HomeMy WebLinkAboutOrdinance 11555~~
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ORDINANCE NO. l0 5~S'
AN ORDINANCE GRANTING A FRANCHISE TO AMERICAN
COMMUNICATION SERVICES OF FORT WORTH, INC., ITS
SUCCESSORS AND ASSIGNS, TO USE THE RIGHTS-OF-WAY OF THE
CITY OF FORT WORTH, TEXAS, FOR THE PURPOSE OF LAYING,
MAINTAINING, USING, AND OPERATING THEREIN, A FIBER OPTIC
TELECOMMUNICATIONS NETWORK LOCATED IN SAID CITY;
PROVIDING DEFINITIONS; PROVIDING FOR THE REGULATION OF
CONSTRUCTION OF THE NETWORK; PROVIDING FOR THE RELOCATION
OF NETWORK FACILITIES; PROVIDING FOR REMOVAL OF OBSOLETE
FACILITIES; PROVIDING FOR CONFORMANCE WITH THE MASTER
THOROUGHFARE PLAN; PROVIDING FOR USE OF RIGHTS-OF-WAY BY
OTHERS; PROVIDING FOR ABANDONMENT; PROVIDING FOR BONDS;
PROVIDING FOR INDEMNIFICATION AND INSURANCE; PROVIDING
FOR MISCELLANEOUS REGULATIONS; PROVIDING FOR
COMPENSATION; PROVIDING FOR RECORDS KEEPING AND
INSPECTION; PROVIDING FOR THE MAPPING OF COMPANY'S
NETWORK; PROVIDING FOR THE CITY'S USE OF NETWORK
FACILITIES; REGULATING THE LEASING OF FACILITIES TO
OTHERS; PROVIDING FOR PERSONS TO RECEIVE NOTICE;
PROVIDING FOR TERMINATION, TRANSFER, AND EXPIRATION OF
THE FRANCHISE; PROVIDING FOR CONTROLLING LAWS; PROVIDING
A SEVERABILITY CLAUSE; PROVIDING FOR PUBLICATION;
PROVIDING FOR ACCEPTANCE BY AMERICAN COMMUNICATION
SERVICES OF FORT WORTH, INC.; AND PROVIDING AN EFFECTIVE
DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH,
TEXAS:
SECTION 1.
DEFINITIONS
For the purpose of this ordinance, the following terms,
phrases, words, and their derivations shall have the meaning given
herein unless more specifically defined within other sections of
this ordinance. When not inconsistent with the context, words used
in the present tense include the future tense, words in the single
number include the plural number. The word "shall" is always
mandatory, and not merely directory.
(a) Authorized Telecommunications Services means (1) services
interconnecting interexchange carriers for the purpose of voice or
data transmission; (2) services connecting interexchange carriers
or competitive carriers to telephone companies providing local
exchange services for the purpose of voice or data transmission;
a
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(3) services connecting interexchange carriers to any entity, other
than another interexchange carrier, or telephone company providing
local exchange services, for the purpose of voice or data
transmission; (4) service providing private line point to point
service for end users for voice and data transmission; or (5) any
other telecommunication services regulated by the Texas Public
Utilities Commission (PUC) which the PUC has-authorize~~ompany o
provide, if Company has provided advance notice of same to City.
(b) City shall mean the City of Fort Worth, Texas, a home-rule
municipal corporation.
(c) Company shall mean that person granted a franchise under
this ordinance.
(d) Fiber Optic Telecommunications Network (NetworkZ shall mean
the Company's system of cables, wires, lines, towers, wave guides,
optic fiber, microwave, laser beams, and any associated converters,
equipment, or facilities designed and constructed for the purpose
of producing, receiving, amplifying, or distributing, by audio,
video, or other forms of electronic signals to or from subscribers
or locations within the City. No portion of the Fiber Optic
Network shall constitute all or any portion of a cable television
system except with the prior written consent of the City.
(e) Gross receipts shall mean all receipts (exclusive of sales
tax) collected by Company from operation of Company's Network
installed pursuant to this franchise ordinance, and any related
services provided by the Company within the corporate limits of the
City, including, but not limited to:
1. all telecommunications service revenues charged on a flat
rate basis,
2. all telecommunications services charged on a usage
sensitive or mileage basis,
3. all revenues from installation service charges,
4. all revenues from connection or disconnection fees,
5. all revenues from penalties or charges to customers for
checks returned from banks, net of bank costs paid,
6. all revenues from equipment sold or rented to customer
upon customer premises,
7. all revenues from local service,
8. all revenues from authorized rental of conduit space,
9. all revenues from charges for access to local and long
distance networks,
10. all revenues from authorized rentals of any portion of
Company's Network, including plant, facilities, or
capacity leased to others,
11. all other revenues collected by Company from business
pursued within the City,
12. recoveries of bad debts previously written off and
revenues from the sale or assignment of bad debts.
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Unrecovered bad debts charged off after diligent,
unsuccessful efforts to collect are excludable from Gross
Revenues,
13. all revenues from enhanced data service,
14. all interconnect revenues from interexchange carriers,
15. all revenues derived from co-location connection fees,
and -- -- --
16. all revenues from subsidiary companies derived from use
of fiber optic network.
(f) Person shall mean an individual, association, corporation,
firm, or partnership.
(g) Rights-of-way shall mean all present and future streets,
within the corporate limits of the City.
(h) Street shall mean the entire width between the boundary
lines of every highway, alley, street, avenue, public place or
square, bridge, viaduct, tunnel, and causeway, in the City,
dedicated or devoted to public use.
SECTION 2.
GRANT OF FRANCHISE
(a) There is hereby granted to American Communication
Services of Fort Worth, Inc., hereinafter called °tCompany", its
successors and assigns, subject to the reasonable and timely
compliance by Company with the provisions contained herein, for an
initial term of fifteen (15) years from the passage of this
ordinance, the non-exclusive right and privilege to have, acquire,
construct, expand, reconstruct, maintain, use, and operate in,
along, across, on, over, through, above, and under the rights-of-
way, a Fiber Optics Telecommunications Network, which shall be
limited to authorized telecommunications services. Provided,
however, that either party may open the terms of this agreement for
renegotiation at the tenth (10th) year anniversary of its enactment
by Council. If either party opts to open the agreement for
renegotiation, it shall provide the other party with written notice
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of its intent no later than sixty (60) days prior to the
anniversary date. Both parties shall negotiate in good faith. If
a new agreement is not negotiated within six (6) months from the
date of the writtenrequest, the- agreement shall terminate
automatically.
(b) Company shall not provide services directly regulated by
the Texas Public Utility Commission (the "PUC") under the Texas
Public Utility Regulatory Act unless authorized by the PUC.
Company shall not provide cable services or operate a cable system
as defined in Title 47, Chapter 5, Subchapter V-A of the United
States Code, as amended (47 USCA §521, et seq.) or as recognized by
the Federal Communications Commission (the "FCC") without first
obtaining a separate cable franchise from the City of Fort Worth.
Company shall not provide video dial tone or Personal Communication
Service (PCS) without first obtaining a separate franchise from the
City.
(c) This franchise is granted to Company solely for the
purpose of directly serving its end-user customers and
interexchange carriers.
(d) This ordinance does not require Company to provide
ubiquitous service throughout the entire city as a public service
provider.
(e) Nothing herein contained shall ever be held or construed
to confer upon Company, its successors and assigns, exclusive
rights or privileges of any nature whatsoever.
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SECTION 3.
REGULATION OF CONSTRUCTION
(a) Company shall lay, maintain, construct, operate and
replace its Fiber Optic Telecommunications Network so as to
interfere as little as possible with traffic in City rights-of-way.
(b) Before Company constructs, extends or replaces its
Network, it shall file with the City's Director of Transportation
and Public Works a written work description, including scale
drawings, showing the Network's location and estimated depth of the
facilities. The plans will be reviewed by the Director of
Transportation and Public Works and any comments will be provided
to the Company within ten (10) working days. City agrees to
expedite its review when conditions warrant. Before Company
repairs its existing Network the Company shall give notice to the
City's Director of Transportation and Public Works as to the time
and location of the proposed repairs. Company will provide a
thirty,(30) day advanced schedule of planned work at the beginning
of each month. Daily work schedules shall be provided to City by
8:30 a.m. of each work day. When an emergency occurs, repairs
shall be performed by the Company and notice shall be given to the
Director of Transportation and Public Works within twenty-four (24)
hours following emergency repairs.
(c) All work in rights-of-way and other surfaces will be
performed in accordance with the City of Fort Worth's Standard
Specifications for Street and Storm Drain Construction. The City
may inspect any and all street repairs. All work done in
connection with the laying, maintenance, construction, operation
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and replacement of Company's Network shall be in compliance with
all other applicable laws, rules and regulations, of the City, the
State of Texas, and the United States.
(d~) Whin--Company performs or causes the performance of any
work on any right-of-way or other public place, or so closely
adjacent to such places as to create hazards for the public or
themselves, the Company, its employees or contractor shall provide
construction and maintenance signs and sufficient barricades at
work sites to protect the public, equipment and workmen. The
application of such traffic control devices shall be consistent
with the standards and provisions of the latest addition to the
Texas Manual on Uniform Traffic Control Devices. Appropriate
warning lights shall be used at all construction and maintenance
zones where one or more traffic lanes are being obstructed during
nighttime conditions.
(e) Company shall repair, clean up and restore all rights-of-
way and other surfaces disturbed during the construction and repair
of its Network and shall warrant the repairs and restoration of
such rights-of-way and other surfaces for a period of two years
from the date of completion of same. Such repairs, clean up and
restoration shall return the rights-of-way and other disturbed
surfaces to substantially the same condition they were in before
the Company's work began. The determination that the rights-of-way
and other surfaces have been returned to substantially the same
condition shall be made by the Director of Transportation and
Public Works or his designee.
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(f) The City shall have the power at any time to order and
require Company to remove or abate any facility that is dangerous
to life or property, and in the event Company, after notice, fails
----or refuses to comply, the City shall have the power to remove or
abate same at the expense of Company, all without compensation or
liability for damages to Company.
SECTION 4.
RELOCATION OF NETWORK
DUE TO CITY'S NEEDS
(a) Company, at its own cost and expense, and at City's
request (without claim for reimbursement or damages against the
City), shall lower, relocate or relay existing Network facilities
located in City 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 City utility lines,
including but not limited to water, sanitary sewer, storm drains,
street lights and traffic signal conduits, or due to any other work
in or under the City rights-of-way; but Company's obligation to
lower, relocate or relay such facilities at its cost and expense
shall occur only when such street construction, street
reconstruction, City utility line construction or relocation, or
such other work by or on behalf of the City in or under the City
rights-of-way is for the benefit of the general public and such
rights-of-way are to be maintained and operated by the City.
(b) If City requires Company to lower, relocate, or relay its
existing facilities pursuant to subsection (a) above, Company shall
make the changes upon receiving a written directive from City to do
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so. In the event Company fails to comply with the directive, the
City shall have the right to lower, relay, or relocate or cause to
be lowered, relayed, or relocated the affected parts of Company's
Network, and Company shall reimburse City for all its costs. -
SECTION 5.
REMOVAL OF OBSOLETE FACILITIES
(a) When Company opens a trench, accesses a conduit or
boring, or is working on aerial locations, it shall remove all
obsolete Network facilities it owns from such locations.
(b) When Company opens a trench or access to borings, it
shall notify all other franchisees of such work, so that they may
remove their obsolete facilities from such locations. Company
shall cooperate with such franchisees in their removal activities.
(c) When Company receives notification from another
franchisee that it is opening a trench or access to borings,
Company shall remove all of its obsolete facilities from such
locations while they are open.
(d) In the event this agreement is terminated or expires
without being renewed, the City may require the Company to remove
its facilities from the rights-of-way within a reasonable period of
time.
(e) Whenever Company intends to discontinue using any Network
facility within the right-of-way, Company shall submit to the
Director of Transportation and Public Works for the Director's
approval a completed application describing the facility and the
date on which the Company intends to discontinue using the
facility. Company may remove the facility or request that the City
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permit it to remain in place. Notwithstanding the Company's
request that any such facility remain in place, the City may
require the Company to remove the facility from the right-of-way or
modify the facility in order to protect the pub-l-i-c h-ea-ith-and
safety or otherwise serve the public interest.
(f) The City may require the Company to perform a combination
of modification and removal of the facility. Company shall
complete such removal or modification in accordance with a schedule
set by the City. Until such time as the Company removes or
modifies the affected facility as directed by the City, or until
the rights to and responsibility for the affected facility are
accepted by another person or corporation having authority to
construct and maintain such facilities, Company shall be
responsible for all necessary repairs, relocations of the facility,
and maintenance of the right-of-way in the same manner and degree
as if the facility were in active use, and Company shall retain all
liability.
SECTION 6.
CONFORMANCE WITH MASTER THOROUGHFARE PLAN
(a) Before Company acquires any interest in real property for
the installation or relocation of service lines, or any other
Company equipment or facilities along or adjacent to any existing
street or thoroughfare or any proposed street or thoroughfare as
reflected on the City's then current Master Thoroughfare Plan,
Company shall give the City's Director of Transportation and Public
Works written notice of such planned acquisition no later than
thirty (30) days before the date of said acquisition. The City's
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Director of Transportation and Public Works will review the
proposed acquisition to see that same does not conflict or
interfere with any proposed street or thoroughfare expansion.
(b) If the Director of Transportat~i~an~n~-Public-Works
determines that the proposed acquisition will conflict or interfere
with the Master Thoroughfare Plan, the Director of Transportation
and Public Works will notify the Company of the potential conflict
or interference. Thereafter, the City and the Company will
endeavor in good faith to resolve the potential conflict or
interference.
(c) Failure by Company to notify the City within the
prescribed thirty (30) day period will thereafter require the
Company to relocate its facilities at its own cost in order to
resolve any such conflict or interference, and will absolve the
City of any responsibility for such cost.
SECTION 7.
USE OF RIGHTS-OF-WAY BY OTHERS
(a) The City reserves the right to permit to be laid and
repaired, sewer, gas, water and other pipelines, cables, conduits,
and other similar facilities in along, over or under any rights-of-
way occupied by Company. The City further reserves the right to
permit soil borings into and the installation of monitoring wells
in or under any rights-of-way occupied by Company.
(b) In permitting such work to be done, the City shall not be
liable to Company for any damages so caused, nor shall the City be
liable to Company for any damages arising out of the performance of
said work by the City's licensees, invitees, or franchisees;
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provided, however, nothing herein shall relieve any other person or
corporation from liability for damage to the Company's Network.
(c) If City requires Company to remove, alter, change, adapt
or conform its Network-to---ena~i-e-a-ny-other-person, except the City
or any person franchised by the City prior to the enactment of this
Ordinance, to use, or to use with greater convenience, the rights-
of-way, Company shall be obligated to make such changes to its
Network only if said person undertakes with solvent bond to
reimburse Company for any loss and expense which will be caused by
or which will arise out of such changes to Company's Network. The
City shall not be liable for any reimbursement, loss, or expense
which is caused by or which arises out of such changes to Company's
Network.
SECTION 8.
RIGHTS IN THE EVENT OF ABANDONMENT
(a) In the event that the governing body of the City of Fort
Worth closes or abandons any right-of-way which contains the
facilities of Company installed hereunder, any conveyance of land
contained in such closed or abandoned right-of-way shall be subject
to the rights of Company described in this ordinance.
(b) In the event that any portion of the right-of-way that
includes Network facilities becomes the subject of condemnation
proceedings, it is agreed that Company's property rights and
interest in such proceedings and any such condemnation awards shall
be specifically allocated between Company's interest and the City's
interest. The City shall make a diligent effort to notify Company
within a reasonable time of any condemnation action (or threatened
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action) filed against the right-of-way that affects any Network
facility, or any proposed sale in lieu of condemnation.
SECTION 9.
BONDS
(a) Company shall obtain and shall maintain during the term
of the franchise, at its sole cost and expense, and shall file with
the City Secretary, a corporate surety bond, issued from a surety
company authorized to do business in the State of Texas and found
acceptable by the City Attorney, in the amount of Five Hundred
Thousand dollars ($500,000) to secure Company's performance of its
obligations and faithful adherence to all requirements of this
franchise ordinance. Company shall provide this corporate surety
bond at the time of filing the acceptance of the franchise.
(b) The rights reserved to the City with respect to the bond
are in addition to all other rights of the City, whether reserved
by this franchise ordinance or authorized by law; and no action,
proceeding or exercise of a right with respect to such bond shall
affect any other rights the City may have.
(c) The bond shall contain the following endorsement: It is
hereby understood and agreed that this bond may not be canceled by
the surety nor any intention not to renew be exercised by the
surety until sixty (60) days after receipt by the City, by
registered mail, of written notice of such intent.
SECTION 10.
INDEMNIFICATION
Company shall indemnify and hold harmless the City and all of
its officers, agents, and employees from all suits, actions, or
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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, locations,
replacement, reconstruction, maintenance, repair, or operation of
Company's Network, and Company shall pay any judgements, interest,
and costs which may be obtained against City arising out of such
injury or damage. If the franchise granted by this agreement is
terminated or is not renewed, and Company does not remove its
facilities from the right-of-way, Company shall continue to
indemnify and hold harmless pursuant to this section as long as its
facilities are located in the rights-of-way, and for said purpose,
this section shall survive the Franchise.
SECTION 11.
INSURANCE
The Company shall maintain the following insurance coverages
and the respective policies thereof shall cover all risks related
to the use and occupancy of the right-of-way and all other risks
associated with this franchise agreement:
(a) Description of Insurance Coverages and Limits
1. Commercial General Liability Insurance
$10,000,000 each occurrence
Coverage shall include but not be limited to
the following: premises operations,
independent contractors, products/completed
operations, personal injury, contractual
liability, explosion/collapse/underground
property damage. Insurance shall be provided
on an occurrence basis, be as comprehensive as
the current Insurance Services Office (ISO)
policy and have no exclusion by endorsement.
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2. Automobile Liability Insurance
$10,000,000 each accident
Coverage shall be on "any auto", including
leased, hired, owned, non-owned and borrowed
vehicles.
3. Environmental Impairment Liability including
Pollution Liability Insurance
$10,000,000 each occurrence
It shall include claims arising from gradual
emissions and sudden accidents. Clean-up and
defense costs shall be covered.
4. Workers' Compensation Insurance
Statutory limits
Employer's Liability - minimum $500,000 for each
accident/disease-each employee/disease-policy limit
(b) Other Insurance Related Requirements
1. The City of Fort Worth shall be an additional
insured, by endorsement, on all applicable
insurance policies.
2. Applicable insurance policies shall each be
endorsed with a waiver of subrogation in favor of
the City of Fort Worth.
3. Insurers shall be authorized to do business in the
State of Texas, or otherwise approved by the City
of Fort Worth, and such shall be acceptable to the
City of Fort Worth insofar as their financial
strength and solvency are concerned.
4. Deductible limits on insurance policies and/or self
insured retentions exceeding $50,000 require
approval of the City of Fort Worth as respects this
agreement.
5. The City of Fort Worth shall be notified a minimum
of thirty (30) days prior to the insurer's action
in the event of cancellation, non-renewal or
material change coverage regarding any policy
providing insurance coverage required in this
agreement.
6. Full limits of insurance required in Subsection(a)
of this section shall be available for claims
arising out of this agreement with the City of Fort
Worth.
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7. Certificates of insurance shall be provided by
Company to the City prior to commencement of
operations pursuant to this franchise. Any failure
on part of the City of Fort Worth to request such
documentation shall not be construed as a waiver of
insurance requirements specified herein.
8. The City of Fort Worth shall be entitled, upon
request and without incurring expense, to review
the insurance policies including endorsements
thereto and, at its discretion, to require proof of
payment for policy premiums.
9. The City of Fort Worth reserves the right to revise
insurance requirements specified herein and require
Company to comply therewith within sixty (60) days
of the City's official notice of the revision.
10. The City of Fort Worth shall not be responsible for
paying the cost of insurance coverages required
herein.
11. Notice of any actual or potential claim and/or
litigation that would affect insurance coverages
required herein shall be provided to the City in a
timely manner.
12. "Other insurance" as referenced in any policy of
insurance providing coverages required herein shall
not apply to the City of Fort Worth.
13. Company shall agree to either require its
contractors to maintain the same insurance
coverages and limits thereof as specified herein or
such coverage on the Company's contractors shall be
provided by the Company.
SECTION 12.
MISCELLANEOUS REGULATIONS
(a) Company shall furnish reasonably adequate service to the
public at reasonable rates and charges as may be prescribed from
time to time by appropriate federal, state and local authorities;
and Company shall maintain its property, equipment and appliances
in good order and condition:
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F ~
(b) Company shall not give unreasonable preference or
advantage as to rates or services to anyone within a service
classification; nor shall Company discriminate against anyone in
the furnishing of service under this franchise, or--the -charges
therefor, on account of race, color, religion, sex or national
origin.
SECTION 13.
COMPENSATION
(a) In consideration for the rights and privileges herein
granted, Company, its successors and assigns, agrees to pay City
those fees set forth in this section.
(b) Upon its acceptance of this agreement, Company shall pay
to City a one-time acceptance fee of ten thousand dollars
($10,000).
(c) Before Company installs new Network facilities, extends
its existing facilities, or uses facilities which were installed
prior to the effective date of this franchise agreement, Company
shall pay City the sum of one dollar and thirty-three cents ($1.33)
per linear foot of the City's rights-of-way to be traversed by such
new installation, extension, or use, as determined by the written
work description required by Section 3(b) of this agreement, and/or
the mapping requirement of Section 15 of this agreement. The fee
required by this subsection has a base date of January 1, 1994, and
shall be adjusted on a percentage basis and proportionately to the
percentage change in the Implicit Price Deflator for the Gross
Domestic Product as determined by the United States Department of
Commerce, at one-year intervals during the term of this agreement.
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Company shall contact City prior to making such payments to
determine the current per-linear-foot fee.
(d) During the term of this franchise, the Company shall pay
a franchise fee in the amount of five percent(-5~j-of--the--gross-----
receipts received by the Company for the operation of the Company's
Network within the City.
(e) Following passage of this ordinance, the franchise fee
shall be paid on or before the fifteenth day of February, May,
August, and November of each year for the preceding calendar
quarter during the term of this franchise. If the first payment
becomes due before an entire quarter of a calendar year has passed,
the first payment shall be for that portion of that quarter during
which this franchise agreement was in effect.
(f ) Such payments shal l be by Company and accepted by City as
full payment for Company's privilege of using and occupying the
rights-of-way, easements, and City property within the City and of
other costs and fees connected with that use, such as franchise
agreement development, rentals, supervision, inspection and
occupation charges and in lieu of license and inspection fees,
street and alley rentals (excepting only general or special ad
valorem taxes which the City is authorized to levy and impose upon
real or personal property).
(g) In order to determine the gross receipts received by
Company for the operation of its Network within the City, the
Company agrees that on the same date that payments are made, as
provided herein, it will file with the City Secretary a sworn
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report showing all revenue, detailed by category, received by the
Company from the operations of Company's Network within the City
for the calendar quarter preceding the date of payment. The
Company shall submit quarterly- a~-aym~nt-remittance form as set
forth in Attachment A, which is incorporated by reference. The
City may, if it sees fit, have the books and records of the Company
audited by a representative of said City to ascertain the
correctness of the sworn reports agreed to be filed herein. If the
audit determines that there was an error in the City's payment
greater than ten percent (10%) of the payment received by the City,
the Company shall reimburse the City for all audit costs.
(h) Except as otherwise required by law, no portion of the
franchise fee shall be noted separately on any bill to any customer
for use of services or commodities furnished by the Company.
(i) Any transactions which have the effect of circumventing
payment of required franchise fees and/or evasion of payment of
franchise fees by non-collection or non-reporting of Gross
Receipts, bartering, or any other means which evade the actual
collection of revenues for business pursued by Company are
prohibited.
(j) In the event any quarterly payment is made after the due
date, the Company shall pay a late payment penalty of the greater
of $100 or simple interest at ten percent (10%) annual percentage
rate of the total past due.
(k) If within eighteen months following the City Council's
enactment of this ordinance the City grants another person a
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franchise to operate a Fiber Optics Telecommunications Network in
the City, and said subsequent franchise ordinance contains
compensation terms which if applied to Company would result in
Company paying ie-s~s-c mp~nsatz~n-to City, such compensation terms
shall automatically replace those contained herein. The effective
date of such new compensation terms shall be the effective date of
the subsequent franchise ordinance. The new terms shall not affect
the amount of compensation due City from Company prior to the
effective date of the new terms. The new terms shall not affect
the amount of compensation to be paid City by Company after the
effective date, based on gross receipts collected by Company prior
to the effective date. City and Company shall timely enter into an
amendment to this franchise to reflect the new terms.
SECTION 14.
RECORDS
Company shall maintain records, accounts, and financial and
operating reports in a manner that will allow the City to determine
the gross receipts related to the operation of the Network within
the City. The City Manager, or his designee, may require the
keeping of additional records or accounts reasonably necessary for
administration of the franchise. If Company objects to a
requirement of the City Manager, or his designee, Company may
appeal the requirement to the City Council.
SECTION 15.
NETWORK MAPPING
In addition to the requirements of Section 3, before Company
constructs new Network facilities or extends existing Network
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facilities, or before it uses Network facilities that were in
existence in the City prior to the effective date of this franchise
agreement, the Company shall provide to the City's Director of
-~-° -~Infarmati-on -Systems-and- Services its fiber optics location data in
conformance with City's standards. Such data shall adhere to
City's leveling standards and pen assignments. City shall provide
electronic base data to allow for accurate matching of street names
and rights-of-way lines in TekniCAD - TDA, AutoCAD DXF, Intergraph
or IGES formats on 1.2 MB, 1.44 MB, or QIC mini tape media. The
data shall be returned to City in the same format in which it was
provided.
SECTION 16.
CITY USE OF FACILITIES
(a) The Company shall provide to the City without charge, and
solely for City's noncommercial telecommunications purposes, space
in all of the Company's ducted and conduit facilities within the
City limits, with sufficient space for necessary joints, upon
written request by the City. Additionally, the Company shall
provide adequate space on all non-ducted facilities constructed on,
over, or within rights-of-way, for the City to attach transmission
media for the City's noncommercial use.
(b) In the case of new construction of the network the
Company, at its sole cost and expense, shall provide to the City
for municipal purposes dark fiber pair throughout the portion of
the Network used for transmission purposes, as required by the
Director of Information Systems and Services and suitable for
City's stated needs. In addition, the Company shall provide
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lateral lines connecting the City's locations to the Network as
required by the Director of Information Systems and Services at
Company's cost to be reimbursed by the City.
(c)---The City reserves the right to obtain bids from vendors,
other than Company and other franchisees.
SECTION 17.
LEASING OR DEDICATION OF FACILITIES
Company, without the consent of the City, shall not lease any
of the right-of-way it uses, in connection with its system, to any
non-Company entity provided that Company shall have the right to
lease or dedicate its system or any portion thereof, or otherwise
make available the system to other persons in the ordinary conduct
of its business as a telecommunications company, so long as Company
retains responsibility for servicing and repairing the system.
Notwithstanding the foregoing, Company will not lease any conduit
space in the system to any non-Company entity for the placement of
any additional cable without the express written consent of the
City.
SECTION 18.
NOTICE
Any notice or communication required in the administration of
this ordinance shall be sent as follows:
City Secretary
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
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with copy to:
Public Utilities Supervisor
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Notice to Company will be to:
Mr. Richard Kozak
President
American Communication Services of Ft. Worth, Inc.
600 Hunter Drive
Suite 301
OakBrook, IL 60521
with copy to:
Jonathan Nelson, Esq.
Gould, Broude & Nelson, P.C.
307 West 7th Street
1000 Commerce Building
Fort Worth, TX 76102
or to such other address as Company may designate from time to
time.
SECTION 19.
TERMINATION
(a) The City Council shall have the option to declare this
franchise agreement terminated at any time for:
(1) failure of the Company to comply with any term,
condition or provision of this agreement;
(2) any false statement or misrepresentation as to a
material fact in Company's application for franchise; or
(3) Company's loss of or failure to obtain all necessary
Federal and State licenses, permits, and other
permissions required in the provision of authorized
telecommunications services.
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(b) If the Company continues to violate or fails to comply
with the terms and provisions of this ordinance for a period of
thirty (30) days after the Company shall have been notified in
writing by the City to cure such specific alleged violat-ion-or
~ failure to comply, then the City may pursue the procedures set
forth below to declare that the Company has terminated all rights
and privileges consented to in this ordinance; provided, however,
that if the Company is alleged to be in violation of any provisions
of this ordinance other than the payment of money and if the
Company commences efforts to cure such alleged violation(s) 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 violation(s) shall cease to exist and no further action
will be taken at that time.
(c) A 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 the Company due process and
full opportunity to be heard and to respond to any notice of
grounds to terminate. All notice requirements shall be met by
providing the Company at least fifteen (15) days' prior written
notice of any public hearing concerning the proposed termination of
this franchise agreement. Such notice shall state the grounds for
termination alleged by City.
(d) The City Council, after full public hearing and upon
finding the existence of grounds to terminate, may either declare
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> '
this agreement terminated or excuse such grounds upon a showing by
the Company of mitigating circumstances or good cause for the
existence of such grounds.
(e ) Neither the Company' s acceptance --af _-t2ri-s-az~reement, --
Company's appearance before the City Council at any public hearing
concerning proposed termination of this agreement 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 grounds to
terminate, shall be construed to waive or otherwise affect the
Company's right to seek a judicial determination of the rights and
responsibilities of the parties under this agreement.
(f) The Company shall not be excused from complying with any
of the terms and conditions of this agreement by the previous
failure of the City to insist upon or to seek compliance with such
terms or conditions.
SECTION 20.
TRANSFER OF FRANCHISE
This franchise shall not be sold, leased, mortgaged, assigned
or otherwise transferred without the prior consent of the City
Council except to persons that control, are controlled by, or are
under common control of the Company.
SECTION 21.
CITY'S RIGHTS UPON EXPIRATION
Upon the expiration of this franchise, the City shall have the
right, at its election, to:
(a) Renew or extend the franchise, in accordance with the
City of Fort Worth and applicable law;
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~°
(b) Invite additional proposals and award this franchise to
another person;
(cj Terminate the franchise without further action; or,
(d) Take such further action as the City deems appropriate.
Until such time as the City exercises its rights under this
section the Company's rights and responsibilities within the City
shall be controlled by the terms of the franchise.
SECTION 22.
CONTROLLING LAWS
This ordinance and the franchise granted herein are subject to
the applicable provisions of the Constitution and laws of the
United States and of the State of Texas, the Charter of the City
of Fort Worth, and the Fort Worth City Code. All obligations of
the parties hereunder are performable in Tarrant County, Texas. In
the event that any legal proceeding is brought to enforce the terms
of this franchise, the same shall be brought in Tarrant County,
Texas.
SECTION 23.
CUMULATIVE
That this ordinance shall be cumulative of all provisions of
the Code of the City of Fort Worth (1986), as amended, except in
those instances where the provisions of this ordinance are in
direct conflict with the provisions of such Code, in which
instances the provisions of this ordinance shall supersede the
conflicting provisions of such Code as they apply to the Company.
-25-
"~ r
SECTION 24.
SEVERABILITY
That 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 void, ineffective or unconstitutional by the valid
judgment or final decree of a court of competent jurisdiction, such
voidness, ineffectiveness or 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 herein of any such
void, ineffective or unconstitutional phrase, clause, sentence,
paragraph or section.
~ SECTION 25.
PUBLICATION
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 period of thirty (30j 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.
SECTION 26.
ACCEPTANCE
Pursuant to Section 2 of Chapter XXV of the Charter of the
City of Fort Worth, the Company, as a condition precedent to the
effectiveness of this franchise, acknowledges by the signature
hereunder of its duly authorized representative, that it accepts
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a
~ 3
•'
and agrees to the terms, conditions and provisions of this
ordinance the same as if it were a contract between the City and
Company. This franchise ordinance shall not become effective until
accepted-and-agreed-ta-in writing by Company as herein prescribed.
Should Company fail to accept and agree to this ordinance in
writing within thirty (30) days after its passage by the City
Council, such ordinance shall not thereafter take effect by a
subsequent written acceptance.
SECTION 27.
EFFECTIVE DATE
That this ordinance shall be in full force and effect from and
after its passage, publication, and written acceptance by Company
as above specified, and it is so ordained.
APPROVED AS TO FORM AND LEGALITY:
ss stan it ttor ey
Date • ~-c.,
/~
ADOPTED • _ ~ '~ ~ /
EFFECTIVE : ~Q,t~-i a.~, ~ 9 g `7F
/n~ U ~ __
AGR DSO ~D A~TCEsATED BY:
~.~ ~~~ ~
'f~d~~~ky Cr~v~uw~'nc~ trtcc~ a-F '0.T V~ a~ ) ~N ~
Date • ~'~ a~~ i 1~.~
-27-
~~
~~;-~ _ _
c ~-
ATTACHMENT A
CITY OF FORT WORTH
FIBER OPTIC FRANCHISE FEE PAYMENT FORM
Period Ending:
No. of Customers By Class
Business
Residential
Sales and Revenues in City of Fort Worth
Local Service Revenue
(5,000 to 5,069) CFR Part 32
Network Access Services Revenue
(5080 - 5084)
Long Distance Revenue
(5010 - 5169)
Miscellaneous Revenues
(5230 -5270)
Uncollectible
TOTAL
Franchise fee @ 5%
* Attached supporting quarterly revenue reports.
-28-
City of Fort Worth, Texas
Mayor and Council Communicatirna'
DATE REFERENCE LOG NAME ` PAGE "'
NUMBER G10638
04/26/94 ~ ~ 12ACS1 1 of 2
SUBJECT ORDINANCE GRANTING A FIBER OPTICS FRANCHISE TO AMERICAN
COMMUNICATIONS SERVICES OF FORT WORTH, INC
RECOMMENDATION
It is recommended that .the City adopt the attached ordinance authorizing American
Communications Services of Fort Worth, Inc (ACS-Fort Worth), to install and operate :a fiber
optics telecommunications network in the City rights-of-way
DISCUSSION
ACS-Fort Worth has requested a franchise to install and operate a Fiber-Optics
Telecommunications Network in the City rights-of-way The staff has reviewed ASC-Fort
Worth's application and negotiated the attached ordinance
Key provisions of the ordinance are
• A term of fifteen (15) years with the option to renegotiate after ten years
• The Company's routes and work in the City's right-of-way are subject to the approval of
the Director of Transportation and Public Works
• The location of the Company's network will be maintained on the City's mapping system
• Upon acceptance by the Company, the Company will pay to the City the sum, of ten
thousand dollars (510,000 00)
• The Company shall pay to the City aone-time fee in an amount equal to 51 3.3 per linear
foot of City right-of-way used (adjusted for inflation) This fee is due prior to the initial
installation of the network and prior to any future expansion of the network It is not an
annual fee
• The Company shall pay to the City a franchise fee in the amount of five percent of~ the
Company's annual gross receipts for the operation of the Company's network within the
City
• In the event that the City Council grants a fiber optics franchise to another company vuith
more favorable compensation terms, within eighteen months of passage of this ordinance,
such terms will replace the compensation terms of this ordinance
x
• The Company will permit the City to use space in the Company's ducted facilities for
municipal purposes The Company also will provide dark fiber pair suitable for City needs
as required by the Director of Information Systems and Services '
=~t Printed on recycled paper
City of Fort Worth, Texas
Mayor and Council Camrimunication
DATE
04/26/94 REFERENCE
NUMBER G10638 LOG NAME
12ACS1 PAGE
2 of 2
SUBJECT ORDINANCE GRANTING A FIBER OPTICS FRANCHISE TO AMERICAN
COMMUNICATIONS SERVICES OF FORT WORTH, INC
FISCAL INFORMATION/CERTIFICATION
The Revenue Office of the Fiscal .Services Department will be responsible for collection of funds
due the City under this ordinance
CBI
Submitted for City
Manager's
FUND'
ACCOUNT
CENTER
AMOUNT
CITY SECRETARY
Office by (to)
GGO1 421324 0124020
Charles R Boswell 8500
f'
~'r~'" ~O ~i~'~
Originating Department
Head: ~+ °~'~,/ ~1..,, t z ~_~
O/II 1 °~>,r6~„~I~am~ei~
William Wood 7605 (from) APB ~~ ~1~~"(
For Additional ~
Information ,~ ~~y~~.,>~
City~,:s~C~~~c~, Cie
Contact: city of Fc~it'4`~ci•i~, caws
William Wood 7605
~~t~C~Ran~(~ ~t ~3i5~R ~~~~ -~~~ Printed on recycled paper