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HomeMy WebLinkAbout1093 09-14-1993ORDINANCE NO. 1093 AN ORDINANCE WHEREBY THE CITY OF EULESS, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE TO AMEND SECTION 11, ORDINANCE NO. 20, ADOPTED ON DECEMBER 7, 1953, AS AMENDED BY AGREEMENTS SET OUT IN LETTERS DATED DECEMBER 31, 1975 AND SEPTEMBER 29, 1987 TO PROVIDE FOR A LONGER TERM, AND TO AMEND SECTION 7 OF SAID ORDINANCE TO PROVIDE FOR THE CASH CONSIDERATION TO BE PAID TO THE CITY BY SOUTHWESTERN BELL TELEPHONE COMPANY DURING SUCH TERM. WHEREAS, the City of Euless, Texas, hereinafter referred to as the "City," has requested that Southwestern Bell Telephone Company, hereinafter referred to as the "Telephone Company," agree to an amendment lengthening the term of Ordinance No. 20 adopted December 7, 1953, as amended by agreements set out in letters dated December 31, 1975 and September 29, 1987 (hereinafter collectively referred to as the 'Previous Ordinance Agreement ") and providing for the continuance of payments of municipal fees to the City; and WHEREAS, the Telephone Company and the City have agreed to amend Section 11 of the Previous Ordinance Agreement to provide for a longer term for said Previous Ordinance Agreement; and WHEREAS, the Telephone Company and the City have agreed to amend Section 7 of the Previous Ordinance Agreement to provide for the municipal fees to be paid by Telephone Company to the City during the longer term; and WHEREAS, it is to the mutual advantage of both the City and the Telephone Company that such amendments be adopted: NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULESS, TEXAS, THAT: Section 1. The Previous Ordinance Agreement, a complete copy of which, including the acceptance of the Telephone Company, is attached hereto and incorporated herein for all purposes as Exhibits A, B and C, shall remain in full force and effect as originally passed except as the Previous Ordinance Amendment is amended by this Ordinance. Section 2, Section 11 of the Previous Ordinance Agreement entitled, Period of Time of This Ordinance -- Termination, is hereby amended to read as follows: This ordinance shall be in force and effect for the six month period beginning October 14, 1993 through April 14, 1994, to give the City and the Telephone Company additional time to negotiate a new ordinance. This ordinance will terminate automatically on April 14, 1994, unless the parties mutually agree in writing to extend its term for an additional six month period. Any such written extension must be fully executed by both parties no less than 15 days prior to the April 14, 1994 termination date. Section 3. Section 7 of the Previous Ordinance Agreement entitled, Annual Cash Consideration To Be Paid by the Telephone Company, is hereby amended to read as follows: To indemnify the City for any and all possible damage to its streets, alleys, and public grounds which may result from the placing and maintenance therein or thereon of Telephone Company's poles, conduits, or other telephone equipment or apparatus, and to compensate the City for its superintendence of this Agreement, and as the consideration for same, the Telephone Company agrees to pay the City a sum of money, hereinafter referred to as the "Cash Consideration, " equal to four percent (4 %) of the annual gross receipts received by the Telephone Company during the term of this Ordinance from the rendition of those same certain services for which it collected municipal fees during the calendar year 1992 from its customers located within the corporate limits of the City pursuant to applicable tariffs on file with the Public Utility Commission of Texas. In no event shall the Telephone Company's liability for payment under this ordinance exceed the amount of municipal fees it collects during the term of this ordinance from its customers located within the corporate limits of the City pursuant to applicable tariffs on file with the Public Utility Commission of Texas. Payment of amounts due under this ordinance for the period of October 14, 1993 through December 31, 1993 shall be made on April 15, 1994. Any remaining payment of amounts due under this ordinance shall be made on April 15, 1995. Section 4. The Telephone Company shall have thirty (30) days from and after the passage and approval of this Ordinance to file its written acceptance hereof with the City Secretary, and upon such acceptance being filed, this Ordinance shall take effect and be in force as of October 14, 1993. ORDINANCE NO. 1093, PAGE 2 OF 3 PRESENTED AND GIVEN FIRST READING at a regular meeting of the Euless City Council on the 27th day of October, 1992, by a vote of 7 ayes, 0 nays, and 0 abstentions; PRESENTED AND GIVEN SECOND AND FINAL READING and approved at a regular meeting of the Euless City Council on the 14th day of September, 1993, by a vote of 4 ayes, 1 nay, and 0 abstentions. APPROVED: Mary Lib aleh, Mayor ATTEST: usanCri�C, City Secretary APPROVED AS TO FORM: ye:Z- � W'oczzj City Attorney ORDINANCE NO. 1093, PAGE 3 OF 3 EXHIBIT A Page 1 ORDINANCE NO. LU AN ORDINANCE WHEREBY THE . , . ��ggpp TEXAS, AND THE SOUTHWESTERIi $ELT EPFIONE COMPANY AGREE THAT THE TELEPHONE COMPANY SHALL CONTINUE TO ERECT AND MAINTAIN ITS POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER PLANT CONSTRUCTION AND APPURTE- NANCES ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, ALLEYS, PUBLIC GROUNDS AND PLACES IN SAID CITY, UNDER REGULATIONS AND RESTRICTIONS AND THAT THE CITY SHALL RECEIVE AN ANNUAL PAYMENT AND THE RIGHT TO USE CERTAIN FACILITIES OF THE TELEPHONE COM- PANY, ALL AS HEREIN PROVIDED: WHEREAS, the Southwestern Bell Telephone Company, here- inafter referred to as the "Telephone Company ", is now and has been en- gaged in the telephone business in the State of Texas, and in furtherance thereof, has erected and maintained certain items of its plant construction in the g 4 of 1k13 * 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 exercise of such reasonable rights of regulation under the police power as have been also lawfully granted by and under said laws to said City; and WHEREAS, it is to the mutual advantage of both the City and the Telephone Company that an agreement should be entered into between the Telephone Company and the City establishing the conditions under which the Telephone Company shall operate in the City. NOW, THEREFORE, BE IT ORDAINED BY THE OSa� AI!'MS" OF THE V111A G1' L pj n TEXAS, THAT: SECTION 1 - CONSTRUCTION AND MAINTENANCE OF TELEPHONE PLANT AND SERVICE The poles, wires, anchors, cables, manholes, conduits and other plant construction and appurtenances, used in or incident to the giving of tele- phone service and to the maintenance of a telephone business and system by the Telephone Company in the City, shall remain as now constructed, sub- ject to such changes as under the limitation and conditions herein prescribed may be considered necessary by the City in the exercise of its lawful powers and by the Telephone Company in the exercise of its business of furnishing telephone service; and the Telephone Company shall continue to exercise its right to place, remove, construct and reconstruct, extend and maintain its EXHIBIT A Page 2 said plant and appurtenances as the business and purposes for which it is or may be incorporated may from time to time require along, across, on, over, through, above, and under all the public streets, avenues, alleys and public grounds and places within the present limits of the City and within said limits as the same from time to time may be extended, subject to the regulations, limitations and conditions herein prescribed. SECTION 2 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUIT All poles to be placed shall be of sound material and reasonably straight, and shall be so set that they will not interfere with the flow of water in any gutter or drain, and so that the same will interfere as little as practicable with the ordinary travel, on the street or sidewalk. The location and route of all poles, stubs, guys, anchors, conduits and cables to be placed and constructed by the Telephone Company in the construction and maintenance of its telephone system in the City, and the location of all conduits to be laid by the Telephone Company within the limits of the City under this ord- inance, shall be subject to the .reasonable and proper regulation, control and direction of the City Aldermen or of any City official to whom such duties have been or may be delegated. SECTION 3 - STREETS TO BE RESTORED TO GOOD CONDITION The surface of any street, alley, highway, or public place disturbed by the Telephone Company in building, constructing, renewing or maintaining its telephone plant and system shall be restored within a reasonable time after the completion of the work to as good a condition as before the commence- ment of work and maintained to the satisfaction of the City Aldermen or of any City official to whom such duties have been or may be delegated, for one year from the date the surface of said street, alley, highway, or public place is broken for such construction or maintenance work, after which time responsibility for the maintenance shall become the duty of the City. No street, alley, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work. SECTION 4 - OPERATION AND MAINTENANCE OF TELEPHONE PLANT The Telephone Company shall maintain its system in reasonable operating condition at all normal times during the continuance of this agreement. 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 casualties, in any of which events the Telephone Company shall do all things, reasonably within its power, to do, to restore normal service. - 2 - EXHIBIT A Page 3 SECTION 5 - TEMPORARY REMOVAL OF WIRES The Telephone Company on the request of any person shall remove or raise or lower its wires temporarily to permit the moving of houses or other bulky structures. The expense of such temporary removal, rais- ing or lowering of wires shall be paid by the benefited party or parties, and the Telephone Company may require such payment in advance. The Telephone Company shall be given not less than forty -eight hours advance notice to arrange for such temporary wire changes. SECTION 6 - TREE TRIMMING The right, license, privilege and permission is hereby granted to the Telephone Company, its successors and assigns, to trim trees upon and overhanging the streets, alleys, sidewalks and public places of the City, so as to prevent the branches of such trees from coming in contact with the wires or cables of the Telephone Company, and when so ordered by the City, said trimming shall be done under the supervision and direction of the City Aldermen or of any City officials to whom said duties have been or may be delegated. SECTION 7 - ANNUAL CASH CONSIDERATION TO BE PAID BY THE TELEPHONE COMPANY To indemnify the City for any and all possible damages to its streets, alleys, and public grounds which may result from the placing and main- tenance therein or thereon of the Telephone Company's poles, conduits, or other telephone equipment or apparatus, and to compensate the City for its superintendance of this agreement, and as the cash consideration for the same, the Telephone Company agrees to pay to the City annually during the continuance of the agreement a sum of money equal to two per cent (2 %) of the annual gross receipts for the preceding year received by the Company from the rendition of local exchange telephone trans- mission service within the corporate limits of the City. The first payment hereunder shall be made April 15 . 1954, and shall equal in amount two per cent ( 2 %) of the gross receipts received from Oct. 13, 1953, to Dec. 31 , 1953 ; and thereafter payment shall be made annually on April 15 as herein provided. SECTION 8 - PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYMENTS EXCEPT USUAL GENERAL OR SPECIAL AD VALOREM TAXES The City agrees that the consideration set forth in the preceding section here- of, shall be paid and received in lieu of any tax, license, charge, fee, street or alley rental or other character of charge for use and occupancy of the streets, alleys and public places of the City; in lieu of any pole tax or inspection - 3 - EXHIBIT A Page 4 fee tax; in lieu of any easement or franchise tax, whether levied as an ad valorem, special or other character of tax; and in lieu of any impo- sition. other than the usual general or special ad valorem taxes now or here- after levied. Should the City not have the legal power to agree that the payment of the foregoing cash consideration shall be in lieu of the taxes, licenses, charges, fees, rentals, and easement or franchise taxes afore- said, then the City agrees that it will apply so much of said payment as may be necessary to the satisfaction. of the Telephone Company's obligations, if any, to pay any such taxes, licenses, charges, fees, rentals, and ease- ment or franchise taxes. SECTION 9 - FACILITIES TO BE FURNISHED CITY AS ADDITIONAL CONSIDERATION In addition to the consideration set forth in Section 7, the Telephone Com- pany shall hold itself ready to furnish, subject to the use of the City, such wire space as may be required from time to time by the City upon the poles now ow.aed or hereafter erected by the Telephone Company in the City for the use of the City's police and fire alarm system: provided that the required wire space shall not exceed the wire capacity of one cross arm on any one pole. The location on the poles of this fire and police wire space shall be determined on specific applications for space, at the time the applications are received from the City, and will be allotted in accord- ance with the considerations for electrical construction of the United States Department of Commerce, Bureau of Standards. In its wire construction on the Telephone Company's poles, the City will follow the suggestions and requirements laid down for wire construction in the Rules and Regulations of the Bureau of Standards of the United States Department of Commerce. Where conduits are laid or are constructed by the Telephone Company, said company shall hold itself ready to furnish sufficient duct space not to exceed capacity of one duct for use by the City in carrying its police and fire alarm wires. All such wires, whether on poles or in conduits, shall be constructed, maintained and operated in such manner as not to inter- fere with nor create undue hazard in the operation of the telephone system of the Telephone Company. It is further agreed that the Telephone Com- pany shall not be responsible to any party or parties whatsoever for any claims, demands, losses, suits, judgments for damages or injuries to persons or property by reason of the construction, maintenance, inspection or use of the police and fire alarm wires belonging to the City, and the City shall insure, indemnify and hold the Telephone Company harmless against all such claims, losses, demands, suits and judgments. SECTION 10 - ATTACHMENTS ON POLES AND SPACE IN DUCTS NOT HERE AFFECTED Nothing in this ordinance contained shall be construed to require or per- mit any electric light or power wire attachments by the City or for the City, - 4 - EXHIBIT A Page 5 nor to require or permit any electric light or power, wires to be placed in any duct used by the City in the Telephone Company's conduits. If light or power attachments are desired by the City or for the City, or if the City desires to place electric light or power wires in any duct used by the City, then a further separate noncontingent agreement shall be pre- requisite to such attachments or such use of any duct used by the City. Nothing herein contained shall obligate or restrict the Telephone Company in exercising its right voluntarily to enter into pole attachment, pole usage, joint ownership, and other wire space and facilities agreements with light and power companies and with other wire using companies which may be privileged to operate within the City. SECTION 11 - PERIOD OF TIME OF THIS ORDINANCE - TERMINATION This agreement shall. be in full force and effect for the period beginning with the effective date hereof and ending 20 years after Oct. 13 1953, provided that at the end of the expiration of the initial period, such term shall be automatically renewed forthwith for successive periods of twenty years, conditioned, however, that if during the last four months of the initial period or of any successive 20 year period, not less than. ninety days' prior written notice shall be given either to the Telephone Com- pany by the City or to the City by the Telephone Company, setting forth the desire of the giver of such notice to terminate this agreement, then in such case this agreement shall terminate at the expiration of the than current period. SECTION 12 - NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE Nothing herein contained shall be construed as giving to the Telephone Company any exclusive privilege. SECTION 13 - SUCCESSORS AND ASSIGNS The rights, powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors and assigns. SECTION 14 - PARTIAL INVALIDITY AND REPEAL PROVISIONS If any section, sentence, clause or phrase of this ordinance if for any reason held to be illegal., ultra vires or unconstitutional, such invalidity shall not affect the validity of the remaining portions of this ordinance. All ordinances and agreements and parts of ordinances and agreements in conflict here- with are hereby repealed. - 5 - EXHIBIT A Page 6 SECTION 15 - ACCEPTANCE OF AGREEMENT The Telephone Company shall have sixty (60) days from and after the passage and approval of this ordinance to file its written acceptance thereof with the City Secretary, and upon such acceptance being filed, this ordinance shall take effect and be in force from and after the date of its passage and approval by the Mayor and shall effectuate and make binding the agreement provided by the terms hereof. Passed and approved this '% l'� day of D0_. A. D. 195.3 Mayor Y'-e- "49?1 Eck Attest: City Secretary / City Clerk I, -V/L/ City Secretary of the City of � t jeP � do hereby certi y that the foregoing is a true and correct copy of Ordinance , passed and approved by the City Council of at a regular meeting held on the 7 day of �✓��' , 1953 In witness whereof, I hereto set my hand and affixed the official seal of the City of this -7-z--4, day of t9e s Z° A. D. , 195-� 6 City Secretary J City Clerk - 6 - EXHIBIT A Page 7 ACCEPTANCE WHEREAS, THE CITY ALDERMEN of the Village of Euless , Texas, did on the 7th day of December, 1953, enact an ordinance entitled: "AN ORDINANCE WHEREBY THE VILLAGE OF EULESS , TEXAS, AND THE SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT THE TELEPHONE COMPANY SHALL CONTINUE TO ERECT AND MAINTAIN ITS POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER PLANT CONSTRUCTION AND APPURTENANCES, ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, ALLEYS, PUBLIC GROUNDS AND PLACES IN SAID CITY, UNDER REGULATIONS AND RESTRICTIONS AND THAT THE CITY SHALL RECEIVE AN ANNUAL PAYMENT AND THE RIGHT TO USE CERTAIN FACILITIES OF THE TELEPHONE COM- PANY, ALL IS HEREIN PROVIDED:" and WHEREAS, said ordinance was on the 7th day of December , 1953, 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 the Village of Euless Texas in his office. Dated 13t1day of January , 1954 E.G. SOUTHWESTERN BELL TELEPHONE COMPANY General Attorney for Texas By J. M. Black Vice President- Operations Attest: G. E. McCloud Assistant Secretary Acceptance filed in the office of the City Secretary of the Village of Euless , Texas, this 28th day of January , 1954, J. S. Anderson City Secretary J. M. Barney Districl Manage, Mr. W. M. (Blackie) Sustaire City Manager City of Euless Z01 Ector Drive Euless, Texas 76039 Dear Blackie: EXHIBIT B Southwestern Bell Room 302 First Slate Bank Bidg 1901 Central Drive Bedford. Texas 70021 Phone (81 7) 332 -8211 December 31, 1975 This is to advise that beginning July 1, 1975 Southwestern Bell does hereby agree to pay to the City of Euless, Texas 4% of its gross receipts from local service revenues within the corporate limits of the City of Euless, Texas. This agreement shall remain in force until the expiration date of Gross Receipts Ordinance passed by the Euless, Texas City Council on December 7, 1953 and is in lieu of the 2% provided for in said ordinance. The payment will be made on April 15 of each year. The payment for the year 1975 shall be on the basis of 2% for the first one half of 1975 and on the aforesaid 4% basis for the last one half of 1975. The total sum of money paid hereunder shall not in any event exceed the amount allowed by the Public Utility Commission of Texas as a reasonable and necessary expense of operation for rate making purposes. ( 4 '''ct Barney — 'District Manager Gary Terry Area Manager - External Affairs September 29, 1987 Honorable Harold Samuels Mayor, City of Euless 201 N. Ector Dr. Euless, Tx. 76039 Dear Mayor Samuels: EXHIBIT C Southwestern Bell Telephone 1240 Park Place Hurst, Texas 76053 Phone (817) 338 -6764 The purpose of this letter is to confirm the agreement between the City of Euless and Southwestern Bell Telephone Company whereby SWBT Company-_­does hereby agree to pay the City of Euless, four percent (4 %) of the annual gross receipts received, excluding revenues generated from the areas of Coin Non -Sent Paid, Private Line Voice Grade and White Page Advertising, as prescribed in the present telephone service gross receipts ordinance within the cor- porate limits of the City of Euless. This agreement shall become effective November 1, 1987 and remain in force until the expiration date of the present Gross Receipts Ordinance passed by the Sinless, Texas City Council on December 7, 1953. This payment to the City is in lieu of and supersedes the four percent (4 %) payment on receipts from local exchange telephone transmission service provided in said Ordinance. If this does not fairly represent the terms of agreement between SWB and the City of Euless, please let me hear from you before October 20 so that we will have ample time to reprogram our billing ce ures. Sincerely, Gary ry -E� 1 Affairs