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HomeMy WebLinkAboutO-1992-1834 , . . ORDINANCE NO. 1834 AN ORDINANCE WHEREBY THE CITY OF LA PORTE, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL 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 PERFORMANCE OF CERTAIN CONSTRUCTION WORK ON PUBLIC RIGHTS-OF-WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS: PROVIDING AN INDEMNITY CLAUSE: SPECIFYING GOVERNING LAWS: PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES: PROVIDING FOR FUTURE CONTINGENCIES: PROVIDING FOR PUBLIC NOTICE OF THIS ORDINANCE: PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY THE TELEPHONE COMPANY: AND PROVIDING FOR A TERM AND AN EFFECTIVE DATE. WHEREAS, Southwestern Bell Telephone Company, a private corporation, (hereinafter "TELEPHONE COMPANY") has been engaged in providing telecommunications services in the City of La Porte for over 40 years, and is now so engaged: and WHEREAS, the TELEPHONE COMPANY has operated said business under successive ordinances of the City of La Porte, the last of which being Ordinance No. 419-A, adopted April 4, 1952; and -1- . . WHEREAS, it is appropriate that the city of La Porte, acting by and through its governing body, consent to a continuation of privileges similar to those heretofore granted in Ordinance No. 419- A, but under terms and conditions which take into account changes in technology, the telecommunications industry, and state and federal law; and WHEREAS, it is recognized by the parties that changes in the telecommunications industry, changes in technology, changes in state and federal law, and changes in the accounting practices mandated by the Uniform System of Accounts promulgated by the Federal Communications Commission ("FCC"), along with regulatory requirements of the Texas Public Utility Commission ("PUC"), have caused the traditional method of determining the amount of compensation to municipalities to become administratively impractical and obsolete for telecommunications utilities. In order to resolve these issues in a manner satisfactory to both the CITY and the TELEPHONE COMPANY, 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 -2- , . e resolve any issues in controversy between the parties; and WHEREAS, this Ordinance is adopted by the City Council of the City of La Porte pursuant to the provisions of Article 1175, Section 2, V.A.C.S., Article 1446c, Section 21, V.A.C.S., and Chapter 1, Article II, Section 18 of the Charter of the City of La Porte; 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 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 LA PORTE, 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 -3- . e set forth herein. The TELEPHONE COMPANY may USE such RIGHTS-OF-WAY for its telecommunications FACILITIES. The TELEPHONE COMPANY I 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 constructed, 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 pursui t 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 newly annexed areas upon the effective date of any annexation. SECTION 2 - ADDITIONAL AUTHORITY REQUIRED TELEPHONE COMPANY is not authorized to provide cable television service as a cable operator in the City of La Porte under this Ordinance, but must first obtain a franchise from the CITY for that -4- . e purpose, under such terms and conditions as may lawfully be provided by the City Council. This Section does not preclude the TELEPHONE COMPANY from providing its tariffed services to cable television companies. However, nothing herein shall authorize the TELEPHONE COMPANY to license or lease to any cable television operator not franchised by the CITY the right to use or utilize the TRANSMISSION MEDIA or FACILITIES of the TELEPHONE COMPANY unless Federal or State law allows such cable television operator to conduct its business without first obtaining a franchise from the CITY. 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, condui ts , 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 or across the public RIGHTS-OF-WAY -5- . e for any TELEPHONE COMPANY purposes. (c) CITY: The City of La Porte, Texas. (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public property within the city limits of the CITY. (e) DIRECTION OF THE CITY OR CITY GOVERNANCE: 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, wires or other physical devices used to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other purposes. (g) NON-EXCLUSIVE: no rights 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 discretion, may determine to be in the public interest. (h) TELEPHONE COMPANY: Southwestern Bell Telephone Company. -6- e e SECTION 4 - TERM This Ordinance shall continue for a period of five (5) years from the effective date. SECTION 5 - GENERAL CONDITIONS OF USE (a) Any work done in connection with the TELEPHONE COMPANY'S USE of the RIGHTS-OF-WAY shall be subject to the police power and CITY governance. The TELEPHONE COMPANY may be required to place certain FACILITIES underground according to reasonable requirements that may be adopted from time to time by the La Porte City Council; provided, however, TELEPHONE COMPANY shall be given due notice and shall be entitled to a hearing before the La Porte City Council prior to the adoption of any such requirements. (b) All USE of the RIGHTS-OF-WAY shall interfere as little as reasonably practicable with the use of the RIGHTS-OF-WAY by others. -7- e e (c) The TELEPHONE COMPANY shall permit the City of La Porte to use without charge, solely for its own non-commercial telecommunications purposes, the following described FACILITIES: One duct in all of TELEPHONE COMPANY'S existing ducted FACILITIES within the city limits, with sufficient space for necessary joints. Also, TELEPHONE COMPANY shall provide adequate space on all nonducted FACILITIES now existing or hereafter constructed on or within' the RIGHTS-OF-WAY for the CITY to attach TRANSMISSION MEDIA for the CITY'S own non-commercial use. Where insufficient FACILITIES exist to accommodate the CITY, other existing FACILITIES may be substituted therefore with the concurrence of the CITY. (d) If the TELEPHONE COMPANY shall hereafter extend its existing underground conduits, it shall provide one duct in each additional condui t for the CITY'S own purposes, as provided above. The TELEPHONE COMPANY shall cooperate with the CITY by providing continuous and complete information regarding the location of all conduit, along with such maps, plats, construction documents and drawings as are requested for public safety purposes. The CITY shall not use any FACILITIES which are provided for CITY'S use by the TELEPHONE COMPANY for power transmission purposes, nor otherwise use any such circuits so as to unreasonably interfere with -8- e e telecommunications or FACILITIES; provided, that TELEPHONE COMPANY shall not use high potential wires for power transmission in its FACILITIES, nor otherwise use the same so as to unreasonably interfere with the operation of the CITY'S communications or facilities. TELEPHONE COMPANY and CITY shall cooperate and coordinate their efforts to make the most efficient and economical use of FACILITIES. To this end, the parties will make periodic assessments of their needs, including but not limited to use of FACILITIES and exchange of same to meet requirements. The CITY shall keep TELEPHONE COMPANY aware of its needs and shall notify TELEPHONE COMPANY in writing when it utilizes TELEPHONE COMPANY FACILITIES. (e) CITY shall not sell, lease or otherwise make available its rights to use TELEPHONE COMPANY'S FACILITIES to any third party for commercial purposes. Such rights are provided solely for the non-commercial exclusive use by the CITY. However, this 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 CITY so long as no resale or other commercial use of such facilities shall occur. -9- e e (f) The TELEPHONE COMPANY is not authorized to license or lease to any person or entity the right to occupy or use the CITY'S RIGHTS-OF-WAY for the conduct of any private business. The TELEPHONE COMPANY may be required to attach its TRANSMISSION MEDIA to facilities owned and maintained by any person or entity franchised by the CITY or to permit the transmission media of any person or entity franchised by the CITY to be attached to the FACILITIES owned and maintained by the TELEPHONE COMPANY upon reasonable, non-discriminatory terms. 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 media to TELEPHONE COMPANY'S facilities; provided TELEPHONE COMPANY'S requirements for such insurance and bonds shall be reasonable, as determined by the CITY. In the event the TELEPHONE COMPANY desires to maintain existing attachments or add new attachments of its TRANSMISSION MEDIA to facilities owned by the City of La .Porte it may do so upon reasonable non-discriminatory terms agreed to between CITY and TELEPHONE COMPANY. -10- . e (g) Any such TRANSMISSION MEDIA shall be so located on the FACILITIES as to be safe and not to interfere unnecessarily with the use of the RIGHTS-OF-WAY by others, including persons or entities authorized to use the FACILITIES. The TELEPHONE COMPANY shall not be required to attach its TRANSMISSION MEDIA to the facilities of any other person or entity or to permit the transmission media of any other person or entity to be attached to TELEPHONE COMPANY'S FACILITIES if it can be shown satisfactorily to the CITY that the TELEPHONE COMPANY will be subjected to increased risks of interruption of service or to increased liability for accidents, or if the facilities of such other person or entity are not of the character, design, and construction required by, or are not being maintained in accordance with industry standards or practice. Provided, however, nothing herein shall modify or abrogate the power of the CITY to require the use of FACILITIES as herein above provided. (h) Upon not less than 48 hours advance notice, the TELEPHONE COMPANY shall promptly move or remove its aerial FACILITIES temporarily to permit the moving of houses or other bulky structures when necessary. The expenses of such temporary relocation or removal shall be paid by the party or parties requesting and benefiting from such temporary relocation or removal, and the -11- . . TELEPHONE COMPANY may require such payment in advance. SECTION 6 - 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 water in any gutter or drain, and so that the same will not unduly interfere with ordin~ry travel on the streets or sidewalks. The location and route of all poles, stubs, 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 subj ect to the lawful, reasonable and proper control and DIRECTION OF THE CITY. SECTION 7 - CONSTRUCTION, MAINTENANCE AND EXCAVATION (a) The City shall have the power at any time to order and require the TELEPHONE COMPANY to remove any of its FACILITIES that are dangerous to life or property, and in case the TELEPHONE COMPANY, after reasonable notice to the Division Manager over outside plant engineering and construction, fails or refuses to act, then the -12- e e CITY, at the direction of the City Manager shall have the power to remove or abate the same at the expense of the TELEPHONE COMPANY, all without compensation or liability for damages to the TELEPHONE COMPANY. TELEPHONE COMPANY shall promptly restore to as good condition as before and to the reasonable satisfaction of the City Engineer, all RIGHTS-OF-WAY damaged or excavated by the TELEPHONE COMPANY. Should the CITY reasonably determine, wi thin 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. Engineering plans for projects involving significant amounts of new buried cable and underground conduit systems to be placed in RIGHTS-OF-WAY shall be submitted to the City Engineer for review and approval prior to construction. (b) Except in an emergency, the TELEPHONE COMPANY shall not excavate any RIGHT-OF-WAY without first notifying the city Engineer, and, if approval is required it shall be given if the proposed excavation is in compliance with the requirements of CITY governance. The City Engineer or his designee shall be notified as soon as practicable regarding work performed under emergency conditions, and the TELEPHONE COMPANY shall comply with any -13- e e reasonable requirements of the City Engineer for the restoration of the RIGHTS-OF-WAY within the CITY. SECTION 8 - WORK BY OTHERS, CONSTRUCTION BY ABUTTING OWNERS, ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENT (a) The CITY reserves the right to lay, and permit to be laid, sewer, gas, water, and other pipe lines or cables and conduits, including telecommunications and cable television lines, and to do and permit to be done any underground and overhead work that may be deemed necessary or proper by the CITY, in, across, along, over, or under any RIGHT-OF-WAY or pUblic place occupied by the TELEPHONE COMPANY, and to change any curb or sidewalk or the grade of any street. In performing or permitting such work to be done, the CITY shall not be liable to the TELEPHONE COMPANY for any damages related to such work, nor shall the CITY be liable to the TELEPHONE COMPANY for any damages not proximately caused by the CITY'S, including the Water Department's sole negligence, provided, however, nothing herein shall relieve any other person or corporation from liability for damage to FACILITIES of the TELEPHONE COMPANY. -14- e e (b) In the event that the CITY authorizes abutting landowners to occupy space under the surface of any street, alley, highway, or public place, such grant to an abutting landowner shall be subject to the rights of the TELEPHONE COMPANY described herein. In the event that the CITY plans to close or abandon any RIGHT-OF-WAY which contains any existing TELEPHONE COMPANY FACILITIES, CITY shall, if requested by TELEPHONE COMPANY, (1) reserve a continuing right for the TELEPHONE COMPANY'S FACILITIES, and (2) give notice of the date the La Porte City Council is to consider the closure or abandonment. (c) Whenever it shall be necessary to require TELEPHONE COMPANY to alter, change, adapt, or conform its FACILITIES within the RIGHT-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 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. It is understood and further provided, however, that the CITY shall not require TELEPHONE COMPANY to remove its FACILITIES entirely from such RIGHT-OF-WAY. If the CITY requires the TELEPHONE COMPANY to -15- e e adapt or conform its FACILITIES to enable any other enti ty or person, except the CITY, to use, or to use with greater convenience, RIGHTS-OF-WAY or public property, TELEPHONE COMPAliY 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 the CITY shall never be liable for such reimbursement. (d) For public improvement projects where, after notification that facility relocation is required, the TELEPHONE COMPANY has not, prior to the beginning of construction by the CITY, relocated its affected FACILITIES within the RIGHTS-OF-WAY after being afforded a reasonable length of time to do so as determined by the City Engineer, giving consideration to the scope of the facility relocation, and when such delays are not caused by actions of the CITY, the following procedure will be followed. The CITY shall provide the TELEPHONE COMPANY with reasonable notice of failure to act and request relocation. If the TELEPHONE COMPANY continues to delay, the City Engineer and the TELEPHONE COMPANY'S Division Manager over outside plant engineering and construction will jointly review the relocation request in an expeditious manner to establish a mutually acceptable completion date for the relocation. If the -16- e "e TELEPHONE COMPANY continues to delay or does not meet the revised completion date, the City Engineer shall provide not less than five (5) days written notice to the TELEPHONE COMPANY'S Division Manager over outside plant engineering and construction advising the TELEPHONE COMPANY of the CITY'S intent to effect the relocation of the affected FACILITIES. If after expiration of the written notice required by the preceding sentence, the TELEPHONE COMPANY continues to delay, the CITY shall have the right to effect relocation of the affected FACILITIES and the TELEPHONE COMPANY shall reimburse the CITY for all costs of such relocation. The CITY shall not be liable to the TELEPHONE COMPANY for any damage to such FACILITIES unless proximately caused by the CITY'S gross negligence, and shall not be liable in any event for any consequential damages relating to service interruptions. Such relocation by the CITY will be performed only when the City Engineer determines that it is necessary to prevent disruption of a CITY project. Such relocation will be accomplished by means of temporary construction and in a manner which will not unreasonably disrupt telecommunications services. The CITY shall make every effort to coordinate with the TELEPHONE COMPANY prior to such necessary relocations and will not attempt to relocate such FACILITIES until the CITY has exhausted the foregoing procedures. The TELEPHONE COMPANY shall ultimately be responsible for the final permanent relocation of the TELEPHONE -l7- e e COMPANY'S FACILITIES. 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 overhanging 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 or cables of the TELEPHONE COMPANY. SECTION 10 - INDEMNITY The TELEPHONE COMPANY shall indemnify and hold the CITY harmless from all costs, expenses (including attorney's fees) and damages to persons or property arising directly or indirectly out of the construction, maintenance or operation of the TELEPHONE COMPANY'S FACILITIES located within the public RIGHTS-OF-WAY found to be caused solely by the negligence of the TELEPHONE COMPANY or its agents and employees. This provision is not intended to create a cause of action or liability for the benefit of third parties but is -18- e e solely for the benefit of the TELEPHONE COMPANY and the CITY nor is this provision intended to abrogate the common law or statutory rights of either the CITY or the TELEPHONE COMPANY to indemnity or contribution from the other. 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 construction of the TELEPHONE COMPANY'S FACILITIES on CITY property to the extent permitted by law. -l9- e e" SECTION 12 - ORDINANCE VIOLATIONS The City Council shall have the option to declare this Ordinance terminated at any time for failure of the TELEPHONE COMPANY to comply with any term, condition or provision of this Ordinance, in accordance with the following procedures: (a) If the TELEPHONE COMPANY continues to violate or fails to comply with the terms and provisions of this Ordinance for a period of thirty (30) days after the TELEPHONE COMPANY shall have been notified in writing by the CITY to cure such specific alleged violation or failure to comply, then the CITY may pursue the procedures set forth below to declare that the TELEPHONE COMPANY has terminated all rights and privileges consented to in this Ordinance; provided, however, that if the TELEPHONE COMPANY is alleged to be in violation of any provision of this Ordinance other than the payment of money and if the TELEPHONE COMPANY commences efforts to cure such alleged violation(s) within thirty (30) days after receipt of written notice and shall thereafter prosecute such curative efforts with reasonable diligence until such curative efforts are completed, then such alleged violation(s) shall cease to exist and this Ordinance shall not be declared to be terminated. -20- e e (b) Any such termination shall be declared only by a written decision of the City Council after an appropriate public proceeding before the City Council, which shall accord the TELEPHONE COMPANY due process and full opportunity to be heard and to respond to any such notice of alleged violation or failure to comply. All notice requirements shall be met by providing the TELEPHONE COMPANY at least an additional fifteen (15) days prior written notice of any public hearing concerning the proposed termination of this Ordinance. In addition, fifteen (15) days notice by publication shall be given of the date, time and place of any pUblic hearing to interested members of the public. (c) The City Council, after full public hearing and upon finding a violation or failure to .comply, may either declare this Ordinance terminated or excuse the violation or failure to comply upon a showing by the TELEPHONE COMPANY of mitigating circumstances or good cause for said violation or failure to comply. (d) Neither the TELEPHONE COMPANY'S acceptance of this Ordinance, TELEPHONE COMPANY'S appearance before the City Council at any public hearing concerning proposed termination of this Ordinance nor any action taken by the City Council as a result of any such public hearing, including a declaration of termination or a finding of a -2l- e e violation or failure to comply, shall be construed to waive or otherwise affect the TELEPHONE COMPANY'S right to seek a judicial determination of the rights and responsibilities of the parties under this Ordinance. (e) The TELEPHONE COMPANY shall not be excused from complying with any of the terms and conditions of this Ordinance by the previous failure of the CITY to insist upon or to seek compliance with such terms or conditions. SECTION 13 - COMPENSATION TO THE CITY (a) As compensation for the use, occupancy, oversight, supervision and regulation of the CITY'S RIGHTS-OF-WAY, and in 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 or hereafter levied by the CITY in accordance with State law, the CITY hereby imposes a -22- . . 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 $ll3,300.00. For the second year the Charge shall be $l28,SOO.OO increased by the Growth Factor as set forth in paragraph l3(c), if applicable. For the third year the Charge shall be calculated by adding $l4,SOO.OO to the second year's Charge and that sum shall be increased by the Growth Factor, if applicable. For the fourth year the Charge shall be calculated by adding $lS,OOO.OO to the third year's Charge and that sum shall be increased by the Growth Factor, if applicable. For the fifth year the Charge shall be calculated by adding $lS,OOO.OO to the fourth year's Charge and that sum shall be increased by the Growth Factor, if applicable. For any subsequent year while this Ordinance remains in effect, the above Charge is subject to adjustment by application of the Growth Factor set out in paragraph l3(c). This adjustment for the Growth Factor will be made effective as of each anniversary date of this Ordinance. In no event shall the Charge for subsequent years that this Ordinance is in effect be less than the above amount stated for the fifth year of this Ordinance, except as provided in the case of disannexation as set forth in paragraph l3(e), or as provided in Section l7 herein. The TELEPHONE COMPANY will, according to tariff, bill such Charge to -23- . e the customers billed the customer service charges included within the term "Gross Receipts, 'i as defined herein. Gross Receipts, for 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; and (4) such charges are subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications commission ( II FCC") . The TELEPHONE COMPANY shall adjust its billings to customers to account for any undercollection or overcollection of the Charge due the CITY. (b) The Charge for each year shall be paid in four (4) equal payments. The dates shall be February 28, May 31, August 31 and November 30, with the first payment under this Ordinance due on t:l~~ February _ 28,' 19 93 \)-. In the event of any over or undercollection from customers at the expiration of this Ordinance, -24- . . the TELEPHONE COMPANY may make a pro rata one-time credit or charge to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 13(a). This will be accomplished within 150 days following the date of expiration of this Ordinance. If however, it is impractical to credit any 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 subject to the 'state telecommunications sales tax ("Sales Tax Revenues") applicable to services rendered within the corporate limits of the CITY for the twelve month period ending three (3) months prior to the next anniversary date of this Ordinance by the Sales Tax Revenues for the twelve month period ending three (3) months prior to either the initial effective date or the preceding anniversary date of this Ordinance as applicable. The Growth Factor calculated by the method set forth in the preceding sentence, if greater than one, shall be multiplied by the appropriate year's Charge as stated above. For the fifth and subsequent years of this Ordinance, the Growth Factor, if greater than one, shall be mUltiplied by the then current year's Charge to determine the Charge for the next year. The TELEPHONE COMPANY will adjust its customer billing to account -25- . e 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 TELEPHONE COMPANY, at each anniversary date upon request by the CITY, will provide an estimate of the projected increase in the municipal charge to a typical local customer's bill for the next year. 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. The Growth Factor shall be recomputed to reflect any final, nonappealable adjustments made pursuant to an audit finding by the Texas Comptroller of an inaccuracy in the TELEPHONE COMPANY'S reports of revenues subj ect to state telecommunications sales taxes. The Charge shall be recalculated using the Growth Factor recomputed as specified in the preceding sentence, and the recalculated Charge shall be used for all future calculations required by this Ordinance . Any overpayment or underpayment resulting from such recalculation shall be subtracted from or added to the first installment due the following year. If any overpayment or -26- { ~ . e underpayment shall be due during the final year of this Ordinance, then payment shall be made as follows. In the case of overpayment by the TELEPHONE COMPANY, the CITY shall pay such overpayment to the TELEPHONE COMPANY within l50 days following the expiration of this Ordinance and, in the case of underpayment by the TELEPHONE COMPANY, the TELEPHONE COMPANY shall pay such underpayment to the CITY within 150 days following the expiration of this Ordinance. (d) Such payments shall not relieve the TELEPHONE COMPANY 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 aforesaid, then the CITY agrees that it will apply so much of such payments as may be necessary to the satisfaction of the TELEPHONE COMPANY'S obligation, if any, to pay any such taxes, licenses, charges, RIGHTS-OF-WAY permi t or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes. (e) In the event that either (I) territory within the boundaries of the CITY shall be disannexed and a new incorporated municipality -27- .. . e 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 effecting 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 for 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 or 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 the second month following the Local Sales Tax effective date and the adjusted Charge shall be -28- e e 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 14 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 15 - MUTUAL RELEASES In consideration of the performance by TELEPHONE COMPANY of its obligations hereunder, 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 4l9-A, adopted April 4, 1952 and extended from time to time thereafter, and its predecessor ordinances (hereinafter referred to collectively as "Ordinance 419-A"). This full and complete release -29- e e of claims for any matters under Ordinance 419-A 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 419- A. In consideration of the performance by the CITY of its obligations hereunder, the TELEPHONE COMPANY, its 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 or unknown, against the CITY~ its officers or its employees, arising out of or connected with any matters under Ordinance 4l9-A. 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 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 to be and is not an admission of liability or vulnerability by either party to the other with -30- . e e .. " respect to either the claims or the defenses asserted against the other. SECTION 16 - CONFLICTING ORDINANCES AND AGREEMENTS This Ordinance shall be and is hereby declared to be cumulative of all other ordinances of the CITY, and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances shall not be applicable, to the extent of such inconsistency, with respect to this Ordinance. Provided all other ordinances, rules, regulations, and agreements which are not in conflict with this Ordinance and which in any manner relate to the regulation of the CITY streets, alleys, public places, the business of the Company, or for the protection of the pUblic health, safety or welfare shall remain in full force and effect. -31- . .' e . ...'"1 ... -"l SECTION 17 - FUTURE CONTINGENCY Notwithstanding anything 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, unenforceable, 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 provided that such compensation is recoverable by the TELEPHONE COMPANY in a mutually agreed manner permitted by law for the unexpired portion of the term of this Ordinance. -32- ( " . e .' ... SECTION 18 - GOVERNING LAW (a) This Ordinance shall be construed in accordance with the CITY Charter and CITY Code(s) in effect on the date of passage of this Ordinance or as later amended to the extent that such Charter and Code(s) are not in conflict with or in violation of the Constitution and laws of the United states or the state of Texas. (b) This Ordinance shall be construed and deemed to have been drafted by the combined efforts of the CITY and the TELEPHONE COMPANY. SECTION 19 - 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. This Ordinance shall become effective beginning the first day of the quarter not less than thirty (30) days after its final passage by the CITY. -33- .~ ~ .;. -.. . e SECTION 20 - FUTURE AMENDMENTS This ordinance governing street use may be amended at any time by the mutual agreement of the CITY and the TELEPHONE COMPANY. It is understood that the TELEPHONE COMPANY is currently in the process of negotiating similar ordinances with other cities throughout the state. It is understood and agreed that if an ordinance governing street use with another city in this state contains a provision which the CITY feels would be more advantageous to it than the terms hereof, the CITY may require that that portion of this ordinance be reopened for negotiation. The intent of the parties is that the City of La Porte will be entitled only to treatment comparable to that which was afforded under the ordinance with the other city giving due consideration to the contextual meaning of the provision on which renegotiation is sought and the effect of the proposed amendment on the meaning of the ordinance as a whole. Under no circumstance may an amendment result in a higher level of compensation than that level produced by those methodologies utilized by the TELEPHONE COMPANY to calculate compensation to other cities in Texas nor may an amendment be applied retroactively. -34- ... ". <- ,;. I' . . SECTION 21 -DETERMINATION OF SUFFICIENCY OF OPEN MEETING NOTICE The City Council officially finds, determines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Article 6252-17, Texas Revised civil Statutes Annotated; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. SECTION 22 - PROVIDING FOR PUBLIC NOTICE OF THIS ORDINANCE The TELEPHONE COMPANY shall pay the cost of providing public notice of this Ordinance. -35- . e Passed by City Council on first reading this 27th day of April, 1992. Passed by City Council on second reading this f2Z day Of~. 1992. LA PORTE ATTEST: ~ fUA~ ' Cherle Black, Clty Secretary Aa;~ ~ Knox W. Askins, City Attorney I, Cherie Black, City Secretary of the City of La Porte, Texas, do hereby certify that the foregoing is a true and correct copy of Ordinance No. 1~511, finally passed and approved by the City Council of the City of La Porte, Texas, following the 2nd reading thereof at a regular meeting held on the f~day of , 1992. .~ Cherie Black, City Secretary -36- , . LEGAL NOTICE Pursuant to Article VII, "Franchise and Public Utilities," of the Home Rule Charter of the City of La Porte, notice is hereby given that a proposed ordinance extending the franchise of Southwestern Bell Telephone Company with the City of La Porte, was passed on first reading by the City Council of the City of La Porte, at its regular meeting of April 27, 1992. The proposed franchise extension ordinance will be considered by the City Council of the City of La Porte on second and final reading, at its regular council meeting of June 8, 1992. The full text of the franchise ordinance may be examined by any member of the public, without charge, at the office of the City Secretary of the City of La Porte, 604 West Fairmont Parkway, La Porte, Texas, during regular office hours. The caption of the ordinance is as follows: ORDINANCE NO. 1834 AN ORDINANCE WHEREBY THE CITY OF LA PORTE, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND CONSTRUCT ITS POLES, WIRES, ANCHORS, FIBER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN, ALONG, ACROSS, ON, OVER, THROUG~, 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 PERFORMANCE OF CERTAIN CONSTRUCTION WORK ON PUBLIC RIGHTS-OF-WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS; PROVIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERNING LAWS; PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES; PROVIDING FOR FUTURE CONTINGENCIES; PROVIDING FOR PUBLIC NOTICE OF THIS ORDINANCE; PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM AND AN EFFECTIVE DATE. Cherie Black, City Secretary City of La Porte, Texas