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HomeMy WebLinkAbout91-2884~~ SOUTHWESTERN BELL TELEPHONE ORDINANCE NO. 91-2884 ~~ AN ORDINANCE WHEREBY TH$ CITY OF PLAINVIEW, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, .FOR THE PURPOSE OF OPERATING ITS TEGECOMM[JNICATiONS BUSINESS, THE TELEPHONE COMPANY SHAD, MAINTAIN AND CONSTRUCT ITS POLES, WIRES, -ANCHORS; FIBER, CABLES, MANHOLES., CONDUITS AND OTHER PHYSICAL PLANT 'AND APPURTENANCES IN, ALONG, .ACROSS, ON, OVER, THROUGH,. ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC WAYS IN SAID CITY; PRESCRIBING THE ANNUAL COMPENSATION DUE THE CITY UNDER THIS ORDINANCE; PRESCRIBING THE CONDITIONS GOVERNING THE USE 'OF PUBLIC RIGHTS-OF-WAY AND THE PERFORMANCP OF CERTAIN CONSTRUCTION - WORK ' ON PTJBLIC RIGHTS-OF-WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS, PROVIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERNING LAWS; PROVIDING FOR A RELEASE OF AT,T, CLAIMS UNDER PRIOR ORDINANCES; PROVIDING FOR FUTURE CONTINGENCIES;' PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM AND AN EFFECTNE DATE. ~- ~ WHEREAS, Southwestern Bell Telephone company {hereinafter .referred: to as the "TELEPHONE COMPANY") is 'now and has been engaged in the telecommunications business in the 'State of Texas and in furtherance thereof, has erected and maintained certain items of its physical plant i.n. the City of Painvievv, Texas {hereinafter referred to as the "CITY") for many years pursuant to such rights as have been granted it by and under the lawn of the State of Texas, and subject to the reasonable exercise of the police powers granted by and under said laws o the CITY; and WHEREAS, the TELEPHONE COMPANY has operated its telecommunications business in the CITY under successive ordinances of the CITY, the last of which was `Ordinance l~To. 782 adopt d March 4, 1963, which provided compensation "to the CITY` for the 'sup rintendence of that agreement based upon a percentage of gross receipts received by the. TELEPHONE COMPANY from certain local services rendered within the corporate limits of the CITY; and WHEREAS, the CITY and the TELEPHONE COMPANY have chosen. the method of determining the amount of compensation provided for in this Ordinance to eliminate -the expense and time related to audits, to achieve administrative simplicity, to provide the CITY with predictable revenues' and an opportunity for growth and to avoid the expense. ''and delays of litigation which could be necessary to resolve .any issues in controversy between the parties; and WHEREAS, - it is to be the mutual advantage of both the CITY and the - TELEPHONE COMPANY that an agreement should be entered into between the Page l of 9 - -- --,- ,- , ~r-_ -:~~ TELEPHONE COMPANY and the CITY: establishing the conditions under which. the TELEPHONE COMPANY shall maintain and construct its physical. plant in ~,.'" ""~~, the CITY in the future; ~~.. NOW, THEREFORE, BE IT ORDAINED by the .City Council of the. City of Plainview, Texas, ; that • _ SECTION 1. - PURPOSE Pursuant to the laws of the State of Texas, the CITY Charter and this Ordinance, the TELEPHONE COMPANY has the NON-EXCLUSIVE right and privilege to USE the public RIGHTS-OF-WAY in .the City for the operation of a telecommunications system subject to the restrictions set forth herein. The TELEPHONE COMPANY may USE such RIGHTS-OF-WAY for its telecommunications FACILITIES. The TELEPHONE COMPANY'S FACILITIES and TRANSMISSION MEDIA used in or incident to the provision: of telecommunications service and to the maintenance of a telecommunications business by the TELEPHONE COMPANY in the CITY shall remain as now canstructed, subject to such changes as under the conditions prescribed in this ordinance may be considered necessary to the public health and safety. by the CITY in the exercise of its lawful police powers and such changes and extensions as may be considered necessary by the TELEPHONE COMPANY in the pursuit of its telecommunications business . The terms of this Ordinance shall apply throughout the CITY, and to all operations of the TELEPHONE COMPANY within the CITY, and shall include all operations and FACILITIES used in whole or in part in the provision of telecommunications services in the newly annexed areas upon the effective date of any _ annexation . SECTION 2 - ADDITIONAL- AUTHORITY REQUIRED The TELEPHONE COMPANY is .not. authorized. to provide cable .television service in the CITY under:. this. Ordinance,... but:. must, first. obtain a separate agreement from the CITY far that purpose, under :such terms .and conditions as may be required by law. This Section does not preclude the telephone .company .from providing ..its tariffed services to cable television. companies.. SECTION 3 - DEFINITIONS Whenever :used in this Ordinance,. the following words and terms shall have the definitions and meanings provided in this Section (a} FACILITIES: all TELEPHONE COMPANY duct spaces, ..manholes., poles,. conduits,, underground and overhead passageways, and other equipment, structures and appurtenances. and all associated TRANSMISSION MEDIA. (b) USE: any TELEPHONE COMPANY acquisition, construction, reconstruction, maintenance or operation of any FACILITIES in, over, under, along, through: ar across the .public RIGHTS-OF-WAY for .any purpose whatsoever. (c) CITY: The City of Plainview, Texas.... (d) RIGHTS-OF-WAY: all present. and future streets, avenues, highways, alleys, bridges and public properfy, .excluding public buildings, within the city limits of the CITY. `.. Page- 2 of 9 ~l (e) DIRECTION OF THE CITY: all ordinances, laws, rules, regulations, ;~"'~ and charter provisions of the CITY `now in force or that may hereafter be passed.. and adopted which are not inconsistent with this .Ordinance. {f) TRANSMISSION MEDIA: all TELEPHONE COMPANY cables, fibers, i+v%res or other physical: devices used to transmit andlor receive communication .signals, whether analog, digital or of other characteristics, .and whether for voice, data. or other purposes . (g) NON-EXCLUSIVE: no righ~s agreed to in this Ordinance by the CITY shall be exclusive, and the. CITY reserves the right. to grant. franchises, licenses:, easements or permissions to use the public RIGHTS-OF-WAY within the CITY to any person or entity as the CITY, in its' sole discretions, may determine to be in the public interest. (h) TELEPHONE COMPANY: Southwestern .Bell Telephone Company. SECTION 4 -TERM This Ordinance shall continue for a period of three (3 ) years from the effective .date; provided that at the expiration of the initial period:, such term may be extended by mutual written agreement with the CITY and TELEPHONE COMPANY. SECTION 5 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS All poles placed shall be of sound material and reasonably straight, and shall be set 'so that they will not interfere with the flow of Tcvater in any gutter or drain, and so that the same will not unduly interfere with ordinary. travel on the streets or sidewalks. The location and route of `~. all poles , tubs - guys, anchors , conduits , ..fiber and cables placed and constructed by the TELEPHONE COMPANY in the construction and maintenance of its telecommunications system in the CITY shall be subject to the lawful., .reasonable and proper control and DIRECTION OF THE .CITY. Whenever it shall be necessary the .CITY can require the TELEPHONE COMPANY to change facilities within the RIGHTS-OF-WAY, without .charge to the CITY. Changes must be made promptly. TELEPHONE COMPANY can present- 'alternative proposals, which must be given due consideration by '.the CITY. The' City may not require the removal of FACILITIES from' 'the RIGHTS-OF-WAY. If a change is for the convenience of another party, the TELEPHONE COMPANY is not required.. to make such changes until the other party pays. for any loss and expenses caused thereby. Thee City: will not be .liable to the TELEPHONE COMPANY for damages for service interruptions as result of such changes . SECTION 6 - ATTACHMENTS TO POLLS AND SPACE IN DUCTS Nothing contained' in this` Ordinance shall ' be construed. to require or permit any pole attachments. for electric light or power wires or communications facilities or systems not provided ` by the TELEPHONE COMPANY to be attached to the TELEPHONE COMPANY'S poles or ether physical plant or placed in the TELEPHONE COMPANY'S conduit. If the CITY desires pole attachments for electric light or` .power wires or communications facilities or systems not provided by the `TELEPHONE COMPANY, or if the CITY desires to place ~~ communications facilities or systems .not provided by the TELEPHONE i COMPANY in any mELEPHONE COMPANY duct, then a 'further. separate, ~," noncontingent agreement shall be prerequisite to such attachment(s)' or such Page 3 of 9 72 use of any duct by the CITY. Nothing contained. in this. Ordinance shall obligate... or restrict the TELEPHONE COMPANY in exercising its rights voluntarily to enter into pole.. attachment, pole usage, joint ownership or other wire space or facilities agreements with light and/or power companies or with ' °- other -wire-using companies which are authorized to operate... within the CITY. SECTION 7 - STREETS TO BE RESTORED TO PRE-EXISTING CONDITION The surface of any public street, avenue, highway, alley or public place. disturbed: by the TELEPHONE COMPANY in the construction or maintenance ' of its telecommunications system shad be ,restored within a reasonable time after the completion of .the work to as good. a condition as before the commencement of the work. Should .the CITY .reasonably determine, within one year from the date of such restoration,... that. such surface requires additional restoration work to place it in as good a condition as before the commencement of the work, the TELEPHONE COMPANY shall perform such additional restoration work to the reasonable satisfaction of the CITY. No public street, avenue.,. highway, alley or public place shall be encumbered. for a longer period than shall be necessary to :execute all work:... The TELEPHONE. COMPANY will provide the CITY .with timely, complete and lon 'th ma s continuous information regarding location of all.- conduits., a g wl p , plats, and construction documents and drawings as exist or may be created. The TELEPHONE COMPANY will submit plans for: projects involving significant under oun:d FACILITIES o be ' laced in ''RIGHTS-OF-WAY to the amounts of P ', CITY, for .review and approval ,prior to construction. _ Except in an emergency, the TELEPHONE. COMPANY will not excavate any - o the ..CITY. If a roval is re uired RIGHTS-OF WAY without prior notice, t pp q y `, it will be .given if, the proposed ..excavation is in compliance with the Direction ~~ of the CITY.. SECTION 8 - TEMPORARY REARRANGEMENT OF AERIAL WIRES .:Upon. request, the TELEPHONE COMPANY shall remove or raise ar lower its aerial wires, fiber or cables ,temporarily to permit the moving of houses or other bulky ,structures . ~, The reasonable and necessary expense of such temporary rearrangements s ,'ball be paid by the parts= ar parties requesting them, .and the TELEPHONE ~ COMPANY may .require payment in advance. The TELEPHONE COMPANY shall be, given not less' than forty-eight (48) ;hours advance notice to ',arrange for such temporary rearrangements . SECTION 9 - TREE TRIMMING The right, license, privilege and permission is hereby granted to the TELEPHONE COMPANY, its contractors and agents, to trim' trees': upon and averhangi.ng :the streets, avenues.; highways, alleys, sidewalks and public places of the CITY so as to prevent the branches of such trees from coming.. in contact. with the aerial wires, fiber ar cables of the I COMPANY and when so directed b the CITY or of any:.CITY ' TELEPHONE y official'to whom. said duties, have been or may be, delegated'. SECTION 10 - INDEMNITY The TELEPHONE COMPANY shall indemnify and hold the CITY .:harmless from all costs, expenses (including attorney's fees) anal damages to persons or property. arising directly or indirectly out of the E COMPANY'S construction, maintenance or operation of the :TELEPHON ~ FACILlTIES located within the public .RIGHTS-C)F-WAY faunal to be caused.. ~, Page 4 of 9 73 soley by negligence of the TELEPHONE COMPANY.. This. provision is not / ~ ~ intended to create a .cause of action or liability for the benefit of third ~ parties but is solely for. the benefit of the TELEPHONE COMPANY and the _ _ CITY. SECTION 11 -ADMINISTRATION OF ORDINANCE (a) The CITY may, at any time, make inquiries pertaining to this Ordinance and the TELEPHONE COMPANY shall respond to such inquiries on a timely basis (b) Copies of petitions, .applications, ..communications and reports submitted by the TELEPHONE .COMPANY to the Federal Communications Commission or the Public Utility Commission of Texas shall be provided to the CITY upon request. (c) The CITY may establish, after .reasonable. notice, such rules and regulations as may be appropriate for the administration of this Ordinance and the constxiuction of the TELEPHONE COMPANY'S FACILITIES on CITY property' to the extent "permitted by -law. SECTION 12 -COMPENSATION TO THE CITY (a} As compensation for the use,.: occupancy, oversight, supervision and regulation of the CITY'S RIGHTS-OF-WAY, and ixi lieu of and in full compensation for any lawful. tax or license or charge or 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 franchise tax or other character of charge 'for use and occupancy of the RIGHTS-OF-WAY within the CITY, except the usual general ad valorem taxes, special assessments in accordance with State law or sales taxes now ar hereafter levied by the CITY in .accordance. with State law, the City hereby imposes a charge upon .the Gross Receipts (as hereinafter defined} of the TELEPHONE COMPANY. The amount of the charge for the first :year this Ordinance- is in effect shall be $90, 000..00. For the second year this Charge shall be $100,000.00'ncreased. by_the Growth Factor as set forth in paragraph 12{c), if applicable. For the third year the Charge shall be calculated by adding $11, 500.00 to the second years Charge and that sum shall be increased by the Growth Factor, if-applicable. The TELEPHONE COMPANY will, according to tariff, bill such Charge to the customers billed the customers service charges,, included within the term "Gross Receipts," as defined herein. Grass Receipts, for 'the purposes of this Charge,. shall include only customer service charges which meet all four of the following conditions : (1) such charges are for TELEPHONE'- COMPANY services provided within the CITY; (2) such charges are' billed through the TELEPHONE COMPANY'S Customer Records Information System {~'CRIS") (3) such charges are the recurring charges for the local exchange access rate element specified in the TELEPHONE .COMPANY'S tariffs filed with the PUC; (4) such charges rare subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications Commission { "FUC") Far the second and subsequent years while this .Ordinance remains in effect, Page 5 of 9 74 the above Charge is subject to adjustment by application of the Growth:. Factor set out in paragraph 12(c). This adjustment for the Growth Factor will be ~~,~. made effective as of each anniversary' date of this Ordinance.. ~, The TELEPHONE COMPANY shall adjust its billings to customers accounts for any undercollection or overcollection for the :prior year. (b) The Charge for each year shall be paid in four- (4) equal installments on May 31, August _31, November 30, and February 28, except for the final installmenf for the last year which shall be due as hereafter provided. This final installment for the year in which this Ordinance expires, after making any necessary :...adjustment for the balance of any overcollection or undereallection of the Charge to or from the TELEPHONE COMPANY'S customers, shall be .paid to the -CITY within one hundred fifty (150) days following the date of expiration of this ordinance . In the event of any overcollection balance from customers at the expiration of this Ordinance, the TELEPHONE COMPANY may make a pro rate one-time credit to the customer billing ,for affected customers who are .billed for a service included within Gross Receipts; as defined in paragraph 12(a} provided, however,. if it is impractical to credit. such overcollection, to customers, then such overcollection shall be paid to the CITY. (c) The Growth Factor shall be calculated by dividing the TELEPHONE COMPANY`S ..revenues .within the corporate limits of the CITY. ubject to the State Telecommunications sales tax ("Sales. Tax. Revenues") applicable - to services rendered within the corporate omits `of the CITY for the twelve month. period ending three (3) months prior to the next anniversary date of by the Sales Tax Revenues fore the twelve month .period ending this .Ordinance.. ~,~ . three (3) months prior to either the initial effective date or th.e preceding anniversary ...:.date of this Ordinance as 'applicable . The Growth Factor. calculated by the method set forth in the preceding sentence, if greater than. shall be .multiplied. by the appropriate year`s charge as stated above. one,. . The TELEPHONE COMPANY will adjust its customer billing to account for the Growth Factor:. calculated above. Once the Growth Factor calculation is completed, .the TELEPHONE :COMPANY will provide the CITY with the Sales Tax Revenues :.upon which the Growth Factor calculation. was based. The CITY agrees_ to rely upon audits by the Texas Comptroller of Public Accounts of State Telecommunications .sales .taxes as reported by the TELEPHONE COMPANY which are performed in compliance with Sections 151.023 and 151.027. of the Texas Tax Code Annotated (Vernon`s 1982) . (d) Such :payments shall not relieve. the TELEPHONE C(JMPANY from paying all. applicable municipally owned utility service charges. Should the CITY not have the legal power to agree. that the payment ,of the foregoing charge ..shall be in ..lieu of _the taxes, licenses; .charges; .RIGHTS-OF-WAY permit or inspection fees,: rentals, RIGHTS-OF-WAY easements or franchise .taxes 'CITY ;agrees that it .will apply so much of such payments aforesaid, then the. . as may be necessary to the satisfac#ion of :the TELEPHONE COMPANY'S obligation, if any, to pay any such.. taxes, licenses, charges, RIGHTS-OF-WAY permit or .inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes. ~ ~' Page 6 of 9 (e) In the `event- that either (1) territory within the boundaries of the CITY %- ~ shall be dsannexed and a new incorporated municipality created' which includes such territory or` (2) an entire, existing incorporated municipality shall ' be consolidated or annexed into the CITY, then notwithstanding any other .provision of this Ordinance, the Charge =shall be adjusted. To accomplish this adjustment, within thirty days following the action affecting a disannexation/annexation as described above, the CITY shall provide the TELEPHONE COMPANY with maps of the affected area(s) showing. the new boundaries of the CITY. In the event of an annexation as described above, the Charge fore the CITY will be adjusted to include the amount- of the payment by the TELEPHONE COMPANY to the existing incorporated municipality being annexed. In the event that the annexed municipality had no ordinance imposing a charge. ar in the event of a disannexation, then the adjustment to the charge ..will be calculated using the effective date of the imposition of Local Sales Taxes as determined by the Texas Comptroller of Public Accounts . The adjustment shall be the percent increase/decrease in the TELEPHONE COMPANY'S Gross .Receipts as defined herein for the CITY 'for the first calendar month following the .Local 'Sales Tax effective date :compared to the last month prior to such effective date. This adjustment to the charge will be made on the first day of thee' second month following the Local Sales- Tax effective date and the adjusted charge shall be prorated ` from that date through the remainder of 'the payment year. The charge as adjusted shall be used: for all future calculations required by this Ordinance. '_ SECTION 13 -ASSIGNMENT OF ORDINANCE This Ordinance and any rights `:_, ; ; or privileges', hereunder shall not be assignable to any other `entity without the express' consent' of the CITY. Such consent shall be evidenced by an ordinance which shall fully recite the terms and conditions, if any, upon which such consent. is given.. SECTION 14 - MUTUAL. RELEASES The CITY hereby.. fully releases., discharges,. settles and compromises any.- and all claims which the ;CITY has made or could. have made arising out of or connected with Ordinance Number 782 adopted March 4, 1963, and renewed ' or extended', from time to time thereafter,. and its predecessor ordinances, if any, (hereinafter referred to collectively as "Ordinance 782") . This full and complete release of claims for any matters under Ordinance 782 shall be for the benefit of Southwestern Bell Telephone Company; its parent; its affiliates; their directors, officers and employees; successors and.. assigns; and includes any and all' claims,. actions, causes of action and controversies, presently known 'or unknown, arising directly- or indirectly 'out °of or connected with .the TELEPHONE COMPANY'S obligations to the CITY pursuant to the provisions of Ordinance 782. Southwestern Bell Telephone Company, it's parent, its affiliates,. successors and assigns. hereby .fully release, discharge, settle and compromise any and all' claims,.. actions, causes of action or controversies heretofore made or which could have been- made,' known ar unknown, against the -CITY, Fits officers or its employees, arising out of or connected with any matters under Ordinance 782. ~/ It is the intent of the CITY and the TELEPHONE .COMPANY to -enter into the ~~-- -' foregoing mutual releases in order to reach a compromise that is Page 7 of 9 75 acceptable to both the CITY and the TELEPHONE .COMPANY. This Ordinance and the mutual releases.. set forth in this' Section represent a compromise of each party's. claims as well as each party's: defenses., and is ..not intended tq be, and is not an admission of liability or vulnerability by either party to `the other srvith respect to either the claims or ...the defenses asserted against the. other.- SECTION 15 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS Ordinance No. ?82 adopted:. March 4 1963, is hereby repealed;' provided however, such repeal shall. take effect at 11:59 p.m. on the day immediately preceding the effective date specified in the Section of thin Ordinance entitled "ACCEPTANCE OF AGREEMENT AND .EFFECTIVE DATE" . All other. ordinances and agreements and parts of ordinances and agreements in conflict herewith are also repealed, .which repeal shall take effect at the time and on the date specified in the preceding sentence. SECTION 16 -FUTURE' CONTINGENCY Notwithstanding anythimg contained in this Ordinance to the contrary, in the event that (a) this Ordinance or any part hereof, (b) any tariff, provision by which the TELEPHONE COMPANY seeks to collect the Annual Charge imposed by this Ordinance, or (c) any procedure provided in .this Ordinance, or (d) any compensation due the CITY under this Ordinance; becomes or is declared or determined by a judicial, administrative or legislative authority.. exercising its jurisdiction to be excessive, .unrecoverable, void, unlawful -or otherwise inapplicable, in whole or in part.,.. the TELEPHONE COMPANY and. CITY shall meet and negotiate a new ordinance that is in compliance with the authority's decision or enactment and, unless explicitly prohibited?:, the new ordinance shall provide the CITY with a level of compensation comparable to that set forth in this Ordinance pravded that such compensation is recoverable by the TELEPHONE COMPANY in a ,mutually agreed manner by law for .the unexpired portion of the term of this Ordinance . SECTION 1? - GOVERNING LAW.. (a} This.. Qrdinance shall be construed in accordance with the CITY Charter and CITY code(s) in effect on the date of passage of this .Ordinance to the extent That such Charter and code(s).. are note. in .conflict with or-in violation of the" Constitution and laws of the United States of the State of Texas . (b) This Ordinance shall be construed and deemed to ha~re been drafted by the combined efforts of the CITY ,and .the TELEPHONE .COMPANY. SECTION 18 -ACCEPTANCE OF AGREEMENT AND EFFECTIVE: DATE The City. _ shall deliver' a .properly certified. copy of this Ordinance to the TELEPHONE COMPANY within three (3) working days of its final passage. The TELEPHONE 'COMPANY shall have thirty (30) days .from and after the final passage of this Ordinance to file its written acceptance of this Ordinance `with the City Secretary. If the TELEPHONE COMPANY does not file written acceptance with the CITY within thirty days, this Ordinance is void. This Ordinance shall become -effective beginning ,the first day of the, second .month. following acceptance by the TELEPHONE COMPANY. PASSED AND APPROVED this the 24th day of September, .1991. ~~1 ~~...:./ f ~~~_, Page 8 of 9 ~\ 77 ,~ f;.~ ;. ~' ~~ E. V. Ridlehuber, Mayor ATTEST• Karen McBeth, City Secretary APPROVED AS TO CONTENT: James Jeff rs , ity pager Page 9 of 9 --: ~._ _