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Ord 109-96 7/16/1996ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, PERMITTING AND REGULATING THE CONSTRUCTION, MAINTENANCE AND USE OF A LONG DISTANCE TELECOMMUNICATIONS SYSTEM BY COMCELL, INC., ACROSS, OVER AND UNDER CERTAIN STREETS AND PUBLIC RIGHTS -OF- WAY OF THE CITY OF WICHITA FALLS; PROVIDING FOR PUBLICATION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, Comcell, Inc., hereafter referred to as "Comcell," desires use of certain public rights -of -way within the City of Wichita Falls for the purposes set forth below pursuant to the provisions of the laws of the State of Texas, and Comcell is willing to accept the license hereby granted on a compromise basis without waiving any rights it may have under Article 1416, V.A.C.S.; and, WHEREAS, the City Council of the City of Wichita Falls has determined, without waiving any rights it may have under Article 1422, V.A.C.S., that Comcell is entitled to a license authorizing the use of public rights -of -way for a period of fifteen (15) years in accordance herewith for the installation and use of a long - distance telecommunications system; and, WHEREAS, the City Council of the City of Wichita Falls hereby finds that the proposed use of the public streets and rights -of -way for such purpose is in the public interest and that such license should be granted. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS: SECTION 1. A license for the use of certain streets and rights -of -way of the City of Wichita Falls is granted to Comcell and accepted by Comcell as noted above, subject to the following terms and conditions. ARTICLE 1. PURPOSE: That the City of Wichita Falls (hereinafter "City ") hereby grants to Comcell, and its successors and assigns, a license to acquire, erect, construct, replace, reconstruct, maintain, use, and operate in, over, under, along, and across certain streets, highways, alleys, bridges, and public ways of the City (hereinafter the N "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 system or systems not including cable television or local exchange telephone service (hereinafter the "system "), subject to the provisions of this ordinance. This ordinance is written to authorize a license for the installation of a fiber -optic cable system in accordance with plans to be submitted and approved by the City Engineer. ARTICLE 2. REGULATION OF CONSTRUCTION: The work done by Comcell in installing, constructing, replacing, reconstructing, maintaining, or repairing the system shall be subject to and governed by all laws, rules, and regulations of the City and the State of Texas, that are applicable to insuring the work done does not inconvenience the public in the use of the public right -of -way, including, but not limited to, the following: A. Prior to installation or construction of any significant changes to the system which would require excavation or for other such disturbances of the right - of -way after the effective date of this ordinance, Comcell shall submit engineering plans to the City Engineer for review and approval, pursuant to the standards generally applicable to requests for licenses to use the public right -of -way. Approval of such plans will not be unreasonably delayed, withheld, or denied by the City, but the City shall have the right to determine both the location and depth (if underground) within the public right -of -way where facilities may be placed. B. All excavations and other construction in the streets shall be so carried out as to interfere as little as practical 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. Comcell shall promptly restore all public right -of -way excavated or disturbed by Comcell to substantially the same condition as before such excavation and to the reasonable satisfaction of the City. C. Except in an emergency, Comcell shall not excavate or disturb any pavement in any public right -of -way or significant amounts of any unpaved public right -of -way without first securing the permission of the City Engineer. Such permission shall not be unreasonably delayed, withheld or denied if the proposed excavation or disturbance is in accordance with the terms of this ordinance. The City Engineer shall be notified as soon as practicable regarding work performed under emergency conditions. 3 D. The City shall have the power at any time to order and require Comcell to remove or abate any facility that is recognized to be dangerous to life or property, and in case Comcell, after notice, fails or refuses to comply, the City shall have the power to remove or abate same at the expense of Comcell, all without compensation or liability for damages to Comcell. E. Upon request by the City Engineer, Comcell shall promptly locate for the City its fiber -optic cable or other facilities within the public right -of -way. ARTICLE 3. WORK BY OTHERS: The City reserves the right, subject to further conditions described in this paragraph, to lay and permit to be laid, storm sewer, sanitary sewer, gas, water, and other pipelines or cable or 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 Comcell, 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 Comcell for any damage so caused, nor shall the City be liable to Comcell for any damages arising out of the performance by the City or its contractors or subcontractors, not willfully and unnecessarily occasioned; 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 Comcell to relocate, alter, change, adjust, or conform its facilities because of changes in 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, Comcell shall make the required alterations or changes as soon as practicable when ordered in writing by the City Engineer without claim for reimbursement or damages against the City. If these requirements impose a financial hardship upon Comcell, Comcell shall have the right to present alternative proposals for the City's consideration. If the City requires Comcell to remove, alter, change, adapt or conform its facilities to enable any other corporation or person, except the City, to use, or to use with greater convenience, any public right -of -way, Comcell shall not be required to make any such changes until such other corporation or person shall have undertaken with solvent bond to reimburse Comcell for any loss and expense which will be caused by or arise out of such removal, alteration, change, adaptation or conformance of Comcell facilities; provided, however, the City shall never be liable for such reimbursement. n ARTICLE 4. CONSTRUCTION BY ABUTTING OWNERS: In the event the governing body of the City authorizes abutting landowners to occupy space under the surface of any public right -of -way after the date of this license, such grant to abutting landowners shall be subject to the rights of Comcell described in this ordinance. ARTICLE 5. RIGHTS IN THE EVENT OF ABANDONMENT: In the event the governing body of the City closes or abandons any public right -of -way which contains any existing facilities of Comcell, any conveyance of land contained in such closed or abandoned street, alley, highway or public place shall be subject to the rights of Comcell described in this ordinance. If such street closure is initiated by the City for a public improvement project, as described in Article 3, City shall have the right under Article 3 hereof to require Comcell to relocate its facilities at no expense to the City. 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 Comcell's property rights and interest in 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 Comcell's interest and the City's interest. The City shall make a diligent effort to notify Comcell within a reasonable time of any condemnation action (or threatened action) filed against the public right -of -way that affects any facility of the system, or any proposed sale in lieu of condemnation. ARTICLE 6. INDEMNITY: Comcell shall indemnify and save 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 received or sustained by any person or any property occasioned by, or arising out of, the erection, construction, replacement, reconstruction, maintenance, or repair of the system in the City; and Comcell will be required to pay any judgment with costs, which may be obtained against the City arising out of such injury or damage. ARTICLE 7. RECORDS: The City Manager of the City of Wichita Falls, his Assistant City Manager, and his Director of Public Works shall have the right to be kept fully informed as to matters pertaining in any way to Comcell's exercise of its rights under this 5 ordinance, including the installation, construction, replacement, reconstruction, maintenance, and repair of the facilities of its system in Wichita Falls. Comcell shall keep complete and accurate maps, construction drawings and specifications describing the location of facilities of its system in Wichita Falls. Maps, construction drawings and specifications kept by Comcell in 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 by Comcell. The City shall have the right, at reasonable times and for reasonable purposes, to inspect such maps, construction drawings and specifications for inspection. ARTICLE 8. NOTI E: Any notice or communication required in the administration of this ordinance shall be sent as follows: Comcell, Inc. P. 0. Box 260 Highway 281 Windthorst, Texas 76389 Assistant City Manager 1300 Seventh Street P. 0. Box 1431 Wichita Falls, Texas 76307 Director of Public Works 1300 Seventh Street P. 0. Box 1431 Wichita Falls, Texas 76307 ARTICLE 9. FEE: A. A fee of 460 per linear foot of City right -of -way utilized by Comcell represents the lease value of the public right -of -way five foot in width to be used by Comcell for the construction of new facilities. Any use of public right -of -way other than that in connection with the construction of facilities described in plans to be provided by Comcell to the City is not authorized by this ordinance. The fee payment shall be exclusive of and in addition to all general municipal taxes of whatever nature, including but not limited to ad valorem taxes, sales taxes, and 6 special taxes and assessments for public improvements except as hereinafter provided. B. The fee shall be paid to the City of Wichita Falls within thirty (30) days after the effective date of this ordinance. The fee is payable to the "City of Wichita Falls" and shall be delivered to the City's Director of Public Works. C. The fee established in Article 9A hereof shall not be affected by any relocation of Comcell facilities required by the City pursuant to Article 3 of this ordinance. ARTICLE 10. ASSIGNMENT: The rights granted by this ordinance inure to the benefit of Comcell, 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 Wichita Falls, except Comcell may assign its rights under this ordinance to a parent, subsidiary, affiliate or successor entity without such consent, so long as (i) such parent, subsidiary, affiliate or successor assumes all obligations of Comcell hereunder, and (ii) is bound to the same extent as Comcell hereunder. 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. ARTICLE 11. LEASING OR DEDICATION OF FACILITIES: Comcell, without the consent of the City, shall not sublease any of the public right -of -way it uses in connection with its system to any non - Comcell company; provided that Comcell shall have the right to lease or dedicate its system or any portion thereof, or otherwise make available facilities of the system to other companies in the ordinary conduct of its business as a long- distance telecommunications company, so long as Comcell retains responsibility for servicing and repairing the facilities of its system. Notwithstanding the foregoing, Comcell will not lease any conduit space in the system to any non - Comcell company for the placement of any additional cable without the written consent of the City. ARTICLE 12. MISCELLANEOUS: The Director of Public Works is the principal City official responsible for the administration of this ordinance, and Comcell recognizes that questions regarding the interpretation or application of this ordinance shall be raised initially with said Director of Public Works. ARTICLE 13. ROUTE OF PERMIT: The route of the facility for which this permit is granted shall begin at the point where Hammon Road enters the southeast City limits, thence northerly along Hammon Road to U.S. Business 287 and 82 and State Highway 240, thence northwesterly along East Scott Street to State Highway 240, thence northwesterly along State Highway 240 to Seventh Street, thence southwesterly along Seventh Street to Lamar Street. SECTION 2. It is hereby found and determined that the meeting at which this ordained was passed was open to the public as required by law. PASSED AND APPROVED this the 16th day of July, 1996. ATTEST: City Clerk COMCELL, INC. By: ORDINANCE NO. 108-96 ORDINANCE AUTHORIZ- ING THE ISSUANCE AND SALE OF CITY OF WICHI- TA FALLS, TEXAS WA- 1 TER AND S E W E R �D, SYSTEM SUBORDINATE r C LIEN REVENUE BONDS, we) SERIES 1996; AUTHORIZ- ING THE EXECUTION OF A PAYING AGENT/ REGISTRAR AGREE- MENT; AND AUTHORIZ- ING OTHER MATTERS RELATEDTHERETO. ORDINANCE NO.109 -96 AN ORDINANCE OF THE CITY COUNCIL OF THE C I T Y OF W I C H I T A FALLS, TEXAS, PERMIT- TING AND REGULATING CONSTRUCTION, MAIN- TENANCE AND USE OF A LONG DISTANCE TELE- COMMUNICATIONS SYS- TEM BY COMCELL, INC., ACROSS, OVER AND UN- DER CERTAIN STREETS AND PUBLIC RIGHTS -OF- WAY OF THE CITY OF WICHITA FALLS; PRO- VIDING FOR PUBLICA- TION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS RE- QUIRED BY LAW ORDINANCE NO. 110-96 ORDINANCE WAIVING APPENDIX A, SUBDIVI- SION SECTION 9 (B) (2) (a) OF THE CODE OF OR- �; DINANCES WITH RE- SPECT TO PLACING LL CURB AND GUTTER ON THE EAST SIDE OF STESCO AVENUE AND THE NORTH SIDE OF u STATE HIGHWAY 79 AD- JACENT TO THE WEST AND SOUTH LINES OF LOT 1, BLOCK 56 -B, EAST. SIDE GARDENS ORDINANCE NO. 111.96 ORDINANCE WAIVING SECTION 27 -30 OF THE CODE OF ORDINANCES WITH RESPECT TO PLACING A SIDEWALK ON THE EAST SIDE OF STESCO AVENUE AND THE NORTH SIDE OF STATE HIGHWAY 79 AD- JACENT TO THE WEST AND SOUTH LINES OF LOT 1, BLOCK 56 -B, EAST. SIDE GARDENS Affidavit of Publication THE STATE OF TEXAS COUNTY OF WICHITA Ad #234510 On this 13 t h day of August 1996 A.D............. personally appeared before me, the undersigned authority Mary E. Newell bookkeeper for the Times Publishing Company of Wichita Falls, publishers of the Wichita Falls Times/Record News, a newspaper published at Wichita Falls in Wichita County, Texas, and upon being duly sworn by me, on oath states that the attached advertisement is a true and correct copy of advertising published in one (1) issues thereof on the following dates: Auguste'', 1996 !r Bookkeeper for i es Publishing Company of Wichita Falls Subscribed and sworn to before me this the day and year first above written: i