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Home My WebLink AboutOrdinance - 10068-1998 - Granting Tech Telephone Co Ltd. Provide Telecommunications Services - 04/23/1998First Reading Item IHS April 23, 1998 Second Reading Item #11 May 14, 1998 ORDINANCE NO. 10068 AN ORDINANCE GRANTING TECH TELEPHONE COMPANY, LTD., A FRANCHISE 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 May 15, 1998, by and between the City of Lubbock ("City"), a home rule municipal corporation of the State of Texas, and Tech Telephone Company, Ltd., ("Grantee"), a Texas limited partnership. WHEREAS, the City, pursuant to federal law, state statutes, and local 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. GRANT. 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 defined in the Telecommunications Ordinance. 3. TERM. The term of this Ordinance shall be for three (3) years 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) $1.3 5 per residential Access Line (2) $3.13 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 ofthis 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 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. GRANDFATIIERING 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 final 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 Council 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 tenns and provisions. GRANTEE: BY: ______________________ __ TITLE: __________ __ DATE: __________ _ 9. RIGHTS NOT TRANSFERABLE WITHOUT CONSENT. 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. If Federal 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 23rdday of April ' 1998. Passed by the City Council on second reading this 14tJnay of May , 1998. 1kv~ ATTEST~-- . .. .. -_...,..,- APPROVIID ASTO CONTENT: &e~~ 4 APPROVED AS TO FORM: d G. Vandiver, First Assistant City Attorney ddordltccfon.ord Aprill, 1998 s Tech Telephone Company Limiled Partnership City Fl'llllChise Fee for lhe QuarteT Ended March 31.1999 Ordinance No: 9971 In accordance wilh City Ordinane&-NIIJIIber 9971. T&-eh Telephone Company aubmil.s city franchise fees in !he amount of$10,123.18 for lhe use of public rights of way wilhin the City of Lubbock forlhe provision of relecommunications services. Tbc tolal111110Wlt of city franchise feel! is calculated as follows: Janua!l February Residential Non-Residential Residential Non-Residential Number of AcC&'SS Lines 1,646 157 1,954 238 x Fee peraccess line SI.3S $3.13 Sl.lS $3.13 $2,222.10 $491.41 $2,637.90 $744.94 Monlh Residential Non-residential Tolal October $2,222.10 $491.41 S2,713.SI November $2,637.90 $744.94 $3,382.84 Dccembc:r $3,006.45 $1,020.38 $4,026.83 Total City Franchise Fee S71866.4S $2,256.73 $10!123.18 March Residential Non-Residential 2,227 326 St.3S $3.13 S3,006.4S $1,020.38 TECH TELEPHONE COMPANY, l TO Mr. Don Vandriver City of Lubbock City Attorney's Office P.O. Box 2000 Lubbock. TX 79457 "The Honorable Mayor and the City Council of the City of Lubbock: P. 0. Box 65700 4747 South Loop 289 Lubbock, Texas 79464-5700 806.791.7700 Fax: 806.791.7711 TECH TELEPHONE COMPANY, LTD., for themselves, their successors and assigns, hereby accepts the attached franchise ordinance as finally passed by the City Council of Lubbock on thct2n.d day o:t:hme, 1998, and hereby agrees to be bound by all of its terms and provisions. GRANTEE: TECH TELEPHONE COMPANY, LID. BY: Tech Telephone Company, Ltd. TITLE: DATE: By __ ~~~~~~~~ Davi harbutt, President General Partner of Tech Telephone Company, Ltd., a Texas Limited Partnership President. General Partner of Tech Tehq>hone Company, Ltd a Texas Limited Partnership June 3. 1998 llfiC!IVE'D JUN 041998 CITV A110RNEV 02/10/98 Tlm 09:52 FAX 8067753307 CITY ATTORNEY TELECOMMUNICATIONS FRANCIDSE APPLICATION I. INSTRJJCilONS; Pursuant to Article 3 of the City of Lubbock Ordinance No. 9971 , as amended (the '1"elecommunications Ordinance"), any Telecommunications Carrier who desires to occupy City Property or Public Rights-of-Way for the purpose of providing Telecommunications to any person or area in the City must obtain a telecommunications ftanchise, which may be renewed. This application ("Application~') must be completed by any applicant for a telecommunications fi:anchise to satisfy the requirements of the Telecommunications Ordinance. (1) Each Applicant must complete all the information requested in this Application. The Applicant may attach additional documents if this Application does not provide sufficient room to provide the requisite information. (2) Each Application must be accompanied by a Five Thousand Dollar ($5,000.00) ·application fee or One Thousand Dollar ($1.000.00) renewal fee, whichever is applicable. (3) Unless explicitly defined in this Application_ all definitions shall be the same as, and in accord with. the definitions defined in the Telecommunications Ordinance. ( 4) • Each and eYery provision in this Application is expressly made subject to the terms, conditions and provisions of the TelecommUDications Ordinance. which ordinance is . hereby incOrporated herein by refenmce and which sball govern this Application in all respects and sbal1 be a part hereof for all intents and purposes as if said Telec6mmunications Ordinance were topied herein in its entirety. · (5) The Applicant shall pay to the City all other moneys., install all other services, and perform and comply with all other terms and conditions applicable to Registrant pursuant to this Ordinance and the Telecommunications Ordinance. ll. APPIJCATIQN; Pursuant to Article 3, Section 2 ofthe Telecommunications Ordinance, TECH TELEPHONE COMPANY; LTD. (the "Applicant") provides the following information to register as a Telecommunications Carrier and Provider: rtJ 002 02/10/98 Tl~ 09:52 FAX 8067753307 CITY ATIORNEY ~003 (1) The identity of the Applicant, including all Affiliates of the ApplicanL TECH TELEPHONE COMPANY LIMITED P~TNERSHIP -THE GENERAL PARTNER OF TECH TELEPHONE COMPANY, LTD. IS McBELL TELEPHONE CO., INC. (2) A description of the Telecommunications Services that are or will be offered or provided by the Applicant over its aisting or proposed facilities. BASIC TELEPHONE SERVICE; CUSTOMER CALLING FEATURES. TNCI.UDING CALL WAITING. CALL FORWARDING, AND SPEED CALLING; CLASS FEATURES# INCLUDING CALLER NAME AND NUMBER DELIVERY. CALL BLOC&lBG, CUSTOMER ORIGINATED TRACE, AND SEI.ECTIVE CALL FORWARDING. (3) A description of the Telecommunications Facilities that are or will be med by the Applicant to offer or provide such telecommunications services. --=-. A CENTRAL OFFICE SWITCH. FIELD ELECTRONIC EQUIPHENT • ..COPPER CABI.ES, FIBER OPTIC CABLES, AND ASSOCIATED CONNECTION EOUlPHENia ( 4) Preliminary engineering plans and specifications of any new facilities to "be located within the City. if known at this time, in sufficient detail to identify: 2 02/10/98 TUE 09:53 FAX 8067753307 CITY ATIORNEY r I (a) the location and route of Applicant's proposed Telecommunications Facilities. THE FACILITIES OWNED BY TECH TELEPHONE 'COMPANY, LTD. WILL BE USED FOR THE INTERCONNECTION OF TECH TELECOMMUNICATIONS COMPANY, LTD'S FIELD ELECTRONIC EQUIP-MENT TO TTC'S SWITCH CENTER AND ALSO THE lNTERCOHNECT OF THE TTC .... SWITH CENTER TO THE INCUMBENT LOCAL EXCHANGE CARRIER. (b) the location of all overhead and underground public utility. telecommunication, cable, water, sewer drainage and other facilities ·on City Property or within the Public Rights-of-Way along the proposed route. SEE PRELIMINARY DESIGN DRAWINGS. FINAL PLANS AND SPECIFICATIONS ARE BEING CONSTRUCTED. (c) the specific trees, structures. improvements., facilities and obstructions., if any, that Applicant proposes to temporarily or permanently remove or relocate. NA 3 ~004 92/10/98 TUE 09:53 FAX 8067753307 CITY ATTORNEY (5) If Applicant is proposing to install new Overhead Facilities, satisfactoz:y evidence that the Telecommunication facilities cannot reasonably be installed in new or existing ducts or conduits. and that Smplus Space is available for locating its Telecommunications Facilities on existing utility poles along the proposed route. This shoYii.ng may be satisfied by submission of a sworn affidavit setting forth. in detail, the relevant facts supporting applicant's contentions. N A (6) If Applicant is proposing to install new Underground Facilities in existing ducts or conduits under City Property or within the Public Rights-of-Way, information in sufficient detail to identify. (a) the Excess Capacity currently available in such ducts or conduits before installation of applicant's Facilities; NA 4 ~005 02110198 Tl~ 09:53 FAX 8067753307 CITY ATIOR:'iEY (b) the Excess Capacity1 if any, that will exist in such duds or conduits after installation of applicant's facilities. NA (7) If Applicant is proposing to install new Underground Facilities within new ducts or conduits to be constructed under City Property or within the Public Rights-of-Way: (a) the location proposed for the new ducts or conduits; ANY DUCTS OR CONDUITS WILL BE SPECIFICALLY USED IN THE INTERCONNECTION OE TTC EQUIPMENT OR INTERCONNECTION TO OTHER TELECOMMUNICATIONS COMPANIES. FINAL PLANS AND SPECIFICATIONS WILL SHOW LOCATIONS OF ALL DUCTS (IF ANY) THAT WILL BE USED. (b) the Excess Capacity that will exist in such ducts or conduits after installation of applicant's facilities. NA 5 ~006 02/10/98 TrE 09:54 FAX 8067753307 CITY ATIORNEY ..... -. . (8) A preliminary construction schedule and oompletion dates . CONSTRUCTION START DATE: APRIL 1, 1998 CONSTRUCTION COMPLETiON DATE: JUNE_ 15, 1998 ALL ELECTRONIC EQUIPMENT INSTALLATIONS WILL BE COMPLETED DURING MAY. ANY CABLE WORK WILL BE CONSTRUCTED DURING APRIL, MAY, AND JUNE. (9) A preliminary traffic control plan. THE STATE OF TEXAS HIGHWAY DEPARTMENT'S PROCEDURES AND PROCESSES WILL BE FOLLOWED AT ALL TIMES DURING CONSTRUCTION. MINIMAL OR NO TRAFFIC DISTRUBANCES ARE EXPECTED. UNDERGROUND BORES ARE PLANNED TO BE.USED AT ROAD CROSSINGS. (t 0) Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to comply with all requirements and obligations imposed upon a Grantee under this Ordinance. SEE ATTACHED BUSINESS PLAN. 6 ~007 02/10/98 TUE 09:54 FAX 8067753307 CITY ATTORNEY 1'-· I . ' (11) Information to establish that the applicant has obtained all other governinenial approvals and permits to construct and operate the facilities and to offer or provide the Telecomxmmications Services. APPLICATION ON FILE WITH TEXAS PUBLIC UTILITIES COMMISSION (12) Whether the applicant intends to provide Cable Servi~ video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to Cable Service fumchising. NA (13) A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions. N/A 7 Ill 008 ~2/~~IJHt TUE 09:54 FAX 8067753307 CITY ATTORNEY ~009 The above information is true and correct to the best of my knowledge. TECH TELEPHONE COMPANY, LTD. [NAME OF APPLICANT] By: Tidc~--fc~ 4>, INc_ ~~ ~:1?<.1.:.< -/Sr.;.;-7k~l(r.cJ~ a-;~ J..)t Date: #~ ..Z ~ /f"Rt:; DGV:cWFcbrmuy ll. 1991 T dt:COmm~:~~~iczd:iom Fn:ru:hisc 8 ! I ... ... ii - ! 0 .I -jl I I I l -·- I l.-1 - I -..... l;lloi -- ,J -I - - - -- ~...o.J - -I l~ lli.L I ::IF I :E 8 .... J I !i 0 " -. ' "' ltt~NU"~< --r~o1t1t r~ err.., /2eA o ct. oss r rJ6 $ J ... i(_ T \ ...._ ·-·- -~ ~_/ ~' -... t-.... r ...... ' .. " Mag17.00 Scale1:3,S h TueFeb2413:181998 200Feel 100Met 019971>etfl be. Stra'.t Atlas USA ~