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HomeMy WebLinkAbout1998-155ORDINANCE NO. -f A - 15 Y AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, AND COSERV LLC, AN AFFILIATE OF DENTON COUNTY ELECTRIC, AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL, CONSTRUCT, ERECT, BUILD, EQUIP, OWN, MAINTAIN AND OPERATE IN, ALONG, UNDER, OVER AND ACROSS, THE STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS, AND PUBLIC GROUNDS OF THE CITY, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF TELECOMMUNICATIONS SERVICES IN SAID CITY AND FOR CONDUCTING A GENERAL LOCAL AND LONG- DISTANCE TELEPHONE BUSINESS, PRESCRIBING THE CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS -OF -WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS, PRESCRIBING THE QUARTERLY COMPENSATION DUE THE CITY UNDER THIS ORDINANCE, PROVIDING THE RIGHT OF THE CITY TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY, SPECIFYING GOVERNING LAWS, PROVIDING FOR ASSIGNMENT, PRESCRIBING THE TERM AND EFFECTIVE DATE OF SAID AGREEMENT, PROVIDING FOR NOTICE, PROVIDING FOR BINDING EFFECT, PROVIDING THAT THE ORDINANCE BE CUMULATIVE, PROVIDING FOR GOVERNMENTAL IMMUNITY, PROVIDING FOR CONSENT AND ACCEPTANCE, PROVIDING FOR SEVERABILITY, PROVIDING FOR CHOICE OF LAW AND VENUE, FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW, PROVIDING FOR FUTURE CONTINGENCIES, PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES, PROVIDING FOR RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES, PROVIDING FOR ALTERNATE DISPUTE RESOLUTION, AND PROVIDING FOR METHOD OF ACCEPTANCE WHEREAS, it is to the mutual advantage of both the City of Denton ("City") and CoSery ("Telephone Company") that an agreement should be entered into between the Telephone Company and the City establishing the consideration for and conditions under which the Telephone Company shall construct, maintain and operate its physical plant in the public rights -of -way within the City's corporate limits in the future NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, THAT: SECTION 1 DEFINITIONS Whenever used in this Ordinance, the following words and terms shall have the definitions and meanings provided in this section (a) ACCESS LINES For purposes of this Ordinance, an Access Line shall be defined as any local line provided by Telephone Company to a customer in the City, which provides access to the public switched network, including all single line residence, party line residence, single line business, multi -line business, Centrex, Centranet, key lines, ISDN lines, COCT lines, semi-public pay telephone lines and PABX trunks or equivalent which are assigned to locations inside the corporate limits of the City. (b) CITY: The City of Denton, Texas PAGE 2 (c) Ir(JS: All Telephone Company duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated Transmission Media, which are located in the City Rights -of -Way (d) RRI HTS-OF-WAY: All present and future public streets, avenues, highways, alleys, bridges, viaducts, public thoroughfares, public utility easements, public ways, public grounds, and without limitation by the foregoing enumeration, other public property within the city limits of the City As used herein, the term "Rights -of -Way" does not include facilities dedicated to the provision of electrical power to citizens of the City to the extent the City may own the power utility providing electrical power in the City. (e) ]ELECOMMUNICATIONS OR TELECOMMUNICATIONS SERVICES: All services of any nature, offered for sale by the Telephone Company to subscribers in the City, which services are delivered to such subscribers by transmission, between or among points not specified by the Telephone Company, of information, voice or otherwise, not chosen, created, or offered for distribution by the Telephone Company, transmitted without change in form or content of the information as sent and received, which transmission is offered for sale by the Telephone Company in the City, which services are provided in whole or part in the City to any customers of any type whatsoever "Telecommunications" and "Telecommunications Services" do not include such services as cable services, as defined in the Cable Communications Policy Act of 1984 (47 U S C A § 521, et seq, amended) or as recognized by the Federal Communications Commission or any other service wherein content is selected for distribution by the Telephone Company. PAGE (f) TELEPHONE COMPANY: CoSery Communications (g) TRANSMISSION MEDIA: All Telephone Company cables, fibers, wires or other physical devices used to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, video, or data or other purposes, which are physically located in the City Rights -of -Way SECTION 2. CONSTRUCTION AND MAINTENANCE OF TELEPHONE PLANT AND SERVICE (a) Pursuant to the laws of the State of Texas and this Ordinance, the Telephone Company has the non-exclusive right and privilege to use and occupy the public rights -of -way in the City for the purpose of maintaining and operating its Transmission Media used in the provision of Telecommunications Services and the operation of a telecommunications system, subject to the terms, conditions, and stipulations set forth in this Ordinance, the Constitutions and laws of the United States and the State of Texas and the City's Charter and Ordinances to the extent such Ordinances are not in conflict herewith The Telephone Company is not authorized to provide cable television service as a cable operator, as that term is defined in the Cable Communications Policy Act of 1984, in the City without obtaining a separate franchise from the City The Telephone Company's Facilities and Transmission Media used in or incident to the provision of Telecommunications Services and to the maintenance of a telecommunications business by the Telephone Company in the City shall remain as now constructed, subject to such changes as under the conditions prescribed in this Ordinance may be considered necessary to the public health and safety by the City in the exercise of its lawful police powers and such changes and PAGE 4 extensions as may be considered necessary by the Telephone Company in the pursuit of its telecommunications business The Telephone Company shall at all times during the tern of this Ordinance be subject to all lawful exercise of the police power by the City and to such reasonable and lawful regulation as the City shall hereafter by charter, resolution or ordinance provide The terms of this Ordinance shall apply throughout the City and shall apply to all the Telephone Company's Facilities used, in whole or part, in the provision of Telecommunications Services, and shall include the provision of Telecommunications Services in any newly annexed areas of the City upon the effective date of such annexation or the date the City provides the Telephone Company notice of such annexation, whichever occurs later The Telephone Company shall maintain its Facilities in a reasonable operating condition at all normal times during the term or any extension of this Ordinance An exception to this condition is automatically in effect when service furnished by the Telephone Company is interrupted, impaired or prevented by fires, strikes, nots, or other occurrences beyond the control of the Telephone Company, or by storms, floods, or other casualties, in any of which events the Telephone Company shall do all things reasonably within its power to do to restore normal service as soon as practicable (b) Facilities installed or relocated by the Telephone Company in the Rights -of -Way during the term of this Ordinance shall be located underground where technologically and economically feasible If technologically unfeasible, or if placement of facilities underground presents an undue economic burden on Telephone Company, upon proof thereof being presented to the City, Telephone Company and City will jointly agree to alternative installation of relocation options 19MIM SECTION 3 SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS (a) The Telephone Company shall lay, maintain, construct, operate, and replace its poles, wires, anchors, cables, manholes, conduits, and appurtenances used, in whole or part, to provide Telecommunications Services so as to interfere as little as possible with traffic and shall promptly clean up and restore, at its sole cost all thoroughfares and other surfaces which it may disturb to as good a condition as before such disturbance The location of all Telephone Company Facilities shall be fixed under the supervision of the City's governing body or an authorized committee or agent appointed by said governing body All poles to be placed shall be of sound material and reasonably straight, and all poles, stubs, guys, anchors, and other above ground facilities shall be so set that they will not interfere with the flow of water in or to any gutter or drain, and so that the same will interfere as little as practicable with the ordinary travel on the streets, alleys, highways, public thoroughfares, public utility easements, public ways or sidewalks and so that they will not compromise public safety The City shall have the right to require the Telephone Company, at its own expense, to install or relocate above -ground Facilities as far from vehicular travel lanes as reasonably possible for traffic safety purposes Except as provided in Section 2 (b), the City shall also have the right to require the Telephone Company, at its own expense, to install underground all new Facilities except those to which above -ground access is necessary for normal maintenance and connections, without claim for reimbursement or damages against the City The location and route of all poles, stubs, guys, anchors, conduits, cables and any other Facilities to be placed and constructed by the Telephone Company to the City Rights -of -Way, and the location of all conduits to be laid by the Telephone Company within the City's Rights -of -Way under this Ordinance, shall be subject to PAGE 6 the reasonable and proper regulation, control and direction of the City's governing body or of any City, Committee, department or official to whom such duties have been or may be delegated (b) The City shall have the right to change the grade, install, relocate, or widen the public streets, sidewalks, bikeways, alleys, public thoroughfares, highways, landscaping, and public way and places within the present limits of the City and within said limits as same may from time to time be extended, and in such events the Telephone Company shall relocate, at its own expense, its Facilities and Transmission Media, in order to accommodate the installation, relocation, widening, or changing of the grade of any such public street, sidewalk, bikeway, alley, public thoroughfare, highway or public ways, including if necessary relocating such Facilities and Transmission Media a sufficient distance from the edge of the pavement to permit a reasonable work area for machinery and individuals engaged in installing, relocating, widening, or changing the grade of any public street, sidewalk, bikeway, alley, public thoroughfare, highway or public way (c) The City shall have right to lay, and permit to be laid, sewer, gas, water, electric, and other pipelines or cables 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 City Rights -of -Way occupied by the Telephone Company, 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 the Telephone Company for any damage so caused, nor shall the City be liable to the Telephone Company for any damages PAGE 7 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 damages to facilities of the Telephone Company, including the City's contractors and subcontractors The City shall also have the right to require the Telephone Company to relocate, at the sole expense of the Telephone Company, any Facilities erected or maintained in City Rights -of -Way, if said relocation is deemed necessary by the governing body or its designated representative for traffic safety purposes, including traffic signals Whenever by reason of changes in the grade of a thoroughfare or in the location or manner of constructing a water pipe, gas pipe, sewer, or other aboveground or underground structure, it is deemed necessary by the City to remove, alter, change, adapt, or conform the underground or aboveground Facilities of the Telephone Company, the Telephone Company shall make the alterations as soon as practicable when ordered in writing by the City without claim for reimbursement or damages against the City (e) Whenever it becomes necessary to require Telephone Company to relocate or remove Facilities, for the completion of public works projects or for reasons of public safety, the City will inform the Telephone Company in writing of the aforementioned requirement Except in cases of an emergency, the City will provide at least ten (10) days' written notice to Telephone Company of the requirement to relocate or remove said Facilities Whenever it shall be necessary to require Telephone Company to alter, change, adapt, or conform its Facilities within the Rights -of -Way, such alterations or changes shall be made promptly, with consideration given to the magnitude of such alterations or changes, without claim for reimbursement or damages against the City If any such requirements impose a financial PAGE 8 hardship ,upon the Telephone Company, the Telephone Company shall have the right to present alternative proposals to the City, and the City shall give due consideration to any such alternative proposals If the City requires the Telephone Company to adapt or conform its Facilities to enable any other entity or person, except the City (as described in Section 3(c) above), to use, or to use with greater convenience, Rights -of -Way or public property, Telephone Company shall not be required to make any such changes until such other entity or person shall reimburse or make arrangements satisfactory to Telephone Company to reimburse the Telephone Company for any loss and expense caused by or ansing out of such change, provided, however, that in no event shall the City be liable for such reimbursement (f) Nothing in this Ordinance is intended to add to or detract from any authority granted by federal or state law to the City or the Telephone Company SECTION 4. ATTACHMENTS TO POLES AND SPACE IN DUCTS (a) As partial compensation for the use of the City's Rights -of -Way, the Telephone Company shall permit the City to use, without charge, solely for its own, non- commercial purposes, available duct space within one duct in all of the Telephone Company's existing ducted Facilities within the City limits, upon written request by the City, if such duct space is available when requested Alternatively, Telephone Company shall provide City with space on existing telephone poles for the City's use, without charge, solely for its own, non- commercial purposes, if such pole space is available when requested The City shall not use any facilities which are provided for the City's use by the Telephone Company for power transmission purposes, nor use any circuits in such conduits or upon such poles to carry voltage in excess of one hundred thirty (130) volts for signal purposes, nor otherwise use any such PAGE 9 circuits so as to unreasonably interfere with Telephone Company's Telecommunications Services or Telephone Company Facilities (b) The City shall not sell, lease or otherwise make available its rights to use Telephone Company's Facilities to any third party Such rights are provided solely for the non- commercial exclusive use by the City However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City so long as no resale or other commercial use of such facilities shall occur and so long as the third party employed by the City is bound by the provisions of this Ordinance (c) Should the City desire to purchase or otherwise acquire additional Facilities from the Telephone Company for its non-commercial use, then a further separate, non -contingent agreement shall be a prerequisite to such purchase or acquisition Telephone Company and City agree to act in good faith in the negotiation of such agreement(s) with City (d) The City may, at any time, submit written requests to the Telephone Company for use of its Facilities The Telephone Company agrees to respond in writing to the City's requests within thirty (30) calendar days after receiving the request The City Council shall designate one City contact person for requests for Facility usage (e) The City recognizes that the Telephone Company cannot reserve Facilities for the City's use at some indefinite time in the future Accordingly, the City will request the use of Telephone Company's Facilities only after the City has an approved and funded construction PAGE 10 plan Project construction by the City must commence within six (6) months of the Telephone Company notifying the City that Facilities are available Unless delay is occasioned through no fault of the City, any equipment or facilities of the City placed by the City on or in Telephone Company's Facilities must be fully operational within eighteen (18) months from the date project construction commences If such a delay occurs, City shall take all reasonable measures to make its equipment or facilities placed on or in Telephone Company's Facilities fully operational as soon as practicable with consideration given to the circumstances which caused the delay M With regard to the City's equipment or facilities placed in, or on, Telephone Company's Facilities, the Telephone Company shall be relieved of its obligation to reserve space in or on its Facilities for the specific Facility if construction is not started within six (6) months of the Telephone Company notifying the City that Facilities are available or if such City equipment and facilities are not fully operational within the time limits specified in Section 4 (e), unless an extension of time is mutually agreed upon, in writing, by both parties Upon the City's equipment or facilities being placed in, or on, Telephone Company's Facilities, the Telephone Company may not charge the City an additional fee for the use of the Telephone Company's Facilities The City's use of Telephone Company Facilities will extend beyond the term of this Ordinance free of charge to the City so long as said Facilities remain m- place, but upon the expiration of this Ordinance Telephone Company shall be under no obligation to continue to provide, maintain or operate such Facilities for the benefit of the City The Telephone Company will not be liable for the installation or maintenance of any City facilities under this Ordinance or for any damage not caused solely by the negligence of the PAGE 11 Telephone Company. (g) The City shall clearly mark all of its facilities that are placed in, or on, Telephone Company Facilities In order to protect the telephone service to the citizens of the city, the City agrees that all construction by the City in, or on, Telephone Company Facilities will be in accordance with Telephone Company standards and procedures and any applicable City Codes or Ordinances The Telephone Company shall have the right to make on -site inspections during construction by the City In the event the City, in making its facilities operational, encounters any situation that might impact Telephone Company's communication service to the citizens of the City, the City shall stop construction and notify the Telephone Company immediately (h) Except as otherwise provided in Section 4(e) above, the Telephone Company may deny the City's request for use of Telephone Company Facilities only if the Telephone Company has plans to use the requested Facilities by installing telecommunications equipment no later than two (2) years from the date of the City's request In the event that the Telephone Company denies the City's request, the Telephone Company must show the City its current engineering plans that demonstrate that the Telephone Company will use the requested Facilities for Telecommunications Services within two (2) years (i) The Telephone Company is not authorized to license or lease to any person or entity the right to occupy or use the City's Rights -of -way for the conduct of any private business except to the extent required by law The Telephone Company will, from time to time, upon written PAGE 12 request from the City provide to the City the names of resellers of telecommunication services using, or requesting to use, Telephone Company Facilities The Telephone Company may be required to attach its Transmission Media to facilities owned and maintained by any person or entity authorized by the City or to permit the transmission media of any person or entity authorized by the City to be attached to the Facilities owned and maintained by the Telephone Company upon reasonable, non-discriminatory terms in a separate, non -contingent agreement which shall include reasonable compensation The Telephone Company may require any such person or entity to furnish evidence of adequate insurance covering the Telephone Company and adequate bonds covering the performance of the person or entity attaching to the Telephone Company's Facilities as a condition precedent to granting permission to any such person or entity to attach transmission media to Telephone Company's Facilities, provided Telephone Company's requirements for such insurance shall be reasonable and at least in an amount to meet minimum City requirements, as determined by the City 0) Nothing contained in this Ordinance shall obligate or restrict the Telephone Company in exercising its rights voluntarily to enter into pole attachment, pole usage, joint ownership or other wire space or facilities agreements with light and/or power companies or with other companies utilizing wire transmission of services which are authorized to operate within the City Further, nothing contained in this Ordinance shall pre-empt any pole attachment agreement between the City and Telephone Company wherein Telephone Company or City agrees to pay the other a fee to place its facilities on a utility pole owned by the other PAGE 13 SECTION RIGHTS -OF -WAY TO BE RESTORED TO GOOD CONDITION (a) The Telephone Company shall restore the surface of any and all Rights -of -Way within the City disturbed by the Telephone Company in building, constructing, renewing, or maintaining its Facilities or Transmission Media within a reasonable time after completion of the work to at least as good a condition as before commencement of the work and in compliance with the applicable provisions of the Code of Ordinances of the City and shall further maintain the work to the satisfaction of the City's governing body, or of any City official to whom such duties have been or may be delegated, for a period of one (1) year following completion of the restoration, after which time responsibility for the maintenance shall revert to the City During that one (1) year period, the Telephone Company shall be responsible for all maintenance costs incurred as a result of any defects, impairments or substandard condition in the Rights -of -Way caused by the construction, maintenance or restoration work of the Telephone Company. The Telephone Company shall comply with all reasonable rules and regulations of the City relative to street excavations, and permits therefor, provided that Telephone Company shall not be required to pay any fees required by such rules, regulations and permits No such Rights -of -Way shall be encumbered for a longer period than shall be necessary to execute the work (b) The Telephone Company shall submit, in a format prescribed by City and reasonably related to the purpose here stated, information describing the general nature, location, and estimated duration of any activity which will result in the disturbance of any Rights -of -Way The Telephone Company shall not be required to divulge proprietary information in such submission Proprietary information may include, but is not limited to, type and size of Facility and sub -routes onto private property This information shall be submitted prior to the activity except in the case of emergencies, in which case the information shall be submitted as soon as PAGE 14 practical This information requirement shall not apply to the Telephone Company's installation of service wires serving a single residence or business When the Telephone Company shall make or cause to be made excavations, or shall place obstructions in any street, alley, highway, public thoroughfare, public utility easement or public way, the Telephone Company shall protect the public by barriers and lights placed, erected and maintained by the Telephone Company. SECTION 6 TEMPORARY REMOVAL OF AERIAL WIRES The Telephone Company on the request of any person shall remove or raise or lower its wires within the City temporarily to permit the moving of houses or other bulky structures The expense of such temporary removal, raising or lowering of wires shall be paid by the benefited party or parties, and the Telephone Company may require such payment in advance The Telephone Company shall be given not less than forty-eight (48) hours' advance notice to arrange for such temporary wire changes The clearance of wires above ground shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, United States Department of Commerce, as promulgated at the time of erection thereof SECTION 7 TREE TRIMMING In the pursuit of maintaining its telecommunications system, the Telephone Company, its contractors, agents, successors and assigns shall have the right to trim trees upon and overhanging the Rights -of -Way within the City, so as to prevent the branches of such trees from coming in contact with the wires, cables, or other Facilities of the Telephone Company. PAGE 15 SECTION 8 COMPENSATION TO THE CITY (a) As compensation for the Telephone Company's use and occupancy of the City's Fights - of -Way and for the City's oversight, regulation and supervision of such use and occupancy, in consideration for all other agreements and promises made herein by the City and in lieu of and in full compensation for any lawful tax, license, charge, right-of-way permit fee or inspection fee, whether charged to the Telephone Company or its contractor(s), or any right-of-way easement or street or alley rental or corporate franchise tax or other character of charge for the use and occupancy of the Right-of-way within the City, except the usual general ad valorem taxes and special assessments in accordance with State law, and sales taxes now or hereafter levied by the City and in accordance with State law, the City hereby imposes upon the Telephone Company and the Telephone Company agrees to pay a fee upon each Access Line ("Access Line Fee") , which shall be assessed monthly upon all Access Lines in the City and which shall be paid quarterly as described in Section 8 (b) herein The Access Line Fee shall be $1 42 per month (for a total of $1 000 for such twelve-month period) for each residential Access Line, and $2 00 per month (for a total of $22400 for such twelve-month period) for each business Access Line The Access Line Fee will be prorated based upon the number of days during the billing month the customer has service (b) The amount paid to the City will equal the aggregate amount of Access Line Fees assessed to the Telephone Company according to the method described above through the end of each calendar quarter The payment due dates shall be February 28, May 31, August 31, and November 30 of each Contract Year this Ordinance remains in effect The first payment under this Ordinance shall be due on /Vyy,E-ImFL All lgge PAGE 16 (c) If the Ordinance is mutually extended in writing for an additional five years, the Access Line fee will be increased by three (3) percent per year above the prior year's Access Line fee on each anniversary of the effective date Except as otherwise provided herein, the City waives any right to audit or otherwise review any Telephone Company records. (d) The Telephone Company and the City agree that the accuracy of the Access Line count is important to both parties To satisfy any audit responsibilities the City may have, the Telephone Company agrees to provide the City a reconciliation report of Access Lines and a Customer Service Address List, which report and list shall be in a format and in sufficient detail to enable the City to verify the accuracy of the calculation of the Access Line count and type of local access service (e g , single party residence line, ISDN line or PABX trunk) provided to customers located in the City The parties agree to limit Telephone Company's responsibility to produce such reports to two occasions during the term of this Ordinance One such occasion shall occur during the third year of the Ordinance City reserves the right to determine the other occasion for which such information shall be made available by Telephone Company for inspection City agrees to provide reasonable notice beforehand of each such request for inspection The parties contemplate that reports produced by Telephone Company will be as of September 30th of the year in which inspection is requested The Telephone Company will provide a report containing a summary of residence and business Access Lines within the City and the gross amount of Access Line Fees billed customers with each quarterly remittance The report shall include the number of Access Lines as of the end of each month in the calendar quarter being reported, as such data is maintained in Telephone Company's REVLINIT database, PAGE 17 or any successor database The Customer Service Address List shall not include any customer names or telephone numbers If the City becomes aware of information that affects the accuracy of such List, City shall promptly inform the Telephone Company, and Telephone Company shall review such information and, on verification, correct the Customer Service Address List, and Access Line count City accepts and agrees that the Customer Service Address List and Access Line count are proprietary and the exclusive property of the Telephone Company, and agrees to return both the Customer Service Address List and Access Line count report, and any data copied or taken therefrom in any form, to the Telephone Company within sixty days of its receipt of such List or report, unless such time is extended by the written agreement of the parties As the Customer Service Address List is the exclusive property of the Telephone Company, the City agrees not to release any information contained in that List to anyone unless ordered to do so by a court of competent jurisdiction (e) The compensation provided for herein constitutes reasonable compensation for the consideration granted to the Telephone Company herein (f) Payment of the "Annual Fee" shall not relieve the Telephone Company from paying all applicable municipally owned utility service charges, ad valorem and sales taxes adopted by the City (g) In the event that either (1) territory within the boundaries of the City shall be disannexed and a new incorporated municipality created which includes such territory or (2) territory shall be consolidated or annexed into the City, then notwithstanding any other provision of this PAGE 18 Ordinance, the Annual Fee shall be adjusted, effective on the effective date of the annexation To accomplish this adjustment, within sixty (60) days following the action effecting a disannexation/annexation as described above, the City shall provide the Telephone Company with maps of the affected area (s) showing the new boundaries of the City If the City falls to timely provide the maps of the affected areas, then the fees from such additional Access Lines will not become payable to City until sixty (60) days after receipt by Telephone Company of such maps from the City (h) In the event of an annexation or disannexation as described above, the Annual Fee paid to the City will be adjusted based on the City's gain or loss of Access Lines using the same methodology prescribed in Section 8(a) above The effective date of the adjustment shall be the same as the effective date of the annexation/disannexation action by the City, provided that the City has supplied the appropriate annexation/disannexation maps to the Telephone Company in accordance with the provisions herein The City agrees to reimburse the Telephone Company for any portion of any Annual Fee that may have been paid to the City after the effective date of a disannexation but prior to the receipt by Telephone Company from City of notice of such disannexation (1) In the event a regulatory agency of the State, or court of competent jurisdiction finds that the Access Line fee compensation methodology contained in Section 8(a) of this Ordinance is invalid or unenforceable, then for the remainder of the term of this Ordinance or until such time as the parties agree to another compensation methodology, whichever occurs first, Telephone Company agrees to pay annual compensation under this Ordinance to City in an amount equal PAGE 19 to the total of the previous four quarterly payments, such compensation to be paid in quarterly installments and if necessary prorated from the date of such Order of the regulatory agency or court SECTION 9 SUCCESSORS AND ASSIGNS The rights, powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective legal and bona fide representatives, successors and assigns SECTION 10 PERIOD OF AGREEMENT This agreement shall be in full force and effect for the period beginning with the effective date hereof and ending five (5) years after such date This Ordinance may be extended for an additional five (5) years if mutually agreed to in writing by both parties and such extension is approved by the City in accordance with the City's Charter SECTION I I FUTURE CONTINGENCIES Notwithstanding anything contained in this Ordinance to the contrary, in the event that this Ordinance or any section, sentence, clause, phrase, or part thereof, providing any compensation due the City under this Ordinance, becomes, is held to be, or is declared or determined by judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unconstitutional, unlawful, invalid or otherwise inapplicable, in whole or in part, the Telephone Company and the City shall meet and negotiate in good faith to obtain a new ordinance that is in compliance with the authority's decision or enactment and in PAGE 20 which the Telephone Company shall pay to City a reasonable but constitutional and valid compensation SECTION 12, GOVERNING LAW AND VENUE (a) This Ordinance shall be construed in accordance with the law of the State of Texas and the City Charter and City Ordinances in effect on the date of passage of this Ordinance to the extent that such Charter and Ordinances are not in conflict with or in violation of the Constitution and laws of the United States or of the State of Texas (b) Venue for any dispute arising under this Agreement shall be in Denton County, Texas (c) This Ordinance shall be construed and deemed to have been negotiated at arms length and drafted by the combined efforts of the City and the Telephone Company SECTION 13 DISPUTE RESOLUTION (a) Notwithstanding any other provision of this Ordinance, the Parties hereto agree that any claim, cause of action or other dispute based upon or arising out of this Ordinance (a "dispute") shall be conducted, decided, determined and/or resolved pursuant to and in accordance with the provisions of this Section The parties desire to resolve disputes arising out of this Ordinance without litigation Accordingly, in the event of any dispute hereunder, the Parties hereto agree to attempt in good faith to resolve their dispute between themselves Within ten (10) days after receipt of the written request of a party, each party will appoint a knowledgeable, responsible representative or representatives to meet and negotiate in good faith to resolve any dispute PAGE 21 arising under this Ordinance The parties' representatives will meet within ten (10) days after the appointment of such representatives and negotiate in good faith to resolve any such dispute (b) Except for action seeking a temporary restraining order or injunction related to the purposes of this Ordinance, or suit to compel compliance with this dispute resolution process, the parties agree to use the following alternative dispute resolution procedure, and also agree not to sue any party to this Ordinance with respect to controversy or claim arising out of or relating to this Ordinance or its breach prior to exhausting the procedures set out in this section (c) If the parties are unable to settle their dispute at the meeting of representatives provided for in subsection (a), either party may, on written notice to the other party, initiate non -binding mediation of the dispute before a single mediator affiliated with Judicial Arbitration and Mediation Services, Inc (JAMS) or another mediation service mutually agreeable to the parties Mediation is a forum in which an impartial person, the mediator, facilitate communication between the Parties to promote reconciliation, settlement, or understanding among them A mediator may not impose his own judgment on the issues for that of the parties Unless expressly authorized by the parties, the mediator may not disclose to either party information given in � confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during mediation, are confidential and shall be inadmissible as settlement discussion pursuant to Rule 408 of the Federal Rules of Evidence or the applicable state rules The mediator shall be selected by agreement of the parties within thirty (30) days after either party first requests PAGE 22 mediation of the other If a single mediator cannot be agreed upon, then each party shall select its own mediator from those on the JAMS approved list, those two mediators will then select a third independent mediator who will conduct the mediation session (s) The mediator's fees will be borne equally by both parties In the event mediation is requested, any applicable statutes of limitations shall be automatically tolled until the mediator declares an impasse If either party desires to request the production of information for its use in the mediation, it shall deliver such request to the other party within five (5) days of the selection of the mediator Any objection to such production shall be delivered to the mediator and the requesting party within five days of receipt of the request, and the mediator shall issue an opinion within five (5) days of such objection, as to whether the information is relevant to the issues presented for mediation and should be produced If either party refuses to proceed with the mediation in accordance with the ruling of the mediator, the mediation shall be deemed to be at impasse, and the parties may then resort to any other available recourse In the event mediation occurs but fails to resolve the dispute, the parties may then resort to means outside the scope of this Section including filing suit (d) Neither the City nor the Telephone Company by accepting this Ordinance waives its right to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this Ordinance by the other party, including seeking injunctive relief in a court of competent jurisdiction Such right to seek injunctive relief is expressly reserved and all terms and provisions hereof shall be enforceable through injunctive relief PAGE 23 SECTION 14 GOVERNMENTAL IMMUNITY All of the regulations provided in this Ordinance are hereby declared to be for a public purpose and the health, safety, and welfare of the general public Any member of the governing body or City official or employee charged with the enforcement of this Ordinance, acting for the City in the discharge of his duties, shall not thereby render himself personally liable, and he is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his said duties SECTION 15 GRANTING POWER (a) The City continues to take the position that the City has the power to grant or deny consent to the Telephone Company's occupancy and use of the Rights -Of -Way within the City The Telephone Company continues to take the position that Federal law and Texas law do not permit the City to deny consent to the Telephone Company to occupy and use such Rights -Of -Way Both the City and the Telephone Company agree that their actions in entering this agreement by ordinance shall not in any way be a waiver of either party's position as stated herein (b) Nothing in this section affects the authority of the City to manage the public Rights -Of - Way or to require a fair and reasonable compensation from all telecommunications providers, on a competitively neutral and nondiscriminatory basis, and the compensation will be publicly disclosed by the City PAGE 24 SECTION 16 REPEAL OF CONFLICTING PROVISIONS All other ordinances and agreements and parts of agreements and ordinances in conflict with the provisions of this Ordinance are hereby repealed to the extent of such inconsistency SECTION 17 NOTICE For any purposes related to this Ordinance, notice to the City shall be to Office of City Manager City of Denton 215 E McKinney Denton, TX 76201 Notice to the Telephone Company shall be to CoSery Attn 6,11 fAiiuv-5 President 3501 FM 2181 Corinth, TX 76205 Notice will be effective upon delivery at the above addresses until the City or the Telephone Company notifies the other, in writing, of a change of address SECTIQN 18 PARTIAL INVALIDITY AND REPEAL PROVISIONS If any section, sentence, clause or phrase in this Ordinance is for any reason held to be illegal, ultra vires, unconstitutional, void, or unenforceable such invalidity shall not affect the validity of the remaining portions, it being the intent of the City in adopting this Ordinance and the Telephone Company in accepting and agreeing to it that no portion hereof or provision hereof shall be inoperative or fail by reason of any unconstitutionality or invalidity or any other portion, provision, or regulation, and to this end, all provisions of this Ordinance are declared to be PAGE 25 severable This Ordinance shall be and is hereby declared to be cumulative of all other ordinances of the City, and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any in such other ordinance or ordinances are hereby repealed to the extent of such inconsistency All ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed to the extent of such inconsistency Provided all other ordinances, rules, regulations, and agreements which are not in conflict with this Ordinance and which in any manner relate to the regulation of the City streets, alleys, and public places or the business of the Telephone Company shall remain in full force and effect SECTION 19 EFFECTIVE DATE AND ACCEPTANCE OF AGREEMENT The Telephone Company shall have sixty (60) days from and after the passage and approval of this Ordinance to file its written acceptance thereof with the City Secretary Upon such filing, this Ordinance shall take effect and the effective date of this Ordinance shall be Ju w / 4 / `%%9j and it shall be in force from and after such date, and shall effectuate and make binding the agreement provided by the terms hereof All costs of any publication required by law shall be at the expense of the Telephone Company in addition to other charges provided for herein SECTION 20 TRANSFER OR ASSIGNMENT This Ordinance shall not be transferred or assigned by the Telephone Company except with the approval of the governing body of the City expressed by ordinance and subject to all terms of such ordinance, which shall not be unreasonably withheld PAGE 26 SECTION 21 OPEN MEETING It is hereby officially found and determined that the meeting at which this Ordinance is passed is open to the public as required by law and that public notice of the time, place and purpose of said meeting was given as required �d PASSED AND APPROVED this the o3 _ day of 1998 ATTEST JENNIFER WALTERS, CITY SECRETARY AP r S TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY PAGE 27 The above and foregoing ordinance read, adopted on first reading and passed to second reading by the following votes, this the 1q - day of 19 ,A at a regular session of the City Council Mayor, voting a (/2 Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting The above and foregoing ordinance r d, adopted on second reading and passed by the following votes, this the day of 41 0 19'jr , at a regular session of the City Council Mayor, voting Council Member, voting aj-11 p Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting �p COUNTY OF DENTON § I, City Secretary of the City of Denton, Texas, do hereby certify th tea ve and foregoing is a true and correct copy of the right-of-way rental agreement etwee the City of Denton, Texas, and COSERV, An Affiliate of Denton County Electric, as indicated herein The same is now recorded in Volume Page of the Ordinance Records of the City of Denton, Texas WITNESS MY AND this the day of 10410. A D 14?P (Seal) Cy Secretary PAGE 28 ACCEPTANCE WHEREAS, the City Council of the City of Denton, Texas, did on the ad day of �7a+A1E , 19 q O enact an Ordinance entitled AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, AND COSERV, AN AFFILIATE OF DENTON COUNTY ELECTRIC AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL CONSTRUCT, ERECT, BUILD, EQUIP, OWN, MAINTAIN AND OPERATE IN, ALONG, UNDER, OVER AND ACROSS, THE STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS, AND PUBLIC GROUNDS OF THE CITY, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF TELECOMMUNICATIONS SERVICES IN SAID CITY AND FOR CONDUCTING A GENERAL LOCAL AND LONG-DISTANCE TELEPHONE BUSINESS, PRESCRIBING THE CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS -OF -WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS, PRESCRIBING THE QUARTERLY COMPENSATION DUE THE CITY UNDER THIS ORDINANCE, PROVIDING THE RIGHT OF THE CITY TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY; SPECIFYING GOVERNING LAWS, PROVIDING FOR ASSIGNMENT, PRESCRIBING THE TERM AND EFFECTIVE DATE OF SAID AGREEMENT, PROVIDING FOR NOTICE, PROVIDING FOR BINDING EFFECT, PROVIDING THAT THE ORDINANCE BE CUMULATIVE, PROVIDING FOR GOVERNMENTAL IMMUNITY, PROVIDING FOR CONSENT AND ACCEPTANCE, PROVIDING FOR SEVERABILITY, PROVIDING FOR CHOICE OF LAW AND VENUE, PROVIDING FOR FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW, PROVIDING FOR FUTURE CONTINGENCIES, PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES, PROVIDING FOR RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES, PROVIDING FOR ALTERNATE DISPUTE RESOLUTION, AND PROVIDING FOR METHOD OF ACCEPTANCE, and WHEREAS, said Ordinance was on the aony'ay of jwx) - 19-M duly approved by the Mayor of said City and the seal of said City was thereto affixed and attested by the City Secretary, NOW, THEREFORE, CoServ, An Affiliate of Denton County Electric, hereby in all respects accepts, approves, and agrees to said Ordinance, and same shall constitute and be binding contractual obligation of CoServ, An Affiliate of Denton County Electric and of the City without waiver of any other remedy by CoServ, An Affiliate of Denton County Electric, or the City and ifiles this its written acceptance with the City Secretary of the City of Denton, Texas, in his/her office. PAGE 29 Dated this —T— day of Q u A D 19& U COSERV, AN AFFILIATE OF DENTON COUNTY ELECTRIC 4$1 ATTEST Assistant Secretary A ptance filed in the office of the City Secretary of Denton, Texas, this /day of �_AD 19�� P uhu0&depAWLWW Do m)bWrdbw0wMCoSm dw pi �'gjrrimary- vvNrrit PAGE 30