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HomeMy WebLinkAboutORD 1314 - ORD Reconizing Agreement Granting Southwestern Bell Telephone Company 73 [j n ",-----: ORDINANCE NUMBER 1314 AN ORDINANCE RECOGNIZING THIS AGREEMENT GRANTING SOUTHWESTERN BELL TELEPHONE COMPANY, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO USE ALL OF THE PRESENT AND FUTURE STREETS, AVENUES, ALLEYS, ROADS, HIGHWAYS, SIDEWALKS, EASEMENTS AND OTHER PUBLIC RIGHTS OF WAY 'FOR ,ITS TELECOMMUNICATIONS, AND TELECOMMUNICATIONS RELATED BUSINESS AND COMMUNICATIONS SYSTEM IN THE CITY OF WEST UNIVERSITY PLACE FOR A PERIOD OF 10 YEARS; REGULATING THE USE OF THE STREETS BY THE COMPANY AND THE REPAIR AND ,RESTORATION OF STREETS DISTURBED BY CONSTRUCTION; CONTAINING A CONTRACT BY THE COMPANY TO FURNISH THE GRADE OF SERVICE TO ITS SUBSCRIBERS AS PROVIDED BY ITS TARIFFS EXCEPT UNDER CONDITIONS BEYOND THE COMPANY'S CONTROL; PROVIDING FOR THE TEMPORARY REMOVAL, RAISING AND LOWERING OF CABLES AND OTHER EQUIPMENT AND MATERIALS; PROVIDING FOR COMPENSATION TO BE PAID TO'THE CITY OF WEST UNIVERSITY PLACE, PROVIDING FOR USE BY THE CITY OF CERTAIN POLE SPACE, MANHOLE AND CONDUIT SPACE; PROVIDING THAT THIS AGREEMENT SHALL EXTEND TO ALL ANNEXED TERRITORY; PROVIDING THAT THIS AGREEMENT SHALL NOT BE EXCLUSIVE PROVIDING FOR COMPLIANCE BY THE CITY AND THE COMPANY; PROVIDING THE COMPANY'S OBLIGATION TO FURNISH EFFICIENT TELEPHONE SERVICE; PROVIDING FOR ASSIGNMENT BY THE COMPANY; PROVIDING ASEVERABILlTY CLAUSE; RESERVING ALL LAWFUL POWERS, CLAIMS AND RIGHTS; PROVIDING FOR INSPECTION OF COMPANY'S RECORDS AND REPORTS; MAKING MISCELLANEOUS PROVISIONS RELATIVE TO THIS ORDINANCE; PROVIDING FOR ACCEPTANCE BY THE COMPANY; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE: Section 1. GRANT OF AUTHORITY. Subject to the terms, conditions and provisions of this ordinance, the right and privilege is hereby extended and granted to Southwestern Bell Telephone Company, its successors and ass i gns, herei nafter call ed';'Company, II to use the present and future streets~ avenues" roads, highways, sidewalks, all eys, bri dges, easements and other publ i c ri ghts of way of the City of West University Place for the maintaining, erecting, constructing, reconstructing, extending and removing its\ poles,' ,wires, stubs, guys, anchors, cables, manholes, conduits and other 'plant 'construction and appurtenances, used in or incident to providing telecommunications and other communications services and to the mainten~nce of a telecommunications business and communications system by the Company in the City, within the corporate limits thereof, as the same are now and as the same maybe from time to time extended. n J Section 2. DEFINITIONS. A. IICity" shall ,meani the City of West University Place, Texas; a municipal corporation. B. "Company" shall mean Southwestern Bell Telephone Company, a Missouri corporation, its successors and assigns and shall not mean any of its affiliates and ~-'.- .. ...I~__ ----.1._'_ ~. .l=~', ~ 74 Ordinance Number 1314 subsidiaries who shall have no right, privilege or Agreement granted hereunder. C. IIDirector" shall mean the Director of Finance of the City of West University Place or his/her designee. D. IIAgreement" shall mean the franchise ordinance negotiated herein between the City of West University Place and Southwestern Bell Telephone Company subject to the Charter of the City of West University Place in effect on April 1, 1988. , i , E. "Gross Revenues II shall mean all revenues collected by the Company within the corporate limits of the City, from the rendition of local exchange services as set forth below: ' (1) Recurring Access Line Charges (Central Office Access - service or usage charges). - Business - Residence - Semi-Public Coin - Public Announcement - Public-Private Coin (2) Message Charges - Business - Residence - Semi-Public Coin - Public Announcement - Public-Private Coin I i , , I (3) Non-Recurring Charges - Business - Residence - Semi-Public Coin - Public Announcement - Public-Private Coin IIGross Revenues" shall not include any other Company revenues. Section 3. TERM. Upon the filing with the City by the Company of the acceptance required hereunder, this Agreement shall be in full force and effect for an initial term and period of Ten (10) years from April 1, 1988, and, thereafter, shall automatically be renewed for successive periods of one year from and after the expiration of the initial Ten (10) year term unless during the last 120 days of the initial term or of each one year automatic renewal period, either party gives written notice to terminate or renegotiate this Agreement. Section 4. CONSTRUCTION AND MAINTENANCE OF COMMUNICATIONS SYSTEM. All poles to be placed shall be of sound material and reasonably straight, and shall be so set that they will not interfere ~ 75 Ordinance Number 1314 r-i ) I '---' with the flow of water in any gutter or drain, andl so that the same will interfere as little as practicable with the ordinary travel on the street or sidewalk. The location and route of all poles, stubs, guys, anchors, conduits and cables placed and constructed and to be placed and constructed by the Company in the construction and maintenance of its communications system in the City, and the location of all conduits laid and to be laid by the Company within the limits of the City shall be subject to the reasonable and proper regulation, control and direction of the City or any City official to whom such duties have been or may be delegated. It is further understood that the Company will give every possible consideration to requests by the City to relocate underground any of its present aerial facilities or place new facilities underground. o Section 5. STREETS TO BE RESTORED TO GOOD CONDITION. The surface of any street, alley, highway, sidewalk or public place disturbed by the Company in i nsta 11 i ng, bui 1 di ng, constructi ng, renewi ng or maintaining its telecommunications plant and communications system shall be restored as soon as practicable after the completion of the work to as good a condition as before the commencement of the work to the reasonable satisfaction of the City Manager or his designee. The Company shall be responsible for the payment of all repair or maintenance costs incurred as a result of any defects, impairments, or substandard condition in the street, alley, highway, sidewalk or public place caused by the work of the Company for one year from the date the surface of said street, alley, highway. or public place is restored after such construction or maintenance work, after which time responsibility for the maintenance shall become the duty of the City. No street, alley, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work.. Except in cases.of emergency, the Company shall secure appropriate approval by the City of plans,and specifications prior to the disturbance of any street, alley, highway, sidewalk or public place; such approval may not be unreasonably withheld. Secti on 6. QUALITY OF SERVICE. The Company shall furnish the grade of telecommunications and telecommunications related services to its subscribers as provided by its tariffs and shall maintain its communications system in good repair and operating condition during the continuance of this Agreement. An exception to this requirement is automatically in effect when, but only for as long as, necessitated by a shortage 'inmater.ials, supplies and equipment beyond the control of the Company by fi res, s tri kes, ri ots, storms" floods, and other casualties. by governmental regulations. limitations, and restrictions as to the use and availability of materials, supplies and equipment and as to the use of, the services, and by unforeseeable and, unusual demands for serv ice. . I n any of such events the Company sha.] 1 do an, th ings reasonably within its power to restore normal service as quickly as practicable. lJ Section 7. TEMPORARY REMOVAL OF WIRES. The Company on the request of any person shall remove or rai se or lower its wi res temporarily to permit the moving of houses or other bulky structures. The expense of such temporary- removal, raising or lowering of wires .I~". ,. , ,=.::1.1....- .'w.:..t.llll.:LULlllJl:- 76 Ordinance Number 1314 shall be paid by the benefitted party or parties, and the Company may require such payment in advance. The Company shall be given not less than forty-eight hours advance notice tooarrange for such temporary wire changes. All wires and cables, except drop and service wires and cables, shall be not less than that di-stance required by law, above the traveled surface of any City street, alley or sidewalk, and above the surface of anycCity parks or playgrounds. Section 8. PAYMENT TO THE CITY. c In consideration for the rights and privileges herein granted, the administration of this Agreement by the City, the temporary interference with the use of public rights of way and other costs and obligations undertaken by the City herein, the Company hereby agrees to pay the City an amount equal to four percent (4%) of its annual gross revenues as defined herein. The first payment shall be made on or before April 15, 1988, in an amount equal to 2% of the-estimated gross revenues from January 1, 1988 through March 31, 1988. Thereafter, payments shall be made at the four percent (4%) rate on or before October 15th and April 15 of each year. The October 15th payment shall be estimated at 50% of the prior year's gross revenue. The April 15th payment shall be a true-up payment to reflect the actual gross revenue for the prior year. The April 15th payment shall be accompanied by a financial statement prepared according to generally accepted accounting principles showing in detail the gross revenues for the preceding year. Section 9. FACILITIES TO BE FURNISHED CITY AS ADDITIONAL CONSIDERATION. In addition to the consideration set forth in Section 8, the Company shall hold itself ready to furnish, subject to the use of the City, such wire space as may be required from time to time by the City, upon the poles or in cables now owned or hereafter erected by the Company in the City for the use of the City's police and. fire alarm system, provided that the required wire space shall not exceed the wire capacity of five circuits. The location on the poles of this fire and police wire space shall be determined on specific applications for space, at the time the applications are received from the City, and will be allotted in accordance with the consideration for electrical construction of the United States Department of Commerce, Bureau of Standards. In its wire construction on the Company's poles or in cables, the City will follow the suggestions and requirements laid down for wire construction in the rules and Regulations of the Bureau of Standards of the United States Department of Commerce. Where conduits are laid or are constructed by the Company, said Company shall hold itself ready to furnish sufficient duct space not to exceed capacity of one duct for use by the City in carrying its police and fire alarm wires. All such wires, whether on poles or in conduits, shall be constructed, maintained and operated in such manner as not to interfere with or create undue hazard in the operations of the communications system of the Company. It is further agreed that the Company shall not be responsible to any party or parties whatsoever for any claims, demands, losses, suits, judgments for damages or injuries to persons or property by reason of the construction, maintenance, inspection or use of the police and fire alarm wires belonging to the City. ----, , r i L-C ~ r I r I 77 Ordinance Number 1314 r: Section 10. ,ANNEXATIONS BY CITY. This Agreement shall extend to and include any and ,all territory which is annexed by the City during the term of this Agreement. Section 11. NON-EXCLUSIVE AGREEMENT. Nothing contained in this ordinance shall ever be construed as conferring upon the Company any exclusive rights or privileges of any nature whatsoever. Section 12. COMPLIANCE. (a) Method of termination by the Company. In the event the City, by act or omission violates any term, condition or provision of this ordinance, the Company shall notify the City in writing requesting that the City correct any such violation. Should the City fail or refuse to correct any such violation within sixty (60) days from the date of Company's notice, the Company shall have the right to terminate this Agreement. (b) Any such termination and cancellation shall be upon written notification to the City; provided, however, before any such termination is effective, the City must be given at least sixty (60) days advance written notice that it will be provided an opportunity to be heard by the Company's management regarding the basis for termination before such action is taken and shall ,set forth the time, date and place of the hearing. Method of Termination by the City. In the event the " Company, by act or omission violates any term, condition or provision of this ordinance, the City shall notify the Company in writing requesting that the Company correct any such violation. Should the Company fail or refuse to correct any such violation with sixty (60) days from the date of City's notice, the City shall, upon written notification to the Company, have the right to terminate this Agreement. n rl Any such termination and cancellation shan be by ordinance adopted by City Council; provided, however, before any such ordi nancei s adopted" the Company must be given at least sixty (60) days. advance written notice, which notice shall set forth the causes and reasons for the. proposed termination, and cancellation, shall advise the Company that it will be provided an opportunity to be heard by City Council regarding such proposed action before any such action is taken, and shall set forth the time, dateandp'lace of the hearing. (c) Force Majeure~ Other than its failure, refusal, or inability to pay its debts and obligations, including, specifically, the payments to the City required by this ordinance, the, Company shall not be declared in dE:!fault or be subject to any sanction under any provision of 78 Ordinance Number 1314 this ordinance in those cases in which performance of such provision is prevented by reasons beyond its control. II i \ I ( LJ (d) Neither party hereto shall terminate this Agreement except in accordance with Section 12 herei,n. Section 13. RESERVE OF POWERS. (a) The City by the granting of this Agreement does not surrender or to any extent lose, waive, impair or lessen,the lawful powers, claims and rights, now or hereafter vested in the City under the Constitution and Statutes of the State of Texas and under the Charter of the ,City of West ,University Place; and the Company by its acceptance of this Agreement recognizes that all lawful powers and rights, whether regulatory. or otherwise, as are or the same may be from time to time vested in or reserved to the City, shall be in full force and effect and subject to the exercise thereof by the City at any time and from time to time. ' (b) The Company by. accepting this Agreement does not surrender or to any extent lose, waive; impair or lessen the lawful powers, claims and rights now or hereafter vested in the Company under the Constitution and Statutes of the State of Texas. Section 14. RELOCATION OF;FACILITIES. The Company shall, upon the written request of the City, relocate, its facilities situated within any street, at no expense to City, where reasonable and necessary to accommodate street construction or widening or other major improvement projects by and for the City; prov,ided, however, if said requirements impose a financial hardship upon the Company, the Company shall have the right to present to the City alternative proposals to the proposed relocation. The City shall give due consideration to such alternative proposals. This shall .in no way affect the Company's right to reimbursement for the cost of relocating its facilities at the request of the State of Texas or the United States under any applicable state or federal law, rule or regulation. i I i I ~ Section 15. GOVERNMENTAL FUNCTION. All of the regulations and activities required by this Agreement are hereby ~eclared to be governmental and for the health, safety and welfare of the general public. Section 16. RECORDS AND REPORTS. (a) Books and Records. Company shall keep complete and accurate books of accounts. and records of its business and operations within the City's boundaries under and in connection with this Agreement. To the extent practicable, all such books of accounts and records shall be made available at Company's principal offic~ in Houston, Texas. (b) Access by City. The Director shall have access to all books of accounts and records of Company for ascertaining the <..::, U 79 Ordinance Number 1314 o correctness of any and all reports to the City and may examine its representatives in respect thereto. Access shall be given by Company to City at all reasonable times to Company.s gross reven~E!s, financial, statistical, customer~and subscriber service records relating to the properties and operation of its communications system within the City and to all other records and reports required to be kept or which are kept by Company pertaining to operations within the City. Section 17. ASSIGNMENT. This Agreement may only be assigned by the Company with the written approval of the City Council. The rights and powers granted hereby are not severable and separately assignable. Section 18. ACCEPTANCE. The Company shall signify its agreement and.acceptance of this ordinance, within sixty (60) days from the third and final reading of this ordinance and file with the City Secretary of the City of West University Place, its written acceptance signed in its name and behalf in the following form: "ACCEPTANCE o Southwestern Bell Telephone Company, a duly, chartered corporati on doi ng business in the State of T~xas, does hereby accept a certain Agreement and contract together with a 11 the terms andprovi s i ons thereof, granted to . said Southwestern Bell Telephone Company by the Mayor and the City Council of the City of West University Place, Harris County, Texas by an ordinance read in full and finally passed at a meeting of the said City Council on the day of . , 1988. WITNESS THE HAND of the officer and official seal of the said Southwestern Bell Telephone Company, this, the day of 1988. SOUTHWESTERN BELL TELEPHONE COMPANY By Name II rJ Section 19. SEVERABILITY. If any provision, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional, void or invalid (or for any reason unenforceable), the validity of the remaining portions of this Agreement.shall not be affected thereby, it being the intent of the City of West University Place in adopting this ordinance that no portion hereof or provision hereof shall become in-operative or fall by reason of any unconstitutionality or invalidity of any other portion, provision or regulation, and to this end, all provisions of this ordinance are declared to be severable. Upon acceptance being filed in accordance with the terms of Section 19, this ordinance shall be effective and in force from and after April 1, 1988. 1.,--. rr---~ . "cr"...., 80 Ordinance Number 1314 PASSED AND APPROVED ON FIRST, READING this 14th day of March , 1988. --, I ! I L: Councilmembers Voting Aye:' Mayor Parks, Councilmembers Bryan, Bell, Schwartzel Councilmembers Voting No: None Councilmembers Absent: ' Councilmember Britton. PASSED.AND, APPROVED ON:THE REREADING OF FIRST READING this 28th day of March , 1988 Councilmembers Voting Aye: Mayor Pro Tem Bryan, ,Councilmembers Bell, Britton, Schwartzel Councilmembers Voting No:, None Councilmembers Absent: Mayor Parks PASSED AND APPROVED ON SECOND READING this 11th day of April , 1988. Councilmembers Voting Aye: Mayor Parks, Councilmembers Bryan, Bell, Schwartzel None Councilmember Britton Councilmembers Voting No: Councilmembers Absent: PASSED AND APPROVED ON THIRD AND FINAL READING this 25th day of April , 1988. Councilmembers Voting Aye: Mayor Parks, Councilmembers : Bryan, Be 11 , Britton, Schwa rtze 1 Councilmembers Voting No: None Councilmembers Absent: None ~ Signed: Michael L. Parks, Mayor ATTEST: Approved as to Form: Audrey Nichols, City Secretary (SEAL) , , James L. Dougherty, Jr. City Attorney , I , I LJ