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1954 Ordinances-TX Telephone Company agree that Telephone Company shall run cables under roadways . ORDINANCE NO. AN ORDINANCE WHEREBY THE CITY OF WYLIE, TEXAS AND THE TEXAS TELEPHONE COMPANY AGREE TlllS THE TELEPHONE COMPANY SHALL CON- TINUE TO ERECT AND MAINTAIN ITS POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER PLANT CONSTRUCTION AND APPURT- ENANCES ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS , AVENUES, ALLEYS, PUBLIC GROUNDS AND PLACES IN SAID CITY, AND GRANTING THE RIGHT AND FRANCHISE TO DO SO UNDER REGULATIONS AND RESTRICTIONS AND THAT THE CITY SHALL RECEIVE AN ANNUAL PAYNENT TO BE IN LIEU OF CERTAIN OTHER PAYMENTS AND THE RIGHT TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY, ALL AS HEREIN PROVIDED: WHEREAS, the TEXAS TELEPHONE COMPANY, hereinafter 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 Wylie, Texas, hereinafter 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 p. 1 the conditions under which the Telephone Company shall operate in the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, 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 Tele- phone Company in the City, shall remain as now constructed, subject to such changes as under the limitations and conditions herein prescribed may be considered necessary 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 exercise its right to, and the right and franchise is hereby granted .. it 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 may from time to time be extended, subject to the regulations, limitations and conditions herein prescribed. p. 2 SECTION 2 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS. 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 Councilor of any City official to whom such duties have been or may be delegated. SECTION l - STREET TO BE RESTORED TO GOOD CONDITION. The surface of any street, alley, highway, or public place disturbed by the Telephone Company in building, con- structing, 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 after which time responsibility for the maintenance shall become the duty of the City. No street, alley, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work. p. 3 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 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 hours advance notice to arrange for such temporary wire changes. SECTION 6 - 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, side- walks and public places of the City, so as to prevent the branches of such trees from coming in contact with the wires p. 4 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 Councilor of any City Official to whom said duties have been or may be delegated. SECTION 7 - 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 Companyls poles, conduits, or other telephone equipment or apparatus, and to compensate the City for its superintendence of this agreement, and as the cash considera- tion 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 June 1st, 1954, and shall equal in amount Two Per Cent (2%) of the gross receipts received from January 1st, 1953, to December 31, 1953; and thereafter payment shall be made annually on April 1st as herein provided. SECTION 8 - PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYHENTS 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 p. 5 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 fran- chise tax, whether levied as an ad valorem, special or other character of tax; 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 obligations, if any, to pay any such taxes, licenses, charges, fees, rentals, and easement or franchise taxes. SECTION 9 - FACILITIES TO BE FURNISHED CITY AS ADDITIONAL CONSIDERATION. In addition to the consideration set forth in Section 7, 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 systa~; provided, that the required wire space shall not exceed the wire capacity of one cross-arm on any one pole. Where conduits are laid or constructed by the Telephone Company, said Company shall hold itself ready to furnish sufficient duct space, not to exceed the capacity of one duct in anyone conduit, for use by P. 6 the City in carrying its police and fire alarm wires. The location of this fire and police wire space shall be de- termined in specific applications for space at such time as applications are received from the City and will be allotted in accordance with the rules and regulations of the Bureau of Standards of the United States Department of Commerce; provided, however, that such wires and cables shall be so placed as not to require additional construction by the Telephone Company nor to interfere with the Telephone Company's full use of said poles and conduits, and the Telephone Company shall be under no duty to furnish wire space on its poles or ducts in its conduits if it would require additional con- struction or if it would interfere with the Telephone Company's full use of its poles and conduits. All such wires and cables, whether on poles or in conduits, shall be installed, maintained and operated in such a manner as not to interfere with or create undue hazard in the operation of the telephone system of the Telephone Company. The installation and main- tenance of said wires and cables by the City shall be under the direction of the Telephone Company and in its wire construction the City will follow the suggestions and comments laid down for wire construction in the rules and regulations of the Bureau of Standards of the United states Department of Commerce. It is further agreed that the Telephone Company shall not be responsible to any party or parties whatsoever p. 7 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 fire and police alarm wires pertaining to the City, or the supervision by the Telephone Company of the installation and maintenance of said wires and cables, and the City shall insure, indemnify and hold the Telephone Company harmless against all such claims, losses, demands, suits and judgments. SECTION 10 - 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 attach- ments 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 Telephone Company's conduits. If light or power attachments are desired by the City or for the City, or if the City desires to place electric light or power wires in any duct used by the City, then a further separate non-contingent 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 in- to pole attachment, pole usage, joint ownership, and other wire space and facilities agreements with light and power companies and with other using companies which may be privileged to operate within the City. p. 8 SECTION 11 - PERIOD OF TIME OF THIS ORDINANCE - TERMINATION. This agreement shall be in force and effect for a full term and period of twenty-five (25) years from and after its effective date hereinafter provided. SECTION 12 - NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE. Nothing herein contained shall be construed as giving to the Telephone Company any exclusive privilege. SECTION 13 - SUCCESSORS AND ASSIGNS. The rights, powers, limitations, wties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors and assigns. SECTION 14 - 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 validi ty of the remaining portions of this ordinance. All ordinances and agreements and parts of ordinances and agree- ments in conflict herewith are hereby repealed. Provided, however, that this ordinance shall not revoke or otherwise affect any rights, licenses and privileges heretofore granted by the City to the Telephone Company or to any pre- decessor of the Telephone Company and now possessed and enjoyed by the Telephone Company. SECTION 15 - If the City shall believe that the Telephone Company has breached any provision hereof, the City shall give written - P. 9 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 un- less and until the Telephone Company shall have failed to take steps to eliminate such breach for a period of sixty days after said written notice is given. SECTION 16 - 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 of the same with the City Secretary and upon such acceptance being filed, this ordinance shall effectuate and make binding the agreement provided for by the terms hereof and shall be in effect as in the laws provided. APPROVED this 27th day of May , A. D. 1954. ). /s/ J. H. Edington Mayor ATTEST: /s/ W. W. Housewright City Secretary P. 10 ACCEPTANCE WHEREAS, the City Council of the City of Wylie, Texas, did on the 16th day of April, 1954, adopt an ordinance entitled: "AN ORDINANCE WHEREBY THE CITY OF WYLIE, TEXAS, AND THE TEXAS , 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, AND GRANT- ING THE RIGHT AND FRANCHISE TO DO SO UNDER REGULATIONS AND RESTRICTIONS AND THAT THE CITY SHALL RECEIVE AN ANNUAL PAYMENT TO BE IN LIEU OF CERTAIN OTHER PAYMENTS AND THE RIGHT TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY, ALL AS HEREIN PROVIDED:" and WHEREAS, said Ordinance was on the 16th day of April, 1954, duly approved by the Mayor of said City and the seal of said City was thereto affixed and attested by the City Secretary: NOW, THEREFORE, in compliance with the terms of said ordinance as adopted, approved and attested, the Texas Telephone Company hereby accepts said Ordinance and files this its written acceptance with the City Secretary of the City of Wylie, Texas, in his office. Dated this 4th day of May, 1954. TEXAS TELEPHONE COMPANY By /s/ E. H. Danner President ATTEST: /s/ J. C. Reeves Secretary Acceptance filed in the office of the City Secretary of Wylie, Texas, this 27th day of May, 1954. /s/ W. W. Housewright City Secretary THE STATE OF TEXAS I. COUNTY OF COLLIN I I, the duly appointed, qualified and acting City Secretary of the City of Wylie, Collin County, Texas, hereby CERTIFY that the within and foregoing are true and correct copies of: (1) Ordinance No. duly adopted by the City Council of the City of Wylie, Texas, on the 16th day of April, 1954, and recorded in Vol. of the official minutes of said City. (2) Acceptance of said Ordinance by Texas Telephone 3 , page 145 9 Company duly filed on the 27th day of May, 1954, and 3 , page 145 , of the Official recorded in Vol. Minutes of said City. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said City at Office this 27th day of May, 1954. /s/ W. W. Housewright City Secretary