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HomeMy WebLinkAbout1983-111NOTE Pre-empted by Ordinance No 96-253 NO , ZZ/ AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, GRANTS THE RIGHT, PRIVILEGE AND FRANCHISE TO GENERAL TELEPHONE COMPANY OF THE SOUTHWEST, GRANTEE, AND ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT ERECT BUILD Effip OWN, MAINTAIN AND OPERATE IN, ALONG, UADER, UER ANV A OS9 THE PUBLIC STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS AND PUBLIC GROUNDS OF SAID CITY, SUCH POSTS POLES WIRES CABLES CONDUlFS AND OTHER APPLIANCES, STRUHURES ANb FIXTUAS NECES9ARY OR CONVENIENT FOR RENDITION OF TELEPHONE AND OTHER COMMUNICATION SERVICE AND FOR CONDUCIING A GENERAL LOCAL AND LONG DISTANCE TELEPHONE BUSINESS, SETFING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE, PROVIDING FOR AN ANNUAL PAYMENT IN LIEU OF CERTAIN OTHER PAYMENTS, PROVIDING FOR REGULATION AND USE OF THE rELEPHONE SYSTEM, AND PROVIDING FOR THE REPEALING OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY WHEREAS, General Telephone Company of the Southwest, hereinafter referred to as the "Telephone Company", is now and has been engaged in the telephone and communication business in the State of Texas and within the city limits of the City of Denton, Texas, hereinafter referred to as the "City", and in furtherance thereof, has erected and maintained certain items of its plant, and WHEREAS, it is to the mutual advantage of both the City and the Telephone Company that an agreement should be entered into between the parties establishing the conditions under which the lelephone Company shall operate within the City, Now, 1herefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, THAT SECTION I GRANf OF RIGHT, PRIVILEGE AND FRANCHISE FOR CONSTRUCTION AND MAINTENANCE OF TELEPHONE PLANT AND SERVICE There is hereby granted by the City to the Telephone Company and its successors or assigns, the right and privilege to construct, erect, build, equip, own, maintain and operate in, along, under, over and across the streets, alleys, avenues, bridges, viaducts and public grounds now within the present limits of the City and within said limits as the same from time to time may be extended, such posts, poles, wires, cables, conduits and other appliances, structures and fixtures necessary or convenient for rendering telephone and other communication services and for conductng a general local and long distance telephone business PAGE I SECTION II SUPERVISION BY CITY OF LOCATION OP POLES AND UUNDU IT That all poles to be placed shall be of sound material and reasonably straight, and shall be so set that they will not interfere with the flow of water in any gutter or drain, and so that the same will interfere as little as practicable with the ordinary travel on the street or sidewalk The location and route of all poles, stubs, guys, anchors, conduits and cables to be placed and constructed by the Telephone Company in the construction and maintenance of its telephone system in the City, and the location of all conduits to be laid by the Telephone Company within the limits of the City under this ordinance, shall be subject to the reasonable and proper regulation, control and direction of the City Council or of any City official to which such duties have been or may be delegated All construction plans shall be submitted to the City for review prior to commencing construction SECTION III STREETS TO BE RESTORED TO GOOD CONDITION That the surface of any street, alley, highwdy or public place within the City disturbed by the Telephone Company in building, constructing, renewing or maintaining its telephone plant and system shall be restored within a reasonable time after the completion of the work to as good a condition as before the commencement of the work and maintained to the satisfaction of the City Council, or of any City official to whom such duties have been or may be delegated, for one year from the date of the surface of said street, alley, highway or public place is broken for such construction or maintenance work, after which time the responsibility for the maintenance shall become the duty of the City No such street, alley, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work SECTION IV OPERATION AND MAINTENANCh OF TELEPHONh PLANT That the Telephone Company shall maintain its system in reasonable operating condition in accordance with Texas Public PAGE 2 Utility Commission Service and Transmission Standards at all normal times during the continuance of this agreement An exception to this condition is automatically in effect when service furnished by the Telephone Company is interrupted, impaired, or prevented by fires, strikes, riots 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 SECTION V TEMPORARY REMOVAL OF WIRES That the relephone 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 or rails within the City and also underground work 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 ShCTION VI TREE TRIMMING That the right, license, privilege and permission is hereby granted to the Telephone Company, its successors and assigns, to trim trees upon and overhanging the streets, alleys, sidewalks, and public places of the City, so as to prevent the branches of such trees from coming in contact with the wires or cables of the Telephone Company, and when so ordered by the City, said trimming shall be done under the supervision and direction of the City Council or of any City official to whom said duties have been or may be delegated SECTION VII ANNUAL CASH CONSIDERAIION fO BE PAID BY THL TELEPHONE COMPANY That to indemnify the City for any and all possible damages PAGE 3 to its streets, alleys, and public grounds which may result from the placing and maintenance therein or thereon of the Telephone Company's poles, conduits, or other equipment or apparatus, and to compensate the City for its superintendence of this agreement, and as the cash consideration for the same, the Telephone Company agrees to pay to the City annually during the continuance of this agreement a sum of money equal to two percent (2%) of the annual gross receipts for the preceding year received by the Telephone Company from the rendition of local exchange telephone transmission service to customers within the corporate limits of the City The first payment hereunder shall be made March 31, 1984, and shall equal in amount to two percent (2%) of the gross receipts received from the date of January 1, 1983 to December 31, 1983, and thereafter payment shall be made annually on March 31st, as herein provided SECTION VIII PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYMENTS EXCEPT USUAL GENERAL OR SPECIAL AD VALOREM TAXES That the City agrees that the consideration set forth in the preceding section hereof shall be paid and received in lieu of any tax, license, charge, fee, street or alley rental or any other character or charge for use and occupancy of the streets, alleys, and public places of the City, in lieu of any pole tax or inspection fee tax, in lieu of any easement or franchise tax, whether levied as an ad valorem, special or other character of tax, and in lieu of any imposition, except as provided in Section XIVV herein, other than the usual general or special ad valorem taxes now or hereafter levied Should the City not have the legal power to agree that the payment of the foregoing cash consideration shall be in lieu of the taxes, licenses, charges, fees, rentals, and easement or franchise taxes aforesaid, then the City agrees that it will apply so much of said payment as may be necessary to the satisfaction of the Telephone Company's obligations, if any, to pay any such taxes, licenses, charges, fees, rentals, and easement or franchise taxes PAGE 4 SECTION IX FACILITIES TO Bb FURNISHED CITY AS ADDITIONAL CONSIDERATION That in addition to the consideration set forth in Section VlI, the Telephone Company shall hold itself ready to furnish, subject to the use of the City, such wire space as may be required from time to time by the City upon the poles now owned or hereafter erected by the Telephone Company in the City for the use of the City's police and fire alarm system, provided that the required wire space shall not exceed four wires on any one pole The location on the poles of this fire and police wire space shall be determined on specific applications for space, at the time the applications are received from the City, and will be allotted in accordance with the considerations for electrical construction of the United States Department of Commerce, Bureau of Standards In its wire construction on the Telephone Company's poles, the City will follow the suggestions and requirements laid down for wire construction in the Rules and Regulations of the Bureau of Standards of the United States Department of Commerce All such wires shall be constructed, maintained and operated in such manner as not to interfere with, nor create undue hazard in, the operation of the telephone system of the Telephone Company The Telephone Company shall not be responsible to the City for any claims, demands, losses, suits, judgments for damages or injuries to persons or property by reason of the construction, maintenance, inspection or use of the police and fire alarm wires belonging to the City SECTION X ATTACHMENTS ON POLES NOT HERE AFFECTED That nothing in this ordinance contained shall be construed to require or permit any electric light or power wire attach- ments by the City or for the City, except that cable trenches shall be shared with the City where engineeringly feasible if light or power attachments are desired by the City or for the City, then a further separate noncontingent agreement shall be a prerequisite to such attachments by the City, however, joint use of poles under a separate agreement must be permitted Nothing PAGE 5 herein contained shall obligate or restrict the Telepone Company in exercising its right voluntarily to enter into pole attach- ment, pole usage, joint ownership, and other wire space and facilities agreements with the light and power companies and with otherwise using companies which may be privileged to operate within the City SECTION XI NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE That nothing herein contained shall be construed as giving to the Telephone Company any exclusive privileges, and this franchise is granted subject to all of the provisions of the Charter of the City of Denton SECTION XII SUCCESSORS AND ASSIGNS That the rights, powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors and assigns SECTION XIII_ LIABILITY OF CITY That during the period this ordinance is in existence and enjoyed by the Telephone Company, the Telephone Company shall indemnify and hold harmless the City from any and all claims for losses, damages and injuries occasioned to or sustained by any persons, firms or corporations, or their property by reason of the existence, maintenance, operation or continuance of this ordinance and the exercise of all rights herein contracted for, except as herein otherwise provided SECTION XIV PERIOD OF FRANCHISE That the right, privilege and franchise hereby granted shall be for a period of twenty (20) years from and after its effective date herein after provided SECTION XV BREACH OF AGREEMENT If the City shall believe that the Telephone Company has breached any provision hereof, the City shall give written notice thereof to the Telephone Company specifically pointing out the breach complained of and the City shall take no further action, legal or otherwise, by reason of any such breach unless PAGE 6 and until the telephone company shall have failed to take steps to eliminate such breach for a period of sixty (60) days after said written notice is given SECTION XVI PARTIAL INVALIDITY AND REPEAL PROVISION That if any section, sentence, clause, or phrase of this ordinance is for any reason held to be illegal, untra vires or unconstitutional, such invalidity shall not affect the validity of the remaining portions of this ordinance and agreements in conflict herewith are hereby repealed SECTION XVII— DELEGATION OF AUTHORITY That the City may delegate to a designated official or officials the exercise of any and all of the powers conferred upon the City hereby or by applicable State statutes and laws which relate to the supervision and regulation of the Telephone Company in its exercise of the rights and franchises herein conferred, but the governing body of the City shall reserve to itself exclusively and to the full extent possessed, all powers, if any, to fix and regulate charges and rates of the Telephone Company given the City by law and this franchise All lawful powers not delegated by the governing body of the City are reserved to, and shall be exercised by, said governing body exclusively That at all reasonable times, during the continuance of the rights herein granted, the local exchange and general offices of the Telephone Company shall be open to the said governing body or its designated official for inspection of original contracts, books of account and cost operating records pertaining to its operations covered by this franchise Any method of accounting heretofore or hereafter adopted or authorized by any law of the United States or of the State of lexas or under or pursuant to the authority of any such law shall be deemed proper and sufficient accounting as to all matters covered thereby SECTION XVIII RATE REGULATION That it Is mutually understood and agreed that any regulation or fixing of rates to be charged by the Telephone PAGE 7 Company to the inhabitants of the City shall be pursuant to authority granted by the Public Utility Commission of the State of Texas, and in accordance with the laws of said State in effect at such times, provided, however, that if the Telephone Company makes an application to change existing rates the Telephone Company agrees to reimburse the City of Denton or reasonable fees and expenses of any independent study and evaluation of the proposed rates by consultants, engineers, and attorneys specially employed by the City That nothing in this ordinance is intended to add to or detract from any authority granted by the Legislature of the State of Texas to the City to fix or otherwise regulate the rates and charges of the Telephone Company SECfION XVIX— ACCEPTANCE OF AGREEMENT That 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, and upon such acceptance being filed, this ordinance shall take effect and be in force from and after the date of its passage and approval by the Mayor, and shall effectuate and make binding the agreement provided by the terms hereof 71L. PASSED AND APPROVED this the t,4 day of 1983 ZA— 41) � I PASSED AND APPROVED this the day of 983 PASSED AND APPROVED this the day of 102�12-�, 1983 t1RI HARD 0/ STEWX7','07Y0TV MY OF D NTON, fEXAS ATTEST 2&Ae�z UHRKLU'llb ALLbN, U111 bbL;K CITY OF DENTON, TEXAS APPROVED AS TO LEGAL FORM C J TAYLOR, JR , CITY ATTORNEY CITY OF DENTON, TEXAS BY PAGE 8