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Ord 2138 12/14/1964 ORDINANCE NO. 2138 AN ORDINANCE WHEREBY THE CITY OF WICHITA FALLS, TEXAS, AND THE SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT THE TELEPHONE COMPANY SHALL CONTINUE TO ERECT AND MAINTAIN ITS POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER PLANT CONSTRUCTION AND APPURTENANCES ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, ALLEYS, PUBLIC GROUNDS AND PLACES IN SAID CITY, UNDER REGULATIONS AND RESTRICTIONS AND THAT THE CITY SHALL RECEIVE AN ANNUAL PAYMENT AND THE RIGHT TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY, ALL AS HEREIN PROVIDED: WHEREAS, the Southwestern Bell Telephone Company, herein- after referred to as the "Telephone Company, is now and has been engaged in the telephone business in the State of Texas and in furtherance thereof, has erected and maintained certain items of its plant construction in the City of Wichita Falls, Texas, here- inafter referred to as the "City, " for many years pursuant to such rights as have been granted it by and under the laws of the State of Texas, and subject to the exercise of such reasonable rights of regulation under the police power as have been also lawfully granted by and under said laws to said. City; 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 Telephone Company and the City' establishing the con- ditions under which the Telephone Company shall operate in the City, NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1 - CONSTRUCTION AND MAINTENANCE OF TELEPHONE PLANT AND SERVICE The poles, wires, anchors, cables, manholes, conduits and other plant construction and appurtenances, used in or incident to the giving of telephone service and to the maintenance of a telephone business and system by the Telephone Company in the City, shall remain as now constructed, subject to such changes as under the limitations and conditions herein prescribed may be considered nec- essary by the City in the exercise of its lawful powers and by the Telephone Company in the exercise of its business of furnishing telephone service; and the Telephone Company shall continue to exer- cise its right to place, remove, construct and reconstruct, extend and maintain its said plant and appurtenances as the business and purposes for which it is or may be incorporated may from time to time require along, across, on, over, through, above and under all the public streets, avenues, alleys and public grounds and places within the present limits of the City and within said limits as the same from time to time may be extended, subject to the regulations, limitations and conditions herein prescribed. SECTION 2 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUIT 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 inter- fere 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 tele- phone 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 Board of Aldermen or of any City official to whom such duties have been or may be delegated. SECTION 3 - STREETS TO BE RESTORED TO GOOD CONDITION Whenever the Telephone Company desires to make excavations along, across, or in any of the streets, avenues, highways, alleys, or other public places of said City, it shall give City prior notice thereof, and all streets, avenues and sidewalks in any manner excavated or disturbed by Telephone Company 'shall be restored within a reasonable time after the completion of the work to as good a condition as before commencement of the work. All such work shall be done in accordance with the Ordinances and regulations of the City governing construction within the public right-of-way, which require that only a bonded contractor can perform such restoration work. Maintenance of such restorations shall also be governed by the applicable City Ordinances. All costs for any such restoration work shall be borne by the Telephone Company. SECTION 4 - OPERATION AND MAINTENANCE OF TELEPHONE PLANT The Telephone Company shall maintain its system in reasonable operating condition 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 5 - TEMPORARY REMOVAL OF WIRES The Telephone Company on the request of any person shall remove or raise or lower its wires 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 benefitted party or parties, and the Telephone Company may require such payment in advance. The Telephone Company shall be given not less than forty- eight hours advance notice to arrange for such temporary wire changes. SECTION 6 - MOVING OF UNDERGROUND CONDUITS Whenever by reason of the changes in the grade of any street or the manner of 'constructing any water pipes, sewers, gas pipes, or any other underground structure for any purpose whatever, it shall be deemed necessary by the Board of Aldermen of the City to alter, change, adopt or conform the conduits of grantee thereto, such alterations or changes shall be promptly made by Telephone Company when ordered in writing by the City Manager, without claim -2- . for reimbursement or damages against the City; provided, however, that the City shall not require Telephone Company to remove its con- duits from such street, alley, highway or public place, and if the City shall require Telephone Company to adopt or conform its con- duits or in any way or manner to alter, relocate or change its pro- perty to enable any other corporation or person, except the City, said street,use, or to use with greater convenience, sa id tr et, alle y, highway or public place, Telephone Company shall not be bound to make any such changes until such other corporation or persons shall have undertaken, with solvent bond, to reimburse Telephone Company for any loss or expense which will be caused by, or arise out of such change, alteration, or relocation of Telephone Company' s property; provided, however, that the City shall never be liable for such reimbursement® SECTION 7 ' — INFORMATION CONCERNING LOCATION OF UNDERGROUND CONDUITS At least once each year Telephone Company shall furnish to the City two copies of maps showing the location of all underground conduits or other equipment located within public property. Unless it is impracticable to do so, the location of all underground conduits or equipment shall be shown by markers placed on the ground. In the event such maps or markers are not provided, the City shall not be liable for any damage to such conduits or equipment caused by City. SECTION 8 - PLACING NEW EXTENSIONS UNDERGROUND Whenever Telephone Company extends its lines into any new sub- division within the City, the. City may require, if deemed advisable by the Board of Aldermen, that such new lines be run underground. SECTION 9 - TREE TRIMMING 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 Board of Aldermen or of any City official to whom said duties have been or may be delegated. SECTION 10 - ANNUAL CASH CONSIDERATION TO BE PAID BY THE TELEPHONE COMPANY To indemnify the City for any and all possible damages 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 telephone equipment or apparatus, and to com- pensate 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 the agreement a sum of money equal to two per cent (2%) of the annual gross receipts for the preceding year received by the Company from the rendition of local exchange telephone transmission service within the corporate limits of the City. The first payment hereunder shall be made March 15, 1965, and shall equal in amount two per cent (2%) -3- of the gross receipts received from January 1, 1964, to December' 31, 1964; and thereafter payment shall be made annually on March 15 as herein provided® SECTION 11 - PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYMENTS EXCEPT USUAL GENERAL OR SPECIAL AD VALOREM TAXES 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 other character of 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 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 obli- gations, if any, to pay any such taxes, licenses, charges, fees, rentals, and easement or franchise taxes. SECTION 12 - FACILITIES TO BE FURNISHED CITY AS ADDITIONAL CONSIDERATION In addition to the consideration set forth in Section 10, 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 the wire capacity of one cross arm on any one pole The location of 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 allott- ed 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. Where conduits are laid or are constructed by, the Telephone Company, said Company shall hold itself ready to furnish sufficient duct space not to exceed capacity of one duct for use by the City in carrying its police and fire alarm wires. All such wires, whether on poles or in conduits, 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. It is further agreed that the Telephone Company shall not be re- sponsible to any party or parties whatsoever for any claims, demands, losses, suits, judgments for damages or injuries to persons or property by reason of the construction, maintenance, inspec- tion or use of the police and fire alarm wires belonging to the City, and the City shall insure, indemnify and hold the Telephone -4- , �4 Y Company harmless against all such claims, losses, demands, suits and judgments. ' SECTION 13 - ATTACHMENTS ON POLES AND SPACE IN DUCTS NOT HERE AFFECTED Nothing in this ordinance contained shall be construed to require or permit any electric light or power wire attachments by the City or for the. City, nor to require or permit any electric light or power wires to be placed in any duct used by the City in the Tele- phone Company' s conduits. If light or power attachments are desired by the City or for the City, or if the. City desires to place elec- tric light or power wires in any duct used by the City, then a further separate noncontingent agreement shall be prerequisite to such attachments or such use of any duct used by the City. Nothing herein contained shall obligate or restrict the Telephone Company in exercising its right voluntarily to enter into pole attachment, pole usage, joint ownership, and other wire space and facilities agreements with light and power companies and with other wire using companies which may be privileged to operate within the City. SECTION 14 - PERIOD OF TIME OF THIS ORDINANCE - TERMINATION This agreement shall be in full force and effect for the period beginning November 19, 1964, and ending September '30,'' 19'71, pro- vided that at the end of the initial period, such term may be re- newed for two successive periods of five years each; conditioned, however, that during the last four months of each period not less than ninety days prior written notice shall be given by Telephone Company to the City of Telephone Company' s desire that the term be renewed, and the City shall have the right to either allow the renewal or refuse to allow it. If the Telephone Company fails to give to City such notice of its desire that the agreement shall be renewed, then City shall have the right to terminate this agree- ment at any time thereafter. SECTION 15 - NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE Nothing herein contained shall be construed as giving to the Telephone Company any exclusive privilege. SECTION 16 - 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 successors and assigns. SECTION 17 - PARTIAL INVALIDITY AND REPEAL PROVISIONS If any section, sentence, clause or phrase of this ordinance is for any reason held to be illegal, ultra vires or unconstitutional, such invalidity shall not affect the validity of the remaining portions of this ordinance. All ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed. -5- ,—IN '-IN M i i 4 SECTION 18 - LIABILITY OF CITY During the period this ordinance is in existence and enjoyed by said Telephone Company, the Telephone Company shall indemnify and hold harmless the said City from any and all claims for losses, damages and injuries occasioned to or sustained by any person, firm or corporation, or their property by reason of the existence, main- tenance, operation or continuance of this ordinance and the exercise of all rights herein granted by the said City except as herein other- wise provided. SECTION 19' - ACCEPTANCE OF AGREEMENT The Telephone Company shall have 60 days from and after the passage and approval of this ordinance to file its written acceptance thereto with the City Clerk, 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. Passed and approved this 14th day of December, A. D. , 1964. 1 ,L/ r hi � ,_" Mayor ATTEST: City Clerk