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HomeMy WebLinkAboutOrdinance 14427ORDINANCE NO. ~ y ~Z 7 AN ORDINANCE GRANTING A LICENSE TO PF.NET NETWORK SERVICE CORP. FOR USE OF PUBLIC RIGHTS-OF-WAY IN THE CITY OF FORT WORTH FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING A TELECOMMUNICATIONS SYSTEM SOLELY FOR THE TRANSMISSION OF LONG DISTANCE TELEPHONE SERVICES; REQUIRING EXECUTION OF A PUBLIC RIGHT-OF-WAY USE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND PF.NET NETWORK SERVICES CORP. REGARDING CONDITIONS AND REQUIREMENTS RELATED TO THE USE OF PUBLIC RIGHTS-OF-WAY IN THE CITY OF FORT WORTH; TO THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A TELECOMMUNICATIONS SYSTEM FOR THE TRANSMISSION OF LONG DISTANCE TELEPHONE SERVICES; AND TO REASONABLE COMPENSATION TO THE CITY OF FORT WORTH FOR THE USE 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. PF.Net Network Services Corp. ("Company"), a Delaware corporation, wishes to use certain specific portions of the public rights-of-way in the City for the purpose of constructing, maintaining and operating a telecommunications system solely for the transmission of long distance telephone services ("System") through the City The System will consist of fiber optic cable and related equipment that Company will install above and within the public rights-of-way in the City In accordance with the City Charter and ordinances of the City, Company has applied for a license from the City in order to carry out those purposes. B. The City has reviewed Company's request and agrees to grant Company a license for use of such public nghts-of-way in the City, on the terms and conditions set forth herein, solely for the transmission of long distance telephone services through the City 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 Public Right-of-Way Use Agreement in the form attached hereto as Exhibit 1, which is hereby made a part of this Ordinance for all purposes, the City hereby grants Company a license to locate, place, attach, install, operate and maintain its System in, on, above and within the portions of the public rights-of-way in the City identified in Exhibits "A" and "B" of such Public Right-of-Way Use Agreement. ~~, Section 2. In accordance with and as required by Section 2 of Chapter XXV of the Crty's Charter, the City Secretary is hereby directed to publish this Ordinance m rts 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. Section 3. This Ordinance shall be m full force and effect following (i) its adoption, and (u) its publication m accordance with Section 2, and (iii) m accordance with Section 1, the execution of the Public Right-of--Way Use Agreement attached hereto as Exhibit 1 ADOPTED ~ ~.Z`Oa ,/ 3loa Date M & C Number EFFECTIVE DATE APPROVED AS TO FORM AND LEGALITY By' ~~% Peter Vaky Assistant City Attorney City of Fort Worth 2 Exhibit 1 PUBLIC RIGHT-OF-WAY USE AGREEMENT (Long Distance Telephone Service Provider) The following statements are true and correct and constitute the basis upon which the City of Fort Worth has executed this Public Right-of-Way Use Agreement ("Agreement") A. The City Council of the City of Fort Worth has adopted an ordinance that grants PF.Net Network Services Corporation a license to locate, place, attach, install, operate and maintain a fiber optic cable system other related equipment in certain specific portions of the public rights-of-way in the City of Fort Worth solely for the transmission of long distance telephone services through the City of Fort Worth ("Public Right-of--Way Use Ordinance"), subject to the execution by PF.Net Network Services Corporation of this Public Right-of-Way Use Agreement. B. In accordance with the Public Right-of-Way Use Ordinance, PF.Net Network Services Corporation desires to enter mto this Agreement. NOW, THEREFORE, the City and Company agree as follows. 1. DEFINITIONS. Capitalized terms used in this Agreement and not otherwise defined within this Agreement shall have the following meanings. Act shall mean the federal Communications Act of 1934, as amended. Affiliate shall mean any individual, partnership, association, joint stock company, limited liability company, trust, corporation, or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with, the entity in question. Cable Services shall mean only the one-way transmission to subscribers of (i) video programmng 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 generally to all subscribers of Company's Cable Services, such as digital cable radio service; (iii) information services, (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 ordering of merchandise and the downloading of programs or data access. Communications Business shall mean the operations necessary and incident to Company's transmission of long distance telephone service through the City Communications Services shall mean only the transmission via Company's System of long distance telephone services through the City Company shall mean PF.Net Network Services Corp., a Delaware corporation, only and shall not include any Affiliate or third party City shall mean the area within the corporate limits of the City of Fort Worth, Texas and the governing and administrative body thereof Effective Date shall mean the effective date of the Public Right-of-Way Use Ordinance. FCC shall mean the Federal Communications Commission. Person shall mean an individual, a corporation, a limited liability company, a general or limited partnership, a sole propnetorship, a joint venture, a business trust or any other form or business entity or association Public Rights-of-Way shall mean only those portions of the public rights-of-way in the City identified in Exhibits "A" and "B" of this Agreement, which are attached hereto and hereby made a part of this Agreement for all purposes. PUC shall mean the Texas Public Utility Commission. System shall mean Company's system of fiber optic cable and other equipment in the Public Rights-of-Way used by Company in the transmission of long distance telephone services through the City 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. 2. GRANT OF RIGHTS. 2.1. General Use of Public Rights-of-Way for Provision of Communications Services. Subject to the terms and conditions set forth in the Public Right-of-Way Use Ordinance, this Agreement and the City Charter and ordinances, the City hereby grants Company a license to locate, place, attach, install operate and maintain its System in the 2 Company a license to locate, place, attach, install operate and maintain its System in the Public Rights-of-Way, as defined in Section 1 hereof Company hereby acknowledges and agrees that the location, attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of System or any other System equipment constitutes an actual use of the Public Rights-of-Way, that the City has the right to manage and regulate the use of such Public Rights-of-Way, and that the City is entitled to recover reasonable compensation from Company on account of such use of the Public Rights-of-Way If after the effective date of the Public Right-of-Way Use Ordinance, Company believes that its operations in the Public Rights-of--Way are subject to Chapter 283 of the Texas Local Government Code, Company shall notify the City in writing. In such an event, sums paid to the City for Company's use of the Public Rights- of-Way, including, but not limited to, Right-of-Way Use Fees under this Agreement and any permit fees and application fees, between the effective date of the Public Right-of- Way Use Ordinance and the date on which the terms and conditions of Chapter 283 of the Texas Local Government Code took control shall not be affected, and Company agrees that it shall not be entitled to any kind of offset, reimbursement or deduction of such compensation from Access Line Fees subsequently paid to the City pursuant to Chapter 283 Company hereby acknowledges and agrees that this Agreement addresses only the use of the Public Rights-of-Way by Company m the transmission of long distance telephone services and does not grant Company or any Affiliate or contractor of Company the use of the Public Rights-of-Way for any other reason, including, but not limited to, the transrrussion, receipt or provision of any Cable Services or Telecommunications Services in or through the City If Company, an Affiliate of Company, or any assignee, successor in interest or contractor of Company contends that Company, an Affiliate 'of Company, or any assignee, successor in interest or contractor of Company wishes to or intends to provide any Cable Services or Telecommunications Services in or through the City; (ii) wishes to construct and/or install additional facilities in any of the City's public nghts-of-way other than the Public Rights-of-Way defined in Section 1, or (iii) wishes or is obligated to allow another Person to use the System to provide any Cable Services or Telecommunications Services in or through the City, Company shall first notify the City in writing and shall obtain a franchise or other written permit or agreement for the use of the Public Rights-of-Way in that respect. 2.2. Scope. Any and all rights granted to Company under this Agreement, which shall be exercised at Company's sole cost and expense, shall be subject to the prior and continuing right of the City to use any and all parts of the Public Rights-of-Way exclusively or concurrently with any other Person or Persons having the legal right to use such Public Rights-of-Way In addition, any and all rights granted to Company under this Agreement shall be subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title of record which may affect the Public Rights-of--Way Nothing in this Agreement shall be deemed to grant, convey, create or vest in Company a real property interest in land, including, but not. lirruted to, any fee, leasehold interest or 3 easement. Any work performed by or on behalf of Company shall be subject to the prior and customary review and regulation by the City 2.3. Nonexclusive. This Agreement and all rights granted to Company herein are strictly nonexclusive. The City reserves the right to grant other and future agreements, consents and franchises for the use of public rights-of-way in the City, including the Public Rights- of-Way used by Company pursuant to this Agreement, to other Persons as the City deems appropriate. This Agreement does not establish any priority for the use of the Public Rights-of-Way by Company or by any present or future franchisees, users or other permit holders. In the event of any dispute as to the priority of use of the Public Rights-of-Way, the first priority shall be to the public generally, the second priority to the City in the perforinance of its various functions, and thereafter, as between franchisees, users and other permit holders, as determned by the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. 2.4. 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, repair or maintenance of the System or the transmission of long distance telephone services through the City 3. FEES AND PAYMENTS. 3.1. Public Right-of-Way Use Fee. Within thirty (30) calendar days following the adoption of the Public Right-of- Way Use Ordinance, Company shall pay the City as compensation for its use of the Public Rights-of-Way between the Effective Date of the Public Right=of-Way Use Ordinance and the first anniversary thereof the sum of Two Hundred Eight Thousand Three Hundred Seventy-Five Dollars ($208,375.00), which represents (i) an amount equal to four percent (4%) of the initial construction cost of the System plus (ii) $1.50 for each linear foot of the Public Rights-of-Way On or before the first anniversary and on or before each subsequent anniversary of the Effective Date of the Public Right-of-Way Use Ordinance, Company shall pay the City a sum equal to (i) the per linear foot charge paid by Company during the immediately preceding twelve (12)-month period plus (ii) the upward percentage change, if any, m the Implicit Price Deflator for the Gross Domestic Product during such twelve (12)-month period ("GDP Change"), as determined by the United States Department of Commerce or successor agency, multiplied by the number of linear feet of public right-of-way in the City used by Company at the time (collectively the "Right-of--Way Use Fee"). If in any given twelve (12)-month period there is no GDP Change or the GDP Change is downward, the Right-of-Way Use Fee shall remain constant until the following anniversary date. In no event shall the Right-of--Way Use 4 Fee ever be decreased. Company hereby acknowledges and agrees that the amount of this Right-of--Way Use Fee constitutes just and reasonable compensation to the City for Company's use of the Public Rights-of-Way as provided by this Agreement. 3.2. Other Payments. In addition to the Right-of-Way Use Fees, Company shall pay the City all sums which may be due the City for property taxes, license fees, permit fees, or other taxes, charges or fees that the City may from time to time impose. 3.3 Interest. All sums due the City under this Agreement that are not paid when due shall bear interest at the rate of ten percent (10%) per annum, computed monthly 3.4. Performance Bond. Within thirty (30) days following the Effective Date of this Agreement, Company shall provide the City with a performance bond ("Bond") in the amount of Fifty Thousand Dollars ($50,000.00) issued by a surety and in a form acceptable to the City This Bond shall serve a security to the City for the faithful performance by Company of the provisions of this Agreement and payment of all Right-of-Way Use Fees and other sums due the City pursuant to the terms and conditions of this Agreement. The Bond shall provide that the City may demand and receive payment of an amount owed by Company to the City under the provisions of this Agreement or applicable law by presenting the surety with (i) a written statement, signed by the City Manager, that sets forth the basis of the City's demand and contains an appropriate reference to the applicable law, ordinance or provision of this Agreement under which the City is due the sum demanded and (ii) a copy of the Bond. Company shall keep in effect and maintain this. Bond at the amount specified herein at all times during the term of this Agreement and for eight (8) months thereafter The Bond shall provide that the surety shall not cancel the Bond unless the surety provides written notice to the City at least sixty (60) days in advance of such cancellation. This Section 3 4 shall survive the expiration or termination of this Agreement. 4. TERM This Agreement shall become effective on the Effective Date, as established in the Public Right-of-Way Use Ordinance, and shall expire at the end of twenty-five (25) years from such Effective Date, at which time this Agreement and all rights of Company hereunder shall automatically terminate. If any iaw or agency rule or regulation is adopted and affects the City's ability or right to (i) manage the Public Rights-of-Way or (ii) protect subscribers within the City on matters such as customer service or consumer protection, Company agrees to meet with the City and to negotiate with diligence and in good faith an agreement or amendment to this 5 Agreement that reasonably resolves the City's concerns regarding such law or agency rule or regulation. 5. USE OF PUBLIC RIGHTS-OF-WAY. 5.1. No Undue Burden. The System shall not be erected, installed, constructed, repaired, replaced or maintained in any manner that places an undue burden on the present or future use of the Public Rights-of-Way by the City and the public. If the City, in its sole and reasonable judgment, determines that any portion of the System does place an undue burden on a portion of the Public Rights-of-Way, Company, at Company's sole cost and expense and within a reasonable time period specified by the City, shall modify the System or take other actions determined by the City to be in the public interest to remove or alleviate the burden. 5.2. Minimal Interference. Company has submitted a build-out plan to the Director of the City's Transportation/Public Works Department and the Director has approved such build-out plan. If Company wishes to deviate from such build-out plan in the actual construction of the System, it shall submit a revised build-out plan to the Director The revised plan shall include construction drawings and a map that depicts the proposed location of any System facilities in the Public Rights-of-Way The City shall have twenty (20) business days to review the plan m order to assess potential inconvenience to the public and users of the Public Rights-of-Way If the City has reasonable objections to any aspect of the plan, the City and Company shall negotiate in good faith a solution to the City's objections, in which case Company shall comply with the agreed-upon solution. 5.3. Parallel Installation. All cables, wires and other similar System facilities shall be installed parallel with existing telephone and electric utility wires whenever possible. Multiple cable configurations shall be in parallel arrangement and bundled in accordance with engineering and safety considerations and all applicable laws, ordinances, rules and regulations. 5.4. Underground Facilities. In any area of the City where the City currently or may in the future require public utilities to place their cables, wires or other equipment underground, then Company, at Company's sole cost and expense, shall also place its existing and future cables, wires and other equipment underground. In any such area where Company may have existing cables, wires and other equipment above ground, Company shall install such cables, wires and other equipment underground within six (6) months following written 6 notification from the City and at no expense, cost or liability to the City In this event, Company shall coordinate with other utilities serving such area of the City so that only one or as few possible trenches as necessary are utilized for the underground installation of System facilities and equipment. 5.5. MarkinE of Facilities. Company's underground System facilities and equipment shall have (i) a conducting wire placed in the ground at least several inches above Company's cable if such cable is non-conductive and (ii) a continuous colored tape at least eighteen (18) inches above Company's cable that contains a statement to the effect that there is buried cable below and provides Company's name and atoll-free number that a party may call for assistance. 5.6. Directional Borings. Whenever Company places System facilities and equipment beneath the traveled or paved portion of a Public Right-of-Way, unless otherwise approved in writing by the Director of the City's Transportation/Public Works Department, Company shall do so by directional bonng and not by excavation of a trench. Company shall notify the Director of the City's Transportation/Public Works Department at least five (5) business days prior to its making a directional bore underneath any Public Right-of-Way 5.7. As-Built Drawings. Within ninety (90) calendar days following completion of construction of the System in the Public Rights-of-Way, Company, at Company's sole cost and expense, shall supply the Director of the City's Transportation/Public Works Department or authorized representative with as-built drawings, plans and maps of any System facilities placed in, on, under or above such Public Rights-of--Way Company shall supply the textual documentation of such as-built drawings, plans and maps in computer format as requested by the City and shall otherwise fully cooperate with the City in ensuring that Company's Facilities are accurately reflected in the City's mapping system. 5.8. Pavement Cut Coordination and Additional Fees. In order to preserve the integrity of the Public Rights-of-Way infrastructure, Company shall coordinate its construction of the System and all other work in the Public Rights-of-Way with the City's program for street construction, rebuilding and resurfacing. Company shall not cut, excavate or otherwise breach or damage the surface of any paved Public Right-of-Way within ninety-six (96) months following the construction or resurfacing of such Public Right-of-Way unless (i) Company obtains written consent from the Director of the City's Transportation/Public Works Department and (ii) pays the City the sum of One Thousand Two Hundred Fifty Dollars ($1,250.00) for each fifty (50) linear feet of a cut, excavation or breach of any Public Right-of-Way or portion thereof This fee shall (i) be in addition to, and not in lieu of, Company's 7 obligations to restore the Public Rights-of-Way m accordance with this Agreement and (ii) not be allocated or otherwise counted as part of any Right-of-Way Use Fee to the City 5.9. Restoration of Public Rights-of-Way. Company, at Company's sole cost and expense, and in a manner approved by the City, shall promptly restore any portion of the Public Rights-of--Way that are in any way disturbed or damaged by the construction, operation, maintenance or removal of the System to, at Company's option, as good or better a condition as such property was in immediately prior to the disturbance or damage. Company shall diligently commence such restoration within fifteen (15) calendar days following the date that Company first became aware of the disturbance or damage or, if the System is being removed, withrn fifteen (15) calendar days following removal of the System. 5.10. Relocation/Removal of 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 Public Rights-of-Way any portion of its System when required by (i) the City due to street or other public excavation, construction, repair, grading, regrading or traffic conditions, the installation of sewers, drains, water pipes or municipally-owned facilities of any kind, the vacation, construction or relocation of streets or any other type of structure or improvement of a public agency; 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 prior to the Effective Date of this Agreement in 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 System 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 arise out of such protection, support, disconnection, relocation or removal. 5.11. Removal of Obsolete Facilities. Company shall promptly remove all obsolete or unused System facilities or equipment in the Public Rights-of-Way When Company opens a trench, accesses a conduit or boring or is working on aerial locations, it shall remove or have removed all unusable and/or inactive System facilities or equipment from those locations unless otherwise approved by the City When Company opens a trench or access to borings, it shall notify all other owners of facilities in or at such locations so that they may remove their obsolete facilities or install new facilities while the trench or access to borings is open. ff Company receives notification from another entity that the entity is opening a 8 trench or access to bonngs, Company shall remove all of its obsolete System facilities or equipment from such location while the trench or access to borings is open. 5.12. Removal of System. Upon the termination or expiration of this Agreement, Company's right to use Public .Rights-of-Way under this Agreement shall cease and Company shall immediately discontinue the transmission and/or provision of long-distance telephone services through the System. Within six (6) months following such termination or expiration and in accordance with directions from the City, Company shall remove the System, including, but not lirruted to, all supporting structures, poles, transmission and distribution systems and other appurtenances, fixtures or property from the Public Rights-of--Way If Company has not removed all System facilities and equipment from the Public Rights-of- Way within six (6) months following termination or expiration of this Agreement, the City may deem all of Company's System facilities and equipment remaining in 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 (ii) take any and all legal action necessary to compel Company to remove such property Within six (6) months following termination or expiration of this Agreement, Company shall also restore any property, public or private, that is disturbed or damaged by removal of the System. If Company has not restored all such property within this time, the City, at the City's sole option, may perform or have performed any necessary restoration work, in which case (i) Company shall immediately reimburse the City for any and all costs incurred in performing or having performed such restoration work or (ii) the City may use proceeds from Company's Bond to perform or have performed the necessary restoration work. 6. LIABILITY AND INDEMNIFICATION. 6.1. Disclaimer of Liability. THE CITY SHALL NOT AT ANY TIME BE LIABLE FOR ANY INJURY OR DAMAGE OCCURRING TO ANY PERSON OR PROPERTY FROM ANY CAUSE WHATSOEVER THAT ARISES OUT OF THE ATTACHMENT, INSTALLATION, OPERATION, MAINTENANCE, REMOVAL, REATTACHMENT, REINSTALLATION, RELOCATION AND/OR REPLACEMENT OF ANY SYSTEM FACILITIES AND/OR EQUIPMENT, THE CONSTRUCTION, MAINTENANCE, REPAIR, USE, OPERATION, CONDITION OR DISMANTLING OF THE SYSTEM, THE PROVISION OF COMMUNICATIONS SERVICES, OR COMPANY'S COMMUNICATIONS BUSINESS OPERATIONS. y 9 6.2. 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 LIABILITIES, 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 PERSONAL INJURY OR PROPERTY DAMAGE OR ANY ACT OR OMISSION OF COMPANY, ITS PERSONNEL, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS WHICH MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH (I) ATTACHMENT, INSTALLATION, OPERATION, MAINTENANCE, REMOVAL, REATTACHMENT, REINSTALLATION, RELOCATION AND/OR REPLACEMENT OF ANY SYSTEM FACILITIES AND/OR EQUIPMENT, (II) THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR CONDITION OF THE SYSTEM; (III) THE PROVISION OF ANY SERVICES BY MEANS OF SUCH SYSTEM FACILITIES AND/OR EQUIPMENT, EITHER BY COMPANY, AN AFFILIATE OR ANY OTHER 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. 6.3. Assumution 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 PUBLIC RIGHTS-OF-WAY. IN ADDITION, COMPANY HEREBY AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS ANY INDEMNITEE AGAINST AND FROM ANY CLAIM ASSERTED OR LIABILIT Y IMPOSED UPON ANY INDEMNITEE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE INCURRED OR ASSERTED BY COMPANY OR ANY OF ITS EMPLOYEES, AGENTS, SERVANTS, CONTRACTORS OR SUBCONTRACTORS, AND ARISING FROM THE ATTACHMENT, INSTALLATION, OPERATION, MAINTENANCE, REMOVAL, REATTACHMENT, REINSTALLATION, RELOCATION AND/OR REPLACEMENT OF ANY SYSTEM EQUIPMENT AND/OR FACILITIES OR THE INSTALLATION, OPERATION, MAINTENANCE OR CONDITION OF THE SYSTEM. 10 6.4. Defense of Indemnitees. In the event any action, lawsuit or other proceeding is brought against any Indemnitee by reason of any matter for which the Indemnitees are indemnified under Sections 6.2 or 6.3, 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 the City and reasonably acceptable to Company and with reasonable participation by the City In such an event, Company shall not admit liability in any matter on behalf of any Indemnitee without the advance written consent of the City 7. INSURANCE. Company shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverages as specified herein, naming the City as an additional insured and covering all public risks related to the use, occupancy, condition, maintenance, existence or location of the Public Rights-of--Way, the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any System equipment and/or facilities and the construction, installation, operation, maintenance or condition of the System. 7.1. Primary Liabilitv Insurance Coverage. • Commercial General Liabilitv: $1,000,000 per occurrence; • Property Damage Liabilitv: $10,000,000 per occurrence; • Automobile Liabilitv: $1,000,000 per accident, including, but not limited to, all owned, hired or non-owned motor vehicles used in conjunction with the nghts granted under this Agreement • Worker's Compensation: As required by law; and, Employer's Liability as follows. $1,000,000 per accident. 7.2. Excess Liabilitv Insurance Umbrella. $5,000,000, in addition to primary coverage for each coverage listed in § 7 1 11 7.3. 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 companies to notify the City at least thirty (30) days in advance of any material reduction in policy limits or of any cancellation, termination or non-renewal. 7.4. 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. 7.5. 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 7.6. No Limitation of Liability. The insurance requirements set forth in this Section 7 and any recovery by the City of any sum by reason of any insurance policy required under this Agreement shall in no way be construed or effected to limit or in any way affect Company's liability to the City or other persons as provided by this Agreement or law 8. 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: 8.1. Failure to Pay Right-of-Way Use Fees. An Event of Default shall occur if Company fails to pay (i) within thirty (30) calendar days following the adoption of the Public Right-of-Way Use Ordinance, the sum specified by Section 3 1 of this Agreement or (ii) any Right-of-Way Use Fee on or before the respective due date. 12 8.2. 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. 8.3. Bankruntcy, Insolvency or Receivership. An Event of Default shall occur if Company (i) files a voluntary petition in bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any petition filed against it seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any laws relating to bankruptcy, insolvency or other relief for debtors, (iv) seeks, consents to or acquiesces in the appointment of any trustee, receiver, master, custodian or liquidator of Company, any of Company's property or 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. 8.4. 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. 9. UNCURED DEFAULTS AND REMEDIES. 9.1. 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 it receives written notice from the City to cure the Event of Default. If any Event of Default is not cured within the time period specified herein, such Event of Default shall, without further notice from the City, become an "Uncured Default" and the City immediately may exercise the remedies provided in Section 9.2. 13 9.2. 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 lirrutation to any other rights or remedies the City may have. 9.2.1. 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 be automatically repealed. Upon such termination, Company shall forfeit all rights granted to it under this Agreement, and, except as to Company's unperformed obligations and existing liabilities as of the date of termination, this Agreement shall automatically be deemed null and void and shall have no further force or effect. Company shall remain obligated to pay and the City shall retain the right to receive Right-of-Way Use Fees and any other payments due up to the date of termination. In this event, Company shall comply with the provisions of Section 5 13 of this Agreement. The City's right to terrrunate this Agreement under this Section 9.2.1 shall does not and shall not be construed to consritute any kind of limitation on the Crty's right to terminate this Agreement for other reasons as provided by and in accordance with this Agreement. 9.2.2. Legal Action Against Company. Upon the occurrence of an Uncured Default, the City may commence against Company an action at law for monetary damages or in equity for injunctive relief or specific performance of any of the provisions of this Agreement which, as a matter of equity, are specifically enforceable. 10. 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. 11. COMPANY AS INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor as to all rights, privileges, terms and conditions granted by this Agreement, and not as an agent, representative or employee of the City Company shall have the exclusive right to control the details of its Communications Business and operations, in accordance with the terms and conditions 14 of this Agreement, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, employees, contractors and subcontractors. Company further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company 12. TRANSFERS AND ASSIGNMENTS. Company shall not (i) assign, transfer, sell or otherwise convey any of its rights, privileges, duties or interests as granted to Company by this Agreement and the Public Right-of-Way Use Ordinance; (ii) lease to any Person or allow use by any Person other than Company of all or any portion of its System or System facilities or equipment; or (iii) allow any Person to alter the System or System facilities or equipment or to construct additional facilities as part of the System in order to provide Cable Services, Telecommunications Services or any other services to a Person or Persons located in the City unless (i) Company first notifies the City in wasting; (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 City may charge for such use. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the other party, its agents, employees, servants or representatives, or (ii) received by the other party by United States Mail, postage prepaid, return receipt requested, addressed as follows. To THE CITY: To COMPANY: City of Fort Worth Elvis C. Stout City Manager's Office PF.Net Network Services Corp. Attn. Public Utilities Supervisor 600 Kenrick St., Suite AS 1000 Throckmorton Houston, TX 77060 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 15 14. NON-DISCRIMINATION COVENANT. Company shall not discriminate against any person on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status in the provision of Communications Services or in the receipt of benefits from Company's Communications Business. 15. 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. 16. GOVERNING LAW AND VENUE. This Agreement shall be construed pursuant to and in accordance with the laws of the United States of America and the State of Texas. If any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement, Company's provision of Communications Services, the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment, or Company's use of the Public Rights-of--Way, venue for such action shall lie exclusively in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. In any such action, the prevailing party shall be entitled to recover from the other party all reasonable attorneys' fees and other expenses incurred in bringing or defending, as the case may be, such action. 17. CONFERENCES. At the request of either the City or Company, the City and Company shall meet at reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Company's provision of Communications Services, or Company's use of Public Rights-of--Way 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final order entered by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement, a court order shall be final only to the extent that all available legal rights and remedies pertaining to such order, including, without limitation all available appeals, have been exhausted. In such an event, the City and Company agree that they shall amend or have amended this Agreement to comply with such final order entered by a court of competent jurisdiction. 16 19. FORCE ]VIA.TEURE. In the event Company's performance of any of the terms, conditions or obligations required by this Agreement is prevented by a cause or event that is not within Company's reasonable control, Company's non-performance shall be deemed excused for the period of such inability Causes or events that are not within the Company's control shall include, but not be limited to, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural disasters. 20. HEADINGS NOT CONTROLLING. Headings and titles, other than those captions in Section 1, that are used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. ENTIRETY OF AGREEMENT. This 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 precedent to the effectiveness of the Right-of--Way Ordinance and this Agreement, Company acknowledges that by Company's execution of this Agreement by the individual whose signature appears below, Company accepts and agrees to the terms, conditions and provisions of the Right-of- Way Use Ordinance and this Agreement. ACCEPTED AND AGREED TO• PF.NET NETWORK SERVICES CORP. a D ~l,aw corporation. By ~ ~ ~ ~ f~-_ Name. Tom R. McCaleb Title. Vice President 17 EXHIBIT "A" Company may use the following portions of the public rights-of--way in the City • Approximately 44,4581mear feet compnsing portions of Houston Street; W Vickery Blvd., E. Vickery Blvd., E. Maddox Ave; Burchill Rd., Brooks St., Mitchell Blvd., Vaughn Blvd.' Wichita St., Shelby Rd., and Rendon Rd., as further depicted on the attached map and described as the "South Route" 18 EXHIBIT "B" Company may use the following portions of the public rights-of-way in the City Approximately 42,4421inear feet composing portions of Camp Bowie Blvd., Lovell Ave., Faron Ave., Locke Ave., Merrick Street; Donnelly Ave., Alamo Street; Sutter Street; Lafayette Ave., Crestline Road, Owasso Street; Tulsa Way; Lancaster Ave., Foch Street; West Seventh Street; Forest Park Blvd., West Tenth Street; Summit Ave., Texas Street; Florence Rd., and Houston St., as further depicted on the attached map and described as the "West Route" 19 . l~~~i .~... 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RL ~4' ¢~¢ 1gURTQN H U ¢ > Z O I z ~1 ¢ E FORK °w tp~tiv ~•C?a 21z~ ~,`.- ; _Py L., w',_ ~~ O, O~_.y._~.__m .~I--~i-- -r~ SL._~a+- ~' ~G `,`~llM ~ i.-~~Q... ~'Q~1S3a~1aON \ ¢O J _g~31 drH .~ ; ~_. __i ~~G.~ ~__~ IH~V1E .i.^t__l-iglu _._.- ~./ ANSLEYLO oL m 1- ~ z ~ ;(, !J~" tTTtt-- > w City of Fort Worth, Texas ~1-~A~ar And Council a~nfnun~cAt~ian C DATE REFERENCE NUMBER LOG NAME PAGE 12/12/00 **G-13100 02PFNET 1 of 1 SUBJECT ORDINANCE GRANTING PF NET NETWORK SERVICES CORPORATION LICENSE TO USE CERTAIN PUBLIC RIGHTS-OF-WAY FOR A FIBER OPTIC LONG-DISTANCE TELECOMMUNICATIONS SYSTEM RECOMMENDATION It is recommended that the City Council adopt the attached ordinance granting PF Net Network Services Corporation a license to use certain public rights-of-way of the City for the maintenance and operation of a fiber optic long-distance telecommunications system DISCUSSION PF Net Network Services Corporation (PF Net) is seeking to construct a fiber optic cable to provide long distance telecommunications service The line will occupy portions of the public rights-of-way authorized in the attached ordinance In consideration for the license to use the prescribed City public rights-of-way over the 25-year term of the ordinance, PF Net has agreed to pay the City cone-time payment equal to four percent of the estimated construction costs of that portion of the cable installed in the rights-of-way, plus an annual amount of not less than $1 50 per linear foot of City-owned rights-of-way granted under the ordinance The annual amount is adjusted each year proportionally to the percentage change in the Implicit Price Deflator for the Gross Domestic Product as determined by the United States Department of Commerce The first payment will be in the amount of °'^^^,""" "^. N.1~8~37S,va FISCAL INFORMATION/CERTIFICATIO The Finance Director certifies that this action will have no material effect on City funds. The Public Utilities Supervisor in the City Manager's Office will be 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 {~PFR®VED Charles Boswell 8511 CI ®~p ~~~~ Originating Department Head: ~ ~ VLEL~IJJ;J~ DEC 12 Charles Boswell 8511 (from) 2000 //^ '')) Y Additional Information Contact: `~+~~ ~"~4~~J ~ ~itg 5s~reterq of the T of ~ ~tt i 6'~r Yh `~ s Danny Reed 6145 ~ x cFr , eir_ c Adngt~d Orr~~nan~~ Nd.. ~~y-~77