HomeMy WebLinkAboutContract 46114 CITY SECRETAW
CONTRACT
PUBLIC RIGHT-OF-WAY USE AGREEMENI
This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made
and entered into by and between the CITY OF FORT WORTH, a home rule municipal
corporation organized under the laws of the State of Texas and acting by and through its duly
authorized Assistant City Manager (the "City"), and UNITE PRIVATE NETWORKS, L.L.C.,
a Delaware limited liability company, acting by and through its duly authorized General Counsel
(the"Company").
The following statements are true and correct and constitute the basis upon which the
City of Fort Worth has executed this Agreement.
A. Company wishes to construct fiber optic line under certain Public Rights-of-Way
for the transportation of data and information services to one or more specifically identified
private customers. Because the fiber optic line is not available for use by the general public,
because Company is not a public utility, as that term is used in the City Charter and City Code,
and because Company will not be providing telephony services to end user customers in the City,
Company is not required to obtain a franchise from the City; however, Company 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 Right-of-Way.
B. The City has reviewed Company's request and agrees to grant Company a license
to use certain Public Rights-of-Way in order to construct, operate and maintain fiber optic line,
on the terms and conditions set forth herein, solely for the transportation of data and information
services and solely in accordance with the terms and conditions of this Agreement.
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
;0 liability company, trust, corporation, or other person or entity who owns or
rn controls, or is owned or controlled by, or is under common ownership or control
C-) with, the entity in question.
M
o Agreement shall mean the authorization issued to Company hereunder to use the Public
o Rights-of-Way for (i) the construction, installation, maintenance and repair of
< Company's Fiber Optic Line; (ii) the use of such Fiber Optic Line for the
cr transportation of data and information services; and (iii) any other directl related
uses of the Public Rights-of-Way, pursuant to cor ance th this
Agreement. OFFICIAL RECORD
GP 13-00005 CITY S@CRETARY
Enbridge Gathering(North Texas)L.P. Right-of-Way Use Agreement FT.ViORTH,TX
Page I of 17
City shall mean the area within the corporate limits of the City of Fort Worth, Texas and
the governing body of the City of Fort Worth, Texas.
Commission shall mean the Federal Communications Commission or other authority
succeeding to the regulatory powers of the Commission.
Company shall mean Unite Private Networks, L.L.C., a Delaware limited liability
company, only and shall not include any Affiliate or third party.
Customer shall mean any Person located, in whole or in part, within the City.
Director shall mean the Director of the City's Department of Transportation/Public
Works or authorized representative.
Fiber Optic Line shall mean the fiber optic lines 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 joint 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. GIU"NT OF RIGHTS.
2.1. General Use of Public Rights-of-Way for Provision of Data and information
services.
Subject to the terms and conditions set forth in this Agreement and the City
Charter and ordinances, the City hereby grants Company a license to (i) erect, construct,
install and maintain its Fiber Optic Line in, under, along and across the Public Rights-of-
Way and (ii) transport data and information services through the portions of its Fiber
Optic Line in, under, along and across the Public Rights-of-Way. Company hereby
acknowledges and agrees that this Agreement allows only the transportation of data and
information services through the City and does not allow Company to distribute, sell or
otherwise provide telephony services to any Customer.
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
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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 in a manner that does not result
in unreasonable interference with Company's operation of the Fiber Optic Line for the
purposes provided for herein. This Agreement does not establish any priority for the use
of the Public Rights-of-Way by Company or by any present or future licensees or other
permit holders. In the event of any dispute as to the priority of use of the Public Rights-
of-Way, the first priority shall be to the public generally, the second priority to the City in
the performance of its various functions, and thereafter, as between licensees and other
permit holders, as determined by the City in the exercise of its powers, including the
police power and other powers reserved to and conferred on it by the State of Texas.
2.3. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
licenses, and other approvals from the City or other regulatory agency necessary for the
construction, installation, maintenance, or repair of Company's Fiber Optic Line or the
transportation of data and information services through such Fiber Optic Line.
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 perfonned in the Public Rights-
of-Way. The bonds shall guarantee (i) satisfactory compliance by Company with all
requirements, terms and conditions of this Agreement and (ii) full payments to all
persons, firms, corporations, or other entities with whom Company has a direct
relationship for the performance of such construction, maintenance, or repairs.
If any such construction, maintenance and repair work is undertaken by a
contractor of Company, Company shall also require such contractor to deliver to
Company bonds executed by a corporate surety authorized to do business in the State of
Texas and acceptable to the City in the proportional amount of the cost of work under the
construction contract or construction project that will be performed by the contractor in
the Public Rights-of-Way. The bonds shall guarantee (i) the faithful performance and
completion of all construction, maintenance, or repair work in accordance with the
contract between Company and the contractor and (ii) full payment for all wages for
labor and services and 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.
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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 June 30, 2039, unless
terminated earlier as provided herein.
4. FEES AND PAYMENTS TO CITY.
4.1. Right-of-Way Use Fee.
Pursuant to Chapter 26, Subchapter R of the Texas Administrative Code,
Company shall pay the Access Line Charge assessed by the City on a quarterly basis.
Currently, the charge is $4.24 per Access Line per month. The parties agree and
understand that this charge may be increased periodically by the City pursuant to the
Texas Administrative Code.
4.2. Other Payments.
In addition to the License Fee, Company shall pay the City all sums which may be
due the City for property taxes, license fees, permit fees, or other taxes, charges or fees
that the City may from time to time impose on all other similarly situated entities within
the City. Company shall reimburse the City for publication of this Agreement if required
by the City's Charter.
4.3. Interest.
All sums not paid when due shall bear interest at the rate of ten percent (10%) per
annum or the maximum amount allowed by law, whichever is less, computed monthly. If
such outstanding sums are paid with interest within thirty (30) days following their
respective due dates, Company's failure to pay such sums by their respective due dates
shall not, in and of itself, constitute an Event of Default under Section 9 of this
Agreement.
5. REGULATORY AUTHORITY OF THE CITY.
Company's property 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, shall be governed by, and shall comply with all
applicable federal, state and local laws, including all ordinances, rules, and regulations of the
City, as same may be adopted and amended from time to time.
6. USE OF PUBLIC RIGHTS-OF-WAY.
6.1. Compliance with Laws, Ordinances, Rules and Regulations.
The City has the right to control and regulate the use of the Public Rights-of-Way,
public places, and other City-owned property and the spaces above and beneath them.
Company shall comply with all applicable laws, ordinances, rules and regulations,
including, but not limited to, City ordinances, rules, 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
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that may be promulgated from time to time.
6.2. No Undue Burden.
The Fiber Optic Line shall not be erected, installed, constructed, repaired,
replaced, or maintained in any manner that places an undue burden on the present or
future use of the Public Rights-of-Way by the City and the public. If the City reasonably
determines that the Fiber Optic Line does place an undue burden on any portion of the
Public Rights-of-Way, Company, at Company's sole cost and expense and within a
reasonable time period specified by the City, shall modify the Fiber Optic Line or take
other actions 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 shall, except for work required to address an
emergency, provide at least twenty-four (24) hours' advance written notice to the owners
of property adjacent to the Public Rights-of-Way that will be affected. In the case of
emergencies Company shall provide notice to the affected landowners within twenty-four
(24) hours after commencement of work. In addition, during any such work, Company
shall provide construction and maintenance signs and sufficient barricades at work sites
to protect the public. The use of such traffic control devices shall be consistent with the
standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices. Company shall utilize appropriate warning lights at all construction and
maintenance sites where one or more traffic lanes are closed or obstructed during
nighttime conditions.
6.4. "As-Built" Plans and Maps.
Company, at Company's sole cost and expense, shall provide the City with as-
built plans of all portions of the Fiber Optic Line located in the City and the City's
extraterritorial jurisdiction and maps showing such Fiber Optic Line within ninety (90)
calendar days following the completion of such Fiber Optic Line. Company shall supply
the textual documentation of such as-built plans and snaps in computer format as
requested in writing by the City and shall otherwise fully cooperate with the City in
ensuring that the Fiber Optic Line is accurately reflected in the City's snapping system.
6.5. Markinp- of Fiber Optic Line.
The Fiber Optic Line shall, if requested in writing by the Director, be marked, in a
manner that is acceptable to the Director, to show conspicuously Company's naive and a
toll-free telephone number of Company that a Person may call for assistance.
6.6. Pavement Cut Coordination and Additional Fees-
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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 Right-of-Way within ninety-
six (96) months following the construction or resurfacing of such Public Right-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 Right-of-Way or
portion thereof, the sum of (a) $1,500 for any cut, excavation or breach occurring
between the Effective Date and June 30, 2019; (b) $1,800 for any cut, excavation or
breach occurring between July 1, 2019 and June 30, 2024; (c) $2,150 for any cut,
excavation or breach occurring between July 1, 2024 and June 30, 2029; and (a) $2,600
for any cut, excavation or breach occurring between July 1, 2029 and June 30, 2039.
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 promptly restore any portion of the Public Rights-of-Way, City-owned
property, or other privately-owned property that are in any way disturbed or damaged by
the construction, operation, maintenance or removal of any of the Fiber Optic Line to, at
Company's option, as good or better a condition as such property was in immediately
prior to the disturbance or damage. Company shall diligently commence such restoration
within thirty (30) calendar days following the date that Company first became aware of
the disturbance or damage or, if the Fiber Optic Line is being removed, within thirty (30)
calendar days following such removal.
6.8. Relocation of Fiber Optic Line.
Company acknowledges and agrees that the Public Rights-of-Way in which the
Fiber Optic Line is located may, during the term of this Agreement, be subject to
Additional Projects, including, but not limited to, street or other public excavation,
construction, repair, grading, regarding, or traffic conditions; the installation of sewers,
drains, water pipes, or municipally-owned facilities of any kind; the vacation,
construction, or relocation of streets or any other type of structure or improvement of a
public agency; any public work; or any other type of improvement necessary, in the
City's sole discretion, for the public health, safety or welfare. If the City determines in
its sole reasonable discretion that the location of the Fiber Optic Line conflicts with an
Additional Project, the City may submit to Company a written Request for
Accommodation, including, but not limited to, protecting, supporting, deepening,
relocating, disconnecting, or removing all or any portion of the Company's Fiber Optic
Line within the Public Rights-of-Way. City covenants and agrees that it will only request
disconnection or removal if the City finds that no other Accommodation is reasonably or
economically feasible. Within forty-five (45) calendar days following City's written
Request for Accommodation, Company, at Company's sole cost and expense, shall make
the requested Accommodation. If Company reasonably requires more than forty-five
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(45) days to comply with the City's Request for Accommodation, Company shall notify
the Director in writing, and the City will work in good faith with Company to negotiate a
workable time frame.
6.9. Emergencies.
6.9.1. Work by the City.
For purposes of this Section 6.9.1, a public emergency shall be any
condition which, in the opinion of the officials specified herein, poses an
immediate threat to life, health or property and is caused by any natural or man-
made disaster, including, but not limited to, stonns, floods, fires, accidents,
explosion, water main breaks, and hazardous materials spills. In the event of a
public emergency, the City shall have the right to take whatever action is deemed
appropriate by the City Manager, Mayor, Police Chief or Fire Chief, or their
authorized representatives, including, but not limited to, action that may result in
damage to the Fiber Optic Line, and Company hereby (i) releases the City, its
officers, agents, servants, employees and subcontractors from liability or
responsibility for any Damages, as defined in Section 7.1, that may occur to the
Fiber Optic Line or that Company may otherwise incur as a result of such a
response, and (ii) agrees that Company, at Company's sole cost and expense, shall
be responsible for the repair, relocation or reconstruction of all or any of its Fiber
Optic Line that is affected by such action of the City. In responding to a public
emergency, the City agrees to comply with all local, state, and federal laws,
including any requirements to notify the Texas One Call System, to the extent that
they apply at the time and under the circumstances. In addition, if the City takes
any action that it believes will affect the Fiber Optic Line, the City will notify
Company as soon as practicable so that Company may advise and work with the
City with respect to such action.
6.9.2. Work by or on Behalf of Company.
In the event of an emergency that directly involves that portion of the
Fiber Optic Line located in the Public Rights-of-Way and necessitates immediate
emergency response work or repairs, Company may initiate the emergency
response work or repairs or take any action required under the circumstances
provided that Company notifies the City as promptly as possible. After the
emergency has passed, Company shall apply for and obtain a construction pennit
from the director of the City's Department of Transportation/Public Works and
otherwise fully comply with the requirements of this Agreement.
6.10. Removal of Fiber Optic Line.
Upon the revocation, termination, or expiration without extension or renewal of
this Agreement, Company's right to use the Public Rights-of-Way under this Agreement
shall cease and Company shall immediately discontinue the transportation of data and
information services in or through the Fiber Optic Line. Within six (6) months following
such revocation, termination, or expiration and if the City requests, Company, at
Company's sole cost and expense, shall remove the Fiber Optic Line from the Public
Rights-of-Way (or disconnect and abandon the Fiber Optic Line, if consented to by the
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City), in accordance with applicable laws and regulations. If Company has not removed
all of the Fiber Optic Line from the Public Rights-of-Way (or disconnected and
abandoned the Fiber Optic Line, if consented to by the City) within six (6) months
following revocation, tennination, or expiration of this Agreement, the City may deem
any portion of the Fiber Optic Line remaining in the Public Rights-of-Way abandoned
and, at the City's sole option, (i) take possession of and title to such property or (ii) take
any and all legal action necessary to compel Company to remove such property;
provided, however, that Company may not abandon its facilities or discontinue its
services within the City without the approval of the Commission or successor agency or
any other regulatory authority with such jurisdiction.
Within six (6) months following revocation, tennination, or expiration of this
Agreement and in accordance with Section 6.7 of this Agreement, Company shall also
restore any property, public or private, that is disturbed or damaged by removal (or, if
consented to by the City, disconnecting and abandoning) of the Fiber Optic Line. If
Company has not restored all such property within this time, the City, at the City's sole
option, may perform or have performed any necessary restoration work, in which case
Company shall immediately reimburse the City for any and all costs incurred in
performing or having performed such restoration work.
7. LIABILITY AND INDEMNIFICATION.
7.1. Liability of Company.
Company shall be liable and responsible for any and all damages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands,
defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including,
without limitation, fees, disbursements and reasonable expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of investigation and
preparation) of any kind or nature whatsoever (collectively "Damages"), which may
arise out of or be in any way connected with (i) the construction, installation, operation,
maintenance or condition of the Fiber Optic Line or any related facilities or
appurtenances; (ii) the transportation of data and information services through the Fiber
Optic Line; (iii) any claim or lien arising out of work, labor, materials, or supplies
provided or supplied to Company, its contractors or subcontractors; or (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, AGENTS, REPRESENTATIVES, AND EMPLOYEES
("INDEMNITEES"), FROM AND AGAINST ANY AND ALL DAMAGES
(INCL UDING, WITHO UT LIMITA TION, THOSE FOR PROPER TY DA MA GE AND
PERSONAL INJURY, INCLUDING DEATH) WHICH MAY ARISE OUT OF OR BE
IN ANY WAY CONNECTED WITH (I) THE CONSTRUCTION, INSTALLATION,
OPERATION, MAINTENANCE, OR CONDITION OF THE FIBER OPTIC LINE
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OR ANY RELATED FACILITIES OR APPURTENANCES, (II) THE
TRANSPORTATION OFDATA AND INFORMATION SERVICES THROUGH THE
FIBER OPTIC LINE, (III) ANY CLAIM OR LIEN ARISING OUT OF WORK,
LABOR, MATERIALS, OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY,
ITS CONTRACTORS OR SUBCONTRACTORS, OR (IT) COMPANY'S FAILURE
TO COMPLY WITH ANY FEDERAL, STATE, OR LOCAL LA IV, ORDINANCE,
R ULE OR REGULA TION, EXCEPT TO THE EXTENT DIRECTL Y CA USED BY
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.
8. INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or policies
of insurance to provide coverages as specified herein, naming the City as an additional insured and
covering all public risks related to the use,occupancy, condition, maintenance, existence or location
of the Public Rights-of-Way and the construction, installation, operation, maintenance or condition
of the Fiber Optic Line, including the transportation of data and information services through the
Fiber Optic Line. The required insurance can be met by a combination of self-insurance, primary
and excess policies.
8.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
$1,000,000 per occurrence, including coverage for the following: (i) Premises
Liability; (ii) independent contractors; (iii) products/completed operations; (iv)
personal injury; (v) contractual liability; (vi) explosion, collapse and
underground property damage.
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• Property Damage Liabifi
$10,000,000 per occurrence
• 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
• Worker's Compensation:
As required by law; and, Employer's Liability as follows:
$1,000,000 per accident.
8.2. Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk Manager, the City may at any
time revise insurance coverage requirements and limits required by this Agreement.
Company agrees that within thirty (30) days of receipt of written notice from the City,
Company will implement all such revisions requested by the City. The policy or policies of
insurance shall be endorsed to provide that no material changes in coverage, including, but
not limited to, cancellation, termination, non-renewal or amendment, shall be made without
thirty(30)days' prior written notice to the City.
8.3. Underwriters and Certificates.
Company shall procure and maintain its insurance with underwriters authorized to
do business in the State of Texas and who are acceptable to the City in terms of solvency
and financial strength. Within thirty(30) days following adoption of this Agreement by the
City Council, Company shall furnish the City with certificates of insurance signed by the
respective companies as proof that it has obtained the types and amounts of insurance
coverage required herein. In addition, Company shall, on demand, provide the City with
evidence that it has maintained such coverage in full force and effect.
8.4. Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein
shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line
of coverage, or aggregate is otherwise approved by the City.
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8.5. No Limitation of Liability.
The insurance requirements set forth in this Section 8 and any recovery by the City
of any sum by reason of any insurance policy required under this Agreement shall in no way
be construed or effected to limit or in any way affect Company's liability to the City or other
persons as provided by this Agreement or law.
9. DEFAULTS.
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.
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
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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. 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. RC::edies 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 tennination, 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 tennination.
Company shall remove the Fiber Optic Line from and restore the Public Rights-
of-Way as and when requested by the City. The City's right to tenninate this
Agreement under this Section 10.2.1 does not and shall not be construed to
constitute any kind of limitation on the City's right to tenninate this Agreement
for other reasons as provided by and in accordance with this Agreement;
provided, however, that Company may not abandon the Fiber Optic Line without
the approval of the Commission or successor agency or other regulatory authority
with jurisdiction, if such action without such approval is prohibited at the time by
applicable federal or state law or regulation.
10.2.2 Legal Action Against 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.
Unite Private Networks, L.L.C. Right-of-Way Use Agreement
Page 12 of 17
11. PROVISION OF INFORMATION.
11.1. Filings with the Commission.
Company shall provide copies to the City of all documents which Company files
with or sends to the Commission concerning or related to its operations in the City,
including, but not limited to, filings related to (i) tariffs; (ii) rules, regulations, and
policies requested, under consideration or approved by the Commission; and (iii)
applications and any supporting pre-filed testimony and exhibits filed by Company or
third parties on behalf of Company, on the same date as such filings are made with the
Commission. In addition, Company shall provide the City with copies of records,
documents, and other filings that Company is required to maintain or supply to the
Commission under 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
transportation of data and information services through the City within thirty (30) days of
Company's receipt of same.
12. COMPANY AS INDEPENDENT CONT:ALTO R.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement and not as an agent,
representative, or employee of the City. Company shall have the exclusive right to control the
details of its business and other operations necessary or appurtenant to the transportation of data and
information services in accordance with the terms and conditions of this Agreement, and shall be
solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors
and subcontractors. Company acknowledges that the doctrine of 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. ASSIG:TMENT PROHIBITED.
Company may not assign or otherwise transfer any of its rights or obligations under this
Agreement unless specifically authorized in writing by the City, which authorization shall not be
unreasonably withheld. Notwithstanding the preceding sentence, Company may, without the
City's consent, assign its rights and obligations under this Agreement to an entity acquiring all or
substantially all of Company's assets whether through an acquisition, merger, or corporate
restructuring. In the event of any such assignment, Company will notify City of the assignment
prior to its completion or as soon thereafter as reasonably practicable.
14. NOTICES.
Unite Private Networks, L.L.C. Right-of-Way Use Agreement
Page 13 of 17
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 Unite Private Networks, L.L.C.
Public Utilities Administrator Attn: Matthew Myers
1000 Throckmorton 120 S. Stewart Rd.
Fort Worth, TX 76102 Liberty, MO 64068
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 Optic Line.
16. NO WAIVER.
The failure of the City to insist upon the performance of any teen 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, Company's transportation of data and information
services, or Company's use of the Public Rights-of-Way, venue for such action shall lie exclusively
in state courts located in Tarrant County, Texas or the United States District Court for the Northern
District of Texas, Fort Worth Division.
18. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Company's
Unite Private Networks,L.L.C. Right-of-Way Use Agreement
Page 14 of 17
Fiber Optic Line, Company's operations in the City, Company's transportation of data and
information services, 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 tenns, 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-perfonnance shall be deemed excused for the period of such inability. Causes or
events that are not within the Company's control shall include, but not be limited to, acts of God,
strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions, natural disasters,
and declarations of disaster or emergency adopted in accordance with applicable law.
21. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions in Section 1, that are used in this Agreement
are for reference purposes only and shall not be deemed a part of this Agreement.
22. ENTIRETY OF AGREEMENT.
This instrument (including the schedule of exhibits attached hereto and any documents
incorporated herein by reference) constitutes the entire understanding and agreement between the
City and Company as to the matters contained herein. Any prior or contemporaneous oral or
written agreement is hereby declared null and void to the extent in conflict with the terns 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.
EXECUTED as of the later date below:
CITY OF FORT WORTH: UNITE PRIVATE NE ORKS, L.L.C.
By: By:
/Vl S
Assistant City Manager �' Q eoU ve S- t
Date: //A LI* Date: 10—jD-1 4
Unite Private Networks, L.L.C. Right-of-Way Use Agreement
Page 15 of 17
APPROVED AS IV 3 PG
C j RM AND LEGALITY:
By. c
Denis WE
Assistant City Attorney
M&c:
o Oi
Miry J. K r, City
�XA�
OFFICIAL RECORD
Unite Private Networks,L.L.C.
CITY SECRETARY
Page 16 of 17 Right-of--Way Use Agreement RTI�I �"
EXHIBIT"A"
Company may only use the following portions of the Public Rights-of-Way in the City as depicted
on the attached map.
Unite Private Networks,L.L.C.Right-of-Way Use Agreement
Page 17 of 17
City of Fort Worth, Texas
Mayor and Council Communication
Oumt t �:' ' Pr iced on 1011412
DATE: Tuesday, October 14, 2014 REFERENCE NO.: **C-27032
LOG NAME: 20ROW USE AGREEMENT- FIBER OPTIC - UNITE
SUBJECT:
Authorize Execution of a Public Right-of-Way Use Agreement Granting Unite Private Networks, L.L.C., a
License to Construct and Operate a Private-Use Fiber Optic Data Line Crossing Houston Street and
Intersecting Existing Conduit at Sixth Street and at Throckmorton Street (COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a public right-of-way use Agreement with
Unite Private Networks, L.L.C., for a monthly access line fee determined in accordance with state law and
granting a license to construct and operate a private-use fiber optic data line crossing Houston Street
(north of Fourth Street) and intersecting existing conduit at Sixth Street (between Houston and
Throckmorton Streets) and Throckmorton Street (south of Seventh Street).
DISCUSSION:
Unite Private Networks, L.L.C., is constructing a private-use digital fiber optic line to connect a customer's
locations in downtown Fort Worth. The approximate location of the line is shown on the attached
aerial. With the exception of the noted crossing and intersects, the fiber optic will be located within the
footprint of existing conduit.
The Transportation and Public Works Department has reviewed the proposed location and has no
objections.
The public right-of-way use Agreement will give Unite Private Networks, L.L.C., a license to specific public
right-of-way for the limited purpose of operating a private-use digital fiber optic line for a period of 25
years. Unite Private Networks, L.L.C., will pay the City a monthly access-line fee determined in
accordance with state law in return for this privilege. The current access-line fee is $4.24 per month. The
company will be required to provide bonds and insurance in accordance with the City's current standard
policies. Because Unite Private Networks, L.L.C., will not be providing telephone service or general public
access, it is not a public utility, as that term is defined in Chapter 28 of the City Code, and a franchise
governing its operations is not required by the City Charter.
The proposed location is in COUNCIL DISTRICT 9.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that the City's Utility Manager is responsible for the
collection and deposit of the access line fees due to the City under this Agreement.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
Logname: 20ROW USE AGREEMENT- FIBER OPTIC - UNITE Page 1 of 2
CERTIFICATIONS:
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Douglas W. Wiersig (7801)
Mark Stefanik (7661)
Additional Information Contact: Denis McElroy (2758)
ATTACHMENTS
i. Unite Diagram.pdf (Public)
2. Unite I'OW Use Agreement.pdf (CFW Internal)
Logname: 20ROW USE AGREEMENT - FIBER OPTIC - UNITE Page 2 of 2
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