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HomeMy WebLinkAboutOrdinance 14004;. ~. ORDINANCE NO. ~~--~-- AN ORDINANCE PERMITTING AND REGULATING THE USE OF CERTAIN PUBLIC RIGHTS-OF-WAY WITHIN THE CITY OF FORT WORTH FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A TELECOMMUNICATIONS SYSTEM BY QWEST COMMUNICATIONS CORPORATION; MAHING THIS ORDINANCE CUMULATIVE OF ALL PROVISIONS OF ORDINANCES AND THE CODE OF THE CITY OF FORT WORTH (198, AS AMENDED, AND REPEALING ALL PRIOR ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR A SEVERABILITY CLAUSE, PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Qwest Communications Corporation ("Qwest"), a Delaware corporation, has requested the City of Fort Worth ("City") to grant Qwest the right to use certain public rights-of--way within the City, as specifically set forth in this Ordinance, for the construction, maintenance and operation of telecommunications system., and WHEREAS, the Fort Worth City Council has determined that it is appropriate to grant Qwest a license to use such public rights-of--way for this purpose and in return for consideration as set forth in this Ordinance; NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. PURPOSE ,. The Crty hereby grants to Qwest, for a term of twenty-five (25) years from the effective date prescribed by Section 17 of this Ordinance, a license to use those particular public rights-of--way in the City specifically set forth in Exhibit "A", attached hereto and hereby made a part of this Ordinance for all purposes, for the construction, improvement, maintenance and operation of a telecommunications system ("System") and all associated wires, cables, under- ~;. z `" ground conduits, manholes, or other structures. or appurtenances ("Facilities") that compnse such System: Approxunately 642 linear feet of Public Right-of--Way crossing N.E. 38`~ Street, N.E. 29`~ Street, N Beach Street, N Sylvania Street, Deen Road, Schwartz Street, Decatur Street, N.E. 29~' Street, N.E. 23'~ Street, Cold Spnngs Road, E. Peach Street, and 15` Street.., as further depicted in Exhibit "A", attached hereto and hereby made a part of this Ordinance for all purposes. These specific portions of the public nghts-of--way that Qwest may use as provided in herein or subsequently in a valid amendment to this Ordinance shall be referred to Zn this Ordinance as the "Public Rights-of--Way" SECTION 2. REGULATION OF CONSTRUCTION All work performed in the erecting, constructing, replacing, reconstructing, maintaining, or repau7ng of the System shall be subject to and governed by all laws, rules, and regulations of the City and State of Texas. Qwest shall ensure such work does not inconvenience the public in the use of the Public Rights-of--Way, including, but not limited to, the following• A. Pnor to construction or work on or to the System that will require any digging, cutting or other disruption of a Public Right-of--Way or other City property, Qwest shall submit a certificate of insurance to the City's Risk Manager for review and approval. Qwest hereby agrees to endorse its insurance policies to name the City as an additional insured and to obtain any additional insurance coverage or to increase the luruts of existing insurance coverage as reasonably requested by the City's Risk Manager B Pnor to construction of any significant changes to the System which will require any digging, cutting or any other such disruption of a Public Right-of--Way or City property after the 2 m effective date of this ordinance, Qwest shall subrrut engineering plans to the City for review and approval, pursuant to the standards generally applicable to requests for the privilege to use the Public Right-of--Way, including the City's utility location and coordination policy Approval of such plans will not be unreasonably delayed, unreasonably withheld or unreasonably denied by the City C. All excavations and other construction in the streets shall be carned out so as to interfere as tittle as practicable with the surface use of the Public Rights-of--Way and with the surface use of private property, in accordance with any lawful and reasonable direction given by or under the authority of the governing body of the City under the police and regulatory powers of the City necessary to provide for public convenience. Qwest shall promptly restore all public right-of--way excavated by Qwest to substantially the same condition as before such excavation and to the reasonable satisfaction of the City Qwest shall comply with all other construction requirements of the City and its Transportation/Public Works Director with respect to hours of construction operations inpeak-busy traffic hours, bamcadmg requirements, andlor any other reasonable construction rules which maybe lawfully promulgated. D Except in an emergency, Qwest shall not excavate any pavement in any Public Right-of--Way or significant amounts of any unpaved Public Right-of--Way without first securing the permission of the City, but such permission shall not be unreasonably delayed, unreasonably withheld or unreasonably denied if the proposed excavation is in accordance with the terms of this Ordinance. The City shall be notified as soon as practicable regarding work performed under emergency conditions. E. The City shall have the power at any time to order and require Qwest to remove or abate any facility that is dangerous to life or property, and in the event Qwest, after notice, 3 fails or refuses to comply, the City shall have the power to remove or abate same at the expense of Qwest, all without compensation or liability for damages to Qwest. SECTION 3. WORK BY OTHERS The City reserves the nght, subject to further conditions described in this pazagraph, to lay and/or permit to be laid, sewer, gas, water, and other pipelines or cables and conduits, and to do and permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the City, in, across, along, over or under any Public Right-of- Way used by Qwest, and to change any curb or sidewalk or the grade of any street. In performing such work or permitting such work to be done, the City shall not be liable to Qwest for any damages so caused, nor shall the City be liable to Qwest for any damages arsmg out of the performance of such work by the City, its licensees, invitees, contractors or subcontractors except to the extent such damages are caused by the negligence or intentional misconduct of the City, its employees, contractors or subcontractors. In addition, nothing herein shall relieve any other person or corporation from liability for damage to the Facilities of the System. If the City requires Qwest to remove, alter, change, adapt, or conform its Facilities because of changes in the grade of a street or in the location or manner of constructing a water pipe, sewer pipe or other underground or aboveground structure owned by the City, Qwest shall make the alterations or changes as soon as practicable when ordered in venting by the City, without claim for reunbursement or damages against the City If these requirements impose a financial hazdship upon Qwest, Qwest shall have the nght to present alternative proposals for the City's consideration. 4 ;~ Notwithstanding anything to the contrary contained herein, the City shall have the right to requue Qwest to remove, alter, change, adapt or conform its Facilities to enable (i) any corporation, person or entity with a franchise, use agreement or pernit in effect pnor to the effective date of this Ordinance to have greater pnonty than Qwest in the use of the Public Rights-of--Way in accordance with a respective franchise, use agreement or peririt and (ii) any corporation, person or entity other than the City to use the Public Rights-of--Way ("Non- permitted User") after the Non-permitted User has obtained a bond or otherwise to fully reimburse Qwest for any such loss and expense which will be caused by or will anse out of such removal, alteration, change, adaptation or conformance of Qwest's facilities, provided, however, that the City shall not be liable m any event whatsoever for any reimbursement, loss or expense which will be caused by or anse out of such removal, alteration, change, adaptation or conformance of Qwest's Facilities. It is expressly understood that, save and except the provisions contamed in Section 2, Section 3 and Section 9 herein, no other provision of this ordinance creates an unconditional obligation on the part of Qwest to remove, alter, change, adapt or conform its Facilities. SECTION 4. CONSTRUCTION BY ABUTTING OWNERS _. In the event that the City authonzes landowners whose property abuts a Public Right-of- Way to occupy space under the surface of any such Public Right-of--Way after the adoption of this Ordinance, such grant to abutting landowners shall be subject to the pnor nghts of Qwest that are granted under thus Ordinance. 5 SECTION 5. RIGIiTS IN TAE EVENT OF ABANDONMENT In the event that the City closes or abandons any Public Right-of--Way used by Qwest, any conveyance of land contained in such closed or abandoned Public Right-of--Way shall be subject to the nghts of Qwest that are granted under this Ordinance. In the event that any portion of the Public Right-of--Way that includes Facilities of the System becomes the subject of condemnation proceedings, it is agreed that Qwest's property nghts and interest in such Public Right-of--Way shall be severed from the Crty's interest m such proceedings and any such condemnation awards shall be specifically allocated between Qwest's interest and the. Crty's interest. The City shall use rts best efforts to notify Qwest within a reasonable time of any actual or threatened condemnation action against the Public Right-of--Way that affects any Facility of the System, or any proposed sale in lieu of condemnation. SECTION 6. LIARTT.ITY AND INDEMNIFICATION QWEST SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, THAT ARISE OUT OF OR ARE IN CONNECTION WITH THE RIGHTS GRANTED TO QWEST UNDER THIS ORDINANCE, INCLUDING, BUT NOT LIMITED TO, THE ERECTION, CONSTRUCTION, LOCATION, REPLACEMENT, RECONSTRUCTION, MAINTENANCE, REPAIR OR OPERATION OF THE SYSTEM OR ANY OF ITS FACILITIES, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE 6 OR INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS. IN ADDITION, QWEST, AT QWEST'S OWN EXPENSE, SHALL INDEMNIFY, DEFEND AND SAVE AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES FROM AND AGAINST ANY CLAIM, LAWSUIT OR ACTION OF ANY CHARACTER, STYLE OR DESCRIPTION, THAT ARE BASED ON OR RELATED TO THE RIGHTS GRANTED TO QWEST UNDER THIS ORDINANCE, INCLUDING, BUT NOT .LIMITED TO, THE ERECTION, CONSTRUCTION, LOCATION, REPLACEMENT, RECONSTRUCTION, MAINTENANCE, REPAIR OR OPERATION OF THE SYSTEM OR ANY OF ITS FACILITIES, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS, AND QWEST SHALL PAY ANY JUDGMENT, WITH COSTS, WHICH MAY BE OBTAINED AGAINST THE CITY UNDER ANY SUCH CLAIM, LAWSUIT OR ACTION. SECTION 7. RECORDS The City and its Public Utilities Supervisor shall have the nght to be kept fully informed as to matters pertaining in any way to Qwest's exercise of its nghts under this Ordinance, includmg, but not limited to, the erection, construction, location, replacement, reconstruction, maintenance, repair or operation of the Facilities of the System. Qwest shall keep complete and accurate maps, construction drawings and specifications describing the location of Facilities of the System in Fort Worth and shall notify the City's Director of Information Systems and 7 Services or authorized representative as to the location of the Facilities and shall fully cooperate with such officials in order to ensure that the Facilities are accurately reflected on the City's mapping system. Maps, construction drawings and specifications kept by Qwest in accordance with this Ordinance shall provide for separate and specific identification of those Facilities of the System that are located m the Public Rights-of--Way Any and all maps, construction drawings, and specifications required by this Ordinance shall be kept and maintained within the City's ~unsdictional limits. The City shall have the nght, at reasonable times and for mumcipal ,purposes, to inspect and/or copy such maps, construction drawings and specification, provided, however, that copies of such maps, construction drawings and specifications taken by the City shall be returned to Qwest immediately upon completion of City's use of same. Qwest shall fully cooperate with the City m its making available maps, construction drawings and specifications for inspection by the City Maps, construction drawings and specifications required by this ordinance and maintained by Qwest shall not leave the possession of Qwest, subject to the above. SECTION 8. NOTICES Any notice or commumcation required m the administration of this Ordinance shall be considered delivered (i) when hand-delivered to the other party or (ii) three (3) days after deposited in the Umted States Postal Service mail, certified, return receipt requested, and sent as follows. City Secretary City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 8 with copy to Public Utilities Supervisor City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Notice to Qwest will be to J L Slaves, Assistant Vice President Right of Way and Real Estate Qwest Commumcations Corporation 13952 Denver West Parkway Building #53, Suite #200 Golden, Colorado 80401 or to such other address as Qwest may designate from lime to time by wntten nonce. SECTION 9. FEE A. For and in consideration of all the rights and privileges granted hereunder, Qwest shall pay the City an annual Public Right-of--Way use fee calculated in accordance with the linear feet of Public Right-of--Way in the City used by Qwest as provided by this Ordinance ("Public Right-of--Way Use Fee" or "Fee") From the effective date of this Ordinance, as established by Section 17, Qwest's Fee shall equal four percent (4%) of the imtial construction cost of the Facilities as approved by the City plus $1 47 per lineaz foot of Public Right-of--Way in the City used by Qwest, for a total sum of One Thousand Seven Hundred Fourteen($1,714). On the first anmversary and each subsequent anniversary of the effective date of this Ordinance, Qwest's annual Fee shall be adjusted to reflect a per lineaz foot chazge equal to (i) the per lineaz foot charge paid by Qwest for the previous twelve month period plus (ii) the upward percentage change, if any, in the Implicit Price Deflator for the Gross Domestic Product during such twelve- 9 month penod, as determined by the United States Department of Commerce ("GDP Change"), multiplied by the number of linear feet of Public Right-of--Way in the City used by Qwest at the time In the event that in any given year there is no GDP Change or the GDP Change is downward, the Fee shall remain constant until the following anniversary date. In no event shall the Fee ever be decreased. B Qwest `s Fee for the first year shall be due in full not later than thirty (30) days following the date this Ordinance is adopted by the Fort Worth City Council. In the event Qwest fails to deliver this Fee witlin thirty (30) days following the date tlis Ordinance is adopted by the Fort Worth City Council shall render this Ordinance null and void for all purposes. Subsequent Fees shall be due on or before the anmversary date of this Ordinance pnor to the commencement of the twelve-month penod for which such Fees are due. All Fees shall be payable to the City of Fort Worth and delivered to the Public Utilities Supervisor as provided by Section 8, unless otherwise directed m writing by the City C The Fee shall be exclusive of and in addition to any general mumcipal taxes of whatever nature, including but not limited to ad valorem taxes and special taxes and assessments for public unprovements, except as otherwise specifically provided bytlus Ordinance. D This Ordinance is intended to grant to Qwest the use of the described Public Right-of- Way only in connection with the uses and routes prescribed hereunder Any other uses of Public Right-of--Way are not authorized by this Ordinance. Qwest understands and agrees that this Ordinance does not grant Qwest, any assignee ox successor in interest of Qwest or any other party the nght to use the Public Rights-of--Way or Qwest's Facilities in the Public Rights-of--Way for the construction of facilities for the provision of any telecommumcahons services to any entity or person at an address located within the corporate lunrts of the City If Qwest or any 10 assignee or successor in interest of Qwest (i) desires or obtains legal authonty to provide any land of telecommumcations services to any entity or person at an address located within the corporate lunits of the City through any facilities in, above or across any of the City's public nghts-of--way; (ii) wishes to construct and/or install additional facilities m any of the City's public nghts-of--way or (iii) wishes or is obligated to allow any other party to use Qwest's Facilities for the provision of any kind of telecommumcations services to any entity or person at an address located within the corporate lirruts of the City, including, but not limited to, local , exchange telephone, cable or open video system services, Qwest, such assignee or successor in interest of Qwest or such other party, as the case may be, shall first obtain a franchise, public nght-of--way use agreement or other consent by the City E. The Fee is exclusive of and shall not in any way be affected by any relocation of Qwest's Facilities required by the City pursuant to Section 3 of this Ordinance. SECTION 10. ASSIGNMENT OF RIGHTS The nghts granted by this Ordinance inure to the benefit of Qwest and any parent, subsidiary, affiliate or successor entity now or hereafter existing. The nghts shall not be assignable without the express wntten consent of the govenung body of the City of Fort Worth, except that Qwest may assign its rights under this ordinance to a parent, subsidiary, affiliate or successor entity without such consent, so long as (i) such parent, subsidiary, affiliate or successor assumes in a wntten agreement acceptable to the City all responsibilities, obligations and liabilities of Qwest hereunder, and (ii) is bound to the same extent as Qwest hereunder Such consent shall not be capnciously or unreasonably withheld, unreasonably delayed or 11 unreasonably conditioned. Any required consent is to be evidenced by an ordinance or resolution of the governing. body of the City that fully recites the terms and conditions, if any, upon which consent is given. SECTION 11. LEASING OR DEDICATION OF FACILITIES Qwest shall not lease or allow the use of all or any portion of its Facilities in the Public Rights-of--Way to any other person, corporation or entity and shall not allow any other person, corporation or entity to alter the Facilities or attach to or construct on the Facilities additional facilities for the provision of telecommunications services unless Qwest first (i) notifies the City in writing; (ii) provides the City with name of the lessee or user, a manner in which to contact the lessee or user, and the type of telecommunications services that the lessee or user intends to offer as well as the lessee's or user's anticipated market for such telecommunications services, (iii) obtains the City's written consent to such lease or use arrangement, which consent shall not be unreasonably withheld. SECTION 12. MISCELLANEOUS ,, The Public Utilities Supervisor, or lis duly authorized representative, is the principal City official responsible for the administration of this Ordinance, and Qwest recognizes that Questions regazding the interpretation or application of this Ordinance shall be raised initially with that designated official. 12 SECTION 13. ACCEPTANCE 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 this license, Qwest acknowledges, by the signature hereunder of its duly authorized representative, that it accepts and agrees to the terms, conditions and provisions of this Ordinance, thus constituting a contract and agreement between the City and Qwest. This Ordinance will not become effective unless accepted and agreed to in writing by Qwest, as herein prescribed. SECTION 14 CUMULATIVE PROVISIONS This Ordinance shall be cumulative of all provisions of other ordinances and of the Code of the Crty of Fort Worth, Texas (1986), as amended, except where the provisions of this Ordinance are in direct conflict with the provisions of such other ordinances and Code, in which event conflicting provisions of such ordinances and Code are hereby repealed. SECTION 15. SEVERABILITY ,. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this Ordinance are severable, .and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid, illegal or unenforceable by final judgment or decree of any court of competent jurisdiction, the validity, 13 legality and enforceability of the remaining provisions of this Ordinance shall not in any way be affected or nmpanred. SECTION 16. That the Cnty Secretary of the City of Fort Worth is hereby directed to publish this Ordinance in its entirety once a week for four (4) consecutive weeks withnn a penod of thirty (30) days after its passage in the official newspaper of the Cnty, as required by Section 2 of Chapter XXV of the City Charter of the City of Fort Worth. Qwest shall pay all costs associated with such publication. SECTION 17. This Ordinance shall be m full force and effect from and after rts passage, publication, wntten acceptance and payment of the first Fee Installment as prescribed herein, and nt is so ordained. APPROVED AS TO FORM AND LEGALITY: Assistant City At ey Date:. /l-/6 -y 9 M&c ~--I~7~1 ADOPTED ~~~ ~~ ~~~ EFFECTIVE /~ " l C/ " 14 ACCEPTED AND AGREED TO BY QWEST OMMUNICATIONS CORPORATION By ~. Augu Turturro Senior Vice President 15 Exhibit A QWEST COMMUNICATIONS FIBER OPTIC ROUTES Linear Feet Street Profile Saginaw to NE 23rd Street In R.O W. Scroll Ref. NE 38th Street 51 T-65 NE 29th Street 50 T-166 Subtotal(1) 101 Haltom City to NE 23rd Street N Beach Street 130 K-1505 N. Sylvania Street 70 S-296 Deen Road :• 51 D-6i Schwartz Street 80 S-138 Decatur Street 65 D-55 NE 29th Street 50 T-i66 Subtota!(2) 316 Extension of Backbone NE 23rd Street to Downtown NE 23 Street 60 T-70 Cold Springs Rd 45 C-29 E. Peach Street 60 P-25 1st Street 60 F-82 Subtotal(3) 225 Total Linear Feet in Public ROW 642 A-1 ~ `ry'v~ ~~ I ~D l c 9 _ TERMttJAIRO I-_, I _ ;z ~ 6 -_ I MICHAEL ~ ( f ~'- , z , ;-y ~ ~;~ I NORMAN E ~ Q O,, I O~' r JASPEii iPpj'_-~. I C•, !g ~ y N < ~~ _ f-- _ I 287P ; ~ NE 38TH •?` -+Oi ~a___... SEIENE ~ ~ i \ `= 1' I ~i -- I 1 ` \ Z BROTHERS z ~^ ~ ' i u ! 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'-~'` City of Fort Worth, Texas ~1-~Ayc~r end (; ~urtc;l C~~rtmun;cA~~an DATE 11/16/99 REFERENCE NUMBER **G-12731 LOG NAME 02Q PAGE 1 of 1 SUBJECT ORDINANCE GRANTING QWEST COMMUNICATIONS 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 which grants Qwest Communications Corporation a license to use certain streets and public rights-of-way of the City of Fort Worth for the maintenance and operation of a fiber optic long-distance telecommunications system DISCUSSION Qwest Communications Corporation (Qwest) 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 shown in Exhibit "A" of the attached ordinance In consideration for the license to use the prescribed city streets over the 25 year term of the ordinance, Qwest has agreed to pay the City cone-time payment equal to 4% 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 47 per linear foot of City-owned right-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 $1,714 FISCAL INFORMATION/CERTIFICATION The Public Utilities Supervisor will be responsible for collection of funds due to the City under this agreement. MGj , Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) GG01 421342 0134010 APPR~JVED Charles Boswell 8511 Originating Department Head: CITY COUNCIL Charles Boswell 8511 (from) N 0 V 16 X999 Additional Information Contact: ,, ~~ae..t/ City secretary of the Danny Reed 6145 City of Fort Worth, Texas Adapted Gl~dir~al3~t: No. ~