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HomeMy WebLinkAboutORD 1446 - ORD Agreeing Southwesterbell Telephone Company to Operate its Telecommunication Business 10-20-92 ORDINANCE NO. 1446 AN ORDINANCE WHEREBY THE CITY OF WEST UNIVERSITY PLACE, TEXAS, 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, ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC PROPERTY 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 CLAIMS UNDER PRIOR ORDINANCES; PROVIDING FOR FUTURE CONTINGENCIES; PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM AND AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS, 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 subj ect to the 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, if any, upon the effective date of the annexation. SECTION 2 - ADDITIONAL AUTHORITY REQUIRED TELEPHONE COMPANY is not authorized to provide cable television in the City of West University Place under this Ordinance, but must first obtain a franchise from the CITY for that purpose, under such terms and conditions as may lawfully be provided by the City Council in its sole discretion. This section does not preclude - Page 2 - 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 equipmentl structures and appurtenances and all associated TRANSMISSION MEDIA. (b) ~ any TELEPHONE COMPANY acquisition, construction, reconstructionl 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 West University Place, Texas. (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public ways wi thin the city limits of the CITY. (e) DIRECTION OF THE CITY: 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. - Page 3 - (f) TRANSMISSION MEDTA: 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 f data or other purposes. (g) 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 COMPANY. Southwestern Bell Telephone Company. SECTION 4 - TERM This Ordinance shall continue for a period of seven (7) years from the effective date hereof; provided that at the expiration of the initial period, such term may be extended by mutual written agreement of the CITY and TELEPHONE COMPANY. SECTION 5 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS (a) 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 - Page 4 - not unduly interfere with ordinary travel on the streets or sidewalks. The location and route of all poles, stubs, guys I anchors, conduits, fiber and cables placed and constructed by the TELEPHONE COMPANY in the construction and maintenance of its telecommunications system in the CITY shall be subj ect to the lawful, reasonable and proper control and DIRECTION OF THE CITY. (b) Except in an emergency, the TELEPHONE COMPANY shall not excavate RIGHTS-OF-WAYS without providing the CITY notice of and receiving approval for such excavation. (c) Any work done in connection with the TELEPHONE COMPANY'S USE of the RIGHTS-OF-WAY shall be subject to the police power and DIRECTION OF THE CITY. 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 West University Place city council; provided, however, TELEPHONE COMPANY shall be given due notice and shall be entitled to a hearing before the West University Place City Council prior to the adoption of any such requirements. (d) All use of the RIGHTS-OF-WAY shall interfere as little as reasonably practicable with the USE of the RIGHTS-OF-WAY by others. - Page 5 - SECTION 6 - ATTACHMENTS TO POLES AND SPACE IN DUCTS (a) Nothing contained in this Ordinance shall be construed to require or permit any pole attachments for electric light or power wires or communications facilities or systems not provided by the TELEPHONE COMPANY to be attached to the TELEPHONE COMPANY'S poles or other physical plant or placed in the TELEPHONE COMPANY'S conduit. If the CITY desires pole attachments for electric light or power wires or communications facilities or systems not provided by the TELEPHONE COMPANY, or if the CITY desires to place communications facilities or systems not provided by the TELEPHONE COMPANY in any TELEPHONE COMPANY duct, then a further separate, noncontingent agreement shall be prerequisite to such attachment(s) or such use of any duct by the CITY. Nothing contained in this Ordinance shall obligate or restrict the TELEPHONE COMPANY in exercising its rights voluntarily to enter into pole attachment, pole usage, joint ownership or other wire space or facilities agreements with light and/or power companies or with other wire-using companies which are authorized to operate within the CITY. (b) The TELEPHONE COMPANY is not authorized to license or lease to any person or entity the right to occupy or use the CITY I 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 - Page 6 - 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 attaching to the 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 shall be reasonable, as determined by the CITY. (c) 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, design, and construction required by, or are not being maintained in accordance with industry standards or - Page 7 - practice. Provided, however, nothing herein shall modify or abrogate the power of the CITY to require the use of facilities under the city Charter. (d) Notwithstanding the provisions of Section 6(a) the TELEPHONE COMPANY shall hold itself ready to furnish without charge, subject to the use of the CITY, solely for its own non-commercial telecommunications purposes including, e. g., operating its traffic, police, and fire alarm systems, such wire space as may be required from time to time by the CITY upon the poles, or in conduits now owned or hereafter erected by the TELEPHONE COMPANY in the CITY. The location on the poles of this wire space shall be determined on specific applications for space, at the time the written applications are received from the CITY, and will be allotted in accordance with the considerations for electrical construction provided in the National Electrical Safety Code. Also, in its wire placement on the TELEPHONE COMPANY'S poles or in conduits, the CITY will follow the suggestions and requirements provided in the National Electrical Safety Code. Where conduits are laid or are constructed by the TELEPHONE COMPANY, it shall hold itself ready to furnish sufficient duct space not to exceed the capacity of one duct for use by the CITY for such systems as aforesaid. All such space, whether on poles or in conduits, shall be used in such manner as not to interfere with or create undue hazard in the operation of the telecommunications system of the TELEPHONE COMPANY. CITY shall not sell, lease or otherwise make available - Page 8 - its rights to use TELEPHONE COMPANY'S FACILITIES to any third party for commercial purposes. Such rights are provided solely for the non-commercial 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. It is further agreed that the TELEPHONE COMPANY shall not be responsible to any party or parties whatsoever for any claims, demands, losses, suits, judgments for damages or inj uries to persons or property by reason of the construction, maintenance, inspection or use of facilities or the wires belonging to the CITY. SECTION 7 - STREETS TO BE RESTORED TO PRE-EXISTING CONDITION The TELEPHONE COMPANY shall promptly restore to as good condition as before and to the reasonable satisfaction of the CITY, all RIGHTS-OF-WAY damaged or excavated by the TELEPHONE COMPANY. Should the CITY reasonably determine, within one year from the date of such restoration, that such damaged or excavated portion of the RIGHT-OF-WAY 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. No public street, avenue, - Page 9 - highway, alley or public place shall be encumbered for a longer period than shall be reasonably necessary to execute all work. SECTION 8 - TEMPORARY REARRANGEMENT OF AERIAL WIRES Upon request, the TELEPHONE COMPANY shall remove or raise or lower its aerial wires, fiber or cables temporarily to permit the moving of houses or other bulky structures. The expense of such temporary rearrangements shall be paid by the party or parties requesting them, excluding the CITY, and the TELEPHONE COMPANY may require payment in advance. The TELEPHONE COMPANY shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary rearrangements. All wires and cables, except drop or service wires and cables, shall be not less than that distance required by law, above the traveled surface of any CITY street, alley or sidewalk and above the surface of any CITY parks or playgrounds. 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 - Page 10 - branches of such trees from coming in contact with the aerial wires, fiber or cables of the TELEPHONE COMPANY. The TELEPHONE COMPANY shall notify the CITY of its trimming activity. When so directed by the CITY, said trimming shall be done under the supervision and direction of the CITY or of any CITY official to whom said duties have been or may be delegated. Such trimming activities may be subject to the CITY'S "Urban Forest Preservation and Enhancement" ordinance. SECTION 10 - RELOCATION OF FACILITIES The TELEPHONE 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 public improvement projects of the CITY. In the case of a joint CITY/Metropolitan Transit Authority street construction or widening project which necessitates the relocation of the TELEPHONE COMPANY'S FACILITIES situated within any street, such relocation shall be at no expense to either the CITY or the Metropolitan Transit Authority. If said requirements impose a financial hardship upon the TELEPHONE COMPANY, the TELEPHONE COMPANY shall have the right to present to the CITY alternative proposals to the proposed relocation. The CITY shall give due and reasonable consideration to such alternative proposals. It is understood that the CITY shall not - Page 11 - require the TELEPHONE COMPANY to permanently relocate its FACILITIES entirely from any RIGHTS-OF-WAY as long as the affected RIGHT-OF-WAY continues to exist. SECTION 11 - 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. 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 12 - RIGHT TO OBTAIN INFORMATION (a) The CITY may exercise any and all of the powers conferred upon the CITY by its Charter or by general law relating to the administration and supervision of this Ordinance. - Page 12 - (b) It shall be the right of the City of West University Place at all times to keep fully informed as to all matters in connection with or affecting the construction, reconstruction, maintenance, operation and repair of the FACILITIES of the TELEPHONE COMPANY within the RIGHTS-OF-WAY. SECTION 13 - 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. (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. SECTION 14 - 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 - Page 13 - 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 a Charge upon the Gross Receipts (as hereinafter defined) of the TELEPHONE COMPANY. The amount of the Charge for the first year this Ordinance is in effect shall be $78,000.00. In no event shall such Charge be less than the above amount for each year this Ordinance is in effect, except as provided in the case of disannexation as set forth in paragraph 14(e), or as provided in Section 19 herein. The TELEPHONE COMPANY will, according to tariff, bill such Charge to the customers billed the customer service charges included wi thin the term "Gross Receipts," as defined herein. Gross Receipts, for purposes of this Charge, shall include only customer service charges which meet all four of the following conditions: (1) such charges are for TELEPHONE COMPANY services provided within the CITY; (2) such charges are billed through the TELEPHONE COMPANY'S Customer Records Information System ("CRIS"); (3) such charges are the recurring charges for the local exchange access rate element specified in the TELEPHONE COMPANY'S tariffs filed with the PUCi and (4) such charges are subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications Commission ("FCC"). "Gross Receipts" shall also - Page 14 - include the recurring charges for intraexchange private line services provided by the TELEPHONE COMPANY. For the second and subsequent years while this Ordinance remains in effect, the above Charge is subject to adjustment by application of the Growth Factor set out in paragraph 14(c). This adjustment for the Growth Factor will be made effective as of each anniversary date of this Ordinance. The TELEPHONE COMPANY shall adjust its billings to customers to account for any undercollection or overcollection of the Charge due the CITY. (b) The Charge for each year shall be paid in four (4) equal payments. The dates shall be May 31, August 31, November 30 and February 28, with the first payment under this Ordinance due on the last day of the fifth month following the effective date hereof. In the event of any over or undercollection from customers at the expiration of this Ordinance, the TELEPHONE COMPANY may make a pro rata one-time credit or charge to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 14(a). This will be accomplished within 150 days following the date of expiration of this Ordinance. If however, it is impractical to credit any overcollection to customers, then such overcollection shall be paid to the CITY. - Page 15 - (c) The Growth Factor shall be calculated by dividing the TELEPHONE COMPANY'S revenues within the corporate limits of the CITY subject to state sales taxes ("Sales Tax Revenues") for the twelve month period ending three (3) months prior to the next anniversary date of the effective date of this Ordinance by the Sales Tax Revenues for the twelve month period ending three (3) months prior to either the initial effective date or the preceding anniversary date of the effective date of this Ordinance as applicable. The Growth Factor calculated by the method set forth in the preceding sentence, if greater than one, shall be multiplied by the current year's Charge to determine the dollar amount of the Charge for the next year. If the Growth Factor calculated above is one or less, the Charge for the next year shall be equal to the current year's Charge. The TELEPHONE COMPANY will adjust its customer billing to account for the Growth Factor calculated above. Once the Growth Factor calculation is completed, the TELEPHONE COMPANY will provide the CITY with the Sales Tax Revenues upon which the Growth Factor calculation was based. Stated another way, the Annual Charge and Growth Factor for the years 1993 through 1997, used as an example, shall be calculated as follows: - Page 16 - Example: Annual Charqe and Growth Factor Year 1 Jan. I-Dec. 31, $78,000 = Annual Charge 1993 1993 ("AC 1993") Year 2 Jan. I-Dec. 31, $78,000 x 1993 Growth = Annual Charge 1994 Factor, if any 1994 (Sales Tax Revenues for ( II AC 1994") 12 month period ending 9/93 ["STR"J + by Sales Tax Revenues for 12 month period ending 9/92 ["STR"J) Year 3 Jan. I-Dec. 31, AC 1994 x 1994 Growth = Annual Charge 1995 Factor, if any 1995 (9/94 STR . ( II AC 1995") or 9/93 STR) Year 4 Jan. I-Dec. 31, AC 1995 x 1995 Growth = Annual Charge 1996 Factor, if any 1996 (9/95 STR + ("AC 1996") 9/94 STR) Year 5 Jan. I-Dec. 31, AC 1996 x 1996 Growth Annual Charge 1997 Factor, if any 1997 (9/96 STR . ("AC 1997") or 9/95 STR) Year 6 Jan. I-Deco 311 AC 1997 x 1997 Growth Annual Charge 1998 Factor, if any 1998 (9/97 STR . ("AC 1998") ''''- 9/96 STR) Year 7 Jan. I-Dec. 31, AC 1998 x 1998 Growth Annual Charge 1999 Factor, if any 1999 (9/98 STR + ("AC 1999") 9/97 STR) The CITY agrees to rely upon audits by the Texas Comptroller of Public Accounts of state sales taxes as reported by the TELEPHONE COMPANY which are performed in compliance with sections 151.023 and 151.027 of the Texas Tax Code Annotated. The Growth Factor shall be recomputed to reflect any final, nonappealable adjustments made - Page 17 - pursuant to an audit finding by the Texas Comptroller of an inaccuracy in the TELEPHONE COMPANY'S reports of revenues subject to state sales taxes. The Charge shall be recalculated using the Growth Factor recomputed as specified in the preceding sentence, and the recalculated Charge shall be used for all future calculations required by this Ordinance. Any overpayment or underpayment resulting from such recalculation shall be subtracted from or added to the first installment due the following year. If any overpayment or underpayment shall be due during the final year of this Ordinance, then payment shall be made as follows. In the case of overpayment by the TELEPHONE COMPANY, the CITY shall pay such overpayment to the TELEPHONE COMPANY within 150 days following the expiration of this Ordinance and, in the case of underpayment by the TELEPHONE COMPANY, the TELEPHONE COMPANY shall pay such underpayment to the CITY within 150 days following the expiration of this Ordinance. (d) Such payments shall not relieve the TELEPHONE COMPANY from paying all applicable municipally-owned utility service charges. Should the CITY not have the legal power to agree that the payment of the foregoing Charge shall be in lieu of the taxes, licenses, charges, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes aforesaid, then the CITY agrees that it will apply so much of such payments as may be necessary to the satisfaction of the TELEPHONE COMPANY'S obligation, if any, to pay any such taxes, licenses, charges, - Page 18 - RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes. (e) In the event that either (1) territory within the boundaries of the CITY shall be disannexed and a new incorporated municipality created which includes such territory or (2) an entire, existing incorporated municipality shall be consolidated or annexed into the CITY, then notwithstanding any other provision of this Ordinance, the Charge shall be adjusted. To accomplish this adjustment, within thirty days following the action effecting a disannexation/annexation as described above, the CITY shall provide the TELEPHONE COMPANY with maps of the affected area(s) showing the new boundaries of the CITY. In the event of an annexation as described above, the Charge for the CITY will be adjusted to include the amount of the payment by the TELEPHONE COMPANY to the existing incorporated municipality being annexed. In the event that the annexed municipality had no ordinance imposing a Charge or in the event of a disannexation, then the adjustment to the Charge will be calculated using the effective date of the imposition of Local Sales Taxes as determined by the Texas Comptroller of Public Accounts. The adjustment shall be the percent increase/decrease in the TELEPHONE COMPANY'S Gross Receipts as defined herein for the CITY for the first calendar month following the Local Sales Tax effective date compared to the last month prior to such effective date. This adjustment to the - Page 19 - Charge will be made on the first day of the second month following the Local Sales Tax effective date and the adjusted Charge shall be prorated from that date through the remainder of the payment year. The Charge as adjusted shall be used for all future calculations required by this Ordinance. (f) The recovery of the Annual Charge from TELEPHONE COMPANY'S customers is subject to the jurisdiction of the regulatory authorities and not the CITY. The obligation of TELEPHONE COMPANY to pay compensation under this Ordinance is contractual, and the CITY makes no requirements as to the method the TELEPHONE COMPANY uses to recover the Annual Charge. SECTION 15 - ASSIGNMENT OF ORDINANCE This Ordinance and any rights or privileges hereunder shall not be assignable to any other entity without the express consent of the CITY. Such consent shall be evidenced by an ordinance which shall fully recite the terms and conditions, if any, upon which such consent is given. - Page 20 - SECTION 16 - COMPLIANCE (a) Method of Termination bv the TELEPHONE COMPANY. In the event the CITY, by act or omission violates any term, condition or provision of this Ordinance, the TELEPHONE 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 thirty (30) days from the date of TELEPHONE COMPANY'S notice, the TELEPHONE COMPANY shall have the right to terminate this agreement. Any such termination and cancellation shall be upon written notification to the CITY; provided, however, and 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 opportuni ty to be heard by the TELEPHONE COMPANY'S management regarding the basis for termination before such action is taken which notice shall set forth the time, date and place of the hearing. (b) Method of Termination bv the CITY. In the event the TELEPHONE COMPANY, by act or omission violates any term, condition or provision of this Ordinance, the CITY shall notify the TELEPHONE COMPANY in writing requesting that the TELEPHONE COMPANY correct any such violation. Should the TELEPHONE COMPANY fail or refuse to correct any such violation within thirty (30) days from the date of - Page 21 - CITY'S notice, the CITY shall, upon written notification of the TELEPHONE COMPANY, have the right to terminate this agreement. Any such termination and cancellation shall be by ordinance adopted by city Council; provided, however, before any such ordinance is adopted, the TELEPHONE 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 and shall advise the TELEPHONE 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, date and place of the hearing. (c) Force Maieure. 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 TELEPHONE COMPANY shall not be declared in default or be subject to any sanction under any provision of this Ordinance in those cases in which performance of such provision is prevented by reasons beyond its control. (d) The TELEPHONE COMPANY shall maintain its telecommunication system and FACILITIES in a reasonable operating condition at all normal times during the term of this ordinance. An exception to this condition is automatically in effect when service furnished by the TELEPHONE COMPANY is interrupted, impaired or prevented by - Page 22 - fires, strikes, riots or other occurrences beyond the control of the TELEPHONE COMPANY, or by storms, floods or other casualties, in any of which events the TELEPHONE COMPANY shall do all things reasonably within its power to do to restore normal service. SECTION 17 - MUTUAL RELEASES The CITY hereby fully releases, discharges, settles and compromises any and all claims which the CITY has made or could have made arising out of or connected with Ordinance Number 1314, adopted April 25, 1988, and renewed or extended from time to time thereafter, and its predecessor ordinances, if any, (hereinafter referred to collectively as "Ordinance 1314"). This full and complete release of claims for any matters under Ordinance 1314 shall be for the benefit of Southwestern Bell Telephone Company; its parent; its affiliates; their directors, officers and employees; successors and assigns; and includes any and all claims, actions, causes of action and controversies, presently known or unknown, arising directly or indirectly out of or connected with the TELEPHONE COMPANY'S obligations to the CITY pursuant to the provisions of Ordinance 1314. Southwestern Bell Telephone Company, its parent, its affiliates, successors and assigns hereby fully release, discharge, settle and compromise any and all claims, actions, causes of action or controversies heretofore made or which could have been made, known or unknown, against the CITY, its - Page 23 - officers or its employees, arising out of or connected with any matters under Ordinance 1314. It is the intent of the CITY and the TELEPHONE COMPANY to enter into the foregoing mutual releases in order to reach a compromise that is acceptable to both the CITY and the TELEPHONE COMPANY. This Ordinance and the mutual releases set forth in this Section represent a compromise of each party's claims as well as each party's defenses, and is not intended to be and is not an admission of liability or vulnerability by either party to the other with respect to either the claims or the defenses asserted against the other. Neither the obligation, if any, of the TELEPHONE COMPANY to indemnify the CITY against third party claims for death, personal injuries, or property damage under Ordinance 1314, nor claims or causes of action for property damage by the CITY against the TELEPHONE COMPANY or by the TELEPHONE COMPANY against the CITY, are hereby waived or released. SECTION 18 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS Ordinance Number 1314 adopted April 25, 1988, is hereby repealed; provided, however, such repeal shall take effect at 11:59 p.m. on the day immediately preceding the effective date specified in the Section of this Ordinance entitled "ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE". All other ordinances and agreements and parts of - Page 24 - ordinances and agreements in conflict herewith are also repealed, which repeal shall take effect at the time and on the date specified in the preceding sentence. And, provided further that the TELEPHONE COMPANY shall make payment on all amounts due under Ordinance 1314 for the period from January 1, 1992 through December 31, 1992, according to the terms of said ordinance and such payment shall be made not later than 60 days after the effective date of this agreement. Such payments shall be based upon the same revenue codes as previous payments under Ordinance 1314. SECTION 19 - FUTURE CONTINGENCY In the event this Ordinance, or any tariff that authorizes the TELEPHONE COMPANY to recover the Charge provided in this Ordinance, or any procedure provided in this Ordinance, or any compensation due the CITY under this Ordinance, becomes unlawful or is declared or determined by a judicial or administrative authority exercising its jurisdiction to be excessive, unenforceable, void, or illegal, in whole or in part, TELEPHONE COMPANY and CITY shall meet and negotiate a new agreement that is in compliance with the authority's decision and, unless explicitly prohibited, the new agreement shall provide the CITY with a level of compensation comparable to that set forth in this Ordinance which compensation is recoverable by the TELEPHONE COMPANY in a mutually agreed manner - Page 25 - permitted by law for the unexpired portion of the term of this Ordinance. SECTION 20 - RESERVE OF POWERS (a) The CITY by the granting of this Agreement does not surrender or to any extent lose, waivej 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 21 - GOVERNING LAW (a) This Ordinance shall be construed in accordance with the CITY Charter and CITY Code(s) in effect on the date of passage of this - Page 26 - Ordinance to the extent that such Charter and Code(s) are not in conflict with or in violation of the Constitution and laws of the united states or the state of Texas. (b) This Ordinance shall be construed and deemed to have been drafted by the combined efforts of the CITY and the TELEPHONE COMPANY. (c) All of the regulations and activities required agreement are hereby declared to be governmental and health, safety and welfare of the general public. by this for the SECTION 22 - FUTURE AMENDMENTS This ordinance governing street use may be amended at any time by the mutual agreement of the CITY and the TELEPHONE COMPANY. It is understood that the TELEPHONE COMPANY is currently in the process of negotiating similar ordinances with other cities throughout the state. It is understood and agreed that if an ordinance governing street use with another city in this state contains a provision which the CITY feels would be more advantageous to it than the terms hereof, the CITY may require that that portion of this ordinance be reopened for negotiation. The intent of the parties is that the city of West University Place will be entitled only to treatment comparable to that which was afforded under the ordinance - Page 27 - with the other city giving due consideration to the contextual meaning of the provision on which renegotiation is sought and the effect of the proposed amendment on the meaning of the ordinance as a whole. Under no circumstance may an amendment result in a higher level of compensation than that level produced by those methodologies utilized by the TELEPHONE COMPANY to calculate compensation to other cities in Texas nor may an amendment be applied retroactively. SECTION 23 - PROVIDING FOR PUBLIC NOTICE OF THIS ORDINANCE The TELEPHONE COMPANY shall pay the cost of providing public notice of this Ordinance. SECTION 24 - ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE The CITY shall deliver a properly certified copy of this Ordinance to the TELEPHONE COMPANY within three (3) working days of its final passage. The TELEPHONE COMPANY shall have thirty (30) days from and after the final passage of this Ordinance to file its written acceptance of this Ordinance with the CITY Secretary. This Ordinance shall become effective on January 1, 1993. - Page 28 - Passed and approved following the 3~ reading hereof this c;?/d day of A~~~ , A.D., 1992. faJ~,/~~ ayor, ~ ci ty of West Uni v rsi ty Place, Texas ATTEST: . J : ~~~ ci t ecretary r' I, ~~J~,<) IhdL.<)~ ' City Secretary of the city of West univ r ity Place, exas, do hereby certify that the foregoing is a true and correct copy of Ordinance Number /j>!f/6, finally passed and approved by the City Council of West University Place, Texas, following the ~~ reading thereof at a regular meetinq held on the A~- day of A~~..L?~.L--, 1992. ~ ' ~ ~ ~ . h...::---z-- ci S cretary ~ - Page 29 -