Loading...
HomeMy WebLinkAboutORD 1992-078 ORDINANCE NO. 92-75 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS DEFINING TERMS; REQUIRING THE PAYMENT OF COMPENSATION 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 TELECOMMUNICATION SERVICES; PROVIDING THE TERM; PROVIDING CONDITIONS OF SUCH USAGE; FINDING SUCH COMPENSATION TO BE REASONABLE; PROVIDING FOR ACCEPTANCE; PROVIDING FOR INDEMNIFICATION; 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 Texas, Article 10 of the Grapevine City Charter and this Ordinance, Southwestern Bell Telephone Company has the NON-EXCLUSIVE 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 exercise of police power by the CITY as the CITY shall now or hereafter by Charter, Ordinance, or Resolution provide. The TELEPHONE COMPANY may USE such RIGHTS-OF-WAY 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 annexation. .� SECTION 2 - DEFINITIONS Whenever used in this Ordinance, the following words and terms shall have the .�_�,s 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 TELEPHONE COMPANY purpose whatsoever. (c) CITY: The City of Grapevine, Texas. (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, whether 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 exclusive, 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: Southwestern Bell Telephone Company. 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 may be extended for an additional five (5) year term if mutually agreed to by both parties in writing. SECTION 4 - SUPERVISION BY CITY . _ The TELEPHONE COMPANY shall lay, maintain, construct, operate and replace its poles, wires, anchors, cables, manholes, conduits and appurtenances used, in whole 2 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 flow of water in any gutter or drain, and so that the same shall not unduly 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 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 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. 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 TELEPHONE COMPANY may be required to place certain FACILITIES underground according to reasonable requirements that may be adopted from time to time by the CITY; provided, however, TELEPHONE COMPANY shall be given due notice and if requested in writing, the TELEPHONE COMPANY shall be entitled to a hearing before the Grapevine City Council prior to the adoption of any such requirements. The CITY expressly 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 extended and the TELEPHONE COMPANY shall relocate within the RIGHTS-OF-WAY, at its own expense, its poles, wires, cables, anchors, manholes, conduits or other FACILITIES or appurtenances to accommodate such public improvement projects. The CITY also herein reserves the right to require the TELEPHQNE COMPANY to relocate, at the sole expense of the TELEPHONE COMPANY, any FACILITIES erected or maintained pursuant hereto if said relocation is deemed necessary by the governing body or its designated representative for traffic safety utilities owned and/or operated by the CITY 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 req�ire the TELEPHONE COMPANY to remove, alter, change, adapt or conform the underground or aboveground FACILITIES of the TELEPHONE COMPANY, the Company shall make the alterations as soon as practicable when requested in writing by the CITY, without claim for reimbursement or damages against the CITY. If any of the above requirements impose a financial hardship upon the TELEPHONE COMPANY, the TELEPHONE COMPANY shall have the right to present alternative proposals to the CITY, and the CITY shall give due consideration to any such alternative proposals. It is understood and further provided, however, that the CITY in any event shall not require TELEPHONE COMPANY to remove its FACILITIES entirely from any such RIGHT-OF-WAY. 3 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. 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 excavations, and permits therefore. Any and all streets, alleys, highways, public thoroughfares, 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 execute 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 except 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 excavations, 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 necessary or proper by the governing body of the CITY in, across, along, over or under any ,�-.;,� 4 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. If the CITY requires the TELEPHONE COMPANY to adapt or conform its FACILITIES to enable any other entity or person, except the CITY, to use, or to use with greater convenience, RIGHTS-OF-WAY or public property, TELEPHONE COMPANY shall not be required to make any such changes until such other entity or person shall reimburse or make arrangements satisfactory to TELEPHONE COMPANY to reimburse the TELEPHONE COMPANY for any loss and expense caused by or arising out of such change; provided, however, that the CITY shall never be liable for such reimbursement. Provided, however, nothing herein shall relieve any other person or corporation from liability for damages to FACILITIES of the Company. 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 expense 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 be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes. The clearance of 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 existing 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 5 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 extend its existing 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 excess 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 exchange of same to meet requirements. The CITY shall keep Company aware of its needs and shall notify the TELEPHONE COMPANY when it utilizes the TELEPHONE COMPANY'S poles, ducts and conduits. SECTION 10 - 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 contractorls), or any RIGHT-OF-WAY easement or street or alley rental or franchise tax or other character of charge for use and occupancy of the RIGHTS-OF-WAY within the CITY, except the usual general ad valorem taxes, special assessments in accordance with State law or sales taxes now or hereafter levied by the CITY in accordance with State law, or property development or building fees, the CITY hereby imposes a charge upon the gross receipts (as hereinafter defined) of the TELEPHONE COMPANY. The amount of the charge for the first year this Ordinance is in effect shall be 514,400.00. In no event shall such charge be less than the above amount for each year this Ordinance is in effect, except as provided in the case of disannexation as set forth in paragraph 10(e1. The TELEPHONE COMPANY will, according to tariff, bill such charge to the customers billed the customer service charges included within the term "Gross Receipts," as defined herein. Gross Receipts, for purposes of this charge, shall include only . customer service charges which meet all four of the following conditions: (1) such charges are for TELEPHONE COMPANY services provided within the CITY; (2) such charges are billed through the TELEPHONE COMPANY'S Customer Records - - Information System ("CRIS"1; (3) such charges are the recurring charges for the local exchange access rate element specified in the TELEPHONE COMPANY'S tariffs filed 6 with the PUC; and (4) such charges are subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications Commission ("FCC"1. For the second and subsequent years while this Ordinance remains in effect, the above charge is subject to adjustment by application of the growth factor set out in paragraph 10(c). This adjustment for the growth factor will be made effective as of each anniversary date of this Ordinance. The TELEPHONE COMPANY shall adjust its billings to customers to account for any undercollection or overcollection of the charge due the CITY. (b) The charge for each year shall be paid in four (4) equal payments. The dates shall be May 31, August 31, November 31, and February 28, with the first payment under this Ordinance due on the last day of the fourth month following the effective date hereof. In the event of any over or undercollection from customers at the expiration of this Ordinance, the TELEPHONE COMPANY may make a pro rata one-time credit or charge to the customer billing for affected customers who are billed for a service included within gross receipts, as defined in paragraph 10(al. This will be accomplished within 150 days following the date of expiration of this Ordinance. If however, it is impractical to credit any overcollection to customers, then such overcollection shall be paid to the CITY. (c) The growth factor shall, be calculated by dividing the TELEPHONE COMPANY'S revenues within the corporate limits of the CITY subject to state telecommunications sales tax ("Sales Tax Revenues") applicable to services rendered within the corporate limits of the CITY for the twelve (12) month period ending three (3) months prior to the next anniversary date of this Ordinance by the Sales Tax Revenues for the twelve (12) month period ending three (3) months prior to either the initial effective date or the preceding anniversary date of this Ordinance as applicable. The growth factor calculated by the method set forth in the preceding sentence, if greater than one, shall be multiplied by the current year's charge to determine the dollar amount of the charge for the next year. If the growth factor calculated above is one or less, the charge for the next year shall be equal to the current year's charge. The TELEPHONE COMPANY will adjust its customer billing to account for the growth factor calculated above. Once the growth factor calculation is completed, the TELEPHONE COMPANY will provide the CITY with the Sales Tax Revenues upon which the growth factor calculation was based. The CITY agrees to rely upon audits by the Texas Comptroller of Public Accounts of state sales taxes as reported by the TELEPHONE COMPANY which are performed in - compliance with Sections 151 .023 and 151 .027 of the Texas Tax Code Annotated (Vernon's 1982►. The Growth Factor shall be recomputed to reflect any final, nonappealable adjustments made pursuant to an audit finding by the Texas �� Comptroller of an inaccuracy in the TELEPHONE COMPANY'S reports of revenues subject to state sales taxes. The Charge shall be recalculated using the Growth 7 Factor recomputed as specified in the preceding sentence, and the recalculated 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 charge shall be in lieu of the taxes, licenses, charges, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS- OF-WAY easements or franchise taxes aforesaid, then the CITY agrees that it will apply so much of such payments as may be necessary to the satisfaction of the TELEPHONE COMPANY'S obligation, if any to pay any such taxes, licenses, charges, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes. (e) 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 charge shall be adjusted. To accomplish this adjustment, within thirty (30) days following the action effecting a disannexation/annexation as described above, the CITY shall provide the TELEPHONE COMPANY with maps of the affected area(s) showing the new boundaries of the CITY. In the event of an annexation as described above, the charge for the CITY will be adjusted to include the amount of the payment by the TELEPHONE COMPANY to the existing incorporated municipality being annexed. In the event that the annexed municipality had no ordinance imposing a charge will be calculated using the effective date of the imposition of local sales taxes as determined by the Texas Comptroller of Public Accounts. The adjustment shall be the percent increase/decrease in the TELEPHONE COMPANY'S gross receipts as defined herein for the CITY for the first calendar month following the Local Sales Tax effective date compared to the last month prior to such effective date. This adjustment to the charge will be made on the first day of the second month following the Local Sales Tax effective date and the adjusted charge shall be prorated from that date through the remainder of the payment year. The charge as adjusted shall be used for all future calculations required by this Ordinance. 8 SECTION 11 - 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 broached or violated any of i 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 I Company shall be given at least ten (10) days written notice of such meeting and i, 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 I District Court in Dallas County, Texas to determine if such breach or violation has ' occurred and whether such breach or violation is sufficient cause for termination of ' this Ordinance. F. The Company shall not be excused from complying with any of the terms end 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. ' 9 � . SECTION 12 - NOTICE For the purpose of this Ordinance, notice to the CITY will be to: . _ I City Manager ', City of Grapevine P.O. Box 95104 ' Grapevine, Texas 76099 , ,� Notice to the Company will be: District Manager-External Affairs ; 1116 Houston Street, Room 231 Fort Worth, Texas 76102 ' 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 13 - 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 express 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 14 - PUBLIC PURPOSE i All of the regulations provided in this Ordinance are hereby declared to be for a public i purpose and the health, safety and welfare of the general public. Any member of the , 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 j accepting this Ordinance, waives its right to seek all appropriate legal and equitable j - remedies as allowed, by law upon violation of the terms of this Ordinance. I,, II II 10 ; I SECTION 15 - APPLICABLE LAW This Ordinance shall be construed under and in accordance with the laws of the State - - of Texas. SECTION 16 - ADDITIONAL AUTHORITY REO.UIRED The TELEPHONE COMPANY is not authorized to provide cable television service as a cable operator 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 be required by law. SECTION 17 - RELEASE The CITY hereby fully releases, discharges, settles and compromises any and all claims for municipal fees which the CITY has made or could have made arising out of or connected with the TELEPHONE COMPANY'S use and occupancy of the RIGHTS- ' OF-WAY of the CITY for the provision of its telecommunications and other services from the beginning of any such use until the effective date of this release. This full ' and complete release of claims 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 said use and occupancy of the RIGHTS- ' OF-WAY of the CITY. SECTION 18 - 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. ' _ I; SECTION 19 NOT EXCLUSIVE ORDINANCE That nothing herein contained shall be construed as giving to the Company exclusive rights under this Ordinance. SECTION 20 - 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 I - directly or indirectly out of the construction, maintenance or operation of the TELEPHONE COMPANY'S FACILITIES located within the public RIGHTS-OF-WAY ', 11 : found to be caused solely by the negiigence 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. SECTION 21 - FUTURE CONTINGENCY Notwithstanding anything contained in this Ordinance to the contrary, in the event ', that (a) this Ordinance or any part hereof, (b) any tariff provision by which the � TELEPHONE COMPANY seeks to collect the Charge imposed by this Ordinance, (c) , any procedure provided in this Ordinance, or (d) any compensation due the CITY under this Ordinance, becomes, or is declared or determined by a judicial, administrative or ' legislative authority exercising its jurisdiction to be excessive, unrecoverable, ! unenforceable, void, unlawful or otherwise inapplicable, in whole or in part, the TELEPHONE COMPANY and CITY shall meet and negotiate a new ordinance that is ' in compliance with the authority's decision or enactment and, unless explicitly prohibited, the new ordinance shall provide the CITY with a level of compensation ' comparable to that set forth in this Ordinance provided that such compensation is ' recoverable by the TELEPHONE COMPANY in a mutually agreed manner permitted by ', law for the unexpired portion of the term of this Ordinance. ', SECTION 22 - ORDINANCE PASSED AT PUBLIC MEETING ' `""" It is hereby officially found and de'termined 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 - FUTURE AMENDMENTS ' This Ordinance governing street use may be amended at any time by the mutual ; agreement of the CITY and the TELEPHONE COMPANY. It is understood that the ; TELEPHONE COMPANY is currently in the process of negotiating similar ordinances with other cities throughout the state. It is understood and agreed that if an '� ordinance governing street use with another city in this state contains a provision I, which the CITY feels would be more advantageous to it than the terms hereof, the ', CITY may require that that portion of this Ordinance be reopened for negotiation. The �' intent of the parties is that the CITY will be entitled only to treatment comparable to ! that which was afforded under the ordinance with the other city giving due ; consideration to the contextual meaning of the provision on which renegotiation is I sought and the effect of the proposed amendment on the meaning of the ordinance � � as whole. Under no circumstance may an amendment result in a higher level of ! compensation than that level produced by those methodologies utilized by the TELEPHONE COMPANY to calculate compensation to other cities in Texas nor may °_ � an amendment be applied retroactively. I�I 12 �I I SECTION 24 - 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 after such acceptance is filed, this Ordinance shall take effect and be in force from and after February 1, 1993. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on first reading on this 3rd day of November , 1992. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on second and final reading on this �5th day of December , 1992. APPROVED: William D. Tate ��;,.. Mayor ��;� ATTEST: Lin a Huff City Secretary APPROVED AS TO FORM: , -� r' � John F. Boyle, Jr. ,` . City Attorney 13 ACCEPTED: �,.�. �k�. SOUT WEST N BELL TELEPHONE COMPANY TITLE: President _ DATE OF ACCEPTANCE: 4-5-93 � �� d 14 ACCEPTANCE �,,.�� WHEREAS, the City of GRAPEVINE, Texas, did on the 15th day of December, 1992, enact Ordinance Number 92-78 entitled: �� AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS DEFINING TERMS; REQUIRING THE PAYMENT OF COMPENSATION 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 TELECOMMUNICATION SERVICES; PROVIDING THE TERM; PROVIDING CONDITIONS OF SUCH USAGE; FINDING SUCH COMPENSATION TO BE REASONABLE; PROVIDING FOR ACCEPTANCE; PROVIDING FOR INDEMNIFICATION; 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 and WHEREAS, said Ordinance was on the 15th day of December, 1992, duly approved by the Mayor of said City and, the Seal of said City was thereto affixed and attested by the City Secretary: Now, THEREFORE, in compliance with the terms of said Ordinance as enacted, approved and attested, the Southwestern Bell Telephone Company of Texas hereby accepts said Ordinance, and files this its written acceptance � - with the City Secretary of GRAPEVINE, Texas. Pursuant to the terms of said Ordinance and this Acceptance, said Ordinance shall become effective on � F'ebruary O1, 1993. � Dated this 5 day of Anril , 19y�. SOUTHWESTERN BELL TELEPHONE COMPANY OF TEXAS President Acceptance filed in the office of the City Secretary of GRAPEVINE, Texas this � day of _ _, 19 yj• Ci Secretary �:.;�, ��