HomeMy WebLinkAboutORD 1992-034 ORDINANCE NO. 92-34
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF GRAPEVINE, TEXAS DEFINING TERMS;
REQUIRING THE PAYMENT OF STREET RENTAL
CHARGES FOR THE USE OF THE STREETS, ALLEYS,
HIGHWAYS, PUBLIC THOROUGHFARES, PUBLIC
UTILITY EASEMENTS AND PUBLIC WAYS OF THE
CITY OF GRAPEVINE, TEXAS, BY TELEPHONE
COMPANIES TO PROVIDE TELECOMMiJNICATION
SERVICES; PROVIDING THE TERM; PROVIDING
CONDITIONS OF SUCH USAGE; FINDING SUCH
STREET RENTAL CHARGES TO BE REASONABLE;
PROVIDING FOR AUDIT AND INFORMATION;
PROVIDING FOR ACCEPTANCE; PROVIDING FOR
SEVERABILITY; PROVIDING FOR INDENINIFICATION;
REPEALING ALL ORDINANCES OR PARTS OF
ORDINANCES IN CONFLICT HEREWITH; FINDING AND
DETERMINING THAT THE MEETING AT WHICH THIS
ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS
REQUIRED BY LAW; AND PROVIDING AN EFFECTIVE
DATE
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF GRAPEVINE, TEXAS:
SECTION 1. PURPOSE
Pursuant to the laws of the State of Tezas, Article 10 of
the Grapevine City Charter and this Ordinance, GTE Southwest
` Incorporated has the non-ezclusive right and privilege to use
the public rights of way in the City of Grapevine for the
operation of a telecommunication system subject to the
restrictions set forth herein and to the lawful egercise of
Police power by the City as the City shall now or hereafter by
Charter, Ordinance, Resolution or franchise provide. The
telephone company may use such rights of way only for such
facilities for its telecommunication system. 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 telecommunication services in newly annexed
areas upon the effective date of any annezation.
SECTION 2 . 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, which are located within the City of Grapevine
rights of way.
(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 Grapevine, Tezas.
(d) RIGHTS OF WAY: All present and future streets,
avenues, highways, alleys, bridges and easements
dedicated for public use 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,
whet�er analog, digital or of other characteristics,
and whether for voice, data or other purposes, which
are located within the City of Grapevine rights of
way.
(g) NON-EXCLUSIVE: No rights provided for in this
Ordinance by the City shall be ezclusive, and the
City reserves the right to grant franchises,
licenses, easements or permissions to use the public
rights-of-ways 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: GTE Southwest Incorporated.
(i) GROSS REVENUES: All revenue whatsoever derived
within the corporate limits of the City from
Transmission Media that directly employ company
facilities located in City' s public right-of-way as
further described in each revenue code contained in
Eghibit "A" attached hereto and made a part hereof .
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SECTION 3 . TERM
� This Ordinance shall be in full force and effect for the
period beginning with the effective date hereof and ending five
(5) years after such date. This Ordinance shall be eztended
for an additional five (5) year term if mutually acceptable to
both parties . Provided that, if requested by either City or
Telephone Company, then not more often than once annually
during hereof, the parties will negotiate in good faith (i) to
review the franchise fee base to determine an appropriate
definition of Gross Revenue and/or (ii) regarding any request
by the City for implementation of additional detailed reporting
requirements by the Telephone Company. Any such amendment
shall be effective at the beginning of the calendar quarter
following the effective date of such amendment or such other
date that the parties may agree.
SECTION 4 . SUPERVISION BY CITY
The Company shall lay, maintain, construct, operate and
replace its poles, wires, anchors, cables, manholes, conduits
and appurtenances used, in whole or part, to provide
Telecommunication Services so as to interfere as little as
possible with traffic and shall promptly clean-up, and restore
in compliance with the applicable provisions of the Code of
Ordinances, at its costs, all thoroughfares and other surfaces
which it may disturb. All poles, stubs, guys, anchors and
other facilities shall be set so that they shall not interfere
with the f low of water in any gutter or drain, and so that the
same shall not interfere with ordinary travel on the streets,
alleys, highways, public thoroughfares, public utility
easements and public ways, and so that they shall not
compromise public safety. The City herein reserves the right
to require the Company to install or relocate aboveground
facilities as far from vehicular travel lanes as reasonably
possible for traffic safety purposes. The City also herein
reserves the right to require the Company, at the Company' s own
eapense, to install underground all new facilities egcept to
which aboveground access is necessary for normal maintenance
and connections, without claim for reimbursement or damages
against the City. The Company shall further, at the request of
third parties communicated through the City, relocate ezisting
facilities underground. The cost of such third-party requested
relocation shall be paid by the requesting third party. The
Company' s obligations to effect such third-party relocation is
subject to (a) the City filing a written request for such
relocation not less than one hundred eighty (180) days prior to
such requested relocation and (b) payment, in advance, to the
Company, by the requesting party, for the cost of such
relocation. The location and route of all poles, stubs, guys,
anchors, conduits and cables to be placed and constructed by
the Company in the City, and the location of all conduits to be
laid by the Company within the limits of the City shall be
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subject to the reasonable and proper regulation, control and
direction of the governing body or of any City official to whom
such duties have been or may be delegated.
SECTION 5. STREETS TO BE RESTORED TO GOOD CONDITION
The Company shall comply with all reasonable rules and
regulations of the City relative to street ezcavations, and
permits therefore. Any and all streets, alleys, highways,
public thoroughf ares, public utility easements, public ways
and, without limitation by the foregoing enumerations, other
public property disturbed by the Company in building,
constructing, renewing or maintaining its facilities shall be
restored within a reasonable time after the completion of the
work in compliance with the applicable provisions of the Code
of Ordinances. The 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 Company for a period of not less than that stated in the
Code of Ordinances from the date of completion of said repairs,
after which time responsibility for the maintenance shall
become the duty of the City. No street, alley, highway, public
thoroughfare, public utility easement or public way shall be
encumbered for a longer period than shall be necessary to
egecute the work. The Company shall submit, in a format
prescribed by City, information describing the nature, location
and estimated duration of any activity which will result in the
disturbance of any street, highway, alley, public thoroughfare,
public utility easement or public way. This information shall
be submitted prior to the activity ezcept in the case of
emergencies, in which case the information shall be submitted
as soon as practical . This information requirement shall not
apply to the Company' s installation of service wires . When the
Company shall make or cause to be made ezcavations, or shall
place obstructions in any street, alley, highway, public
thoroughfare, public utility easement or public way, the public
shall be protected by barriers and lights placed in accordance
with the latest edition of the Manual of Uniform Traffic
Control Devices, erected and maintained by the Company. The
Company shall repair, clean-up and restore in compliance with
the applicable provisions of the Code of Ordinances all
streets, alleys, highways, public thoroughfares, public utility
easements or public way disturbed during construction and
repair of its facilities.
SECTION 6 . ACCOMMODATION OF OTHER UTILITIES
The City reserves the right to lay, and permit to be
laid, sewer, gas, water, electric and other pipelines or cables
or conduits, and to do and permit to be done any underground
and overhead installation or improvement that may be deemed
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necessary or proper by the governing body of the City in,
across, along, over or under any street, alley, highway, public
thoroughfare, public utility easement or public way occupied by
the Company, and to change any curb or sidewalk or the grade of
any street.
In permitting such work to be done, the City shall not be
liable to the Company for any damage so caused, nor shall the
City be liable to the Company for any damages arising out of
the performance by the City or its contractors or
subcontractors, not intentionally or willfully and
unnecessarily occasioned; provided, however, nothing herein
shall relieve any other person or corporation from liability
for damages to facilities of the Company. The City egpressly
reserves the right to change the grade, install, relocate or
widen the public streets, sidewalks, bikeways, alleys, public
thoroughfares, highways and public ways within the present
limits of the City and within said limits as same may from time
to time be eztended, and the Company shall relocate, at its own
e�pense, its poles, wires, cables, anchors, manholes, conduits
or other Facilities or appurtenances to a sufficient distance
from the edge of the pavement to permit a reasonable work area
for machinery and individuals engaged in installing,
relocating, widening or changing the grade of any public
street, sidewalk, bikeway, alley, public thoroughfare, highway
or public way. The City also herein reserves the right to
require the Company to relocate, at the sole ezpense of the
Company, any facilities erected or maintained pursuant to the
Privilege granted herein, if said relocation is deemed
_ necessary by the governing body or it ' s designated
representative for traffic safety utilities owned and/or
operated by the City or the public service, including traffic
signals, flashing lights, signs or any other traffic control
device or measuring installation. Whenever by reason of
changes in the grade of a thoroughfare or in the location or
manner of constructing a water pipe, sewer or other aboveground
or underground structure, it is deemed necessary by the City to
remove, alter, change, adaPt or conform the underground or
aboveground facilities of the Company, the Company shall make
the alterations as soon as practicable when ordered in writing
by the City, without claim for reimbursement or damages against
the City.
SECTION 7. TEMPORARY REMOVAL OF WIRES
The Company, on request of any person, shall promptly
remove or raise or lower its wires temporarily to permit the
moving of houses or other bulky structures . The reasonable
egpense of such temporary removal, raising or lowering of wires
shall be paid by the benefitted party or parties and the
Company may require such payment in advance. The Company shall
�r ,, be
given not less than forty-eight (48) hours advance notice to
arrange for such temporary wire changes . The clearance of
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wires aboveground or rails within the City and also underground
work shall conform to the basic standards of the National
Electrical Safety Code, National Bureau of Standards, United
States Department of Commerce, as promulgated at the time of
erection thereof.
SECTION 8 . TREE TRIMMING
The right, license, privilege and permission is hereby
granted to the 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 Company, and when so ordered by the City, said trimming
shall be done under the supervision and direction of the
governing body or of any City official to whom said duties have
been or may be delegated.
SECTION 9 . USE OF POLES AND CONDUITS BY CITY
The Company shall permit the City to use without charge,
for 'its police, fire alarm and traffic control wires
exclusively one duct, if available, in all of Company' s
ezisting conduits within the City limits with sufficient space
in all manholes for necessary joints and provide adequate
space, if available, on all poles now standing within the City
limits . Also, Company shall provide adequate space on all
poles hereafter erected on all streets and alleys within the
City limits for the City of Grapevine to attach wires for its
police, fire alarm and traffic control signals .
If the Company shall hereafter eztend its ezisting
underground conduits, it shall provide one duct in each
additional conduit for the City' s police, fire alarm and
traffic control signal wires, as hereinbefore provided. The
City shall not use any duct space or poles, which are, or may
be, provided for its use by the Company, for power transmission
purposes, nor use any circuits in such conduits or upon such
poles to carry voltage in ezcess of one hundred and thirty
(130) volts for signal purposes, nor otherwise use any such
circuits so as to interfere with telephone communications or
with the wires or equipment on such poles or in such conduits;
provided, that Company shall not use high potential wires for
power transmission in its duct space or on its poles, nor
otherwise use the same, so as to interfere with the operation
of the City' s police, fire alarm or signal wires . Company and
City shall cooperate and coordinate their efforts to make the
most efficient and economical use of poles, conduits and
ducts . To this end, the parties will make periodic assessments
of their needs, including but not limited to use of poles,
conduits and ducts and ezchange of same to meet requirements .
�= The City shall keep Company aware of its needs and shall notify
grantee when it utilizes poles, ducts and conduits .
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SECTION 10. STREET RENTAL FEES
A. In consideration for the rights and privileges
herein granted, the Company' s usage of public rights-of-way,
the temporary interference with the use of public
: rights-of-way, the administration of this Ordinance by the
City, and other costs and obligations undertaken by the City
herern, the Company hereby agrees to pay the City during the
term of this Ordinance a sum of money equal to three percent
(3%) of annual Gross Revenue as that term is defined herein.
B. Such fee payment shall be made in four (4)
calendar quarterly payments . Each payment shall be due and
payable on or before the last day of the calendar month
following the close of the calendar quarter for which the
payment is calculated.
C. The City shall have the right to review or audit
the Company' s books and records regarding amounts paid under
this Ordinance. The City shall give written notice to the
Company of any additional amount claimed to be due to the City
as a result of the � City' s review or audit. Such notice shall
be given no later than forty-eight (48) months following the
close of the calendar year covered by such statement(s) . The
additional amount due to the City, if any, shall be paid within
thirty (30) days following determination by the parties that
such amount is due and payable.
SECTION 11. PAYMENT OF STREET RENTAL FEE TO BE
IN LIEU OF ANY OTHER PAYMENTS FOR USE OF CITY
RIGHT-OF-WAY EXCEPT USUAL GENERAL
OR SPECIAL AD VALOREM TAXES
The City agrees that the consideration set forth in the
preceding section for use and occupancy of the streets, alleys
and public places of the City shall be paid and received in
lieu of any taz (other than ad valorem taz or applicable sales
tazes) , license, charge, fee, street or alley rental or any
other character of charge, therefor; in lieu of any pole or
conduit tag; in lieu of any easement or franchise ta$, whether
levied as an ad valorem, special or other character of taz; and
in lieu of any imposition other than the usual general or
special ad valorem tages now or hereafter levied. This Section
shall not be construed so as to relieve the Company from any
property development fees or building fees, should same become
due.
SECTION 12 . DIRECTORIES
Telephone Directories published after the effective date
of this Ordinance shall contain the telephone numbers of all
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listed telephone subscribers within the corporate limits of the
City, regardless of the company providing telephone service.
SECTION 13 . REMEDY FOR FAILURE TO COMPLY
Notwithstanding any other provision herein, this
Ordinance may be terminated by the City for failure of the
Company to comply with any terms, conditions or provisions of
this Ordinance in accordance with the following procedures :
A. If the City believes that the Company has breached
or violated any of the material provisions of this Ordinance,
it shall notify the Company in writing of the applicable
provision(s) of this Ordinance, of the circumstances alleged to
constitute the breach or violation thereof, the action
requested of the Company to correct such alleged breach or
violation, and the time within which any such action shall be
taken. The Company shall respond in writing within thirty (30)
days of receipt of such written notice notifying the City of
the measures, if any, it is taking to remedy the complaint and
the time which such measures are anticipated to be completed, .
or with a written statement of the reasons the Company feels
that no breach or violation has occurred.
B. If the City continues to believe that such breach
or violation has occurred or is dissatisfied with the response
or remedies proposed by the Company, it shall call a public
meeting of the City Council to consider such issues . The
Company shall be given at least ten (10) days written notice of
such meeting and issues which the City Council is to consider .
C. The City Council shall consider the issues and
hear any person interested in the matter, and the City Council
shall determine in its discretion whether or not any violation
by the Company has occurred.
D. If the City Council shall determine the violation
by the Company was the fault of the Company and within its
control, the Council may order compliance within such
reasonable period as the Council may determine, but no less
than thirty (30) days .
E. If the Company fails to remedy the situation
believed by the City Council to be a material breach or
violation of this Ordinance, or if the Company fails to
acknowledge that a breach or violation has occurred, within the
time periods determined in the section, then either party may
seek a declaratory judgment in a District Court in Tarrant
County, Tezas to determine if such breach or violation has
occurred and whether such breach or violation is sufficient
cause for termination of this Ordinance.
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F. The Company shall not be ezcused from complying
with any of the terms and conditions of this Ordinance on any
failure of the City upon any one or more occasions to insist
upon or to seek compliance with any such terms or conditions .
. SECTION 14 . NOTICE
For the purpose of this Ordinance, notice to the City
will be to:
City Manager
City of Grapevine
P. O . Boz 95104
Grapevine, Tezas 76051
Notice to the Company will be:
District Manager
GTE Southwest
706 East Northwest Highway
GraPevine, Tegas 76051
With a copy to:
Area Manager/Municipal Affairs
GTE
Attention: Regulatory TXD 1933E
500 E. Carpenter Freeway
Irving, Tezas 75015-2013
Notice will be effective upon delivery at the above
addresses until the City or Company notifies the other, in
writing, of a change in the address .
SECTION 15. ASSIGNMENT OF ORDINANCE
(a) The Telephone Company shall be a legal entity with
legal capacity to operate and maintain a local
telecommunication system in the City of Grapevine.
(b) This Ordinance and any rights or privileges hereunder
shall not be assignable to any other party without the e�press
consent of the Grapevine City Council, such consent to be given
by an ordinance of the City Council, which ordinance shall
fully contain the terms and conditions, if any, upon which such
consent is given further provided that such consent by the City
Council will not be unreasonably withheld.
SECTION 16 . PUBLIC PURPOSE
All of the regulations provided in this Ordinance are
� �' hereby declared to be for a public purpose and the health,
safety and welfare of the general public. Any member of the
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governing body or City official or employee charged with the
enforcement of this Ordinance, acting for the City in the
discharge of his duties, shall not thereby render himself
personally liable; and he is hereby relieved from all personal
liability for any damage that might accrue to persons or
property as a result of any act required or permitted in the
discharge of his said duties. Neither the City nor the
Company, by accepting this Ordinance, waives its right to seek
all appropriate legal and equitable remedies as allowed by law
upon violation of the terms of this Ordinance.
SECTION 17. APPLICABLE LAW
This Ordinance shall be construed under and in accordance
with the laws of the State of Tezas.
SECTION 18. SEVERABILITY PROVISION
If any provision, section, subsection, sentence, clause
or phrase of this Ordinance is for any reason held to be
unconstitutional, void or invalid (or for any reason
unenforceable) , the validity of the remaining portions of this
Ordinance shall not be affected thereby, it being the intent of
the City in adopting this Ordinance that no portion hereof or
provision hereof shall be inoperative or failed by reason of
any unconstitutionality or invalidity of any other portion,
provision or regulation, and to this end, all provisions of
this Ordinance are declared to be severable.
SECTION 19 . REPEAL OF CONFLICTING PROVISIONS
All other ordinances and agreements and parts of
ordinances and agreements in conflict with the provisions of
this Ordinance are hereby repealed.
SECTION 20 . NOT EXCLUSIVE ORDINANCE
That nothing herein contained shall be construed as
giving to the Company ezclusive rights under this ordinance.
SECTION 21. INDEMNITY
The Telephone Company, as a condition of the grant of the
rights and privileges hereunder, and in consideration thereof,
shall indemnify and hold the City harmless against all claims
for damages to persons or property by reasons of the
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construction, maintenance and operation of its facilities, and
�,,,�, conduct of its business, or in any way growing out of the
granting of this Ordinance, directly, or indirectly, including
any court costs, ezpenses and defense thereof, when such injury
shall have been caused by the negligent act or omission, or
`�� misconduct, of the Telephone Company or any of its officers,
agents or employees, or by any person for whose negligent act
or omission or misconduct the Telephone Company is by law
responsible. This indemnity shall only apply to the eztent
that the loss, damage or injury results from the negligence or
wrongful act or omission of the Telephone Company, its
officers, agents or employees, and does not apply to the egtent
such loss, damage or injury is attributable to the negligence
or wrongful act or omission of the City, or the City' s agents,
representatives or employees or any other person or entity.
This provision is not intended to create liability for the
benefit of third parties but is solely for the benefit of the
Telephone Company and the City.
SECTION 22 . ORDINANCE PASSED AT PUBLIC MEETING
It is hereby officially found and determined that the
meeting at which this Ordinance is passed is open to the public
as required by law and that public notice of the time, place
and purpose of said meeting was given as required.
,�..� SECTION 23 . ACCEPTANCE OF AGREEMENT
That the Company shall have thirty (30) 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 acceptance, and
shall effectuate and make binding this Ordinance as provided by
its terms .
PASSED AND APPROVED ON FIRST READING BY THE CITY COUNCIL
OF THE CITY OF GRAPEVINE, TEXAS on this 7th day
of July_. , 1992 .
PASSED AND APPROVED ON SECOND AND FINAL READING BY THE
CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this 18th
day of Auc�ust , 1992.
APPROVED:
Mayor
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ATTEST:
�
�' C y ecretar ,
City of Grapevine, Tezas
[SEAL]
APPROVED AS TO FORM:
City AL-torney,
City of Grapevine, Tezas
ACCEPTED:
- j 'jrT. ..I _ .'_ _. ,� , '„. .3
�� GTE 'SOUTHWEST INCORPOR.ATED-�' �
� NAME: James A. Spri ggs
TITLE: Regional Vice President-General Manager
South Central Region
DATE OF ACCEPTANCE: AuguSt 31, 1992
ATTEST:
�''t� �
ASSISTANT SECRETARY
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EXHIBIT "A" TO
ORDINANCE NO. 92-34
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ATTACHMENT "A"
ACCOUNT TITLE ACCOUNT
Basic Area Revenue 5001
Optional Extended Area Revenue 5002
Cellular Mobile Revenue 5003
Other Mobile Services Revenue 5004
Local Private Line Revenue 5040
Other Local Exchange Revenue 5060
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