HomeMy WebLinkAboutContract 32922 -,iTY %ECRETARY
CONTRACT NO.
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 Richard
Zavala, its duly authorized Acting Assistant City Manager, and BNSF RAILWAY COMPANY,
a Delaware Corporation acting by and through Jeff J. Campbell, Vice-president Technology
Services and CIO of BNSF Railway Company.
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed this Agreement.
A. BNSF Railway Company, a Delaware Corporation ("Company") is constructing
a private fiber optics communications system and wishes to install and use Fiber Optics Cable
within a portion of the Public Rights-of-Way (as specified and defined in Section 1) for purposes
of operating a private communication system to serve its corporate offices in the City. Because
Company is not a public utility, as that term is used in the City Charter and City Code, as well as
generally under applicable state laws, Company is not required to obtain a franchise from the
City, but is required to obtain the City's consent pursuant to a license agreement that sets forth
the terms and conditions under which Company may use the Public Rights-of-Way.
B. Company has represented to the City that the Fiber Optics Cable is for internal
use by Company, and that no portion of the Fiber Optics Cable will be sold or leased to a third
party.
C. The City has reviewed Company's request and agrees to grant Company a license
to the Public Rights-of-Way in order to construct, operate and maintain Fiber Optics Cable
within the Public Rights-of-Way solely for private use by Company and solely in accordance
with the terms and conditions of this Agreement.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Affiliate shall mean any individual, partnership, association, joint stock company, limited
liability company, trust, corporation, or other person or entity who owns or
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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 construction, installation, maintenance and repair of
Company's Fiber Optics Cable; (ii) the use of such Fiber Optics Cable; and (iii)
any other directly related uses of the Public Rights-of-Way, pursuant to and in
accordance with this Agreement.
Company shall mean BNSF Railway Company, a Delaware corporation, only and shall
not include any Affiliate or third party.
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.
Customer shall mean any Person located, in whole or in part, within the City other than
Company and Company's employees acting in their official capacities as
Company's employees.
Director shall mean the Director of the City's Department of Transportation/Public
Works or authorized representative.
Fiber Optics Cable shall mean the Fiber Optics Cable and other facilities approved by
the Director that are installed by Company in the Public Rights-of-Way in
accordance with this Agreement.
Person shall mean, without limitation, 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 Rights-of-Way shall mean only those dedicated public streets, highways, alleys
and rights-of-way in the City identified in Exhibit "A" of this Agreement,
attached hereto and hereby made a part of this Agreement for all purposes.
2. GRANT OF RIGHTS.
2.1. Use of Public Rights-of-Way Limited to Use of Fiber Optics Cable.
Subject to the terms and conditions set forth in this Agreement and the City
Charter and ordinances, the City hereby grants Company a license to (i) erect, construct,
install, use and maintain Fiber Optics Cable in, over, under, along and across the Public
Rights-of-Way. Company hereby acknowledges and agrees that this Agreement allows
only private use of the Fiber Optics Cable and does not allow Company sell or lease
capacity on the Fiber Optics Cable to any Customer.
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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 same 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 such dispute in a manner that
does not result in unreasonable interference with Company's use of the Fiber Optics
Cable 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, all as determined by the City in the exercise of its
powers, including police powers 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 all permits,
licenses and other approvals from the City or other regulatory agency necessary for the
construction, installation, maintenance or repair of Company's Fiber Optics Cable or use
of such Fiber Optics Cable.
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
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labor and services and 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
This Agreement shall become effective on the date as of which both parties have
executed it ("Effective Date") and shall expire at 11:59 P.M. CST on September 30, 2030 unless
terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Right-of-Wav Use Fee.
On or prior to the Effective Date, Company shall pay the City as compensation
for its use of the Public Rights-of-Way for the Term of this Agreement the sum of Thirty-
Five Thousand Two Hundred Forty-Eight Dollars and Seventy-Five Cents ($35,248.75)
("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.
4.2. [INTENTIONALLY DELETED]
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 and operations hereunder shall be subject to such regulation by the
City as may be reasonably necessary for the protection or benefit of the general public. In this
connection, Company shall be subject to, 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.
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6. USE OF PUBLIC RIGHTS-OF-WAY.
6.1. Compliance with Laws, Ordinances, Rules and ReLyulations.
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 and policies related to 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 Optics Cable 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 the Public Rights-of-Way by the City and the public. If the City reasonably
determines that the Fiber Optics Cable 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 Optics Cable or take
other actions reasonably determined by the City to be in the public interest to remove or
alleviate the burden.
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's contractor 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 or its contractor shall provide notice to the affected
landowners within twenty-four (24) hours after commencement of work. In addition,
during any such work, Company or its contractor 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 or its contractor
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 or its contractor, at Company's sole cost and expense, shall provide the
City with as-built plans of all portions of the Fiber Optics Cable located in the City and
the City's extraterritorial jurisdiction and maps showing such Fiber Optics Cable within
ninety (90) calendar days following the completion of such Fiber Optics Cable.
Company shall supply the textual documentation of such as-built plans and maps in
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computer format as requested in writing by the City and shall otherwise fully cooperate
with the City in ensuring that the Fiber Optics Cable is accurately reflected in the City's
mapping system.
6.5. Marking of Fiber Optics Cable.
The Fiber Optics Cable shall 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 City's program for street construction, rebuilding, resurfacing and repair. In order
to preserve the integrity of the Public Rights-of-Way, Company shall not cut, excavate or
otherwise breach or damage the surface of any paved Public Rights-of-Way within
ninety-six (96) months following the construction or resurfacing of such Public Rights-
of-Way unless (i) Company obtains written consent from the Director and (ii) pays the
City, for each fifty (50) linear feet of a cut, excavation or breach of any Public Rights-of-
Way or portion thereof, the sum of(a) $1,250 for any cut, excavation or breach occurring
between the Effective Date and November 30, 2006; (b) $1,500 for any cut, excavation or
breach occurring between December 1, 2006 and November 30, 2011; (c) $1,800 for any
cut, excavation or breach occurring between December 1, 2011 and November 30, 2016;
(d) $2,150 for any cut, excavation or breach occurring between December 1, 2016 and
November 30, 2021; and (e) $2,600 for any cut, excavation or breach occurring between
December 1, 2021 and January 31, 2029. Such fee shall (i) be in addition to, and not in
lieu of, Company's obligations to restore the Public Rights-of-Way in accordance with
this Agreement and (ii) 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 restore in a timely manner 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
Optics Cable 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 Optics Cable is being
removed, within thirty (30) calendar days following such removal.
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6.8. Relocation of Fiber Optics Cable.
Within ninety (90) calendar days following a written request by the City,
Company, at Company's sole cost and expense, shall protect, support, disconnect or
remove from the Public Rights-of-Way all or any portion of its Fiber Optics Cable 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; any public work; or any other type of
improvement necessary, in the City's reasonable but sole discretion, for the public health,
safety or welfare; provided, however, that the City shall use commercially reasonable
efforts to design any such project or undertake any such work in a manner that does not
require such relocation. If Company reasonably requires more than forty-five (45) days
to comply with the City's written request, it shall notify the director of the City's
Department of Transportation/Public Works 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, 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 Manger, Mayor, Police Chief or Fire Chief, or their
authorized representatives, including, but not limited to, action that may result in
damage to the Fiber Optics Cable, 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 Optics Cable 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
Optics Cable 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 Optics Cable, the City will notify
Company as soon as practicable so that Company may advise and work with the
City with respect to such action.
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6.9.2. Work by or on Behalf of Company.
In the event of an emergency directly that involves that portion of the
Fiber Optics Cable located in the Public Rights-of-Way and necessitates
immediate emergency response work on 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 Optics Cable.
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. 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 Optics Cable from the Public Rights-of-Way in accordance with applicable laws
and regulations. If Company has not removed all of the Fiber Optics Cable from the
Public Rights-of-Way within six (6) months following revocation, termination or
expiration of this Agreement, the City may deem any portion of the Fiber Optics Cable
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.
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 of the
Fiber Optics Cable. 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, 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"), to the extent
such Damages are caused by the negligent construction, installation, operation,
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I
maintenance or condition of the Fiber Optics Cable or any related facilities or
appurtenances or 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 federal, state or local law, ordinance, rule or regulation, 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, A GENTS, EMPL O YEES AND VOLUNTEERS
("INDEMNITEES'), FROM AND AGAINST ANY AND ALL DAMAGES TO THE
EXTENT THAT SUCH DAMAGES ARE CAUSED BY THE NEGLIGENT
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR
CONDITION OF THE FIBER OPTICS CABLE OR ANY RELATED FACILITIES
OR APPURTENANCES; (II) ANY CLAIM OR LIEN ARISING OUT OF WORK,
LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY,
ITS CONTRACTORS OR SUBCONTRACTORS, OR (III) COMPANY'S FAILURE
TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE,
R ULE OR REGULA TION, EXCEPT TO THE EXTENT DIRECTL Y CA USED B Y
THE NEGLIGENT OR GROSSLY 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.
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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 Optics Cable.
8.1. Primary Liability Insurance Coverap_e.
• Commercial General Liabilitv:
$10,000,000 per occurrence, including coverage for the following where
exposure exists and as directed by the City's Risk Manager: (i) Premises
Liability; (ii) independent contractors; (iii) products/completed operations; (iv)
personal injury; (v) contractual liability; (vi) explosion, collapse and
underground property damage; and (vii) above-ground property damage.
• Automobile Liability:
$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
• Coverage Pursuant to Federal Employee Liability Act:
As required by law; and $1,000,000 per accident.
8.2. Revisions to Required Coverag .
At the reasonable recommendation of the City's Risk Manager, the City may revise
insurance coverage requirements and limits required by this Agreement one (1) time
following the tenth (10th) anniversary of the Effective Date and one (1) time following the
twentieth (20th) anniversary of the Effective Date. In accordance with the preceding
sentence, Company agrees that within thirty (30) days of receipt of written notice from the
City, Company will implement all such 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. Self Insurance.
The City agrees and acknowledges that BNSF is self insured for the coverages
required herein. Prior to execution of this Agreement and at any time thereafter (but no
more than one (1) time in any given calendar year, BNSF shall provide the City with a letter
of self insurance.
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8.4. 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.
The occurrence at any time during the 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 Company 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.
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10. UNCURED DEFAULTS AND REMEDIES.
10.1. Notice of Default and Opportunity to Cure.
If an Event of Default occurs on account of Company's failure to pay the License
Fee in accordance with Section 9.1, 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, the City shall provide Company with written
notice and shall give Company the opportunity to cure such Event of Default. For an
Event of Default 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, Company shall have sixty
(60) days from the date it receives written notice from the City to cure the Event of
Default; provided, however, that after diligently and continuously attempting to cure the
Event of Default, Company reasonably determines that it will need additional time to
cure the Event of Default, then Company shall have such time as the parties reasonably
agree is necessary to effect such cure. If any Event of Default is not cured within the
time period specified herein, such Event of Default shall, without further notice from the
City, become an "Uncured Default" and the City immediately may exercise the
remedies provided in Section 10.2.
10.2. Remedies for Uncured Defaults.
Upon the occurrence of an Uncured Default, the City 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 City may have:
10.2.1. Termination of Agreement.
Upon the occurrence of an Uncured Default, the City may terminate this
Agreement. Upon such termination, Company shall forfeit all rights granted to it
under this Agreement, and, except as to Company's unperformed obligations and
existing liabilities as of the date of 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.
Company shall remove the Fiber Optics Cable from and restore the Public Rights-
of-Way to substantially the same condition as existed on the Effective Date of this
License. The City's right to terminate this Agreement under this Section 10.2.1
shall 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.
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10.2.2 Leeal Action Alzainst Company.
Upon the occurrence of an Uncured Default, the City may commence
against Company 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. Filings.
Company shall provide copies to the City of all documents that Company is
required to maintain or supply to any governmental authority, including, but not limited
to, the State of Texas and the United States of America pursuant to any applicable state or
federal law, rule or regulation.
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 and/or the
Fiber Optics Cable within thirty (30) days of Company's receipt of same.
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 use of the Fiber Optics,
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 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.
13. ASSIGNMENT PROHMITED.
Neither party may assign or otherwise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the other party, which authorization shall not
be unreasonably withheld; provided, however, that nothing herein shall be construed to deny or
limit any right of the City to vacate or otherwise exercise its police power in governing the Public
Rights-of-Way.
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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 BNSF Railway Company
Attn: Public Utilities Supervisor Attn: Kevin Kautzman
1000 Throckmorton Consulting Systems Eng. II
Fort Worth,TX 76102 2400 Western Center Blvd.
Fort Worth,TX 76131
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Utilities
1000 Throckmorton
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 Optics Cable.
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.
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 or Company's use of the Public Rights-of-Way,
BNSF Fiber Optics Cable Right-of-Way Use Agreement _ _
Page 14 of 17
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 Optics Cable, Company's operations in the City,or Company's use of 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 and natural
disasters.
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. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, 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
and approved by the City Council of the City.
BNSF Fiber Optics Cable Right-of-Way Use Agreement
Page 15 of 17
EXECUTED as of the later date below:
CITY OF FORT WORTH: BNSF RAILWAY COMPANY,
A Delaware Corporation
By: By:
Ri and Zavala J amp el
Acting Assistant City Manager Vice President echnology Services
Date: vc-1 % S 8 �r Date:
APPROVED AS TO FORM AND LEGALITY:
By:
Peter Vaky
Assistant City Attorney
M&C: C - 2a6o ! 3-25f-DS
Attested By:
fN
l�larty Hendr'
Citv Secretary
BNSF Fiber Optics Cable Right-of-Way Use Agreement
Page 16 of 17 —
EXHIBIT "A"
Company may only use the following portion of the Public Rights-of-Way in the City:
• At the intersection of Watagua-Smithfield Road and Western Center Blvd approximately
865 total linear feet along Watagua-Smithfield Road, crossing Western Center Blvd. and
along Western Center Blvd. to BNSF Railway Company Property.
BNSF Fiber Optics Cable Right-of-Way Use Agreement f 1
Page 17 of 17 lr -
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 3/24/2005
DATE: Thursday, March 24, 2005
LOG NAME: 03BNSFOl REFERENCE NO.: **C-20601
SUBJECT:
Authorize Execution of Public Right-of-Way Use Agreement Granting Burlington Northern Santa Fe
Railway a License to Use Certain Public Rights-of-Way for the Purpose of Constructing, Maintaining
and Operating a Private Fiber Optics Communications System
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a public right-of-way use
agreement with Burlington Northern Santa Fe Railway (BNSF) that grants BNSF a license to use certain
public rights-of-way of the City of Fort Worth for the purpose of constructing, maintaining and operating a
private fiber optics communications system.
DISCUSSION:
BNSF is constructing a fiber optics cable to its headquarters in north Fort Worth. The cable will occupy
rights-of-way along Watauga-Smithfield Road and Western Center Blvd. A map showing the location of the
project is attached.
The Department of Transportation and Public Works has reviewed BNSF's proposed route and has no
objections.
The public right-of-way use agreement will give BNSF a license to use those specific public rights-of-way for
the limited purpose of operating a private fiber optics communications system for a period of twenty-
five years. BNSF will be prohibited from providing any telecommunications services for sale or lease to
third parties and/or leasing fiber optics for that purpose. BNSF will pay the City a one-time license fee of
$35,248.75 in return for this privilege. BNSF will be required to provide bonds and insurance in accordance
with the City's current standard policies. BNSF is not a public utility, a franchise governing its operations is
not required.
This project is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Department of Budget and Management Services is responsible for
the collection of funds due to the City under this agreement.
Logname: 03HRS01 Page 1 of 2
TO Fund/Account/Centers FROM Fund/Account/Centers
GG01 421502 0134010 $35.248.75
Submitted for City Manager's Offices Richard Zavala (Acting) (6222)
Originating Department Head: Bridgette Garrett (8518)
Additional Information Contact: Danny Reed (6145)
Logname: 03HRS01 Page 2 of 2