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1983-111 NOTE Pre-empted by Ordinance No 96-253 NO AN 0RDINANCB WHEREBY THE CITY OF DENTON, TEXAS, 6RANTS THE RIGHT, PRIVILEGE AND FRANCHISE TO GENERAL TELEPHONE COMPANY OF THE SOUTHWBST, GRANTEE, AND ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, ERECT. BUILD, EQUIP, OWN, MAINTAIN AND OPERATE IN, ALONG, UNDER, 0VBR AND ACROSS THE PUBLIC STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS AND PUBLIC GROUNDS OF SAID CITY, SUCH POSTS, POLES. WIRES, CABLES. CONDUitS AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF TELEPHONE AND 0THBR COMMUNICATION SERVICE AND FOR CONDUCIING A GENERAL LOCAL AND LONG DISTANCE TELEPHONE BUSINESS, SET£ING 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 FELEPHONE SYSTEM, AND PROVIDING FOR THE REPEALING OF CONFL1CTING ORDINANCES AND FOR PARTIAL INVALIDITY WHEREAS, General Telephone Company of the Southwest, hereinafter referred to as the "Telephone Lompany", ts now and has been engaged in the telephone and communication business 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 2elephone Company shall operate within the City, Now, 2herefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE LITY OF DENTON, TEXAS, THAT SECTION I GRANt 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 communicat~on services and for conductng a general local and long distance telephone business PAGE 1 SECTION II SUPERVISION BY CITY OF LOCATION O~ POLES AND CONDUIT That all poles to be placed shall be of sound mater~al and reasonably straight, and shall be so set that they will not interfere with the flow of water ~n any gutter or dra~n, and so that the same w~ll Interfere as little as practicable with the ordinary travel on the street or sidewalk The location and route of all poles, stubs, guys, anchors, condu~ts and cables to be placed and constructed by the Telephone Company ~n the construction and maintenance of ~ts telephone system ~n the City, and the location of all conduits to be la~d by the Telephone Company w~th~n the limits of the C~ty under th~s ordinance, shall be sub0ect to the reasonable and proper regulation, control and d~rect~on of the C~ty Council or of any C~ty 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, h~ghway or public place w~th~n the City d~sturbed by the Telephone Company ~n building, constructing, renewlng or maintaining its telephone plant and system shall be restored w~thln 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 sa~d street, alley, h~ghway or public place is broken for such construction or maintenance work, after which t~me the responsibility for the maintenance shall become the duty of the C~ty No such street, alley, h~ghway or public place shall be encumbered for a longer per~od than shall be necessary to execute the work SECTION IV OPERATION AND MAINTENANCE OF TELEPHONE PLANT That the Telephone Company shall maintain its system ~n reasonable operating condition in accordance w~th Texas Public PAGE Utility Commission Service and Transmission Standards at all normal t~mes 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 telephone Company on the request of any person shall remove or raise or lower ~ts 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 ~n advance The Telephone Company shall be g~ven 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 d~rect~on 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 THh TELEPHONE COMPANY That to ~ndemnlfy the City for any and ali possible damages PAGE 3 to its streets, alleys, and public grounds which may result from the placing and maintenance there~n or thereon of the Telephone Company's poles, conduits, or other equipment or apparatus, and to compensate the City for its superintendence of th~s agreement, and as the cash consideration for the same, the Telephone Company agrees to pay to the C~ty annually during the continuance of th~s 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 serwce to customers within the corporate limits of the C~ty The f~rst 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 here~n prowded SECTION VIII PAYMENT OF CASH CONSIDERATION TO BE IN LIhU OF ANY OTHER PAYMENTS hXCEPT USUAL GENERAL OR SPECIAL AD VALORhM TAXES That the City agrees that the consideration set forth in the preceding section hereof shall be paid and received xn l~eu 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 publ,c places of the C~ty, 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 here~n, other than the usual general or special ad valorem taxes now or hereafter lev~ed Should the C~ty not have the legal power to agree that the payment of the foregoing cash consideration shall be in lieu of the taxes, l~censes, charges, fees, rentals, and easement or franchise taxes aforesaid, then the City agrees that ~t w~ll 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 SBCTION IX FACILITIES TO BB FURNISHED CITY AS ADDITIONAL CONSIDERATION That in addition to the consideration set ~orth ~n Section VII, the Telephone Company shall hold ~tself ready to furnish, subject to the use of the C~ty, such w~re space as may be required from t~me to t~me by the City upon the poles now owned or hereafter erected by the Telephone Company ~n the C~ty for the use of the C~ty's police and f~re alarm system, prowded that the required w~re space shall not exceed four w~res on any one pole The location on the poles of th~s fire and police w~re space shall be determined on specific applications for space, at the t~me the applications are received from the C~ty, and will be allotted ~n accordance with the considerations for electrical construction of the On,ted States Department of Commerce, Bureau of Standards In ~ts w~re construction on the Telephone Company's poles, the C~ty w~ll follow the suggestions and requirements la~d down for w~re construction ~n the Rules and Regulations of the Bureau of Standards of the United States Department of Commerce All such w~res shall be constructed, maintained and operated in such manner as not to ~nterfere w~th, nor create undue hazard ~n, the operation o~ the telephone system of the Telephone Company The Telephone Company shall not be responsible to the City for any claims, demands, losses, su~ts, judgments for damages or ~n~ur~es to persons or property by reason of the construction, maintenance, Inspection or use of the police and f~re alarm w~res belonging to the C~ty SECTION X ATTACHMENTS ON POLES NOT HERE AFFECTED That nothing ~n th~s ordinance contained shall be construed to require or permit any electric l~ght or power w~re attach- ments by the C~ty or for the C~ty, except that cable trenches shall be shared w~th the C~ty where englneer~ngly feasible If l~ght or power attachments are desired by the Cxty or for the C~ty, then a further separate noncont~ngent agreement shall be a prerequisite to such attachments by the C~ty, however, 3o~nt use of poles under a separate agreement must be permitted Nothing PAGE 5 here~n contained shall oblxgate or restrxct the Telepone Company ~n exercising ~ts r~ght voluntarily to enter tnto pole attach- ment, pole usage, jotnt ownership, and other wtre space and factltt~es agreements w~th the l~ght and power companies and wtth otherwise using companies whtch may be pnwleged to operate w~th~n the C~ty SECTION XI NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE That nothing herein contained shall be construed as g~v~ng to the Telephone Company any exclusive privileges, and th~s franchise ~s granted sub3ect to all of the pro¥~s~ons of the Charter of the City of Denton SECTION XII SUCCESSORS AND ASSIGNS That the r~ghts, powers, l~mltat~ons, duties and restrictions here~n provided for shall ~nure 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 en3oyed by the Telephone Company, the Telephone Company shall ~ndemn~fy and hold harmless the C~ty from any and all claims for losses, damages and ln3urles 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 r~ghts here~n contracted for, except as herein otherwise provided SECTION XIV PERIOD OF FRANCHISE That the rxght, prxvxlege and franchxse hereby granted shall be for a perxod of twenty (20) years from and after xts effectxve date herexn after prowded SBCTION XV BREACH OF AGREEMENT If the Cxty shall belxeve that the Telephone Company has breached any prov~sxon hereof, the Cxty shall gxve wrxtten notxce thereof to the Telephone Company spec~fxcally poxntxng out the breach complaxned of and the Cxty shall take no further actxon, legal or otherwxse, by reason of any such breach unless PA6E 6 and until the telephone company shall have failed to take steps to elxm~nate such breach for a perxod of s~xty (60) days after sa~d written notxce xs given SECTION XVI PARTIAL INVALIDITY AND R~PEAL PROVISION That ~f any section, sentence, clause, or phrase of thxs ordinance ~s for any reason held to be ~llegal, unrra wres or unconstitutional, such invalidity shall not affect the valxd~ty of the remaining portions of thxs ordinance and agreements ~n conflict herewith are hereby repealed SECTION XVII DELEGATION OF AUTHORITY That the C~ty 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 superv~sxon and regulation of the Telephone Company ~n ~ts exercise of the r~ghts and franchises herein conferred, but the governxng body of the C~ty shall reserve to · tself exclusively and to the full extent possessed, all powers, ~f any, to f~x and regulate charges and rates of the Telephone Company g~ven the C~ty by law and this franchise All lawful powers not delegated by the governing body of the Cxty are reserved to, and shall be exercised by, said governing body exclusively That at all reasonable times, during the continuance of the r~ghts herein granted, the local exchange and general offices of the Telephone Company shall be open to the sa~d governing body or xts designated official for inspection of original contracts, books of account and cost operating records pertaining to ~ts operations covered by thxs franchise Any method of accounting heretofore or hereafter adopted or authorized by any law of the Un~ted States or of the State of 1exas 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 ~t ~s 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 ~n accordance w~th the laws of sa~d State ~n effect at such t~mes, provided, however, that ~f the Telephone Company makes an application to change ex~st~ng rates the Telephone Company agrees to reimburse the C~ty of Denton or reasonable fees and expenses of any ~ndependent study and evaluation of the proposed rates by consultants, engineers, and attorneys specially employed by the C~ty That nothing ~n th~s ordinance ~s ~ntended to add to or detract from any authority granted by the Legislature of the State of Texas to the C~ty to f~x or otherwise regulate the rates and charges of the Telephone Company SECTION XVlX ACCEPTANCE OF AGREEMENT That the Telephone Company shall have s~xty (60) days from and after the passage and approval of thxs ordinance to f~le ~ts written acceptance thereof wzth the C~ty Secretary, and upon such acceptance bexng fxled, th~s ordinance shall take effect and be zn force from and after the date of ~ts passage and approval by the Mayor, and shall effectuate and make b~nd~ng the agreement provided by the terms hereof PASSED AND APPROVED this the ~7'~day of~1985 PASSED AND APPROVED th~s the C~ay of 985 PASSED AND APPROVED th~s the Z/Tlc- day of ~, 1985 I-_ ~Iq~RD Ol STEW~, ~YOR~ ov r xas ATTkST C Gl'FY SECRETLY CITY OF DENTON, TEXAS APPROVED AS TO LEGAL FORM C J TAYLOR, JR , CITY ATTORNEY CITY OF DENTON, TEXAS PAGE 8