HomeMy WebLinkAboutOrdinance 15126~.~.
ORDINANCE NO. ~ B ~ ~p
AN ORDINANCE GRANTING A LICENSE AND FRANCHISE TO
CITYNET TELECOMMUNICATIONS, INC. FOR USE OF THE SEWER
SYSTEM, STORM DRAIN SYSTEM AND OTHER PORTIONS OF THE
PUBLIC RIGHTS-OF-WAY IN THE CITY OF FORT WORTH FOR THE
PURPOSE OF CONSTRUCTING, INSTALLING, OPERATING,
MAINTAINING AND REPAIRING A FIBER OPTIC CABLE NETWORK;
REQUIRING ACCEPTANCE AND EXECUTION OF A UTILITY
LICENSE AND PUBLIC RIGHT-OF-WAY USE AGREEMENT BY
CITYNET TELECOMMUNICATIONS, INC. AND CITYNET U.S.
OPERATING COMPANY REGARDING CONDITIONS AND
REQUIREMENTS RELATED TO THE USE OF THE SEWER SYSTEM,
STORM DRAIN SYSTEM AND OTHER PORTIONS OF THE PUBLIC
RIGHTS-OF-WAY IN THE CITY OF FORT WORTH; TO THE
CONSTRUCTION AND MAINTENANCE OF A FIBER OPTIC CABLE
NETWORK; AND TO REASONABLE COMPENSATION TO THE CITY
OF FORT WORTH FOR THE USE OF THE SEWER SYSTEM, STORM
DRAIN SYSTEM AND OTHER PORTIONS OF THE PUBLIC RIGHTS-
OF-WAY; PROVIDING FOR PUBLICATION; AND PROVIDING AN
EFFECTIVE DATE.
The following statements are true and correct and constitute the basis upon which the
City Council of the City of Fort Worth ("City") has adopted this Ordinance:
A. CityNet Telecommunications, Inc. ("Company"), a Delaware corporation,
wishes to use certain specific portions of the sewer system, storm drain system and other portions
of the public nghts-of--way in the City for the purpose of installing, constructing, operating,
maintaining and repainng a fiber optic cable network m the City This network will consist of
stainless steel conduits containing fiber optic cables that are installed into the City's sewers,
storm drains and other portions of the public nghts-of--way Specifically, Company will use
robots to traverse sewer lines and storm drains and to connect the cables directly to the ceiling of
the interior of the affected sewer and storm dram pipes. Company intends to lease fiber optic
cables within the conduits to third party entities as part of the operation and provision of vanous
telecommunications services by such third parties.
B. The City is the owner m fee simple of the sewer and storm drain systems that
Company wishes to use. The sewer and storm dram systems are also largely located m the
public nghts-of--way of the City, and Company's use of the sewer and storm drain systems will
affect and place additional burden on those public nghts-of--way Consequently, Company's use
of the sewer and storm drain systems will constitute both a use of City property and a use of the
public nghts-of--way In addition, Company wishes to use certain portions of the public nghts-
of-way other than the sewer and storm dram systems in order to make its fiber optic cable
network operational. Therefore, Company has requested a license from the City in order to use
City property and, in accordance with the City Charter and ordinances of the City, a franchise
from the City m order to excavate m and otherwise use certain public nghts-of--way other than
those m which the sewer and storm drain systems are situated.
C. The City has reviewed Company's request and agrees to grant Company a license
and franchise to use the sewer and storm dram systems and other portions of the public nghts-of-
way inthe City solely on the terms and conditions set forth herein.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FORT WORTH, TEXAS:
Section 1. Subject to the execution by Company of a Utility License and Public Right-of-
Way Franchise and Use Agreement m the form attached hereto as Exhibit 1, which is hereby
made a part of this Ordinance for all purposes, and only m accordance with such Utility License
and Public Right-of--Way Franchise Use Agreement, the City hereby grants Company a license
and franchise to locate, place, attach, install, operate, maintain and repair a fiber optic cable
network within the sewer and storm dram systems and other portions of the public nghts-of--way
within the area of the City depicted on Exhibit "A" of such Utility License and Public Right-of-
Way Franchise and Use Agreement.
Section 2. In accordance with and as required by Section 2 of Chapter XXV of the City's
Charter, the City Secretary is hereby directed to publish this Ordinance m its entirety once each
week for four (4) consecutive weeks within a penod of thirty (30) days following adoption by the
City Council m the official newspapers of the City Company shall pay for or reimburse the City
for all expenses incurred from such publication within thirty (30) calendar days following receipt
of an invoice from the City
Section 3. This Ordinance shall be in full force and effect following the later of (i) its
publication in accordance with Section 2 and (ii) in accordance with Section 1, the execution of
the Utility License and Public Right-of--Way Franchise and Use Agreement attached hereto as
Exhibit 1
ADOPTED• ~-jJ-OZ G'°j3 b~f 1
Date M& CNumber
EFFECTIVE DATE 7- / D ~' D 2
APPROVED AS TO FORM AND LEGALITY
By.
Peter Vaky
Assistant City Attorn
City of Fort Worth
Exhibit 1
UTILITY LICENSE AND
PUBLIC RIGHT-OF-WAY FRANCHISE AND USE AGREEMENT
The following statements are true and correct and constitute the bask upon wh><ch
CityNet Telecommumcatlons, Inc. and CityNet U.S Operating Company have executed this
Utility License and Public Right-of--Way Franchise and Use Agreement ("Agreement")
A. The City Council of the City of Fort Worth has adopted an ordinance that grants
CityNet Telecommunications, Inc. a franch><se to construct, install, operate, maintain and repair a
fiber optic cable network in certain specific portions of the sewer and storm drain systems and
other portions of the public rights-of--way m the City of Fort Worth ("Public Right-of--Way Use
Ordinance"), subject to the execution by CityNet Telecommunications, Inc. of this Agreement.
B. In accordance with the Public Right-of--Way Use Ordinance, CityNet
Telecommunications, Inc. desires to enter into this Agreement and to abide by its terms and
conditions.
NOW, THEREFORE, in consideration of the benefits, promises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged by the parties, the City of Fort Worth and CityNet
Telecommunications, Inc. agree as follows.
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings.
Administrator shall mean the City's Utilities Administrator or authorized representative
appointed by the City Manager
Affiliate shall mean any individual, partnership, association, point stock company, limited
liability company, trust, corporation, or other person or entity who owns or
controls, or is owned or controlled by, or >s 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 provided by, or generally considered comparable to programming
provided by, a television broadcast station, (ii) other programming services, such
as digital audio, by which is meant information which Company makes available
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
generally to all subscribers of Company's Cable Services, such as dlgltal cable
radio service; (iii) information servlces; (iv) Internet protocol (IP) telephony; (v)
high speed data service; (vi) Internet access and Internet service, such as that of
any Internet service provider; and (vii) interactive services, such as the ordenng
of merchandise and the downloading of programs or data access.
Certificated Telecommunications Provider shall have the same meaning as that
provided by § 283 002(2) of the Texas Local Government Code.
City shall mean the area wrthm the corporate limits of the City of Fort Worth, Texas and
the governing and admimstratlve body thereof.
Company shall mean CityNet Telecommunications, Inc., a Delaware corporation, only
and shall not include any Affiliate or third party unless an assignment of all of
Company's interest in this Agreement is (i) made to CityNet U S Operating
Company pursuant to and m accordance with Section 14.2, or (ii) made to Electro
Bank pursuant to and in accordance with Section 14.3, or (iii) subsequently
authonzed by the City m wntmg pursuant to and in accordance with Section 14 4
and any subsequent wntten agreement(s) between the City and such assignee, in
all of which cases the tenn "Company" shall be deemed to include the assignee.
Effective Date shall mean the effective date of the Public Right-of--Way Use Ordinance.
FCC shall mean the Federal Communications Commission.
Gross Revenue shall mean all of the amounts earned or accrued by Company, or by an
entity in any way affiliated with Company, m whatever form and from all sources
which are m connection with or attributable to the operation of the Network,
including, but not limited to, sums received by Company for use of the Network
by Third Party Providers. Gross Revenue shall not include (i) any tax or fee
imposed on users of the Network by the City or any other governmental authority
and collected by Company on behalf of the City or other governmental authonty;
(ii) actual bad debt, refunds or credits, provided that any such bad debt
subsequently collected shall be included as Gross Revenue for the quarter in
which rt was collected, and (iii) the revenues of Company or any Affiliate of
Company that are generated In a manner not associated with the Network.
Network shall mean Company's system of conduits, wires, fiber optic cables, coaxial
cables and other media, equipment, structures and appurtenances located in the
City's Sewer System, Storm Drain System and Public Rights-of--Way
Person shall mean an individual, a corporation, a limited liability company, a general or
limited partnership, a sole proprietorship, ajoint venture, a business trust or any
other form or business entity or association.
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
Public Rights-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 the airwaves above such Public ltights-
of-Way with regard to wireless telecommunications.
PUC shall mean the Texas Public Utility Commission.
Sewer System shall mean any City-owned pipe or conduit within the area of the City
depicted on Exhibit "A" that is designed to collect and transport industrial waste
and domestic sewage.
Storm Drain System shall mean any City-owned pipe or conduit within the area of the
City depicted on Exhibit "A" that is designed to collect and transport storm water
Telecommunications Service shall mean the offering, transmission or receipt of any
type of telecommunications service, other than long distance telephone service, to
the public, or to such classes of users as to be effectively available directly to the
public, regardless of the facilities used, by means of the transmission, between or
among points specified by the user, of information of the user's choosing, without
change in the form or content of the information as sent and received.
Third Party Provider shall mean any Person, excluding Company but including any
Affiliate of Company, that purchases, leases or otherwise acquires use of all or
any portion of the Network.
T/PW Director shall mean the director of the City's Transportation/Public Works
Department or his or her authorized representative.
Water Department Director shall mean the director of the City's Water Department or
his or her authorized representative.
2. GRANT OF RIGHTS.
2.1. Use of Sewer and Storm Drain Systems and Public Rights-of--Way.
Subject to the terms and conditions set forth in this Agreement, the City hereby
grants Company a license and franchise to locate, place, attach, install, operate, maintain
and repair its Network in the Sewer System, Storm Dram System and Public Rights-of-
Way within the area of the City depicted on the map of Exhibit ~~A" and m accordance
with the rules and regulations of Exhibit "B", both of which are attached hereto and
hereby made a part of this Agreement for all purposes. Company covenants and agrees
that the use of the Sewer System and Storm Drain System granted under this Agreement
constitutes an actual use of both a facility owned by the City in fee simple and the Public
Rights-of--Way, since the portion of the Sewer System and Storm Dram System that
Company wishes to use is located within the Public Rights-of--Way and Company's use
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
of the Sewer System and Storm Dram System will affect and add additional burden to the
Public Rights-of--Way Therefore, Company understands and agrees that the City is
entitled to recover reasonable compensation from Company on account of its use of the
Sewer System and Storm Drain System both asCity-owned facilities and as a part of the
Public Rights-of--Way, as more specifically set forth in Section 4 of this Agreement.
2.2. Applicability of Chapter 283. Texas Local Government Code.
Company represents that it has filed an application with the PUC for designation
as a Certificated Telecommunications Provider Chapter 283 of the Texas Local
Government Code ("Chapter 283") applies to certain operations of a Certificated
Telecommunications Provider in the Public Rights-of--Way, but does not authorize
Company to use City-owned property located within the Public Rights-of--Way, such as
the Sewer System and Storm Drain System, per se. Therefore, subject to Sections 4 1.2
and 4.2 of this Agreement, Company covenants and agrees that if (i) Company is
designated by the PUC as a Certificated Telecommunications Provider and (ii) Chapter
283 applies to services provided by Company over the Network, the terms and conditions
of this Agreement shall not be affected and this Agreement shall remain in full force and
effect.
2.3. Restrictions on Provision of Telecommunications Services.
Subject to Section 14 1 of this Agreement, Company intends to lease portions of
its Network to Third Party Providers. These Third Party Providers will then use the
portion of the Network leased from Company to provide various data transmission
services, Cable Services and/or other Telecommunications Services to end use customers.
Company hereby acknowledges and agrees that this Agreement only allows Company to
install, operate, maintain and repair its Network in certain portions of the Sewer and
Storm Drain Systems and other Public Rights-of--Way and does not grant Company, any
Affiliate of Company or any Third Party Provider the right to use the Network for the
transmission and/or provision of data services, Cable Services and/or other
Telecommunications Services. Accordingly, Company agrees to the restrictions set forth
in Sections 2.3 1 and 2.3.2 with regard to the actual transmission and/or provision of data
services, Cable Services and/or other Telecommunications Services through the Network.
2.3.1. By Third Parties.
Company covenants and agrees that the lighting of fiber optic cables in
Company's Network by or on behalf of a Third Party Provider as well as the
transmission and/or provision of data services, Cable Services and/or other
Telecommumcations Services through the Network constitutes a use of the Public
Rights-of--Way by that Third Party Provider Company further understands and
agrees that the City may have the legal right to require a Third Party Provider to
obtain a license or franchise from the City before that Third Party Provider is
allowed to use the Public Rights-of--Way Therefore, prior to selling, leasing or
otherwise conveying any interest in all or any portion of the Network to a Third
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
Party Provider, Company shall instruct the Third Party Provider to contact the
City in order to obtain any franchise, license or other authorization to use the
Public Rights-of--Way In addition, upon selling, leasing or otherwise conveying
any interest in all or any portion of the Network to a Third Party Provider,
Company shall (i) notify the City in writing of the name and telephone number of
the Third Party Provider and (ii) require the Third Party Provider to provide
written confirmation from the City that the Third Party Provider is authorized to
use the Public Rights-of--Way and to provide services of the type represented to
Company by the Third Party Provider A sale, lease or conveyance of all or any
portion of the Network to a Third Party Provider without requiring such written
confirmation from the City will be null and void and shall constitute a material
breach of this Agreement. Any lease agreement between Company and a Third
Party Provider involving all or any portion of the Network shall contain a
provision that prohibits the Third Party Provider from using the Network in
violation of any City ordinance, rule or regulation and any applicable state
authorization. If the City determines that any Third Party Provider is using the
Network in a manner that violates a City ordinance, rule or regulation or an
applicable state authorization, the City shall notify Company in carting, and
Company agrees to cooperate fully with the City in order to remedy the problem.
2.3.2. By Company.
Company understands and agrees that this Agreement does not grant
Company or any Affiliate of Company any right to use the Sewer or Storm Drain
Systems and other Public Rights-of--Way for any reason other than the
construction, installation, operation, maintenance and repair of the Network. If
Company or an Affiliate of Company is designated by the PUC as a Certificated
Telecommunications Provider, Company covenants and agrees that such
designation shall not permit Company or an Affiliate of Company to use the
portions of the Network located in the Sewer or Storm Drain Systems to provide
the Telecommunications Services authorized by the PUC because Chapter 283
does not authorize a Certificated Telecommunications Provider the right to use
City-owned property located in the Public Rights-of--Way Therefore, if Company
or an Affiliate of Company wishes or intends to transmit and/or provide any data
services, Cable Services or other Telecommunications Services through the
Network, Company or the Affiliate, as appropriate, shall first notify the City in
writing and shall obtain a license, franchise or other written permit or agreement
from the City for such a use, if required by the City, regardless of whether
Company or the Affiliate are Certificated Telecommumcations Providers.
2.4. Scope.
Any and all rights granted to Company under this Agreement shall be subject to
(i) any easements granted to the City for or relating to the Sewer and Storm Drain
Systems and (ii) the prior and continuing right of the City to use any and all parts of the
Sewer and Storm Drain Systems and other Public Rights-of--Way for any reason deemed
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
:;
necessary by the City Nothing in this Agreement shall be deemed to grant, convey,
create or vest in Company a real property interest m land, including, but not limited to,
any fee, leasehold interest or easement.
2.5. Nonexclusive.
This Agreement and all rights granted to Company herein are strictly
nonexclusive. The City reserves the right to grant other and future licenses, franchises
and agreements related to the use of the Sewer and Storm Dram Systems and other
portions of the Public Rights-of--Way to other Persons as the City deems appropriate. 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 franchisees, users and other permit
holders, as determined by the City m the exercise of its powers, including the police
power and other powers reserved to and conferred on it by the State of Texas.
2.6. Other Permits.
This Agreement does not relieve Company of any obligation to obtain permits,
licenses and other approvals from the City necessary for the construction, installation,
repair or maintenance of the Network. Prior to the initiation of any construction work in
the Sewer System, Storm Drain System or other Public Rights-of--Way, Company shall
coordinate with the T/PW Director to obtain necessary permits and to comply with all
requirements of the City's utility construction policy
3. TERM.
Unless terminated earlier as provided in this Agreement, the term of this Agreement shall
commence on the date of its execution and expire on September 30, 2025, provided, however,
that notwithstanding anything to the contrary in this Agreement, Company's right to use any
portion of the Public Rights-of--Way other than the Sewer System and the Storm Drain System
shall not commence until the Effective Date. The period between the execution date of this
Agreement and the earlier of (i) the expiration of one hundred twenty (120) calendar days
following the Effective Date or (ii) the date that the Administrator issues a written certification to
Company that the Network is complete, m accordance with Section 7.3, shall constitute a trial
period ("Trial Period") during which Company may (i) test the Sewer and Storm Dram Systems
to ensure that the condition of the Sewer and Storm Dram Systems are satisfactory for the
installation of the Network and (ii) test for Network performance and interference. Company
shall comply with the all regulations and policies of the Water Department Director and/or T/PW
Director in performing any such tests. If Company requests, the City may, but shall not be
required to, extend the 120-day term of the Trial Period by providing Company with a written
instrument signed by the Water Department Director and T/PW Director and establishing a new
Trial Period expiration date. Company may terminate this Agreement at any time during the Trial
Period by providing written notice to the City In the event of such termination, the City shall
refund to Company an amount equal to the any Linear Foot Charge (as defined in Section 4 1.2)
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CityNet Telecommunications, Inc.
paid for the then current Fiscal Period (as defined m Section 4.3.2) times a fraction, the numerator
of which is the number of days remaining in such Fiscal Penod and the denominator of which is
365 This termination right shall expire at the end of the Trial Penod.
4. COMPENSATION.
4.1. For Use of Sewer and Storm Drain Systems.
4.1.1. As a City-owned Facility.
As compensation for Company's use of the Sewer and Storm Drain
Systems asCity-owned facilities, Company shall pay the City on a quarterly basis
throughout the term of this Agreement an amount equal to two and one-half
percent (2.5%) of Company's Gross Revenue ("Revenue-Based Fee") for that
quarter, regardless of whether Company is a Certificated Telecommunications
Provider or otherwise authorized by law to use the Public Rights-of--Way without
charge or under a different, specifically mandated schedule of compensation,
which compensation shall be separate from and in addition to that paid under this
Section 4 1 1
4.1.2. As a Portion of the Public Ris:ht-of--Way.
Except to the extent that (i) Company is a Certificated
Telecommunications Provider and Chapter 283 applies to services provided by
Company over the Network or (ii) another applicable law authorizes Company to
use the Public Rights-of--Way without charge or under a different schedule of
compensation mandated by such law, beglmm~g on the Effective Date, Company
shall, in addition to the compensation paid under Section 4 1 1 of this Agreement,
also pay the City as compensation for use of the Sewer and Storm Drain Systems
as parts of the Public Rights-of--Way an annual use fee that is calculated by
multiplying the number of linear feet of fiber optic cable conduit in the Sewer and
Storm Dram Systems by a linear foot charge, which initially shall be $1.51
("Linear Foot Charge"). The Linear Foot Charge will be subject to increase by
the Crty at any time to reflect the upward percentage change, if any, m the
Implicit Price Deflator for the Gross Domestic Product, or successor index, as
determined by the United States Department of Commerce or successor agency,
(i) for the first increase, since the Effective Date and (ii) for each subsequent
increase, since the effective date of the last increase. To the extent that (i)
Company is a Certificated Telecommunications Provider and Chapter 283 applies
to services provided by Company over the Network or (ii) another applicable law
authorizes Company to use the Public Rights-of--Way under a different schedule
of compensation, Company shall pay the City any compensation required under
Chapter 283 or such other applicable law In addition to any compensation paid
pursuant to Sections 4 1 1 and 4.5
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
4.2. For Use of the Public Rights-of-Way Apart from Sewer and Storm Drain
S sy tams.
Except to the extent that (i) Company is a Certificated
Telecommunications Provider and Chapter 283 applies to services provided by
Company over the Network or (ii) another applicable law authorizes Company to
use the Public Rights-of--Way without charge or under a different schedule of
compensation mandated by such law, beginning on the Effective Date, Company
shall pay the City as compensation for use of any portions of the Public Rights-of-
Way other than those also occupied by the Sewer and Storm Drain Systems used
by Company hereunder an annual use fee that is calculated by multiplying the
number of linear feet of fiber optic cable conduit in such portions of the Public
Rights-of--Way multiplied by the Linear Foot Charge, which shall also be subject
to adjustment as provided in Section 4 1.2. To the extent that (i) Company is a
Certificated Telecommunications Provider and Chapter 283 applies to services
provided by Company over the Network or (ii) another applicable law authorizes
Company to use the Public Rights-of--Way under a different schedule of
compensation, Company shall pay the City any compensation required under
Chapter 283 or such other applicable law in addition to any compensation paid
pursuant to Sections 4 1 1 and 4.5
4.3. Due Dates.
4.3.1. For Revenue-Based Fee.
The Revenue-Based Fee shall be due on a calendar quarterly basis.
Company shall pay the City Fifty Thousand Dollars ($50,000 00) as an initial
minimum Revenue-Based Fee ("Initial Payment") against which the City shall
credit subsequently due Revenue-Based Fees, with the understanding that if this
Agreement expires or is lawfully terminated before Company's Revenue-Based
Fee obligation to the City equals $50,000 00, the Crty shall nevertheless be
entitled to retain the entire initial Payment, which Company hereby represents
will equal fair, dust and reasonable compensation for its use of the Sewer and
Storm Drain Systems up through the effective date of such expiration or
termination. Company shall deliver the Initial Payment to the Director within
ninety (90) calendar days of the Effective Date and all other Revenue-Based Fee
payments to .the Director within forty-five (45) calendar days following the last
day of each quarter
4.3.2. For Use Fee.
The due date for payment of the annual use fees described in Sections
4 1.2 and 4.2 is based on the City's fiscal year, which begins on October 1st of a
given year and ends September 30th of the following year ("Fiscal Period").
Except to the extent that (i) Company is a Certificated Telecommunications
Provider and Chapter 283 applies to services provided by Company over the
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
Network or (ii) another applicable law authorizes Company to use the Public
Rights-of--Way without charge or under a different schedule of compensation
mandated by such law, Company shall pay its annual use fees for the forthcoming
Fiscal Period in full on or before the October 1st commencement date of that
Fiscal Period. If Company wishes to install additional fiber optic cable conduit in
the Sewer and Storm Drain Systems or other Public Rights-of--Way during a given
Fiscal Period, Company's Linear Foot Charge for that Fiscal Period shall be
prorated in accordance with the number of days remaining in such Fiscal Period.
4.4. Interest.
Any Revenue-Based Fee or annual use fee that is not paid when due shall bear
interest at the rate of ten percent (10%) per annum or the highest rate permitted by
applicable law, whichever is less, computed monthly
4.5. In-Kind Compensation.
In addition to the monetary compensation described in Sections 4 1 and 4.2, as
additional consideration for Company's use of the Sewer System and Storm Drain
System asCity-owned facilities and not as portions of the Public Rights-of--Way,
Company shall provide the City with the following in-kind compensation.
4.5.1. Dedicated Fiber.
Company shall purchase and have installed within the fiber optic cable
packet or in a separate fiber optic cable packet comprising a portion of the Network
a minimum of four (4) dark optical fibers for the City's exclusive and indefeasible
use. Unless the City agrees otherwise in writing with Company, this dedicated
fiber shall be owned and maintained by Company
4.5.2. Institutional Network.
Company, at no cost to the City, shall provide, construct, maintain and
repair a fiber optic communications network ("I-NET") in accordance with the
provisions and conditions set forth m Exhibit "C", attached hereto and hereby
made a part of this Agreement for all purposes. Unless the City agrees otherwise
in wasting with Company, the I-NET shall be owned and maintained by Company
4.5.3. Maintenance and Repair Services.
Company, at Company's sole cost and expense, shall provide the City
with maintenance and repair services to the Sewer and Storm Drain Systems as
provided in Exhibit "D", attached hereto and hereby made a part of this
Agreement for all purposes.
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CityNet Telecommunications, Inc.
4.6. Reimbursement of City Expenses.
Due to Company's use of the Sewer and Storm Drain Systems asCity-owned
facilities and not as portions of the Public Rights-of--Way, the City's Water and
Transportation/Public Works Departments will have to dedicate staff time and travel in
order to inspect and oversee Company's installation of and construction and maintenance
work on the Network. As a result, Company agrees to pay the City $50 00 per hour for
each Water Department and Transportation/Public Works Department staff member that
the City reasonably devotes for such purposes. The City shall provide Company with
invoices that describe the nature of the Water Department's or Transportation/Public
Works Department's staff work on account of Company's operations in the Sewer or
Storm Drain Systems, the amount of time used in carrying out such work and the amount
of payment that is due. Company shall pay such invoices within thirty (30) days of
receipt. In addition, Company shall pay the City all sums that 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.
5. AUDITS AND REPORTS.
Within forty-five (45) calendar days following the last day of each quarter, whether or
not the Revenue-Based Fee due for the previous quarter will be deducted from the Initial
Payment, Company shall submit to the Administrator and the Director a written report in a form
acceptable to the City and verified by an officer of Company that summarizes Company's Gross
Revenue for the previous quarter and computes the amount of the Revenue-Based Fee due the
City for that quarter The City may audit Company at any time dunng regular business hours to
verify the accuracy of Revenue-Based Fees paid to the City The City shall provide Company
with reasonable advance notice pnor to its undertaking any such audit. Company shall pay any
additional amounts due the City as reported in any City audit, plus a late fee often percent (10%)
of such additional amounts, within thirty (30) calendar days following the City's submission to
Company of an invoice for such sum. If the additional amount owed exceeds ten percent (10%)
of the Revenue-Based Fee which the audit shows should have been paid to the City for the
period in which the audit covered, Company shall also pay the City's costs for the audit.
Otherwise, the City shall pay its own costs for the audit.
6. BONDS.
6.1. Construction Bonds.
Pnor to the initiation of construction on or installation of Company's Network,
Company, at Company's sole cost and expense, shall obtain, deliver to the City and
maintain the following bonds, executed by a corporate surety authorized to do business in
the State of Texas and acceptable to the City (i) a performance bond in the amount of
Two Hundred Fifty Thousand Dollars ($250,000.00) that guarantees satisfactory
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
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compliance by Company with all requirements, terms and conditions of this Agreement
regarding construction of the Network and (ii) a payment bond that guarantees full
payments to all persons, firms, corporations or other entities with whom Company has a
direct relationship pertaining to the construction and/or installation of its Network. Upon
full completion of the Network and complete payments to all persons, firms, corporations
or other entities with whom Company has or had a direct relationship pertaining to the
construction or installation of its Network, Company shall notify the City in writing and,
after receiving the City's written approval, which shall not be unreasonably denied or
withheld, Company shall no longer be required to maintain these bonds.
6.2. Construction Bonds Required of Company's Contractors.
If any construction work is undertaken by a contractor of Company on or to
Company's Network, Company shall require such contractor to deliver to Company
bonds in the same amount as the full cost of work under the construction contract or
construction project that will be performed by the contractor in the City's corporate
limits. 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 matenals, supplies and equipment used in the performance of that contract.
Such bonds shall name both the City and Company as dual obligees.
6.3. Requirements for All Bonds.
All bonds required hereunder shall be in a form approved by the City and
executed by a corporate surety authonzed to do business in the State of Texas and
acceptable to the City In addition, all bonds required hereunder shall be endorsed to
provide that such bonds shall not be canceled or non-renewed by the surety without at
least sixty (60) days' advance written notice to the City
7. USE OF PUBLIC RIGHTS-OF-WAY.
In addition to the regulations of Exhibit "8" of this Agreement, the following provisions
shall apply to all operations undertaken by or on behalf of Company in the Public Rights-of-
Way
7.1. Network Route.
Not later than thirty (30) calendar days pnor to the expiration of the Tnal Penod,
Company shall submit a detailed proposed build-out plan for its Network to the T/PW
and Water Department Directors. The plan shall include construction drawings and a
map that depicts the proposed location of any Network facilities in the Sewer System,
Stonn Drain System and other portions of the Public Rights-of--Way, with the
understanding that Company shall use its best efforts to limit the location of its Network
facilities to only the Sewer System and other Public Rights-of--Way and shall request use
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CityNet Telecommunications, Inc.
f~.
of the Storm Drain System only in the event that Company cannot reasonably complete
its Network without use of the Storm Dram System. If the City shall has any concerns
with the plan, the City shall promptly notify Company and the parties shall work together
m good faith to make any necessary revisions to the plan. The City shall notify Company
in wasting of a final decision with regard to the plan within thirty (30) calendar days
following its submission. If Company wishes to deviate from the approved build-out
plan in the actual construction of the Network, it shall submit a revised build-out plan to
the T/PW and Water Department Directors. In this event, the revised plan shall be
reviewed and considered in the same manner as the original plan. Notwithstanding any
other provision in this Agreement that may be interpreted to state the contrary, Company
may not proceed with installation of its Network in the Sewer System, Storm Drain
System or other portion of the Public Rights-of--Way except in accordance with a
Network plan that has been approved m wasting by the City
7.2. Open Trenching.
Excavation work In the Public Rights-of--Way by or on behalf of Company shall
be by means of open trenching, m accordance with Company's permit and the rules,
regulations and instructions of the City, and not by directional boring unless otherwise
specifically authorized in writing by the T/PW Director
7.3. Certification of Completion.
Company shall notify the Water Department Director, the T/PW Director and the
Administrator in writing once the Network has been completed. The City shall have the
right to inspect the Network to determine whether Company has complied with the terms
and conditions of the City's utility construction policy and any permits issued to
Company for construction of the Network. Following satisfactory final inspections by
the Water Department Director and the T/PW Director, the Administrator shall certify to
Company in writing that the Network is complete.
7.4. As-Built Drawings.
Within sixty (60) calendar days following completion of construction and
installation of the Network, Company, at Company's sole cost and expense, shall
provide the Administrator and the T/PW and Water Department Directors with as-built
drawings, plans and maps of the entire Network. Company shall supply the textual
documentation of such as-built drawings, plans and maps in AutoCAD computer
format or as otherwise requested by the City and shall fully cooperate with the City in
ensuring that Company's Network is accurately reflected in the City's mapping system.
Company shall be liable to the City for the cost of delays and any additional expenses
incurred by the City by virtue of its reliance on erroneous information provided by
Company regarding the location of the Network.
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CityNet Telecommunications, Inc.
..
7.5. Relocation/Removal of Network Facilities.
Company, at Company's sole cost and expense and within a reasonable time
frame prescribed by the City, shall protect, support, disconnect, relocate or remove from
the Sewer and Storm Drain Systems and other portions of the Publ><c Rights-of--Way all or
any portion of the Network when required by (i) the City due to street or other public
excavation, construction, repair, grading, regrading or traffic conditions; the installation
of sewers, drams, 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; vacation or condemnation of the Public Rights-of--Way; or any other type
of improvement necessary for the public health, safety or welfare or (ii) any Person with
a franchise, agreement or permit in effect pnor to the Effective Date of this Agreement m
order to use the Public Rights-of--Way m accordance with that Person's respective
franchise, agreement or permit. In addition, subject to subsection (ii) above, Company
shall protect, support, disconnect, relocate or remove from the Public Rights-of--Way any
portion of its Network when required by any Person other than the City to use the Public
Rights-of--Way after such Person has obtained a bond or otherwise agreed to Company's
reasonable satisfaction to reimburse Company for any reasonably anticipated loss or
expense which will be caused or will apse out of such protection, support, disconnection,
relocation or removal. This Section 7.5 shall survive the termination or expiration of this
Agreement.
7.6. Removal of Network.
Within six (6) months following expiration or earlier termination of this
Agreement and in accordance with directions from the City, Company shall remove the
Network from the Sewer and Storm Drain Systems and other portions of the Public
Rights-of--Way If Company has not removed the Network from the Sewer and Storm
Drain Systems and other portions of the Public Rights-of--Way in accordance with
directions from the City within that time, the City may deem the portions of Company's
Network remaining in the Sewer and Storm Dram Systems and other portions of the
Public Rights-of--Way abandoned and, at the City's sole option, (i) take possession of and
title to such property; (ii) remove such property with proceeds from Company's Bond,
and/or (iii) take any and all legal action necessary to compel Company to remove such
property This Section 7 6 shall survive the termination or expiration of this Agreement.
7.7 Restoration of Sewer and Storm Drain Systems and Other Portions of the
Public Rights-of-Way.
Company, at Company's sole cost and expense and in a manner approved by the
City, shall promptly restore all or any portion of the Sewer System, Storm Drain System
and/or other portions of the Public Rights-of--Way that are in any way disturbed or
damaged by the construction, operation, maintenance, repair, relocation or removal of the
Network to as good or better a condition than that which ex><sted immediately prior to the
disturbance or damage. Company shall diligently commence such restoration within five
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
(5) calendar days following the date that Company first becomes aware of the disturbance
or damage or, if the Network is being removed, within five (5) calendar days following
removal of the Network. This Section 7 7 shall survive the termination or expiration of
this Agreement.
8. LIABILITY AND INDEMNIFICATION.
The terms, conditions and provisions of this Section 8 shall survive the termination or
expiration of this Agreement
8.1. Disclaimer of Liability.
THE CITY SHALL NOT AT ANY TIME BE LIABLE FOR ANY PERSONAL
INJURY, INCLUDING DEATH, OR ANY PROPERTY DAMAGE OCCURRING
FROM ANY CAUSE WHATSOEVER THAT ARISES OUT OF THE
ATTACHMENT, INSTALLATION, OPERATION, MAINTENANCE, REMOVAL,
REATTACHMENT, REINSTALLATION, RELOCATION AND/OR
REPLACEMENT OF ANY NETWORK FACILITIES AND/OR EQUIPMENT, OR
THE CONSTRUCTION, MAINTENANCE, REPAIR, USE, OPERATION,
CONDITION OR DISMANTLING OF THE NETWORK, EXCEPT TO THE
EXTENT CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT OF THE CITY IN SITUATIONS NOT COVERED BY SECTION 8.5
OF THIS AGREEMENT.
8.2. Indemnification.
COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL
INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS,
COMMISSIONS, AGENTS, EMPLOYEES AND VOLUNTEERS
("INDEMNITEES"), FROM AND AGAINST ANY AND ALL LL4BILITIES,
OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES,
LOSSES AND EXPENSES, WHETHER LEGAL OR EQUITABLE, WHICH MAY
BE IMPOSED UPON, INCURRED BY OR ASSERTED AGAINST ANY
INDEMNITEES BY REASON OF ANY (i) PERSONAL INJURY, INCLUDING
DEATH; (ii) PROPERTY DAMAGE; OR (iii) ACT OR OMISSION OF COMPANY,
ITS PERSONNEL, EMPLOYEES, AGENTS, CONTRACTORS OR
SUBCONTRACTORS, AND WHICH MAY ARISE OUT OF OR BE IN ANY WAY
CONNECTED WITH (i) THE CONSTRUCTION, INSTALLATION, OPERATION,
MAINTENANCE OR CONDITION OF THE NETWORK; (ii) THE PROVISION OF
ANY SERVICES BY MEANS OF SUCH NETWORK FACILITIES AND/OR
EQUIPMENT BY ANY PARTY; (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 THIS AGREEMENT OR ANY FEDERAL, STATE
OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, EXCEPT TO THE
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CityNet Telecommunications, Inc.
EXTENT CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT OF THE CITY IN SITUATIONS NOT COVERED BY SECTION 8.5
OF THIS AGREEMENT.
8.3. Assumation 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 -CONTROLLED
PROPERTY OR FACILITIES, INCLUDING, BUT NOT LIMITED TO, THE
SEWER SYSTEM, STORM DRAIN SYSTEM AND/OR OTHER PORTIONS OF
THE PUBLIC RIGHTS-OF--WAY. IN ADDITION, COMPANY HEREBY AGREES
TO AND SHALL INDEMNIFY AND HOLD HARMLESS ANY INDEMNITEE
FROM AND AGAINST ANY CLAIM ASSERTED AGAINST OR LIABILITY
IMPOSED UPON ANY INDEMNITEE FOR ANY PERSONAL INJURY,
INCLUDING DEATH, OR PROPERTY DAMAGE INCURRED OR ASSERTED BY
COMPANY OR ANY OF ITS EMPLOYEES, AGENTS, SERVANTS,
CONTRACTORS OR SUBCONTRACTORS, AND ARISING FROM THE USE OF
THE SEWER SYSTEM, STORM DRAIN SYSTEM AND/OR OTHER PORTIONS
OF THE PUBLIC RIGHTS-OF-WAY OR OTHERWISE FROM THE
ATTACHMENT, INSTALLATION, OPERATION, MAINTENANCE, REMOVAL,
REATTACHMENT, REINSTALLATION, RELOCATION AND/OR
REPLACEMENT OF ANY NETWORK EQUIPMENT AND/OR FACILITIES OR
THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR
CONDITION OF THE NETWORK.
8.4. Defense of Indemnitees.
In the event a third party bungs any action, lawsuit or other proceeding against
any Indemnitee that is based on a circumstance under which Company has agreed to
assume liability or is obliged to defend and indemnify the Indemnitee, the City shall give
Company prompt 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 legal counsel selected by Company and reasonably
acceptable to the City, with reasonable participation by the City In no event shall
Company ever admit or authorize the admission .of liability in any matter on behalf of any
Indemnitee without the advance written consent of the City
8.5. Work by City.
Notwithstanding any provision to this Agreement to the contrary, the City shall
have the right to sever, disrupt, remove, relocate, damage or destroy all or any portion of
Company's Network without any prior notice and at no liability to the City if such action
is deemed necessary by the T/PW Director, Water Department Director, City Manager,
Mayor, Police Chief or Fire Chief or their authorized representatives due to a public
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
emergency For purposes of this Agreement, a public emergency shall be any condition
that, in the opinion of any of the officials listed above, poses an immediate threat to life,
health or property and is caused by any natural or manmade disaster, including, but not
limited to, storms, floods, accidents, explosion, water main breaks and hazardous
materials spills. In addition, Company understands and agrees that the City shall have the
right, either directly or through a contractor or subcontractor, to vacuum and perform
routine maintenance on the Storm Drain System that may result in damage to Company's
Network. Company, at Company's sole cost and expense, shall be responsible for the
repair, relocation or reconstruction of all or any part of its Network that is affected by
action of the City covered by this Section 8.5 and hereby releases the City, its officers,
employees, agents, contractors and subcontractors from any liability for any damages
caused to the Network or otherwise as a result of such action. However, in the event of a
public emergency, without affecting the City's immunity from liability as provided in this
Section 8.5, the City shall notify Company as soon as reasonably possible under the
circumstances and, shall work with Company to minimize damage or operational
disruption to Company's Network.
9. INSURANCE.
Company shall procure and maintain at all times, in full force and effect, a policy or policies
of insurance to provide the types and limits of coverage specified below, naming the City as an
additional insured and covering all public risks related to the use, occupancy, condition,
maintenance, existence or location of the Sewer System, Storm Drain System and/or other portions
of the Public Rights-of--Way, the attachment, installation, operation, maintenance, removal,
reattachment, reinstallation, relocation and/or replacement of any Network equipment and/or
facilities and the construction, installation, operation, maintenance or condition of the Network.
9.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
$1,000,000 per occurrence;
• Property Damage Liability:
$10,000,000 per occurrence;
• Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all owned, lured 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.
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CityNet Telecommunications, Inc.
9.2. Excess Liability Insurance Umbrella.
$5,000,000, in addition to primary coverage for each coverage listed in § 9 1
9.3. 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 Company shall notify
and/or require its Insurance company or compames to notify the City at least thirty (30) days
m advance of any material reduction m policy limits or of any cancellation, termination or
non-renewal.
9.4. Underwriters and Certificates.
Company shall procure and maintain Its insurance with underwriters authorized to
do business in the State of Texas and who are reasonably acceptable to the City in terms of
solvency and financial strength. Within thirty (30) days following the date of adoption of
the Public Right-of--Way Use Ordinance, 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.
9.5. 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
9.6. No Limitation of Liability.
The insurance requirements set forth in this Section 9 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 or obligations to
the City or other Persons as provided by this Agreement or law
10. 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:
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
10.1. Failure to Pay Compensation.
An Event of Default shall occur if Company fails to pay aRevenue-Based Fee or
use fee described m Sections 4 1 1, 4 1.2 and 4.2 on or before the respective due date.
10.2. 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 duty or obligation required by this Agreement.
10.3. 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 m
the appointment of any trustee, receiver, master, custodian or liquidator of Company, any
of Company's property or 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.
10.4. 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;
provided, however, that no Event of Default shall be deemed to occur or exist during the
pendency of any legal action which the City or Company may initiate against the other
under or in connection with such law, ordinance, rule or regulation.
11. UNCURED DEFAULTS AND REMEDIES.
11.1. Notice of Default and Opportunity to Cure.
If an Event of Default occurs, 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) calendar 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) calendar days from the date rt receives written notice from the City to cure the Event
of Default. If Company has diligently undertaken steps to cure an Event of Default that
cannot be cured by the immediate payment of money to the City but needs more than
sixty (60) calendar days to effect the cure, Company shall notify the City in writing, and
Page 20 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
the City, in the City's sole but reasonable discretion, shall provide Company with
additional time to cure the Event of Default. If any Event of Default is not cured wrthm
the time penod specified herein, such Event of Default shall, without further nonce from
the City, become an "Uncured Default" and, subject to Section 14.3, the City
immediately may exercise the remedies provided m Section 11.2.
11.2. 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 nghts or remedies the City may have:
11.2.1. Termination of Agreement and Repeal of Public Right-of-Way Use
Ordinance.
Upon the occurrence of an Uncured Default, the City may terminate this
Agreement immediately, at which time the Public Right-of--Way Use Ordinance
will automatically be repealed. Upon such termination, Company shall forfeit all
nghts granted to it under this Agreement, and, except as to Company's
unperformed obligations and existing habilrties as of the date of tenmmation, 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 nght to keep and/or receive any compensation for use of the Sewer and Stonn
Dram Systems and other portions of the Public Rights-of--Way and any other
payments due up to the date of termination. The City's right to temm~ate this
Agreement under this Section 11.2.1 shall does not and shall not be construed to
constitute any kind of limitation on the Crty's nght to tenminate this Agreement
for other reasons as provided by and in accordance with this Agreement.
11.2.2. 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 m equity for
m~unctive relief or specific performance of any of the provisions of this
Agreement which, as a matter of equity, are specifically enforceable.
12. PROVISION OF INFORMATION.
Company shall provide copies of all documents which might reasonably be expected to
affect this Agreement and which Company files with or sends to the FCC and/or PUC and, upon
the City's request, copies of records which might reasonably be expected to affect this
Agreement and that Company is required to maintain under FCC and/or PUC regulations.
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Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
13. COMPANY AS INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Company shall operate as an Independent
contractor as to all nghts, pnvileges, terms and conditions granted by this Agreement, and not as an
agent, representative or employee of the Clty Company shall have the exclusive nght to control the
details of its operations, 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 enterpnse between the City and Company
14. TRANSFERS AND ASSIGNMENTS.
14.1. To Third Party Providers.
Once the Admlmstrator has issued a written certification to Company that the
Network is complete, as provided by Section 7.3 of this Agreement, Company may sell,
lease or otherwise convey all or any portion of the Network to a Third Party Provider stnctly
m accordance with and as provided by Section 2.3 1 of this Agreement. Company shall not
sell, lease or otherwise convey all or any portion of the Network to a Third Party Provider
prior to receipt from the Admimstrator of wntten certification that the Network Is complete
unless the City consents In wntmg.
14.2. To an Operating Affiliate.
Subject to this Section 14.2, Company may assign all of its rights, duties and
obligations under this Agreement to CltyNet U.S. Operating Company, a Delaware
corporation, by providing the City with wntten notification of such assignment. In the event
of such assignment, (i) CityNet U.S Operating Company hereby agrees that (a) it shall not
have any greater nghts than Company under this Agreement and (b) It shall assume all
obligations, duties and covenants of Company and otherwise comply with and abide by all
terms and conditions of this Agreement as "Company", and (ii) Company hereby guarantees
unconditional performance by CltyNet U.S Operating Company of all of Company's duties
and obligations under this Agreement.
14.3. Creation of Security Interests.
Company may pledge or mortgage all or any portion of the Network and may
collaterally assign Its nghts, dunes and obligations under this Agreement to Electro Banque,
a financial Institution orgamzed under the laws of France ("Bank"), for the purpose of
secunng momes borrowed by Company from Bank for construction of the Network,
provided that such pledge, mortgage and/or collateral assignment (i) does not grant or
attempt to grant Bank any nghts greater than those granted to Company hereunder or
Page 22 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
subordinate or attempt to subordinate any rights of the City hereunder and (ii) requires Bank
to assume all obligations and duties of Company under this Agreement. Upon the
occurrence of any Uncured Default, before exercising any of the remedies set forth in
Section 11.2, the City will first (i) provide written notice of such Uncured Default to Chase
Manhattan Bank, 450 West 33rd Street, New York, NY 10001, Attn. Institutional Trust
Serv>ces, with a copy to Electro Banque, 54 rue La Boetie, 75008 Pans, France, Attn.
Christian Lebon and (ii) allow Bank to cure the Uncured Default within either thirty (30)
calendar days following the date such notice was mailed or such other period of time as may
be mutually agreed to by the City and Bank. The City shall not have any contractual
obligation or duty to Bank unless expressly set forth m a written agreement between the City
and Bank.
Company may also pledge or mortgage all or any portion of the Network and may
collaterally assign its rights, duties and obligations under this Agreement for the purpose of
securing momes borrowed by Company from a third party lender other than Bank for
construction of the Network without the express consent of the City provided that such
pledge, mortgage and/or collateral assignment does not (i) grant the lender any rights greater
than those granted to Company hereunder or (ii) subordinate or attempt to subordinate any
rights of the City hereunder The City shall not have any contractual obligation or duty to
any third party lender unless expressly set forth m a written agreement between the City and
such lender In the event that Company executes any security agreement, deed of trust, or
other pledge or mortgage m violation of this Section 14.3, this Agreement shall control as to
the City
14.4. Generally.
Subject to Sections 14 1, 14.2 and 14.3 of this Agreement, Company shall not (i)
assign, transfer, sell or otherwise convey the entirety of ><ts rights, privileges, duties or
interests as granted to Company by this Agreement and the Public Right-of--Way Use
Ordinance; (ii) sell, lease or otherwise convey to any Person or allow use by any Person
other than Company of all or any portion of the Network; or (iii) allow any Person to alter
the Network or to construct additional facilities as part of the Network in order to transmit
and/or provide data services, Cable Services or other Telecommunications Services unless
(i) Company first notifies the City in writing; (ii) Company obtains the City's advance
written consent, which consent shall not unreasonably be withheld, and (iii) such Person
enters into a written agreement with the City relating to that Person's use of the Public
Rights-of--Way, including terms for any compensation that the C><ty may charge for such use,
if required by the City
15. NOTICES.
Unless otherwise specifically provided herein, notices required pursuant to the prov><sions of
tlus Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to
the other party, rts agents, employees, servants or representatives, or (ii) received by the other party
by Umted States Mail, postage prepaid, return receipt requested, addressed as follows.
Page 23 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
To THE CITY:
City of Fort Worth
City Manager's Office
Attn. Utilities Admlmstrator
1000 Throckmorton
Fort Worth, TX 76102
with a copy to:
City of Fort Worth
Department of Law
Attn. Attorney for Telecommunications
1000 Throckmorton
Fort Worth, TX 76102
To COMPANY:
CltyNet Telecommumcations, Inc.
8403 Colesvllle Rd., 14th Floor
Silver Spring, MD 20910
Attn. Mark Perkell, General Counsel
16. NON-DISCRIMINATION COVENANT.
Company shall not discriminate against any Person on the basis of race, color, national
origin, religion, handicap, sex, sexual oraentation or familial status m the exercise of any of its rights
and pravileges under this Agreement or in the provision of any services of Company
17. 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.
18. GOVERNING LAW AND VENUE.
This Agreement shall be construed pursuant to and in accordance with the laws of the
Umted 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, the attachment, installation, operation,
maintenance, removal, reattachment, reinstallation, relocation and/or replacement of the
Network, or Company's use of the Sewer System, Storm Drain System and/or other portions of the
Public Rights-of--Way, venue for such action shall lie exclusively in state courts located in Tarrant
County, Texas or the Umted States Distract Court for the Northern Distract of Texas, Fort Worth
Division.
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CityNet Telecommunications, Inc.
19. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable tunes and upon reasonable nonce to discuss Company's use of the Sewer System, Storm
Dram System and/or other portions of the Public Rights-of--Way or any other aspect of this
Agreement. If any law or agency rule or regulation is adopted and affects the City's ability or
right to manage the Public Rights-of--Way, Company agrees to meet with the City and to
negotiate with diligence and in good faith an agreement or amendment to this Agreement that
reasonably resolves the City's concerns regarding such law or agency rule or regulation.
20. 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 ~unsdiction, the validity, legality and enforceability of the
remaining provisions shall not m any way be affected or impalred. For purposes of this Agreement,
a court order shall be final only to the extent that all available legal nghts and remedies pertaimng 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 this Agreement to comply with such final
order entered by a court of competent~unsdiction.
21. 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 penod 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, Hots or civil disturbances, failure or loss of utilities, explosions and natural
disasters.
22. HEADINGS NOT CONTROLLING.
Headings and titles, other than those captions m Section 1, that are used in this Agreement
are for reference purposes only and shall not be deemed a part of this Agreement.
23. MOST FAVORED MUNICIPALITY.
During the term of this Agreement, if Company enters into an agreement with another
municipality located m the State of Texas that contains any terms, benefits or provisions that are
more favorable to that municipality than those afforded to the City hereunder, then Company shall
amend this Agreement in wasting to include, at a mimmum, the more favorable terms, benefits or
provisions set forth m the agreement with the aforesaid mumcipahty
Page 25 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
24. ENTIRETY OF AGREEMENT.
Thts Agreement and the Public Right-of--Way Use Ordinance 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
Pursuant to Section 2 of Chapter XXV of the Charter of the City of Fort Worth, and as a condition
precedeirt to the effectiveness of the Public Right-of--Way Ordinance and this Agreement, Company
and CityNet U S Operating Company acknowledge that by their execution of this Agreement by
the individuals whose signatures appear below, Company and CityNet U S Operating Company
accept and agree to the terms, conditions and provisions of the Public Right-of--Way Use Ordinance
and this Agreement.
AGREED AND ACCEPTED
C`ITYNET TELECOI~IlVIUNICATIONS, INC.,
a Delaware corporation:
By~
ame. Robert G Ber er
Title. Chief Executive Officer
CITYNET U.S. OPERATING COMPANY,
a Delaware corporation:
By' ___.
ame. Robert G erger
Title. President & Chief Executive Officer
Page 26 of 30
Utility License and Public Right-0f-Way Use Agreement
CityNet Telecarmnunications, lnc.
EXHIBIT "A"
LOCATIONS OF SEWER AND STORM DRAIN SYSTEMS AND OTHER PORTIONS
OF PUBLIC RIGHTS-OF-WAY AUTHORIZED FOR USE BY COMPANY
Pursuant to and m accordance with the Public Right-of Way Use Ordinance and this
Agreement, Company is authorized to use the Sewer and Storm Drain Systems and other
portions of the Public Rights-of--Way within the area of the City depicted m the attached map.
The route indicated in blue is only an initial approximation of the Network route preferred by
Company and, subject to Paragraph 1 of Exhibit "D", does not represent a binding obligation in
any way on either Company or the City The final route of the Network shall be determined in
accordance with Section 7 1 of this Agreement.
Page 27 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
EXHIBIT "A"
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EXHIBIT "B"
RULES AND REGULATIONS REGARDING USE OF
SEWER AND STORM DRAIN SYSTEMS
Company, its officers, agents, servants, employees, contractors and subcontractors shall
abide by the following rules and regulations required of "Contractor" with respect to all of
Company's operations and activities in the Sewer System and, as applicable, the Storm Drain
System. In addition, Company, its officers, agents, servants, employees, contractors and
subcontractors shall abide by any additional rules and regulations imposed on Company by the
T/PW Director that are specific to Company's operations and activities in the Storm Drain System.
Page 28 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
EXHIBIT "B"
TECHNICAL SPECIFICATIONS FOR
SANITARY SEWER CLEANING AND TELEVISION INSPECTION
TS-1 COORDINATION MEETINGS Depending on the scope of the project, the OWNER
may request coordination meeting(s) to establish and maintain the project on the desired
schedule The CONTRACTOR'S Superintendent (reference paragraph TS-2
"CONTRACTOR'S SUPERINTENDANT") shall be present at all meetings
TS-2 CONTRACTORS SUPERINTENDENT The CONTRACTOR shall assign competent
Superintendent and any necessary assistants to track progress throughout the work. All
directions given to said Superintendent shall be as binding as if given to the CONTRACTOR.
Upon request, such directions will be confirmed, in writing to the CONTRACTOR.
CONTRACTOR shall provide a local toll free fax number and a local toll free telephone number
that provides direct access to the Superintendent and/or his assistants on-site through a pager
and/or mobile telephone during normal working hours.
TS-3 NOTIFICATION OF CITY The CONTRACTOR shall notify the Water Department
Field Operations Division at fax numbers (871-8382) by 7 00 AM, each work day of the work
locations for that day If the CONTRACTOR intends to work at night (7 00 P M to 7 00 A.M) or
on weekends (reference paragraph TS-4 "WEEKEND, HOLIDAY AND NIGHT WORK"),
notification shall be given at least 48 hours in advance.
Repeated failure to notify OWNER of work locations may result in stoppage of work and review
by OWNER regarding contract compliance prior to resumption of work.
TS-4 WEEKEND, HOLIDAY AND NIGHT WORK. Requests to work on weekends,
Holidays, or Night work must be submitted to and approved by the OWNER forty-eight (48)
hours before the work is to be done Night work; (between the hours of 7 00 p m. and 7 00
a m.) shall be authorized by the OWNER only when flow or traffic conditions inhibit the normal
work of the CONTRACTOR during daytime hours
TS-5 ASSISTANCE BY OWNER. It is distinctly understood and agreed that such
assistance as the OWNER may render to the CONTRACTOR in connection with the
interpretation of drawings and Specifications shall not relieve the CONTRACTOR from any
responsibility for the work. Any work proved faulty shall be made right by the CONTRACTOR
without delay The failure of the OWNER or his inspectors to call the CONTRACTOR'S
attention to faulty work or work done which is not in accordance with Drawings and
Specifications shall not prevent the OWNER from insisting the CONTRACTOR make all work
right.
The CONTRACTOR'S representative should work in concert to represent the intentions of the
City of Fort Worth Water Department. CONTRACTOR shall inform OWNER of the
interpretations and explanations of specifications provided by OWNER. CONTRACTOR shall
not knowingly withhold such information for the purpose of receiving a more favorable
interpretation
TS-6 ACCESS TO THE WORK. Some of the sanitary sewer line segments scheduled for
cleaning and/or television inspection in the project may be located on private property Access
to these manholes is generally provided by existing easements and/or right-of-ways, however,
the legal access may be covered with private improvements such as fences, landscaping,
outbuildings, etc. In such cases the CONTRACTOR shall work with the landowner to find
1 OF 17
alternative methods of access and obtain a signed agreement, which outlines the method
Provisions of all agreements for replacement of removed or damages private property relative
to the alternate access method shall be the responsibility of the CONTRACTOR.
In the event an agreement cannot be reached, the OWNER shall be notified to serve as
arbitrator In the event an agreement still cannot be reached, the CONTRACTOR shall proceed
with the work using the legal access provided Private improvements located on the legal
access shall be removed as required by the CONTRACTOR at his expense In such cases the
CONTRACTOR shall minimize the damage to private property and shall make every effort to
work with the landowner CONTRACTOR shall also be responsible for the replacement of the
private improvements on the legal access in as good or better condition as was found
Replacement shall be in kind or better -
Copies of all signed agreements and proposed but unsigned agreements shall be provided to
the OWNER.
TS-7 PLACING WORK IN SERVICE Since all work involves existing facilities, service
associated with the structure(s) being addressed shall be maintained at all times
TS-8 WATER USAGE Water usage by the CONTRACTOR for the purpose of sewer line
cleaning shall be taken from approved fire hydrants via a 2" meter obtained by the
CONTRACTOR from the OWNER. The meter shall be used only on this project. One fire
hydrant wrench will be issued with each 2" meter The deposit for the 2" meter and fire hydrant
wrench is the responsibility of the CONTRACTOR. Only fire hydrant wrenches or open-ended
wrenches may be .used on fire hydrant operating nuts.
The amount of deposit for the fire hydrant meter is $1,000 00 (One Thousand Dollars) The
CONTRACTOR is responsible to return the meter for reading on a monthly basis Meter
reading fee is applicable for this project and charges for water usage for the purpose of sewer
line cleaning will be the CONTRACTOR'S responsibility
TS-9 SEQUENCE OF WORK. All cleaning activities are to be conducted from upstream to
downstream. Any deviation from a continuous upstream to downstream sequence of work will
not be allowed without prior approval by the OWNER.
All segments selected for cleaning and television inspection shall be televised within seven (7)
calendar days after the completion of the cleaning process, unless otherwise approved by the
Owner Failure to complete post cleaning television inspection within the specified time could
result in additional cleaning at the CONTRACTOR'S expense
TS-10 EXISTING UTILITIES The CONTRACTOR shall be responsible for verifying the
locations of and protecting all existing utilities, service lines, or other property crossed or
exposed by his operations CONTRACTOR shall make all necessary provisions for the support,
protection, relocation, and or temporary relocation of all utility poles, gas lines, telephone
cables, utility services, water mains, sanitary sewer lines, electrical cables, drainage pipes, and
any other utilities and structures both above and below ground during operations The
CONTRACTOR is liable for all damages done to such existing facilities as a result of his
operations and any and all costs incurred for the protection and/or temporary relocation of such
facilities shall be subsidiary to the contract amount. NO ADDITIONAL COMPENSATION WILL
BE ALLOWED
Where existing .utilities or service lines are cut, broken or damaged, the CONTRACTOR shall
replace or repair the utilities or service lines with the same type of original material and
construction or better unless otherwise shown or noted on the plans, at his own cost and
2 OF 17
expense The CONTRACTOR shall immediately notify the OWNER of the damaged utility or
service line He shall cooperate with the Owners of all utilities to locate existing underground
facilities and notify the OWNER at once of any conflicts in grades and alignments
In case it is necessary to change or move the property of any owner of a public utility, such
property shall not be moved or interfered with until ordered to do so by the OWNER. The right
is reserved to the Owner of public utilities to enter upon the limits of the project for the purpose
of making such changes or repairs of their property that may be made necessary by
performance of this contract.
TS-11 SAFETY STANDARDS AND ACCIDENT PREVENTION With respect to all work
performed under this Contract the CONTRACTOR shall
A. Comply with the safety standards provisions of applicable laws, building and construction
codes and the Manual of Accident Prevention in Construction published by the Associated
General Contractors of America, the requirements of the Occupational Safety and Health
Act of 970 (Public Law 91-596 and subsequent amendments), and the requirements of
Title 29 of the Code of Federal Regulations, Section1910 or 1926 as applicable
B Exercise every, precaution at all times for the prevention of accidents and the protection of
persons (including employees) and property
C The attention of the CONTRACTOR is directed to the Requirements (including permitting
and recording) of the Confined Space Entry regulations, which are under OSHA.
TS-12 SAFETY RESTRICTIONS -WORK NEAR HIGH VOLTAGE LINES The following
procedures will be followed regarding the subject item on this contract:
A. A warning sign not less than five inches by seven inches, painted yellow with black letters
that are legible at twelve feet shall be placed inside and outside vehicles such as cranes,
derricks, power shovels, drilling rigs, pile drivers, hoisting equipment or similar apparatus
The warning sign shall read as follows.
"WARNING - UNLAWFUL TO OPERATE THIS EQUIPMENT WITHIN SIX FEET OF
HIGH VOLTAGE LINES."
B Equipment that may be operated within ten feet of high voltage lines shall have insulating
cage-type of guard about the boom or arm, except back hoes or dippers, and insulator
links on the lift hook connections.
C When necessary to work within six feet of high voltage electric lines, notification shalt be
given the Power Company (Texas Utility Electric) who will erect temporary mechanical
barriers, de-energize the lines, or raise or lower the lines The work done by the Power
Company shall not be at the expense of the City of Fort Worth The notifying department
shall maintain an accurate log of all such calls to Texas Utility Electric, and shall record
action taken in each case
D The CONTRACTOR is required to make arrangements with the Texas Electric Service
company for the temporary relocation or raising of high voltage lines at the
CONTRACTOR'S sole cost and expense.
E No person shall work within six feet of a high voltage line without protection having been
taken as outlined in Paragraph (3)
3OF17
TS-13 TRAFFIC CONTROL. It shall be the responsibility of the to provide traffic control
during construction as set forth in the General Contract Documents and in accordance with the
Traffic Control Handbook for Construction and Maintenance Work Areas City of Fort Worth,
Texas, dated February 1979, and also in accordance with the following additional requirements
A. The CONTRACTOR'S attention is directed to Part C, General Conditions, Section C6-6
LEGAL RELATIONS AND PUBLIC RESPONSIBILTY, paragraph C6-6 8 BARRACADES,
WARNINGS AND WATCHMEN, which requires that the CONTRACTOR shall furnish
barricades, flares, etc., for the protection of the public and the work.
B The cost of the traffic control shall be included in the price bid for other items as bid in the
Proposal, and no other compensation will be allowed
When work activities are located in or near state right-of-way the CONTRACTOR shall comply
with all applicable Texas Department of Transportation regulations
TS-14 BARRICADES WARNINGS AND FLAGMEN Reference Part C, General Conditions,
Section C6-6 LEGAL RELATIONS AND PUBLIC RESPONSIBILTY, paragraph C6-6.8
BARRICADES. WARNINGS AND WATCHMEN
A. Wherever the Word Watchmen appears in this paragraph it shall be changed to the word
Flagmen
B In the first paragraph lines five (5) and six (6) change the phrase take all such other
precautionary measures to "take all reasonable necessary measures "
TS-15 PROTECTION OF TREES, PLANTS, AND SOILS All property along and adjacent to
the CONTRACTOR'S' operations including lawns, yards, shrubs, trees, etc. shall be preserved
or restored after completion of the work to a condition equal or better than existed prior to start
of work.
By ordinance, the CONTRACTOR must obtain a permit from the City Forester before any work
(trimming removal or root pruning) can be done on trees or shrubs growing on public property
including street rights-of-way and designated alleys This permit can be obtained by calling the
Forestry Office at 871-5738 All tree work shall be in compliance with pruning standards for
Class II Pruning as described by the National Arborist Association A copy of these standards
can be obtained by calling the above number Any damage to public trees due to negligence by
the CONTRACTOR shall be assessed using the current formula for Shade Tree Evaluation as
defined by the International Society of Arboriculture Payment for negligent damage to public
trees shall be made to the City of Fort Worth and may be withheld from funds due the
CONTRACTOR by the City
TS-16 SITE RESTORATION The CONTRACTOR shall be responsible for restoring the site
to original grade and condition after completion of his operations subject to approval of the
OWNER.
TS-17 CONTRACTOR'S RESPONSABILTY FOR DAMAGE CLAIMS Reference Part C,
General Conditions, Section C6-6 LEGAL RELATIONS AND PUBLIC RESPONSIBILTY, delete
paragraph C6-6 12 "CONTRACTOR'S RESPONSABILTY FOR DAMAGE CLAIMS" in its
entirety, and replace with the following
Contractor covenants and agrees to indemnify City's engineer and architect, and their
personnel at the project site for Contractor's sole negligence In addition, Contractor covenants
and agrees to indemnify, hold harmless and defend, at its own expense, the Owner, its officers,
4 OF 17
servants and employees, from and against any and all claims or suits for property loss,
property damage, personal injury, including death, arising out of, or alleged to arise out of, the
work and services to be performed hereunder by Contractor, its officers, agents, employees,
subcontractors, licensees or invitees, whether or not any such injury, damage or death is
caused, in whole or in part, by fhe ne_gli_gence or alleged negligence of Owner, its
officers, servants, or employees. Contractor likewise covenants and agrees to indemnify
and hold harmless the Owner from and against any and all injuries to Owner's officers, servants
and employees and any damage, loss or destruction to property of the Owner arising from the
performance of any of the terms and conditions of this Contract, whether or not any such
injury or damage is caused in whole or in part by the negligence or alleged ne_gli_gence
of Owner, its officers, servants or employees.
In the event Owner receives a written claim for damages against the Contractor or its
subcontractors prior to final payment, final payment shall not be made until Contractor either (a)
submits to Owner satisfactory evidence that the claim has been settled and/or a release from
the claimant involved, or (b) provides Owner with a letter from Contractor's liability insurance
carrier that the claim has been referred to the insurance carrier
The Director may, if he deems it appropriate, refuse to accept bids on other City of Fort Worth
public work from a Contractor against whom a claim for damages is outstanding as a result of
work performed under a City Contract.
TS-18 SANITARY SEWER REPAIR AND MAINTENANCE. This agreement shall in no way
prohibit the OWNER from performing repairs or maintenance on lines with the cable system
TS-19 SANITARY SEWER CLEANING.
SECTION 1 -DEFINITIONS
1 1 AVAILABLE WATER. Water necessary for the performance of work, which may be
taken from the fire hydrant nearest to the work site within City of Fort Worth, given conditions of
traffic and terrain are compatible with the use of the hydrant for performance of work. See Part
C, General Conditions, Section C6-6 LEGAL RELATIONS AND PUBLIC RESPONSIBILITY,
paragraph C6-6.16 ARRANGEMENT AND CHARGES FOR WATER FURNISHED BY THE
CITY
1.2 BYPASS An arrangement of temporary pumps, piping and valves whereby the flow is
pumped around a sewer line segment hydraulic structure or appurtenance
1.3 BYPASS PUMPING The transportation of sewer flows around a specific sewer
pipe/line section or sections via a conduit for the purpose of controlling sewer flows in the
specified section or sections without flowing or discharging onto public or property
1.4 COLLECTOR SEWER. A sewer located in the public right-of-way or easement that
collects the wastewater discharged through service laterals and conducts such flows into larger
interceptor sewers and pumping and treatment works Referred to also as 'main sewer" or
"lateral "
1.5 CONTRACT DOCUMENTS See Part C, General Condition, Section C1-1
DEFINITIONS, paragraph C1-1.2 CONTRACT DOCUMENTS and paragraph C1-1.10
CONTRACT
1 6 CONTRACTOR. See Part C, General Condition, Section C1-1 DEFINITIONS,
5 OF 17
paragraph C1-1.20 CONTRACTORS
1 7 CREW The number of persons required for the performance of work at a site as
determined by the CONTRACTOR in response to task difficulty and safety considerations at
the time or location of the work.
1.8 DEBRIS Soil, rocks, sand, grease, roots, etc., in a•sewer line excluding items
mechanically attached to the line such as protruding service connections, protruding pipe, joint
materials and the like
1.9 EASEMENT A liberty, privilege, or advantage without profit that the OWNER of one
parcel of land may have in the land of another In this agreement, all land other than public
streets in which the OWNER has sewer system lines or installations and right of access to such
lines or installations
1 10 EASEMENT ACCESS Areas within an easement to which access is required for
performance of work.
1 11 .ENGINEER. See Part C, General Condition, Section C1-1 DEFINITIONS, paragraph
C1-1.19 ENGINEER
1 12 EXISTING LINEAR FEET The total length of existing sewer pipe in place within
designated sewer systems as field measured from center of manhole to center of manhole
1 13 FLOW CONTROL. A method whereby normal sewer flows or a portion of normal sewer
flows are blocked, retarded, or bypassed within certain areas of the sewer collection system.
1 14 HEAVY CLEANING Mechanical or hydraulic sewer cleaning performed after normal
cleaning methods The CONTRACTOR shall perform heavy cleaning if the line is still not
adequately clean after three (3) slow passes have been completed according the these
specifications Heavy cleaning shall be performed on a line segment until the OWNER
determines the line is clean or that the line will be damaged by further cleaning The
CONTRACTOR may use hydraulic methods for heavy cleaning if approved by the OWNER.
The definition of heavy cleaning is a benchmark used by the OWNER to determine the
frequency for maintenance only
1 15 HYDRAULIC CLEANING Techniques and methods used to clean sewer lines with
water, e g water pumped in the form of a high velocity spray and water flowing by gravity or
head pressure Devices include high-velocity jet cleaners, cleaning balls, and hinged disc
cleaners
1 16 INFILTRATION The water entering a sewer system, including building sewers, from
the ground through such means as defective pipes, pipe joints, connections, or manhole walls
Infiltration does not include inflow
1 17 INFLOW The water discharged into a sewer system, including building sewers from
such sources as roof leaders, cellar, yard, and area drains, foundation drains, cooling water
discharge, drains from springs and swamps areas, manhole covers, cross connections from
storm sewers, combined sewers, and catch basins, storm waters, surface runoff, street
wastewater or drains Inflow does not include infiltration
1 18 INSPECTOR. The OWNER'S representative responsible for inspection and
acceptance, approval, or rejection of work; performed as set forth in these specifications.
6 OF 17
1 19 INTERCEPTOR SEWER. A sewer that receives the flow from collector sewers and
conveys the wastewater to treatment facilities.
1.20 INTERNAL PIPE INSPECTION The television inspection of a sewer line section A
Closed Circuit TV (CCTV) camera is moved through the line at a slow rate and a continuous
picture is transmitted to an above ground monitor, and recorded on videotape
1.21 INVERT The floor, bottom or lowest point of a conduit.
1.22 INVERT ELEVATION The elevation of the lowest portion of a liquid carrying conduit
such as a sewer that determines the hydraulic gradient available for moving the contained
liquid
1.23 JOINTS The means of connecting sectional lengths of sewer pipe into a continuous
sewer line using various types of jointed materials The number of joints depends on the
lengths of the pipe sections used in the specific sewer construction work.
1.24 LINE SEGMENT The length of sewer pipe connecting two manholes, also referred to
as manhole section
1.25 LINEAR FOOT Being one foot in these specifications used to denote the unit. of
measurement relating to the length of a sewer line
1.26 MAJOR BLOCKAGE A blockage (structural defect, collapse, protruding service
connection, debris) that prohibits manhole cleaning or TV inspection
1.27 MECHANICAL CLEANING Methods used to clean debris from sewer lines
mechanically with devices such as rodding machines, bucket machines, root saws, winch
pulled brushes, etc. May also include hydraulic root cutters and other hydraulic tools, if
approved by the OWNER.
1.28 NORMAL CLEANING Sewer cleaning by hydraulic or mechanical means performed by
making three (3) slow passes with the cleaning equipment. The definition of normal cleaning is
a benchmark used by the OWNER to determine the frequency for maintenance only
1.29 OVERFLOW (1) The excess water that flows over the ordinary limits of a sewer
manhole or containment structure (2) An illegal outlet pipe or receptacle for the excess water
1.30 OWNER. The City of Fort Worth
1.31 PASS The movement of operating cleaning equipment from the upstream end of the
line segment to the downstream end at a rate not exceeding 60 feet per minute.
1.32 POINT REPAIR. A short pipeline repair made for the purpose of extracting cleaning
equipment or TV cameras from the sewer line.
1.33 SANITARY SEWER. A pipe intended to carry only sanitary or sanitary and industrial
wastewater from residences, commercial buildings, industrial parks and institutions
1.34 SERVICE LATERAL. The conduit that connects building wastewater sources to the
public or street sewer including lines serving homes, public buildings, commercial
establishments, and industry structures Referred to also as building lateral or service lateral
1.35 SEWER CLEANING The utilization of mechanical or hydraulic equipment to dislodge,
7 OF 17
transport and remove debris from sewer lines and manholes
1.36 SEWER PIPE. A length of conduit manufactured from various materials and in various
lengths, that when joined together can be used to transport wastewater from the points of origin
to a treatment facility
1.37 SITE Any location where work has been or will be done
1.38 SITE ACCESS An adequately clear area of a size sufficient to accommodate
personnel and equipment required at the location where work is to be performed, including
roadway or surface sufficiently unobstructed to permit conveyance of vehicles from the nearest
paved roadway to the work location
1.39 STEP CLEANING Passing the cleaning equipment into the line for a predetermined
distance, i e. twenty-five (25) to fifty (50) feet increments, and clean back to the manhole Once
that section of pipe is cleaned, increase the distance by one additional increment and repeat
the procedure This process is repeated until the entire line has been cleaned
1.40 STREET ACCESS Areas normal used for public vehicular traffic (including roads,
streets, or rights-of-way) to which safe access is required for performance of work.
1 41 SUBCONTRACTOR. An individual, firm or corporation having a direct contract with the
CONTRACTOR or with a lower-tier subcontractor for performance of part of part of the work.
1 42 SURCHARGE When the sewer flow exceeds the hydraulic carrying capacity of the
sewer line.
1.43 SURCHARGE CONDITION When the sewer flow depth equals or exceeds the
diameter of the discharging sewer line
1.44 SWALE (DIP, SAG) Significant deviations in pipe grade such as to cause entrapment
of solids Semi-solids and liquids thereby impeding the accuracy and/or effectiveness of flow
measurements, cleaning and internal inspection
SANITARY SEWER CLEANING.
SECTION 2 -TECHNICAL SPECIFICATIONS,
DIVISION 1-SCOPE OF WORK
2.1 1 The work required by the project shall consist of furnishing all labor, materials,
equipment, and supervision, and performing all work necessary to clean and internally televise
the designated sanitary sewer lines in accordance with these Technical Specifications The
work shall consist of performing the following work tasks
Manhole Cleaning
Sewer Line Cleaning
Sewer Flow Control
Television Inspection
2.1.2. The area of work shall be at those locations indicated by the OWNER.
DIVISION 2 -GENERAL
2.2 1 Sewer line cleaning shall be performed with hydraulically propelled high-velocity jet or
mechanical powered equipment. Selection of equipment and cleaning method shall be based
8 OF 17
^..
on field conditions such as access to manholes, type and quantity of debris to be removed, size
of sewer, and depth of flow CONTRACTOR shall be capable of cleaning spans up to 1,000
feet, selected equipment shall be evaluated and approved by OWNER. Cleaning method shall
be documented on the attached City of Fort Worth Cleaning Form.
2.2.2. Sewer flow control shall be performed as required to comply with these specifications
Reference, paragraph TS-19, Section 2,Division 4, "SEWER FLOW CONTROL"
2.2.3 Television inspection shall be required to reveal and document sewer line conditions
and cleaning results
2.2.4. The CONTRACTOR shall warrant to the OWNER any and all claims from infringement
of patents and shall save harmless the OWNER and his Representative from loss on account
thereof
SANITARY SEWER CLEANING.
SECTION 2 -TECHNICAL SPECIFICATIONS
DIVISION 3 -SEWER AND MANHOLE CLEANING
2.3.1 INTENT The intent of sewer cleaning is to remove foreign materials from the line
segments and manhole walls, benches and inverts. It is recognized that there are some
conditions such as broken pipe and major blockages that prevent adequate cleaning from
being accomplished or where additional damage would result if cleaning were attempted or
continued Should such conditions be encountered, the CONTRACTOR will not be required to
clean those specific sections as directed by the OWNER.
Foreign matter including but not limited to grease, debris, mud, rock and sand shall be removed
from the pipelines and manholes. High-velocity hydraulic cleaning equipment may be used to
remove the foreign material from the manhole walls.
Normal cleaning, heavy cleaning, step cleaning, root cutting and grease removal are cleaning
methods used by the OWNER to evaluate and establish maintenance schedules.
CONTRACTOR shall denote method(s) used on the attached cleaning form and submit to the
OWNER upon completion of the cleaning activities
2.3.2. PRE-SEWER CLEANING NOTIFICATION The success of the Fort Worth Water
Department Cleaning Program is dependent of the cooperation of all customers affected The
following are the requirements for notifying affected customers of cleaning activities All
procedures must be followed
A. A notice {"flyer") in English and Spanish shall be provided to each residence and business
a .minimum of two (2) full working days prior to cleaning in the area. The Pre-Cleaning
Notification flyer will inform the occupants of the purpose of the work, what might possibly
occur, and telephone numbers to call in case of questions or problems. The master flyer
for Pre-Cleaning Notification will be provided to the CONTRACTOR for use in making all
necessary copies of flyer on white paper for distribution to residences and businesses
B CONTRACTOR shall on a daily basis document all distribution of flyers Documentation at
a minimum shall include map showing areas notified, date, and name of person completing
the notification
C CONTRACTOR shall schedule work to be completed within five (5) working days from the
day notices are distributed Should the work not be completed in the notified area before
the end of 5 working days, the area will be re-notified
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" s
2.3.3 CLEANING EQUIPMENT All equipment used by the CONTRACTOR to transport
wastewater and/or debris removed from the sanitary sewer system must be inspected and
permitted by the City of Fort Worth Pre-Treatment Division, contact Gloria Trevino at 871-8305
for scheduling of inspections
A. HIGH-VELOCITY JET (HYDROCLEANING) EQUIPMENT All high-velocity sewer
cleaning equipment shall be constructed for ease and safety of operation The
CONTRACTOR shall have a selection of two or more high-velocity nozzles The nozzles
shall be capable of producing a scouring action from 10 to 45 degrees in all size tines
designated for cleaning The equipment shall carry its own water tank, auxiliary engines,
pumps, and hydraulically driven hose reel For normal cleaning of sewers from 6 inches to
15 inches in diameter, pumps shall be capable of maintaining a minimum operating
pressure of 1,500 p.s.i For sewers 18 inches in diameter or greater, a minimum operating
pressure of 2,300 p.s i is required Equipment shall also include ahigh-velocity gun for
washing and scouring manhole walls and floor The gun shall be capable of producing flow
from a fine spray to a solid stream
B HYDRAULICALLY PROPELLED EQUIPMENT The equipment used shall be of a
movable dam type and be constructed in such a way that a portion on of the dam may be
collapsed at any time during the cleaning operation to protect against flooding of the
sewer The movable dam shall be equal in diameter to the pipe being cleaned and shall
provide a flexible scraper around the outer periphery to ensure removal of grease If sewer
cleaning balls or other equipment that cannot be collapsed are used, special precautions to
prevent flooding of the sewers and public or private property shall be taken by the
CONTRACTOR. Damages or claims resulting from backups and flooding shall be the
responsibility of the CONTRACTOR.
C MECHANICALLY POWERED EQUIPMENT Bucket machines shall be in pairs with
sufficient power to perform the work in an efficient manner Machines will be belt operated
or have an overload device Machines with direct drive that could cause damage to the
pipe will not be allowed A power rodding machine shall be either sectional or continuous
rod type capable of holding a minimum of 750 feet of rod The rod shall be specifically
heat-treated steel To ensure safe operation the machine shall be fully enclosed and have
an automatic safety clutch or relief valve Mechanically powered equipment shall only be
used when authorized by the OWNER and shall be done only when other cleaning
methods are shown to be ineffective
2.3.4 CLEANING PRECAUTIONS During sewer cleaning operations, satisfactory precautions
shall be taken in the use of cleaning equipment. When hydraulically propelled cleaning tools
(that depend upon water pressure to provide their cleaning force) or tools that retard the flow in
the sewer line are used, precautions shall be taken by the CONTRACTOR to ensure that the
water pressure created does not damage or cause flooding of public or private property being
served by the sewer
When additional water from fire hydrants is necessary to avoid delays in normal work
procedures, the water shall be conserved and not used unnecessarily No fire hydrant shall be
obstructed in case of a fire in the area served by the hydrant or as restricted by the OWNER.
The CONTRACTOR shall be responsible for any damage caused by his actions during this
project.
2.3.5 NORMAL SEWER CLEANING For Normal Cleaning the designated sewer line
segments shall be cleaned using mechanical devices or hydraulically propelled, high-velocity
10 OF 17
jet equipment. Manholes at each end of the line segments being cleaned shall also be cleaned
and all debris shall be removed Selection of the equipment used shall be based on the
conditions of lines at the time the work commences.. The equipment and methods selected shall
be satisfactory to the OWNER. The equipment shall be capable of removing dirt, grease, rocks,
sand, and other materials and obstructions from the sewer lines and manholes
If successful cleaning cannot be performed without risk of damage to the pipe or the equipment
fails to traverse the entire line segment, cleaning effort shall be temporary suspended and
Water Department/Field Operations shall be notified
Before cleaning can resume the segment shall be televised and evaluated in order to
determine if segment can be adequately cleaned
The CONTRACTOR shall provide an observer at the upstream manhole during all pass to
ensure that the entire line segment is cleaned on subsequent passes
The CONTRACTOR shall provide a mechanism to prevent debris from moving downstream
from the line segment being cleaned
The CONTRACTOR shall clean the upstream manhole prior to cleaning the line segment.
Normal cleaning is a benchmark used by the OWNER to determine the frequency for
maintenance only and shall be documented on the attached City of Fort Worth Cleaning Form
2.3.6 HEAVY CLEANING For segments that contain heavier than normal amounts of debris,
or that cannot be adequately cleaned using the Normal Cleaning Methods, CONTRACTOR
shall perform Heavy Cleaning
Heavy Cleaning shall be a supplemental means of removing debris and cleaning, and shall be
used in addition to Normal Cleaning The method of Heavy Cleaning for each segment shall be
based on site conditions CONTRACTOR may use hydraulic methods for heavy cleaning if
approved by the OWNER.
All precautions required for Normal Cleaning shall apply to Heavy Cleaning Heavy Cleaning
shall continue until the line is clean or that further work may damage the pipe
The definition of heavy cleaning is a benchmark used by the OWNER to determine the
frequency for maintenance only and shall be documented on the attached City of Fort Worth
Cleaning Form
2.3 7 STEP CLEANING For shallow lines, four (4) feet or less in depth measured at either
upstream or downstream manhole and lines that have service connections from basements,
step cleaning method shall be used
2.3.7 ROOT REMOVAL. Roots shall be removed in sections where root intrusion is a problem
or observed during CCTV inspection and shall be considered part of heavy cleaning
procedures Special attention should be given during the cleaning operations to ensure
complete removal of roots from the joints Procedures may include the use of mechanical
equipment such as rodding machines, bucket machines and winches using root cutters and
porcupines, and equipment such as high-velocity jet cleaners TV inspection during root
removal at CONTRACTORS request is subsidiary to Heavy Cleaning, and no additional
payment will be allowed
2.3.8 GREASE REMOVAL. Grease shall be removed in sections where grease is a known
11 OF 17
~a
problem or observed during CCTV inspection and shall be considered part of heavy cleaning
procedures Special attention should be given during the cleaning operations to ensure
complete removal of grease from the top of the pipe Procedures may include the use of
mechanical equipment such as rodding machines, bucket machines and winches using root
cutters and porcupines, and equipment such as high-velocity jet cleaners, hot water, and EPA
approved chemical degreasers TV inspection during grease removal at CONTRACTORS
request is subsidiary to Heavy Cleaning, and no additional payment will be allowed
2.3.9 MATERIAL REMOVAL. All sludge, dirt, sand, rocks, grease, and other solid or semisolid
material resulting from the cleaning operation shall be removed at either the upstream or
downstream manhole of the section being cleaned Passing material from line segment to line
segment shall not be permitted
2.3 10 DISPOSAL OF MATERIALS All solids or semi-solids resulting from the cleaning
operations shall become the property of CONTRACTOR and shall be removed by the
CONTRACTOR from the sewer and disposed of at a location approved by the OWNER. All
materials shall be removed from the site no less often than at the end of each workday Under
NO circumstances will the CONTRACTOR be allowed to accumulate disposal material on the
site of work beyond the stated time, except in totally enclosed containers and as approved by
the OWNER. The CONTRACTOR'S trucks shall have permits in accordance with all applicable
State and Local regulations
CONTRACTOR shall provide OWNER with a detailed plan for disposal of material removed
from the sanitary sewers This plan shall include but will not be limited to, name and address of
disposal site and vehicle permit numbers
2.3 11 REMEDIATION OF BACKUPS INTO BUILDINGS
A. Backups into buildings that occur during cleaning or other operations.shall be
remediated using the services of a local firm specializing in cleaning and disinfecting
residences and businesses The firm used by the CONTRACTOR shall be approved
prior to issuance of Notice-to-Proceed, and shall provide a protocol that will be
implemented for various scenarios that may occur
B Upon discovery that backup has occurred, the CONTRACTOR will immediately notify the
Water Department Field Representative who will investigate the incident.
CONTRACTOR shall dry up the spill immediately and dispatch the cleaning service to
professionally clean and disinfect the area. Cleaning service firm shall be at the
customer site within three hours of notification of backup occurrence, or otherwise
scheduled by customer All communication will be through the Water Department Field
Representative
C Documentation shall be provided of remediation provided Should customer refuse the
remediation services, CONTRACTOR shall provide a business card and contact name
should customer want to schedule remediation at a later date Refusal of remediation
services shall be documented by CONTRACTOR.
2.3.12 FINAL ACCEPTANCE Acceptance of sewer line cleaning shall be made upon the
successful completion of cleaning and shall be to the satisfaction of the OWNER. If CCTV
inspection shows the cleaning to be unsatisfactory, the CONTRACTOR shall be required to
re-clean and CCTV inspect the line segment until the cleaning is shown to be satisfactory, at no
cost to the OWNER.
Final acceptance of manholes cleaned by the CONTRACTOR shall be made by the OWNER
12 OF 17
~,
based on visual inspection of the manholes
SANITARY SEWER CLEANING.
SECTION 2 -TECHNICAL SPECIFICATIONS,
DIVISION 4 -SEWER FLOW CONTROL
2.4.1 MAXIMUM ALLOWABLE FLOW DEPTH When sewer line depth of flow at the upstream
manhole of the line segment being worked is above the maximum allowable for television
inspection or as specified by the OWNER, the flow shall be reduced to the level specified in
Division 4 by operation of pumps, temporary plugging or blocking of the flow or by pumping and
bypassing of the flow as specified Depth of flow shall not exceed 38% of the diameter of the
pipeline televised
2.4.2 PLUGGING OR BLOCKING Plugging or blocking of sewer line shall not be allowed
without pre approval by the CITY If approved by the CITY a sewer line plug shall be inserted
into the line upstream of the section being worked The plug shall be so designed that all or any
portion of the sewage can be released During CCTV inspection, flow shall be reduced to within
the limits specified in DIVISION 4 After the work has been completed, flow shall be restored to
normal pre inspection conditions
2 4.3 PUMPING AND BYPASSING When pumping and bypassing is required to avoid
potential backups or surcharging, the CONTRACTOR shall supply all necessary pumps,
conduits, and other equipment to divert the flow of wastewater around the manhole section in
which work is to be performed The bypass system shall be of sufficient. capacity to handle
existing flow plus additional flow that may occur during. rainfall events The CONTRACTOR will
be responsible for furnishing the necessary labor and supervision to set up, operate, and
maintain the pumping and bypassing system. If pumping is required on a 24-hour basis,
engines and motors shall be equipped in a manner to keep noise to a minimum.
2.4 4 FLOW CONTROL PRECAUTIONS When flow in a sewer line is plugged blocked, or
bypassed, sufficient precautions must be taken to protect the sewer lines from damage that
might result from sewer surcharging Under no circumstances will overflows be permitted by
the CONTRACTOR. Further precautions must be taken to ensure that sewer flow control
operations do not cause flooding or damage to public or private property being served by the
sewers involved The CONTRACTOR shall be solely liable for damages due to backups
overflows or system bypasses that result from the CONTRACTOR'S negligent work activities
related to this project.
SANITARY SEWER CLEANING.
SECTION 2 -TECHNICAL SPECIFICATIONS,
DIVISION 5 -TELEVISION INSPECTION
2.5.1 INTENT OF TELEVISION INSPECTION After cleaning, all line segments shall be
visually inspected by means of a closed circuit color television camera The purpose of the
television inspection work shall be to ensure that the cleaning work completed by the
CONTRACTOR meets the intent of these specifications and document the structural condition
of the pipe The equipment shall allow for a complete, front-view inspection of the service or tap
connection from the main sewer along with pan and tilt capabilities for service lateral inspection
of all connections The inspection will be done one line segment at a time and the flow in the
segment being inspected will be suitably controlled as specified Refer to TS-19, Section 2 -
Division 4 -SEWER FLOW CONTROL.
2.5.2 TELEVISION INSPECTION PROCEDURES The television camera used for the
inspection shall be one specifically designed and constructed for such inspection Lighting for
13 OF 17
..;;, ;.
the camera shall be suitable to allow a clear picture of the entire periphery of the pipe The
camera shall be operative in 100% humidity conditions The camera lens shall have not less
than a 65-degree viewing angle and shall have either automatic or remote focus and iris
controls The camera shall be self-propelled capable of spanning 360 degrees in the vertical
axis and 270 degrees on the horizontal axis The camera shall be equipped with at least 1,500 '
of camera cable and have pan and tilt capabilities to allow up close and right-angled
inspections of defects, service connection and other significant observations The camera,
television monitor, and other components of the video system shall be capable of producing
picture quality in color to the satisfaction of the OWNER'S Representative
The camera shall be self-propelled and moved through the line from the upstream manhole at a
moderate rate, stopping when necessary to permit proper audio and written documentation of
cleanliness of the pipe and any visible defects In no case will the television camera be moved
at a speed greater than 30 feet per minute Upon approval, manual winches, power winches,
TV cable, powered rewinds, or other devices that do not obstruct the camera view or interfere
with proper documentation of the sewer conditions may be used to move the camera through
the sewer line If during the inspection operation the television camera will not pass through
the entire line segment due to obstructions, which could not be removed during heavy cleaning,
the CONTRACTOR shall set up his equipment so that the inspection can be performed from
the opposite manhole. If again the camera fails to pass through the entire .manhole section the
inspection shall be considered complete and the OWNER shall be notified The image shown
shall be clear at all times and shall show defects and/or service connections in the pipe.
When manually operated winches are used to pull the television camera through the .line,
telephones or other suitably means of communication shall be set up between the two
manholes of the section being inspected to ensure adequate communications between
members of the crew
2.5.3 DISTANCE MEASUREMENT The importance of accurate distance measured is
emphasized Measurement for location of defects shall be means of a distance measuring
device as approved by the OWNER. Marking on the cable or the like that would require
interpolation for depth of manhole will not be allowed Accuracy of the distance meter shall be
within 0 5% for each line segment that has been properly cleaned and televised
2.5.4 DOCUMENTATION OF TELEVISION INSPECTION Documentation of the television
inspection results shall be as follows
A. TELEVISION INSPECTION LOGS Printed location records shall be provided by the
OWNER and shall be kept and maintained by the CONTRACTOR. An example form is
attached and made part of these specifications These shall clearly show the stationing
location in relation to the upstream manhole of each observation during the inspection
points of significance such as locations of building sewers. Unusual conditions, roots,
storm sewer connections, broken pipe, presence of scale and corrosion, and other
discernible features will be recorded and a copy of such records will be supplied to the
OWNER. Observations shall be recorded by the CONTRACTOR on field forms provided
by the OWNER.
The CONTRACTOR shall provide an intelligible audio description in English of each
observation including the location of the line segment at the same time that the
inspection is performed At a minimum the tape shall show manhole numbers and
footage at all times.
If during TV inspection a manhole is encountered that is not shown on the map, the
distance meter shall be reset to zero and the onscreen display shall be edited to reflect
14 OF 17
ait~ as
the new segment number
Combining multiple segments on one form is not permitted
B VIDEOTAPE RECORDINGS The purpose of tape recording shall be to supply a visual
and audio record of all line segments that are televised Videotape recording playback
shall be at the same speed that it was recorded, recording speed shall be 'SP mode with
no more than two (2) hours of video per VHS tape Slow motion or stop-motion playback
features may be supplied at the option of the CONTRACTOR. Title of the tape shall
remain with the OWNER. The CONTRACTOR shall have all videotapes and necessary
playback equipment readily accessible for review by the OWNER during the project.
Each videotape and associated log sheets and field forms shall be submitted to the
OWNER for review no later than two days after the completion of the tape The
videotape including the audio portion shall be a deliverable and will be required for
completion of the work for each segment televised The videotape shall be indexed with
the line segments recorded on the tape listed on the videotape label
2.5.5 TELEVISION INSPECTION AND NOTIFICATION The following are the requirements for
notifying affected customers of TELEVISON INSPECTION activities All procedures must be
followed
a) A notice ("flyer") in English and Spanish shall be provided to each residence and
business a minimum of two (2) full working days prior to any TV operations in the area
The Notification flyer will inform the occupants of the purpose of the work, what might
possibly occur, and telephone numbers to call in case of questions or problems The
master flyer for Pre-Notification will be provided to the CONTRACTOR for use in
making all necessary copies of flyer on white paper for distribution to residences and
businesses
b) CONTRACTOR shall on a daily basis document all distribution of flyers
Documentation at a minimum shall include map showing areas notified, date, and
name of person completing the notification
c) CONTRACTOR shall schedule work to be completed within five (5) working days from
the day notices are distributed Should the work not be completed in the notified area
before the end of 5 working days, the area will be re-notified
SANITARY SEWER CLEANING.
SECTION 3 -CONTRACTOR RESPONSIBILITIES
The CONTRACTOR shall obtain all municipal and other governmental licenses and permits
The CONTRACTOR shall obtain approvals or consent from utilities or carriers such as the
telephone companies or other persons or organizations upon whose proper or authority
performance of work under the contract might impinge The CONTRACTOR shall request
written release from responsibility for the performance of work under the contract if and to the
extent such work is precluded by the inability to obtain such approvals or consent.
The CONTRACTOR prior to design and installation of the data cable system, shall review all
available information pertinent to the site of the project including reports prepared under
previous accomplished studies or surveys and any other data relating to the design of the
project, including maps drawings, construction specifications, sewer system records, etc., as
provided by OWNER and through investigation of the locations being considered for this
application
The CONTRACTOR shall submit all proposed construction plans for review and approval by
15 OF 17
the Water Department. Included with this submittal shall be television inspection tapes of all
line segments to which the proposed cable system is to be installed, including service laterals
Details of the cable system shall include methodology for installing the cable system, routing
through manholes, line splicing locations, service lateral routes and connections and any other
pertinent information for the evaluation of the proposed construction drawings. Cable
installation and maintenance shall in no way impede the primary use of the sanitary sewer
system
The CONTRACTOR upon completion of the installation of the cable system .shall submit as-
built drawings for all facilities installed All as-builts for each contracted area shall be submitted
within 60 days of final construction Data included with the as-builts shall also include GPS
data on all manholes.
The CONTRACTOR upon completion of construction shall submit a proposed schedule of
maintenance for all lines that have the proposed cabling system inside the sanitary sewer lines
and service laterals This schedule shall identify each line and the recurring cleaning and
television inspection for each line segment. The initial schedule shall have all lines televised
within the first six months and each subsequent six months for the first two years, for a total of
four events within the two-year period If the sewer lines show excessive debris during any of
the four television sequences, cleaning shall be performed and debris quantities determined A
post cleaning television inspection shall also be done on the same line segment. Upon
completion of the initial four television inspections the CONTRACTOR shall submit an analysis
of the condition of the pipe and a recommendation for the continued television inspection and
cleaning of the pipe on a recurring basis
The CONTRACTOR shall comply with the cleaning and television requirements as set forth in
this document.
The CONTRACTOR shall obtain all fresh water necessary for performance of work under the
contract from fire hydrants at the site of work or from other suitable designated sources
approved by the OWNER. All costs associated with obtaining fresh water for performance of
work are the responsibility of the CONTRACTOR.
The CONTRACTOR shall notify third parties (such as public utilities and the telephone
company) of the CONTRACTOR'S intent to perform work in an area where such parties may
have rights to underground property or facilities and request for maps or other descriptive
information as to the nature and location of such underground facilities or property and
assurance of the CONTRACTOR'S ability to enter upon any public or private lands to which
access is required for performance of the work under the contract.
The CONTRACTOR shall obtain a secure storage area of a size adequate to accommodate the
required equipment, vehicles, and materials for the period of performance of the agreement.
The CONTRACTOR shall arrange traffic control when the safety of work or the public requires
such protection or as may be otherwise specified
The CONTRACTOR shall dispose of all materials removed from the cleaning and TV
operations conducted by the CONTRACTOR at an approved Facility Costs associated with the
removal, transport, and discharge of such materials shall be considered incidental to the project
and shall be the responsibility of the CONTRACTOR. The CONTRACTOR shall obtain all
necessary permits for hauling and disposal of liquid waste in accordance with City of Fort
Worth Ordinance 9978
The CONTRACTOR shall have the ability to communicate with all crews and the OWNER at all
times The CONTRACTOR shall have a cellular telephone with a LOCAL telephone number
16 OF 17
4i.
and a LOCAL pager number at which the superintendent can be reached at any time while the
work is under way
The CONTRACTOR shall provide daily notification of work locations to the OWNER.
CONTRACTOR shall also notify the OWNER in the event that a point repair is to be made or if
lodged equipment causes an overflow
The CONTRACTOR shall be responsible for extracting contractor equipment and make repairs
to lines that become damaged by the contractor during the entire contract period Point repairs
along with any construction relating to this agreement shall be in accordance with the City of
Fort Worth construction specifications
The CONTRACTOR shall maintain a log of incidents and customer complaints The log shall
include date and time of call or incident, nature of complaint and resolution if any Log shall be
made available to OWNER upon request. All cleaning and CCTV inspections shall be
documented on forms provided by the OWNER.
The CONTRACTOR shall obtain written permission for access to private property where
easements are inadequate
For any cable installation, maintenance, repair or activities conducted in the sanitary sewers,
manholes or service laterals, the CONTRACTOR shall notify the OWNER in accordance with
paragraph TS-3, "NOTIFICATION OF CITY"
The CONTRACTOR shall notify the OWNER within one hour, when an interruption in the data
cable service occurs. This service interruption that may indicate damage to the collection
system shall be identified by street address so that response teams from the Water Department
may respond
The CONTRACTOR shall conduct pre-installation and post-installation television inspection for
all host pipes, including service laterals. These tapes will be submitted to the Water
Department for review and acceptance
SANITARY SEWER CLEANING.
SECTION 4 -OWNER'S RESPONSIBILITIES
The OWNER shall provide amanhole-numbering system for all areas of the project
The OWNER shall provide for the shut down or manual operation of certain pump stations if
such becomes necessary for performance of the work.
The OWNER shall review and respond to all submittals and written requests submitted by the
CONTRACTOR.
The CONTRACTOR should request the OWNER'S assistance only after making every attempt
to locate and expose the manhole on his own
17 OF 17
~~'r: ~
EXHIBIT "C"
INSTITUTIONAL NETWORK
1. Company, at Company's sole cost and expense, shall install, secure and clearly designate
four (4) dark optical fibers (meaning four (4) strands of fiber optic cable that are not carrying light
impulses) for the City's exclusive and indefeasible use and in a star, ring, star/ring hybrid or point-
to-point network architecture specified by the City, from the Network to a point of entry designated
by the City into and interconnecting the following facilities (each a "City Facility")
• Police Admimstration Building, 350 West Belknap; and
• Central Library, 500 West 'Third St., and
• Fort Worth/Tarrant County Convention Center, 1111 Houston St., and
• City Hall Annex, 908 Monroe; and
• One additional City-owned facility within a SONET ring of the Network.
2. Company shall not be responsible for the connection of such fibers to a City Facility's
internal wiring.
3. The City hereby grants Company, its authorized agents, employees, subcontractors and
others under Company's supervision, a right of access during the City's normal business hours or at
such times as otherwise directed by the IT Director to (i) each City Facility through locations
authorized by the Director of the City's Information Technology Solutions Department or
authorized representative ("IT Director") and (ii) any portion of the property outside each City
Facility that Is under the control of the City (such as common areas, sidewalks or vault space)
exclusively to make a dark fiber connection (the "Connection") to a "patch panel" or other similar
function box located m the City Facility and to otherwise install, maintain and repair the I-NET
Page 29 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
.._ ... ,:,Y,. ~,
EXHIBIT "D"
MAINTENANCE AND REPAIR SERVICES
FOR SEWER AND STORM DRAIN SYSTEMS
1. Pnor to installation of the Network, Company, at Company's sole cost and expense, shall jet
wash all portions of the Sewer System that Company wishes to use or explore for potential use in
the installation of its Network, including, at a minimum, those along the route indicated in blue on
the map of Exhibit "A" Following installation of the Network, Company, at Company's sole cost
and expense, shall from time to time, but not less than once every four (4) years, het wash all
portions of the Sewer System m which the Network is installed.
2. With respect to the Sewer System and any portions of the Storm Drain System that
Company wishes and receives permission to use, Company, at Company's sole cost and expense,
shall provide mapping and geographic information system (GIS) integration and consulting services
to the City Company shall work with and cooperate with the City's GIS coordinator and other staff
members m the City's Information Technology Solutions Department to ensure that these services
are useful to and compatible with the City's current mapping system. Following installation of the
Network, Company, at Company's sole cost and expense, shall from time to time, but not less than
once every four (4) years, ~etwash all portions of the Sewer System in which the Network is
installed.
3. If any portion of the Sewer or Storm Dram Systems that Company wishes to use in the
installation of its Network require repairs in order for Company to install its Network in a safe and
secure manner, as determined either by (i) the Water Department Director or T/PW Director, in his
or her sole reasonable opimon, or (ii) Company in its own discretion, then Company shall repair
such portion of the Sewer or Storm Drain Systems in accordance with directions from the Water
Department Director or T/PW Director, as applicable.
Page 30 of 30
Utility License and Public Right-of--Way Use Agreement
CityNet Telecommunications, Inc.
City of Fort Worth, Texas
Mayor and Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
6/11/02 **G-13641 12CITYNET 1 of 2
SUBJECT ORDINANCE GRANTING A FRANCHISE TO CITYNET TELECOMMUNICATIONS,
INC FOR USE OF PUBLIC RIGHTS-OF-WAY IN THE CITY FOR THE PURPOSE OF
CONSTRUCTING, INSTALLING AND MAINTAINING A FIBER OPTIC CABLE
NETWORK
RECOMMENDATION
It is recommended that the City Council adopt the attached ordinance granting a franchise to CityNet
Telecommunications, Inc (CityNet) for the use of public rights-of-way in the City for the purpose of
constructing, installing and maintaining a fiber optic cable network (Network)
DISCUSSION
On May 22, 2001 (M&C C-18603), the City Council authorized the City to enter into a contract with
CityNet to allow the installation of a fiber optic network in the City's sanitary and storm drain sewers in
the downtown area
In order to connect a customer who wishes to receive telecommunications services through the
Network, CityNet must install a small portion of its network in the public rights-of-way between the
locations of the sanitary and storm drain sewers and the customer's dwelling or building The City
charter requires any public utility that wishes to excavate in the public rights-of-way to obtain a franchise
Because CityNet has .received certification as a telecommunications provider by the Texas Public Utility
Commission, CityNet already has a statutory right to use the public rights-of-ways in the City However,
CityNet consented to the provision of the City Charter and applied for a franchise to use the public rights-
of-way in addition to the license it already has to use the City's sanitary and storm drain sewers
In addition to CityNet license fees of 2.5% of CityNet's gross revenue, CityNet will pay the City a
franchise fee equal to $1 51 per linear foot, or an access line charge determined by state law, as
applicable
The Water and Sewer Fund will receive the revenue from the license fees while the General Fund will
receive the revenue from the franchise fee and access line charge
City of Fort Worth, Texas
Mayor and Council Communication
DATE
6/11/02 REFERENCE NUMBER
**G-13641 LOG NAME
12CITYNET PAGE
2 of 2
SUBJECT ORDINANCE .GRANTING A FRANCHISE TO CITYNET TELECOMMUNICATIONS,
INC FOR USE OF PUBLIC RIGHTS-OF-WAY IN THE CITY FOR THE PURPOSE OF
CONSTRUCTING, INSTALLING AND MAINTAINING A FIBER OPTIC CABLE
NETWORK
FISCAL, INFORMATION/CERTIFICATION
The Finance Director certifies that the Public Utilities Supervisor is responsible for the collection 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)
GG01 421342 0134010
Charles Boswell 6183 PE45 493392 0701000
Originating Department Head:
David Yett 7623 (from) APPROVED 06/11/02
ORD.# 15126
Additional Information Contact:
Peter Vaky 7601