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HomeMy WebLinkAboutOrdinance 13869.~ ~.:. ORDINANCE NO~~ r 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 ENRON COMMUNICATIONS, INC.; MAKING THIS ORDINANCE CUMULATIVE OF ALL PROVISIONS OF ORDINANCES AND THE CODE OF THE CITY OF FORT WORTH (1986), 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, Enron Communications, Inc ("Enron"), an Oregon corporation, has requested the City of Fort Worth ("City") to grant Enron the right to use certain public rights-of- way within the Crty, as specifically set forth m this Ordinance, for the construction, maintenance and operation of telecommunications system., and. WHEREAS, the Fort Worth Crty Council has determined that rt is appropriate to grant Enron 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 City hereby grants to Enron, 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 m the Crty specifically set forth m 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- ,, ~•~ ground conduits, manholes, or other structures or appurtenances ("Facilities") that comprise such System: Approximately 21,375 linear feet of Public Right-of--Way comprising portions of Hicks Road, Harmon Road, Golden Heights, Golden Triangle Blvd., Old Denton Road, Alta Vista, and Katy Road., 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 rights-of--way that Enron may use as provided in herein br subsequently in a valid amendment to this Ordinance shall be referred to in this Ordinance as the "Public Rights-of--Way" SECTION 2. REGULATION OF CONSTRUCTION All work performed in the erecting, constructing, replacing, reconstructing, mamtaimng, or repairing of the System shall be subject to and governed by all laws, rules, and regulations of the City and State of Texas. Enron shall ensure such work does not mconvemence the public in the use of the Public Rights-of--Way, including, but not limited to, the following: A. Prior 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, Enron shall submit a certificate of insurance to the City's Risk Manager for review and approval. Enron hereby agrees to endorse its insurance policies to name the Crty as an additional insured and to obtain any additional insurance coverage or to increase the limits of existing insurance coverage as reasonably requested by the City's Risk Manager B Prior 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 Crty property after the effective date of this ordinance, Enron shall submit engineering plans to the City for review and 2 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 Crty C All excavations and other construction in the streets shall be earned out so as to interfere as little as practicable with the surface use of the Public Rights-of--Way and with the surface use of private property, m accordance with any lawful and reasonable direction given by or under the authority of the governing body of the Crty under the police and regulatory powers of the City necessary to provide for public convenience. Enron shall promptly restore all public right-of--way excavated by Enron to substantially the same condition as before such excavation and to the reasonable satisfaction of the City Enron shall comply with all other construction requirements of the City and its Transportation/Public Works Director with respect to hours of construction operations mpeak-busy traffic hours, barncading requirements, and/or any other reasonable construction rules which maybe lawfully promulgated. D Except in an emergency, Enron shall not excavate any pavement m 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 m 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 Enron to remove or abate any facility that is dangerous to life or property, and m the event Enron, after notice, fails 3 or refuses to comply, the City shall have the power to remove or abate same at the expense of Enron, all without compensation or liability for damages to Enron. SECTION 3. WORK BY OTHERS The City reserves the nght, subject to further conditions described m this paragraph, 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, m, across, along, over or under any Public Right-of- Way used by Enron, 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 Enron for any damages so caused, nor shall the City be liable to Enron for any damages ansmg out of the performance of such work by the Crty, its licensees, mvrtees, 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 Crty requires Enron to remove, alter, change, adapt, or conform its Facilities because of changes in the grade of a street or m the location or manner of constructing a water pipe, sewer pipe or other underground or aboveground structure owned by the City, Enron shall make the alterations or changes as soon as practicable when ordered in wasting by the Crty, without claim for reimbursement or damages against the City If these requirements impose a financial hardship upon Enron, Enron 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 nght to require Enron to remove, alter, change, adapt or conform its Facilities to enable (i) any corporation, person or entity with a franchise, use agreement or permit m effect pnor to the effective date of this Ordinance to have greater pnonty than Enron m the use of the Public Rights-of--Way m accordance with a respective franchise, use agreement or permit 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 Enron for any such loss and expense which will be caused by or will apse out of such removal, alteration, change, adaptation or conformance of Enron'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 apse out of such removal, alteration, change, adaptation or conformance of Enron's Facilities. It is expressly understood that, save and except the provisions contained in Section 2, Section 3 and Section 9 herein, no other provision of this ordinance creates an unconditional obligation on the part of Enron to remove, alter, change, adapt or conform its Facilities. SECTION 4. CONSTRUCTION BY ABUTTING OWNERS In the event that the City authorizes 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 rights of Enron that are granted under this Ordinance. 5 SECTION 5. RIGHTS IN THE EVENT OF ABANDONMENT In the event that the City closes or abandons any Public Right-of--Way used by Enron, any conveyance of land contained in such closed or abandoned Public Right-of--Way shall be subject to the nghts of Enron 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 Enron's property nghts and interest m such Pubhc Right-of--Way shall be severed from the Crty's interest in such proceedings and any such condemnation awards shall be specifically allocated between Enron's interest and the City's interest. The City shall use its best efforts to notify Enron 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. LIABILITY AND INDEMNIFICATION ENRON 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 ENRON 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, ENRON, AT ENRON'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 ENRON 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 ENRON SHALL PAY ANY JUDGMENT, WITH COSTS, WHICH MAY BE OBTAINED AGAINST THE CITY UNDER ANY SUCH CLAIM, LAWSUIT OR ACTION. SECTION 7. RECORDS The Crty and its Public Utilities Supervisor shall have the nght to be kept fully informed as to matters pertaimng m any way to Enron's exercise of its nghts under this Ordinance, including, but not limited to, the erection, construction, location, replacement, reconstruction, maintenance, repair or operation of the Facilities of the System. Enron 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 Enron in accordance with this Ordinance shall provide for separate and specific identification of those Facilities of the System that are located in 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 right, at reasonable times and for municipal purposes, to inspect and/or copy such maps, construction drawings and specification, provided, however, that copes of such maps, construction drawings and specifications taken by the City shall be returned to Enron immediately upon completion of City's use of same. Enron shall fully cooperate with the Crty 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 Enron shall not leave the possession of Enron, subject to the above. SECTION 8. NOTICES Any notice or communication 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 United States Postal Service mail, certified, return receipt requested, and sent as follows To the City: Crty Secretary City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 s with a copy to Public Utilities Supervisor City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 To Enron: Wilson Dietrich Director, Right-of--Way Enron Communications, Inc 210 S W Morrison, Suite 400 Portland, OR 97204 or to such other address as Enron may designate from time to time by written notice. SECTION 9. FEE A. For and m consideration of all the rights and privileges granted hereunder, Enron 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 Enron 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, Enron's Fee shall equal four percent (4%) of the initial construction cost of the Facilities as approved by the City plus $1 46 per linear foot of Public Right-of--Way m the Crty used by Enron, for a total sum of Thirty Five Thousand Two Hundred Fifty-five Dollars ($35,255 00) On the first anniversary and each subsequent anniversary of the effective date of this Ordinance, Enron's annual Fee shall be adjusted to reflect a per linear foot charge equal to (i) the per linear foot charge paid by Enron for the previous twelve month period plus (ii) the upward percentage change, if any, in the Implicit Price Deflator for the Gross Domestic Product 9 dunng such twelve-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 Enron 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 Enron `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 Enron fails to deliver this Fee wrthm thirty (30) days following the date this 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 anniversary 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 wntmg by the City C The Fee shall be exclusive of and in addition to any general municipal taxes of whatever nature, including but not limited to ad valorem taxes and special taxes and assessments for public improvements, except as otherwise specifically provided by this Ordinance. D This Ordinance is intended to grant to Enron 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. Enron understands and agrees that this Ordinance does not grant Enron, any assignee or successor m interest of Enron or any other party the nght to use the Public Rights-of--Way or Enron's Facilities m the Public Rights-of--Way for the construction of facihhes for the provision of any telecommunications services to any entity or person at an address located wrthm the corporate limits of the Crty If Enron or any assignee 10 or successor m mterest of Enron (i) desires or obtains legal authority to provide any kind of telecommunications services to any entity or person at an address located within the corporate limits of the City through any facilities m, above or across any of the City's public rights-of--way; (ii) wishes to construct and/or install additional facilities m any of the City's public rights-of--way or (iii) wishes or is obligated to allow any other party to use Enron's Facilities for the provision of any kind of telecommunications services to any entity or person at an address located within the corporate limits of the City, including, but not limited to, local exchange telephone, cable or open video system services, Enron, such assignee or successor m mterest of Enron or such other party, as the case may be, shall first obtain a franchise, public right-of--way use agreement or other consent by the Crty E. The Fee is exclusive of and shall not in any way be affected by any relocation of Enron's Facilities required by the City pursuant to Section 3 of this Ordinance. SECTION 10. ASSIGNMENT OF RIGHTS The rights granted by this Ordinance inure to the benefit of Enron and any parent, subsidiary, affiliate or successor entity now or hereafter existing. The rights shall not be assignable without the express written consent of the governing body of the Crty of Fort Worth, except that Enron 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 written agreement acceptable to the City all responsibilities, obligations and liabilities of Enron hereunder, and (ii) is bound to the same extent as Enron hereunder Such consent shall not be capaciously 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 Enron shall not lease or allow the use of all or any portion of its Facilities m 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 Enron first (i) notifies the City in wasting; (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 his duly authorized representative, is the principal City official responsible for the administration of this Ordinance, and Enron recognizes that questions regarding 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, Enron 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 Enron. This Ordinance will not become effective unless accepted and agreed to m wntmg by Enron, as herein prescribed. SECTION 14. CUMULATIVE PROVISIONS This Ordinance shall be cumulative of all provisions of other ordinances and of the Code of the City 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 ~unsdiction, the validity, 13 legality and enforceability of the remaining provisions of this Ordinance shall not in any way be affected or impaired. SECTION 16. That the City 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 within a penod of thirty (30) days after its passage in the official newspaper of the City, as required by Section 2 of Chapter XXV of the City Charter of the City of Fort Worth. SECTION 17. This Ordinance shall be in fall force and effect from and after its passage, publication, wntten acceptance and payment of the first Fee Installment as prescribed herein, and it is so ordained. APPROVED AS TO FORM AND LEGALITY• Assistant City Att ey Date: 7~ 2~' ~ ~ M&c .~ - laC~ I~ ADOPTED ~ - 02 ~ ' q C~i EFFECTIVE _ r~ ~~ 14 ;~{ ~" _ " City of Fort Worth, Texas M'Ayar and L'ouncil CammunicAt~on DATE REFERENCE NUMBER LOG NAME PAGE 7/27/99 **G-12615 02ENRON-2 1 of 1 SUBJECT ORDINANCE GRANTING ENRON COMMUNICATIONS, INC LICENSE TO USE CERTAIN PUBLIC RIGHTS-OF-WAY FOR A FIBER OPTIC TELECOMMUNICATIONS SYSTEM RECOMMENDATION It is recommended that the City Council adopt the attached ordinance which grants Enron Communications, Inc. a license to use certain streets and public rights-of-way bf the City of Fort Worth for the maintenance and operation of a fiber optic telecommunications system DISCUSSION Enron Communications, Inc. (Enron) is seeking to install a fiber optic cable through the City of Fort Worth for the provision of telecommunications service The line will occupy portions of the public rights- of-way shown. in Exhibit "A" of the attached ordinance None of Enron's telecommunications services will be provided to citizens of Fort Worth In consideration for the license to use the prescribed City streets over the twenty-five year term of the ordinance, Enron has agreed to pay the City aone-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 46 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 $35,255 FISCAL INFORMATION/CERTIFICATION The Public Utilities Supervisor will be responsible for the collection of funds due the City under this agreement. CBj Submitted for City Manager's ~ FUND ACCOUNT CENTER AMOUNT CITY SECRE`J('ATtY Office by• (to) GG01 431342 0134010 APPROVED Charles Boswell 8511 ` , • , Originating Department Head: ~I~ ~~~ ~~ Y N Charles Boswell 8511 (from) ~UL 27 X999 Additional Information Contact: ,, ~iGQ,~..-~~ City Secretary of the Danny Reed 6145 City of Fort Worth, Texas Adopted Ordman~e No. /~~'~~