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HomeMy WebLinkAboutOrdinance 13152~~ ORDINANCE NO. oli AN ORDINANCE PROVIDING PROVISIONS PERMITTING AND REGULATING THE CONSTRUCTION, MAINTENANCE AND USE OF A LONG DISTANCE TELECOMMUNICATIONS SYSTEM BY IXC CARRIER, INC. ACROSS, OVER AND UNDER CERTAIN STREETS, HIGHWAYS AND PUBLIC RIGHTS-OF-WAY OF THE CITY OF FORT WORTH; 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; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, IXC Carrier, Inc (hereinafter referred to as "IXC") desires use of certain public rights-of-way within the City of Fort Worth for the purposes set forth below pursuant to the provisions of the laws of the State of Texas, including, but not limited to, Article 1416 V.A.C S ,and WHEREAS, the Fort Worth City Council has determined that it is appropriate to grant the said license to IXC, NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. LICENSE GRANTED The City of Fort Worth (hereinafter referred to as the "City") hereby grants to IXC and its successors and assigns, for the full term of twenty-five (25) years from the effective date prescribed by Section 17 of this Ordinance, a license to acquire, erect, construct, replace, reconstruct, maintain, use, and operate in, over, under, along, and across certain streets and other public rights-of-way of the City (hereinafter the "Public Right-of-Way") all necessary or desirable wires, cables, underground conduits, manholes, or other structures or appurtenances (hereinafter the "Facility" or "Facilities") in connection with a long distance telecommunications service (hereinafter the "System"); subject to the provisions of this Ordinance The Public Right- of-Way which IXC shall use pursuant to this Ordinance shall be the following as same are encountered on the route shown specifically on Exhibit "'A" attached hereto and hereby made a part of this Ordinance for all purposes East 4th Street East 3rd Street East 2nd Street East 1st Street Weatherford Street Belknap Street Terrell Avenue Leuda Street Cannon Avenue Hattie Street Annie Street Tucker Street Bessie Street Stella Street The System crosses approximately 1,0601inear feet of Public Right-of-Way in the City SECTION 2. REGULATION OF CONSTRUCTION The work done by IXC in erecting, constructing, replacing, reconstructing, maintaining, or repairing the System shall be subject to and governed by all laws, rules, and regulations of the City and State of Texas that are applicable to insuring that the work done does not inconvenience the public in the use of the Public Right-of-Way including, but not limited to the following: 2 A. Prior to construction of any significant changes to the System which will require any digging, cutting or any other such disruption of Public Right-of-Way or other City property after the effective date of this Ordinance, IXC shall submit a certificate of insurance to the City's Risk Manger for review and approval. IXC 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 limits of existing insurance coverage as reasonably requested by the City's Risk Manager prior to the commencement of any such construction. 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 other City property after the effective date of this Ordinance, IXC shall submit engineering plans to the Crty 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 carried out so as to interfere as little as practicable with the surface use of the streets and sidewalks 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 IXC shall promptly restore all Public Right-of-Way excavated by IXC to substantially the same condition as before such excavation and to the reasonable satisfaction of the City IXC shall comply with all other construction requirements of the City and its Transportation/Public Works Director with respect to hours of 3 construction operations in peak-busy traffic hours, barricading requirements, and/or any other reasonable construction rules, which may be lawfully promulgated. D Except in an emergency, IXC 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 written 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 m writing as soon as practicable regarding work performed under emergency conditions. E. The City shall have the power at any time to order and require IXC to remove or abate any Facility that is dangerous to life or property, and in the event IXC, after notice, fails or refuses to comply, the City shall have the power to remove or abate same at the expense of IXC, all without compensation or liability for damages to IXC, its successors in interest or assigns SECTION 3. WORK BY OTHERS The City reserves the right, subject to further conditions described in this Section 3, to lay and 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 governing body of the City, in, across, along, over or under any Public Right-of-Way occupied by IXC, and to change any curb or sidewalk or the grade of any street. IN PERMITTING SUCH WORK TO BE DONE, THE CITY SHALL NOT BE LIABLE TO IXC FOR ANY DAMAGES SO CAUSED, NOR SHALL THE CITY BE 4 LIABLE TD IXC FOR ANY DAMAGES ARISING OUT OF THE PERFORMANCE OF SUCH WORK BY THE CITY, ITS LICENSEES, INVITEES, CONTRACTORS OR SUBCONTRACTORS, PROVIDED, HOWEVER, NOTHING HEREIN SHALL RELIEVE ANY OTHER PERSON OR CORPORATION FROM LIABILITY FOR DAMAGE TO THE FACILITIES OF THE SYSTEM. If the City requires IXC to remove, alter, change, adapt, or conform its Facilities because of changes m 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, IXC shall make the alterations or changes as soon as practicable when ordered in writing by the City, without claim for reimbursement or damages against the City If these requirements impose a financial hardship upon IXC, IXC shall have the right to present alternative proposals for the City's consideration. Notwithstanding anything to the contrary contained herein, if the City requires IXC to remove, alter, change, adapt or conform its Facilities installed hereunder to enable any other corporation or person ("Non-permitted User"), except the City or any person or corporation or other entity franchised by the City as of October 1, 1997, or having an existing use agreement in those portions of the City streets and rights-of-way described and set forth in Section 1 hereof to use, or to use with greater convenience, such Public Right-of-Way, it shall be a condition precedent to IXC's obligation set forth above that such Non-permitted User shall have undertaken with solvent bond to reimburse IXC for any such loss and expense which will be caused by or arise out of such removal, alteration, change, adaptation or conformance of IXC's Facilities, provided, however, the City shall not be liable for any reimbursement, loss or expense which will be caused by or arise out of such removal, alteration, change, adaptation or conformance of IXC's Facilities 5 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 IXC to remove, alter, change, adapt or conform its Facilities. SECTION 4. CONSTRUCTION BY ABUTTING OWNERS In the event that the governing body of the City authorizes abutting landowners to occupy space under the surface of any Public Right-of-Way after the adoption of this Ordinance, such grant to abutting landowners shall be subject to the prior rights of IXC described m this Ordinance. SECTION 5. RIGHTS IN THE EVENT OF ABANDONMENT In the event that the governing body of the City closes or abandons any Public Right-of- Way which contains the Facilities of IXC installed hereunder, any conveyance of land contained in such closed or abandoned street, alley, highway or public place shall be subject to the rights of IXC described m 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 IXC's property rights and interest m such Public Right-of-Way shall be severed from the City's interest in such proceedings and any such condemnation awards shall be specifically allocated between IXC's interest and the City's interest. The City shall make a diligent effort to notify IXC within a reasonable time of any condemnation action (or threatened action) filed 6 against the Public Right-of-Way that affects any Facility of the System, or any proposed sale m lieu of condemnation. SECTION 6. INDEMNITY IXC SHALL INDEMNIFY AND SA VE AND HOLD HARMLESS THE CITY AND ALL OF ITS OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, OR CLAIMS OF ANY CHARACTER, STYLE, AND DESCRIPTION, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES, INCLUDING DEATH, RECEIVED OR SUSTAINED BY ANY PERSON OR ANY PROPERTY OCCASIONED BY, ARISING OUT OF OR IN CONNECTION WITH THE ERECTION, CONSTRUCTION, LOCATION, REPLACEMENT, RECONSTRUCTION, MAINTENANCE, REPAIR OR OPERATION OF IXC'S SYSTEM, AND IXC WILL BE REQUIRED TO PAY ANY JUDGMENT, WITH COSTS, WHICH MAY BE OBTAINED AGAINST THE CITY ARISING OUT OF SUCH INJURY OR DAMAGE. SECTION 7. RECORDS The governing body of the City and its Public Utilities Supervisor shall have the right to be kept fully informed as to matters pertaining in any way to IXC's exercise of its rights under this Ordinance, including the erection, construction, location, replacement, reconstruction, maintenance, repair or operation of the Facilities of the System in Fort Worth. IXC shall notify in writing the City's Director of Information Systems and Services or authorized representative as to the location of the Facilities and shall fully cooperate with such officials in order to ensure that 7 the Facilities are accurately reflected on the City's mapping system. IXC shall keep complete and accurate maps, construction drawings and specifications describing the location of Facilities of the System in Fort Worth. Maps, construction drawings and specifications kept by IXC m accordance with this Ordinance shall provide for separate and specific identification of those Facilities of the System that are located in the Public Right-of-Way Any and all maps, construction drawings, and specifications required by this Ordinance shall be kept and maintained within the City limits of Fort Worth. The City shall have the right, at reasonable times, for municipal 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 IXC immediately upon completion of City's use of same lXC shall fully cooperate m making available its maps, construction drawings and specifications for inspection. Maps, construction drawings and specifications required by this Ordinance and maintained by IXC shall not leave the possession of IXC, subject to the above SECTION 8. NOTICE Any notice or communication required m the administration of this Ordinance shall be considered delivered when (1) hand-delivered to the other party or (2) 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 8 with a copy to Public Utilities Supervisor City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 To IXC. IXC Carrier, Inc. Angela Jones, Corporate Counsel Contract Administration 5000 Plaza on the Lake, Suite 200 Austin, Texas 78736-1050 with a copy to IXC Carrier, Inc Mike Jones, Vice President Facilities and Construction 5000 Plaza on the Lake, Suite 200 Austin, Texas 78736-1050 or to such other address as IXC may designate from time to time by written notice. SECTION 9. FEE A. For and in consideration of all the rights and privileges granted hereunder, IXC shall pay the City an annual Public Right-of-Way use fee calculated m accordance with the linear feet of Public Right-of-Way m the City used by IXC 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, until September 30, 1998, IXC's Fee shall equal four percent (4%) of the initial construction cost of the Facilities as approved by the City plus $1 42 per linear foot of Public Right-of-Way in the City used by IXC, prorated for a period of ten (10) months, for a total sum of Two Thousand Nine Hundred Fifty Dollars ($2,950 00) Effective October 1, 1998, IXC's 9 annual fee shall coincide with the Crty's fiscal year, commencing October 1 of a given year and ending September 30 of the following year ("Fiscal Year") For the 1998-99 Fiscal Year, the annual Fee shall be $1 42 per linear foot of Public Right-of-Way m the City used by IXC. Thereafter, for each subsequent Fiscal Year, the Fee shall be adjusted to reflect a per linear foot charge equal to {i) the per linear foot charge paid by IXC for the previous Fiscal Year plus (ii) the upward percentage change in the Implicit Price Deflator for the Gross Domestic Product, as determined by the United States Department of Commerce ("GDP Change"), multiplied by the number of linear feet of Public Right-of-Way m the City used by IXC at the time In the event that m any given year there is no GDP Change or the GDP Change is downward, the Fee shall remain constant until the following October 1St In no event shall the Fee ever be decreased. B IXC `s Fee for the period ending September 30, 1998 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 IXC fails to deliver this Fee within 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 by not later than September 30th prior to the commencement of the Fiscal Year 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 Fees established in this Section 9 are exclusive of and shall not in any way be affected by any relocation of IXC's Facilities required by the City pursuant to Section 3 of this Ordinance 10 SECTION 10. ASSIGNMENT OF RIGHTS The rights granted by this Ordinance inure to the benefit of IXC 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 City of Fort Worth, except IXC may assign its rights under this Ordinance to a parent, subsidiary; affiliate or successor entity without such consent, so long as such parent, subsidiary, affiliate or successor executes a written .agreement with the City prior to such assignment in which such successor entity agrees to (i) assume all obligations of IXC hereunder and (ii) be bound to the same extent as IXC hereunder Such consent shall not be capriciously or unreasonably withheld, unreasonably delayed or 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 IXC, without the written consent of the City, shall not lease any of the Public Right-of- Way it uses, in connection with its System, to any non-IXC company; provided that IXC shall have the right to lease or dedicate its System or any portion thereof, or otherwise make available the System to other companies in the ordinary conduct of its business as a long distance telecommunications company, so long as IXC retains responsibility for servicing and repairing the System. Notwithstanding the foregoing, IXC will not lease any conduit space m the System 11 to any non-IXC company for the placement of any additional cable without the express written consent of the City 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 IXC recognizes that questions regarding the interpretation or application of this Ordinance shall be raised initially with that designated official. 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, IXC 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 IXC This Ordinance will not become effective unless accepted and agreed to in writing by IXC, as herein prescribed. SECTION 14. CUMULATIVE PROVISIONS This Ordinance shall be cumulative of all provisions of Ordinances and of the Code of the City of Fort Worth, Texas (1986), as amended, except where the provisions of this Ordinance are 12 in direct conflict with the provisions of such Ordinances and such Code, in which event conflicting provisions of such Ordinances and such 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 unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in •this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 16. PUBLICATION In accordance with Section 2 of Chapter XXV of the City's Charter, the City Secretary of the City is hereby directed to arrange for publication of this Ordinance in the official newspaper of the City once a week for four (4) consecutive weeks within a period of thirty (30) days following adoption. All costs of the publication of this Ordinance shall be at the expense of IXC. This Ordinance shall not become effective until proper publication as required by the City Charter 13 :, SECTION 17. EFFECTIVE DATE This Ordinance shall be m full force and effect from and after its passage, publication, written acceptance and payment of the fee as prescribed heremabove, and rt is so ordained. APPROVED AS TO FORM AND LEGALITY: Assistant City Atto ADOPTED• ~- ~ - 9 ? EFFECTIVE. ACCEPTED AND AGREED TO BY IXC CARRIER, INC By• Mike Jones, Vice President of Facilities and Construction 14 City of Fort Worth Texas Mayor and Council Communication DATE REFERENCE NUIdBSR LOG NAME PAGE 09/09/97 **G-11986 020PTIC 1 of 1 SUBJECT ~ORDINANCE~GRANTING 1XC CARRIER, INCA 4LICENSE'TO USE CERTAIN PUBLIC RIGHTS=OF-WAY FOR A F`BER OPTIC~LONG-DISTANCE TEL"ECOIVIMUNICATIONS " -~ ~ - --- SYSTEM RECOMMENDATION It is recommended that the City Council adopt the attached Ordinance, which grants IXC Carrier, Inc 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 IXC Carrier, Inc is in the process of acquiring full rights to a fiber optic telecommunications cable which was constructed under the City's license agreement with Metro Access Networks The cable is located along the Union Pacific Railroad, but it crosses fourteen (14) City streets The amount of right-of-way is one thousand sixty (1,060) linear feet IXC has agreed to pay the City, at the time the license is approved, aone-time payment equal to four percent (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 51 42 per linear foot of City- owned right-of-way granted under this Ordinance The annual amount will be 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 52,950 00, the amount due October 1, 1998 will be 51,505 00 FISCAL INFORMATION/CERTIFICATION The Revenue Office of the Fiscal Services Department will be responsible for collection of funds due the City under this Ordinance BT m Submitted for City Manager's FUND ACCOUNT CEN'T'ER AMOUNT CITY SECRETARY Offce by: (to) ~ Charles Boswell 8511 ~~~t ~'~ ~ { Originating Department Head: ~ SEP 9 'k9~7 Charles Boswell 8511 (from) ~" ~ErtfJ ~.t~!-l~ For Additional Information City $~cr~~rlr of the TeXas th W Contact: , or City of Fort Danny Reed 6145 ~d~~~~I ark .~~ Printed on Recyded Paper - ~