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HomeMy WebLinkAboutOrdinance - 10196-1999 - Granting Touch America Inc. A Franchise Authorizing Public Right Of Way - 09/23/1999' I ll First :Reading ~pt. 23,. 1999 Item Bo. 16 Second :Reading Oct. 14,. 1999 Item Bo. 15 I ORDINANCE NO. 10196 AN ORDINANCE GRANTING TOUCH AMERICA, INC., A FRANCIDSE AUTHORIZING AND GOVERNING THE USE OF CITY PROPERTY AND PUBLIC RIGHTS-OF-WAY TO PROVIDE TELECOMMUNICATIONS SERVICES WITHIN THE CITY OF LUBBOCK. This Franchise Agreement (the "Ordinance"} is made and entered into as of Oct. 14 1999, by and between the City of Lubbock ("City"), a home rule municipal corporation of the State of Texas, and Touch America, Inc., ("Grantee''), a Montana Corporation. WHEREAS, the City, pursuant to federal law, state statutes, and loc~l ordinances, is authorized to grant one or more non-exclusive franchises, on a non-discriminatory and competitively neutral basis, governing the use of City Property and Public Rights-of-Way to provide Telecommunications Services within the City boundaries (Franchise); WHEREAS, the Grantee has submitted an application (the "Application") and all applicable application fees for a Franchise, as required by City Ordinance No. 9971, as amended, ("Telecommunications Ordinance'') relating to the establishment of a non- discriminatory procedure for granting such Franchises; WHEREAS, the City has reviewed the Application, and has concluded that Grantee's Application meets the criteria specified in the Telecommunications Ordinance for granting a Franchise; WHEREAS, the City and the Grantee have agreed to be bound by the conditions hereafter set forth; NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, the parties agree as follows: 1. GRANI. The City does hereby award the Grantee a Franchise governing the use of City Property and Public Rights-of-Way for the purpose of providing Telecommunications Services within the City. Each and every provision in this Ordinance, including this grant, is expressly made subject to the terms, conditions and provisions of the Telecommunications Ordinance, as amended, which ordinance is hereby incorporated herein by reference and which shall govern this Ordinance in all respects and shall be a part hereof for all intents and purposes as if said Telecommunications Ordinance were copied herein in its entirety. 2. DEFINITIONS. Unless explicitly defined in this Ordinance, all definitions shall be the same as, and in accord with, the definitions defmed in the Telecommunications Ordinance. 3. TERM. The term of this Ordinance shall be for one (1) year from the effective date of this Ordinance. 4. FRANCIDSE FEE. The Grantee shall pay the City during the life of Grantee's franchise a monthly Municipal Telecommunications Line Fee for each Access Line and Private Line Termination Point owned by Grantee, calculated at month-end, that is activated for use by an end use customer. For the current calendar year, the monthly Municipal Telecommunications Line Fee shall be fixed in the following amounts: (1) $1.40 per residential Access Line (2) $3.26 per non-residential Access Line or Private Line Termination Point At the beginning of each successive calendar year following the year of adoption of this Ordinance, the monthly Municipal Telecommunications Line Fee shall increase by four percent (4%) over the amount of the monthly Municipal Telecommunications Line Fee fixed for the prior calendar year. The Grantee shall also pay such further compensation as may be negotiated on a case-by-case basis for the use of specific City Property. · In the event the Grantee's month Municipal Telecommunications Line Fee generates annual revenue for the City that is less than fifteen cents ($0.15) per linear foot of right-of-way used by Grantee, Grantee shall make a payment to the City before the last day of the calendar year equal to the difference between the total monthly Municipal Telecommunications Line Fee paid by Grantee that year and fifteen cents ($0.15) per linear foot of right-of-way used by Grantee. 5. OTHER DUTIES. The Grantee shall pay to the City all other moneys, install all other services, and perform and comply with all other terms and conditions applicable to Grantee pursuant to this Ordinance and the Telecommunications Ordinance. 6. INDEMNIFICATION BY GRANTEE. By acceptance of this Ordinance, Grantee expressly undertakes to defend, indemnify and hold the City and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent careless or wrongful acts, omissions, failures to act or misconduct of the Grantee or its 2 : I Affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its Telecommunications Facilities, and in providing or offering Telecommunications Services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Ordinance. 7. GRANPFAIHERING OF IN-KIND FACILITIES. The Grantee shall allow, for so long as this Ordinance remains in effect, the continued use by the City at no charge or cost, and solely for the City's own non-commercial telecommunications purposes, all telecommunications facilities that are currently in use by the City and that have already been provided to the City by Grantee. (pursuant to Section SC of City of Lubbock Ordinance No. 9452) 8. ACCEPTANCE OF FRANCHISE. The Grantee shall, within thirty (30) days from the date of fmal passage of this Ordinance by the City Council of the City of Lubbock, file with the City Manager of the City of Lubbock, a written statement of acceptance of franchise signed in its name and on behalf of its officers, all of whom hereby represent that they are duly authorized to sign and make such an agreement, the contents of which shall include the following language: ''The Honorable Mayor and the City Couricil of the City of Lubbock: ________ _, for themselves, their successors and assigns, hereby accepts the attached franchise ordinance as finally passed by the City Council of the City of Lubbock on the day of ____ -" 199 _, and hereby agrees to be bound by all of its terms and provisions. :~; TITLE: ,t?&; r 6J<7: ~ ~#' tp'& / DATE: ,r;/c: ~ 9. RIGHTS NOT TRANSFERABLE WITHOUT CQNSENI. The rights granted by this Ordinance are not transferable by the Grantee to a third party or a non-controlled affiliate without first complying with all transfer requirements and conditions contained in the Telecommunications Ordinance, which have been incorporated herein, by reference, in its entirety. 3 ! : 10. EXTENT OF FRANCHISE. The Grantee, by the acceptance of this ordinance, understands and agrees that no interest, title or rights of possession are intended or implied except those expressly set forth herein. Grantee further understands and agrees that the rights and uses permitted herein shall not include the right to use any City Property requiring an election for such use. 11. CHANGE IN LAW. IfFederal or State law changes in any way during the term of this Franchise with respect to the amount of compensation (including computation of the compensation) a municipality can charge for such Franchises or with respect to the permissible scope or substantive content of such Franchises, the City and the Grantee agree that upon passage of the change in law, this Ordinance shall be either canceled or renegotiated at the election of the Grantee. 12. SAVINGS CLAUSE. Should any section, paragraph, sentence, clause, phrase, or word of this Ordinance be declared unconstitutional or invalid for any reason, the remainder of this Ordinance shall not be affected thereby. AND IT IS SO ORDERED. Passed by the City Council on first reading this 23nlday of September , 1999. Passed by the City Council on second reading this l.ubday of October '1999 . .... ATTEST: APPROVED AS TO CONTENT: ltbW:-· J Richard Burdine, Assistant City Manager 4 I I APPROVED AS TO FORM: aid G. Vandiver, First Assistant City Attorney ddord!ToucbAmord.doc September 7, 1999 5 ! i 08/09/1999 14:32 8El67753El74 LUBBOCK STREET ENG PAGE El3 Ordinance Ro. 10196 2. REOISIRAIION. . . . . Pursuant to Anicle 2 of the Telecommunications Ordinance, the Registrant provides the rollowing information as a Telecommunications Carrier and Provider. (1) The identity and legal starus of the Registrant, including all affiliates of the Registrant. Touch America. Inc •• a Montana corporatio:o and a wholly Owtled subsidiary ofEntech, Inc., a wholly owned subsidiary of the Montana Power Company. a> A description of the Telecommunications Services that arc or will be offered by the provider within the City of Lubbock over its existing or proposed facilities. Touch America will prqyide long distance telecommynicatio:o services to the city of Lubbock. Ro local access services are planned at this t±me. (3} A description of the Telecommunications facilities located within the City of Lubbock that arc or will be used by the Registrant to offer or provide Telecommunications Services. Touch America will prqyide a "Point of Presence" in I.ubbock :oext to the MCI site. Our facilities will be housed in a 121xl9' concrete building. (4) A description of Registtant•s status with regard to federal and state licensing, certification or other approvals necessary for the Registrant's business or proposed business within lhe City of Lubbock. Fed. ID 81-o424592 Touch 6merica holds a foxeign cotPoration Certificate of Authority in good standing in the state of Texas. RECEIVED AUG· 2 0 1999 CITY SECRETARY LUBBOCK, TEXAS i ; t:H:Ib 1153tJ74 LUBBOCK :, I 1-:!l:.l::. r ENG (S) The name, address and telephone number of the officer. agent o~. employee responsible for the filing of this Registration and who will be able to discuss it with City of Lubbock officials. Duane Wright or Jeff Amerman PO Box 5329 1 30 North HaiR Helena, HT 59604 Butte. HT 59701 (406)442-8788 (406)497-5667 The above information is true and correct to tbc best of my knowledge. REGISTRANT: ' BY c:.--'..J:i~-L-h.•.,-----. - TITLE: S, ~c cou~\o.te->\. · DATE: & 1 \cr tttc, ...... '.