have discussed with the staff their plans for similar fibre-optics cable installations on street rights-of-way but the propo- sals of these companies have not yet reached finalization. It is reasonably anticipated that similar requests for use of City streets will be filed in the near future. The Transportation/Public Works Department and the Utilities Supervisor have in- formed all of these fibre-optics cable communication firms of the City's strict coded concrete cover protection, and other detailed construction rules and regu- lations so that these facilities can be installed and maintained in the future with a minimur~ of inconvenience of other users of the streets. All of these com- panies now understand clearly that they must fit their facilities into the matrix of existing public utilities and that normal traffic movements must not be dis- rupted during construction of the new cable systems. The first of these carriers, AT&T Communications, applied for and received the City Council's approval of privilege on July 2, 1985 (M&C G-6372, Ordinance No. 9411) for AT&T's installation of 1600 feet of cable in South Jennings and Throckmorton Streets. Summary of Ordinance Provisions f1CI s propose cab a construction in Fort Worth will be in the amount of 2,985 linear feet, extending from the center line of the Missouri Pacific Railroad, south along Lamar Street, north to West Seventh Street, and east to the Texas Building as shown in attached Exhibit A. The ordinance provides for a grant of ~` DATE REFERENCE NUMBER SUt39ECT H Request of MCI Telecommunica- PAGE 10/1/85 G-6451 ____ tions Corp, for a Grant of Privilege 1.~~ 2. of 2 Communications Cable System in Down- t own Fort Wort h privilege for this cable installation for a term of 25 years, beginning on the date the ordinance is adopted. The consideration for this privilege is MCI's agreement to pay upon adoption of this ordinance, $10,000 for the first year and thereinafter,$2,985 per year (at the rate of $1 per foot) for the second through the 25th year of the term of privilege. The ordinance provides that the annual "Street Rental" payments keep pace with inflation. Even with modest inflation, as is currently in effect (3.9%), this ordinance will produce additional revenues to the City in the life of the privilege in the amount of $126,630. DAI kcy Attachment APPROVED DY CITY CO~i~C~L OCT ~. s~+~5 d---e.._.~.~. Citp Se~ret~ry cE tha ~.l ~. o~ Pvnt W,~t, ,T`'~ SUBMITTED FOR THE CITY MANAGER'S DISPOSITION BY COUNCIL. PROCESSED BY OFFICE BY ~~ APPROVED ORIGINATING DEPARTMENT HEAD: Wm. W. Wood I I OTHER (DESCRIBE) CITY SECRETARY FOR ADDITIONAL INFORMATION lied Ordinance ~~o^ CONTACT Richard Aughinbau h ext 679 DATE ~~~