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HomeMy WebLinkAboutOrd 319 Granting a license to E.spire Communications, Inc. for use of public right-of-way ORDINANCE NO. 319 AN ORDINANCE OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, GRANTING A LICENSE TO E.SPIRE COMMUNICATIONS, INC. 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, e.spire Communications, Inc., LLC ("Licensee") desires the use of certain public rights-of-way along Kirkwood Boulevard, Sam School Road, Precinct Line Road, Dove Road east of its intersection with Precinct Line Road, and Randol Mill Road in the Town for the installation of fiber cable in order to provide a telecommunications network; 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 I: Grant of Use. The Board of Aldermen hereby grants to e.spire Communications, Inc., Licensee, anon-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 Kirkwood Boulevard, Sam School Road, Precinct Line Road, Dove Road east of its intersection with Precinct Line 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. The telecommunications equipment and network shall be placed underground unless Licensee can provide evidence to the Town that surplus space is available on existing utility poles. SECHON2. 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 Ordinance No. 319 Page 2 payment of$1.50 per linear foot of right-of-way used.- 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 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 5: 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 Ordinance No. 314 Page 3 the Town a certificate evidencing this insurance coverage within 34 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. 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-of-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. SECTION9: 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. Ordinance No. 319 Page 4 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: (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 Ordinance No. 319 Page 5 With a copy to: Paul C. Isham Town Attorney 1408 W. Abram, Suite 209 Arlington, Texas 76013 Until a change is made, notices to the Licensee shall be delivered to: General Counsel e.spire Communications, Inc. 133 National Business Pkwy. Suite 200 Annapolis Junction, MD 20701 With copy to: D'Juan Hernandez Attorney e.spire Communications, Inc. 1250 Poydras Street, Suite 500 New Orleans, LA 70113 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 76262, 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 16: 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. Ordinance No. 319 Page 6 SEC27ON 17: 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 14T"DAY OF DECEMBER, 1998. 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