Loading...
HomeMy WebLinkAbout021373 ORD - 04/21/1992AN ORDINANCE WHEREBY THE CITY OF CORPUS CHRISTI, 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 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 WRITTEN ACCEPTANCE OF THIS ORDINANCE BY THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM AND AN EFFECTIVE DATE. WHEREAS, Southwestern Bell Telephone Company (hereinafter referred to as the "TELEPHONE COMPANY") is now and has been engaged in the telecommunications business in the State of Texas and in furtherance thereof, has erected and maintained certain items of its physical plant 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 the laws of the State of Texas, and subject to the reasonable exercise of the police powers granted by and under said laws to the CITY; and WHEREAS, the TELEPHONE COMPANY has operated its telecommunications business in the CITY under successive ordinances of the CITY, the Last of which was Ordinance Number 20882, adopted March 6, 1990, as extended by the ordinance passed on March 27, 1991, which provided compensation to the CITY for the superintendence of that agreement based upon a percentage of gross receipts received by the TELEPHONE COMPANY from certain local services rendered within the corporate limits of the CITY; and WHEREAS, it is recognized by the parties that changes in the telecommunications industry, changes in technology, changes in state and federal law, and changes in the accounting practices mandated by the Uniform System of Accounts promulgated by the Federal Communications Commission ("FCC"), along with regulatory requirements of the Texas Public Utility Commission (PUC), have caused the traditional ORD4: 91116 021373 ' ICROFIL.MED 1 method of determining the amount of compensation to municipalities to become administratively impractical and obsolete for telecommunications utilities. In order to resolve these issues in a manner satisfactory to both the CITY and the TELEPHONE COMPANY, the CITY and the TELEPHONE COMPANY have chosen the method of determining the amount of compensation provided for in this Ordinance to eliminate the expense and time related to audits, to achieve administrative simplicity, to provide the CITY with predictable revenues and an opportunity for growth and to avoid the expense and delays of litigation which could be necessary to resolve any issues in controversy between the parties; 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; and WHEREAS, this Ordinance is adopted by the City Council of the CITY pursuant to the provisions of Article 1175, Section 2, V.A.C.S., Article 1446c, Section 21, V.A.C.S., and Article IX of the CITY'S Charter; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, 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 subject 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 upon the effective date of any annexation. ORD4: 91116 2 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, 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. However, nothing herein shall authorize the TELEPHONE COMPANY to license or lease to any cable television operator the right to use or utilize the TRANSMISSION MEDIA or FACILITIES of the TELEPHONE COMPANY unless Federal or State law allows such cable television operator to conduct its business without first obtaining a franchise from the CITY. 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 purpose whatsoever. (c) CITY: The City of Corpus Christi, Texas (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public ways within 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. (f) TRANSMISSION MEDIA: all TELEPHONE COMPANY cables, fibers, wires or other physical devices used to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other purposes. (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. ORD4: 91116 3 (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. If the parties have not been able to reach agreement on a new ordinance to replace this ordinance by the time such term expires, the CITY, at its option, may extend the term hereof for an additional one or two year term. If a one year extension is chosen, and a new agreement is not reached, the City shall have the option for a second one-year extension. SECTION 5 - 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 telecommunications system in the CITY shall be subject to the lawful, reasonable and proper control and DIRECTION OF THE CITY. Any work done in connection with the TELEPHONE COMPANY'S use of the RIGHTS-OF-WAY shall be subject to the police power and the 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 City Council of CITY; provided, however, TELEPHONE COMPANY shall be given due notice and shall be entitled to a hearing before the City Council prior to the adoption of any such requirements. All use of the RIGHTS-OF-WAY shall interfere as little as reasonably practicable with the use of the RIGHTS-OF-WAY by others. Proper barricading and traffic control measures shall be used in the interest of traffic safety and the avoidance of congestion. SECTION 6 - ATTACHMENTS TO POLES AND SPACE IN DUCTS Except as provided in Section 14, 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 ORD4: 91116 4 (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 by the CITY'S Director of Engineering, or other designee of the City Manager, 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'S Director of Engineering or other designee 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'S Director of Engineering or other designee 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 interruptions. Such relocation by the CITY will be performed only when the Director of Public Works 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 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. ORD4: 91116 SECTION 12 - 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. (c) The CITY may establish, after reasonable notice, such rules and regulations as may be appropriate for the administration of this Ordinance and the construction of the TELEPHONE COMPANY'S FACILITIES on CITY property to the extent permitted by law. SECTION 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 a Charge of $1,710,000 (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 May 1, 1992 to December 31, 1992, on a prorated basis. In no event shall the Annual Charge be less than the base amount of $1,710,000 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 in the case of disannexation as set forth in paragraph 13(e), or as provided in Section 18 herein. The TELEPHONE COMPANY will, in accordance with Article 1446(c) V.A.C.S. and applicable tariffs, bill such Charge to the customers billed the customer service charges included within the term "Gross Receipts," as defined herein. Gross Receipts, for purposes of this Annual 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 PUC; and (4) such charges are subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications Commission ("FCC"). ORD4: 91116 8 For the second and subsequent years while this Ordinance remains in effect, the Annual Charge is subject to adjustment by application of the Growth Factor set out in paragraph 13(c). The TELEPHONE COMPANY shall adjust its billings to customers to account for any undercollection or overcollection for the prior year. (b) The Charge for each year shall be paid in four (4) equal installments on May 31, August 31, November 30 and February 28, except for the first installment for the year in which this ordinance is passed and the final installment which shall be prorated. The Annual Charge for the year in which this Ordinance is passed shall be applicable from May 1, 1992, through December 31, 1992, on a prorated basis. The first installment payment of $285,000 for the calendar quarter ending June 30, 1992, shall be paid no later than August 31, 1992, and shall be paid in full satisfaction of any municipal fee payment which would otherwise have been due on the company's gross receipts for the period May 1 through June 30, 1992, pursuant to Ordinance 20882 as defined in Section 16 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 12(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. (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 greater than one, shall be multiplied by the full current year's Charge (i.e., payment year minus one) to determine the Charge for the next year. If the Growth Factor calculated above is one or less, the Annual Charge for the next year shall be equal the full current year's charge. The Growth Factor calculation shall be made during the fourth quarter of the first calendar year and each subsequent calendar year during the term of this Ordinance. The TELEPHONE COMPANY will adjust its customer billing to account for the 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. ORD4: 91116 9 Year 1 Example: Annual Charge and Growth Factor May 1, to Dec. 31, 1992 Year 2 Jan. 1, to Dec. 31, 1993 Year 3 Year 4 Year 5 Year 6 Jan. 1, to Dec. 31, 1994 Jan. 1, to Dec. 31, 1995 Jan. 1, to Dec. 31, 1996 Jan. 1 to end of ordinance term, 1997 Prorated $1,710,000 $1,710,000 x 1992 Growth Factor if any Sales Tax Revenues for 12 month period ending 9/92 ["STR"] divided by Sales Tax Revenues for 12 month period ending 9/91 ["STR"] AC 1993 x 1993 Growth Factor if any (9/93 STR divided by 9/92 STR) AC 1994 x 1994 Growth Factor if any (9/94 STR divided by 9/93 STR) AC 1995 x 1995 Growth Factor if any (9/95 STR divided by 9/94 STR) AC 1996 x 1996 Growth Factor if any (9/96 STR divided by 9/95 STR) * Ordinance extension, if any, shall follow same pattern. = Annual Charge 1992 ("AC 1992") = Annual Charge 1993 ("AC 1993") = Annual Charge 1994 ("AC 1994") = Annual Charge 1995 ("AC 1995") = Annual Charge 1996 ("AC 1996") = Annual Charge 1997 ("AC 1997") The CITY agrees to rely upon audits by the Texas Comptroller of Public Accounts of state telecommunications 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 (Vernon's 1982). The Growth Factor shall be recomputed to reflect any final, nonappealable adjustments made pursuant to an audit finding by the Texas Comptroller of an inaccuracy in the TELEPHONE COMPANY'S reports of revenues subject to state telecommunications sales taxes. The Charge shall be recalculated using the Growth Factor recomputed as specified in the preceding sentence, and the recalculated Charge shall be ORD4: 91116 10 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 Annual 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, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes. (e) Payment shall be made by wire transfer. (f) 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 or an unincorporated area of more than 1,000 residences shall be consolidated or annexed into or by the CITY with the same effective date, then notwithstanding any other provision of this Ordinance, the Annual Charge shall be adjusted. To accomplish this adjustment, within thirty (30) 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 Annual 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 or the unincorporated area had no ordinance imposing a Annual Charge or in the event of a disannexation, then the adjustment to the Annual 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 Annual Charge will be made on the first day of the second month following the Local Sales Tax effective date and the adjusted Annual Charge shall be prorated from that date through the remainder of the payment year. The Annual Charge as adjusted shall be used for all future calculations required by this Ordinance. ORD4: 91116 11 (g) The recovery of the Charge from TELEPHONE COMPANY'S customers is subject to the jurisdiction of the regulatory authorities and not the CITY. The obligation of the 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 14 - FACILITIES TO BE FURNISHED CITY AS ADDITIONAL CONSIDERATION (a) In addition to the consideration set forth in Section 13, and notwithstanding the provisions of Section 6, the TELEPHONE COMPANY shall permit the City of Corpus Christi to use without charge, solely for its own non-commercial telecommunications purposes, including operating its traffic, police and fire alarm systems, the following described FACILITIES: One duct in all of TELEPHONE COMPANY'S existing ducted FACILI I'IhS within the City limits. Also, TELEPHONE COMPANY shall provide adequate space on all non -ducted 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 non-commercial use. Where insufficient FACILITIES exist to accommodate the CITY, other existing FACILITIES may be substituted. If the TELEPHONE COMPANY shall thereafter extend its existing underground conduits, it shall provide one duct in each additional conduit for the CITY'S own purposes, as provided above. (b) 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 the telecommunications services provided by TELEPHONE COMPANY. The CITY shall provide a written request to utilize TELEPHONE COMPANY FACILITIES and shall notify TELEPHONE COMPANY in writing when it begins utilization of TELEPHONE COMPANY FACILITIES. (c) 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 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. (d) 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 injuries to persons or property by reasons of the construction, maintenance, inspection or use by or on behalf of the CITY of TELEPHONE COMPANY FACILITIES and the CITY shall insure, indemnify and hold the TELEPHONE COMPANY harmless against all such claims, losses, demands, suits and judgments to the extent permitted by law. ORD4: 91116 12 (e) The TELEPHONE COMPANY is not authorized to license or lease to any person or entity the right to occupy or use the CITY'S RIGHTS-OF-WAY for the conduct of any private business. The TELEPHONE COMPANY may be required to attach its TRANSMISSION MEDIA to FACILITIES owned and maintained by any person or entity franchised by the CITY or to permit the 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 the TELEPHONE COMPANY'S FACILITIES; provided the TELEPHONE COMPANY'S requirements for such insurance shall be reasonable, as determined by the CITY. (f) 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 the 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, of 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 practice. (g) The CITY may elect to use an outside vendor to construct its communications facilities and transmission media. Such contractor will cooperate with the TELEPHONE COMPANY in placing of such FACILITIES for the CITY. (h) The TELEPHONE COMPANY will not require the CITY to remove such FACILITIES to accommodate expansion of the public network. Any additional conduits will be installed by the TELEPHONE COMPANY at no cost to the CITY. (i) The TELEPHONE COMPANY will allow the CITY to utilize one vacant conduit entering existing or newly acquired buildings owned, leased or lawfully occupied by the CITY. 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. ORD4: 91116 13 SECTION 16 - 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 20882, adopted March 6, 1990, as extended by the ordinance passed on March 27, 1991, and renewed or extended from time to time thereafter, and its predecessor ordinances, if any, (hereinafter referred to collectively as "Ordinance 20882"). This full and complete release of claims for any matters under Ordinance 20882 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 20882. 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 officers or its employees, arising out of or connected with any matters under Ordinance 20882. 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. SECTION 17 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS Ordinance Number 20882 adopted March 6, 1990 as extended 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 ordinances and agreements in conflict herewith are also repealed as to the Company, to the extent of any conflict only, which repeal shall take effect at the time and on the date specified in the preceding sentence. SECTION 18 - FUTURE CONTINGENCY Notwithstanding anything contained in this Ordinance to the contrary, in the event that (a) this Ordinance or any part hereof, (b) any tariff provision by which the TELEPHONE COMPANY seeks to collect the Charge imposed by this Ordinance, or (c) any procedure provided in this Ordinance, or (d) any compensation due the CITY under this Ordinance, becomes, or is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful or otherwise inapplicable, in whole or in part, the TELEPHONE COMPANY and CITY shall meet and negotiate a new ordinance that is in compliance with the authority's decision or enactment and, unless explicitly prohibited, the new ordinance shall provide the CITY with ORD4: 91116 14 a level of compensation comparable to that set forth in this Ordinance provided that such compensation is recoverable by the TELEPHONE COMPANY in a mutually agreed manner permitted by law for the unexpired portion of the term of this Ordinance. SECTION 19 - 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 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 a have been drafted by the combined efforts of the CITY and the TELEPHONE COMPANY. SECTION 20 - 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 July 1, 1992. SECTION 21 - 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 Corpus Christi will be entitled only to treatment comparable to that which was afforded under the ordinance 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 22 - ORDINANCE VIOLATIONS The City Council shall have the option to declare this Ordinance terminated at any time for failure of the TELEPHONE COMPANY to comply with any term, condition or provision of this Ordinance, in accordance with the following procedures: ORD4: 9116 15 (a) If the TELEPHONE COMPANY continues to violate or fails to comply with the terms and provisions of this Ordinance for a period of thirty (30) days after the TELEPHONE COMPANY shall have been notified in writing by the CITY to cure such specific alleged violation or failure to comply, then the CITY may pursue the procedures set forth below to declare that the TELEPHONE 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 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 violation(s) shall cease to exist and this Ordinance shall not be declared to be terminated. (b) Any such termination shall be declared only by a written decision of the City Council after an appropriate public proceeding before the City council, which shall accord the TELEPHONE COMPANY due process and full opportunity to be heard and to respond to any such notice of alleged violation or failure to comply. All notice requirements shall be met by providing the TELEPHONE COMPANY at least an additional fifteen (15) days prior written notice of any public hearing concerning the proposed termination of this Ordinance. In addition, fifteen (15) days notice by publication shall be given of the date, time and place of any public hearing to interested members of the public. (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 seek compliance with such terms and conditions. ORD4: 91116 16 SECTION 23. PROVIDING FOR PUBLIC NOTICE OF THIS ORDINANCE The TELEPHONE COMPANY shall pay the cost of providing public notice of this Ordinance. Pas,sgd and approved following the 3r\O, reading hereof this 3 1 day of , A.D., 1992. AFIEST: APPROVED: DAY OF (lav , 1994-'2_ JAMES R. BRAY JR., CITY ATTORNEY By City Attorney C:\ MAYO CITY OFhORPUS CHRISTI I, Armando Chapa, City Secretary of the City of Corpus Christi, Texas, do hereby certify that the foregoing is a true and correct copy of Ordinance NumberOE11373 , finally passed and approved by the City Council of Corpus Christi, Tex s, folio ing the ,2) R, reading thereof at a regular meeting held on the() ( day of p , 1992. idjh'S City Secretary ORD4: 91116 17 iat the foregoing ordinance was read jot the first time and passed to its second reading the 11 day of PRA, (, i^ , 19 12 •, by the following vote: Mary Rhodes Cezar Galindo Leo Guerrero Betty Jean Longoria kJ 011)911 LA.t Edward A. Martin Joe McComb Dr. David McNichols Clif Moss Mary Pat Slavik on That the foregoing ordinance was read for the second time and passed to its third reading on this the DA day of LAM/ CO , 19 Q2. , by the following vote: Mary Rhodes Cezar Galindo Leo Guerrero Betty Jean Longoria X Edward A. Martin Joe McComb cu,Q, Dr. David McNichols odtv, Clif Moss Mary Pat Slavik That th9,-torega ordinance was read for the third time and passed day of P , 19 () , by the following vote: Mary Rhodes Cezar Galindo Leo Guerrero Betty Jean Longoria PASSED AND APPROVED, this the ATTEST: Edward A. Martin Joe McComb Dr. David McNichols Clif Moss Mary Pat Slavik day of (iph,,uQ. finall on t tis -thheeo�2 Y City ecretary MAYOR THE ITOF CORPUS CHRISTI APPROVED: 2 ( DAY OF Apr: ( , 191).: JAMES R. BRAY, JR.S CITY ATTORNEY By , . IC , ,SSsisiath City Attorney 044 021373 ACCEPTANCE WHEREAS, the City of Corpus Christi, Texas, did on the 21st day of April, 1992, enact Ordinance Number 021373 entitled: AN ORDINANCE WHEREBY THE CITY OF CORPUS CHRISTI, 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 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 TELE- COMMUNICATIONS BUSINESS; PROVIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERNING LAWS; PROVIDING FOR A RELEASE OF ALL 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. and WHEREAS, said Ordinance was on the 21st day of April, 1992, duly approved by the Mayor of said City, and the Seal of said City was thereto affixed and attested by the City Secretary: NOW, 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 Corpus Christi, Texas. Pursuant to the terms of said Ordinance and this Acceptance, said Ordinance shall become effective on July 1, 1992. Dated this rt day of u_KA , 1961 SOUTHWESTERN BELL TELEPHONE COMPANY President-Tsion<WL Acceptance filed in the of ce of the City Secretary of Corpus Christi, Texas this �, -day of , 195L. City Secretary PUBLISHER'S AFFIDAVIT State of Texas, } CITY OF CORPUS CHRISTI County of Nueces } ss: Ad #17367 PO # Before me, the undersigned, a Notary Public, this day personally came Anna Steindorf, who being first duly sworn, according to law, says that she is a Business Office Secretary of the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said County and State, generally circulated in Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria, and Webb Counties, and that the publication of NOTICE OF PASSAGE OF ORDINANCE NO. 021373 WHEREBY THE CITY OF CORPUS CHRISTI, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY which the annexed is a true copy, was published in the Corpus Christi Caller -Times on the 26th day of April, 1992. One Time(s) $ 104.40 Business Off Subscribed and sworn to before me this 15th day of May, 1992. (12btc4 O(CCavveca Notary Public, Nueces County, Texas My commission expires on 4-24-93 . apyssw DEBRA VIW ?RE's Notary Public Stan of Texas My Comm. Exp 42493 PUBLISHER'8 AFFIDAVIT State of Texas, } CITY OF CORPUS CHRISTI County of Nueces } ss: Ad #63970 PO # Before me, the undersigned, a Notary Public, this day personally came Anna Steindorf, who being first duly sworn, according to law, says that she is a Business Office Secretary of the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said County and State, generally circulated in Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria, and Webb Counties, and that the publication of NOTICE OF PASSAGE OF ORDINANCE ON FIRST READING WHEREBY THE CITY OF CORPUS CHRISTI, TEXAS AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE which the annexed is a true copy, was published in the Corpus Christi Caller -Times on the 22nd day of March 1992. One Time(s) $ 107.30 Business Office Secretary Subscribed and sworn to before me this 10th day of April , 1992. 1th a ct,wPa Notary Public, Nueces County, Texas My commission expires on 4-24-93 . DE'r L`- y�r. • >7 1 �4 7 My r r• PUBLISHER'S AFFIDAVIT State of Texas, } CITY OF CORPUS CHRISTI County of Nueces } ss: Ad #47721 PO # Before me, the undersigned, a Notary Public, this day personally came Anna Steindorf, who being first duly sworn, according to law, says that she is a Business Office Secretary of the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said County and State, generally circulated in Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria, and Webb Counties, and that the publication of NOTICE OF PASSAGE OF ORDINANCE ON SECOND READING WHEREBY THE CITY OF CORPUS CHRISTI, TEXAS. AND SOUTHWESTERN BELL TELEPHONE which the annexed is a true copy, was published in the Corpus Christi Caller -Times on the 29th day of March, 1992. One Time(s) Business Offic Secretary $108.75 Subscribed and sworn to before me this 13th day of April , 1992. aQtiot Oa Notary Public, Nueces County, Texas My commission expires on 4-24-93 . ON S BB NG HE ctTHE CITY C.HRISTI, TEXA NO THWESTERN BE ELEPHONE COMPAN GREE THAT, FOR THE PUR- NI OP ENICATIONS ERATING ITS ELECO USINESS. TELEPHONE MPANY SHALL MAINTAIN ND CONSTRUCT ITS LES, WIRES, ANCHORS, BER, CABLES, MANHOLES, ONDUITS AND OTHER, YSICAL PLANT AND AP-F URTENANCES IN, ALONG, CROSS, ON, OVER HROUGH, ABOVE AND UN- ER ALL PUBLIC STREETS,' VENUES, HIGHWAYS. LLEYS, SIDEWALKS, BRID- ES OR PUBLIC WAYS IN AID CITY: PRESCRIBING HE ANNUAL COMPENSA- ON DUE THE CITY UNDER HIS ORDINANCE IN THE MOUNT OF 51,710,000 NNUALLY COMMENCING,' AY 1, 1992; INDEXED TO CREASE IN THE LOCAL' ALES TAX ON TELECOM-1 UNICATIONS AND CITY! SE OF CERTAIN TELE-- -PHONE COMPANY !FACILITIES: PRESCRIBING THE CONDITIONS GOVERN- ING THE USE OF PUBLIC RIGHTS-OF-WAY AND THE PERFORMAKE OF CERTAIN CONSTRUCTION WORK ON. PUBLIC RIGHTS-OF-WAY FOR THE TELEPHONE COM- P A NY 'St TELECOMMUNICATION SS: PROVIDING A Y CLAUSE: SPECI VING GOVERNING LAWS VICIING FOR A RELEAS AU. CLAIMS UNDER PRI ORDINANCES: PROVIDING OR FUTURS CONTINGEN- IES: PROVIDING FOR RITTEN ACCEPTANCE OF HIS BY THE 4 404: • • ANY; A V IATEAM FIVE A CIT OPTI• strap F TWO MON YEAS AND A EFFECTIVE DATE OP JULY 1 1992. A copy of HID montis on Ns in MK Wretary' office This SHIMS* as pass and away' a swan readinar *sat count!' the ot Christi Tessa trier alti day o M/5/ Armando Cha NOT }AGE OF OR- DIN et FL ST READING W THE CITY OF ARB'�DUTHWESTERN BELL TELEPHONE COMPANY I AGREE THAT, FOR THE PUR- c POSE OF OPERATING ITS t TELECOMMUNICATIONS C BUSINESS, THE TELEPHONE C COMPANY SHALL MAINTAIN a AND CONSTRUCT ITS p POLES, WIRES, ANCHORS, C FIBER, CABLES, MANHOLES, CONDUITS AND OTHER n PHYSICAL PLANT AND AP- o PURTENANCES IN, ALONG, p ACROSS, ON, OVER, b THROUGH, ABOVE AND UN- 7 DER ALL PUBLIC STREETS, ti AVENUES,. HIGHWAYS, h ALLEYS, SIDEWALKS, SRID- 1 GES OR PUBLIC WAYS IN C SAID CITY; PRESCRIBING c THE ANNUAL COMPENSA- TION DUE THE CITY UNDER t THIS ORDINANCE IN THE L AMOUNT OF $1,710,000 c ANNUALLY COMMENCING c. MAY 1, 1992; INDEXED TO INCREASES IN THE LOCAL " SALES TAX ON TELECOM-t MUNICATIONS AND CITY • USE OF CERTAIN TELE-r PHONE COMPANY FACIU- 1 TIES; 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 TEI,EPHONE COM- PANY'STELECOMMUNI- CATIONS BUSINESS; PRO- VIDING AN INDEMNITY CLAUSE: SPECFYING GOV- ERNING LAWS: PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDI- NANCES; PROVIDING FOR FUTURE CONTINGENCIES; PROVIDING 'FOR WRITTEN ACCEPTANCE OF TENS ORDI- NANCE BY THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM OF FIVE YEARS WITH A CRY OPTION TO EXTEND FOR TWO MORE YEARS AND AN EFFECTIVE DATE OF JULY 1, 1992. A copy of agreement is on file in the City Secretary's MBce. The ordinance was passed and approved on first reeding by the City Council M the City M the City M Corpus Christi, Texas on the 17th day of rmendo'Claim t Nora OF PASYAGE OF ORI NANCE NO. 021373 WTME CITY OF a C1WSTewTEXAS, YumwE WL NE COMPANY AGREE THAT, P00 THE PUR- POSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALLMAINTAN AND CONSTRUCT ITS POLES, WINES, ANCHORS, C RC BLES, MANHOLES, S AND OTHER micro {; PLANT AND AP- PURTENANCES M. ALONG, ACROSS. ON, OVER, THROUGH, ABOVE AND UN- DEIL AU. PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWAUCB, BR10- C $ OR PUBLIC WAYS IN ;NAEP CITY; PRESCRIBING T ANNUAL COMPENSA- TION DUE THE CITY UNDER THIS ORDINANCE IN THE AMOUNT OF 61,710,000 ANNUALLY COMMENCING MAY 1, 1992; INDEXED TO INCREASES N THE LOCAL SALES TAX ON MUNICA ONS AND TELEC CITY USE OF CERTAIN TELE- PHONE COMPANY FACILITIES; PRESCRIBING THE CONDITIONS GOVERN- ING TME USE OF PUBLIC RIGHTS-OF-WAY AND THE PERFORMANCS CERTAIN CONSTRUCT mWORI: -ON PUBLIC MGHTS-OF-WAY FOR THE TWNQNE COM- PANY'S TELECOMMUN- ICATIONS PRO- VIDING AN INDEMNITY CLAUSE; SPECIFYING GOV- ERWIG LAWS; PROVIDING FOR A RELEASE OF ALL CLAIMS AINNE ,P$OR ORDI- NANCES; PROVIDING FOR FUTURE CONTINGENCIES: PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDI- NANCE-SY THE TELEPHONE COMPANY; AND PROVIDING FORA TERM OF FINE YEARS WITH A CITY OPTION TO U EXTEND FOR YEARS AND AN EFFO ECTIVE rDATE OF JULY 1, 1992. �' A copy of tM agreement is On file in the City Secretary's office. The ordinance was passed and approved on Burd reeding by the City Council of the City of Corpus Christi, Texas on the 21st day of Apol, 1992. 1 /1/ Armando City Secretary .