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HomeMy WebLinkAboutOrdinance - 9452-1991 - Southwestern Bell Operating Telecommunications Business - 06/27/1991ORDINANCE NO. 9452 First Reading June 27. 1991 Item /121 Second Reading July 11, 1991 Item 114 AN ORDINANCE WHEREBY THE CITY OF LUBBOCK, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT 1 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 1 ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS 1 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 enqaqed in providinq telecommunications services in the City of Lubbock for over 30 years, and is now so enqaqed; 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 . r I ' r . ' 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 requlatory 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 determininq 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 qrowth and to avoid the expense and delays of -2- ' t r . ' 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 ~446c, 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 C1:TY COUNCIL OF THE CITY OF LUBBOCK, TEXAS 1 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 -3- ' ' ' :-• l t restrictions set forth herein. The TELEPHONE COMPANY may USE such RIGHTS-OF-WAY for its teleconununi'cations 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 rem~in 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 or 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- ' ' f J r f' T under such terms and conditions as may be required by law. This Section does not preclude the TELEPHONE COMPANY from providing its tariffed services to cable television companies. SECTION 3 -DEFINITIONS Whenever used in this Ordinance, the following words and terms shall have the definitions and meanings provided In this Section: (a) FACILITIES: all TELEPHONE COMPANY duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated TRANSMISSION MEDIA. (b) USE: any TELEPHONE COMPANY acquisition, construction, reconstruction, maintenance or operation of any FACILITIES in, over, under, along, through 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- ' ' ' T ' (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 andjor receive communication siqnals, whether analoq, diqital or of other characteristics, and whether for voice, data or other purposes. (q) NQN-EXCLUSIVE: no riqhts aqreed to in this Ordinance by the CITY shall be exclusive, and the CITY reserves the riqht to qrant 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. 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 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 Lubbock City councill provided, however, TELEPHONE COMPANY shall be given due notice and shall be entitled to a hearing 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 charge, solely for its own non-commercial telecommunications purposes, the following described FACILITIES: One duct in all of TELEPHONE COMPANY 1 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 -7- ' ' ' ' non-commercial use. Where insufficient FACILITIES exist to accommodate the CITY, other existinq FACILITIES may be substituted therefore with the concurrence of the CITY. (d) If the TELEPHONE COMPANY shall hereafter extend its existinq 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 providinq continuous and complete information reqardinq the location of all conduit, alonq with such maps, plats, construction documents and drawinqs 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, includinq but not limited to use of FACILITIES and exchanqe of same to meet requirements. The CITY shall keep TELEPHONE COMPANY -s- ' r r I 1 'l • 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~ights 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 1 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-disc~iminatory 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 -9- ' 1 ' < t .. TELEPHONE COMPANY'S FACILITIES as a condition precedent to granting permission to any such person or entity to attach transmission media to TELEPHONE COMPANY 1 S facilities 7 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. (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 1 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- . • ' c ' . ' 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 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 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 danqerous to life or property, and in case the TELEPHONE COMPANY, after ·reasonable notice to the Division Manaqer over outside plant enqineerinq and construction, fails or refuses to act, then the CITY, at the direction of the City Manaqer 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 qood condition as before and to the reasonable satisfaction of the City Enqineer, 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 qood 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. Enqineerinq plans for projects invol vinq -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 ar~sing 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 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 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 -16- ' ' . r ' 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 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. -17- . ' , ' SECTION 10 -INDEMNITY The TELEPHONE COMPANY shall indemnify and hold the CITY harmless from all costs, expenses (includinq attorney•s fees) and damaqes to persons or property arisinq 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 neqliqence of the TELEPHONE COMPANY or its . aqents 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 abroqate the common law or statutory riqhts 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 pertaininq to this Ordinance and the TELEPHONE COMPANY shall respond to such inquiries on a timely basis. -18- . . . I ' (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, a~ter 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 followinq 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 writinq 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 vio1ation 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- . -. 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 an Annual Charge of $940,000.00 (the "Annual Charge") upon the Gross Receipts (as hereinafter defined) of the TELEPHONE COMPANY which will be determined in the following manner. The Annual· Charge for the first calendar year shall be prorated from the effective date of this Ordinance to December 31 next following the effective date of this Ordinance. In no event shall the Annual Charge be less than the base amount of $940,000.00 per full calendar year, except as provided in the preceding sentence or in the case of the year in which this Ordinance expires as set forth in paragraph 13(b), or as provided in section 17 herein. -22- ' . . . . ' (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 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. -21- ' . ' 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 throuq~ the TELEPHONE COMPANY'S Customer Records Information System ("CRIS") for the recurrinq cha~qes for the local exchanqe 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 ("EUCL11 ) charqe as imposed by the Federal . Communications Commission ( 11FCC11 ) 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 l3(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 • s customers, the final installment for the last year of this Ordinance shall be paid to -24- < .. ~ r • 'f the CITY one hundred fifty (150) days following the date of expiration of this Ordinance. (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 with the month of September of the year immediately preceding 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 ending 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 preceding sentence, if qreater 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 Charqe. 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 ( 11AC 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 (11AC 199211 ) 9/91 ["STR"J i-by Sales Tax Revenues for 12 month period endinq 9/90 ["STR"J Year 3 Jan. 1-Dec. 31, AC 1992 X 1992 Growth Fac-== Annual Charge 1993 tor, if any (9/92 STR 't' 1993 9/91 STR) ( 11AC 1993 II) 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) (11AC 199411 ) Year 5 Jan. 1-Dec. 31, AC 1994 X 1994 Growth Fac-== Annual Charge 1995 tor, if any (9/94 STR .... 1995 . 9/93 STR) ("AC 1995") -26- T • 1. ... '!be CITY agrees that, in compl~ with the Texas TaX COde Annotated, sections 151.023 ani 151.027 (Vemon 1982), the only person who may examine the :rec:x:n::tJs a:rrJ/or audit the TEIEPHONE a:HPANY'S revenues subject to the state· telecamnnnicatians sales tax as reported by the TEimiONE CXHPANY is the Texas CCII:Iptroller of E\lblic Accounts or his statutorily authorized designee. (d) SUCh payments shall not xel.ieve the TEIEPHONE a:HPANY fram payinq all applicable Jmlnicipally-amed utility service charges. Should the CITY not have the legal pc:7n'er to agree that the payment of the foregoinq Annual O'larg'e shall be in lieu of the taxes, licenses, charges, RIGHI'S-QF-wAY permit or inspection fees, rentals, RIGRIS-oF-wAY easements or franctdse taxes aforesaid, then the CITY agrees that it will accept ani credit so much of such payments as may be necessary to the satisfaction of the TEIEPHONE a::MPANY1S obligation, if artJ, to pay arr.t such taxes, licenses, charqes, RIGRl'S-oF-wAY permit or inspection fees, nmtals, RIGHIS-oF-wAY easements or franchise taxes. SECriON 14 -ASSIGNMEm' OF ORDmANCE 'Ibis ordinance arxi a:ey rights or privileges hereu:rder shall not be assignable to artJ other entity without the express consent of the ern'. SUch consent -27- . , ( • < ' . . . shall be evidenced by an cmiinance which shall fully recite the tenns ani con::iitions, If ar.rJ, upon 'Which such consent is given. SECI'ICN 15 -MOIOAL REU!ASES In consideration of the perfoxmance by 'l"EE..EFB:JNE o::M?ANY of its obligations hereun:ier, the c:ITi hereby fully :releases, discha.l:ges, settles ani ~ aey ani all claims 'Which the CI'l.Y has made or could have made arisil:q out of or o::mnect:ed with Ot'di.na:rx;e Number 3197, adopted JUly 28, 1960 ani exterrlei fran tine to time thel:eafter, ani its predecessor ordinances (hereina.fter referred to collectively as trOI'di.na:rx;e 3197") • 'Ihis full ani complete :release of claims for ar.rJ matters ur.der Ordinance 3197 shall be for the benefit of Southwest:et:n Bell Tele};ilone Ccanpany; its parent; its affiliates; their directors, officers ani employees; successors ani assigns; ani inoludes aey ani all claims, actions, causes of action and cantroversies, p:esently known or unk:nc:Mn, arisil:q directly or in:iirectl.y out of or connected with the TEIEPHONE o::MPANY1S obligations to the CI'l.¥ pw:suant to the provisions of Ordinance 3197. In consideration of the perfonnanoe by the c:ITi of its obligations hereunder, the 'l"EE..EFB:JNE a:MI?ANY, its parent, its affiliates, successors and assigns hereby fully :release, d.iscba:rge, settle a.rd CCI1'lpr'Q1l.is aey ani all claims, actions, causes of action or c:ont:roversies heretofore made or 'Which could have :been made, know.n or unknown, against the -28- ' lC < 'r ' '· c:J:'N, its officers or its employees, arisir:g cut of or connected with arrx matters ume:r Ol::dinance 3197. It is the intent of the c:J:'N ani the TEimiONE CXMP.ANY to enter into the foreqoin;J mutual releases in OJ:der to reach a camprcmise that is a.c:lCept.able to both the c:J:'N ani the TEimiONE CXMP.ANY. 'lbis Ordinance ani the mutual releases set forth in this Section represent a compromise of each party's claims as well as each party's defenses, ani is not inten1ed to be ani is not 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. SECl'ION 16 -CONFI.J:CI'ING ORDINANCES AND AGREEMENTS 'lbis Ordinance shall be ani is hereby declared to be cumulative of all other OJ::dinanoes of the c:J:'N, ani this Ordinance shall not operate to repeal or affect arrx of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ol::dinance, in which event such c:onflictin;J provisions, if arrx, in such other ordinance or OJ::dinanoes shall not be applicable, to the extent of such inconsist:enoy, with respect to this Ordinance. P.rovided all other ordinances I :rules I regulations, ani agreements which are not in conflict with this Ordinance ani which in arrx manner relate to the regulation of the c:J:'N streets, alleys 1 -29- r ., -· " ' . public places 1 the business of the canpaey 1 or for the protection of the public health, . safety or welfare shall remain in full force and effect. SECI'.ION 17 -Ft7IURE OONTINGENCY Notwith.standin;J enythirq contained in this ordinance to the c:ontra:ey I in the event that (a) this ordinance or err:/ part hereof, (b) err:/ tariff provision by which the m.EPHONE CXMI?ANY seeks to collect the Annual Charqe i.np:lsed by this ordinance, or (c) arr:1 procedure provide:l in this Ol::di.nance, or (d) arr:1 oonp:msation due the Cl'IY un:3er this ordinance, becomes, or is declared or determined by a judicial, administrative or legislative authority exercisin:J its juri.sdiction to be excessive, um:ecaverable, unenforceable, void, unlawful or ot:he:twise inapplicable, in 'Whole or in part, the TEI.EmONE CXMI?ANY and Cl'IY shall meet and negotiate a new ordinance that is in compliance with the authority's decision or enactment and, unless explicitly prohibited, the new oJ::dinance shall provide the Cl'IY with a level of compensation comparable to that set forth in this ordinance provided that such oonp:msation is recoverable by the m.EPHONE CXMI?ANY in a mutually agreed manner per.mitted by law for the unexpiJ:ed portion of the term of this Ol::dinance. -30- SECI'ION 18 -GOVERNING I»l (a) 'Ibis Ol:dinance shall be construed in aCCOJ:::'dance with the CITY Cbarter ani CITY Code(s) in effect on the date of passage of this Ol:dinance or as later a:rnei'rled to the extent that such Cbarter ani Code(s) are not in conflict with or in violation of the Constitution ani laws of the United states or the State of Texas. (b) 'Ibis ordinance shall be construed ani deemed to have been drafted by the CXIllbined efforts of the CITY and the 'I.EI.EmONE a:MPANY. SECI'ION 19 -ACX!EP:t'ANCE OF AGREEMENT AND EFF.ECr.IVE DATE 'lhe CITY shall deliver a properly certified oopy of this ordinance to the TEIEmONE a::MPANY within three (3) 'WOrld.rr;J days of its final passage. 'lhe TEIEmONE cx:MPANY shall have thirty (30) days fran ani after the final passage of this ordinance to file its written a.cc:.eptanc::e of this ordinance with the CITY Sec:r:eta:ry. 'Ibis ordinance shall became effective beqirmi.n; the first day of the secan:i ncnth follad:rg acceptance by the TEIEmONE a::MPANY, Tt.lhich date shall be not less than thirty (30) days follad:rg the last date of the required public notice of this ordinance. -31- -"" . .. ~ ";}~ ~~ .. \ 'Ihe written acceptance shall be signed in its name and. behalf by ·an officer · of the Telephone Company duly authorized by its Board of Oirecto:r::s in the followi.r.q form: 11'lbe Honorable Mayor and. the City Council of the City of Illbbock: southwestern Bell Telephone Company, for itself, its successors and. assigns, hereby accepts the attached ordinance finally passed by the City Council of IJJbbock, the 11th day of __ J_ul..;;.y ____ , l9 .2.!._, and. ·agrees to be :boun:i by all of its terms and. provisions. BY: ----------------------- President D:lted the __ day of-------·' 19_.11 SECI'ION 20 -P.ROVIOING R>R EUBLIC NOriCE OF '!HIS ORDINANCE 'Ihe TEI.EPHONE ~ANY shall pay the cost of providirg' p.lblic mtice of this ordina:nce. -32- .. \ ... ;: •• "t .. ~' AND IT IS SO ORDERED. Passed by City council on first reading this 27th day of J:uiu~ , 1991. Passed by City council on second reading this 11th day of July , 1991. APPROVED AS TO FORM: QL c_ c:::: }:2__._ 4 . . ~~. Ross, Jr., city Attorney -33- ACCEPTANCE VBEREAS, the City of Lubbock, Texas, did on the 26th day of September, 1991, enact Ordinance Number 9477 entitled: AN ORDINANCE VHEREBY TOE CITY OF LUBBOCK, TEXAS, AND SOUTBVESTERN BELL TELEPHONE COMPANY AGREE TO AMEND ORDINANCE NO. 9452 PASSED ON JULY 23, 1991, TO PROVIDE FOR ADDITIONAL CASH CONSIDERATION TO BE PAID TO THE CITY BY SOUTB'ilESTERN BELL TELEPHONE COMPANY DURING THE TERM OF SAID ORDINANCE. and VBEREAS, said Ordinance was on the 26th day of September, 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. Dated this /{) day of /2e~ , 19:J...l.. SOUTB'ilESTERN BELL TELEPHONE COMPANY Acceptance filed i~Lthe officeflo_f t~e City Secretary of Lubbock, Texas this Zi?m day of LXlubeL , 19.9.1. @ Southwestern Bell Telephone "The One to Call On" sM Greg Upp District Manager External Affairs One Bell Plaza Room 3022 P.O. Box 655521 Dallas, Texas 75265-5521 Phone (214) 464-0955 Fax t1 (214) 464-5838 October 18, 1991 Mr. J. Robert Massengale Assistant City Manager City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Dear Robert: Attached are two originals of Southwestern Bell Telephone Company's signed acceptance of amending Ordinance No. 9477 which was passed by the City of Lubbock on September 26, 1991. This ordinance amended Ordinance No. 9452, adopted by the City on July 23, 1991. After the filing date has been noted by the City Secretary, one countersigned acceptance document should be returned to me for filing with Southwestern Bell Telephone's official records. Ordinance No. 9477, which amends the specified annual municipal fee payment amount, will become effective with payments made for 1992. You will be notified of the growth factor additive to the $1,370,000 second year payment in December. Please feel free to contact .me at 214-464-0955 if you should have any questions regarding this matter. Attachments