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HomeMy WebLinkAboutOrdinance 11163S 1 e ORDINANCE NO1 I !~ 3 AN ORDINANCE WHEREBY THE CITY OF FORT WORTH, 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 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 OFPUBLICRIGHTS-OF-WAY AND THE PERFORMANCE OF CERTAIN CONSTRUCTION WORK ON PUBLIC RIGHTS-OF-WAY TELECOMMUNICATIONS BIJ:iINESS; PROVIDING AN INDEMNITY CLAUSE, SPECIFYING GOVERNING LAWS AND LIMITATIONS; 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 AN EFFECTT~E DATE. WHEREAS, Southwestern Bell Telephone Company, a private corporation (hereinafter referred to as the "Telephone Company"), has been engaged in providing telecommunications services in the State of Texas and in furtherance thereof has erected and maintained certain items of its physical plant in the City of Fort Worth, Texas (hereinafter referred to as the "City"); and WHEREAS, the Telephone Company has operated said telecommunications business in the City under successive ordinances of the City, the last of which was Ordinance No 1933, adopted December 23, 1936, and WHEREAS, it is appropriate that the City, acting by and through its governing body, consent to a continuation of privileges similar to those heretofore granted in Ordinance No 1933, and WHEREAS, this ordinance is adopted by the City Council of the City of Fort Worth pursuant to the provisions of Article 1175, Section 2, V.A.C.S., Article 1446c, Section 21, V.A.C.S., and Chapter XXVI of the Charter of the City of Fort Worth, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1 PURPOSE (a) Pursuant to the laws of the State of Texas, Chapter XXVI of the Fort Worth City Charter and this ordinance, Southwestern Bell Telephone Company has the nonexclusive 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 only for its telecommunications facilities. 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. (b) The Telephone Company is not authorized to provide cable television service in the City 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 the Telephone Company from providing its tariffed services to cable television companies which have been lawfully franchised by the city SECTION 2 DEFINITIONS Whenever used in this ordinance, the following words and terms shall have the definitions and meanings provided in this section. _2_ (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 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, except as limited herein. (c) CITY The City of Fort Worth, Texas. (d) RIGHTS-OF-WAY All present and future public streets, avenues, highways, alleys, bridges and public thoroughfares (excluding railroad rights-of-way) located within the city limits of the City (e) CITY GOVERNANCE: All ordinances, laws, rules, regulations and charter provisions of the City now in force or that may hereafter be passed and adopted which are not inconsistent with this ordinance as well as directives of the City Manager and his or her designee. (f) TRANSMISSION MEDIA. All 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) NONEXCLUSIVE. 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 3 TERM This ordinance shall continue for a period of five (5) years from the effective date hereof -3- SECTION 4 GENERAL CONDITIONS OF USE (a) The Telephone Company shall at all times during the term of this ordinance be subject to all lawful exercise of the police power by the City and to city governance. The terms of this ordinance shall apply to all of the Telephone Company's facilities used, in whole or in part, in the provision of telecommunications services in newly annexed areas upon the effective date of such annexation. (b) The Telephone Company shall lay, maintain, construct, operate and replace its facilities so as to interfere as little as possible with ordinary travel. All of the Telephone Company's facilities shall be set so that they shall not interfere with the flow of water in any gutter or drain. The location and route of all facilities to be placed and constructed by the Telephone Company in the City, and the location of all conduits to be laid by the Telephone Company within the limits of the City, shall be subject to the reasonable and proper regulation, control and direction of the City's Director of Transportation and Public Works. (c) 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 Fort Worth City Council, provided, however, that the Telephone Company shall be given due notice and shall be entitled to a hearing before the Fort Worth City Council prior to the adoption of any such requirements. The City shall also have the right at any time to require the Telephone Company to remove any of its facilities that are dangerous to life or property, and in case the Telephone Company, after reasonable notice to the Division Manager over outside plant engineering and construction, fails or refuses to act, then the City, at the direction of the City's Director of Transportation and Public Works, shall have the right to remove or abate the same at the expense of the Telephone Company, all without compensation or liability for damages to the Telephone Company (d) Before the Telephone Company extends or replaces its underground facilities in City rights-of-way, there shall be filed with the City's Director of Transportation and Public Works a written work description, including drawings showing the location of the facilities. -4- The plans will be reviewed by the Director of Transportation and Public Works and any comments will be provided to the Telephone Company within ten (10) working days. The City agrees to expedite its review when conditions warrant. Before the Telephone Company cuts into or in any manner opens any public street, alley, sidewalk, or other City right-of-way, for any purpose, the Telephone Company shall first obtain a permit from the Director of Transportation and Public Works to cut into or open such street, alley, sidewalk or other public ground as required by the Fort Worth City Code When an emergency occurs, repairs shall be performed by the Telephone Company and notice shall be given to the Director of Transportation and Public Works and a permit obtained within twenty-four (24) hours following such emergency repairs. (e) The following requirements shall apply to installation of the Telephone Company's local service fiber optics cables in City (1) Cables shall be buried approximately three (3) feet below the surface of the right-of-way (2) Signs shall be located at appropriate intervals warning the public of the presence of such cables. (f) Any and all rights-of-way disturbed by the Telephone Company in building, constructing, renewing or maintaining its facilities shall be repaired, cleaned up and restored within a reasonable time after completion of the work to as good a condition as before the commencement of the work to the satisfaction of the City's Director of Transportation and Public Works. All work in rights-of-way shall be performed in accordance with the City's standard specifications for street and storm drain construction. The City may inspect any and all work. The Telephone Company shall be responsible for all maintenance costs incurred as a result of any defects, impairments or substandard condition in the street, alley, highway, public thoroughfare, public utility easement or public way caused by the construction, maintenance or restoration work of the Telephone Company The Telephone Company shall warrant such construction, maintenance and restoration work for a period of -5- two years. No street, alley, highway, public thoroughfare, public utility easement or public way shall be encumbered for a longer period than shall be necessary to execute the work. (g) The Telephone Company shall comply with all construction requirements of the City with respect to hours of construction operations in peak traffic hours, barricading requirements, and other construction rules and regulations which may be promulgated from time to time. When the Telephone Company performs or causes the performance of any work on any right-of-way or other public place, or so closely adjacent to any rights-of-way or public place as to create hazards for the public, the Telephone Company, its employees or contractor shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public, equipment and workmen. The application of such traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices. Appropriate warning lights shall be used at all construction and maintenance zones where one or more traffic lanes are being obstructed during nighttime conditions. (h) Telephone Company, at its own cost and expense, and at the City's request (without claim for reimbursement or damages against the City), shall lower, relocate or alter the Telephone Company's existing facilities in City rights-of-way where necessary due to street construction or street reconstruction by or on behalf of the City, or due to the construction or relocation of City utility lines, including but not limited to water, sanitary sewer, storm drains, street lights and traffic signal conduits, or due to any other work in or under the City streets, alleys or thoroughfares, but the Telephone Company's obligation to lower, relocate or alter such facilities at its cost and expense shall occur only when such street construction, street reconstruction, City utility line construction or relocation, or such other work by or on behalf of the City in or under the City streets, alleys or thoroughfares is for the benefit of the general public and such streets, alleys or thoroughfares are to be maintained and operated by the City (i) When the Telephone Company is required to relocate its facilities to accommodate the construction or improvement of City streets, sewers and other public works, the -6- Telephone Company shall retain the right to reimbursement from the State of Texas or federal government, as permitted by law, when the construction and relocation are the result of construction or improvement to any portion of the Federal-Aid System (or any successor thereto) that is or will be maintained by the State of Texas or any federal agency (j) Before the Telephone Company constructs, installs or locates any of its facilities along or adjacent to any existing street or thoroughfare or any proposed street or thoroughfare, the Telephone Company will verify that the proposed construction, installation or location of the Telephone Company's facilities will not conflict or interfere with any proposed street or thoroughfare expansion as shown on the City's then current master thoroughfare plan. Should the Director of Transportation and Public Works determine that the proposed construction, installation or location of the Telephone Company's facilities will constitute a conflict or interference with such Plan, then the Director of Transportation and Public Works will notify the Telephone Company of the potential conflict or interference. Thereafter, the City and the Telephone Company will endeavor in good faith to resolve the potential conflict or interference. (k) Upon not less than 48 hours' advance notice, the Telephone Company shall promptly move or remove its aerial facilities temporarily to permit the moving of houses or other bulky structures when necessary The expenses of such temporary relocation or removal shall be paid by the party or parties requesting and benefiting from such temporary relocation or removal, and the Telephone Company may require such payment in advance. (1) The right, license, privilege and permission is hereby granted to the Telephone Company, its contractors and agents, to trim trees upon and overhanging the streets, avenues, highways, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the aerial wires, fiber or cables of the Telephone Company, and, 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. -7- SECTION 5 ATTACHMENTS TO POLES AND USE OF SPACE IN DUCTS (a) This ordinance shall not abrogate any existing license agreement between the City and the Telephone Company allowing the joint use of Telephone Company owned poles. Except as provided in Section 12, 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 place in the Telephone Company's conduit. Except as provided in Section 12, 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 (b) 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 other light and/or power companies or with other wire-using companies which are duly authorized by the City to use the CITY'S RIGHTS-OF-WAY The Telephone Company is not otherwise authorized to license or lease to any person or entity the right to occupy the City's rights-of-way for the conduct of any private business. SECTION 6. OPERATION AND MAINTENANCE OF TELEPHONE COMPANY SYSTEM AND FACILITIES An exception to this condition is automatically in effect when service furnished by the Telephone Company is interrupted, impaired or prevented by fires, strikes, riots or other occurrences beyond the control of the Telephone Company, or by storms, floods or other -8- casualties, in any of which events the Telephone Company shall do all things reasonably within its power to do to restore normal service. SECTION 7 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 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 8 DESIGNATION OF ADMINISTRATIVE OFFICER, RIGHT TO OBTAIN INFORMATION (a) The City may delegate to the City Manager or any other designated City official the exercise of 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. (b) It shall be the right of the designated City official and the City Council of the City of Fort Worth 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 9 ADMINISTRATION OF ORDINANCE (a) The City may, at any time, make inquiries pertaining to this ordinance. The Telephone Company shall respond to such inquiries on a timely basis. -9- (b) Copies of petitions, applications, communications and reports submitted by the Telephone Company to the Federal Communications Commission and 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 within the City, to the extent permitted by law SECTION 10 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. (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 other than the payment of money and if the Telephone Company commences efforts to cure such alleged violation(s) within thirty (30) days after receipt of written notice and shall thereafter prosecute such curative efforts with reasonable diligence until such curative efforts are completed, then such alleged 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 fifteen (15) days' prior written notice of any public hearing concerning the proposed termination of this ordinance. In addition, fifteen -10- (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 to seek compliance with such terms or conditions. SECTION 11 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 corporate franchise tax or other character of charge for use and occupancy of the rights-of-- way within the City, except the usual general ad valorem taxes, special assessments in accordance with state law or sales taxes now or hereafter levied by the City in accordance with state law, the City hereby imposes an annual charge of $5,340,000 (the "Annual Charge") upon the gross receipts (as hereinafter defined) of the Telephone Company which will be -11- determined in the following manner The Annual Charge for the first calendar year shall be applicable from September 1 to December 31, 1992 on a prorated basis, assuming passage on or before September 1, 1992 In no event shall the Annual Charge be less than the base amount of $5,340,000 per full calendar year, except as provided in the preceding sentence or in the case of the year in which the ordinance expires as set forth in Section 11(b) hereof, or in the case of disannexation as set forth in Section 11(e) hereof, or in the case of certain future events as set forth in Section 17 hereof The Telephone Company will, according to tariff, bill the Annual Charge to the customers billed the customer services charges included within the term "Gross Receipts" as defined herein. "Gross Receipts", for purposes of the Annual Charge, shall include only customer service charges billed through the Telephone Company's Customer Records Information System ("CRIB") for the following which are provided within the City• (1) the recurring charges for the local exchange access rate element specified in the Telephone Company's tariffs filed with the P U C for any Telephone Company services which are also subject to an interstate end user common line ("E.U C L.") charge as imposed by the Federal Communications Commission ("FCC ") and (2) the recurring charges for intraexchange private line services offered by Telephone Company For the second and subsequent calendar years while this ordinance remains in effect, the Annual Charge is subject to adjustment by application of the Growth Factor set out in Section 11(c) hereof The Telephone Company may adjust its billings to customers to account for any undercollection or overcollection for the prior year (b) The Annual Charge for each calendar year shall be paid in four (4) equal installments on March 31, June 30, September 30 and December 31 of each year except for the first installment of the year in which this ordinance is passed and the final installment for the last year The Annual Charge for the year in which this ordinance is passed shall be applicable from September 1, 1992, through December 31, 1992 on a prorated basis, assuming passage on or before September 1, 1992 The first installment of $445,000 00 shall be paid -12- on October 1, 1992 and shall be paid in full satisfaction of any municipal fee payment which would otherwise have been due upon the Company's gross receipts for the month of September, 1992, pursuant to Ordinance No 1933 adopted December 23, 1936 This first installment shall consist of collections from customers from September 1, 1992 through September 30, 1992 under Ordinance Number 1933 with the remainder of such first installment being collected in accordance with this ordinance.The payment for the quarter ending December 31, 1992 shall be paid on that date. The Annual Charge for the year in which this ordinance expires shall be prorated from January 1 through such expiration date. In the event of any overcollection from customers at the expiration of this ordinance, the Telephone Company may make a pro rata one-time credit to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in Section 11(a) This will be accomplished within one hundred fifty (150) days following the date of expiration of this ordinance. If, however, it is impractical to credit such overcollections to customers, then such overcollection shall be paid to the City (c) The Growth Factor shall be calculated by dividing the Company's revenues within the corporate limits of the City subject to the state 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 previous year's Annual Charge (i.e., payment year minus one) to determine the dollar amount of the Annual Charge for the payment year If the Growth Factor calculated above is one or less, the Annual Charge for the payment year shall be equal to the previous year's Annual 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 may -13- adjust its customer billing to account for the Growth Factor calculated above. Stated another way the Annual Charge and Growth Factor for the years 1993 through 1996, as an example, shall be calculated as follows. Example: Annual Charge and Growth Factor Year 1 September 1 -December 31, 1992 =Annual Charge Annual Charge, prorated 1992 ("AC 1992") Year 2 Jan. 1-Dec. 31, Annual Charge x 1992 Growth =Annual Charge 1993 Factor, if any 1993 (Sales Tax Revenues for ("AC 1993") 12 month period ending 9/92 ["STR"] + by Sales Tax Revenues for 12 month period ending 9/91 ["STR"ll Year 3 Jan. 1-Dec. 31, AC 1993 x 1993 Growth =Annual Charge 1994 Factor, if any 1994 (9/93 STR + ("AC 1994") 9/92 STR) Year 4 Jan. 1-Dec. 31, AC 1994 x 1994 Growth =Annual Charge 1995 Factor, if any 1995 (9/94 STR + ("AC 1995") 9/93 STR) Year 5 Jan. 1-Dec. 31, AC 1996 x 1996 Growth =Annual Charge 1996 Factor, if any 1996 (9/95 STR + ("AC 1996") 9/94 STR) 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 and the actual sales tax paid. 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 to the Telephone Company's applicable reports of state sales taxes pursuant to audit by the Texas Comptroller of Public Accounts. The Annual Charge shall be recalculated using the Growth Factor recomputed as specified in the -14- preceding sentence, and the recalculated Annual 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 Annual Charge shall be in lieu of the taxes, licenses, charges, rights-of-way permit or inspection fees, rentals, rights-of-way easements or corporate franchise taxes aforesaid, then the City agrees that it will apply so much of such payments as maybe 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 corporate 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 Annual Charge shall be adjusted in proportion to the Gross Receipts as defined in Section 11(a) hereof, which are removed from or added to the total Gross Receipts generated within the boundaries of the City prior to the disannexation/annexation, as set forth below Within thirty (30) days following the date of passage of any action effecting any disannexation/annexation described in the preceding sentence, the City shall provide to the Telephone Company maps of the affected area(s), showing the new boundaries of the City -15- After identifying the affected customers, the Telephone Company shall calculate the total Gross Receipts which were billed within the City during the first full calendar month following the date of the disannexation/ annexation as determined by the Texas Comptroller of Public Accounts for purposes of the local sales and use tax This sum shall be divided by the total Gross Receipts which were billed within the City during the last full calendar month prior to the date of the disannexation/annexation as determined by the Texas Comptroller of Public Accounts for purposes of the local sales and use tax. The resulting figure shall be rounded to four decimal places and yields the percentage by which Annual Charge shall be increased by this percent, and, in the case of disannexation the Annual Charge shall be decreased by this percent The Annual Charge, as adjusted, shall be prorated for the remainder of the calendar year following the date of the disannexation/annexation in accordance with the rules of the Texas Comptroller of Public Accounts for purposes of the local sales and use tax. Once adjusted, the new Annual Charge shall be used for all future calculations required by this ordinance. (f) The recovery of the Annual Charge by the Telephone Company from the 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 12 FACILITIES TO BE FURNISHED CITY AS ADDITIONAL CONSIDERATION (a) In addition to the consideration set forth in Section 11, and notwithstanding the provisions of Section 5, the Telephone Company shall permit the City to use without charge, solely for its own noncommercial 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 facilities within the city limits. Aiso, Telephone Company shall provide adequate space on all nonducted facilities now existing -16- or hereafter constructed on or within the rights-of-way for the City to attach transmission media for the City's own noncommercial 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 before 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 noncommercial 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) 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 reason of the construction, maintenance, inspection or use by or on behalf of the City of the Telephone Company's facilities, and the City shall indemnify and hold the Telephone Company harmless against all such claims, losses, demands, suits and judgments to the extent permitted by law -17- SECTION 13. ASSIGNMENT OF ORDINANCE (a) The Telephone Company shall be a legal entity with legal capacity to operate and maintain a local telecommunications system in the City of Fort Worth. (b) This ordinance and any rights or privileges hereunder shall not be assignable to any other entity without the express consent of the Fort Worth City Council, such consent to be evidenced by an ordinance of the City Council, which ordinance shall fully recite the terms and conditions, if any, upon which such consent is given. SECTION 14 MUTUAL RELEASES (a) In consideration of the performance by Telephone Company of its obligations hereunder, 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 No 1933, adopted December 23,1936, and renewed or extended from time to time thereafter, and its predecessor ordinances, if any, hereinafter referred to collectively as "Ordinance 1933" This full and complete release of claims for any matters under Ordinance 1933 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 1933. In consideration of the performance by the City of its obligations hereunder, the 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 1933. (b) 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 -18- 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 15. ACCEPTANCE OF ORDINANCE (a) Pursuant to Section 2 of Chapter XXV of the Charter of the City of Fort Worth, the Telephone Company, as a condition precedent to the effectiveness of this ordinance, acknowledges by the signature hereunder of its duly authorized representative that it accepts and agrees to the terms, conditions and provisions of this ordinance the same as if it were a contract between the City and the Telephone Company This ordinance shall not become effective until accepted and agreed to by the Telephone Company as herein provided. (b) The City shall deliver a properly certified copy of this ordinance to the Telephone Company within three (3) working days of its final passage. (c) In the event that the Telephone Company fails to accept and agree to this ordinance within sixty (60) days after its passage by the City Council, this ordinance and the rights and privileges herein shall be and become terminated, null and void. SECTION 16 REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS Ordinance No 1933, adopted December 23, 1936, is hereby repealed, provided, however, that such repeal shall take effect at 11 59 pm. on the day immediately preceding the effective date specified in Section 21 of this ordinance. All other ordinances and agreements and parts of ordinances and agreements in conflict herewith are also repealed, which repeal shall take effect on the date specified in the preceding sentence. And, provided further that the TELEPHONE COMPANY shall make payment to the CITY of the amount due under Ordinance 1933 for the period from January 1, 1992 through August 31, 1992 of this -19- ordinance on October 1,1992, assuming passage of the new ordinance on or before September 1, 1992 SECTION 17 FUTURE CONTINGENCY In the event this ordinance, or any tariff provision by which the Telephone Company seeks to recover the annual Charge imposed by 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 or legislative authority exercising its jurisdiction to be excessive, unrecoverable, 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 permitted by law for the unexpired portion of the term of this ordinance. SECTION 18. GOVERNING LAW AND DRAFTING OF ORDINANCE (a) This ordinance shall be construed in accordance with the provisions of the Constitution and the laws of the State of Texas and the Charter provisions of the City of Fort Worth and applicable sections of the Fort Worth City Code to the extent that such Charter and Code provisions 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 SECTION 19 PUBLICATION The City Secretary of the City of Fort Worth is hereby directed to publish this ordinance in its entirety once a week for four (4) consecutive weeks within a period of thirty (30) days after its passage in the official newspaper of the City, as required by Section 2 of -20- Chapter XXV of the City Charter of the City of Fort Worth, Texas. All costs of publication shall be at the expense of the Telephone Company in addition to the other charges provided for herein. This ordinance shall not become effective until proper publication as required by the City Charter SECTION 20 ENGROSSMENT AND ENROLLMENT The City Secretary of the City of Fort Worth is hereby directed to engross and enroll this ordinance by copying the caption and effective date of same in the minutes of the City __ Council of Fort Worth and by filing this ordinance in the ordinance records of said City SECTION 21 EFFECTIVE DATE This ordinance shall be in full force and effect as of the first day of October, 1992, assuming full compliance with publication and written acceptance by Telephone Company as above specified, and it is so ordained. Passed and approved the ~ day of ~'t~QJ~r~A.D , 1992 Ma or City of Fort Worth, Texas ATTEST• ~~~ ~~~~ City Secretary ROVED AS FO M ND LEGALITY City Attorney Date: ~ i - ~ ~'" ADOPTED• ~ ~- ~ EFFECTIVE. -21- I, ~,~~ ~~,(,~'~ ,City Secretary of the City of Fort Worth, Texas, do ereby certify that the foregoing is a true and correct copy of Ordinance Number passe d approvd~b,,y~the City Council of Fort Worth, Texas, at a regula eeting held on the ~ day of ~~~~`' 1992. ~t~~ -- City Secretary -22- '..fER fILE.l ~CCOUNTING•2 City of Fort Worth Teacas RANSPORTATION~PUBLIC WORKSd ~ fER AOMINI57 RAT~ayor and Cou~;cil Ca-~nmunicati~~n u.~ i 09/01/92 ~ - - -- -- -~------- G-9819 ~ - 12SWB ~ ~ ~~-- 1 of 2 SUBJECT ADOPTION OF ORDINANCE CONCERNING OPERATION OF SOUTHWESTERN BELL TELEPHONE COMPANY'S TELECOMMUNICATIONS SYSTEM ON CITY STREETS AND RIGHT-OF-WAY; REPEAL OF ORDINANCE N0. I933 Recommendation: It is recommended that the City Council: 1. Adopt the attached ordinance which provides that Southwestern Bell Telephone Company shall have the right to operate a telecommunications system on city streets and rights-of-way, and 2. Repeal Ordinance 1933 Background: Pursuant to Ordinance 1933, adopted on December 23, 1936, Southwestern Bell Telephone Company (Bell) operates a telecommunications system on city streets and rights-of-way. Clarence West, special legal counsel for the City, the City Attorney, and City staff have conducted extensive negotiations with Bell and the result is the attached ordinance. The ordinance contains the following significant provisions: 1. The ordinance is for a term of five years. 2. The City will receive annual compensation of $5.34 million dollars which 8e11 will pay in quarterly installments. (Under Ordinance 1933 Bell has made an annual payment of approximately $3.4 million dollars in March for the preceding calendar year. This annual payment has been based on a percentage of gross receipts from local exchange telephone service.) 3. Compensation will be increased annually based on the percentage of growth in Bell's revenue subject to sales taxes within the city, but the amount of the annual compensation cannot be decreased 4. The new annual compensation will be prorated from September 1, 1992, to December 31, 1992. 5. Ordinance 1933 is repealed and the City and Bell release each other from any and all claims or liabilities, including any past underpayments. This resolves all pending .issues between the City and Beli and avoids the expenditure of City resources on lengthy litigation. The attached ordinance represents a major improvement over Ordinance 1933. It is recommended that the City Council adopt the attached ordinance and repeal Ordinance 1933. +_~i Printed on recycled paper City of Fort Worth, Texas Mayor and Council Communication DATE 09/01/92 REFEREN E NUMBER G-9819 L G NAME 12SW6 PAGE 2 of 2 SUDJECT ADOPTION OF ORDINANCE CONCERNING OPERATION OF SOUTHWESTERN BELL TELEPHONE COMPANY'S TELECOMMUNICATIONS SYSTEM ON CITY STREETS AND RIGHT-OF-WAY; REPEAL OF ORDINANCE N0. 1933 FISCAL INFORMATION/CERTIFICATION: This Council action does not require the WA:k expenditure of City funds. Su mitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by to APPROVED Charles Boswell 8511 CITY COUNCIL Originating Department Nea - ~~ ~~ Wade Adkins 7623 from /A6 dopted Ordinance No. ~ ~ e ~`~~ For Additional Information "' ' City Secretary of the Contact City of Fort Worth, 7exaa Wade Adkins 7623 ~~ Printed on recycled paper