1996-019A/~ ORDINA/~CE pERMITTING AND REGU--~ATING THE CONSTRUCTION, MAINTE-
NANCE AND USE OF A LONG DISTANCE TELECOMMUNICATIONS SYSTEM BY
WORLDCOM NETWOI~K SEI~VICES~ 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 ENGROSSMENTAND 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 deter~inedthat it xs appropri-
ate to grant the following license to WorldCom; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS:
~ That the City of Denton (hereinafter the "C~ty")
hereby grants to WorldCom and its successors and assigns, for the
full term of twenty-five (25) years col0mencAng January 1, 1996, a
license to acquire, erect, construct, replace, reconstruct,
~alntaln, 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 d~stance
telecom~unications system or systems (not including cable televi-
sIon, local exchange telephone service, and intra-LATA services for
v~deo d~al tone, v~eo e~mon ~axriage services or personal
co~unl=atione 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 Clty street system e)Ccending 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.
~ Yhe work done by WorldCom in erecting, construct-
lng, replacing, reconst~otLng, malntai~lng or repalrlngthe system
shall be sub]eot 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 inconYenz~nce the public in the use of the pub-
11c right-of-way, lncludxng but not limited to the following'
A Prmor to constructmon of any signmfmcant changes to the
system whmch wmll requmre any d~ggmng, cuttmng or any
other such dlsruptmon of Cmty right-of-way or Cmty prop-
erty after the effective date of thms ordmnance, WorldCom
shall submit engineering plans to the City for review and
approval, pursuant to the standards generally applmcable
to requests for the privilege to use the public r~ght-of-
way, Including the C~ty's utility location and coordmna-
t~on policy Approval of such plans will not be unreason-
ably delayed, withheld or denied by the City
B All excavatmons and other construction mn the streets
shall be so carried out as to mnterfere as lmttle as prac-
ticable wmth the surface use of the streets and smdewalks
and wmth the surface use of prmvate property, mn accord-
ance wmth any lawful and reasonable dmrectmon given by or
under the authormty of the governmng body of the Cmty
under the police and regulatory powers of the City neces-
sary to provide for publmc convenience WorldCom shall
promptly restore all public right-of-way excavated by
WorldCom to substantmally the same condmtlon as before
such excavation and to the reasonable satisfaction of the
City WorldCom shall comply with all other constructIon
requmrements of the Cmty and mts Dmrectors of
Transportatmon/Publmc Works and/or utmlmtmes Departments
wmth respect to hours of constructmon operatmons in peak-
busy traffmc hours, barrmcadlng requirements and/or any
other reasonable constructmon rules which may be lawfully
promulgated
C Except in an emergency, WorldCom shall not excavate any
pavement in any public right-of-way or smgnlfmcant amounts
of any unpaved publmc rmght-of-way wmthout fmrst securmng
the permission of the Cmty, but such permmssmon shall not
be unreasonably delayed, wmthheld or denmed if the pro-
posed excavatmon ms mn accordance with the terms of thms
ordinance The Cmty shall be notmfled as soon as practi-
cable regarding work performed under emergency conditIons
D The Czty shall have the power at any tmme to order and
require WorldCom to remove or abate any facmlmty that is
dangerous to l~fe or property, and in case WorldCom, after
written not~ce, falls or refuses to comply wmthln a
reasonable period of tmme, the Cmty shall have the power
to remove or abate same at the expense of WorldCom, all
without compensatmon or llabllmty for damages to WorldCom
SECTION III The City reserves the r~ght, subDect to further
conditzons described in thms paragraph, to lay and permit to be
laid sewer, gas, water and other pmpellnes or cables and condumts
and to do and permlt to be done any underground and overhead in-
stallation or improvement that may be deemed necessary or proper by
the governmng body of the City of Denton mn, across, along, over or
under any publmc rmght-of-way occupied by WorldCom to change any
curb or smde-walk or the grade of any street, provmded, the Cmty
PAGE 2
agrees to utilize the "One Call System" or other system designed
for notification to utilities and others utilizing the r~ght 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 sa~d work by the City or Its licensees, lnvltees, 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-
lng a water pipe, sewer p~pe 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 C~ty
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 th~s ordnance
SECTION V In the event that the governing body of the City
of Denton closes or abandons any public r~ght-of-way which contains
the facilities of WorldCom installed hereunder, any conveyance of
land contained ~n such closed or abandoned street, alley, highway
or public place shall be subject to the rights of WorldCom
described in this ordmnance 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 lnDur~es 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, locatlon, replacement, reconstruction,
repazr, maintenance or operation of WorldCom's system, and WorldCom
w~ll be required to pay any judgment wzth 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
~ECTION VII The governzng body of the Czty of Denton and
its City Manager shall have the right to be kept fully ~nformed as
to matters pertaznlng zn any way to WorldCom's exercise of
rzghts under this ordinance, including the erection, construction,
location, replacement, reconstruction, mazntenance, repair or
operation of the facilities of the system ~n Denton WorldCom
shall provide to the City complete and accurate "as-buzlt" drawings
describzng the location of facilities of the system zn Denton The
"as-built" drawings shall provzde for separate and speczflc
identification of those faczllt~es of the system that are located
in the public right-of-way Any and all "as-built" drawings
required by thzs ordinance shall be provided to the Czty WorldCom
shall fully cooperate maklng available its "as-built" drawings
SECTION VIII Any notzce or communlcatzon required ~n the
administration of this ordinance shall be sent as follows
City Secretary
Denton Czty Hall
215 E McKlnney
Denton, TX 76201
wzth copy to
Czty Manager
Denton C~ty Hall
215 E McKmnney
Denton, Texas 76201
Notice to WorldCom Network Servmces, Inc will be to
WorldCom Network Servmces, Inc
2600 Bank of Oklahoma Tower
Attn Right-of-Way Department
Tulsa, OK 74172
PAGE 4
with copy to
Estlll, 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 bas~s and
proportionally to the percentage change ~n 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 th~s 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 ~s 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 ~nlt~al one t~me 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
ordznance The twenty-five annual payments shall be made
on or before January 1 of each year of the twenty-f~ve year
license beginning on January 1, 1996 The fee is payable
to "City of Denton" and shall be directed or delivered to
the Executzve Dzrector of F~nance
C The fee established ~n Section 9A hereof shall not be
affected by any relocation of WorldCom facilities required
by the City pursuant to this ordinance
PAGE 5
~ECTION 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 (il) 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 ~t 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 ~ts 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 w~th 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
confllct with the provlslons 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
PAGE 6
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, s~nce 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 ~s 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 AI~D APPROVED this the ~ day of ~, 1996
ATTEST
JENNIFER WALTERS, CITY SECRETARY
7 ~' /
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
Accepted ~%
WORLDCOM NETWORK ES, INC
Title ~e P~ident
PAGE 7
EXHIBIT "A"