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1998-154AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, AND NORTEX 1ELCOM, L LC AGREE 'I HAT, 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 pUBL1C GROUNDS OF THE CITY, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS AND OTHER APPLIANCES, STRUCTURES AND F1XTURES 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 TELECOMlVlUNICATIONS BUSINESS, PRESCRIBING THE QUARTERLY COMPENSATION DUE THE C1TY 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 DAIE OF SAID AGREEMENT, PROVIDING FOR NOI~ICE, 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 MEEI~ING 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 Nortex Telcom, L L C ("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 hm~ts in the future NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, THAT. ~ DEFINITIONS Whenever used in this Ordinance, the following words and terms shall have the definitions and meanings provided in this section (a) ~ For purposes of this Ordinance, an Access Line shall be defined as any local hne provided by Telephone Company to a customer m the City, which provides access to the public switched network, including all single line residence, party line residence, single line business, multMme business, Centrex, Centranet, key lines, ISDN hnes, COCT lines, semI-pubhc pay telephone lines and PABX trunks or equivalent which are assigned to locations inside the corporate limits of the City. (b) ~ITY: The City of Denton, Texas (c) ~.l~: All Telephone Company duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all assocmted Transmission Media, which are located in the City Pdghts-of-Way PAGE 2 (d) ~: 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 C~ty 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 m the City. (e) TELECOMMUNICATIONS OR TI~,I,ECOMMUNICATIONS 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 Commumcations 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, (f) ,TE1.EPHONE COMPANY: Nortex Telcom, L L C (g) TRANSMISSION MEDIA: All Telephone Company cables, fibers, w~res or other physical devices used to transmit and/or receive eommumcation signals, whether analog, digital PAGE 3 or of other charactertstlcs, and whether for voice, video, or data or other purposes, which are physically located in the C~ty lhghts-of-Way ~ 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 prtwlege to use and occupy the pubhc rights-of-way m the C~ty for the purpose of maintaining and operating its Transmissmn Media used m the promslon of Telecomrnunmations Services and the operation of a telecommunications system, subJeCt to the terms, cond~tmns, and stipulations set forth m th~s 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 Ordmanges are not m conflict herewith The Telephone Company ~s not authorized to prowde cable telev~smn serwce as a cable operator, as that term is defined m the Cable Commumcat~ons Pohcy Act of 1984, ~n the City w~thout obtaining a separate franchise from the City The Telephone Company's Famht~es and Transmlss~on Med~a used m or incident to the provision of Telecornmumcat~ons Services and to the maintenance of a telecommumcat~ons business by the Telephone Company m the City shall remain as now constructed, subject to such changes as under the conditions prescribed m th~s Ordinance may be considered necessmy to the pubhc health and safety by the City m the exercise of ~ts lawful pohce powers and such changes and extensmns as may be considered necessary by the Telephone Company m the pursuit of ~ts telecommumcat~ons bus~ness The Telephone Company shall at all t~mes during the term of th~s Ordinance be subject to all lawful exercise of the pohce power by the C~ty and to such reasonable and lawful regulation as the City shall hereat~er by charter, resolution or ordinance provide The terms of th~s Ordinance shall apply throughout the City and shall apply to all the PAGE 4 Telephone Company's Facthttes used, m whole or part, in the provtston of Telecommunications Servtces, and shall include the provtston of Telecommumcattons Services m any newly annexed areas of the Ctty upon the effecttve date of such annexation or the date the Caty provtdes the Telephone Company nottce of such annexatton, whichever occurs later The Telephone Company shall mamtam Its Facthtles m a reasonable operating condltton at all normal times during the term or any extenston of thts Ordinance An exceptton to this condltton ts automattcally tn effect when servtce furmshed by the Telephone Company ts interrupted, tmpatred or prevented by fires, stakes, nots, or other occurrences beyond the control of the Telephone Company, or by storms, floods, or other casualttes, m any of which events the Telephone Company shall do all thtn8s reasonably within Its power to do to restore normal servtce as soon as practtcable (b) Fac~httes ~nstalled or relocated by the Telephone Company in the Rights-of-Way during the term of thts Ordinance shall be located underground where technologically and econonucally feastble If technologtcally unfeastble, or if placement of facilities underground presents an undue economtc burden on Telephone Company, upon proof thereof being presented to the Ctty, Telephone Company and Ctty wtll .~omtly agree to alternative installatton of relocation opttons ~ SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS (a) The Telephone Company shall lay, maintain, construct, operate, and replace tts poles, wtres, anchors, cables, manholes, condmts, and appurtenances used, tn whole or part, to provtde Telecommumcattons Servtces so as to tnterfere as httle as posstble wtth traffic and shall promptly clean up and restore, at tts sole cost all thoroughfares and other surfaces whtch it may PAGE 5 disturb to as good a condition as before such disturbance The location of all Telephone Company Faclht~es shall be fixed under the supervms~on of the C~ty's guvermng body or an authortzed committee or agent appointed by saxd govermng body All poles to be placed shall be of sound material and reasonably stratght, and all poles, stubs, guys, anchors, and other above ground facthties shall be so set that they wtll not interfere w~th the flow of water m or to any gutter or drmn, and so that the same wtll interfere as httle as practicable wtth the ordinary travel on the streets, alleys, htghways, pubhc thoroughfares, public utdtty easements, public ways or s~dewalks and so that they w~ll not compromtse pubhc safety The C~ty shall have the right to reqmre the Telephone Company, at tts own expense, to install or relocate above-ground Fac~lmes as far from vehicular travel lanes as reasonably possible for tra~c safety purposes Except as provtded mn Section 2 (b), the City shall also have the rtght to require the Telephone Company, at ~ts own expense, to install underground all new Facthttes except those to which above-groined access is necessary for normal maintenance and connections, without claim for reimbursement or damages against the City The locatton and route of all poles, stubs, guys, anchors, condmts, cables and any other Factlmes to be placed and constructed by the Telephone Company m the City l~ghts-of-Way, and the locatton of all condu~ts to be laid by the Telephone Company wtthm the City's l~tghts-of-Way under th~s Ordinance, shall be subject to the reasonable and proper regulet~on, control and dtrect~on of the C~ty's governing body or of any City, Committee, department or official to whom such dutzes have been or may be delegated (b) The City shall have the right to change the grade, ~nstall, relocate, or widen the pubhc streets, sidewalks, bikeways, alleys, pubhc thoroughfares, h~ghways, landscaping, and pubhc way and places w~thm the present hmlts of the City and within said hm~ts as same may from PAGE 6 time to time be extended, and m such events the Telephone Company shall relocate, at tis own expense, as Fatalities and Transmission Merlin, m order to accommodate the installation, relocation, wtdemng, or changing of the grade of any such pubhc street, sidewalk, bikeway, alley, public thoroughfare, highway or pubhc ways, including ff necessary relocating such Fatalities and Transmission Media a sufficient distance from the edge of the pavement to perma a reasonable work area for machinery and individuals engaged m mstalhng, relocating, wldemng, or changing the grade of any pubhc street, sidewalk, bikeway, alley, pubhc thoroughfare, highway or pubhc way (c) The City shall have right to lay, and permit to be la~d, sewer, gas, water, electric, and other plpehnes or cables or condmts, and to do and permit to be done any underground and overhead mstallatton or Improvement that may be deemed necessary or proper by the govermng body of the City m, 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 hable to the Telephone Company for any damage so caused, nor shall the City be hable to the Telephone Company for any damages ansmg out of the performance by the City or ~ts contractors or subcontractors not willfully and unnecessarily occasioned, provided, however, nothing hereto shall reheve any other person or corporation from habdtty for damages to facilities of the Telephone Company, mcludmg the City's contractors and subcontractors The City shall also have the right to reqmre the Telephone Company to relocate, at the sole expense of the Telephone Company, any Facdttles erected or mamtamed tn C~ty Rights-of-Way, tf said relocation ~s deemed necessary by the govermng 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 PAGE 7 manner of constructing a water pipe, gas pipe, sewer, or other aboveground or underground structure, It is deemed necessary by the Cat)' 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 an 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 Paghts-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 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, Paghts-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 arising out of such change, provided, however, that in no event shall the City be liable for such reimbursement PAGE 8 (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 ~ ATTACHMENTS TO POLES AND SPACE IN DUCTS (a) As partial compensation for the use of the C~ty's Raghts-of-Way, the Telephone Company shall permit the City to use, w~thout charge, solely for its own, non- commercial purposes, available duct space w~thm one duct ~n all of the Telephone Company's existing ducted Fa¢lhties within the City hm~ts, upon written request by the C~ty, if such duct space ~s available when requested Alternatively, Telephone Company shall provide C~ty with space on existing telephone poles for the City's use, w~thout charge, solely for its own, non- commercial purposes, if such pole space Is avadable when requested The Caty shall not use any facilities which are provided for the City's use by the Telephone Company for power transmission purposes, nor use any c~rcmts in such condmts or upon such poles to carry voltage m excess of one hundred thirty (130) volts for s~gnal purposes, nor otherwise use any such circuits so as to unreasonably interfere with Telephone Company's Telecommumcat~ons Services or Telephone Company Facdmes (b) The City shall not sell, lease or otherwise make avmlable ~ts rights to use Telephone Company's Faclhties to any third party Such rights are provided solely for the non-commercial exclusive use by the C~ty However, th~s 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 C~ty 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 hound by the provisions of this Ordinance PAGE 9 (c) Should the City desire to purchase or otherwise acquire additional Faclhtles 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 Faeihties 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 plan Project construction by the City must commence w~thm six (6) months of the Telephone Company notifying the City that Facilities are available Unless delay is occasioned through no fault of the C~ty, any equipment or facilities of the City placed by the C~ty on or in Telephone Company's Famhtles 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 Faclhties fully operational as soon as practicable with consideration given to the circumstances which caused the delay (g) With regard to the City's equipment or facilities placed in, or on, Telephone Company's Faclhtles, the Telephone Company shall be relieved of its obligation to reserve space in or on PAGE 10 its Facilities for the specific Facility ~f construction is not started within six (6) momhs of the Telephone Company notifying the City that Facilities are avmlable or if such City equipment and facdit~es are not fully operational within the time hm~ts specified m Section 4 (e), unless an extension of time Is mutually agreed upon, m wining, by both parties Upon the City's eqmpment or facdlt~es being placed m, or on, Telephone Company's Facdmes, the Telephone Company may not charge the C~ty an addmonal fee for the use of the Telephone Company's Facdlt~es The CIty,s use of Telephone Company Facd~t~es will extend beyond the term ofthts Ordinance free of charge to the City so long as said Facd~ues remain m- place, but upon the expiration of th~s Ordinance Telephone Company shall be under no obligation to continue to promde, maintain or operate such Faclht~es for the benefit of the City The Telephone Company will not be liable for the installation or mmntenance of any City facdlttes under this Or&nance or for any damage not caused solely by the neghgence of the Telephone Company. (g) The City shall clearly mark all of its factlit~es that are placed m. or on, Telephone Company Facd~t~es In order to protect the telephone service to the citizens of the ctty, the City agrees that all construction by the City m, or on, Telephone Company Facflit~es will be in accordance w~th Telephone Company standards and procedures and any apphcable City Codes or Ordinances The Telephone Company shall have the right to make on-sac inspections during construction by the C~ty In the event the City, ~n making ~ts facfl~ties operational, encounters any s~tuat~on that might ~mpact Telephone Company's communication service to the c~t~zens of the City, the City shall stop construction and notify the Telephone Company ~mme&ately PAGE 11 (h) Except as otherwise provided in Section 4(e) above, the Telephone Company may deny the City's request for use of Telephone Company Facdltles only If the Telephone Company has plans to use the requested Faclhttes by installing telecommunications equipment no later than two (2) years from the date of the C~ty'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 Serwces within two (2) years (0 The Telephone Company is not authorized to hcense or lease to any person or entity the right to occupy or use the City's Poghts-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 request from the City provide to the City the names of resellers of telecommumcat~on services using, or requesting to use, Telephone Company Faclht~es 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 transmtss~on medta of any person or entity anthonzed by the City to be attached to the Fatalities 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 med~a to Telephone Company's Facilities, provided Telephone Company's requirements for such insurance shall be reasonable and at least m an amount to meet minimum City requirements, as determined by the City PAGE 12 (j) Nothmg contained tn thts Ordinance shall obhgate or restrict the Telephone Company tn exarctstng tts rtghts voluntarily to enter tnto pole attachment, pole usage, jomt ownershtp or other wtre space or facthttes agreements wtth hght and/or power compames or w~th other compames utthzmg wtre transmtsston of servtces which are authorized to operate w~thm the City Further, nothing contained m th~s Ordinance shall pre-empt any pole attachment agreement between the Ctty and Telephone Company whereto Telephone Company or C,ty agrees to pay the other a fee to place tts facdtttes on a utthty pole owned by the other _~__Q_TLO_I~L~ RIGHTS-OF-WAY TO BE RESTORED TO GOOD CONDITION (a) The Telephone Company shall restore the surface of any and all Rtghts-of-Way wtth~n the City dtsturbed by the Telephone Company tn bmldmg, constructing, renewing, or matntatmng tts Factltt~es or Transmtsston Medta w~thtn a reasonable ttme after completton of the work to at least as 8ood a condmon as before commencement of the work and tn comphance wtth the apphcable provtstons of the Code of Ordtnances of the C~ty and shall further maintain the work to the sattsfactton of the Ctty's governmg body, or of any City offictal to whom such duttes have been or may be delegated, for a period of one (1) year followmg completton of the restoratton, after whtch ttme responstbthty for the mamtenance shall revert to the City Dunng that one (1) year petted, the Telephone Company shall be responstble for all mazntenance costs recurred as a result of any defects, tmpmrments or substandard condmon ~n the R~ghts-of-Way caused by the constructton, matntenance or restoration work of the Telephone Company. The Telephone Company shall comply wtth all reasonable rules and regulattons of the C~ty relative to street excavattons, and permtts therefor, provtded that Telephone Company shall not be requtred to pay any fees reqmred by such rules, regulattons and permits No such Rtghts-of-Way shall be encumbered for a longer pertod than shall be necessary to execute the work PAGE 13 (b) The Telephone Company shall submmt, 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 R~ghts-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 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 m 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. ~ 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 part~es, 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 PAGE 14 SECTION 7 TREE TRIMMING In the pursutt of maintaining tts telecommumcattons system, the Telephone Company, its contractors, agents, successors and assigns shall have the right to trim trees upon and overhanging the Paghts-of-Way wtthm the City, so as to prevent the branches of such trees from coming m contact with the wtres, cables, or other Facilities of the Telephone Company. ~ COMPENSATION TO THE CITY (a) As compensation for the Telephone Company's use and occupancy of the Ctty's Rights- of-Way and for the City's oversight, regulatton and supemston of such use and occupancy, in cons~deratmn for all other agreements and prom~ses made herein by the City and m heu of and m full compensatton for any lawful tax, hcense, 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 wtthm the City, except the usual general ad valorem taxes and special assessments tn accordance with State law, and sales taxes now or hereafter lev~ed by the City and tn accordance with State law, the City hereby ~mposes 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 m the City and whtch shall be pa~d quarterly as described tn Sectton 8 (b) hereto The Access Line Fee shall be $1 42 per month (for a total of $17,00 for such twelve-month period) for each res;denttal Access Line, and $2 00 per month (for a total of $24,00 for such twelve-month period) for each business Access Line The Access Ltne Fee will be prorated based upon the number of days dunng the billing month the customer has serv,ce PAGE 15 (b) The amount paid to the City will equal the aggregate amoum 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 /~/1~ ~/~-ff]/~-/~ ~,/qq~ (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 C~ty agree that the accuracy of the Access Line count is ~mportant to both parties To satisfy any audit responslbdlt~es the City may have, the Telephone Company agrees to provide the City a reconcd~atlon report of Access Lines and a Customer Service Address L~st, which report and hst shall be in a format and in sufficient detail to enable the City to verify the accuracy of the calculation of the Access L~ne 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 repo~ts 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 lnspect~on The part.es contemplate that reports produced by Telephone Company will be as of September 30th of the year in which inspection ~s requested The Telephone Company will PAGE 16 provade a report contamang a summary of residence and bustness Access Lines wathan the City and the gross amount of Access Lane Fees billed customers wath each quarterly remittance The report shall include the number of Access Lanes as of the end of each momh m the calendar quarter being reported, as such data as maantalned in Telephone Company's REVUNIT database, or any successor database The Customer Servace Address Last shall not include any customer names or telephone numbers if the City becomes aware of lnformataon that affects the accuracy of such L~st, City shall promptly anform the Telephone Company, and Telephone Company shall review such reformation and, on verification, correct the Customer Servace Address Last, and Access Lane count Caty accepts and agrees that the Customer Servace Address List and Access Lme count are proprietary and the exclusive property of the Telephone Company, and agrees to return both the Customer Serrate Address Last and Access Lane count report, and any data copied or taken therefrom an any form, to the Telephone Company within sixty days of its receapt of such Last or report, unless such time is extended by the written agreement of the parties As the Customer Service Address List as the exclusive property of the Telephone Company, the City agrees not to release any anformataon contaaned in that List to anyone unless ordered to do so by a court of competent jurlsdactlon (e) The compensataon provided for herein constitutes reasonable compensation for the considerat~on granted to the Telephone Company herein (f) Payment of the "Annual Fee" shall not relieve the Telephone Company from paying all apphcable mumcapally owned utflaty servace 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 dasannexed PAGE 17 and a new incorporated munlclpahty created which includes such territory or (2) terntory shall be consohdated or annexed into the City, then notwithstanding any other provision of this 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 effectmg a dlsannexatlon/annexatlon as described above, the City shall prowde the Telephone Company with maps of the affected area (s) showing the new boundaries of the City If the City fails 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 at%r receipt by Telephone Company of such maps from the City (h) In the event of an annexation or dlsannexat~on as described above, the Annual Fee pa~d to the City will be adjusted based on the City's gain or loss of Access Lines using the same methodology prescribed m Section 8(a) above The effective date of the adjustment shall be the same as the effective date of the annexatlon/d~sannexatlon action by the City, provided that thc City has supplied the appropriate annexat~on/dlsaanexatlon maps to the Telephone Company m accordance with the provisions hereto The City agrees to reimburse the Telephone Company for any port~on of any Annual Fee that may have been pa~d to the City at, er the effective date of a dlsannexatlon but prior to the receipt by Telephone Company from City of not,ce of such dlsannexatlon (0 In the event a regulatory agency of the State, or court of competem jurisdiction finds that the Access Line fee compensation methodology contained m 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 part,es agree to another compensation methodology, whichever occurs first, Telephone PAGE 18 Company agrees to pay annual compensation under this Ordinance to City in an amount equal to the total of the previous four quarterly payments, such compensation to be pa~d 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 ~ 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 ~ FUTURE CONTINGENCIES Notwithstanding anything contained in this Ordinance to the contrary, in the event that this Ordinance or any section, sentence, clause, phrase, or pan thereof, providing any compensation due the City under this Ordinance, becomes, is held to be, or is declared or determined by ju&clal, 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 Caty shall meet and negotiate in good faith to obtain a new ordinance that is in compliance with the authonty's decision or enactment and in PAGE 19 which the Telephone Company shall pay to City a reasonable but constitutional and valid compensation ~ 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 Umted 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 ~ DISPUTE RESOLUTION (a) Notwithstanding any other provmon of this Ordinance, the Parties hereto agree that any claim, cause of action or other dispute based upon or arising out of thts Ordinance (a "dispute") shall be conducted, decided, determined and/or resolved pursuant to and in accordance w~th the provisions of this Sectwn The parties desire to resolve disputes arising out of this Ordinance wlthOut htlgatlon Accordingly, in the event of any d~spute hereunder, the Parties hereto agree t° attempt in good faith to resolve their &spute 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 &spute PAGE 20 arising under this Ordinance The part~es' representatives will meet w~thln ten (10) days after the appointment of such representatives and negotiate In good faith to resolve any such dispute (b) Except for actton seeking a temporary restraining order or injunction related to the purposes of th~s Ordinance, or stat to compel compliance with this dispute resolution process, the pames 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 part,es are unable to settle their dispute at the meeting of representatives provided for m subsectmn (a), either party may, on written notice to the other party, initiate non-binding mediat~on of the dispute before a single raediator affihated with Judtcial Arbitration and Medlatmn Servmes, Inc (JAMS) or another mediation service mutually agreeable to the parties Mediation is a forum ~n which an impartial person, the mediator, facilitate communication between the Pames to promote reconciliation, settlement, or understanding among them A mediator may not ~mpose h~s own judgment on the ~ssues for that of the pames Unless expressly authorized by the part~es, the medmtor may not disclose to either party information given in confidence by the other and shall at all t~rnes mmntam confidentiality w~th respect to commumcat~ons relating to the subject matter of the dispute Unless the parties agree otherwise, all matters, mcludmg the conduct and demeanor of the panics 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 afier either party first requests mediation of the other If a single mediator cannot be agreed upon, then each party shall select PAGE 21 ItS own mediator from those on the JAMS approved hst, 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 E C.~_C_T. LQ_.~L~ 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 C~ty official or employee charged with the enforcement of this Ordinance, acting for the City in PAGE 22 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 m the discharge of his said duties ~ 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 C~ty to deny consent to the Telephone Company to occupy and use such Pdghts-Of-Way Both the C~ty 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 anthonty 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 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 PAGE 23 ~ NOTICE For any purposes related to this Ordinance, notice to the City shall be to Office of City Manager City of Denton 215 E McKmney Denton, TX 76201 Notice to the Telephone Company shall be to Nortex Telcom, L L C Attn Alvin M Fuhrman, President P O Drawer 587 Muenster, TX 76252 Notice will be effective upon delivery at the above addresses until the C~ty or the Telephone Company notifies the other, in writing, of a change of address SECTION 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 mvahd~ty shall not affect the vahd~ty of the remaining portions, it being the intent of the C~ty ~n adopUng th~s Ordinance and the Telephone Company m accepting and agreeing to ~t that no portion hereof or provision hereof shall be inoperative or fail by reason of any unconst~tuUonahty or mvahd~ty or any other pomon, provision, or regulation, and to this end, all prowsions of this Ordinance are declared to be severable This Ordinance shall be and ~s hereby declared to be cumulatwe of all other ordinances of the City, and th~s Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provis~ons thereof might be inconsistent or ~n conflict w~th the provisions of this Ordinance, in which event such conflicting provisions, if any m such other ordinance or ordinances are hereby repealed to the extent of such inconsistency All ordinances PAGE 24 and agreements and parts of ordinances and agreements in conflmt herewith are hereby repealed to the extent of such inconsistency Prowded all other ordinances, rules, regulations, and agreements which are not in conflict with this Ordinance and which m any manner relate to the regulation of the City streets, alleys, and public places or the business of the Telephone Company shall remain m 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 ~-~/--}/ // /~]~ , 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 pubhcatlon required by law shall be at the expense of the Telephone Company m addition to other charges provided for herein ~ TRANSFER OR ASSIGNMENT This Ordinance shall not be transferred or assigned by the Telephone Company except w~th 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 25 SECTION 21 OPEN MEETING It is hereby officmlly found and determined that the meeting at whtch this Ordinance is passed open to the pubhc as required by law and that public notice of the time, place and purpose of smd meeting was given as reqmred PASSED AND APPROVED this the ~ ~/~dayof x,~f~ ,199~ MA R ' ~/3 C.~ncfl Men~r ~/}. ^ ~lou~d,Member Council Member. ATTEST JENNIFER WALTERS, CITY SECRETARY ~OVED~S T~ LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY PAGE 26 The above and foregoing ordinance r~ea_~ adopted on riot reading and passed to 5e,4:ond reading by the followlng votes, thlsthe /q dayof t/~//~l? , 19~//~,ataregular session of the Ci~ Council ~aff ~/~ Mayor, voting ~ ~/ ~~ Count,1 Member, young ~/L ~Z ~~6 Council Member, voting ~ '~ ~/L ~~~ Council Member, voting ~ ~ ~ ~z6~~ou~a ~mb~, votms ~ ~ The above ~d foregoing ordinance read, adopted on second re~dmg and passed by the following vot~, th~ ~h~ ~ ~ d~y or ~ , ~0 ~, ~t ~ ~su~ ~on orth~ C~ty Council ~ / ~L~ ~ Councd Member, voting ~ Cou, d vet,ag ~/~ ~~ Conned Member, voting ~ ~/~ ~~ CoBn~II M~mb~r, voting ~ ~fl~ ~/~O~ Council Member, voting ~ ~C ~/ ~ Conned Member, voting ~ , J STA~ OF ~S ~ CO~TY OF DENTON ~ I, ~ ~~, City Secret~ ofthe City of Denton, Texas, do hereby cem~ tha~the 'ab~ and foregoing is a ~e and eo~eet copy of the right-of-way rental agreement between the Ci~ of Denton, Texas, and NORTEX TELCOM, L L C as md~eated hereto The same ~s now recorded m Volume ~ Page ~ of the Ordinance Records of the C~ of Denton, Texas wi~ss ~ ~ th,, tho ~ ~ a,y o~ ~ ~. A ~ ~9 ~ PAGE 27 ACCEPTANCE ,.~WHEREAS,~ the City Council of the City of Denton, Texas, did on the ~ of ,19~, enact an Ordinance entitled AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, AND NORTEX TELCOM, L L C 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 TI-~S ORDINANCE, PROVIDING THE RIGHT OF THE C1TY 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, sa~d Ordinance was on the ~ ~ day of ~'~ 19 duly approved by the Mayor of sa~d City and the seal of said City was thereto affixed and attested by the City Secretary, NOW, THEREFORE, Nortex Telcom, L L C hereby m all respects accepts, approves, and agrees to sa~d Ordinance, and same shall constitute and be binding contractual obhgat~on of Nortex Telcom, L L C and of the City w~thout waiver of any other remedy by Nortex Telcom, L L C or the C~ty and files this its written acceptance with the City Secretary of the C~ty of Denton, Texas, m his/her office. PAGE 28 Dat~dthls ~ dayo£ U~c /7 AD 19 ~ NORTEX TELCOM, L L C ATTEST Assistant Secretary AD PAGE 29