HomeMy WebLinkAboutContract 26930 CITY SECRETARY n
TRACT NO . 1
CON RECEIVE ®
JUN29Zoo,
PUBLIC RIGHT-OF-WAY USE AGREEMENT
JENKENS&GILCHRIST
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 Charles
Boswell, its duly authorized Assistant City Manager, and MCImetro Access Transmission
Services LLC, a Delaware limited liability company acting by and through Marty Hersh, its duly
authorized Director.
The following statements are true and correct and constitute the basis of this Agreement:
A. Company is a Certificated Telecommunications Provider. A copy of Company's
certificate of convenience and necessity, certificate of operating authority or special provider
certificate of operating authority is attached hereto as Exhibit "A" and hereby made a part of this
Agreement for all purposes.
B. In accordance with Chapter 283 of the Texas Local Government Code, a
Certificated Telecommunications Provider is entitled to erect poles or construct conduit, cable,
switches and related appurtenances and facilities and excavate within the Public Rights-of-Way
in order to provide telecommunications services other than Cable Services. Company wishes to
erect, construct, and/or excavate in the Public Rights-of-Way in order to provide
telecommunications services other than Cable Services in the City.
C. In accordance with Chapter 283 of the Texas Local Government Code, a
municipality may exercise police power-based regulations in the management of the use of its
public rights-of-way by a Certificated Telecommunications Provider in order to protect the
health, safety and welfare of the public. The City wishes to set forth reasonable regulations and
requirements in this Agreement for the use of the Public Rights-of-Way by Company and
Company is willing to abide by such regulations.
Agreement
1, DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Access Line shall mean, unless the PUC adopts a different definition pursuant to Section
283.003 of the Texas Local Government Code, a unit of measurement
representing (i) each switched transmission path of the Transmission Media (a)
that is physically within a Public Right-of-Way extended to the end-use
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Public Right-of-Way Use Agreement
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customer's premises within the City; (b)that allows the delivery of local exchange
telephone services within the City; and (c) that is provided by means of owned
Facilities, unbundled network elements or leased Facilities, or resale; or (ii) each
termination point or points of a nonswitched telephone or other circuit consisting
of Transmission Media located within a Public Right-of-Way connecting specific
locations identified by, and provided to, the end-use customer for delivery of
nonswitched telecommunications services within the City; or (iii) each switched
transmission path within a Public Right-of-Way used to provide central office-
based PBX-type services for systems of any number of stations within the City
(and in that instance, one path shall be counted for every ten (10) stations served).
"Access Line" shall not mean and shall not include (i) interoffice transport or
other Transmission Media that do not terminate at an end-use customer's premises
or (ii) duplicate or multiple assessments of Access Line rates on the provision of a
single service.
Act shall mean the federal Communications Act of 1934, as amended by the
Telecommunications Act of 1996.
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.
Cable Services shall mean only:
• The one-way transmission to subscribers of(i) Video Programming or (ii) other
programming services, such as digital audio, by which is meant information
which Company makes available generally to all subscribers of Company's Cable
Services, such as digital cable radio service; and
• Subscriber interaction, if any, including, but not limited to, that which is used for
the selection or use of(i) Video Programming or other programming services; (ii)
various on-screen options; (iii) game channels; and (iv) interactive services, such
as the ordering of merchandise and the downloading of programs or data access
Cable Television System shall mean a facility consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment that is
designed to provide Cable Services which are provided to multiple subscribers
within the City, but shall not include (i) a facility that serves only to re-transmit
the television signals of one or more television broadcast stations; (ii) a facility
that serves subscribers without occupying any portion of the Public right-of-way;
(iii) a facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Act, except that, other than for purposes of Section
621(c) of the Act, such a facility shall be considered a Cable Television System to
the extent that such facility is used in the transmission of Video Programming
directly to subscribers, unless the extent of such use is solely to provide
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interactive on-demand services; (iv) an open video system that complies with
Section 653 of the Act; or (v) any facilities of any electric utility used solely for
operating its electric utility systems.
Certificated Telecommunications Provider shall mean a Person to whom the PUC has
issued a (i) certificate of convenience and necessity; (ii) certificate of operating
authority or (iii) service provider certificate of operating authority, as those terms
are defined in Title 2, Subtitle C of the Texas Utilities Code.
Company shall mean MCImetro Access Transmission Services LLC
City shall mean the area within the corporate limits of the City of Fort Worth, Texas.
Director shall mean the Director of the City's Transportation/Public Works Department
or authorized representative.
Facilities shall mean all facilities placed in, on, under or above the Public Rights-of-Way
by or on behalf of Company, including, but not limited to, duct spaces, manholes,
poles, conduits, underground and overhead passageways, and other equipment,
structures and appurtenances and all associated Transmission Media in the Public
Rights-of-Way used by Company for purposes other than the provision of Cable
Services or Open Video System Services.
FCC shall mean the Federal Communications Commission.
Open Video System shall mean a facility consisting of a set of transmission paths and
associated signal generation, reception and control equipment that is designed to
provide cable service which includes video programming and which is provided
to multiple subscribers within the City and that has been certified by the FCC as
an Open Video System in accordance with 47 C.F.R. §§ 76.1500 et seq.
Person shall mean an individual, a corporation, a limited liability company, a general or
limited partnership, a sole proprietorship, a join venture, a business trust or any
other form or business entity or association.
Public Right-of-Way shall mean the area on, below or above a public roadway,
highway, street, public sidewalk, alley, waterway or utility easement in which the
City has an interest, but shall not include (i) the airwaves above such Public
Rights-of-Way with regard to wireless telecommunications or (ii) any other
property of the City.
PUC shall mean the Public Utility Commission of Texas.
Supervisor shall mean the City's Public Utilities Supervisor.
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Video Programming shall mean programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
2. PERMIT.
Company shall not initiate or have initiated 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 unless Company first obtains a respective permit ("Permit")
from the Director. The City will provide the Permit to Company free of charge following (i) full
compliance with the prerequisites set forth in Section 3 of this Agreement and (ii) the Director's
review of Company's Permit application within a reasonable time following its submission to the
Director.
3. PREREQUISITES TO ISSUANCE OF CONSTRUCTION PERMIT.
3.1. Registration.
In order for the City to know which Certificated Telecommunications Providers
own Facilities in the City's Public Rights-of-Way, Company shall register with the
Supervisor and provide the following information at a minimum: (i) Company's name;
(ii)the current name, address and telephone number(s) of a contact employed by and with
binding and decision-making authority for the Company and who is available twenty-four
(24) hours per day; and (iii) proof of insurance in accordance with this Agreement.
Company shall update and keep current its registration with the City at all times.
3.2. Application.
Company shall submit an application for a Permit to the Director at least ten (10)
working days prior to the commencement of the respective use of the Public Right-of-
Way except (i) where waived by the Director in writing or (ii) in the event of an
emergency response related to an existing Facility owned by Company. The Permit
application shall include the following information at a minimum: (i) the name of
Company; (ii) the current name, address and telephone number(s) of a contact employed
by and with binding and decision-making authority for the Company and who is available
twenty-four (24) hours per day; (iii) the name, address and telephone number of any
contractor or subcontractor that will be performing work in, on or above the Public Right-
of-Way; (iv) the proposed location of any construction and route of all Facilities that
Company intends to install in, on or above the Public Right-of-Way; (v) the construction
and/or installation methods that Company intends to employ in order to protect existing
structures, fixtures and facilities within or adjacent to the portions of the Public Right-of-
Way that will be affected by Company's respective project; and (vi) the dates and times
that Company wishes to use the Public Right-of-Way.
3.3. Executed Public Right-of-Way Use Agreement.
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Company shall provide the Director with a fully executed copy of this Agreement
upon submission of Company's Permit application.
3.4. Bond.
Prior to the commencement of any work in the Public Rights-of-Way in the City
that requires a cut, opening or other excavation, Company shall deliver to the City a bond
executed by a corporate surety authorized to do business in the State of Texas and
acceptable to the City in the amount of Twenty-five Thousand Dollars ($25,000.00) or an
amount sufficient to restore the Public Rights-of-Way affected by the cut, opening or
other excavation if such amount is readily discernible and acceptable to the Director. The
bond shall guarantee that Company shall (i) restore the Public Rights-of-Way affected by
such cut, opening or other excavation in a satisfactory and workmanlike manner (ii)
maintain such restoration work in a state of repair satisfactory to the City for a period of
two (2) years following the date of restoration; and (iii) fully comply with the terms and
conditions of the Permit and the City's ordinances governing excavations in the Public
Rights-of-Way.
4. AS-BUILT PLANS AND DRAWINGS.
Company shall provide the Director with as-built plans and drawings of Company's
Facilities within thirty (30) calendar days following the completion of such Facilities and
annually thereafter, if the Company has constructed new or modified existing facilities during the
calendar year. As-built plans and drawings shall be new drawings or redlined changes to
drawings previously provided to the Director. Company shall supply the textual documentation
of such as-built plans and drawings in computer format as requested by the City.
5. MUNICIPAL FEE.
Company shall pay the City a quarterly Public Right-of-Way use fee ("Fee") calculated
monthly and based on the then-current Access Line rates for the City adopted by the PUC in
accordance with Section 283.055 of the Texas Local Government Code. Company shall pay the
Fee on a calendar quarterly basis to the Supervisor at the address provided in Section 12 of this
Agreement. The Fee shall be due within forty-five (45) days following the last day of each
quarter.
6. TERM
This Agreement shall become effective on the date of its execution ("Effective Date")
and shall terminate upon the effectiveness of a City ordinance governing the use of the Public
Rights-of-Way by Certificated Telecommunications Providers and other public utilities.
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7. USE OF PUBLIC RIGHTS-OF-WAY.
7.1. Minimal Interference.
Company's Facilities shall be erected and maintained in a manner that causes
minimal interference with the public's use of the Public Rights-of-Way and with the
rights or reasonable convenience of the owners of property which adjoins any of the
Public Rights-of-Way. 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 provide at least twenty-four
(24) hours' advance written notice to the occupants of property adjacent to the Public
Rights-of-Way that will be affected. Company shall comply with all applicable rules,
regulations and requirements of the City, including, but not limited to, those related to
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. In addition, during any such work, Company shall provide
construction and maintenance signs and sufficient barricades at work sites to protect the
public. The application 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 obstructed during nighttime
conditions.
7.2. Underground Facilities.
Company shall bury or have buried any of its underground Facilities at least three
(3) feet below the surface of the Public Rights-of-Way and shall place signs at intervals
reasonably requested by the City that alert the general public of the presence of such
Facilities. In any area of the City where the City currently or may in the future require
public utilities to place their Facilities underground, then Company shall also place its
Facilities underground.
7.3. Joint Use.
In order to avoid an undue burden on the infrastructure of the Public Right-of-
Way and an unnecessary proliferation of Facilities above the Public Rights-of-Way
Company shall, consistent with federal and state law, permit the joint use or co-location
of its poles, conduits and Facilities located in the Public Rights-of-Way by other utilities
and entities, provided that Company may require any such users to pay a reasonable fee
and enter into a reasonable agreement with Company for such use or co-location.
7.4. Relocation of Facilities.
Company, at Company's sole cost and expense, shall protect, support, disconnect,
relocate or remove from the Public Rights-of-Way any portion of i when
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required by the City due to street or other public excavation, construction, repair, grading,
regrading 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; or any other
type of improvement necessary for the public health, safety or welfare.
7.5. Temporary Relocation of Facilities.
Upon advance notice of at least forty-eight (48) hours, Company shall temporarily
raise or lower its wires, cables or other similar Facilities upon the reasonable request of
any person or entity, including, but not limited to, a person or entity with a building
moving permit issued by the City. Company may charge a reasonable fee for this
service, but such fee shall not exceed the actual and direct costs incurred by Company in
the temporary relocation of such Facilities.
7.6. Compliance with Master Thoroughfare Plan.
Before Company constructs, installs or locates any of its Facilities along or
adjacent to any existing or proposed Public Right-of-Way, Company shall contact the
Director and verify that Company's proposed construction, installation or location of its
Facilities will not conflict or interfere with a proposed expansion of an existing Public
Right-of-Way or construction of a new Public Right-of-Way as shown on a then-current
master thoroughfare plan. If the Director determines that Company's proposed
construction, installation or location of its Facilities will constitute a conflict or
interference with such a plan, the Director shall notify Company of the conflict or
interference and Company shall work with the City in good faith to resolve the conflict or
interference.
8. CABLE AND OPEN VIDEO SYSTEM SERVICES PROHIBITED.
Company shall not provide Cable Services through its Facilities or initiate construction of
a Cable System or Open Video System in the Public Rights-of-Way without a franchise awarded
by the City in accordance with the Act.
9. INSURANCE.
9.1. Required of Company.
Company shall provide the Director with proof insurance of the types and limits as
follows:
• Commercial General Liability:
$5,000,000 per occurrence;
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• Property Damage Liability:
$10,000,000 per occurrence;
• Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all owned, hired or non-owned motor vehicles used in
conjunction with Company's use of the Public Rights-of-Way
Company's insurance shall be underwritten by entities authorized to do business in the State
of Texas and who are acceptable to the City in terms of solvency and financial strength.
Company's insurance policy or policies shall name the City as an additional insured and
cover all public risks related to Company's use the Public Rights-of-Way. 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. The City shall have the right to revise
insurance coverage requirements under this Agreement upon a reasonable determination by
the City's Risk Manager that Company's use of the Public Rights-of-Way mandates such a
revision. Company shall comply with such revised requirements within ten (10) calendar
days of receipt of written notice by the City of such a revision.
9.2. Required of Company's Contractors.
Company shall require any contractors who undertake construction, installation,
maintenance, repairs or other work that requires the excavation, lane closure, or other
physical use of the Public Rights-of-Way to maintain insurance of the same types and
limits and on the same conditions as provided by Section 9.1 of this Agreement.
10. INDEMNITY.
In accordance with Section 283.057 of the Texas Local Government Code, Company
shall indemnify and hold the City and its officers and employees harmless against any and all
claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorneys'
fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of
any kind and nature, including personal or bodily injury (including death), property damage, or
other harm for which recovery of damages is sought that is found by a court of competent
jurisdiction to be caused solely by the negligent act, error, or omission of Company or any agent,
officer, director, representative, employee, affiliate or subcontractor of Company, or their
respective officers, agents, employees, directors or representatives, while installing, repairing or
maintaining Facilities in a Public Right-of-Way. The indemnity provided under Section 283.057
of the Texas Local Government Code and this Section 10 does not apply to any liability resulting
from the negligence of the City, its officers, employees, contractors or subcontractors. If
Company and the City are found jointly liable by a court of competent jurisdiction, liability shall
be apportioned comparatively in accordance with the laws of the State of Texas without,
however, waiving any governmental immunity available to the City under Texas law and without
waiving any defenses of the parties under Texas law. This Section 10 is solely for the/,ben(-it of
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the City and Company and does not create or grant any rights, contractual or otherwise, to any
other Person or entity. Company and the City shall promptly advise the other in writing of any
known claim or demand against Company or the City related to or arising out of the Company's
activities in the Public Rights-of-Way.
11. 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 acknowledges that the doctrine of respondeat
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.
12. NOTICES.
Any notices required pursuant to the provisions of this Agreement or provided by the City or
Company to the other shall be (i)hand-delivered to the other party or (ii) mailed through the United
States Postal Service,postage prepaid,return receipt requested, addressed as follows:
To THE CITY: To COMPANY:
City of Fort Worth MCImetro Access Transmission Services LLC
Attn: Public Utilities Supervisor Attn: Municipal Affairs
1000 Throckmorton 2250 Lakeside Blvd.
Fort Worth, TX 76102 Richardson,TX 75082
with a copy to: with a copy to:
City of Fort Worth MCImetro Access Transmission Services LLC
Department of Law Law and Public Policy,Network&Facilities
Attn: Attorney for Telecommunications 2400 North Glenville Drive
1000 Throckmorton Richardson, TX 75082
Fort Worth, TX 76102
13. COMPLIANCE WITH LAWS.
Company agrees to comply with all federal, state and local laws; all ordinances, rules and
regulations of the City; and all rules and regulations established by the Director in order to protect
the public health, safety and welfare. Company agrees that if the PUC adopts any kind of order,
rule or regulation that excepts all or any portion of Company's Facilities from governance by
Chapter 283 of the Texas Local Government Code ("Excepted Facilities"), Company shall obtain
a separate written agreement, consent or franchise from the City and payM
onablleand
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non-discriminatory compensation for Company's use of the Public Rights-of-Way with respect to
the Excepted Facilities.
14. 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.
15. 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. Unless the PUC asserts jurisdiction pursuant to
and in accordance with § 283.058 of the Texas Local Government Code, venue for any action,
whether real or asserted, at law or in equity, that arises out of the terms of this Agreement 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.
16. 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 or Company's
use of Public Rights-of-Way.
17. 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.
18. HEADINGS NOT CONTROLLING.
Headings and titles that are used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
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19. ENTIRETY OF AGREEMENT.
This Agreement contains 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.
CITY OF FORT WORTH: MCImetro Access Transmis . Services LLC:
0"-By: L By: �-
Charles Boswell Marty He sh
Assistant City Manager. Director, Outside Plant Construction and
Pak : /���� Municipal Affairs
AT T: WITNESS:
By: YBy:
City Secret
APPROVED AS TO FORM AND LEGALITY:
By:_
Assistant City Attey
M&c: C-/?6 13 6-l2-0/
Orllal(-T. �Vy vffi
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City of Fort Worth, Texas
4VINvor and Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
6/12/01 **C-18613 02METR0 1 of 2
SUBJECT PUBLIC RIGHT-OF-WAY USE AGREEMENT WITH MCI METRO ACCESS
TRANSMISSION SERVICES, LLC
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Public Right-of-Way
Use Agreement with MCI Metro Access Transmission Services, LLC.
DISCUSSION:
As of September 1, 1999, any provider of local telephone services (Provider) who receives one of three
types of certificates from the Texas Public Utility Commission (PUC) has the statutory right to use the
City's public rights-of-way. The City does not have the authority to require a franchise for that use, or to
impose requirements on the Provider except those that are directly related to the municipality's
management of the public right-of-way for the benefit of the public health and safety. The PUC has
established levels of compensation that are payable by each Provider to the City.
The City has traditionally managed the use of public rights-of-way by public utilities through the terms
and provisions of its franchises. Because the City now cannot govern Providers of local telephone
services in that manner, City staff is drafting a comprehensive Public Right-of-Way Use ordinance.
Until the City Council adopts such an ordinance, the City needs to have an interim instrument to govern
the use of the public rights-of-way by these Providers. This Public Right-of-Way Use Agreement will
fulfill that need.
The Agreement sets forth essentially the same terms and conditions related to the City's management
of the public rights-of-way as those historically contained in the City's franchise agreements. The
Agreement will become effective on the date of its execution, and terminate on the date that a
comprehensive Public Right-of-Way Use ordinance becomes effective. MCI Metro Access
Transmission Services, LLC will pay the City a quarterly fee calculated monthly and based on (i) $1.10
for each residential access line that it has in the public rights-of-way and (ii) $3.56 for each non-
residential access line that it has in the public rights-of-way.
City of Fort Worth, Texas
qV01yor and council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
6/12/01 **C-18613 1 02METR0 2 of 2
SUBJECT PUBLIC RIGHT-OF-WAY USE AGREEMENT WITH MCI METRO ACCESS
TRANSMISSION SERVICES, LLC
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Revenue Division of the Finance Department will be responsible
for the collection and deposit of funds due to the City under this agreement.
CB:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to) n
GG01 421342 0134090 CITY CVUNCIL
OVED
Charles Boswell 8511
Originating Department Head:
JUN 12 2001
Charles Boswell 8511 (from) I
i
Additional Information Contact: 4� /
City Secretary of the
City of Fort Worth,Textae
Danny Reed 6145