HomeMy WebLinkAboutOrdinance 13651
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ORDINANCE NO ,~j $
AN ORDINANCE WHEREBY THE CITY OF FORT WORTH,
TEXAS, AND COSERV L.L.C d/b/a COSERV
COMMUNICATIONS ("COMPANY") AGREE THAT, FOR
THE PURPOSE OF OPERATING ITS
TELECOMMUNICATIONS BUSINESS, COMPANY SHALL
MAINTAIN AND CONSTRUCT ITS POLES, WIRES,
ANCHORS, FIBER, CABLES, MANHOLES, CONDUITS AND
OTHER PHYSICAL PLANT AND APPURTENANCES IN,
ALONG, ACROSS, ON, OVER, THROUGH, ABOVE, AND
UNDER CERTAIN APPLICABLE PUBLIC RIGHTS-OF-WAY
IN THE CITY, PRESCRIBING THE ANNUAL
COMPENSATION DUE THE CITY UNDER THIS
ORDINANCE, PRESCRIBING THE CONDITIONS
GOVERNING THE USE OF THE APPLICABLE PUBLIC
RIGHTS-OF-WAY AND THE PERFORMANCE OF CERTAIN
CONSTRUCTION WORK ON SUCH PUBLIC RIGHTS-OF-
WAY, PROVIDING AN INDEMNITY CLAUSE, SPECIFYING
GOVERNING LAWS AND LIMITATIONS, PROVIDING FOR
WRITTEN ACCEPTANCE OF THIS ORDINANCE BY
COMPANY, PROVIDING FOR PUBLICATION, AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on or about September 19, 1997, the Public Utility Commission of
Texas ("PUC") granted Company a certificate of operating authority (COA No 50012)
("COA") to provide local exchange and exchange access telecommumcations services
and certain other Telecommunications Services m Wise, Denton and Collor Counties,
Texas and portions of Tarrant. and Dallas Counties, Texas, including portions of those
areas incorporated by the City; and
WHEREAS, Company has applied for a franchise to use certain public Rights-of-
Way m the City ("Applicable Rights-of--Way", as further defined m Section 2 of this
Ordinance) for provision of Telecommunications Services to the extent allowed under
Company's COA, and
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WHEREAS, a Legislative Committee on Municipal Franchise Agreements for
Telecommunications Utilities was created by the 75th Texas Legislature to examine the
need for consistent terms and conditions, including compensation methodology, m
municipal franchise agreements with telecommunications utilities throughout the State of
Texas, and
WHEREAS, the City anticipates that the Texas Legislature will adopt mandatory
and standardized provisions for municipal franchises with telecomniunications utilities m
its 1999 session based largely on the recommendations of the Legislative Committee on
Municipal Franchise Agreements for Telecommunications Utilities, and
WHEREAS, rt is appropriate that the Crty, acting by and through its governing
body, consent to Company's use of the Applicable Rights-of--Way for the provision of
Telecommunications Services as allowed by Company's COA, subject to this Ordinance,
from the Effective Date of this Ordinance through the date that such anticipated
mandatory and standardized provisions for municipal franchises with telecommunications
utilities take effect, without endorsement of the particular methodology used m this
Ordinance to compute compensation for use of any Rights-of--Way by
telecommunications utilities, and
WHEREAS, this Ordinance is adopted by the Crty Council of the Crty of Fort
Worth pursuant to the provisions of Article 1175, Section 2, V.A.C.S., Article 1446c,
Section 21, V.A.C S ,and Chapter XXVI of the Charter of the City of Fort Worth,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FORT WORTH, TEXAS
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SECTION 1
PURPOSE
(a) Pursuant to the laws of the State of Texas, Chapter XXVI of the Fort Worth
City Charter and this Ordinance, Company shall have a nonexclusive right and privilege
to use the Applicable Rights-of--Way for the construction, operation and maintenance of
Facilities for the provision of Telecommunications Services subject to the restrictions set
forth herein and set forth m the COA. No rights agreed to m this Ordinance by the City
shall be exclusive, and the City reserves the right to grant franchises, licenses, easements
or permissions to use the Rights-of--Way within the City to any person or entity as the
Crty, m its sole discretion, may determine to be m the public interest. The provisions and
conditions of this Ordinance shall apply to all respective areas of the Crty m which
Company is authorized to provide Telecommunications Services under the COA, and to
all operations of Company within the Crty, and shall include all operations and Facilities
used, m whole or m part, m the provision of authorized Telecommunications Services m
newly annexed areas covered by the COA upon the effective date of any such annexation.
(b) Company is not authorized under this Ordinance to use any public Rights-of-
Way m the Crty other than the Applicable Rights-of--Way or to provide any
Telecommunications Service to any portion of the Crty except that portion allowed by the
COA.
(c) Company is not authorized under this Ordinance to provide Cable Service to
Persons residing m the City or Telecommunications Service of any type for which the
City requires a separate franchise or consent agreement. In the event that Company
wishes to provide Cable Service to Persons residing m the City or a type of
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Telecommunications Service for which the City regmres a separate franchise or consent
agreement, Company shall obtain a franchise or consent agreement from the City for the
respective type of service provided, under such terms and conditions as may lawfully be
provided by the Crty Council m its sole discretion. This section does not preclude
Company from providing its tanffed services to cable television companies that have
valid and current franchises with the City
SECTION 2
DEFINITIONS
Whenever used in this Ordinance, the following words and terms shall have the
definitions and meanings provided m this section.
(a) ACCESS LINE (1) each switched transmission path of the Transmission
Media within the Rights-of--Way extended to the end-user customer's
premises network interface wrthm the Crty that allows delivery of
Telecommunications Service, (2) each loop provided as an unbundled
network element to a Person pursuant to an Agreement under Section 252
of the Federal Telecommunications Act of 1996, and (3) each termination
point of anon-switched telephone circuit consisting of Transmission
Media connecting specific locations identified by, and provided to, the end
user for the delivery of non-switched Telecommunications Service within
the Crty
(b) APPLICABLE RIGHTS-OF-WAY Those present and future public
streets, avenues, highways, alleys, bndges and public thoroughfares
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(excluding railroad nghts-of--way) located wrthm the city limits of the City
and ,wrthm the area m which Company's COA allows Company to
operate.
(c) CABLE SERVICE "cable service" as defined m the Cable
Communications Policy Act of 1984, as amended, 47 U S C § 532 et. seq
(d) CITY The City of Fort Worth, Texas.
(e) CITY GOVERNANCE All ordinances, laws, rules, regulations and
charter provisions of the City now m force or that may hereafter be passed
and adopted which are not inconsistent with this Ordinance as well as
directives of the City Manager and his or her designee.
(f) COMPANY CoServ L.L.C doing business as CoServ Communications
or any lawful assign or successor m interest.
(f) FACILITIES All duct spaces, manholes, poles, conduits, underground
and overhead passageways, and other equipment, structures and
appurtenances and all associated transmission media m the Applicable
Rights-of--Way and owned by Company or any affiliate or lawful
successor or assign.
(g) LIFELINE LINE Aline used to provide basic local exchange access
service to eligible residential customers at a reduced puce under and
pursuant to an assistance program established by the federal government.
(h) LINE FEE a monthly fee to be applied to each Access Line for the
calculation of the total amount to be paid to the City as aRights-of--Way
Fee.
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(i) PERSON a natural person (an individual), corporation, company,
association, partnership, firm, limited liability company, Joint venture,
Joint stock company or association, and other such entity
(j) RIGHTS-OF-WAY Those present and future public streets, avenues,
highways, alleys, bridges and public thoroughfares (excluding railroad
nghts-of--way) located wrthm the corporate limits of the Crty
(k) RIGHTS-OF-WAY FEE The total amount paid to the City on a quarterly
basis for the Use of the Applicable Rights-of--Way
(1) TEL-ASSISTANCE LINE A line used to provide basic local exchange
access service to eligible residential customers at a reduced puce under
and pursuant to an assistance program established by the Texas
Department of Human Services.
(m) TELECOMMUNICATIONS SERVICE The transmittal of voice, data,
image, graphics and other communications between or among points by
wire, fiber optics, or other similar facilities, as well as the rental, lease, or
furnishing of the facilities to accomplish such transmittal, but does not
include transmissions for long distance purposes (interLATA and
mtraLATA) or any "wireless service" as defined by law
(n) TELECOMMUNICATIONS SERVICE PROVIDER. Any Person that
supplies Telecommunications Service to others wrthm the corporate limits
of the City in exchange for money or other value.
(o) TRANSMISSION MEDIA. All cables, fibers, wires or other physical
devices used to transmit and/or receive communication signals, whether
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analog, digital or of other characteristics, and whether for voice, data or
other purposes.
SECTION 3
TERM
This Ordinance shall be in effect for a period of one (1) year from the Effective
Date hereof ("Initial Period") At the expiration of the Initial Penod, this Ordinance shall
automatically renew for successive periods of one (1) year each, unless written notice of
intent to terminate or to refuse to abide by this Ordinance is given by the City or
Company not less than ninety (90) days prior to the expiration of the then current period.
When such notice is given, this Ordinance shall terminate at the expiration of the then
current period. Notwithstanding the foregoing, if the City adopts an ordinance between
the Effective Date of this Ordinance and September 30, 2000 which gives Southwestern
Bell Telephone Company the right to use the Rights-of--Way for the provision of
Telecommunications Services and which contains materially different provisions (over
which the City has sole discretion) than those set forth m this Ordinance, Company shall
have the option to terminate this Ordinance and enter into a new ordinance provided by
the City that contains provisions substantially similar to those set forth m Southwestern
Bell Telephone Company's ordinance, as applicable.
SECTION 4
GENERAL CONDITIONS OF USE
(a) Company shall at all times during the term of this Ordinance be subject to all
lawful exercise of the police power by the City and to City Governance. The terms of
this Ordinance shall apply to all of Company's Facihtzes used, in whole or m part, m the
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provision of Telecommunications Services m newly annexed areas upon the effective
date of such annexation, subject to the provisions of Section 11(e)
(b) Company shall lay, maintain, construct, operate and replace its Facilities so
as to interfere as little as possible with ordinary travel. All of Company's Facilities shall
be set so that they shall not interfere with the flow of water in any gutter or drain. The
location and route of all Facilities to be placed and constructed by Company m the City,
and the location of all conduits to be laid by Company within the limits of the City, shall
be subject to the reasonable and proper"regulation, control and direction of the City's
Director of Transportation and Public Works.
(c) Company may be required to place certain Facilities underground according
to reasonable requirements that may be adopted from time to time by the Fort Worth City
Council, provided, however, that Company shall be given due notice and shall be entitled
to a hearing before the Fort Worth City Council prior to the adoption of any such
requirements. The City shall also have the right at any time to require Company to
remove any of its Facilities that are dangerous to life or property, and in case Company,
after reasonable notice to Company, fails or refuses to act, then the City, at the direction
of the City's Director of Transportation and Public Works, shall have the right to remove
or abate the same at the expense of Company, all without compensation or liability for
damages to Company
(d) Before Company extends or replaces its underground Facilities m the
Applicable Rights-of--Way, there shall be filed with the City's Director of Transportation
and Public Works a written work description, including drawings showing the location of
the Facilities. The plans will be reviewed by the Director of Transportation and Public
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Works and any comments will be provided to Company wrthm ten (10) working days.
The City agrees to expedite its review when conditions warrant. Before Company cuts
into or in any manner opens any Applicable Right-of--Way, for any purpose, Company
shall first obtain a permit from the Director of Transportation and Public Works to cut
into or open such street, alley, sidewalk or other public ground as required by the Fort
Worth City Code. When an emergency occurs, repairs shall be performed by Company
and notice shall be given to the Director of Transportation and Public Works and a permit
obtained within twenty-four (24) hours following such emergency repairs.
(e) The following requirements shall apply to installation of Company's local
service fiber optics cables m Crty•
(1) Cables shall be burred approximately three (3) feet below the
surface of the Applicable Right-of--Way
(2) Signs shall be located at appropriate intervals warning the public of
the presence of such cables.
(f) Any and all Rights-of--Way disturbed by Company m building, constructing,
renewing or maintaining its Facilities shall be repaired, cleaned up and restored wrthm a
reasonable time after completion of the work to as good a condition as before the
commencement of the work to the satisfaction of the City's Director of Transportation
and Public Works. All work m the Rights-of--Way shall be performed m accordance with
the City's standard specifications for street and storm dram construction. The Crty may
inspect any and all work. Company shall be responsible for all maintenance costs
incurred as a result of any defects, impairments or substandard condition in the street,
alley, highway, public thoroughfare, public utility easement or public way caused by the
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construction, maintenance or restoration work of Company Company shall warrant such
construction, maintenance and restoration work for a period of two years. No street,
alley, highway, public thoroughfare, public utility easement or public way shall be
encumbered for a longer period than shall be necessary to execute the work.
(g) Company shall comply with all construction requirements of the City with
respect to hours of construction operations m peak traffic hours, barncadmg
requirements, and other construction rules and regulations which may be promulgated
from time to time. When Company performs or causes the performance of any work on
any Right-of--Way, or so closely adjacent to any Right-of--Way as to create hazards for the
public, Company, its employees, contractors and/or subcontractors shall provide
construction and maintenance signs and sufficient barricades at work sites to protect the
public, equipment and workers. The application of such devices shall be consistent with
the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices. Appropriate warning fights shall be used at all construction and maintenance
zones where one or more traffic lanes are being obstructed during nighttime conditions
(h) Company, at its own cost and expense, and at the City's request (without
claim for reimbursement or damages against the Crty), shall lower, relocate or alter
Company's existing Facilities m the Applicable Rights-of--Way where necessary due to
street construction or street reconstruction by or on behalf of the City, or due to the
construction or relocation of Crty utility lines, including but not hmrted to water, sanitary
sewer, storm drains, street lights and traffic signal conduits, or due to any other work in
or under the Rights-of--Way; but Company's obligation to lower, relocate or alter such
Facilities at its cost and expense shall occur only when such street construction, street
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reconstruction, City utility line construction or relocation, or such other work by or on
behalf of the Crty m or under the Rights-of--Way is for the benefit of the general public
and such Rights-of--Way are to be maintained and operated by the Crty
(i) When Company is required to relocate its Facilities to accommodate the
construction or improvement of City streets, sewers and other public works, Company
shall retain the right to reimbursement from the State of Texas or federal government, as
permitted by law, when the construction and relocation are the result of construction or
improvement to any portion of the Federal-Aid System (or any successor thereto) that is
or will be maintained by the State of Texas or any federal agency
(j) Before Company constructs, installs or locates any of its Facilities along or
adjacent to any existing street or thoroughfare or any proposed street or thoroughfare,
Company will verify that the proposed construction, installation or location of Company's
Facilities will not conflict or interfere with any proposed street or thoroughfare expansion
as shown on the City's then current master thoroughfare plan. Should the Director of
Transportation and Public Works determine that the proposed construction, installation or
location of Company's Facilities will constitute a conflict or interference with such Plan,
then the Director of Transportation and Public Works will notify Company of the
potential conflict or interference. Thereafter, the Crty and Company will endeavor m
good faith to resolve the potential conflict or interference
(k) Upon not less than 48 hours' advance notice, Company shall promptly move
or remove its aerial Facilities temporarily to permit the moving of houses or other bulky
structures when necessary The expenses of such temporary relocation or removal shall
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be paid by the party or parties requesting and benefiting from such temporary relocation
or removal, and Company may require such payment m advance.
(1) The right, license, privilege and permission is hereby granted to Company, its
contractors and agents, to trim trees upon and overhanging the Applicable Rights-of--Way
so as to prevent the branches of such trees from coming m contact with the aerial wires,
fiber or cables of Company, and, when so directed by the City, said trimming shall be
done under the supervision and direction of the City or of any City official to whom said
duties have been or maybe delegated.
SECTION 5
ATTACHMENTS TO POLES AND USE OF SPACE IN DUCTS
(a) This Ordinance shall not abrogate any existing license agreement between the
City and Company allowing the point use of poles owned by Company Except as
provided m Section 12, nothing contained m this Ordinance shall be construed to require
or permit any pole attachments for electric light or power wires or communications
Facilities or systems not provided by Company to be attached to Company's poles or
other physical plant or place m Company's conduit. Except as provided m Section 12, if
the Crty desires pole attachments for electric fight or power wires or communications
Facilities or systems not provided by Company, or if the Crty desires to place
communications Facilities or systems not provided by Company in any of its ducts, then
a further separate, noncontmgent agreement shall be prerequisite to such attachments or
such use of any duct by the Crty
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(b) Nothing contained m this Ordinance shall obligate or restrict Company m
exercising its rights voluntarily to enter into pole attachment, pole usage,,omt ownership
or other wire space or Facilities agreements with other light and/or power compames or
with other wire-using compames which are duly authorized by the City to use the
Applicable Rights-of--Way Company is not otherwise authorized to license or lease to
any person or entity the right to occupy the Applicable Rights-of--Way for the conduct of
any private business.
SECTION 6
OPERATION AND MAINTENANCE OF TELEPHONE
COMPANY SYSTEM AND. FACILITIES
An exception to this condition is automatically m effect when service furnished
by Company is interrupted, impaired or prevented by fires, strikes, riots or other
occurrences beyond the control of Company, or by storms, floods or other casualties, in
any of which events Company shall do all things reasonably within its power to do to
restore normal service.
SECTION 7
INDEMNITY
COMPANY SHALL BE RESPONSIBLE FOR, AND SHALL INDEMNIFY
AND HOLD THE CITY HARMLESS FROM, ALL COSTS, EXPENSES
(INCLUDING ATTORNEY'S FEES) AND DAMAGES TO PERSONS OR
PROPERTY ARISING DIRECTLY OR INDIRECTLY OUT OF THE
~ CONSTRUCTION, MAINTENANCE OR OPERATION OF COMPANY'S
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FACILITIES LOCATED WITHIN THE RIGHTS-OF-WAYAND CAUSED BY THE
NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF COMPANY, ITS
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR
SUBCONTRACTORS. THIS PROVISION IS NOT INTENDED TO CREATE A
CAUSE OF ACTION OR LIABILITY FOR THE BENEFIT OF THIRD PARTIES
BUT IS SOLELY FOR THE BENEFIT OF COMPANY AND THE CITY. IN
ADDITION, THIS PROVISION IS NOT INTENDED TO ABROGATE THE
COMMONLAW OR STATUTORYRIGHTS OF EITHER THE CITY OR COMPANY
TO INDEMNITY OR CONTRIBUTION FROM THE OTHER.
SECTION 8
DESIGNATION OF ADMINISTRATIVE OFFICER,
RIGHT TO OBTAIN INFORMATION
(a) The Crty may delegate to the City Manager or any other designated Crty
official the exercise of any and all of the powers conferred upon the Crty by rts Charter or
by general law relating to the administration and supervision of this ordinance.
(b) It shall be the nght of the designated Crty official and the City Council of the
Crty at all times to keep fully informed as to all matters m connection with or affecting
the construction, reconstruction, maintenance, operation and repair of the Facihhes of
Company wrthm the Applicable Rights-of--Way
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SECTION 9
ADMINISTRATION OF ORDINANCE
(a) The City may, at any time, make inquiries pertaining to this Ordinance.
Company shall respond to such inquiries on a timely basis.
(b) Copies of petitions, applications, communications and reports submitted by
Company to the Federal Communications Commission and the Public Utility
Commission of Texas shall be provided to the City upon request.
(c) The City may establish, after reasonable notice, such rules and regulations as
may be appropriate for the administration of this ordinance and the construction of
Company's Facilities on Crty property within the Crty, to the extent permitted by law
SECTION 10
ORDINANCE VIOLATIONS
The Crty Council shall have the option to declare this Ordinance terminated at any
time for failure of Company to comply with any term, condition or provision of this
Ordinance, m accordance with the following procedures
(a) If Company continues to violate or fails to comply with the terms and
provisions of this Ordinance for a period of thirty (30) days after Company has been
notified m writing by the Crty to cure such specific alleged violation or failure to comply,
then the Crty may pursue the procedures set forth below to declare that Company has
terminated all rights and privileges consented to m this Ordinance; provided, however,
that if Company is alleged to be m violation of any provision of this Ordinance other than
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the payment of money and if Company commences efforts to cure such alleged violations
within thirty (30) days after receipt of written notice and shall thereafter prosecute such
curative efforts with reasonable diligence until such curative efforts are completed, then
such alleged violations shall cease to exist and this Ordinance shall not be declared to be
terminated.
(b) Any such termination shall be declared only by a written decision of the City
Council after an appropriate public proceeding before the City Council, which shall
accord Company due process and full opportunity to be heard and to respond to any such
notice of alleged violation or failure to comply All notice requirements shall be met by
providing Company at least fifteen (15) days prior written notice of any public hearing
concerning the proposed termination of this Ordinance. In addition, fifteen (15) days'
notice by publication shall be given of the date, time and place of any public hearing to
interested members of the public
(c) The City Council, after full public hearing and upon finding a violation or
failure to comply, may either declare this Ordinance terminated or excuse the violation or
failure to comply upon a showing by Company of mrtigatmg circumstances or good cause
for said violation or failure to comply
(d) Neither Company's acceptance of this Ordinance, Company's appearance
before the City Council at any public hearing concerning proposed termination of this
Ordinance nor any action taken by the City Council as a result of any such public hearing,
including a declaration of termination or a finding of a violation or failure to comply,
shall be construed to waive or otherwise affect Company's right to seek a judicial
determination of the rights and responsibilities of the parties under this Ordinance.
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(e) Company shall not be excused from complying with any of the terms and
conditions of this Ordinance by the previous failure of the Crty to insist upon or to seek
compliance with such terms or conditions.
SECTION 11
COMPENSATION TO THE CITY
(a) Rights-of--Way Fee• As compensation to the City for the use of the
Applicable Rights-of--Way, Company shall pay to the City aRights-of--Way Fee that is
calculated as of month-end by applying the appropriate Line Fee to each Access Line
owned, placed, or maintained by Company that is (i) activated for use by an end-user or
(ii) activated for use for another Telecommunications Service Provider that uses
Company's services or Facilities for the provision of Telecommunications Service wrthm
the City The Line Fee to be applied to each Access Line on a monthly basis shall be
Access Line Monthl,~Fee der Access Line
Residential $ 1 07
(excluding Lifeline and
Tel-Assistance Lines)
Non-Residential $ 3 47
(b) Transmission Media Provided for Use by Other Telecommunications
Service Providers The City recognizes that certain federal and state laws may allow or
require Company to unbundle portions of its Transmission Media for use by other
Telecommunications Service Providers ("Unbundled Facihhes") Within thirty (30) days
following the Effective Date of this Ordinance, Company shall provide the City m
writing (i) the names of the Persons that are using or have requested use of Company's
Unbundled Facilities as of the date such information is provided to the City and, subs ect
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to reasonable written confidentiality agreements requested by Company and entered into
by the Crty to the extent it lawfully can, (ii) copies of any wntten agreements between
Company and Telecommunications Service Providers for whom Company has provided
Unbundled Facilities. In addition, following the Effective Date of this Ordinance,
Company shall provide the Crty with (i) wntten notice and, subject to reasonable wntten
confidentiality agreements requested by Company and entered into by the City to the
extent it lawfully can, (ii) copies of any wntten agreement between Company and a
respective Telecommunications Service Provider for whom Company will provide
Unbundled Facilities. If the City provides Company with a wntten statement, signed by
the Crty Manager or his authorized designee that a respective Telecommunications
Service provider which uses Unbundled Facilities has obtained a franchise, use agreement
or other wntten consent from the Crty for use of the Rights-of--Way, then Company will
not need to (i) include the Access Lines that are part of the Unbundled Facilities used by
such Telecommunications Service Provider m Company's monthly count of Access Lines
or (ii) pay an Access Line Fee for the Access Lines that are part of the Unbundled
Facilities used by such Telecommunications Service Provider Otherwise, Company
shall pay the Crty Line Fees m accordance with Section 11(a) of this Ordinance.
(c) Collection of Fees and Pass Throughs The methods of Company's
recovery of Line Fees paid by Company to the Crty are governed by federal and state law
and are subject to the ~unsdiction of federal and state regulatory authority and not of that
of the Crty The Line Fees set forth m this Ordinance are established only to determine
compensation for use of the Rights-of--Way Although federal and/or state law may allow
Company to pass through the Line Fees to end-user customers on a pro rata basis, this
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Ordinance shall not be construed to mean that the City either requires, recommends or
supports such apass-through.
(d) Access Line Counts, Statements and Audits. Company shall submit with
each Lme Fee payment a certified statement, m a form approved m wntmg by the City
Manager or his authonzed designee, that indicates the number of Access Lines for each
type specified m Section 11(a) of this Ordinance. The City, at the City's sole cost and
expense, may audit Company's Line Fee payments and statements at any time by an
auditor of the City's sole selection. Company shall cooperate fully in any City audit
conducted pursuant to this Ordinance. Company shall provide all information requested
by the City's auditor within thirty (30) days of its receipt of a wntten request for
production. If Company believes that any request by the City's auditor is unreasonable,
the City and Company shall negotiate the request for production in good faith. In order to
support its Line Fee payments and statements, Company shall keep complete and
accurate books of accounts and records of business and operations pursuant to generally
accepted accounting pnnciples at a location m the City for a penod of at least three (3)
years following the quarter for which a Line Fee payment and statement were provided to
the City Accordingly, subject to reasonable written confidentiality agreements requested
by Company and entered into by the City to the extent it legally can, Company shall
make available to the City, for the City to examine, audit, review and copy, all books and
records, including accounts, documents, maps, plans, papers and other
Telecommunications Service Providers' records m Company's possession pertaining to
the use of the Rights-of--Way The City shall not make copies of information that are
specific to individual end-user customers. Refunds of any overpayments may be made
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by the City and payments of any additional compensation that is due the Crty may be
made by Company on the basis of any such audit.
(e) Annexation and Disannexation. Within thirty (30) days following the date of
the passage of any action effecting the annexation of any property to or the disannexation
of any property from the City's corporate boundaries, the City agrees to furnish Company
wrtten notice of the action and an accurate map of the City's corporate boundaries
showing, if available, street names and number details. For the purpose of compensating
the Crty under this Ordinance, Company shall start mcludmg or excluding Access Lines
within the affected area in Company's count of Access Lines on the effective date
designated by the Comptroller of Public Accounts -Texas for the imposition of state
local sales and use taxes, but m no case less than thirty (30) days from the date Company
is notified by the Crty of the annexation or disannexation.
(f) Confidential Records If Company notifies the City of the confidential nature
of any information, reports, documents, or writings, the City agrees to maintain the
confidentiality of the information, reports, documents, and wntmgs to the extent
permitted by law Upon receipt by the Crty of requests for Company's confidential
information, reports, documents, or wntmgs, the Crty shall notify Company of the request
m writing by facsimile transmission. The City shall request an Attorney General's
Opinion before disclosing any confidential information, reports, documents or wntmgs
and will furnish Company with copies of Attorney General opinion requests rt makes
pertaining to Company's confidential mfonnation, reports, documents or wntmgs.
(g) No Other Fees The payments due hereunder shall be m heu of any permit
fees, license fees, approval fees, inspection fees, or other similar fees or charges,
mcludmg, but not hmrted to, all general business license fees customarly assessed by the
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City for the use of the Rights-of--Way by Persons operating businesses similar to that of
Company
(h) Timmg_of Payment: Company shall remit the Lme Fee on a quarterly basis.
The payment shall be due on the forty-fifth (45"') day following the close of each calendar
quarter for which the payment is calculated.
SECTION 12
FACILITIES TO BE FURNISHED CITY AS ADDITIONAL CONSIDERATION
(a) In addition to the consideration set forth m Section 11, and notwithstanding
the provisions of Section 5, Company shall permit the City to use without charge, solely
for the City's noncommercial telecommunications purposes, including operating its
traffic, police and fire alarm systems, the following described facilities
One duct m all of Company's existing ducted facilities wrthm the City
limits. Also, Company shall provide adequate space on all nonducted
r facilities now existing or hereafter constructed on or wrthm the Rights-of-
Way for the City to attach Transmission Media for the City's own non-
commercial use. Where insufficient facilities exist to accommodate the
City, other existing facilities may be substituted. If Company thereafter
extends its existing underground conduits, it shall provide one duct in each
additional conduit for the City's own purposes, as provided above.
(b) The Crty shall not use any Facilities which are provided for the City's use by
Company for power transmission purposes or otherwise use any such Facilities so as to
unreasonably interfere with the Telecommunications Services provided by Company
21
The Crty shall provide a written request to utilize Company's Facilrhes and shall notify
Company m writing before it begins utilization of Company's Facilities.
(c) The City shall not sell, lease or otherwise make available its rights to use
Company's Facihhes to any third party for commercial purposes. Such rights are
provided solely for the non-commercial use by the City However, this restriction shall
not prevent the City from using the services of a third party commercial entity to manage
or operate the City's facilities on behalf of the City so long as no resale or other
commercial of such facilities shall occur
(d) Company shall not be responsible to any party or parties whatsoever for any
claims, demands, losses, suits or judgments for damages to property or injuries to
Persons by reason of the construction, inspection or use of that portion of Company's
Facilities that are provided as additional consideration to the City under this Section 12,
and the City shall indemnify and hold Company harmless against all such claims, losses,
demands, suits and~udgments to the extent permitted by law
SECTION 13.
ASSIGNMENT OF ORDINANCE
(a) Company shall be a legal entity with legal authorization and capacity to
provide Telecommunications Service and to operate and maintain Transmission Media
for the provision of Telecommunications Service m the Crty of Fort Worth.
(b) This Ordinance and any rights or privileges hereunder shall not be assignable
to any other entity without the express consent of the Fort Worth City Council, such
22
consent to be evidenced by an ordinance of the City Council, which ordinance shall fully
recite the terms and conditions, if any, upon which such consent is given.
SECTION 14
ACCEPTANCE OF ORDINANCE
(a) Pursuant to Section 2 of Chapter XXV of the Charter of the City of Fort
Worth, Company, as a condition precedent to the effectiveness of this Ordinance, will file
a written acceptance to the terms, conditions and provisions of this Ordinance This
Ordinance shall not become effective until accepted by Company as herein provided.
(b) The City shall deliver a properly certified copy of this Ordinance to Company
within three (3) working days of its final passage.
(c) In the event that Company fails to accept this Ordinance within sixty (60)
days after its passage by the City Council, this Ordinance and the rights and privileges
herein shall be and become terminated, null and void.
SECTION 15
FUTURE CONTINGENCY
In the event that this Ordinance, or any portion thereof, ,becomes unlawful or is
declared or determined by a judicial or administrative or legislative authority exercising
its jurisdiction to be excessive, unrecoverable, unenforceable, void or illegal, m whole or
m part, the City may pass a new ordinance that is m compliance with the authority's
decision and, unless exphcrtly prohibited, the new ordinance shall provide the City with a
level of compensation comparable to that set forth m this Ordinance, which compensation
23
is recoverable by Company m a mutually agreed manner permitted by law for the
unexpired portion of the term of this Ordinance. Nothing m this section shall be
interpreted to waive any nght Company may have to dispute the provisions or
applicability of any future ordinance.
SECTION 16
VENUE, GOVERNING LAW AND DRAFTING OF ORDINANCE
(a) Venue for any action that maybe brought by or on account of either the City
or Company that apses under any provision or condition of this Ordinance shall he m
state courts located m Tarrant County, Texas or m the United States Distract Court for the
Northern Distract of Texas, Fort Worth Division.
(b) This Ordinance shall be construed in accordance with the provisions of the
Constitution and the laws of the State of Texas and the Charter provisions of the City of
Fort Worth and applicable sections of the Fort Worth City Code to the extent that such
Charter and Code provisions are not m conflict with or in violation of the Constitution
and laws of the United States or the State of Texas.
(b) This Ordinance shall be construed and deemed to have been drafted by the
combined efforts of the City and Company
SECTION 17
PUBLICATION
The City Secretary of the City of Fort Worth is hereby directed to publish this
Ordinance m its entirety once a week for four (4) consecutive weeks wrthm a period of
24
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, Texas. All costs
of publication shall be at the expense of Company m addition to the other charges
provided for herein. This Ordinance shall not become effective until proper publication
as required
by the City Charter
SECTION 18
ENGROSSMENT AND ENROLLMENT
The Crty Secretary of the City of Fort Worth is hereby directed to engross and
enroll this Ordinance by copying the caption and effective date of same m the minutes of
the City Council of Fort Worth and by filing this Ordinance m the ordinance records of
said Crty
SECTION 19
EFFECTIVE DATE
This Ordinance shall be in full force and effect following its adoption and
publication as specified herein, and it is so ordained.
ADOPTED• // ~ % `~v~
EFFECTIVE
25
APPROVED AS TO FORM AND LEGALITY
By• Peter Vaky
Assistant City ttorney
Company hereby accepts and agrees to be bound by the provisions and conditions set
forth m this Ordinance.
Name.
Title
Date.
26
~.: a -
f ~ ~ _ ~`
City of Fort Worth, Texas
~1-~Ay~r And Cauncl~ CammunlcAtlan
DATE REFERENCE NUMBER LOG NAME PAGE
11/17/98 **G-12384 02COSERV 1 of 2
SUBJECT ORDINANCE GOVERNING OPERATIONS OF COSERV, L.L.C'S USE OF CITY
STREETS AND RIGHTS-OF-WAY FOR CONSTRUCTION, OPERATION AND
MAINTENANCE OF A TELECOMMUNICATIONS SYSTEM
RECOMMENDATION
It is recommended that the City Council adopt the attached ordinance, which governs the operations of
CoServ , L.L.C on City streets and rights-of-way for the construction, operation and maintenance of a
telecommunications system..
DLSCUSSION
On September 19, 1997, the Texas Public Utility Commission granted CoServ, L.L.C ("CoServ") a
certificate of operating authority (COA) to provide local exchange service, basic local
telecommunications service and switched access, and certain other telecommunications services in the
City of Fort Worth Subsequently, CoServ submitted an application for a franchise agreement to
provide telecommunication services in Fort Worth
The legal environment governing franchise agreements for telecommunications utilities is currently in a
state of turmoil The 75th Texas Legislature created the Legislative Committee on Municipal Franchise
Agreements for Telecommunications Utilities to study the various issues. The Texas Legislature is
expected to adopt new regulations during the next legislative session Accordingly, the attached
ordinance is written to expire on September 30, 1999 The ordinance will automatically renew on a
year-to-year basis, unless either the City or CoServ exercises its option to allow the ordinance to expire,
with the exception of the provision relating to compensation This ordinance is materially the same as
the City's current ordinance relating to Southwestern Bell's use of the public rights-of-way, which is also
subject to expiration September 30, 1999
The ordinance provides compensation to the City based on the number of access lines activated by
CoServ The monthly fee is $1 07 per residential access line and $3 47 per non-residential access line
This fee structure is expected to generate approximately $2,000 00 over the initial term of the
ordinance. This compensation structure is proposed only because most telecommunications providers
concede that it is compliant with current federal and state law and related decisions that have been
handed down by the judiciary
~'ity of Fort Worth, Texas
M'Ayar And Council C,ammunicAtian
DATE
11/17/98 REFERENCE NUMBER
**G-12384 LOG NAME
02COSERV PAGE
2 of 2
SUBJECT ORDINANCE GOVERNING OPERATIONS OF COSERV, L.L.C'S USE OF CITY
STREETS AND RIGHTS-OF-WAY FOR CONSTRUCTION, OPERATION AND
MAINTENANCE OF A TELECOMMUNICATIONS SYSTEM
F1S1"AI INFORMATION/CERTIFICATION
The Revenue Office of the Finance Department will be responsible for the collection and deposit of
funds due under this agreement.
CB.k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
p~
o
Charles Boswell 851 1 ~4 tA,~~
/
(
`
C
Originating Department Head: ~
j `° 4J!
Cj,T 1
Charles Boswell 8511 (from) H~~ x~
Additional Information Cofitact: ~ `~f °f""~
CitO
~°~~ q~,ras
Danny Reed G 145 t
Ci'~
~d+oP~~ Ord-nan~e ~~~ (.3~~