Ord. 0637 09-28-92EXH BIT
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ORDINANCE NO. 637
AN ORDINANCE WHEREBY THE CITY OF PEARLAND, 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, CON-
DUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN,
ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL
PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS,
BRIDGES OR PUBLIC PROPERTY IN SAID CITY; PRESCRIBING
THE ANNUAL COMPENSATION DUE THE CITY UNDER THIS ORDI-
NANCE; PRESCRIBING THE CONDITIONS GOVERNING THE USE OF
PUBLIC RIGHTS -OF -WAY AND THE PERFORMANCE OF CERTAIN
CONSTRUCTION WORK ON PUBLIC RIGHTS -OF -WAY FOR THE
TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS; PRO-
VIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERNING LAWS;
PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR
ORDINANCES; PROVIDING FOR FUTURE CONTINGENCIES; PROVID-
ING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY THE
TELEPHONE COMPANY; AND PROVIDING FOR A TERM AND AN
EFFECTIVE DATE.
WHEREAS, Southwestern Bell Telephone Company (hereinafter
referred to as the "TELEPHONE COMPANY") is now and has been
engaged in the telecommunications business in the State of Texas
and in furtherance thereof, has erected and maintained certain
items of its physical plant in the City of Pearland, Texas
(hereinafter referred to as the "CITY") for many years pursuant
to such rights as have been granted it by and under the laws of
the State of Texas, and subject to the reasonable exercise of the
police powers granted by and under said laws to the CITY; and
WHEREAS, the TELEPHONE COMPANY has operated its telecommuni-
cations business in the CITY under successive ordinances of the
CITY, the last of which was Ordinance Number 242, adopted Decem-
Ler.4, 1972, which provided compensation to the CITY for the
superintendence of that agreement based upon a percentage of
gross receipts received by the TELEPHONE COMPANY from certain
local services rendered within the corporate limits of the CITY;
and
WHEREAS, it is recognized by the parties that changes in the
telecommunications industry, changes in technology, changes in
state and federal law, and changes in the accounting practices
mandated by the Uniform System of Accounts promulgated by the
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Federal Communications Commission ("FCC"), along with regulatory
requirements of the Texas Public Utility Commission ("PUC"), have
caused the traditional method of determining the amount of com-
pensation to municipalities to become administratively impracti-
cal for telecommunications utilities. In order to resolve these
issues in a manner satisfactory to both the CITY and the TELE-
PHONE COMPANY, the CITY and the TELEPHONE COMPANY have chosen the
method of determining the amount of compensation provided for in
this Ordinance to eliminate the expense and time related to
audits, to achieve administrative simplicity, to provide the CITY
with predictable revenues and an opportunity for growth and to
avoid the expense and delays of litigation which could be neces-
, sary to resolve any issues in controversy between the parties;
and
WHEREAS, it is to the mutual advantage of both the CITY and
the TELEPHONE COMPANY that an agreement should be entered into
between the TELEPHONE COMPANY and the CITY establishing the
conditions under which the TELEPHONE COMPANY shall maintain and
construct its physical plant in the CITY in the future;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF PEARLAND, TEXAS, THAT:
SECTION 1 - PURPOSE
Pursuant to the laws of the State of Texas, the CITY Charter and
this Ordinance, the TELEPHONE COMPANY has the NON-EXCLUSIVE right
and privilege to USE the public RIGHTS -OF -WAY in the CITY for the
operation of a telecommunications system subject to the restric-
tions set forth herein. The TELEPHONE COMPANY may USE such
RIGHTS -OF -WAY for its telecommunications FACILITIES. The TELE-
PHONE COMPANY'S FACILITIES and TRANSMISSION MEDIA used in or
incident to the provision of telecommunications service and to
the maintenance of a telecommunications business by the TELEPHONE
COMPANY in the CITY shall remain as now constructed, subject to
such changes as under the conditions prescribed in this Ordinance
may be considered necessary to the public health and safety by
the CITY in the exercise of its lawful police powers and such
changes and extensions as may be considered necessary by the
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TELEPHONE COMPANY in the pursuit of its tele‘..Jmmunications busi-
r.ass. 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 provisions of telecommunications services
in newly annexed areas upon the effective date of any annexation.
SECTION 2 - ADDITIONAL AUTHORITY REQUIRED
The TELEPHONE COMPANY is not authorized to provide cable televi-
sion 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 3 - DEFINITIONS
Whenever used in this Ordinance, the following words and terms
shall have the definitions and meanings provided in this Section:
(a) FACILITIES: all TELEPHONE COMPANY duct spaces, manholes,
poles, conduits, underground and overhead passageways, and
other equipment, structures and appurtenances and all asso-
ciated TRANSMISSION MEDIA.
(b) USE: any TELEPHONE COMPANY acquisition, construction, recon-
struction, 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 Pearland, Texas
(d) RIGHTS -OF -WAY: all present and future streets, avenues,
highways, alleys, bridges and public property 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 communications signals, whether analog, digital or
of other characteristics, and whether for voice, data or
other purposes.
(g) NON-EXCLUSIVE: no rights agreed to in this Ordinance by the
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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 4 - TERM
This Ordinance shall continue for a period of five (5) years from
the effective date hereof; provided that at the expiration of the
initial period, such term may be extended by mutual written
agreement of the CITY and TELEPHONE COMPANY.
SECTION 5 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS
All poles placed shall be of sound material and reasonably
straight, and shall be set so that they will not interfere with
the flow of water in any gutter or drain, and so that the same
will not unduly interfere with ordinary travel on the streets or
sidewalks. The location and route of all poles, stubs, guys,
anchors, conduits, fiber and cables placed and constructed by
the TELEPHONE COMPANY in the construction and maintenance of its
telecommunications system in the CITY shall be subject to the
lawful, reasonable and proper control and DIRECTION OF THE CITY.
SECTION 6 - ATTACHMENTS TO POLES AND SPACE IN DUCTS
Nothing contained in this Ordinance shall be construed to require
or permit any pole attachments for electric light or power wires
cr communications facilities or systems not provided by the
TELEPHONE COMPANY to be attached to the TELEPHONE COMPANY'S poles
or other physical plant or placed in the TELEPHONE COMPANY'S
conduit. If the CITY desires pole attachments for electric light
or power wires or communications facilities or systems not pro-
vided by the TELEPHONE COMPANY, or if the CITY desires to place
communications facilities or systems not provided by the TELE-
PHONE COMPANY in any TELEPHONE COMPANY duct, then a further
separate, noncontingent agreement shall be prerequisite to such
attachment(s) or such use of any duct by the CITY. Nothing
contained in this Ordinance shall obligate or restrict the TELE-
PHONE COMPANY in exercising its rights voluntarily to enter into
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pole attachment, pule usage, joint ownership _r other wire space
or facilities agreements with light and/or power companies or
with other wire -using companies which are authorized to operate
within the CITY.
SECTION 7 - STREETS TO BE RESTORED TO PRE-EXISTING CONDITION
The surface of any public street, avenue, highway, alley or
public place disturbed by the TELEPHONE COMPANY in the construc-
tion or maintenance of its telecommunications system shall be
restored within a reasonable time after the completion of the
work to as good a condition as before the commencement of the
work. Should the CITY reasonably determine, within one year from
the date of such restoration, that such surface requires addi-
tional restoration work to place it in as good a condition as
before the commencement of the work, the TELEPHONE COMPANY shall
perform such additional restoration work to the reasonable satis-
faction of the CITY. No public street, avenue, highway, alley or
public place shall be encumbered for a longer period than shall
be reasonably necessary to execute all work.
SECTION 8 - TEMPORARY REARRANGEMENT OF AERIAL WIRES
Upon request, the TELEPHONE COMPANY shall remove or raise or
lower its aerial wires, fiber or cables temporarily to permit the
moving of houses or other bulky structures. The expense of such
temporary rearrangements shall be paid by the party or parties
requesting them, and the TELEPHONE COMPANY may require payment in
advance. The TELEPHONE COMPANY shall be given not less than
.forty-eight (48) hours advance notice to arrange for such tempo-
rary rearrangements.
SECTION 9 - TREE TRIMMING
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.
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SECTION 10 - INDEMNITY
The TELEPHONE COMPANY shall indemnify and hold the CITY harmless
from all costs, expenses (including attorney's fees) and damages
to persons or property arising directly or indirectly out of the
construction, maintenance or operation of the TELEPHONE COMPANY'S
FACILITIES located within the public RIGHTS -OF -WAY found to be
caused in whole or in part 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.
SECTION 11 - ADMINISTRATION OF ORDINANCE
(a) The CITY may, at any time, make inquiries pertaining to this
Ordinance and the TELEPHONE COMPANY shall respond to such
inquiries on a timely basis by providing information which
is prepared, maintained and available in the ordinary course
of business.
(b) Copies of specifically identified petitions, applications,
communications and reports submitted by the TELEPHONE
COMPANY to the Federal Communications Commission or the
Public Utility Commission of Texas shall be provided to the
CITY upon request.
(c) The CITY may establish, after reasonable notice, such rules
and regulations as may be appropriate for the administration
of this Ordinance and the construction of the TELEPHONE
COMPANY'S FACILITIES on CITY property to the extent permit-
ted by law.
SECTION 12 - COMPENSATION TO THE CITY
(a) As compensation for the use, occupancy, oversight, supervi-
sion and regulation of the CITY'S RIGHTS -OF -WAY, and in lieu
of and in full compensation for any lawful tax or license or
charge or RIGHT-OF-WAY permit fee or inspection fee, whether
charged to the TELEPHONE COMPANY or its contractor(s), or
any RIGHT-OF-WAY easement or street or alley rental or
franchise tax or other character of charge for use and
occupancy of the RIGHTS -OF -WAY within the CITY, except the
usual general ad valorem taxes, special assessments in
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accordance wAch State law or sales tax , now or hereafter
levied by the CITY in accordance with State law, the CITY
hereby imposes a Charge upon the Gross Receipts (as herein-
after defined) of the TELEPHONE COMPANY. The amount of the
Charge for the first year this Ordinance is in effect shall
be $112,000.00. For the second year the Charge shall be
$112,000.00 increased by the Growth Factor as set forth in
paragraph 12(c), if applicable. For the third and subse-
quent years while this Ordinance remains in effect, the
above Charge is subject to adjustment by application of the
Growth Factor set out in paragraph 12(c). This adjustment
for the Growth Factor will be made effective as of each
anniversary date of this Ordinance. In no event shall the
Charge for subsequent years that this Ordinance is in effect
be less than the above amount stated for the second year of
this Ordinance, except as provided in the case of disannexa-
tion as set forth in paragraph 12(e), or as provided in
Section 16 herein.
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 here-
in. 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"); (3) such charges are the recurring charges for
the local exchange access rate element specified in the
TELEPHONE COMPANY'S tariffs filed with the PUC; and (4)
such charges are subject to an interstate and user
common line ("EUCL") charge as imposed by the Federal
Communications Commission ("FCC").
The TELEPHONE COMPANY shall adjust its billings to
customers to account for any undercollection or overcol-
lection of the Charge due the CITY.
(b) The Charge for each year shall be paid in four (4) equal
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payments. The dates shall be February 28, May 31, August
31 and November 30, with the first payment under this
Ordinance due on the last day of the fifth 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 12(a). This will be
accomplished within 150 days following the date of expira-
tion of this Ordinance. If however, it is impractical to
credit any overcollection to customers, then such overcol-
lection shall be paid to the CITY.
(c) The Growth Factor shall be calculated by dividing the TELE-
PHONE COMPANY'S revenues within the corporate limits of the
CITY subject to state sales taxes ("Sales Tax Revenues") for
the twelve month period ending three (3) months prior to the
next anniversary date of this Ordinance by the Sales Tax
Revenues for the twelve 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 ac-
count for the Growth Factor calculated above.
Once the Growth Factor calculation is completed, the TELE-
PHONE 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
TELEPHONE COMPANY which are performed in compliance with
Sections 151.023 and 151.027 of the Texas Tax Code Annotat-
8
ed. The Growch Factor shall be recomp .ed 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 Factor recomputed as specified in the preceding
sentence, and the recalculated Charge shall be used for all
future calculations required by this Ordinance. Any over-
payment 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 in-
spection 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 satisfac-
tion 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 fran-
chise 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
9
adjusted. To accomplish this adjustment, within thirty days
following the action effecting a disannexation/annexation as
described above, the CITY shall provide the TELEPHONE COMPA-
NY with maps of the affected area(s) showing the new bound-
aries 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
or in the event of a disannexation, then the adjustment to
the 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 re-
quired by this Ordinance.
SECTION 13 - ASSIGNMENT OF ORDINANCE
This Ordinance and any rights or privileges hereunder shall not
be assignable to any other entity without the express consent of
the CITY. Such consent shall be evidenced by an ordinance which
shall fully recite the terms and conditions, if any, upon which
such consent is given.
SECTION 14 - MUTUAL RELEASE
The CITY hereby fully releases, discharges, settles and compro-
mises any and all claims which the CITY has made or could have
made arising out of or connected with Ordinance No. 242, adopted
December 4, 1972, and renewed or extended from time to time
thereafter, and its predecessor ordinance, if any, (hereinafter
10
after referred to collectively as "Ordinanc. 242"). This full
and complete release of claims for any matters under Ordinance
242 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 con-
nected with the TELEPHONE COMPANY'S obligations to the CITY
pursuant to the provisions of Ordinance 242. Southwestern Bell
Telephone Company, its parent, its affiliates, successors and
assigns hereby fully release, discharge, settle and compromise
any and all claims, actions, causes of action
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 242.
It is the intent of the. CITY and the TELEPHONE COMPANY to enter
into the foregoing mutual releases in order to reach a compromise
that is acceptable to both the CITY and the TELEPHONE COMPANY.
This Ordinance and the mutual releases set forth in this Section
represent a compromise of each party's claims as well as each
party's defenses, and is not intended to be and is not an admis-
sion 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 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS
Ordinance No. 242 adopted December 4, 1972, is hereby repealed;
provided, however, such repeal shall take effect at 11:59 p.m. on
the day immediately preceding the effective date specified in the
Section of this Ordinance entitled "ACCEPTANCE OF AGREEMENT AND
EFFECTIVE DATE." All other ordinances and agreements and parts
of ordinances and agreements in conflict herewith are also re-
pealed, which repeal shall take effect at the time and on the
date specified in the preceding sentence.
SECTION 16 - FUTURE CONTINGENCY
Notwithstanding anything contained in this Ordinance to the
contrary, in the event that (a) this Ordinance or any part here-
cf, (b) any tariff provision -by which the TELEPHONE COMPANY seeks
or controversies
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to collect the Charge imposed by the Ordinance, or (c) any proce-
dure 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 17 - GOVERNING LAW
(a) This Ordinance shall be construed in accordance with the
CITY Charter Code(s) in effect on the date of passage of
this Ordinance to the extent that such Charter and Code(s)
are not in conflict with or in violation of the Constitution
and laws of the United States or the State of Texas.
(b) This Ordinance shall be construed and deemed to have been
drafted by the combined efforts of the CITY and the TELE-
PHONE COMPANY.
SECTION 18 - ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE
The CITY shall deliver a properly certified copy of this Ordi-
nance to the TELEPHONE COMPANY within three (3) working days of
its final passage. The TELEPHONE COMPANY shall have thirty (30)
days from and after the final passage of this Ordinance to file
its written acceptance of this Ordinance with the CITY Secretary.
This Ordinance shall become effective beginning the first day of
the quarter not less than thirty (30) days after its final pas-
sage by the CITY.
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PASSED, APPROVED and ADOPTED on first reading this
day of
ATTEST:
, A.D., 1992.
/O
C.V. Co ger, Mor
)
PASSED, APPROVED and ADOPTED on second and final reading
this day of
4e...‘„1„.,,____=, A.D., 1992.
ATTEST:
Pat Jones, ty Secretary
kPPROVED AS TO FORM:
Lester Rorick, City Attorney
13
oppinger., Mayor, �,, i
ACCEPTANCE
WHEREAS, the City of Pearland, Texas, did on the 24th day
of August, 1992, enact Ordinance Number 637 entitled:
AN ORDINANCE WHEREBY THE CITY OF PEARLAND, TEXAS,
AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT,
FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS
BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND
CONSTRUCT ITS POLES, WIRES, ANCHORS, FIBER, CABLES,
MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND
APPURTENANCES IN, ALONG, ACROSS, ON, OVER, THROUGH,
ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGH-
WAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC PROPERTY
IN SAID CITY; PRESCRIBING THE ANNUAL COMPENSATION
DUE THE CITY UNDER THIS ORDINANCE; PRESCRIBING THE
CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS -OF -
WAY AND THE PERFORMANCE OF CERTAIN CONSTRUCTION
WORK ON PUBLIC RIGHTS -OF -WAY FOR THE TELEPHONE
COMPANY'S TELECOMMUNICATIONS BUSINESS; PROVIDING AN
INDEMNITY CLAUSE; SPECIFYING GOVERNING LAWS;
PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR
ORDINANCES; PROVIDING FOR FUTURE CONTINGENCIES;
PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE
BY THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM
AND AN EFFECTIVE DATE.
and WHEREAS, said Ordinance was on the 24th day of August,
1992, duly approved by the Mayor of said City, and the Seal of
said City was thereto affixed and attested by the City
Secretary:
NOV, 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
Pearland, Texas. Pursuant to the terms of said Ordinance and
this Acceptance, said Ordinance shall become effective on
October 1, 1992.
Dated this 2.r day of O 199
SOUTHWESTERN BELL TELEPHONE
COMPANY OF TEXAS
Pre
Acceptance filed i the office
Pearland, Texas this f day of`
of the City Secretary of
City Secreta
SOUTHWESTERN BELL TELEPHONE COMPANY
PUBLIC TELEPHONE LICENSE AGREEMENT
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Southwestern Bell
Telephone
"The One to Call On".
SOUTHWESTERN BELL TELEPHONE COMPANY
PL:BLIC TELEPHONE LICENSE AGREEMENT
Southwestern Bell Telephone Company. (hereinafter referred to as "SWBT") and
(hereinafter referred to as "Licensor") hereby mutually agree as follows:
I. Licensor hereby grants to SWBT a license to install and maintain public telephone equipment at the Licensor's
premises at the address(es) shown below or on the attached exhibit which is incorporated herein by this reference ("Licensor's
premises").
2. SWBT agrees to install and maintain. on the Licensor's premises, public telephone equipment and furnish
service to the public over such equipment subject to the terms hereof the tariffs of SWBT, as such tariffs now exist or are modified
in the future.
3. SWBT also agrees, subject to its tariffs and the terms of this Agreement, to install and maintain, at the Licensor's
premises, additional public telephone equipment and service as requested when in the judgement of SWBT the same are needed
to meet the demands for service at the particular location.
4. Subject to the terms and conditions hereof, this Agreement shall be in effect for an initial period of
commencing on ("the Effective Date").
S. This Agreement shall be extended on a year-to-year basis unless either party notifies the other in writing at least 30
days prior to the end of the initial term or a subsequent year-to-year term.
6. If the performance of this Agreement or of any obligation hereunder, is interfered with by reason of any
circumstances beyond the reasonable control of the party affected, including without limitation, fire, explosion, power failure or
acts of God; war or acts of public enemies; any law, order, regulation. ordinance or requirement of any government or legal body;
then the party affected shall be excused from such performance to the extent of such interference (and this other party shall
likewise be excused from performance of its obligations) provided that the party so affected shall use reasonable efforts to remove
such causes of non-performance. If such removal is not affected within 60 days, the other party may terminate the Agreement
without penalty.
7. If Licensor requests that the public telephone equipment be removed from its premises or in any other fashion
terminates this Agreement, other than because of the expiration of the term, a condition as set forth in paragraph 6 above, or
failure or termination of Licensor's business at that particular location. then liquidated damages shall apply as specified in para-
graph 8 below. SWBT may remove its public telephone equipment at any time when in its sole judgement sufficient usage does not
warrant the continuance of the public telephone service at Licensor's premises.
8. Because Licensor's termination of this agreement will cause serious and substantial damages to SWBT and it is
difficult to ascertain the exact amount of such damages, if such termination occurs the Licensor agrees to pay to SWBT liquidated
damages, which will be calculated by multiplying the average monthly revenue of each of the pay telephones during the term of
this agreement by the number of months remaining in the agreement minus 20 percent for expense savings. The parties have
agreed upon this sum as an attempt to make a reasonable forecast of the actual loss because of the difficulty of estimating exactly
the damages that will result.
•
9. Public telephones are installed primarily for the use of the general public in making outgoing calls. and the Licensor
agrees to subscribe to other telephone service as is necessaryfor the operation of the business. The public telephone equipment
and services are supplemental to the Licensor's other telephone services, and the public telephone numbers will not be listed in
the directory, nor shall the Licensor be permitted to advertise such public telephone numbers or use such public telephone service
to receive incoming calls.
10. Commissions will be paid as outlined below and will be based on all SWBT local, intralata, operator assistance and
credit card revenues generated by the public telephone equipment. Commissions shall be based on both coin and non -coin
company revenues. Non -coin commissions will be calculated monthly while coin commissions will be calculated according to the
coin collection schedule for the public telephone involved.
Daily Average Revenue Coin Non -coin
Per Phone % Commission % Commission
S0.00 - 2.00
$2.01 - 4.00
S4.01 - +
years,
11. The Licensor agrees to provide suitable space for the public telephone equipment and proper light and heat there-
for if applicable, keep premises around the public telephone equipment clean and to permit the public to use the
equipment and to display conspicuously any sign or signs provided by SWBT.
12. The telephone equipment, apparatus and lines furnished hereunder shall be carefully used and no apparatus or
appliance not furnished by SWBT shall be attached or connected thereto.
PSC - File Copy
13 The equipment, instruments and lines on the Licensor's premises, furnished hereunder by SWBT for use by the
rtihl:c Shall he and remain the property of SWBT, whose agents and employees have the right to enter said premises at ar.,
.•eas,,n,rhle hour for the purpose of installing, inspecting, maintaining or repairing the equipment, instruments and lines or for t-.e
purpo e of making collection from its coin boxes and, upon termination of the service, for the purpose of removing such equ;p-
ment, ir.<truments and lines.
1 a _ The Licensor agrees that no liability shall attach to SWBT by reason of any defacement or damage to the urde--
stgned , premises resulting from the existence of SWBT's equipment or by SWBT or its employees. If the
telephone equipment and/or facilities are willfully damaged or destroyed by the Licensor or by the Licensor's employees, r s :;:
be the responsibility of the Licensor to pay SWBT's cost of restoring services.
15. Licensor agrees to promptly report to SWBT any misuse, destruction or vandalism relating to the equipment.
16. Each party warrants to the other party that it has the right to enter into this Agreement. Licensor, if not the owner
of the premises, warrants it has the full right and authority to authorize the installation of public telephone equipment at the
Licensor's premises.
17. Each party shall defend, release, indemnify and hold the other party, its employees and agents harmless from any
claims, damages and actions arising out of this Agreement alleged to be caused, in whole or in part, by the negligerice of the other
party.
18. Except as specified in paragraphs 7 and 8 above, NO LIABILITY SHALL ATTACH TO SWBT FOR
INTERRUPTION OF SERVICE FROM ANY CAUSE, NOR SHALL ANY LIABILITY IN ANY OTHER CASE ATTACH TO
SWBT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES INCLUDING LOST STATION REVENUES, LOSS OF PROFITS OR OTHER COM-
MERCIAL OR ECONOMIC LOSS ARISING OUT OF (1) THE PERFORMANCE OF THIS AGREEMENT INCLUDING.
WITHOUT LIMITATION, NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM, OR (2) A DEFECT OR FAILURE
IN SERVICE OF PUBLIC TELEPHONE EQUIPMENT PROVIDED HEREUNDER.
LICENSOR HEREBY RELEASES SWBT FROM ANY LIABILITY TO LICENSOR ARISING FROM, OUT OF
OR ON ACCOUNT OF ANY INTERRUPTION IN TELEPHONE SERVICE FROM THE PUBLIC TELEPHONE EQUIPMENT
PROVIDED HEREUNDER.
The above and foregoing are hereby agreed to and accepted and approved by the parties Said License Agreement is deemed
effective as of the Effective Date listed above.
SOUTHWESTERN BELL
4LLTE- PHO E COMPNw
''
fddr IJ U /btL t a fi
Ow
Date
,ocation Addresses
(If Multiple)
t`703 c.;oc
bv.4er
ephone m Nubers gig/3
9`q/MO t� — 1
°3S. `Os VI
NAME ; F L N OR
)RPORATION. ARTNERSHIP OR PROPRIETORSjijp
(Circle One)
LOCATION(S) OF PUBLIC TELEPHONE
1-74—c2o?.g`to-7
TAXPAYER IDENTIFICATION NO.
(Required To Be Furnished Under Authority of Law)
By
Title
Address
(If Different From Above)
Date
Retention Period
Retain Until
PSC — File Copy