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0715 ORdnANCE NO. AN ORDINANCE GRANTING A LICENSE TO ~RICAN COMMUNICATIONS SERVICES OF TEXAS, INC. FOR THE USE OF DESIGNATED R GnT-OV-WAY IN ThE CItY STALLATION OV TELECOMMUNICATIONS EQUIPMENT; PROVIDING FOR COMPENSATION; PROVIDING TERMS AND CONDITIONS OF THE LICENSE; PROVIDING A CUMUI~TIVE CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, American Communications Services of Texas, Inc. ("Licensee") and the City of Southlake ("City") intend to negotiate the terms of a franchise agreement for the use and occupancy of the City's rights-of-way to erect, construct, replace, reconstruct, maintain, and operate a telecommunications system in the City; and WHEREAS, Licensee desires the immediate use of certain public right-of-way in the City for the installation of telecommunications equipment before the grant of a franchise; and WHEREAS, the use of the City's right-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 City's right-of- way and will not be used to provide services within the City; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE: SECTION 1. Grant of use. The city council hereby grants to Licensee, a non-exclusive License to use and occupy a portion of the City's right-of-way for the installation and maintenance of telecommunications equipment, in, across, or under the public right-of-way located as indicated on the attached Exhibit A ("Designated Right-of-Way"). This license does not authorize the installation of equipment or the use of equipment in the right-of-way for the purpose of providing services to customers within the City. SECTION 2. Nonexclusive. Licensee's right to use and occupy the Designated Right-of- Way is not exclusive and is subordinate to the right of the City 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 3. Term. The term of this License begins on the date of acceptance by Licensee and terminates on October 1, 2001, or upon the acceptance by Licensee of a franchise for the operation of a telecommunications system in the City, whichever occurs first. SECTION 4. Compensation to the City. (a) As compensation for the use and occupancy of the public right-of-way, Licensee shall pay to the City an annual payment of $1.00 per linear foot for the length of the Designated Right-of-Way as indicated on Exhibit A. The first annual payment is due and payable within 45 days after the effective date of this License and within 45 days of each anniversary date of this effective date. If not paid within 45 days of each due date, interest shall accrue until paid at the annual rate of 10 percent. (b) 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 assessments, and permit fees. (c) Payments shall be made to the City of Southlake. SECTION 5. Administration of the License. (a) The director of public works is the principal City officer responsible for the administration of this license and shall review the operations of Licensee in the Designated Right-of-Way. (b) Upon reasonable written request by the director of public works, Licensee shall inform the director as to ail 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 to the director of public works, all material changes to Licensee's facilities. (c) Notices required by this License may be given by registered or certified mail deposited in the United States mail in the continental United States, postage prepaid. Either part 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 City shall be delivered to: City Manager City of Southlake 1725 E. Southlake Blvd. Southlake, TX 76092 Until a change is made, notices to Licensee shall be delivered to: General Counsel e. Spire Communications, Inc. 133 National Business Parkway 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 6. City work. If the City 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 pa~e 2 and any of Licensee's installations, Licensee, at its sole expense, shall be responsible for any modifications to its installation or equipment necessitated by the City's work. SECTION 7. Removal of Licensee's equipment. At the time this License is terminated for any reason, if no replacement license or franchise is approved, 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 City 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 8. 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 and satisfactory to the City, against any and all claims for damages to persons or property as a result of or 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 City 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. The policy shall bear an endorsement to the effect that no cancellation will be effective without first giving 30-days' written notice to the City. Licensee shall furnish the City a certificate evidencing this insurance coverage within 30 days of the acceptance 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 City shall have the right to terminate this License. SECTION 9. Indemnity and waiver of claims. (a) LICENSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD THE CITY 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 WITIdlN THE DESIGNATED RIGHT-OF-WAY, OR FROM ANY ACT OR. OMISSION OF ANY REPRESENTATIVE, AGENT, OR EMPLOYEE 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. page (b) Licensee shall not make any claim against the City 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 or sanitary sewer mains, and storm sewer and drainage facilities or by reason of flooding, infiltration, backflow, or seepage caused fi-om the failure of an installation, natural causes, or fi-om any other cause. (c) It is the intention of this indemnity and waiver and a condition of this License, that it shall be full and total indemnity against every claim that may be asserted against the City by reason or as a consequence of having granted permission to Licensee to use and maintain the Designated Right-of- Way. NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION, AS BETWEEN THE CITY AND THE LICENSEE AND WITHOUT WAIVING ANY GOVERNMENTAL IMMUNITY OF THE CITY, LICENSEE SHALL NOT INDEMNIFY THE CITY NOR WAIVE ITS CLAIMS FOR ANY ACTS OF GROSS NEGLIGENCE ON THE PART OF THE CITY. SECTION 10. 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 the necessity of procuring permission fi-om anyone. SECTION 11. License violations. If Licensee fails to comply with any provision of this License, the city council 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 30 days after the Licensee receives written notice fi-om the City of the violation or failure to comply, or fails to take steps to cure the violation or failure to comply within the 30-day period, the city council 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 city council shall not terminate the License. (b) Ifa violation or failure to comply continues at, er the 30-day notice period, the city council may terminate this License by giving the Licensee 15-days' written notice of a public hearing concerning the proposed termination. The Licensee may appear at the public hearing and present its Pag~ ¢ case. After the public hearing, the city council nmy find a violation of or failure to comply with this License and terminate the License. SECTION 12. Venue and governing law. (a) VENUE OF ANY COURT ACTION BROUGHT BY REASON OF THIS LICENSE SHALL BE 1N 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 PART[ES CREATED BY THIS LICENSE ARE PERFORMABLE IN SOUTI-ILAKE, TEXAS. (b) This License is subject to applicable state law and the charter and ordinances of the City as they exist or may be amended. SECTION 1:~. Assignment. Licensee shall not assign this License without prior written approval from the city manager, which will not be unreasonably withheld. An assignment must recite that it is subject to the terms and conditions contained in this ordinance. The assignee shall deliver a copy of the assignment, along with the assignee's written acceptance of the provisions of this ordinance, to the city manager within I0 days of the assignment. SECTION 14. Effective date of License. This License shall not become effective until and unless Licensee files with the city manager a written acceptance of the terms and conditions of this ordinance. If the written acceptance is not filed within 180 days after passage of this ordinance, this License is automatically terminated. SECTION 15. Ordinance cumulative. This ordinance shall be cumulative of all provisions of ordinances and of the Southlake City Code, as amended, except where the provisions of this ordinance are in direct conflict with the provisions of other ordinances and the Code, in which event the conflicting provisions of the other ordinances and the Code are hereby repealed. SECTION 16. Severability. It is hereby declared to be the intention of the city council 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, with the exception of Section 4, the invalidity or unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the city council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 17. Effective date of ordinance. This ordinance shall be in full force and effect from and after its passage, and it is so ordained. ffED AND APPROVED ON 1998. FIRST READING on this /~ day ~ SEC~T~Y of AND APPROVED ON SECOND READING on this t~Z9 day of , 1998. ATTEST: (~ITY SECRETARY APPROVED AS TO FORM AND LEGALITY: Pag~ 6 rr •i, 1 \ -: ( L - - 1 i___, . -, Exhibit A 'i, . ', \ ---- _ _ _ 1/6 Cityof Southlake . Designated Use of ROW .�., 1 by ��1 .. I ui'Uu1 American Communications � 1 f'r is .�, ■■■ moil ' Services of Texas, Inc. L ►�� amid=IMM:I■■i4�m MINIIIM lir Proposed = 111.k ..luengi.■■■■■■ loftlaili , . ��II 111k �� : ' :: Gig Fiber Build •El/.� B rillighlrj.c X1-Nam ...it •w. A .� a a■■ ■1����l..:.i.6,0i.■a:lMumsmum � uff' 1 Legend no 1■■■■■N�__ ...i1somm Ovum-alwakimmilinis EIEEN - ' Southlake Fiber rl �■ ��������411"►I11■�� --��I�IIuI.►R'1111 35,649' ��i���II■rg� ��� ♦ oo�/0�y�� `��11♦����� ll lulIIIII■I ► . em Existing Fiber �0 WI'ma*� Ammo ;1'IR (State ROW) �■4 Wioi`�� ■■Gab Illialing‘t h Orli LI"11=31Mille mm'sp-um-low 4 Imo ow riounownemom = ( ill" swum .8070111.1.11 I ►1111I � l/ ■Mite II ...► ■ .■., - i �� Vo �s rpm:. LOP go:7 "46441111 _ .%= ----,- , ,1_,1111111 ZIA LA. N WY We innisipmtwa .11 1... -- 111111111mTo wow-1:400%II:g glee" tommosimingia.• :�tiiu" riTAliFReititt Itliar4o. IS, 170 11 Caw r �■ IN ...11111111 OM __ IL PIM In IMO IASS • will far PROP Ele4 ll ilf 111.11:1114.1111:11"11.1:1*r. "IIIc ►li.11 g.�� ■�►��1 ��.!►�♦�r�illil ■um a�/ ,� .� r ra, Baa ii��L��►�aa�� :� 1►I��� Lm♦i�� AAS ■::fill, t.#.•itr om. . •el �� +%RAI�7■■■■■■■■�►����•aipi 044101: re a Ii► C rib MEM � is y 11111.1011Mia 41 M 141 1_I - $1 ■- r►incl w ilruG1►��,r:it04 I rammu ■■Boni, ,I=■1■ MU■■ ::Lill►...-_,‘,..mw_.� Aim AM Star-Telegrani FED. I.D. NO. 22-3148254 AD ORDER NO. 13739644 400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 ACCOUNT NO. C I T 57 THE STATE OF TEXAS runty of Tarrant Before me, a Notary Public in and for said County and State, this day Tammie Bryant personally appeared Billing Specialist for the Star-Telegram, published by the Star-Telegram Inc. at Fort Worth, in Tarrant County, Texas; and who, after being duly sworn, did depose and say that the following clipping of an advertisement was published in the above named paper on the following dates: DATE AD ORDER NO. DESCRIPTION AD SIZE IN TOTAL RATE AMOUNT 9/18ME 13739644 NOTICE TO PUBLIC I358 1x 36L 36 . 81 29 . 16 NOTICE TO PUBLIC 0 9/18—0 9/1 8 HEARING Notice is hereby given to all in- terested persons that the City Council of the City of Southlake, will be holding a �__.. ppublic hearing during the o Regular hCity el d Council meeting t be 1998, at 6:00 p.m., in the — - City Council Chambers of City Hall, 667 North Carroll Avenue,Southlake,Texas. Purpose of the hearing is to consider the second reading --- of the following ordinance. --- - -- - -- ----- ORDINANCE NO.715 AN ORDINANCE GRANTING A LICENSE TO AMERICAN COMMUNICATIONS SERVIC, ES OF TEXAS INC.FOR THE USE OF DESIGNATED RIGHT- STALLA I THE CITY FOR IN- C` STALLATION OF TELECOM- MUNICATIONS EQUIPMENT; ROVIDING FOR CDMPENSA- �+ fION; PROVIDING TERMS JIG �� 1ND CONDITIONS OF THE LI- 'ENSE;PROVIDINGACUMU- SEPTEMBER 1998 S CUMU- LATIVE RABILI1YPROAUSE SWORN TO BEFORE ME, THIS THE _ ��J DAY OF AND PROVIDING AN EFFEC- - - t in TDATE. Sandra L.LeGrand City Secretary 'Rv N`� City of Southlake - °-jç .• .`:�4r RHONDA R. GOKE Notary Public _ - -. _... COMMISSION EXPIRES ,4% SEPTEMBER 8, 1999 a TARRANT COUNTY,TEXAS i PLEASE PAY THIS ORIGINAL INVOICE AND RECONCILE WITH MONTHLY STATEMENT. THANK YOU! L.---TEAR ALONG THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT----A, Star-'l'elegrain REMIT TO: 400 W.SEVENTH ST. •FORT WORTH,TEXAS 76102 13739644 UMBER CIT57 AMOUNT 29 . 16 PAGE 01 IF ANY QUESTIONS, PLEASE CALL(817)390-7885 CITY OF SOUTHLAKE 667 N CARROLL AVE PLEASE PAY SOUTHLAKE , TX 76092-9595 THIS AMOUNT 29 . 16 PLEASE WRITE IN AMOUNT ENCLOSED Star-Telegram FED. I.•D. NO. 4 AD ORDER NO. 13955669 400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 ACCOUNT NO. CI T 5 7 THE STATE OF TEXAS ounty of Tarrant Before me, a Notary Public in and for said County and State, this day personally appeared TAMMIE BRYANT Billing Specialist for the Star-Telegram, published by the Star-Telegram Inc. at Fort Worth, in Tarrant County, Texas; and who, after being duly sworn, did depose and say that the following clipping of an advertisement was published in the above named paper on the following dates: DATE AD ORDER NO. DESCRIPTION AD SIZE TOTAL INCH/LINE RATE AMOUNT 10/24ME 13955669 CITY OF SOUTHLAK I358 1x 30L 30 QUOTE 22 . 68 CITY OF SOUTHLAKE, 10/2 4-10/2 4 TEXAS ORDINANCE NO.715 AN ORDINANCE GRANTING A LIC TO OANG AMERICAN ._... COMMUNICATIONS SERVIC- ES OF TEXAS INC.FOR THE --- ---_- _- _-- USE OF DESIGNATED RIGHT- OF-WAY IN THE CITY FOR IN- STALLATION OF TELECOM- -- MUNICATIONS EQpUIPMENT; _._. _.... PROVIDING FOR COMPENSA- TION; PROVIDING TERMS AND CONDITIONS OF THE LI- CENSE;PROVIDING A CUMU- LATIVE CLAUSE. PROVIDING - - ---- ---- -- A SEVERABILIIY CLAUSE; AND PROVIDING AN EFFEC- TIVE DATE. PASSED AND APPROVED ON THE 20th DAY OF OCTOBER, 1998, DURING THE REGU- LAR CITY COUNCIL MEET- ING. ',IAYOR RICK STACY kTTEST:SANDRA L. S I EGRAND CITY SECRETARY 1PPROVED AS TO FORM: ALLEN TAYLOR JR., SUtS Y ATTORNEY i I U ANU-SWORN TO BEFORE ME, THIS THE _26th DAY OF 11OCTOB/ER 98 1..�.�' 1n .,1y� A A 10. p` Notary Public '\c/ \k--6 1l.A.A-. � `' RHONDA R. GOKE #f . COMMISSION EXPIRES "r/ '+�� SEPTEMBER 8, 1999 TARRANT COUNTY,TEXAS 1'��._nnF�-_ PLEASE PAY THIS ORIGINAL INVOICE AND RECONCILE WITH MONTHLY STATEMENT. THANK YOU! TEAR ALONG THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT-i Star-"I'elegraiTl REMIT TO: 400 W.SEVENTH ST. •FORT WORTH,TEXAS 76102 13955669 ACCOUNT C I T 5 7 AMOUNT 22 . 68 NUMBER DUE PAGE1 011 IF ANY QUESTIONS, PLEASE CALL(817)390-7885 NOV 1 31998 CITY OF SOUTHLAKE �� —� 667 N CARROLL AVE PLEASE PAY SOUTHLAKE , TX 76092-9595 THIS AMOUNT 22 . 68 PLEASE WRITE IN AMOUNT ENCLOSED