Ord 088-2000 9/5/2000• ' � � • V1'� _tilt_
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 WILLIAMS
COMMUNICATIONS, INC., D /B /A VYVX, INC. IN TEXAS, 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, Williams Communication, Inc., d /b /a Vyvx, Inc. in Texas, hereafter
referred to as "Vyvx," 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 Vyvx 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 Vyvx 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, THAT:
SECTION 1. A license for the use of certain streets and rights -of -way of the City
of Wichita Falls is granted to Vyvx and accepted by Vyvx as noted above, subject to the
following terms and conditions.
ARTICLE 1. PURPOSE:
That the City of Wichita Falls (hereinafter "City ") hereby grants to Vyvx, 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 "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 Vyvx 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 any installation or construction within the city limits of the City of
Wichita Falls, Vyvx shall submit engineering plans, sealed by a Professional Engineer
licensed in the State of Texas, to the City Engineer for review and approval as
appropriate. Such plans shall include plan (V = 20') and profile (V = 5') of all public
right -of -way and /or public easement crossings which contain municipal utilities.
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 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.
Vyvx shall promptly restore all public right -of -way excavated or disturbed by Vyvx to
substantially the same condition as before such excavation, in accordance with the
requirements of the City.
C. Except in an emergency, Vyvx 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 a permit from 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.
D. The City shall have the power at any time to order and require Vyvx to remove
or abate any facility that is recognized to be dangerous to life or property, and in case
Vyvx, after notice, fails or refuses to comply, the City shall have the power to remove or
abate same at the expense of Vyvx, all without compensation or liability for damages to
Vyvx.
E. Upon request by the City Engineer, Vyvx 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 Vyvx, 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 Vyvx for any damage so
caused, nor shall the City be liable to Vyvx 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 Vyvx 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,
Vyvx 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 Vyvx, Vyvx
shall have the right to present alternative proposals for the City's consideration. If the
City requires Vyvx to remove, alter, change, adapt or confirm 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, Vyvx shall not be required to make any such changes until such
other corporation or person shall have undertaken with solvent bond to reimburse Vyvx
for any loss and expense which will be caused by or arise out of such removal,
alteration, change, adaptation or conformance of Vyvx facilities; provided, however, the
City shall never be liable for such reimbursement.
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 Vyvx 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 Vyvx, any conveyance of land contained
in such closed or abandoned street, alley, highway or public place shall be subject to
the rights of Vyvx 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 Vyvx 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 Vyvx'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 Vyvx's interest and the City's interest. The City shall make a diligent
effort to notify Vyvx 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. INSURANCE REQUIREMENTS.
Vyvx shall maintain public liability insurance in the amount of not less than $1
million per occurrence. Such insurance, a copy of which shall be furnished to the City
Clerk, shall be in effect for the duration of this agreement.
ARTICLE 7. RECORDS.
The City Manager of the City of Wichita Falls, the Assistant City Manager, and
the Director of Public Works shall have the right to be kept fully informed as to matters
pertaining in any way to Vyvx's exercise of its rights under this ordinance, including the
installation, construction, replacement, reconstruction, maintenance, and repair of the
facilities of its system in Wichita Falls. Vyvx 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 Vyvx 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 Vyvx. 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. NOTICE.
Any notice or communication required in the administration of this ordinance
shall be sent as follows:
Williams Communication, Inc., d /b /a Vyvx, Inc. in Texas
8410 Avenue X
Lubbock, Texas 79423
Assistant City Manager
1300 Seventh Street
P. O. Box 1431
Wichita Falls, Texas 76307
Director of Public Works
1300 Seventh Street
P. O. Box 1431
Wichita Falls, Texas 76307
ARTICLE 9. FEE.
A. A fee of $1.00 per linear foot of City right -of -way utilized by Vyvx represents
the lease value of the public right -of -way five foot in width to be used by Vyvx for the
construction of new facilities, which shall be limited to the installation of one conduit and
necessary appurtenances. Any use of public right -of -way other than that in connection
with the construction of facilities described in plans to be provided by Vyvx 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 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 Vyvx 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 Vyvx, 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 Vyvx 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 Vyvx hereunder, and (ii) is
bound tot he same extent as Vyvx 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.
Vyvx, 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 -Vyvx company; provided that
Vyvx 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
Vyvx retains responsibility for servicing and repairing the facilities of its system.
Notwithstanding the foregoing, Vyvx will not lease any conduit space in the system to
any non -Vyvx 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 Vyvx 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.
Attached hereto and made a part hereof is Exhibit "A," which identifies the right -
of -way locations within which Vyvx intends to install its fiber cable.
SECTION 2. It is hereby officially found and determined that the meeting at
which this ordinance was passed was open to the public as required by law.
Williams Communication, Inc., d /b /a Vyvx, Inc., in Texas, hereby accepts this permit to
conduct telecommunication services within the City of Wichita Falls, in accordance with
the terms and conditions of this ordinance, and authorizes the undersigned duly
authorized officer of the limited partnership to execute such acceptance on this
day of , 2000.
Title:
Attest:
Williams Communications, Inc., d /b /a
Vyvx, Inc. in Texas
STATE OF §
COUNTY OF §
This instrument was executed before
2000, by
me on this
day of
for Williams Communications, Inc.,
d /b /a Vyvx Inc. in Texas, on behalf of said corporation.
Notary Public, State of
PASSED AND APPROVED this the 5th day of September 2000.
AYOR
ATTEST:
City Clerk