HomeMy WebLinkAboutOrd 316 Granting a license to Millennium Telcom to use right-of-way for installation of telecommunications equipment ORDINANCE NO.
AN ORDINANCE OF THE BOARD OF ALDERMEN OF THE TOWN OF
WESTLAKE, TEXAS, GRANTING A LICENSE TO MILLENNIUM TELECOM
TO USE DESIGNATED RIGHT-OF-WAY IN THE TOWN FOR
INSTALLATION OF TELECOMMUNICATIONS EQUIPMENT; PROVIDING
FOR COMPENSATION; PROVIDING TERMS AND CONDITIONS OF THE
LICENSE; PROVIDING A SEVERABILITY CLAUSE; AND DECLARING AN
EFFECTIVE DATE.
WHEREAS, Millennium Telecom, LLC ("Licensee") desires the use of certain
public rights-of-way along Dove Road and Randol Mill Road in the Town for the
installation of fiber cable in order to provide a telecommunications network for the Keller
Independent School District's facilities; and
WHEREAS, the use of the Town's rights-of-way under the License granted by
this ordinance will be conducted in such a manner that it is not inconsistent with other
uses of the Town's rights-of-way and will not be used to provide telecommunications
services within the Town;NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE TOWN OF WESTLAKE,
TEXAS:
SECTION 1: Grant of Use. The Board of Aldermen hereby grants to
Millennium Telecom, LLC, Licensee, a non-exclusive License to use and occupy a
portion of the Town's rights-of-way for the installation and maintenance of
telecommunications equipment, in, across, or under the public right-of-way located at
Dove Road and Randol Mill Road as indicated on attached Exhibit "A" ("Designated
Right-of-Way"). Licensee's right to use and occupy the Designated Right-of-Way is not
exclusive and is subordinate to the right of the Town to use the licensed area for any
public purpose or to grant a similar use to other persons or entities during the term of this
License.
SECTION 2: Term. The term of this License begins on the date of acceptance by
Licensee and terminates on October 1, 2003, or upon the acceptance by Licensee of a
franchise for the operation of a telecommunications system in the Town, whichever
occurs first.
SECTION 3: Compensation to the City. As compensation for the use and
occupancy of the Designated Right-of-Way, Licensee shall pay to the Town an annual
payment of$3,000.00. The first annual payment is due and payable within 10 days after
the effective date of this License and within 10 days of each anniversary date of this
effective date. If not paid within 10 days of each due date, interest shall accrue until paid
at the annual rate of ten (10) percent.. Payments shall be made payable to the "Town of
Westlake". The annual payment is in addition to and exclusive of, all general municipal
Ordinance No. Page 2
taxes and fees, including, but not limited to, ad valorem taxes, sales taxes, special
assignments, and permit fees.
SECTION 4: Administration of the License. The Town Engineer is the
principal Town officer responsible for the administration of this License and shall review
the operations of Licensee in the Designated Right-of-Way. Upon reasonable written
request by the Town Engineer, Licensee shall inform the Town Engineer as to all matters
in connection with or affecting the location, construction, reconstruction, maintenance,
and repair of Licensee's facilities in the Designated Right-of-Way. Licensee shall report
all material changes to Licensee's facilities to the Town Engineer.
SECTION S: Town Work. If the Town in the exercise of its discretion,
determines that work should be done in connection with a public improvement that will
affect the Designated Right-of-Way and any Licensee's installations, Licensee, at its sole
expense, shall be responsible for any modifications to its installation or equipment
necessitated by the Town's work.
SECTION 6: Removal of Licensee's Equipment. At the time this License is
terminated for any reason, if no renewal of the License, replacement license or franchise
is approved by the Town, Licensee shall remove all installations of equipment located in
the Designated Right-of-Way and restore the premises to its former condition. If the
Licensee fails to remove its installations or restore the premises, the Town shall have the
right to perform the work or cause the work to be performed and assess the cost of the
work against the Licensee.
SECTION 7: Insurance. Licensee shall carry, at its sole expense, public liability
insurance against personal injury and property damage with a company authorized to do
business in the ,State of Texas satisfactory to the Town, against any and all claims for
damages to persons or property as a result of arising out of the use, operation, and
maintenance by Licensee of the Designated Right-of-Way and Licensee's installations,
equipment, landscaping, and other work in the area_ The insurance shall name the Town
as an additional insured and shall be in an amount of not less than:
Property damage, per occurrence $500,000
Bodily Injury or Death, per occurrence $1,000,000
Commercial General Liability $1,000,000
The policy or policies shall bear an endorsement to the effect that no cancellation shall be
effective without first giving 30-days written notice to the Town, Licensee shall furnish
the Town a certificate evidencing this insurance coverage within 30 days of acceptance of
the terms of this Ordinance. Should Licensee allow the insurance coverage to lapse, or
fail to provide a certificate as required during the term of this License, the Town shall
have the right to terminate this License.
Ordinance No. Page 3
SECTION 8: Indemnity and Waiver of Claims.
(a) LICENSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD THE TOWN
HARMLESS AGAINST ANY AND ALL CLAIMS FOR DAMAGES, COSTS,
AND EXPENSES, TO PERSONS OR PROPERTY THAT MAY ARISE OUT OF,
OR BE OCCASIONED BY THE USE, OCCUPANCY, AND MAINTENANCE
OF LICENSEE'S INSTALLATIONS AND EQUIPMENT WITHIN THE
DESIGNATED RIGHT-OF-WAY, OR FROM ANY ACT OR OMISSION OF
ANY REPRESENTATIVE, AGENT, EMPLOYEE, CONTRACTOR, OR
SUBCONTRACTOR OF LICENSEE. THIS AGREEMENT SHALL ALSO
COVER ANY CLAIM FOR DAMAGE THAT A UTILITY, WHETHER
PUBLICLY OR PRIVATELY OWNED, MAY SUSTAIN OR RECEIVE BY
REASON OF LICENSEE'S USE OF THE DESIGNATED RIGHT-OF-WAY.
(b) Licensee shall not make any claim against.the Town for damages that it may suffer
by reason of the installation, construction, reconstruction, operation, or maintenance
of a public improvement or utility, including, but not limited to, water and sanitary
sewer lines mains, and storm water and drainage facilities by reason of flooding,
infiltration, backflow, or seepage caused from the failure of an installation, natural
causes, or from any other cause.
(c) It is the intention of this indemnity and waiver and a condition of this License, that
it shall be a full and total indemnity against every claim that may be asserted against
the Town by reason or as a consequence of having granted permission to Licensee
to use the Designated Right-6f-Way. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS SECTION, AS BETWEEN THE TOWN AND THE
LICENSEE AND WITHOUT WAIVING ANY GOVERNMENTAL IMMUNITY
OF THE TOWN, LICENSEE SHALL NOT INDEMNIFY THE TOWN NOR
WAIVE ITS CLAIMS FOR ANY ACTS OF GROSS NEGLIGENCE ON THE
PART OF THE TOWN.
SECTIONS: Existing Facilities. This License is subject to any existing utilities or
communication facilities presently located within the Designated Right-of-
Way. Licensee shall not construct or place installations in the Designated Right-of-Way
in such a manner as to interfere with the operation of any utility or communications
facilities. All utilities and communication companies shall have full right of ingress and
egress to or from and upon the Designated Right-of-Way for the purpose of constructing,
relocating, inspecting, patrolling, maintaining, and removing their systems without
necessity of procuring permission from anyone.
SECTION 10: License Violations. If Licensee fails to comply with any
provision of this License, the Board of Aldermen may terminate the License in
accordance with the following procedures:
Ordinance No. Page 4
(a) If Licensee continues to violate or fails to comply with the provisions of this License
for a period of thirty (30) days after the Licensee receives written notice from the
Town of the violation or failure to comply within the 30-day period, the Board of
Aldermen may terminate this License. If, however, the Licensee begins efforts to
cure violations within 30 days after receipt of the written notice and continues the
curative efforts with reasonable diligence until completion, the Board of Aldermen
shall not terminate the License.
(b) If a violation or failure to comply continues after the 30-day notice period, the Board
of Aldermen may terminate this License by giving Licensee 15-days' written notice
of a public hearing concerning the proposed termination. The Licensee may appear at
the public hearing and present its case. After the public hearing, the Board of
Aldermen may find a violation of or failure to comply with this License and terminate
the License.
SECTION 11: Venue and Governing Law. Venue of any court action brought
by reason of this License shall be in Tarrant County, Texas. This License shall be
construed under and in accordance with the laws of the State of Texas, and all obligations
of the parties created by this Licensee are performable in Westlake, Texas. This License
is subject to applicable state law and the ordinances of the Town of Westlake as they
exist or may be amended.
SECTION 12: Assignment. Licensee shall not assign this License without prior
approval from the Board of Aldermen, which will not be unreasonably withheld.
Licensee shall give written notice to the Town of its desire to assign this License and
represent that the proposed assignee accepts the terms and conditions contained in this
Ordinance. Any assignment approved by the Board of Aldermen shall be subject to the
terms and conditions of this Ordinance.
SECTION 13: Notices. Notices required by this License may be given by
registered or certified mail deposited in the United States mail, postage prepaid. Either
party may change the address at which its notices are received by giving written notice to
the other to change the address. Until a change is made, notices to the Town shall be
delivered to:
Mayor
Town of Westlake
3 Village Circle, Suite 207
Westlake, Texas 76262
With a copy to:
Paul C. Isham
Town Attorney
1408 W. Abram, Suite 209
Arlington, Texas 76013
Ordinance No. Page 5
Until a change is made, notices to the Licensee shall be delivered to:
Tom Johnson, President
Millennium Telecom, LLC
101 East Main Street, Suite 115
P.O. Box 1450
Denison, Texas 75020
SECTION 14: Prohibition to Providing Services 'Within Town. The License
granted by this Ordinance does not authorize Licensee to provide telecommunications
and/or cable services within the corporate boundaries of Westlake. Licensee shall obtain
a franchise from Town prior to providing any such services.
SECTION 15: Effective Date of License. This License shall not become
effective until and unless Licensee files with the Town Secretary, 3 Village Circle, Suite
207, Westlake, Texas 76252, a written acceptance of the terms and conditions of this
Ordinance. If the written acceptance is not filed within 90 days after passage of this
Ordinance, the Licensee authorized by this Ordinance shall automatically terminate.
SECTION I6: Severability. It is hereby declared to be the intention of the Board
of Aldermen that the phrases, clauses, sentences, paragraphs and sections of this
Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this
Ordinance shall be declared invalid or unconstitutional by a court of competent
jurisdiction, the invalidity or unconstitutionality shall not affect any of the remaining
phrases, clauses, sentences, paragraphs or sections of this Ordinance, since the same
would have been enacted by the Board of Aldermen without the incorporation in this
Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section.
SECTION IT Effective Date. This ordinance shall be in full force and effect
from and after the date of its passage.
PASSED AND APPROVED BY THE BOARD OF ALDERMEN OF THE TOWN OF
WESTLAKE, TEXAS ON THE 28Tn DAY OF SEPTEMBER, 1998.
SCOTT BXADLEY, YOR
ATTEST: APPROVED AS TO FORM:
A, .- . oll . )b-"'- -I
inge rosswy, Town Sic tary aul . Isham, Town Attorney
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