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HomeMy WebLinkAbout1996-019ORDINANCE NO. 426 - AN ORDINANCE PERMITTING AND REGULATING THE CONSTRUCTION, MAINTE- NANCE AND USE OF A LONG DISTANCE TELECOMMUNICATIONS SYSTEM BY WORLDCOM NETWORK SERVICES, INC. ACROSS, OVER AND UNDER CERTAIN HIGHWAYS AND PUBLIC RIGHTS -OF -WAY OF THE CITY OF DENTON; PROVIDING FOR A SEVERABILITY CLAUSE; MAKING THIS ORDINANCE CUMULATIVE OF PRIOR ORDINANCES AND REPEALING ALL PRIOR ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, WorldCom Network Services, Inc., a Delaware corporation, hereinafter "WorldCom" desires use of certain public rights -of -way within the City of Denton for the purposes set forth below pursuant to the provisions of the laws of the State of Texas, including, but not limited to, Article 1416 V.A.C.S.; and WHEREAS, the City Council has determined that it is appropri- ate to grant the following license to WorldCom; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS: SECTION I. That the City of Denton (hereinafter the "City") hereby grants to WorldCom and its successors and assigns, for the full term of twenty-five (25) years commencing January 1, 1996, a license to acquire, erect, construct, replace, reconstruct, maintain, use and operate in, over, under, along and across certain streets of the City (hereinafter the "public right-of-way") all necessary or desirable wires, cables, underground conduits, man- holes or other structures or appurtenances (hereby the "facility" or "facilities") in connection with a long distance telecommunications system or systems (not including cable televi- sion, local exchange telephone service, and intra-LATH services for video dial tone, vsdeo common carriage services or personal communications services) that provides long distance tele- communications service (hereinafter the "system"), subject to the provisions of this ordinance. The only public right-of-way which WorldCom shall use pursuant to this ordinance shall be that portion of the City street system extending for a length of approximately nine thousand eight hundred eighty-two (9,882) feet. The route is shown on Exhibit "A" attached hereto and incorporated herein for all purposes incident hereto. SECTION II. The work done by WorldCom in erecting, construct- ing, replacing, reconstructing, maintaining or repairing the system shall be subject to and governed by all laws, rules and regulations of the City and State of Texas that are applicable to insuring the work done does not inconvenience the public in the use of the pub- lic right-of-way, including but not limited to the following- A Prior to construction of any significant changes to the system which will require any digging, cutting or any other such disruption of City right-of-way or City prop- erty after the effective date of this ordinance, WorldCom shall submit engineering plans to the City for review and approval, pursuant to the standards generally applicable to requests for the privilege to use the public right-of- way, including the City,s utility location and coordina- tion policy Approval of such plans will not be unreason- ably delayed, withheld or denied by the City B All excavations and other construction in the streets shall be so carried out as to interfere as little as prac- ticable with the surface use of the streets and sidewalks and with the surface use of private property, in accord- ance 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 neces- sary to provide for public convenience WorldCom shall promptly restore all public right-of-way excavated by WorldCom to substantially the same condition as before such excavation and to the reasonable satisfaction of the City WorldCom shall comply with all other construction requirements of the City and its Directors of Transportation/Public Works and/or Utilities Departments with respect to hours of construction operations in peak - busy traffic hours, barricading requirements and/or any other reasonable construction rules which may be lawfully promulgated C Except in an emergency, WorldCom shall not excavate 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, but such permission shall not be unreasonably delayed, withheld or denied if the pro- posed excavation is in accordance with the terms of this ordinance The City shall be notified as soon as practi- cable regarding work performed under emergency conditions D The City shall have the power at any time to order and require WorldCom to remove or abate any facility that is dangerous to life or property, and in case WorldCom, after written notice, fails or refuses to comply within a reasonable period of time, the City shall have the power to remove or abate same at the expense of WorldCom, all without compensation or liability for damages to WorldCom SECTION III The City reserves the right, subject to further conditions described in this paragraph, to lay and permit to be laid sewer, gas, water and other pipelines or cables and conduits and to do and permit to be done any underground and overhead in- stallation or improvement that may be deemed necessary or proper by the governing body of the City of Denton in, across, along, over or under any public right-of-way occupied by WorldCom to change any curb or side -walk or the grade of any street, provided, the City PAGE 2 agrees to utilize the "One Call System" or other system designed for notification to utilities and others utilizing the right of way prior to conducting any such activities In permitting such work to be done, the City shall not be liable to WorldCom for any damages so caused, nor shall the City be liable to WorldCom for any damages arising out of the performance of said work by the City or its licensees, invitees, contractors or subcontractors, provided, however, nothing herein shall relieve any other person or corporation from liability for damage to the facil- ities of the system If the City requires WorldCom to remove, alter, change, adapt or conform its facilities because of changes in the grade of a street or in the location or manner of construct- ing a water pipe, sewer pipe or other underground or aboveground structure owned by the City, WorldCom shall make the alterations or changes as soon as practicable when ordered in writing by the City, without claim for reimbursement or damages against the City If these requirements impose a financial hardship upon WorldCom, WorldCom shall have the right to present alternative proposals for the City' s consideration If the City requires WorldCom to remove, alter, change, adapt or conform its facilities installed hereunder to enable the City, to use, or to use with greater convenience, such public right-of-way, then City shall not be liable for any reimbursement, loss and expense which will be caused by, or arise out of, such removal, alteration, change, adaptation or conformance of WorldCom's facilities SECTION IV In the event that the governing body of the City of Denton authorizes abutting landowners to occupy space under the surface of any public right-of-way after the adoption of this ordinance, such grant to abutting landowners shall be subject to the prior rights of WorldCom described in this ordnance SECTION V In the event that the governing body of the City of Denton closes or abandons any public right-of-way which contains the facilities of WorldCom installed hereunder, any conveyance of land contained in such closed or abandoned street, alley, highway or public place shall be subject to the rights of WorldCom described in this ordinance In the event that any portion of the public right-of-way that includes facilities of the system become the subject of condemnation proceedings, it is agreed that WorldCom'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 WorldCom's interest and the City's interest The City shall notify WorldCom 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 SECTION VI WorldCom shall indemnify and save and hold harm- less the City and all of its officers, agents and employees from all suits, actions or claims of any character, style and descrip- tion, brought for or on account of any injuries or damages, inclu- ding death, received or sustained by any person or any property PAGE 3 occasioned by, or arising out of or in connection with, the erection, construction, location, replacement, reconstruction, repair, maintenance or operation of WorldCom's system, and WorldCom will be required to pay any judgment with costs which may be obtained against the City arising out of such injury or damage, provided, however, that the City shall notify WorldCom of any pending action or suit which may affect WorldCom under the terms of this agreement SECTION VII The governing body of the City of Denton and its City Manager shall have the right to be kept fully informed as to matters pertaining in any way to WorldCom's exercise of its rights under this ordinance, including the erection, construction, location, replacement, reconstruction, maintenance, repair or operation of the facilities of the system in Denton WorldCom shall provide to the City complete and accurate "as -built" drawings describing the location of facilities of the system in Denton The "as -built" drawings 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 "as -built" drawings required by this ordinance shall be provided to the City WorldCom shall fully cooperate making available its "as -built" drawings SECTION VIII Any notice or communication required in the administration of this ordinance shall be sent as follows with copy to City Secretary Denton City Hall 215 E McKinney Denton, TX 76201 City Manager Denton City Hall 215 E McKinney Denton, Texas 76201 Notice to WorldCom Network Services, Inc WorldCom Network Services, Inc 2600 Bank of Oklahoma Tower Attn Right -of -Way Department Tulsa, OK 74172 will be to PAGE 4 with copy to Estill, Hardwick, Gable, Golden & Nelson 320 South Boston Avenue, Suite 400 Tulsa, Oklahoma 74103-3708 or to such other address as may designate from time to time by written notice SECTION IX A WorldCom shall make an initial one time payment of $10,000 for the privilege granted hereunder, payable as set forth below WorldCom shall make twenty-five (25) annual payments beginning on or before January 1 of each of the next twenty-five (25) years at the rate of not less than $1 15 per linear foot of City -owned right-of-way used per year (a distance of 9,882 feet as shown on Exhibit "A" attached to this ordinance), as determined from the "as - built" drawings to be provided by WorldCom to the City in accordance with Section I of this ordinance The above fees shall be adjusted on a percentage basis and proportionally to the percentage change in the Implicit Price Deflator for Gross National Product as determined by the Federal Reserve Bank of St Louis, at one (1) year intervals during the course of this ordinance WorldCom shall be notified of the adjustment forty-five (45) days prior to the date said fee is due under this ordinance The base for the adjustment shall be the implicit Price Deflator for Gross National Product as determined by the Federal Reserve bank of St Louis reported for the first quarter of the calendar year in which the annual payment is due This ordinance is intended to grant use of the public right-of-way only in connection with the uses prescribed hereunder 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 for public improvements except as hereinafter provided B The initial one time fee of Ten Thousand dollars ($10,000 00) shall be paid to the City of Denton within thirty (30) days after the effective date of this ordinance The twenty-five annual payments shall be made on or before January 1 of each year of the twenty-five year license beginning on January 1, 1996 The fee is payable to "City of Denton" and shall be directed or delivered to the Executive Director of Finance C The fee established in Section 9A hereof shall not be affected by any relocation of WorldCom facilities required by the City pursuant to this ordinance PAGE 5 SECTION X The rights granted by this ordinance inure to the benefit of WorldCom, and any parent, subsidiary, affiliated 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 Denton, except WorldCom may assign its rights under this ordinance to a parent, subsidiary, affiliate or successor entity without such consent, so long as (1) such parent, subsidiary, affiliate or successor assumes substantially all of the obligations of WorldCom hereunder, and (ii) is bound to the same extent as WorldCom hereunder Such consent shall not be capriciously or unreasonably withheld, delayed or conditioned 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 SECTION XI WorldCom, without the consent of the City, shall not lease any of the public right-of-way it uses in connection with its system, to any non-WorldCom company, provided that WorldCom 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 WorldCom retains responsibility for servicing and repairing the facilities of its system Notwithstanding the foregoing, WorldCom will not lease any conduit space in the system to any non-WorldCom company for the placement of any additional cable without the express written consent of the City which consent shall not be unreasonably withheld or delayed SECTION XII WorldCom has the option to renew this license for an additional twenty-five (25) year period upon 180 days written notice prior to termination of the original license The renewal of this license is contingent upon WorldCom and City mutually agreeing to the amount of the annual payment during the option period Such annual payment shall not exceed the charge that other licensees are remitting to City for similar right of way uses SECTION XIII The Director of Public Works or his duly authorized representative is the principal City official responsible for the administration of this ordinance, and WorldCom recognizes that questions regarding the interpretation or application of this ordinance shall be raised initially with that designated official SECTION XIV This ordinance shall be cumulative of all provi- sions of ordinances and of the Code of the City of Denton, Texas, as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed SECTION XV It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and, if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared • .M unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such 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 XVI The City Secretary of the City of Denton is hereby directed to engross and enroll this ordinance as required by law SECTION XVII This ordinance shall take effect and be in full force and effect from and after its passage, and it is so ordained PASSED AND APPROVED this the a3 a day of 1996 ATTEST JENNIFER WALTERS, CITY SECRETARY BY 4 44L APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY Accepted WORLDCOM NETWORK ES, INC 0-9 Title �)(H:O ESllll i PAGE 7 d ara. r y\YO � MLx a®o:]= onr- M� Cxq.xu i EXHIBIT "A"