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HomeMy WebLinkAboutOrdinance - 9477-1991 - Amending Ordinance 9452 Operations Of Telecommunications Business - 09/12/1991II d .· JCR:da First Reading September 12, 1991 Item #22 Second Reading September 26, 1991 Item #8 ORDINANCE NO. 9477 AN ORDINANCE AMENDING ORDINANCE NO. 9452 OF THE CITY OF LUBBOCK, TEXAS, WITH REGARD TO THE OPERATION OF A TELECOMMUNICATIONS BUSINESS BY SOUTHWESTERN BELL TELEPHONE COMPANY IN, ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER All PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC WAYS IN THE CITY OF LUBBOCK BY AMENDING SECTION 13 OF SAID ORDINANCE, WHICH PERTAINS TO COMPENSATION TO THE CITY; PROVIDING FOR PUBLIC NOTICE OF THIS ORDINANCE; PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY SOUTHWESTERN BELL TELEPHONE COMPANY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council deems it to be in the best interest of the citizens of the City of Lubbock, Texas, to amend the provisions of Section 13 of Ordinance No. 9452 with regard to compensation paid the City of Lubbock by Southwestern Bell Telephone Company with regard to use of City right-of-way and other property; NOW THEREFORE: BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT Section 13, paragraph (a) of Ordinance No. 9452 of the City of lubbock, Texas, is hereby amended to read as follows: (a) As compensation for the use, occupancy, oversight, supervision and regulation of the CITY'S RIGHTS-OF-WAY, and in lieu of 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 an Annual Charge upon the Gross Receipts (as hereinafter defined) of the TELEPHONE COMPANY which will be determined in the following manner. The amount of the Annual Charge for the first year of this ordinance shall be $940,000.00. For the second calendar year the charge shall be $1,370,000.00 increased by the growth factor as set forth in paragraph 13(c). For the third year the charge shall be calculated by adding $430,000.00 to the second year's charge and that sum shall be increased by the growth factor as set forth in paragraph 13(c). In no event shall the Annual Charge for subsequent years that this ordinance is in effect be less than the amount stated for the third year of this ordinance, except as provided in Section 17 herein. .• The TELEPHONE COMPANY will, in accordance with Article 1446(c) V.A.C.S. and applicable tariffs, bill the Annual Charge to the customers billed the customer service charges included within the term "Gross Receipts," as defined herein. Gross Receipts, for purposes of the Annual Charge, shall include only customer service charges billed through the TELEPHONE COMPANY'S Customer Records Information System ("CRIS 11 ) for the recurring charges for the local exchange access rate element specified in the TELEPHONE COMPANY'S tariffs filed with the PUC for any TELEPHONE COMPANY services provided within the CITY which are also subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications Commission (•fCC"). For the fourth and fifth calendar years while this ordinance remains in effect, the Annual Charge is subject to adjustment by application of the Growth Factor set out in paragraph 13{c). The TELEPHONE COMPANY may adjust its billings to customers to account for any undercollection or overcollection for the prior year. In the event of any overcollection balance from customers at the expiration of this ordinance, the TELEPHONE COMPANY may make a pro rata one-time credit to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 13(a), provided, however, if it is impractical to credit such overcollection to customers, then such overcollection shall be paid to the CITY. SECTION 2. THAT this ordinance shall be published in a newspaper published in the City of lubbock once a week for three consecutive weeks prior to final passage, which publication shall be made at the expense of Southwestern Bell Telephone Company. SECTION 3. THAT a properly certified copy of this ordinance shall be delivered by the City to Southwestern Bell Telephone within three working days after final passage. Southwestern Bell Telephone Company shall have thirty (30) days from and after final passage of this ordinance to file its. written acceptance of this ordinance with the City Secretary. Such · acceptance shall be signed in its name and on behalf by an officer of Southwestern Bell Telephone Company duly authorized by its Board of Directors in the following form: "The Honorable Mayor and the City Council of the City of lubbock: Southwestern Bell Telephone Company, for itself, its successors and assigns, hereby accepts the attached ordinance - 2 - ' ' . finally passed by the City Council of lubbock the 26th day of September , 1991, and agrees to be bound by all of its terms and provisions. SOUTHWESTERN BELL TELEPHONE COMPANY: BY: ____________ _ TITLE: __________ _ Dated the ___ day of --------' 1991. SECTION 4. THAT this ordinance shall not be effective for any purpose until after the expiration of thirty (30) days from the last publication of said ordinance and receipt of the said acceptance from Southwestern Bell Telephone Company. AND IT IS SO ORDERED. Passed by the City Council on first reading this 12th day of September , 1991. Passed by the City Council on second reading this _2_6t_h __ day of September , 1991. APPROVED AS TO FORM: ~ c__ ?--,.f. Jll: Ross, Jr., City Attorney - 3 - . . ACCEPTANCE VBEREAS, the City of Lubbock, Texas, did on the 11th day of July, 1991, enact Ordinance Number 9452 entitled: AN ORDINANCE VBEREBY THE CITY OP LUBBOCK, TEXAS, AND SOUTBllBSTERN BELL TELEPHONE COMPANY AGREE TBA.T THE TELEPHONE COMPANY SHALL CONTINUE TO KAINTAIH AND CONSTRUCT ITS POLES, VIRES, ANCHORS, FIBER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN, ALONG, ACROSS, ON, OVER, THROUGH, ABOVE .AND UNDER ALL PUBLIC STREETS, AVENUES, ALLEYS, PUBLIC GROUNDS AND PLACES IN SAID CITY, UNDER CERTAIN REGULATIONS; PROVIDING THAT THE CITY SHALL RECEIVE ANNUAL CONSIDERATION; PROVIDING POR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES; AND PROVIDING POR VRITTEN ACCEPTANCE OP THIS ORDINANCE BY THE COMPANY, ALL AS HERBIN PROVIDED. and VBEREAS, said Ordinance was on the 11th day of July, 1991, duly approved by the Mayor of said City and, the Seal of said City was thereto affixed and attested by the City Secretary: NOV, THEREFORE, in compliance with the terms of said Ordinance as enacted, approved and attested, the Southwestern Bell Telephone Company hereby accepts said Ordinance, and files this its written acceptance with the City Secretary of Lubbock, Texas. Pursuant to the terms of said Ordinance and this Acceptance, said Ordinance shall become effective on October 1, 1991. Dated this '1--~ day of Cff"1 , 1'41__. SOUTBllBSTERN BELL TELEPHONE COMPANY Pres OW1'-Acceptance filed in the office of the City Secretary of Lubbock, Texas this 1st day of August , 19!!._. . ' Greg Upp District Manager External Affairs One Bell Plaza Room3022 P.O. Box 655521 Dallas, Texas 75265-5521 Phone (214) 464-0955 Fax t (214) 464-5838 @Southwestern Bell Telephone July 26, 1991 Mr. Robert Massengale Assistant City Manager for Financial Services City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Dear Robert: Enclosed you will find the original copy of the City of Lubbock Southwestern Bell franchise ordinance/agreement that you requested in your note of July 15, 1991. Please let me knov if you have any additional questions. Sincerely, Enclosure THE STATE OF TEXAS COUNTY OF LUBBOCK R 929 Before me I 0 NY A HENRY a Notary Public in and for Lubbock County, Texas on this day personally appeared I • J • AUF I L L ' A c co u n t in i! Mi! r of the Southwestern Newspa- pers Corporation, publishers of the Lubbock Avalanche-Journal-Morning, and Sunday, who being by me duly sworn did depose and say that said newspaper has been published continuously for more than fifty-two weeks pri- or to the first insertion of this ___ L....,..e .... E....,aui-::-~:N~o~t~i~c_..e ___________________ _ ____________ _.,o. 823103 at Lubbock County, Texas and the attached print- ed copy of the Le e a I no t i c e is a true copy of the original and was printed in the Lubbock Avalanche-Journalonthefollowingdates: September 14, 16, 23t 1991 961 wa 1.59 = !15Z7.99 T.J. AUI£Ill LUBBOCK AVALANCHE-JOURNAL Southwestern Newspaper Corporation Subscribed and sworn to before me this FORM 58·10 "The: Honorable ·Mevor '"" the (lfy Cou.ncll f)f lhe Clly Of LUb-bock: . . . ·, . IOuthwestem '~!ell TeiBPhon!t Oim~>any, lor llsetl, It$ suc:ceuort •nc~ .-ssl~~M. ,_..by accel>ls the at. !ached Ol'fliNIIIU flnellv passed by the City Council ·of Lubbock the ...... lfay or .... ;; ..... ;. 1991, fftd agrees to be IIOund by ell ol 111 . fermselld PI'OVI$1ons. · . · · • . SOUTHWI!STERNtU!LL · ~ELEPHONE COMPANY: . ·.· BY: ........... .:.: TITLE: ......... '"'"-; ' ' Dated lhe ..... ;d., (11 ......... 1991. SECTION •·; THAT Htls ordl' nance shell not bet effec:llw .for •nv llurPOSe vntll IIIIer the OPiretlon ·of ·thirty (JOI.Ifays .from the last PUblication Of said ordinance end · rece11>1 of the said ecce~~~ance ll'llft! South-tern aen Teii!Phone eom. 'pany,· ' . · ANOITISSOORDEREP P•sMcl bl'·lbe Cltv 'Ccluncll ~ fl,.1 .;::.'1111 this 121h dey Of Sel>lember; Passed by lhe City COimell on teo-=.-~thiS'":"' tlay 01 ...... ;-·~ ATTEST: · Tile TELEPHONE COMPANY will, In occordance wilh Article 1t.46lcl V.A.c.s. end OpPIIcabte ta.rlffs, IIIII the Annual Chal'!le to llle CU$~ billed the' CIISI01'nllr ....,tatduoroes Included wlfhlnthtt ..,., ''GraD ltec:t!llh." as defined herein. Gross It-lots. .for lliJr· -Ol,the ~~ Cllera, lllaU , . InclUde only cul!omer ten~ lee , ~ buttd 111rouv1t the TEI.e· · PHONJ; COMPANY'S C41$torner R•corcls lnformeflol> Sntem ("CRIS"I for tlla.r•cvtrttiO cberves tor the local exc~~e-ac. cess rate element ~~>eclfled kl the ' . TELEPHONE COMPANY'$ tariff& filed with the PUC tor lillY TELE· PHONE. COMPANY lllrvic:es pro-' vi-within the CITY wllie:h ant ;·, also. &ublect to •" Interstate olld f user common lin. e I''EUCL"I l:harge u ltniiOSe(l bv the Feclenll Communications Commlulon ' I"FCC"I. , , , ~ .For~ fourth' and 11ftr. calenda~ t wears ""'·'Ia lhls ordlnaltce remains I, In effect, the Annual Charwls Subo lec'l to adiiiStrnent by applfcatlon 01 , the Growth Fodor let !1Ut In 1'11111" , . 1raP11 I:Ucl. · . · .T. Joe TEI.EPHONE .~O~PA~'Y may adiUII lis IIIHings to custom- ers to account for env .• · Vftderconectlon or overcollecllon 'c ! tor the prior year. · . ~. In tile awnt of AIIIV OYercollectton r• • balance from customers 111 the e>(. 1 .. plrenon otlhls ordinance, the TEL· 1 EPHOiriE COMPANY 1MY mOke' ~ Pill rata _.lime c:tecllt to tlla cus ' tomer bl!llng tor ••fecfed custom l' ers Who are billed tor a servia. In • • eluded within Gross R&c.lots. ., 1 detll!ed In PllrQraPI!l:Ual. 111'0Vld ! lid. hoWewr, If II 1$ i'm~Wectk:al • !, crectll such overcollettll>ll to c1n ~ tomers, then· auch OYercollectlo , shall bet !"'id to the CITY, ;; ~ : $1;\CTlOrt 2. TH.t.T this J~ l nance l!lall be PUIIIIsheci.Jil• . ...., j, ·""-. IIUbllshecl. In the CitY 1>1 Lu i ·bock-·-! ... , .. -Q 11!111r. ' Wflltlt~!Msha l the ··-01 SollttiV.itai l; Tt~PIIent,~.nv, I·. ' ... I· i . ' ! I I I THE STATE OF TEXAS COUNTY OF LUBBOCK R950 Before me TONY A HENRY a Notary Public in and for Lubbock County, Texas on this day personallyappeared T.J. AUF'ILL• Accountinl! Manl!er oftheSouthwesternNewspa- pers Corporation, publishers of the Lubbock Avalanche-Journal - Morning, and Sunday, who being by me duly sworn did depose and say that said newspaper has been published continuously for more than fifty-two weeks pri- or to the first insertion of this __.LILlleul!"-laiiLL.I .....cNu.oX-..1t.-.1_..c_..e'--------------------- --------------nO. 800345 at Lubbock County, Texas and the attached print- ed copy of the LeI! a I Not 1 c e is a true copy of the original and was printed in the Lubbock Avalanche-Journal on the following dates: T.J. AIIFILI. LUBBOCK AVALANCHE-JOURNAL Southwestern Newspaper Corporation Subscribed and sworn to before me this 30th FOR!\158-10 dayof SePtember •• ;' ·i,•' it' t • 4 . '-· .. ,. I ACCEPTANCE VBEREAS, the City of Lubbock, Texas, did on the 26th day of September, 1991, enact Ordinance Number 9477 entitled: AN ORDINANCE VBEREBY THE CITY OF LUBBOCK, TEXAS, AND SOUTHVESTERN BELL TELEPHONE COMPANY AGREE TO AMEND ORDINANCE NO .. 9452 PASSED OR JULY 23, 1991, TO PROVIDE FOR ADDITIONAL CASH CONSIDERATION TO BE PAID TO TBB CITY BY SOUTBVESTERN BELL TELEPHONE COMPANY DURING TBB TERM OF SAID ORDINANCE. and VBEREAS, said Ordinance vas on the 26th day of September, 1991, duly approved by the Mayor of said City and, the Seal of said City vas thereto affixed and attested by the. City Secretary: NOV, THEREFORE, in compliance vith the terms of said Ordinance as enacted, approved and attested, the Southwestern Bell Telephone Company hereby accepts s&id Ordinance, ~d files this its written acceptance with the City Secretary of Lubbock, Texas. Dated this /lJ day of tle~. , 19fli. SOUTIIVESTERN BELL TELEPHONE COMPANY Acceptance filed~~he office~ t~e City Secretary of Lubbock, Texas this L'lm day of ~lu bel , 19.91. ·. . > ORDINANCE NO. 9452 First Reading June 27. 1991 Item #21 Second Reading July 11. 1991 Item #14 AN ORDINANCE WHEREBY THE CITY OF LUBBOCK, TEXAS 1 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 1 ALONG 1 ACROSS, ON, OVER, THROUGH 1 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 Lubbock for over 30 years, and is now so engaged, and WHEREAS, the TELEPHONE COMPANY has operated said business under successive ordinances of the City of Lubbock, the last of which being Ordinance No. 3197, adopted July 28, 1960, and WHEREAS, it is appropriate that the City of Lubbock, acting by and through its governing body, consent to a continuation of privileges similar to those heretofore granted in Ordinance No. 3197, 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 -2- litigation which could be necessary to resolve any issues in controversy between the parties; and WHEREAS, this Ordinance is adopted by the City Council of the city of Lubbock 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 Lubbock; 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 LUBBOCK, TEXAS, THAT: SECTION l -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 -3- • 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 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 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 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 for that purpose, -4- 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 1 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 or across the public RIGHTS-OF-WAY for any TELEPHONE COMPANY purposes. (c) CITY: The City of Lubbock, Texas. (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public property within the city limits of the CITY. -s- (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. (9) 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 CQMPANY: southwestern Bell Telephone Company. SECTION 4 -TERM This Ordinance shall continue for a period of five (5) years from the effective date. -6- 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 qovernance. The TELEPHONE COMPANY may be required to place certain FACILITIES underqround accordinq to reasonable requirements that may be adopted from time to time by the Lubbock City Council; provided, however, TELEPHONE COMPANY shall be qiven due notice and shall be entitled to a hearinq before the Lubbock 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. (c) The TELEPHONE COMPANY shall permit the City of LUbbock to use without charqe, solely for its own non-commercial telecommunications purposes, the followinq described FACILITIES: One duct in all of TELEPHONE COMPANY 1 S existinq ducted FACILITIES within the city limits, with sufficient space for necessary joints. Also, TELEPHONE COMPANY shall provide adequate space on all nonducted FACILITIES now existinq or hereafter constructed on or within the RIGHTS-OF-WAY for the CITY to attach TRANSMISSION MEDIA for the CITY'S own -7- 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 underqround conduits, it shall provide one duct in each additional conduit for the CITY'S own purposes, as provided above. The TELEPHONE COMPANY shall cooperate with the CITY by providing continuous and complete information reqarding 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 telecommunications or FACILITIES: provided, that TELEPHONE COMPANY shall not use hiqh 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 -a- 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 1 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. (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 attachinq to the -9- 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 Lubbock it may do so upon reasonable non-discriminatory terms agreed to between CITY and TELEPHONE COMPANY. (q) 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, desiqn, and construction required by, or are not being maintained in -10- accordance with industry standards or practice. Provided, however, nothinq herein shall modify or abroqate 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 movinq of houses or other bulky structures when necessary. The expenses of such temporary relocation or removal shall be paid by the party or parties requestinq and benefitinq from such temporary relocation or removal, and the 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 straiqht, 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 ordinary 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 -11- telecommunications system in the CITY shall be subject 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 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 damaqes 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 damaqed or excavated by the TELEPHONE COMPANY. 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. Engineering plans for projects involving -12- 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 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 -13- 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. (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 Lubbock 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, -14- 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 adapt or conform its FACILITIES to enable any other entity or person, except the CITY, to use, or to use with greater convenience, RIGHTS-OF-WAY or public property, TELEPHONE COMPANY 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 -15- 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 Enqineer and the TELEPHONE COMPANY'S Division Manaqer over outside plant enqineerinq and construction will jointly review the relocation request in an expeditious manner to establish a mutually acceptable completion date for the relocation. If the 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 qross neqliqence, and shall not be liable in any event for any consequential damages relatinq to service -16- interruptions. Such relocation by the CITY will be performed only when the City Enqineer 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 COMPANY 1 S FACILITIES. SECTION 9 -TREE TRIMMING The right, license, privilege and permission is hereby qranted 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. -17- 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 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. -18- (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. 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 alleqed violation or failure to comply, then the CITY may pursue the procedures set forth below to declare that the TELEPHONE -19- 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 violations(s) shall cease to exist and this Ordinance shall not be declared to be terminated. (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. -20- ' (c) The City Council, after full public hearinq and upon findinq a violation or failure to comply, may either declare this Ordinance terminated or excuse the violation or failure to comply upon a showinq by the TELEPHONE COMPANY of mitiqatinq circumstances or qood cause for said violation or failure to ·comply. (d) Neither the TELEPHONE COMPANY 1 S acceptance of this Ordinance, TELEPHONE COMPANY'S appearance before the City Council at any public hearinq concerninq proposed termination of this Ordinance nor any action taken by the City Council as a result of any such public hearinq, includinq a declaration of termination or a findinq of a violation or failure to comply, shall be construed to waive or otherwise affect the TELEPHONE COMPANY 1 s riqht to seek a judicial determination of the riqhts and responsibilities of the parties under this Ordinance. (e) The TELEPHONE COMPANY shall not be excused from complyinq 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. -21- SECTION 13 -COMPENSATION TO THE CITY (a) As compensation for the use, occupancy, oversiqht, supervision and requlation of the CITY 1 S RIGHTS-OF-WAY 1 and in lieu of and in full compensation for any lawful tax or license or charqe or RIGHT-OF-WAY permit fee or inspection fee, whether charqed 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 charqe for use and occupancy of the RIGHTS-OF-WAY within the CITY, except the usual qeneral 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 an Annual Charqe of $940,000.00 (the 11Annual Charqe11 ) upon the Gross Receipts (as hereinafter defined) of the TELEPHONE COMPANY which will be determined in the followinq manner. The Annual Charqe for the first calendar year shall be prorated from the effective date of this Ordinance to December 31 next followinq the effective date of this Ordinance. In no event shall the Annual Charqe be less than the base amount of $940,000.00 per full calendar year 1 except as provided in the precedinq sentence or in the case of the year in which this ordinance expires as set forth in paraqraph 13(b), or as provided in section 17 herein. -22- The TELEPHONE COMPANY will, in accordance with Article 1446(c) V.A.c.s. and applicable tariffs, bill the Annual Charqe to the customers billed the customer service charqes included within the term "Gross Receipts, •• as defined herein. Gross Receipts, for purposes of the Annual Charqe, shall include only customer service charqes billed throuqh the TELEPHONE COMPANY'S Customer Records Information System ("CRIS") for the recurrinq charqes for the local exchanqe access rate element specified in the TELEPHONE COMPANY 1 S tariffs filed with the PUC for any TELEPHONE COMPANY services provided within the CITY which are also subject to an interstate end user common line (tiEUCL") charqe as imposed by the Federal Communications Commission ("FCC") at the time of enactment of this Ordinance. For the second and subsequent calendar years while this Ordinance remains in effect, the Annual Charqe is subject to adjustment by application of the Growth Factor set out in paraqraph 13(c). The TELEPHONE COMPANY may adjust its billinqs to customers to account for any undercollection or overcollection for the prior year. -23- In the event of any overcollection balance from customers at the expiration of this Ordinance, the TELEPHONE COMPANY may make a pro rata one-time credit to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 13(a), provided, however, if it is impractical to credit such overcollection to customers, then such overcollection shall be paid to the CITY. (b) The Annual Charge for each calendar year shall be paid in four (4) equal installments on May 31, August 31, November 30, and February 28 of the following year except for the first installment for the year in which this Ordinance is passed and the final installment for the last year which shall be due as hereafter provided. The Annual Charge for the year in which this Ordinance is passed shall be prorated from the effective date through December 31 of that year. The first installment payment for the year in which this Ordinance is passed shall be paid on November 30, 1991. The Annual Charge for the year in which this Ordinance expires shall be prorated from January 1 through such expiration date. After making any necessary adjustment for the balance of any overcollection or undercollection of the Annual Charge to or from the TELEPHONE COMPANY 1 s customers, the final installment for the last year of this Ordinance shall be paid to -24- the CITY one hundred fifty (150) days followinq the date of expiration of this Ordinance. (c) The Growth Factor shall be calculated by dividinq the TELEPHONE COMPANY'S revenues within the corporate limits of the CITY subject to the state telecommunications sales tax ("Sales Tax Revenues11 ) applicable to services rendered within the corporate limits of the CITY for the twelve month period endinq with the month of September of the year immediately precedinq the year for which the particular Annual Charge is to be made (i.e., payment year minus one) by the Sales Tax Revenues for the twelve month period endinq with the month of September two years preceding the year for which the particular Annual Charge is to be made (i.e. , payment year minus two) • The Growth Factor calculated by the method set forth in the precedinq sentence, if greater than one, shall be multiplied by the full previous year's Annual Charge (i.e., payment year minus one) to determine the dollar amount of the Annual Charge for the payment year. If the Growth Factor calculated above is one or less, the Annual Charge for the payment year shall be equal to the previous year's Annual Charge. The Growth Factor calculation shall be made during the fourth quarter of the first calendar year and each subsequent calendar year during the term of this Ordinance. The TELEPHONE COMPANY will adjust its customer billing to account for the -25- Growth Factor calculated above. once the Growth Factor calculation is completed, the TELEPHONE COMPANY will provide the CITY with the following information: the Sales Tax Revenues upon which the Growth Factor calculation was based and the Sales Tax remittance amounts. Stated another way, the Annual Charge and Growth Factor for the years 1991 through 1995, used as an example, shall be calculated as follows: Example: Annual Charge and Growth Factor Year 1 Effective Date-Annual Charge, prorated = Annual Charge Dec. 31, 1991 1991 ("AC 199111 ) Year 2 Jan. 1-Dec. 31, AC x 1991 Growth Factor, = Annual Charge 1992 if any (Sales Tax Revenues 1992 for 12 month period ending ("AC 199211 ) 9/91 [11STR11 ] i' by Sales Tax Revenues for 12 month period ending 9/90 [11 STR 11 ] Year 3 Jan. 1-Dec. 31, AC 1992 X 1992 Growth Fac-= Annual Charge 1993 tor, if any (9/92 STR i' 1993 9/91 STR) ("AC 1993 11 ) Year 4 Jan. 1-Dec. 31, AC 1993 X 1993 Growth Fac-= Annual Charge 1994 tor, if any (9/93 STR i' 1994 9/92 STR) ("AC 199411 ) Year 5 Jan. 1-Dec. 31, AC 1994 X 1994 Growth Fac-= Annual Charge 1995 tor, if any (9/94 STR i' 1995 9/93 STR) (11AC 199511 ) -26- '!be Cl'1'Y agrees that, in carpliance with the Texas Tax COde Atmotated, Sections 151.023 ard 151.027 (Vernon 1982), the only person who may examine the reooms an:J,Ior audit the 'l'EtEHDlE a:MPANY'S revenues subject to the state telecamnunications sales tax as reported by the TEI.EJ:H<:lm a:MPANY is the Texas Ckltpt::roller of i\lblic ~ or his statutorily authorized designee. (d) SUch payments shall JXJt relieve the 'J."EEEFHHNE <XMPANY fran pay.irq all awlicabl.e llUl'licipally~ utility service clla:tges. Shalld the CI'IY not have the legal power to agree that the payment of the foreqoirlq Annual Olarge shall be in lieu of the taxes, licenses, cha.l:."ges, RIGHrS-oF-wAY permit or inspectia'l fees, rentals, RIGHIS-oF-wAY ea..sel'IS1ts or franchise taxes afox:esaid, then the CIT'i a9XWS that it will accept ard credit so much of such payments as may be necessaey to the satisfaction of the "1'EE.EPfm a:MPANY' S obligation, if errt, to pay arrt such taxes, licenses, chal:g'es, RIGHIS-oF-wAY petm.it or inspection fees, rentals, RIGHIS-oF-wAY e.asenents or franchise taxes. SECT.IOO 14 -ASSIGNMENt' OF ORDINANCE '!his Ordinarx::e am errt rights or privileges he:ret.1rDer shall JXJt be assignable to arrt other entity without the express consent of the CIT'i. SUch consent -27- shall be evidenced by an o:rdinan:e Wich shall fully recite the tel:ms ani oon:iitions, If aey, upon Wich such oonsent is given. SECriON 15 -MI1lUAL REIEASES In consideration of the performance by 'l'EI..EFHONE cx:MPANY of its obligations heret1rrler, the CI'lY hereby fully releases, d!schal:qes, settles ani cxmpranises aey ani all, clailns Wi.ch the Cl'IY has made or oould have made arisirq out of or connected with ordi.narx::e Number 3197, adopted July 28, 1960 ani exterrled fran time to time thereafter, an:i its predecessor orcllnanoes (hereinafter referred to collectively as "~ 3197") • 'n1is full an:i cxmplete release of clailns for aey matters un:ier Ordinance 3197 shall be for the benefit of Southwestern Bell Teletilone Ccmpany; its parent7 its affiliates; their directors, officers an:i Employees; Sll<X!esSOrs ani assigns 7 ani includes aey ani all clailns, actions, causes of action ani controversies, presently knc:Mn or unknown, arisirq directly or in:iirectl.y out of or connected with the '.I'EI.EJ:HONE a::MPANY 1 s obligations to the Cl'lY pursuant to the provisions of ordi.narx::e 3197. In consideration of the performarre by the CITY of its obligations hereun1er, the 'l'EI.EmONE a:MPANY, its parent, its affiliates, suooessors ani assigns hereby fully release, di.schal:qe, settle ani oarpranise artt ani all claims, actions, causes of action or c:x>nt:roversies heretofore made or Mrlch oc:W.d have been made, krxJwn or UI'lkrx7.m, against the -28- .. CI!'I.Y, its officers or its employees, arisinq out of or connected with a:rrz matters under Ordinance 3197. It is the intent of the C1!'I.Y and the 'l'EIEmONE a::MPANY to enter into the foregoinq tmit.ua.l releases in onier to reach a CXIlplaoise t:ha.t is acceptable to both the crr'i and the TEI.EPfi)NE <XMPANY. 'Ibis Ordinance and the lX1Utual releases set forth in this section represent a c:x::rapranise of each party's claims as well as each party's defenses, and is l'lOt. inten:ied. to be and is l'lOt. an admission of liability or wlnerability by either party to the other with respect to either the claims or the defenses asserted against the other. 'lbis Ordi:nanoe shall be and is hereby declared to be cumulative of all other Ol:di.nan::es of the C1!'I.Y, and this Ordi:nanoe shall l'lOt. operate to repeal or affect aey of such other ol.'di.nan:es except insofar as the provisions thereof might be incx.ndstent or in conflict with the previsions of this Ordi:nanoe, in which event such oonflictin;J p:wisions, if a:rrz, in such other onlinance or ordinances shall not be applicable, to the extent of such inoonsistency, with respect to this Ordinance. Provided all other ordinances, rules, regulations, and agreements which are oot in conflict with this Ordi:nanoe and which in aey manner relate to the regulation of the C1!'I.Y streets, alleys, -29- p.lblic places, the l::usiness of the CCt1p:my, or for the protection of the p.lblic health, safety or welfare shall remain in full force a:rd effect. Notwit::hst:aniin;t anyt:hi.rq cxmtained. in this ~ to the contra:ey, in the event that (a) this~ or a.rrz part hereof, (b) a.rrz tariff provision by Wi.ch the TEI.EJ?H<:H: o:::MPANY seeks to collect the Annual Cha:r:ge i.npJsed by this ~, or (c) arrJ proc.edure pl::'tWided in this ~, or (d) arrJ c:x:arpensation due the CI'IY urder this Ordi.nanoe, be<::xm:es, or is declared or detennined. by a juiicial, administrative or le;;tislative authority exercisirq its jurisdiction to be excessive, unrecoverable, \U'lenfort:leable, void, unlawful or otherwise inawlicable, in lrobole or in part, the TEJ:.EPfDlE <n~PANY a:rd CI'IY shall meet a:rd negotiate a new OJ:dinanoe that is in CCI'lplianc:e with the authority's decision or enactmnt a:rd, unless explicitly prchibited, the new OJ:dinanoe shall provide the Cl'l'Y with a level of oarpensation o::mparable to that set forth in this ~ provided that such oampensa.tion is recoverable by the TELEmONE o::MPANY in a mutually agreed manner permitted by law for the 1.1IleJq)il::ed portion of the term of this Ol:dinance. -30- SBJ.I'ICN 18 -OOVERNlNG IAW (a) 'lhis Ordi:nanc::le shall be construed in accordance with the criY Olarter ani Cl'lY Code(s) in effect on the date of passage of this Ol::dinan:::e or as later a.roerded to the extent that suc.h Olarter ani Code (s) are not in conflict with or in violation of the Constitution ani laws of the United. states or the state of~. (b) 'lhis Ordi:nanc::le shall be construed ani deeood to have been drafted by the canbined efforts of the Cl'lY ani the TEI:mHC.tm a::MPANY'. '!be Cl'lY shall deliver a properly certified copy of this OJ:dinance to the TEr.EPHONE a::MPANY within three (3) worktnl days of its final passage. '!he TEr.EPHONE a::MPANY shall have thirty (30) days fran ani after the final passage of this ordinance to file its written aoc::eptan:::e of this OJ:dinance with the Cl'lY secretary. 'lhis Ordinance shall beca:re effective beqi.nrd.rg the first day of the secon::l month followirq acceptance by the TEI.Em!:l:m c::cHPANY, which date shall be not less than thirty (30) days follc:Minq the last date of the required plb1ic notice of this Ordinance. -31- .. . 'lhe written acoeptanoe shall be signed in its name an::l behalf by an officer of the Tele};ilone CCqmiy duly authorized by its Board of Directors in the follCM!n:J fo:rm: "'lbe Hooorable Mayor ani the City Council of the City of InJXxx.Jt: Southwestel:n Bell Teletilone O::rrpany, for itself, its sua::essors ani assigns, hereby acx:epts the attached ord..inarce finally passed by the City O::UOOil of Iul-bx:'k, the 11th day of __ J_ul;.;.::,Y ____ , 191.!._, ani agrees to be boun:i by all of its tenns ani provisions. rated the 1 19!Jl.n SECI'Ial 20 -~DING FOR :ruBLIC NOnCE OF '!HIS ORDINANCE 'lbe 'l'El.EmONE CX11PANY shall pay the cost of providin;1 pJblic notice of this Ordinance. -32- AND IT IS SO ORDERED, Passed by city council on first reading this ~2~7~th~---day of June 1 1991. Passed by City council on second reading this __ l_lt_h _____ day of July , 1991. 'B.C. Mctm, MAYOR ATTEST: ~~ary APPROVED AS TO CONTENT: *th.--ff!r o ert Massengale, ~stant City Manager for Financial Services APPROVED AS TO FORM: QL c._ c:::: }:2,...-~ . ~-Ross, Jr., Clty Attorney -33- .. ~ ll .. . ~.. ~ (· ( ( ( .. I ~ , I d :1 II First Reading September 12, 1991 Item #22 Second Reading September 26, 1991 Item #8 !j ~ JCR:da ORDINANCE NO. 9477 ~ i! AN ORDINANCE AMENDING ORDINANCE NO. 9452 OF THE CITY OF LUBBOCK, :i TEXAS, WITH REGARD TO THE OPERATION OF A TELECOMMUNICATIONS BUSINESS BY SOUTHWESTERN BELL TELEPHONE COMPANY IN, ALONG, ACROSS, ON, OVER, THROUGH, ·' ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS, :, BRIDGES OR PUBLIC WAYS IN THE CITY OF LUBBOCK BY AMENDING SECTION 13 OF '! SAID ORDINANCE, WHICH PERTAINS TO COMPENSATION TO THE CITY; PROVIDING FOR ·l PUBLIC NOTICE OF THIS ORDINANCE; PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ·i ORDINANCE BY SOUTHWESTERN BELL TELEPHONE COMPANY; AND PROVIDING FOR AN · EFFECTIVE DATE. ~ WHEREAS, the City Council deems it to be in the best interest of the ·: citizens of the City of Lubbock, Texas, to amend the provisions of Section ' 13 of Ordinance No. 9452 with regard to compensation paid the City of Lubbock by Southwestern Bell Telephone Company with regard to use of City :; right-of-way and other property; NOW THEREFORE: ·! :: BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: ~ l~ SECTION 1. THAT Section 13, paragraph (a) of Ordinance No. 9452 of ,: the City of Lubbock, Texas, is hereby amended to read as follows: ;, ~ ·I I 1 (a) As compensation for the use, occupancy, oversight, supervision and regulation of the CITY'S RIGHTS-OF-WAY, and in lieu of 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 an Annual Charge upon the Gross Receipts (as hereinafter defined) of the TELEPHONE COMPANY which will be determined in the following manner. The amount of the Annual Charge for the first year of this ordinance shall be $940,000.00. For the second calendar year the charge shall be $1,370,000.00 increased by the growth factor as set forth in paragraph ll(c). For the third year the charge shall be calculated by adding $430,000.00 to the second year's charge and that sum shall be increased by the growth factor as set forth in paragraph 13(c). In no event shall the Annual Charge for subsequent years that this ordinance is in effect be less than the amount stated for the third year of this ordinance, except as provided in Section 17 herein. e T . ••• (. c ( ( ( (_ ( . . • .•r • .. . . The TELEPHONE COMPANY will, in accordance with Article 1446(c) Y.A.C.S. and applicable tariffs, bill the Annual Charge to the customers billed the customer service charges included within the term "Gross Receipts,• as defined herein. Gross Receipts, for purposes of the Annual Charge, shall include only customer service charges billed through the TE~EPHONE COMPANY'S Customer Records Information System ("CRIS") for the recurring charges for the local exchange access rate element specified in the TELEPHONE COMPANY'S tariffs filed with the PUC for any TELEPHONE COMPANY services provided within the CITY which are also subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications Commission (•ftC"). . For the fourth and fifth calendar years while this ordinance remains in effect, the Annual Charge is subject to adjustment by application of the Growth Factor set out in paragraph 13(c). The TELEPHONE COMPANY may adjust its billings to customers to account for any undercollection or overcollection for the prior year. In the event of any overcollection balance from customers at the expiration of this ordinance, the TELEPHONE COMPANY may make a pro rata one-time credit to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 13(a), provided, however, if it is impractical to credit such overcollection to customers, then such overcollection shall be paid to the CITY. SECTION 2. THAT this ordinance shall be published in a newspaper published in the City of lubbock once a week for three consecutive weeks prior to final passage, which publication shall be made at the expense of Southwestern Bell Telephone Company. SECTION 3. THAT a properly certified copy of this ordinance shall be delivered by the City to Southwestern Bell Telephone within three working days after final passage. Southwestern Bell Telephone Company shall have thirty (30) days from and after final passage of this ordinance to file its written acceptance of this ordinance with the City Secretary. Such acceptance shall be signed in its name and on behalf by an officer of Southwestern Bell Telephone Company duly authorized by its Board of Directors in the following form: . •The Honorable Mayor and the City Council of the City of lubbock: Southwestern Bell Telephone Company, for ftself, its successors and assigns, hereby accepts the attached ordinance ... -..... 't .. ,. .. ' . ( ( ( (. (_ ( (_ • ~ I. • .. ' ' :I 'I ,, ij II ll r il !I ,, ·j II • • finally passed by the City Council of Lubbock the 26th day of September , 1991, and agrees to be bound by a 11 of its terms and provisions. SOUTHWESTERN BELL TELEPHONE COMPANY: BY: __________________ _ TITLE: _________ _ Dated the ___ day of---------' 1991. II SECTION 4. THAT this ordinance shall not be effective for any : purpose until after the expiration of thirty (30) days from the last ! publication of said ordinance and receipt of the said acceptance from .1 Southwestern Bell Telephone Company. I H 'I AND IT IS SO ORDERED. I d :i Passed by the City Council on first reading this 12th ;j September , 1991. • Passed by the City Council on second reading this _2_6_th _____ day of '! September , 1991. !: day of ,I ,, ; ane te ·! j 1 APPROVED AS TO CONTENT: :. ~-~~ Q, ·-1!~ ii ~ Roart assengaie, Assstant J City Manager 'i ·. ;J APPROVED AS TO FORM: il ~ c..7~.1.-il Jbfi: Ross, Jr., City Attorney I II ., I,