Loading...
HomeMy WebLinkAbout020898 ORD - 04/03/1990AN ORDINANCE AMENDING CHAPTER 55 OF THE CODE OF ORDINANCES FOR THE CITY OF CORPUS CHRISTI, BY ADDING A NEW ARTICLE XIV, TELEPHONE ORDINANCE AGREEMENT, ENACTING AN AGREEMENT BETWEEN THE CITY AND SOUTHWESTERN BELL TELEPHONE COMPANY WHEREBY SOUTHWESTERN BELL TELEPHONE COMPANY SHALL CONTINUE TO ERECT AND MAINTAIN ITS POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER PLANT CONSTRUCTION AND APPURTENANCES ALONG, ACROSS, ON, OVER, THROUGH, ABOVE, AND UNDER ALL PUBLIC STREETS, AVENUES, ALLEYS, PUBLIC GROUNDS, AND PLACES IN SAID CITY, UNDER REGULATIONS AND RESTRICTIONS AND THAT THE CITY SHALL RECEIVE AN ANNUAL PAYMENT; PRESCRIBING A FIVE YEAR TERM RENEWABLE FOR FIVE YEAR TERMS AND EFFECTIVE DATE OF SAID AGREEMENT; PROVIDING THIS ORDINANCE BE CUMULATIVE; PROVIDING FOR SEVERABILITY; PROVIDING FOR GOVERNING LAW; LIMITATIONS; PROVIDING FOR THE REPEAL OF THE IMMEDIATELY PRECEDING FRANCHISE ORDINANCE; AND PROVIDING FOR PUBLICATION, ALL AS HEREIN PROVIDED. WHEREAS, the Southwestern Bell Telephone Company, hereinafter referred to as the "Telephone Company," is now and has been engaged in the telephone business in the State of Texas and in furtherance thereof, has erected and maintained certain items of its plant facilities in the City of Corpus Christi, Texas, hereinafter referred to as the "City," for many years pursuant to such rights as have been granted it by and under said laws of the State of Texas, and subject to the exercise of such reasonable rights of regulation as have been granted by and under said laws to said City; 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 operate in the City; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That Chapter 55, "Utilities," of the Code of Ordinances of the City of Corpus Christi, is hereby amended by adding a new Article XIV, Telephone Ordinance Agreement, to hereafter read as follows: SECTION 55-170 Construction and Maintenance of Telephone Plant and Service. A. The poles, wires, anchors, cables, manholes, conduits, and other plant construction and appurtenances used in or incident to the giving of telephone service and to the maintenance of a telephone business and system by the Telephone Company in the City shall remain as now constructed, subject to such changes as under the limitations and conditions herein prescribed may be considered necessary by the City in the exercise of its lawful powers and by the Telephone Company in the exercise of its business of ORD-RES\90013(5) 1 MICROFILMED furnishing telephone service; and the Telephone Company shall continue to exercise its right to place, remove, construct, and reconstruct, extend and maintain its poles, wires, anchors, cables, manholes, conduits, plant construction and appurtenances and other similar facilities for said purposes as it may from time to time require along, across, on, over, through, above, and under all the public streets, avenues, alleys, highways, public thoroughfares, public utility easements, which have been or may be dedicated, deeded or otherwise granted to the City, and public ways within the present limits of the City and within said limits as the same from time to time may be extended, subject to the regulations, limitations, and conditions herein prescribed. B. The City and the Telephone Company hereby agree that, in order to expedite the construction, widening and repair of public streets and places, it is necessary for both the City and the Telephone Company to make every effort to coordinate their construction and utility relocation efforts as early and as often as reasonably possible. The City herein expressly reserves the right to change the grade, install, relocate, or widen the public streets, sidewalks, bikeways, avenues, alleys, utility and other public easements, which have been or may be dedicated, deeded or otherwise granted to the City, and public grounds and places within the present limits of the City and within said limits as same may from time to time be extended, and the Telephone Company herein agrees to relocate at no expense to the City its poles, wires, cables, anchors, manholes, conduits, and other plant construction and appurtenances located in said public areas in order to accommodate the installation, relocation, widening, or changing of the grade of any such public street, sidewalk, bikeway, avenue, alley, utility or other public easement, which have been or may be dedicated, deeded or otherwise granted to the City, public ground, or public place, including if necessary, relocating such poles, wires, cables, anchors, manholes, conduits, and other plant construction and appurtenances to a sufficient distance from the edge of the pavement to permit a reasonable work area for the machinery and individuals engaged in installing, relocating, widening, or changing the grade of any public street, sidewalk, bikeway, avenue, alley, utility or other public easement, which have been or may be dedicated, deeded or otherwise granted to the City, public ground, or public place. The City also herein reserves the right to require the Telephone Company to relocate, at no expense to the City, any of the facilities erected or maintained pursuant to the consent granted herein, if said relocation is deemed reasonable and necessary for traffic safety purposes, including traffic signals, or for the accommodation of other necessary water, sewer, or gas utilities owned and operated by the City for the public service, by the City Council or City official to whom such duties have been or may be delegated. When the City requests the Company to relocate for the purpose of gas, water and sewer utilities, the Company shall have the right to suggest alternatives and the City agrees in good faith to consider same. \ORD-RES\90013(5) 2 C. The Telephone Company shall comply with all reasonable rules and regulations of the City relative to the construction, widening and relocation of public streets and utilities or other street excavations and permits therefor, except the Telephone Company shall not be required to pay any fee to obtain any such permit; and provided further that no such permit shall be unreasonably delayed or withheld. The Telephone Company shall comply with all reasonable rules and regulations of the City relative to the submission of information describing the location, nature, and estimated duration of any significant activity which will result in the disturbance of any street, highway, alley or public place. This information shall be submitted prior to the activity except in the case of emergencies, in which case the information shall be submitted as soon as practical. No information requirement shall be deemed to apply to the Telephone Company's installation of service or drop wires. Section 55-171 Supervision by City of Location of Poles and Conduits All poles, stubs, guys, anchors and other above -ground facilities to be placed or relocated shall be set so that they shall not interfere with the flow of water in any gutter or drain, and so that the same shall not interfere with ordinary travel on the street, and so that the same shall interfere as little as practical with ordinary travel on the sidewalks and bikeways, and so that they shall not compromise public safety at public street intersections. The City herein reserves the right to require the Telephone Company to install or relocate, as reasonably necessary, its above -ground facilities as far from the vehicular travel lanes as reasonably possible for traffic safety purposes. The City also herein reserves the right to request the Telephone Company to install or relocate above -ground facilities to an underground location. Payment of the additional expense to install or relocate facilities to an underground location in excess of the cost which would have been incurred, if any, for overhead installation shall be determined in advance by mutual written agreement between the Telephone Company and the City. The location and route of all poles, stubs, guys, anchors and cables to be placed and constructed by the Telephone Company in the construction and maintenance of its telephone system in the City, and the location of all conduits to be laid by the Telephone Company within the limits of the City under this Ordinance, shall be subject to the reasonable and proper regulation, control, and direction of the City Council or City official to whom such duties have been or may be delegated. Section 55-172 Streets to be Restored to Good Condition The surface of any street, alley, highway, or public place disturbed by the Telephone Company in building, constructing, renewing, or maintaining its telephone plant and system shall be restored within a reasonable time after the completion of the work to as good a condition as before the commencement of work to the satisfaction of the City Council or City official to whom such duties have been or may be delegated. The Telephone Company shall be responsible for all maintenance costs incurred as a result of any defects, impairments, or \ORD-RES\90013(5) 3 other substandard condition in the street, alley, highway, or public place caused by the construction, maintenance, or restoration work of the Telephone Company for a period of one (1) year from the date the surface of the street, alley, highway, or public place is restored by the Telephone Company, after which time responsibility for such 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. Section 55-173 Temporary Removal of Wires The Telephone Company on the request of any person shall remove or raise or lower its wires temporarily to permit the moving of houses or other bulky structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the benefitted party or parties, excluding reasonable expense for the City, and the Telephone Company may require such payment in advance. The Telephone Company shall be given reasonable advance notice to arrange for such temporary wire changes. Section 55-174 Tree Trimming The right, license, privilege, and permission is hereby granted to the Telephone Company, its successors, and assigns to trim trees upon and overhanging the streets, alleys, sidewalks, and public places of the City, so as to prevent the branches of such trees from coming in contact with the wires or cables of the Telephone Company; and when so ordered by the City, said trimming shall be done under the supervision and direction of the City Council or City official to whom such duties have been or may be delegated. Section 55-175 Cash Consideration to be Paid by the Telephone Company In consideration for the rights and privileges herein granted, the administration of this Ordinance 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 Telephone Company hereby agrees to pay the City during the term of this Ordinance a sum of money equal to three and eight -tenths percent (3.8%) of annual gross receipts as herein defined. The total sum of money paid hereunder shall not in any event exceed the amount allowed by the Public Utility Commission of Texas as a reasonable and necessary expense of operation for rate -making purposes. Provided, however, Company shall use its best efforts to defend the provisions of this agreement before the PUC. Provided, further, any PUC finding shall in no way affect or require repayment of any payments which have already been made by or billed to customers, and all such monies shall be paid to City. Provided, further, that should the PUC not find the amount of payment provided herein to be a reasonable and necessary expense for rate -making purposes, City may, anytime at its option, upon at least 30 days written notice to Company, terminate this agreement. Such ordinance fee payment shall be made in five (5) payments. The first four (4) payments shall be made on April 15, July 15, October 15, and January 15 and shall be in the amount of twenty-five ORD-RES\90013(5) 4 percent (25%) of the prior year's gross receipts payment. The fifth payment shall be a true -up payment to reflect the actual gross receipts for the entire year and will be made on April 15 of the following year. The Telephone Company shall file with the fifth payment to the City a financial statement prepared according to generally accepted accounting principles as applied in the telephone industry showing in detail the applicable gross receipts collected during the preceding calendar year. The term "annual gross receipts" shall mean all revenues received by the Telephone Company for the year from the rendition of certain local exchange telephone services provided by the Telephone Company to its customers located within the corporate limits of the City as follows: A. Recurring Charges -Local Exchange Access Arrangements (1) (2) (3) (4) (5) (6) Business Residence Semi -Public Public Announcement Other Business Other Residence B. Message Charges -Local Exchange Business Residence Public Announcement Other Business Other Residence C. Public Telephone -Local Exchange (1) Public Sent Paid (2) Semi -Public Sent Paid D. Non -Recurring Charges Associated with Local Exchange Access Arrangements (1) (2) (3) (4) (5) (6) Business Residence Semi -Public Public Announcement Other Business Other Residence Only the foregoing services provided by the Telephone Company shall be included within the definition of the term "annual gross receipts" for purposes of the cash consideration set forth herein. The initial payment hereunder shall be made July 15, 1990 and this payment along with the October 15, 1990 and January 15, 1991 partial advance payments shall be computed at twenty-five (25%) of three and eight -tenths percent (3.8%) of the gross receipts specified herein received for the Year 1989, and the true -up adjustment for the Year \ORD-RES\90013(5) 5 1990, shall be based on the difference between three and eight -tenths percent (3.8%) of the gross receipts specified herein received from the effective date of this Ordinance through December 31, 1990, and the three advance payments. Thereafter payment shall be made quarterly as herein provided. Section 55-176 Payment of Cash Consideration to be in Lieu of Certain Other payments Except Usual General or Special Ad Valorem and Sales Taxes The City agrees that the consideration set forth in the preceding Section hereof shall be paid and received in lieu of any tax, license, charge, fee, street, or alley rental or other character of charge for use and occupancy of the streets, alleys, and public places of the City; in lieu of any pole tax or inspection fee tax; in lieu of any easement or franchise tax, whether levied as an ad valorem, special or other character of tax; and in lieu of any imposition other than the usual general or special ad valorem taxes now or hereafter levied, or sales tax now or hereafter levied by the City in accordance with state law. Should the City not have the legal power to agree that the payment of the foregoing cash consideration shall be in lieu of the taxes, licenses, charges, fees, rentals, and easement or franchise taxes aforesaid, then the City agrees that it will apply so much of said payments as may be necessary to the satisfaction of the Telephone Company's obligation, if any, to pay any such taxes, licenses, charges, fees, rentals, and easement or franchise taxes. Section 55-177 Period of Time of This Ordinance; Expiration; Renewal This Ordinance and the agreements contained herein shall be in full force and effect for the period beginning with the effective date hereof and ending five (5) years thereafter provided that, at the expiration of said period, said Ordinance and agreements shall be automatically renewed forthwith for successive periods of five (5) years, conditioned, however, that if during the last six (6) months of the initial period or of any successive five (5) year period, not less than ninety (90) days' prior written notice shall be given either to the Telephone Company by the City or to the City by the Telephone Company, setting forth the desire of the giver of such notice to terminate this Ordinance and the agreements, then in such case this Ordinance and the agreements shall terminate at the expiration of the then current period. Section 55-178 Indemnity The Telephone Company, as a condition of the City's consent given in this Ordinance, and in consideration thereof, shall protect, indemnify, and hold the City, its agents, and employees, harmless for the Telephone Company's share of all claims for damages to persons or property arising out of the construction, maintenance and operation of its facilities, and the conduct of its business, or any way growing out of the consent given in this Ordinance, directly or indirectly, when injury is caused, or alleged to have been caused, wholly or in part, by any act, omission, negligence, or misconduct of the Telephone \ORD-RES\90013(5) 6 Company or any of its contractors, officers, agents, or employees, or by any person for whose act, omission, negligence, or misconduct the Telephone Company is by law responsible provided; however, that the City shall not be entitled to any indemnification for its own negligence or the negligence or willful misconduct of any of its contractors, officials, agents or employees. This provision is not intended to create liability for the benefit of third parties but is solely for the benefit of the Telephone Company and the City. Section 55-179 No Exclusive Privileges Conferred by This Ordinance Nothing herein contained shall be construed as giving to the Telephone Company any exclusive privilege. Section 55-180 Successors and Assigns The rights, powers, limitation, duties, and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors and assigns. Section 55-181 Governing Law; Limitations This agreement shall be governed by and construed in accordance with the laws of the State of Texas; provided, however, should either party desire to pursue any claim or cause of action against the other relating to this agreement, notwithstanding any provision of any statute, law, court decision, municipal charter or ordinance to the contrary, the party desiring to assert such claim or cause of action must do so in a forum with appropriate jurisdiction within four (4) years of the date that such claim or cause of action first arose or said claim or cause of action shall be forever barred. Company shall annually provide City with a copy of its statewide audit of accounts subject to municipal agreements. In addition, City or its agent, may examine and audit, during regular business hours, Company's accounts and records necessary to enforce this agreement. SECTION 2. That the immediately preceding agreement ordinance between City and Telephone Company shall be and is hereby in all things repealed in its entirety upon the effective date of this Ordinance. Passage of this ordinance shall in no way affect any claims the City may have, or any defenses the Company may have, under the Ordinance 544 franchise agreement passed and approved by City on September 10, 1935. SECTION 3. That this Ordinance shall be and is hereby declared to be cumulative of all other ordinances of the City, and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed. ORD-RES\90013(5) 7 SECTION 4. That if any provision, section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional, void, invalid or for any reason unenforceable, the validity of the remaining portions of this Ordinance shall not be affected thereby, it being the intent of the city in adopting this Ordinance and the Telephone Company in agreeing thereto that no portion or provision hereof shall become inoperative or fail 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. SECTION 5. Neither party to this Agreement waives its respective right to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this Ordinance and the agreement, including seeking injunctive relief in a court of competent jurisdiction. SECTION 6. This Ordinance may be published in book or pamphlet form reciting publication "By authority of the City Council of the City of Corpus Christi," and shall be admissible in court as prima facie evidence of due passage and publication. SECTION 7. The Company shall have sixty (60) days from and after the passage and approval of this Ordinance to file its written acceptance thereof with the City Secretary, and upon such acceptance being filed, this Ordinance shall take effect and be in force from and after April 15, 1990, and shall effectuate and make binding the agreement provided by the terms hereof. \ORD-RES\90013(5) 8 .at the foregoing ordinance was read for the first time and passed its second reading on this the day of 19 , by the following vote: Betty N. Turner Cezar Galindo Leo Guerrero Tom Hunt Edward A. Martin Joe McComb Clif Moss Mary Rhodes Frank Schwing, Jr. That the foregoing ordinance was read, for the secontime and passed to its third reading on this the (( day of ( A \! 197;'. , by the following vote: Betty N. Turner ' Edward A. Martin 711( ,r Cezar Galindo ,(.t .)(lT_U Joe McComb X1(1; Leo Guerrero Clif Moss lf(.� Tom Hunt /1( Mary Rhodes Frank Schwing, Jr. ( That the foregoing ordinance was read for the third tim and passed finally on this the day of ( L1. j c (. , 19 , by the following vote: Betty N. Turner 7 1/4)cIL. _ Edward A. Martin Cezar Galindo (r -t , Joe McComb �ti Leo Guerrero (QL Clif Moss Tom Hunt -1- il , Mary Rhodes ( , Frank Schwing, Jr. (t ca. ,� PASSED AND APPROVED, this the ��' day of al; ,_...,.e , 19 ATTEST: City Secretary MAYOR APPROVED: L. DAY OF tA.4 , HAL GEORGE, CITY ATTORNEY By \io-- Assitant City Attorney 044 THE CITY OF CORPUS CHRISTI .at the foregoing ordinance was read for the first gime and passed its second reading on this the _ day of ; Jjt�1:Wi•• 19"` , by the following vote: Betty N. Turner (1i Edward A. Martin ( 1 )i_: Cezar Galindo Leo Guerrero Tom Hunt Joe McComb Clif Moss Mary Rhodes Frank Schwing, Jr. 2 That the foregoing ordinance was read for the second time and passed to its third reading on this the day of 19 , by the following vote: Betty N. Turner Cezar Galindo Leo Guerrero Tom Hunt Edward A. Martin Joe McComb Clif Moss Mary Rhodes Frank Schwing, Jr. That the foregoing ordinance was read for the third time and passed finally on this the day of , 19 , by the following vote: Betty N. Turner Cezar Galindo Leo Guerrero Tom Hunt Edward A. Martin Joe McComb Clif Moss Mary Rhodes Frank Schwing, Jr. PASSED AND APPROVED, this the day of ATTEST: , 19 City Secretary MAYOR THE CITY OF CORPUS CHRISTI APPROVED: nZ 1 DAY OF HAL GEORGE, CITY ATTORNEY By Assifrtant City Attorney 044 1 , 19 76 : I '11 : U2,1 m - n C-3 it] ' cci J.: • ,T, -• .1 [..[ .. • - 0 _... • - E -3--.,L.- , _ - i It - J _ „ ' .... -.' > ---.) 1 1 ... --- . - - _ 2 .,L,- 3. 5122.22 22 --- I I = _- ., , - T. - 1 rr '', T. ,j.. . 7. j. .'< --- -.1 .2- -T- .._ !_.= . +_, 22) . — .2- 122 22 n, '._ - - ,-. 52 3., .511 . _ . 1 , (1. . .. _ , . _ i . .-7 __ !-_, j_ _ ,' - , .i.. '..- -I- -, 7: I. 0' c0 — 4, 124 C 511 111 r f NOTICE OF PASSAGE OF ORDINANCE NO. 20898 APPROVING A FRANCHISE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI IANO SOUTHWESTERN BELL +TELEPHONE COMPANY to al- low the company to use the City's streets and ways to 'furnishing telephone serves or a five-year term renewabl at additional five-year periods. It provides that the compan will pay ^.8% of gross re ceipts as provided in th franchise ordinance. Othe provisions in the agreemen provide for procedures gov erning construction and maintenance of telephone fa-' cilities, restoration of streets after telephone construction, temporary removal of wires, tree trimming, etc. A copy of the full text of the ordinance is available to the public at no charge in the office of the City Secretary The ordinance was pas,ed and approved on third reading by the City Council of the City of Corpus Christi, Texas on the 3rd day of April, 1990. /s/ Armando Chapa City Secretary city QLcdasiSOP-'.