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Ord 028-2003 4/1/2003s ORDINANCE NO. 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 INDIAN NATIONS FIBEROPTICS, 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, Indian Nations Fiberoptics, Inc., hereafter referred to as "Indian Nations," 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 Indian Nations is willing to accept the license hereby granted on a compromise basis without waiving any rights it may have under Chapter 181 of the TEXAS UTILITIES CODE; and, WHEREAS, the City Council of the City of Wichita Falls has determined, without waiving any rights it may have under Chapter 181 of the TEXAS UTILITIES CODE, that Indian Nations 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 Indian Nations and accepted by Indian Nations as noted above, subject to the following terms and conditions. ARTICLE 1. PURPOSE: That the City of Wichita Falls (hereinafter "City ") hereby grants to Indian Nations, 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 Indian Nations 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, Indian Nations 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. Indian Nations shall promptly restore all public right -of -way excavated or disturbed by Indian Nations to substantially the same condition as before such excavation, in accordance with the requirements of the City. C. Except in an emergency, Indian Nations 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 Indian Nations to remove or abate any facility that is recognized to be dangerous to life or property, and in case Indian Nations, after notice, fails or refuses to comply, the City shall have the power to remove or abate same at the expense of Indian Nations, all without compensation or liability for damages to Indian Nations. E. Upon request by the City Engineer, Indian Nations 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 Indian Nations, 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 Indian Nations for any damage so caused, nor shall the City be liable to Indian Nations 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 Indian Nations 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, Indian Nations 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 Indian Nations, Indian Nations shall have the right to present alternative proposals for the City's consideration. If the City requires Indian Nations 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, Indian Nations shall not be required to make any such changes until such other corporation or person shall have undertaken with solvent bond to reimburse Indian Nations for any loss and expense which will be caused by or arise out of such removal, alteration, change, adaptation or conformance of Indian Nations 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 Indian Nations 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 Indian Nations, any conveyance of land contained in such closed or abandoned street, alley, highway or public place shall be subject to the rights of Indian Nations 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 Indian Nations 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 Indian Nations' 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 Indian Nations' interest and the City's interest. The City shall make a diligent effort to notify Indian Nations 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. Indian Nations 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, 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 Indian Nations' 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. Indian Nations 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 Indian Nations 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 Indian Nations. 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: Indian Nations Fiberoptics, Inc. 124 West Vinita P. O. Box 460 Sulphur, Oklahoma 73086 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 Indian Nations represents the lease value of the public right -of -way five foot in width to be used by Indian Nations 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 Indian Nations 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 Indian Nations 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 Indian Nations, 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 Indian Nations 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 Indian Nations hereunder, and (ii) is bound to the same extent as Indian Nations 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. Indian Nations, 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 - Indian Nations company; provided that Indian Nations 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 Indian Nations retains responsibility for servicing and repairing the facilities of its system. Notwithstanding the foregoing, Indian Nations will not lease any conduit space in the system to any non - Indian Nations 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 Indian Nations 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 Indian Nations 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. 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