Loading...
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"