1995F17-TELECOMMUNICATIONS BUSINESS
ORDINANCE NO.
9s-~-/1
AN ORDINANCE WHEREBY THE CITY OF SCHERTZ, 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, A VENUES, HIGHWAYS,
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.
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 Schertz, 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 powers granted by and under said laws to the CITY and as
reflected in prior Ordinances of the CITY; and
WHEREAS, the TELEPHONE COMPANY has operated its telecommunications
business in the CITY under successive ordinances of the CITY, the last of which was
Ordinance Number 28, adopted October 5, 1959, which provided compensation to the
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CITY for that agreement based upon a percentage of gross receipts received by the
TELEPHONE COMPANY from certain services rendered within the corporate limits
of the CITY; and
WHEREAS, certain disputes have arisen regarding those prior Ordinances and
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 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 compensation to municipalities to become administratively impractical
for telecommunications utilities. In order to resolve these issues in a manner
satisfactory to both the CITY and the TELEPHONE 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 further
litigation which otherwise would be necessary to resolve the 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
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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 SCHERTZ, 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 restrictions set forth herein, The TELEPHONE COMPANY may USE
such RIGHTS-OF-WAY for its telecommunications FACILITIES. The TELEPHONE
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 powers and such changes and extensions as may be
considered necessary by the TELEPHONE COMPANY in the pursuit of its
telecommunications business. The terms of the 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
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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 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
bylaw.
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 associated TRANSMISSION MEDIA.
(b) USE: the TELEPHONE COMPANY's acquisition, construction, reconstruction,
maintenance or operation of any FACILITIES in, over, under, along, through or
across the public RIGHTS-OF-WAY, for any telecommunications purpose
whatsoever.
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(c) CITY: The City of Schertz, Texas.
(d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys,
bridges and public ways within the city limits of the CITY.
(e) 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 telecommunications purposes.
CD NON-EXCLUSIVE: no rights provided in this Ordinance by the CITY shall be
exclusive, and the CITY reserves the right to grant franchises, licenses,
easements or permissions to use the public RIGHTS-OF-WAY within the CITY
to any person or entity as the CITY, in its sole discretion, may determine to be
in the public interest.
(g) TELEPHONE COMPANY: Southwestern Bell Telephone Company.
(h) STIPULATION AND SETTLEMENT: As filed by the Settlement Class and
Settling Defendants in connection with Cause No. D-142,176 in the 136th
District Court of Jefferson County, Texas.
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SECTION 4 - TERM
(a) Subject to Paragraph 4(b) below, 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 shall be automatically extended for successive
periods of one (1) year, unless written notice of intent to terminate this
agreement is given by either party not less than ninety (90) days prior to the
expiration of the then current period. When such notice is given, this agreement
shall terminate at the expiration of the then current period.
(b) Notwithstanding the term set out in Paragraph 4(a) above, this Ordinance shall
terminate if Final Approval does not occur as set forth in the STIPULATION OF
SETTLEMENT.
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 CITY shall have the option, but not the obligation, to exercise any and all lawful,
reasonable and proper control related to 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.
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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 or communications facilities or systems
not provided by the TELEPHONE COMPANY to be attached to the TELEPHONE
COMPANY'S poles or other physical plant or 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 provided by the TELEPHONE
COMPANY, or if the CITY desires to place communications facilities or systems not
provided by the TELEPHONE COMPANY in any TELEPHONE COMPANY duct, then
a further separate, noncontingent agreement shall be prerequisite to such attachment(s)
or such use of any duct by the CITY. Nothing contained in this Ordinance shall
obligate or restrict the TELEPHONE COMPANY in exercising its rights voluntarily
to enter into pole attachment, pole usage, joint ownership or other wire space or
facilities agreements with light and/or power companies or with other wire-using
companies which are authorized to operate in the CITY.
SECTION 7 - STREETS TO BE RESTORED TO PREEXISTING CONDITION
The surface of any street, alley, avenue, highway or public place disturbed by the
TELEPHONE COMPANY in building, constructing, renewing or maintaining 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 work and
maintained to the satisfaction of the City Council or of any city official to whom such
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duties have been or may be delegated for one (1) year from the date the surface of said
street, alley, avenue, highway or public place is broken for such construction or
maintenance work, after which time responsibility for the maintenance shall become
the duty of the CITY; provided, however, that the TELEPHONE COMPANY shall not
take up or excavate any pavement at any time without first securing permission, in
writing, of the City Manager or his nominee except in cases of emergencies; and
provided further, that all excavation and installation so made shall be performed in
such a manner as will cause the least inconvenience to the public. No street, alley,
avenue, highway or public place shall be encumbered for a longer period than shall be
necessary to execute the 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 temporary 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,
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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,
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 SOLELY BY THE
NEGLIGENCE OF THE TELEPHONE COMPANY. This provision is not intended to create
a cause of action or liability for the benefit of third parties but is solely for the benefit
of the TELEPHONE COMPANY and the CITY; nor is this provision intended to
abrogate the common law or statutory rights of either the CITY or the TELEPHONE
COMPANY to indemnity or contribution from the other.
SECTION 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
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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 permitted
by law.
SECTION 12 - COMPENSATION TO THE CITY
(a) As compensation for the use, occupancy, oversight, supervision and regulation
of the CITY'S RIGHTS-OF-WAY and for any other consideration provided by the CITY
under this agreement, 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 accordance with State law or sales taxes now or
hereafter levied by the CITY in accordance with State law, the CITY hereby imposes
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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 $40,000.00. 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 l2(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 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"); (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 end user common line
("EUCL") charge as imposed by the Federal Communications Commission (the "FCC").
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 l2(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.
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(b) The Charge for each year shall be paid in four (4) equal payments. The first
payment under this Ordinance shall be due on the last day of the fifth month following
the effective date hereof, with subsequent payments due on the last day of each third
successive month thereafter during the term of this Ordinance. 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 l2(a). 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 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 account for the Growth
Factor calculated above.
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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 in compliance with
Sections 151.023 and 151.027 of the Texas Tax Code Annotated. 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 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.
Cd) Such payments shall not relieve the TELEPHONE COMPANY from paying all
applicable municipally-owned utility service charges. Should the CITY not have the
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legal power to agree that the payment of the foregoing Charge shall 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, RIG HTS-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 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 on the event of a disannexation, 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
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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.
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 RELEASES
Upon Final Approval, as defined in the STIPULATION OF SETTLEMENT, the CITY
hereby fully releases, discharges, settles and compromises any and all claims which the
CITY has made or could have made arising out of or connected with Ordinance No. 28,
adopted October 5, 1959, and renewed or extended from time to time thereafter, and
its predecessor ordinances, if any (hereinafter referred to collectively as "Ordinance
28"). This full and complete release of claims for any matters under Ordinance 28 shall
be for the benefit of Southwestern Bell Telephone Company; its parent; its affiliates;
their directors, officers, attorneys and employees; successors and assigns; and includes
any and all claims, actions, causes of action and controversies, presently known or
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unknown, arising directly or indirectly out of or connected with the TELEPHONE
COMPANY'S obligations to the CITY pursuant to the provisions of Ordinance 28.
Upon Final Approval as defined in the STIPULATION OF SETTLEMENT,
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 or controversies heretofore made or which could have been made,
known or unknown, against the CITY, its officers, attorneys or its employees, arising
out of or connected with any matters under Ordinance 28.
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 admission of liability or
vulnerability by either party to the other with respect to either the claims or the
defenses asserted against the other.
SECTION 15 - ADOPTION OF STIPULATION OF SETTLEMENT
The CITY hereby adopts, ratifies, confirms, and agrees to be bound by the terms of the
STIPULATION OF SETTLEMENT in Cause No. D-142,176 in the l36th Judicial
District Court in and for Jefferson County, Texas (the "Class Litigation"), in its
entirety, in all respects as if the CITY were an original signatory thereto. The CITY
acknowledges that as a member of the Settlement Class in the Class Litigation it has
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received and reviewed the STIPULATION OF SETTLEMENT and that the CITY has
had access to and/or has consulted counsel, to the extent that it desired to do so, in
connection with its evaluation of the STIPULATION OF SETTLEMENT.
SECTION 16 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS
Ordinance Number 28 adopted October 5, 1959, 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". The final payment (including payment for
any partial year) under Ordinance 28 shall be due 60 days following the effective date
of this Ordinance, as set out in Section 19 hereof, All other ordinances and agreements
and parts of ordinances and agreements in conflict herewith are also repealed, to the
extent of such conflict only, which repeal shall take effect at the time and on the date
specified in the preceding sentence.
SECTION 17 - FUTURE CONTINGENCY
(a) 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, or
(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,
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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.
(b) Notwithstanding anything contained in the preceding paragraph to the contrary,
the CITY and TELEPHONE COMPANY agree that in the event this Ordinance is
submitted for review to any court in which the currently existing case styled Citv of
Port Arthur. et al v. Southwestern Bell Teleohone Companv. et aI, Cause No. D-142,176
in the l36th Judicial Court, Jefferson County, Texas is pending, the CITY and
TELEPHONE COMPANY agree to take any and all actions reasonably necessary to
obtain approval and ratification of the Ordinance by the court.
SECTION 18 - GOVERNING LAW
(a) This Ordinance shall be construed in accordance with the CITY Charter and
CITY 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 violation of the Constitution and laws
of the United States or the State of Texas.
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(b) This Ordinance shall be construed and deemed to have been drafted by the
combined efforts of the CITY and the TELEPHONE COMPANY.
SECTION 19 - ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE
The CITY shall deliver a properly certified copy of this Ordinance to the TELEPHONE
COMPANY within three (3) working days of its final passage. The TELEPHONE
COMPANY shall file its written acceptance of this Ordinance in accordance with the
STIPULATION OF SETTLEMENT, This Ordinance shall become effective beginning
on the first day of the first calendar month which begins not less than thirty (30) days
after entry of judgment, as defined in the STIPULATION OF SETTLEMENT.
*
*
*
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FIRST READING on the 6tL day of June, 1995.
PASSED AND APPROVED following the second reading hereof this {,il day of July,
A.D., 1995.
Mayor, City
l.---
f fL' 110:/11
ATTEST:
7'1I-t IU (ZiC"-~~.a.R.- /
City Secretary
I, Norma Althouse, City Secretary of the City of Schertz, Texas, do hereby certify
that the foregoing is a true and correct copy of Ordinance Numberti-P-/7, finally passed
and approved by the City Council of the City of Scheji;z, Texas, following the second
reading thereof at a regular meeting held on the 61::1- day of July, 1995.
\~) '2~" '
- 'M-;-J(,,~_/ 0Lf::Cfl-<'-u~~
City Secretary
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1
;/
5!1l1ll1\\-(':;1('rIllll'11 Tl'lt'plwllt'
I
@ Southwestern Bell
December 14, 1999
The Honorable Hal Baldwin
Mayor
City of Schertz
1400 Schertz Parkway
Schertz, Texas 78154
Re: Southwestern Bell Telephone Company - Municipal Fees Ordinance (the
"Ordinance")
Notice of Non-Renewal
Dear Mayor Baldwin:
In accordance with the terms of the Ordinance, Southwestern Bell Telephone Company
("SWBT") respectfully notifies the City that it is exercising its option not to renew the
Ordinance. Instead, subject to applicable law (including the newly passed H.B. 1777),
the Ordinance will terminate as of the end of its current term.
Please call Jim Alaniz at 512-870-1390 if you have any questions or would like to discuss
this matter further.
Sincerely,
X4-
cc: City Secretary
Evenly Harrison, Southwestern Bell
PUC DOCKET NO. 20935
IMPLEMENT A TION OF
PUBLIC UTILITY COMMISSION
HOUSE BILL 1777
9
9
Ii
Ii
OF TEXAS
ORDER
I. Introduction
Under Ii 283.055(b), Local Government Code, by March I, 2000, the Commission is
required to establish: (l) for each municipality, rates per access line by category; and (2) the
statewide average of those rates per access line by category for each certificated
telecommunications provider (CTP). Pursuant to Ii 283.055(a), Local Government Code, not
later than November 1, 1999, the Commission is required to establish not more than three
categories of access lines for statewide use. The three categories of access line-residential,
non-residential, and point-to-point-have been established by P,U.c. SUBST. R. 26.461, which
was adopted by the Commission on October 21, 1999. When applied to the total number of
access lines by category in the municipality, the Commission's rates shall be equal to the base
amount, consistent with g283.055(c), Local Government Code. The specific formula for rate
determination is reflected in P.U.c. SUBST. R. 26.467(c). The Commission-established rates are
maximum rates, pursuant to P.U.c. SUBST. R. 26.467(g)(l)(3).
In an effort to accommodate the desires of municipalities. and certificated
telecommunications providers (CTPs) for an opportunity to review and possibly amend filings
made with the Commission, P.U.c. SUBST. R 26.467(g) allows an update period. Specifically,
p,u,c. SUBST. R. 26.467(g)(l) allows municipalities to update their base amounts and/or
allocations, by filing with the Commission no later than March 31, 2000. Moreover, a
municipality may choose lower access line rates than the maximum rates initially established
under P.U,c. SUBST. R. 26.467(1), by notifying the Commission no later than March 31, 2000.
In addition, under P.U.c. SUBST. R 26.467(g)(2), no later than March 15, 2000, a CTP may
Implementation ofHB 1777
Order
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request to update its access line count filed with the Commission pursuant to P.U.c. SUBST. R
26.465. Section 26.467(g) requires the Commission to establish updated rates for each category
of access line in a requesting municipality no later than April 14, 2000.
Pursuant to 9 283.055(d) of the Local Government Code and P.U.c. SUBST, R 26.467(i),
the Commission shall implement a municipality's allocation unless, on complaint by an affected
CTP, the Commission determines that the allocation is not just and reasonable, is not
competitively neutral, or is discriminatory. Under P.U,c. SUBST. R 26.467(i), any affected CTP
may complain regarding a municipality's initial allocation no later than March 15, 2000;
complaints regarding a municipality's revised allocation must be filed no later than April 7,
2000.
On March 15, 2000, four affected CTPs filed complaints regarding municipal initial
allocation. Two of the affected CTPs also raised concerns regarding municipal base amounts.
Numerous municipalities revised their initial allocation and/or base amounts in response to the
complaints. On April 7, 2000, two affected CTPs, Southwestern Bell Telephone Company
(SWBT) and GTE Southwest, Incorporated (GTESW) filed complaints regarding municipal
updated allocation. Municipalities whose base amounts and/or allocations were contested by
SWBT and/or GTESW were ordered to provide affidavits and supporting documentation no later
than April 17, 2000,
The Commission orders that:
(I) The fee per access line maximum rates established using either a municipality's base
amount or statewide average by CTP, including updated municipal base amount
information, shall be assessed as reflected on Attachment A, for the listed municipalities;
(2) The fee per access line rates for municipalities that have:
(a) chosen lower than maximum rates, pursuant to P.U.c. SUBST. R 26.467(g)(3); and/or
(b) chosen to forgo municipal compensation from access lines serving Lifeline customers
or customers of other similar low-income assistance programs;
shall be assessed as reflected on Attachment A, for the listed municipalities;
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(3) The statewide average rates for CTPs, as determined by the Commission on March I.
2000, are adopted, as retlected on Attachment B, for the listed CTPs;
(4) CTPs shall use approved tariff language and customer notification language, as reflected
on Attachment C and consistent with the schedule set forth in this Order;
(5) Municipalities that did not provide base amount filings to the Commission are not
eligible to receive franchise compensation unless and until they file base amount
information with the Commission, no later than September I of each year, at which time
the Commission shall develop municipality-specific rates;
(6) Municipalities for which rates cannot be developed due to unresolved municipal
boundary issues, as shown on Attachment D, may, upon resolution of such issues, file
revised information no later than September I of each year, at which time the
Commission shall develop municipality-specific rates; and
(7) Municipalities served by CTPs that paid no franchise compensation in 1998 to any of the
municipalities served, as shown on Attachment E, are ineligible to receive franchise
compensation under Chapter 283, Local Government Code.
II. Purpose ofHB 1777
According to 9 283.00l(c), Local Government Code, the purpose of Chapter 283 is to
establish a uniform method for compensating municipalities for the use of a public right-of-way
by CTPs that: (I) is administratively simple for municipalities and CTPs; (2) is consistent with
state and federal law; (3) is competitively neutral; (4) is nondiscriminatory; (5) is consistent with
the burdens on municipalities created by the incursion of CTPs into a public right-of-way; and
(6) provides fair and reasonable compensation for the use of a public right-of-way.
Section 283,051(a), Local Government Code, provides that a CTP that provides
telecommunications services within a municipality is required to pay, as compensation to a
municipality for use of the public rights-of-way in the municipality, only the amount detennined
by the Commission pursuant to 9 283.055, Local Government Code.
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III. Calculation of Rates Based on Municipal Filings
A. Base Amount
The amount of a municipality's right-of-way fee is determined using the municipality's
base amount. Section 283.053(b), Local Government Code, states that the base amount for a
municipality is "the total amount of revenue received by the municipality in franchise, license,
permit, and application fees and in-kind servIces or facilities from certificated
telecommunications providers in 1998 within the boundaries of the municipality, including all
newly annexed areas." Under S 283.053(a), Local Government Code, pole rental fees, special
assessments, and taxes of any kind, including ad valorem or sales and use taxes, or other
compensation not related to the use of a public right-of-way are specifically excluded from the
base amount determination. P.U.c. SUBST. R 26.463(d), clarifies that payments received inside
or outside of calendar year 1998 can be included as revenue received only to the extent that those
payments represent compensation for calendar year 1998 usage of a public right-of-way.
Pursuant to P.U,c. SUBST. R. 26.463(i)(2)(A), municipalities shall file their base amount figures
no later than December I, 1999.
Section S 283.053(b), Local Government Code, provides that in-kind services or facilities
received in 1998 specifically prescribed in applicable agreements or ordinances effective or
adopted January 12, 1999, are also included in the base amount. Under S 283.053(t), Local
Government Code, in-kind services or facilities provided to municipalities under existing
franchise agreements or ordinances by CTPs shall be valued at one percent (1 %) of the total
1998 revenue from franchise, permit, license, and application fees paid to the municipality,
unless a municipality can establish that those services or facilities received by the municipality
had a greater value in ] 998.
In order to establish that the total value of in-kind compensation received from CTPs in
1998 had a greater value than one percent (1%) of the municipality's base amount, the
municipality must make a showing consistent with P.U.c. SUBST. R 26.463(e). Under P.U.c.
SUBST. R. 26.463(e), specific valuation methods are provided for (1) telecommunications
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equipment; (2) dark fiber; (3) poles, ducts and conduits; (4) telecommunications service; and (5)
all other faci]itiesand services. Generally, facilities are valued only to the extent the municipality
utilized them during calendar year 1998. As to services, in-kind compensation is limited to
services received in calendar year 1998.
Besides revenue received and in-kind compensation, if any, the base amount shall include
the municipal fee rate escalation provisions specifically prescribed in applicable agreements or
ordinances effective or adopted by January 12, 1999, pursuant to 9283.053(b), Local
Government Code. Under 9283.053(b), Local Government Code, additional compensation
attributable to municipal fee rate escalation provisions may not become part of the base amount
before it becomes effective under the existing franchise agreement or ordinance. The inclusion
in the base amount of additional compensation attributable to fee rate escalation is limited to the
amounts received in calendar year 1999 and in the first two months of 2000. Under P.U.c.
SUBST. R. 26.463(d)(2), the municipality shall calculate and report its fee rate escalation amount
that is known and measurable for calendar year 1999, as specifically prescribed in effective
agreements or ordinances, and add that escalation amount to the base amount calculation. In
addition, pursuant to P.U.C. SUBST. R. 26.467(g)(I)(A)(iv), municipalities may demonstrate
eligibility under their existing franchise agreement or ordinance to receive a known and
measurable amount due to specifically prescribed fee rate escalation provisions for the period
between January 1,2000 and March 1,2000. The known and measurable amount is dependent
upon the specific terms of the existing franchise agreement or ordinance,
Section 283.053(c), Local Govemment Code allows a municipality (I) located in a
county with a population of less than 25,000; or (2) that did not have an effective franchise
agreement or ordinance on January 12, 1999; or (3) was not in existence on January ]2, 1999, to
choose between several options in developing its base amount. Such municipalities can choose
to follow the general approach outlined in this section of this Order, by providing the total
amount of revenue received from CTPs in 1998. To address the situation in which a
municipality may not have received any revenue in 1998, Section 283.053(c), Local Government
Code, allows such a municipality to develop a base amount using the statewide average fee per
line, by category, of the CTP with the greatest number of access lines in that municipality,
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multiplied by the total number of access lines in each category located within the municipal
boundaries on December 31, 1998. Alternatively, such a municipaliry may choose to adopt the
base amount of a similarly sized municipality. The adopting municipality and the similarly sized
municipaliry, however. must be in the same or an adjacent county. and the CTP with the greatest
number of lines must be the same for each municipality.
Similarly, cities involved in municipal franchise fee litigation are given a specific method
for developing a base amount. Under Section 283.053(d), Local Government Code, this option
applies only to a municipality that was involved in such litigation with one or more CTPs during
any part of 1998. Such a municipality is required first to repeal any ordinance subject to dispute
in litigation, no later than December 1, 1999. In addition, cities involved in municipal franchise
fee litigation must voluntarily dismiss with prejudice any claims in the litigation for
compensation and waive any potential claim for compensation under any franchise agreement or
ordinance expired or in existence on September I, 1999. Upon taking these actions, such a
municipality is allowed to choose to establish its base amount using either: (1) the statewide
average access line rate for the CTP with the greatest number of access lines in that municipality
multiplied by the total number of access lines located wit..l:lin the boundaries of the municipality
on December 31, 1998; or (2) an amount not to exceed 21 % of the total sales and use tax revenue
received by the municipality pursuant to Chapter 321, Tax Code, excluding certain specific sales
and use taxes.
B. Allocation
Under S 283.055(d), Local Government Code, by December I, 1999, a municipality that
wishes to request a specific allocation of the base amount over specific access line categories
subject to rates must notifY the Commission of the desired allocation. As part of the base amount
filings, municipalities must include their requested allocation. Under S 283.055(d), Local
Government Code, the Commission shall establish an allocation of the base amount over the
categories of access lines if a municipality does not file its proposed allocation by December I,
1999. In P.U.c. SJBST. R. 26.467(e), the Commission developed a default allocation of
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1:2.3:3.5. This default allocation represents an average of all allocation ratios filed by
municipalities.
C Access Line Counts
The final component of the rate calculation is the access line counts provided by each
CTP for each municipality in which it operates. Section 283.005, Local Government Code,
allows the Commission to collect and compile any information from CTPs and municipalities as
is necessary to implement Chapter 283 of the Local Government Code (HB 1777). By January
24, 2000, pursuant to P.U.c. SUBST. R. 26.465(g)(2)(A)(i), all CTPs were required to file an
access line count for December 31, 1998. If a CTP could not file a 1998 access line count, it
could request a good cause exception and file the line count available for December, 1999.
Under P.U.c. SUBST. R. 26.467(d), when a CTP does not provide an actual 1998 access line
count, the Commission shall use the CTP's 1999 access line count to derive an estimated 1998
access line count, using estimated statewide growth rate figures.
D. Formula
The attached rates are adopted in accordance with the requirements of HB 1777, and in
this Order, using the formula adopted in P,U.c. SUBST. R. 26.467(c), as follows:
B- Total base amount for 1998.
AI= Allocation by percentage to Category I access lines.
A2- Allocation by percentage to Category 2 access lines.
A3 - Allocation by percentage to Category 3 access lines,
Ll- Nwnber of access lines in Category I.
L2- Nwnber of access lines in Category 2.
L3= Nwnber of access lines in Category 3.
Rl= Fee per access line rate for Category 1.
R2= Fee per access lil1e rate for Category 2.
R3= Fee per access line rate for Category 3.
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Ri = (Al*B)/Ll
R2 = (A2*B)!L2
R3 = (A3*B)1L3
B = (Ll *RI) + (L2*R2) + (L3*R3)
N. Calculation of Statewide Average Rates for each CTP
As part of the Commission's determination of fees under 9283.055, Local Govemment
Code, the Commission must also develop the statewide average of municipalities' rates per
access line by category, for each CTP. The statewide average is used to develop base amounts
for eligible municipalities. Under 9 283.053(c), Local Government Code, eligible municipalities
can be one of three types: (I) a municipality located in a county with a population of less than
25,000; (2) a municipality without an effective franchise agreement or ordinance on January 12,
1999; or (3) a municipality not in existence on January 12, 1999. In addition, under
9 283,053(d), a municipality involved in litigation relating to franchise fees with one or more
CTPs during any part of 1998 is eligible to choose to develop a base amount using the statewide
average by CTP or to claim up to 21 % of total sales and tax revenue as its base amount.
V. Tariff Filings and Customer Notification
Section 283.051(c), Local Government Code, provides that fees imposed under Chapter
283, Local Government Code, constitute "a municipal fee" or "municipal fees" within the
meaning of the Public Utility Regulatory Act' (PURA) 99 51.009 and 54.206. Pursuant to
PURA 9 54.206(a), a CTP has the right to collect a fee that a municipality imposes under
99 54.204 or 54.205 through a pro rata charge to the customers in the boundaries of the
municipality. PURA 9 54.206(b) also states that the charge may be shown on the customer's bill
as a separate line item. Under P,U.C. &JBST. R. 26.31(b), each utility is required to notify
customers affected by a change in rates,
I TEX. IJTIL. COOE ANN. ss 11.001 - 64.158 (Vernon 1998 & Supp. 2000).
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Standardized tariff language and customer notification language appear in Attachment C
to this Order. To' the extent that a CTP wishes to deviate from this approved language, it shall
request a good cause exception.
VI. Complaints Regarding Allocation and/or Base Amounts
Pursuant to S 283.055(d) of the Local Government Code and P.U.c. SUBST. R 26.467(i),
the Commission shall implement a municipality's allocation unless, on complaint by an affected
CTP, the Commission determines that the allocation is not just and reasonable, is not
competitively neutral, or is discriminatory. Under P,U.c. SUBST. R 26.467(i), any affected CTP
may complain regarding a municipality's initial allocation no later than March IS, 2000;
complaints regarding a municipality's revised allocation must be filed no later than April 7,
2000.
On March 15, 2000, four affected CTPs, SWBT, GTESW, Alenco and Sage, filed
complaints regarding municipal initial allocation. Alenco and Sage filed complaints regarding
only one municipality; the municipality revised its base amount filing to correct an error, thereby
addressing the allocation concems of Sage and Alenco. The two remaining affected CTPs,
SWBT and GTESW, also raised concerns regarding municipal base amounts. Many
municipalities revised their initial allocation and/or base amounts in response to the complaints.
On April 7, 2000, pursuant to P.U.c. SUBST. R 26.467(i)(2), SWBT and GTESW filed
complaints regarding updated municipal allocations and raising concerns regarding municipal
base amounts. CTPs were directed to provide notice to all municipalities whose allocations they
contested. The PUC also notified these cities immediately and requested the cities to provide
affidavits with supporting documentation, as appropriate. A significant number of contested base
amount issues were resolved.
VII. Municipalities Ineligible for Franchise Compensation
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Pursuant to 9 283.051(a), Local Government Code, notwithstanding any other law, a CTP
that provides telecommunications services within a municipality is required to pay as
compensation to a municipality for use of the public rights-of-way within a municipality only the
amount determined by the Commission under 9283.055, Local Government Code. Under
9 283.055(c), Local Government Code, the rates when applied to the total number of access lines
by category in the municipality shall be equal to the base amount. Pursuant to P.U.c. SUBST. R.
26.463(i), all municipalities are required to file their base amount no later than December I,
1999. P.U.c. SUBST. R. 26.463(1) provides that the base amount for a municipality that fails to
complete its base amount report by December I, 1999 shall be $0.
Furthermore, for purposes of determining the amount of a municipality's right-of-way
fee, 9 283.053(b), Local Government Code, provides that the base amount is to reflect the total
amount received by the municipality from CTPs in 1998 within the boundaries of the
municipality. Once rates are established, 9 283.055(c) provides that the rates when applied to the
total number of access lines by category in the municipality shall equal the base amount. When
municipal boundaries cannot be adequately established, neither a base amount nor a total number
of access lines by category can be developed. Accordingly, the Commission cannot set rates for
such municipalities. The affected municipalities are listed on Attachment D. Municipalities for
which rates cannot be developed due to unresolved municipal boundary Issues may, upon
resolution of such issues, file revised information no later than September 1 of each year, at
which time the Commission shall develop municipality-specific rates.
Finally, municipalities served by CTPs that paid no franchise compensation in 1998 to
!!ill' of the municipalities served are ineligible to receive franchise compensation under Chapter
283, Local Government Code. Excepting municipalities that were involved in litigation relating
to franchise fees during 1998, the municipal base amount under Chapter 283, Local Government
Code, can be calculated in three different ways. First, under 99 283.053(b) and (c)(3), Local
Government Code, the base amount is the total amount of revenue received by the municipality
from CTPs in 1998, Secondly, pursuant to 9 283,053(c)(l), Local Government Code, the base
amount for certain eligible municipalities is an amount not greater than the statewide average fee
per line for each category of access line of the CTP with the greatest number of access lines in
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that municipality, multiplied by the total number of access lines in each category within the
boundaries of the municipality, Lastly, pursuant to S 283.053(c)(I), Local Government Code,
the base amount for certain eligible municipalities is an amount not greater than the base amount
determined for a similarly sized municipality in the same or an adjacent county in which the CTP
with the greatest number of access lines in the municipality is the same for each city, In each
option, whether based on actual revenue, on the average fee per line, or on the base amount of a
similarly sized municipality, the calculation of base amount requires actual revenue figures.
However, where a CTP paid no franchise compensation in 1998 to anv of the municipalities it
serves, each such municipality is ineligible to receive franchise compensation under Chapter 283,
Local Government Code. Each such municipality cannot develop its own base amount, adopt a
neighbor's base amount or develop a statewide average fee per line because no compensation
was received in 1998 on which to calculate a base amount.
VIII. Findings of Fact
1. Section 283.001(c), Local Government Code, includes a legislative finding that the purpose
of Chapter 283, Local Government Code, is to establish a uniform method for compensating
municipalities for the use of a public right-of-way by CTPs that: (I) is administratively
simple for municipalities and telecommunications providers; (2) is consistent with state and
federal law; (3) is competitively neutral; (4) is nondiscriminatory; (5) is consistent with the
burdens on municipalities created by the incursion of CTPs into a public right-of-way; and
(6) provides fair and reasonable compensation for the use of a public right-of-way.
2. Section 283.051(a), Local Government Code, provides that a CTP that provides
telecommunications services within a municipality is required to pay as compensation to a
municipality for use of the public rights-of-way in the municipality only the amount
determined by the Commission under S 283.055, Local Govemment Code.
3. Section 283.051(c), Local Government Code, provides that fees imposed under Chapter 283,
Local Government Code, constitute "a municipal fee" or "municipal fees" within the
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meaning of PURA S S 51.009 and 54.206. Pursuant to PURA S 54.206(a), a CTP has the
right to collect a fee that a municipality imposes under SS 54.204 or 54.205 through a pro
rata charge to the customers in the boundaries of the municipality, PURA 9 54.206(b) also
states that the charge may be shown on the customer's bill as a separate line item. Under
P.U.c. SUBST. R. 26.3I(b), each utility is required to notify customers affected by a change
in rates.
4. Section283.055(b), Local Government Code, reqUIres that, by March 1, 2000, the
Cornmission must establish: (I) for each municipality, rates per access line by category; and
(2) the statewide average of those rates per access line by category. Section283.055(a),
Local Government Code, requires that, not later than November I, 1999, the Commission
must establish not more than three categories of access lines for statewide use. The three
categories of access line-residential, non- residential, and point-to-point-are established in
P.U.c. SUBST. R. 26.461. Consistent with S 283.055(c), Local Government Code, when
applied to the total number of access lines by category in the municipality, the Commission's
rates for these categories of access lines shall equal the base amount.
5. Section 283.053, Local Government Code, states that the base amount for a municipality is
the total amount of revenue received by the municipality in franchise, license, permit, and
application fees and in-kind services or facilities from CTPs in 1998 within the boundaries of
the municipality, including all newly annexed areas. P.U.c. SUBST. R. 26.463(d) clarifies that
payments received inside or outside of calendar year 1998 can be included as revenue
received only to the extent that these payments represent compensation for calendar year
1998 usage of a public right-of-way. P.D.C. SUBST. R. 26,463(i)(2)(A) reqUIres
municipalities to file their base amount figures no later than December I, 1999.
6. Section283,055(d), Local Government Code, reqUIres that, by December I, 1999, a
municipality that wishes to specify an allocation of the base amount over specific access line
categories subject to rates must notify the Commission of the desired allocation.
Municipalities included their requested allocation as part of the base amount filings,
Section283.055(d), Local Government Code, requires the Commission to establish an
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allocation of the base amount over the categories of access lines if a municipality did not file
its proposed allocation by December I, 1999. Consequently, the Commission developed a
default allocation of 1:2.3:3.5 in P.U.c. SUBST. R. 26.467(e). This default allocation
represents an average of all allocation ratios tiled by municipalities.
7. Section 283.005, Local Government Code, allows the Commission to collect and compile
any information from CTPs and municipalities as is necessary to implement Chapter 283 of
the Local Government Code, P.U.c. SUBST. R. 26.465(g)(2)(A)(i) requires all CTPs to file
an access line count for December 31, 1998, by January 24, 2000. If a CTP cannot file a
1998 access line count, it can request a good cause exception and file the line count available
for December, 1999. Under P,U.c. SUBST. R. 26.467(d), in a situation in which a CTP does
not provide an actual 1998 access line count, the Commission shall use the CTP's 1999
access line count to derive an estimated 1998 access line count, using estimated statewide
growth rate figures.
8. P.U,c. SUBST. R. 26.467(c) sets out the formula the Commission shall use to develop access
line rates, by category, as follows:
B- Total base amount for 1998.
Al- Allocation by percentage to Category 1 access lines.
A2= Allocation by percentage to Category 2 access lines,
A3- Allocation by percentage to Category 3 access lines.
Ll= Nwnber of access lines in Category 1,
L2= Nwnber of access lines in Category 2.
LJ- Nwnber of access lines in Category 3.
RI- Fee per access line rate for Category 1.
R2- Fee per access line rate for Category 2,
RJ= Fee per access line rate for Category 3.
Rl= (AI *B)/LI
R2 = (A2*B)/L2
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R3 = (A3*B)!L3
B = (LI*RI) + (U*R2) + (U*R3)
9. As part of its determination of fees under S 283,055, Local Government Code, the
Commission must also develop the statewide average of municipalities' rates per access line
by category, for each CTP. Section 283.053(c), Local Government Code, allows the
statewide average to be used to develop base amounts for eligible municipalities such as: (l)
a municipality located in a county with a population of less than 25,000; (2) a municipality
without an effective franchise agreement or ordinance on January 12, 1999; or (3) a
municipality not in existence on January 12, 1999. Section 283.053(d), Local Government
Code, allows a municipality to choose between developing a base amount using the statewide
average or claiming up to 21 % of total sales and tax revenue as its base amount if it was
involved in litigation relating to franchise fees with one or more CTPs during any part of
1998 and, not later than December I, 1999, repealed any ordinance subject to dispute in the
litigation, voluntarily dismissed with prejudice any claims in litigation for compensation, and
agreed to waive any potential claim for compensation under any franchise agreement or
ordinance expired or in existence on September I, 1999,
10. The statewide average fee per access line by category for each CTP shall be developed only
one time, based on all actual base amounts filed by municipalities. Although P. U.C. SuBST.
R. 26.467(g) allows updates to municipal filings between March I and April I, 2000, the
Commission will not update the statewide average. On March I, 2000, the Commission
approved the statewide average fee per access line by category for each CTP.
11. P,U.C. SJBST. R 26.467(g) allows an update period for both municipalities and CTPs.
Specifically, P.U.c. SUBST. R. 26.467(g)(l) allows municipalities to update their base
amounts and/or allocations, by filing with the Commission no later than March 3 I, 2000.
Moreover, a municipality may choose lower access line rates than the maximum rates
initially established under P.U.c. SUBST. :". 26.467(1), by notifYing the Commission no later
than March 31, 2000. In addition, under P. U,c. SUBST. R 26.467(g)(2), no later than March
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15, 2000, a CTP may request to update its access line count filed with the Commission
pursuant to P.U.c. SUBST. R 26.465. P.U.c. SUBST. R. 26.467(g) requires the Commission
to establish updated rates for each category of access line ina requesting municipality no
later than April 14, 2000. The Commission issued an interim order approving rates on April
12, 2000 for all affected municipalities except those municipalities for which such rates
remained in question,
12. Pursuant to 9 283.055(d) of the Local Government Code and P.U.C. SUBST. R 26.467(i), the
Commission shall implement a municipality's allocation unless, on complaint by an affected
CTP, the Commission detennines that the allocation is not just and reasonable, is not
competitively neutral, or is discriminatory. Under P.U.c. SUBST. R 26.467(i), any affected
CTP may complain regarding a municipality's initial allocation no later than March 15,2000;
complaints regarding a municipality's revised allocation must be filed no later than April 7,
2000.
13. Pursuant to 9 283.05 I (a), Local Government Code, notwithstanding any other law, a CTP
that provides telecommunications services within a municipality is required to pay as
compensation to a municipality for use of the public rights-of-way within a municipality only
the amount determined by the Commission under 9283,055, Local Government Code.
Under 9 283.055(c), Local Govemment Code, the rates when applied to the total number of
access lines by category in the municipality shall be equal to the base amount. Pursuant to
P.U.C. SUBST. R 26.463(i), all municipalities are required to file their base amounts no later
than December I, 1999. P.U.c. SUBST. R 26.463(1) provides that the base amount for a
municipality that fails to complete its base amount report by December 1, 1999 shall be $0.
14. For purposes of determining the amount of a municipality's right-of-way fee, 9283.053(b),
Local Government Code, provides that the base amount is to reflect the total amount received
by the municipality from CTPs in 1998 within the boundaries of the municipality.
Section 283.055(c), Local Govemment Code, provides that the rates when applied to the total
number of access lines by category in the municipality shall equal the base amount. When
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municipal boundaries cannot be adequately established, neither a base amount nor a total
number of access lines by category can be developed. Accordingly, the Conunission cannot
set rates for such municipalities, Municipalities for which rates cannot be developed due to
unresolved municipal boundary issues may, upon resolution of such issues, file revised
information no later than September I of each year, at which time the Conunission shall
develop municipality-specific rates,
15. Municipalities served by CTPs that paid no franchise compensation in 1998 to any of the
municipalities served are ineligible to receive franchise compensation under Chapter 283,
Local Government Code. Excepting municipalities that were involved in litigation relating
to franchise fees during 1998, Chapter 283, Local Government Code, provides three ways for
calculating base amount. Under ~~ 283.053(b) and (c)(3), Local Government Code, the base
amount is the total amount of revenue received by the municipality from CTPs in 1998.
Pursuant to ~ 283,053(c)(l), Local Government Code, the base amount for certain eligible
municipalities is an amount not greater than the statewide average fee per line for each
category of access line of the CTP with the greatest number of access lines in that
municipality, multiplied by the total number of access lines in each category within the
boundaries of the municipality. Pursuant to ~ 283.053(c)(I), Local Government Code, the
base amount for certain eligible municipalities is an amount not greater than the base amount
determined for a similarly sized municipality in the same or an adjacent county in which the
CTP with the greatest number of access lines in the municipality is the same for each city. In
each option, the calculation of base amount requires actual revenue figures. Therefore,
where a CTP paid no franchise compensation in 1998 to any of the municipalities it serves,
each such municipality is ineligible to receive franchise compensation under Chapter 283,
Local Government Code.
IX. Conclusions of Law
1. The Conunission has jurisdiction of this matter under ~~ 283.005, 283.055, and 283.058,
Local Government Code, and under ~ ~ 14,001, 14.002, 14.003,52.002 of the Public Utility
Implementation of HB 1777
Order
Page 17 of 19
Regulatory Act (PURA), codified at TEX. UrIL CODE ANN. 9911.001 - 64.158 (Vernon
1998 & Supp. 2000).
2. The fee per access line rates established by the Commission, when applied to the total
number of access lines by category in each municipality, equal that municipality's base
amount.
3. The fee per access line rates and the statewide average of those rates by category for each
CTP, as established by the Commission, are consistent with, and meet the requirements of,
Chapter 283, Local Government Code, and the Commission's rules.
4. The municipal allocations of the base amount over the specific access line categories subject
to rates are just and reasonable, competitively neutral and non-discriminatory.
5. Municipalities that did not provide base amount filings to the Commission are not eligible to
receive franchise compensation unless and until they file base amount information with the
Commission, no later than September I of each year, at which time the Commission shall
develop municipality-specific rates.
6. Municipalities for which rates cannot be developed due to unresolved municipal boundary
issues may, upon resolution of such issues, file revised information no later than September I
of each year, at which time the Commission shall develop municipality-specific rates.
7. Municipalities served by CTPs that paid no franchise compensation in 1998 to any of the
municipalities served are ineligible to receive franchise compensation under Chapter 283,
Local Government Code.
X. Ordering Paragraphs
In accordance with these findings of fact and conclusions of law, the Commission orders:
Implementation ofHB 1777
Order
Page 18 of 19
I. CTPs shall pay to municipalities the approved rates, according to Attachment A, consistent
with Chapter 283, Local Govemment Code and Commission rules.
2. Consistent with P.U.C. SUBST. R. 26.43 1 (b), each utility shall notify customers affected by a
change in rates. CTPs shall use tariff language and customer notification wording in
accordance with Attachment C. To the extent that a CTP wishes to deviate from this
approved language, it shall request a good cause exception. The CTP shall indicate in bold
print in the cover letter to its compliance filing if it has chosen to deviate from the PUC
approved language.
3. CTPs shall file all tariffs and customer notification language necessary to comply with this
Order by May 5, 2000 in Project No. 22382. Staff shall issue recommendations on tariff and
customer notification filings no later than May 12, 2000. The following timeline shall apply
to these compliance filings:
May 5, 2000
May 12, 2000
May 18, 2000
May 22, 2000
CTPs file revised tariffs and customer notification language
Staff issues recommendations on tariff and customer notification langua ge
Office of Policy Development issues final approval
Effective date of tariffs and customer notification
4. CTPs shall implement the rates approved in this Order in accordance with Chapter 283,
Local Government Code and Commission rules by June I, 2000, but in no event later than
July I, 2000.
Implementation of HB 1777
Order
Page 19 of 19
SIGNED AT AUSTIN, TEXAS the
day of April, 2000.
PUBLIC UTILITY COMMISSION OF TEXAS
PAT WOOD, III, CHAIRMAN
JUDY WALSH, COMMISSIONER
BRETT A. PERLMAN, COMMISSIONER
\\PUCSRVRO I \DA T A \SHARED\opd\Rules\hb I 777-20935\Final rates\df0420.doc
111 0 Legal NOl,ces
ORD'NANCE NO. 95-F-17
AN ORD'NANCE WHER,
EBY THE C'TY OF
SCHERTZ, TEXAS AND
SOUTHWESTERN BELL
TELEPHONE COMPANY
AGREE THAT, FOR THE
PURPOSE OF OPERAT-
ING ITS TELECOMMUNI,
CAT'ONS BUS'NESS. THE
TELEPHONE COMPANY
SHALL MA'NTA'N AND
CONSTRUCT 'TS POLES.
W'RES. ANCHORS, FIB,
ER, CABLES, MANHOLES,
CONDUITS AND OTHER
PHYS'CAL PLANT AND
APPURTENANCES 'N.
ALONG, ACROSS. ON,
OVER. THROUGH,
ABOVE AND UNDER ALL
PUBLIC STREETS,
AVENUES, HIGHWAYS,
ALLEYS, S'DEWALKS.
BR'DGES OR PUBLIC
PROPERTY IN SAID C'TY;
PRESCRIB'NG THE AN-
NUAL COMPENSAT'ON
DUE THE CITY UNDER
TH'S ORD'NANCE; PRE-
SCRIB'NG THE COND,-
T'ONS GOVERNING THE
USE OF PUBLIC RIGHTS,
OF,WAY AND THE PER,
FORMANCE OF CERT A'N
CONSTRUCTION WORK
ON PUBLIC R'GHTS,OF,
WAY FOR THE TELE,
PHONE COMPANY'S
TELECOMMUN'CATIONS
BUS'NESS; PROV'D'NG
AN 'NDEMNITY CLAUSE;
SPEC'FYING GOVERN,
ING LAWS; PROV'DING
FOR A RELEASE OF ALL
CLAIMS UNDER PRIOR
ORDINANCES; PROVID-
'NG FOR FUTURE CON-
T'NGENC'ES; PROVID,
ING FOR WRITTEN AC,
CEPT ANCE OF THIS OR-
D'NANCE BY THE TELE-
PHONE COMPANY; AND
PROVIDING FOR A TERM
ANO AN EFFECTIVE
DATE.
WHEREAS, Southwestern
Bell Telephone Company
(hereinafter referred to as
Ihe 'TELEPHONE COM,
PANY") is now and has
been engaged in the tele-
communications business
in the State of Texas and in
furtherance thereof, has
erected and maintained cer.
tain items of its physical
p'ant in the City of Schertz,
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 sub-
ject to the reasonable exer-
cise of the powers granted
by and under said laws to
the CITY and as reflected in
prior Ordinances of the
CITY; and
WHEREAS, the TELE-
PHONE COMPANY has
operated its telecommuni~
cations business in the CITY,
under success;ve ordinanc-
es of the CITY, the last of
11 0 Legal Notices
which was Ordinance
Number 28, adopted Octob-
er 5, 1959, which provided
compensation to the CITY
for that agreement based
upon a percentage of gross
receipts received by the
TELEPHONE COMPANY
from certain services ren-
dered within the corporate
limits of the CITY; and
WHEREAS, certain dis-
putes have arisen regarding
those prior Ordinances and
it is recognized by the par-
ties that changes in the
telecommunications irx:lustry,
changes in technology,
changes in state and federal
law, and changes in the ac-
counting practices man-
dated by the Uniform
System of Accounts
promulgated by the Federal
Communications ComrrOssion
("FCC'), along with
regulatory requirements of the
Texas Public Utility
Commission ("PUC"), have
caused the traditional
method of deter-
mining the amount of com-
pensation to municipalities
to become administratively
impractical for telecom-
munications utilities. In or-
der to resolve these issues
in a manner satisfactory to
both the C'TY and the TEL-
EPHONE COMPANY. the
C'TY and the TELEPHONE
COMPANY have chosen
the method of determining the
amount of compensation
provided for in this Ordi-
nance to eliminate the ex-
pense and time related to
audits, to achieve adminis-
trative simplicity, to provide
the CITY with predictable
revenues and &.n
opportunity lor growth and to
avoid the expense and
delays of further litigation
which otherwise would be
necessary to resolve the
issues in controversy
between the parties;
and
WHEREAS, it is to the mu-
tual advantage of both the
CITY and the TELEPHONE
COMPANY that an agree-
ment should be entered into
between the TELEPHONE
COMPANY and the C'TY
establishing the conditions
under which the TELE-
PHONE COMPANY shall
maintain and construct its
physica' p'ant in the CITY in
the future;
NOW, THEREFORE, BE 'T
ORDA'NED BY THE C'TY
COUNCIL OF THE CITY
OF SCHERTZ. TEXAS,
THAT:
SECTION I-PURPOSE
Pursuant to the laws of the
State of Texas, the CITY
Charter and this Ordinance,
tMe TELEPHONE COMPA-
NY has the NON-EXCLU-
SIVE right and privilege to
USE the public RIGHTS-
OF,WAY in the C'TY for
11 0 Legal Notices
the operation of a telecom-
munications system subject
to the restrictions set forth
herein. The TELEPHONE
COMPANY may USE such
R'GHTS-OF-WAY for its
telecommunications FACIL-
IT'ES. The TELEPHONE
COMPANY'S FAC'LlTtES
and TRANSM'SS'ON ME-
DIA used in or incident to the
provision of telecommuni-
cations service and to the
maintenance of a telecom-
munications business by
the TELEPHONE COM-
P ANY in the CITY shall
remain as now constructed,
subject to such changes as
under the conditions
prescribed in this
Ordinance may be consid-
ered necessary to the public
health and safety by the
CITY in the exercise of its
lawful powers and such
changes and extensions as
may considered necessary
by the TELEPHONE COM,
PANY in the pursuit of its
telecommunications busi-
ness. The terms of the Or-
dinance shall apply through-
out the CITY, and to all op.
erations of the
TELEPHONE COMPANY
within the CITY, and shall
include all operations and
FACILITIES used in whole
or in part in
the provision of telecom-
munications services in
newly annexed areas upon
the effective date of any an-
nexation.
SECTION 2- ADDITION-
AL AUTHORITY RE-
QUIRED
The TELEPHONE COM,
P ANY is not authorized to
provide cable television
service as a cable operator
in the CITY under this Ordi-
nance, 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 Ordi.
nance, the following words
and terms shall have the
definitions and meanings
provided in this Section:
(a) FACILITIES: all TELE,
PHONE COMPANY duct
spaces, manholes, poles,
conduits, underground and
overhead passageways,
and other equipment,
structures and appurt.
enances and all
associated TRANSMIS-
SION MED'A.
(b) USE: the TELEPHONE
COMPANY's acquisition,
construction, reconstruction,
maintenance or operation of
any FACILITIES in, over,
under, along, through or
across the public R'GHTS-
OF-WAY, for any telecom-
munications purpose what-
soever.
(c) CITY: The City of
Schertz, Texas.
11 0 Legal Notices
(d) R'GHTS,OF,WAY: all
present and future streets,
avenues, highways, alleys,
bridges and public ways
within the city limits of the
CITY,
(e) TRANSM'SSION ME-
DIA: aft TELEPHONE
COMPANY cables, fibers,
wires or other physical de-
vices used to transmit and!
or receive communication
signals, whether analog,
digital or of other character-
istics, and whether for voice,
data or other telecommuni-
cations purposes.
(~ NON,EXCLUS'VE: no
rights provided in this Ordi-
nance by the CITY shalt be
exclusive, and the CITY re-
serves the right to grant
franchises, licenses, ease-
ments 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.
(g) TELEPHONE COMPA,
NY: Southwestern Bell Tel.
ephone Company.
(h) ST'PULAT'ON AND
SETTLEMENT: As filed by
the Settlement Class and
Settling Defendants in con-
nection with Cause No. 0-
142,176 in the 136th District
Court of Jefferson County,
Texas.
SECTION 4 - TERM
(a) Subject to Paragraph
4(b) below, this Ordinance
shall continue for a period of
five (5) years from the ef-
fective date hereof; provided
that at the expiration of the
initial period, such term
shall be automatically ex-
tended for successive peri-
ods of one (1) year, unless
written notice of intent to ter-
minate this agreement is
given by either party not less
than ninety (90) days prior
to the expiration of the then
current period. When such
notice is given, this agree-
ment shall terminate at the
expiration of the then
current period.
(b) Notwithstanding the
term set out in Paragraph
4(a) above, this Ordinance
shall terminate if Final Ap-
proval does not occur as set
forth in the STIPULAT'ON
OF SETTLEMENT.
SECTION 5 - SUPER-
VISION BY CITY OF LO-
CATION OF POLES AND
CONDUITS
All poles p'aced shall be of
sound material and reason.
ab'y straight, and shail be
set so that they will not in-
terfere 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 CITY shall have the 0p-
tion, but not the obligation,
to exercise any and all
lawful, reasonable and
11 0 Legal Notices
-
proper control related to the
location and route of a! 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.
SECTION 6 - A IT ACH-
MENTS TO POLES AND
SPACE IN DUCTS
Nothing contained in this
Ordinance shall be con-
strued to require or permit
any pole attachments for
electric light or power wires
or communications facilities
or systems not provided by
the TELEPHONE COMPA-
NY to be attached to the
TELEPHONE COMPANY'S
poles or other physical plant
or placed in the TELE.
PHONE COMPANY'S con-
duit. If the CITY desires
pole attachments for electric
light or power wires or
communications facilities or
systems not provided by the
TELEPHONE COMPANY.
or if the CITY desires to
place communication facili.
ties or systems not provided
by the TELEPHONE COM-
PANY in any TELEPHONE
COMPANY duel. then a fur-
ther separate, non-
contingent agreement shall
be prerequisite to such
aUachment(s) or such use of
any duct by the CITY.
Nothing contained in this
Ordinance shall ob-
ligate or restrict the TELE-
PHONE COMPANY in ex-
ercising its rights voluntarily
to enter into pole
attachment, pole usage,
joint ownership or other wire
space or facilities
agreements with light
and/or power companies or
with other wiring-using
companies whtch are au-
thorized to operate in the
C'TY.
SECTION 7-STREETS TO
BE RESTORED TO PRE-
EXISTING CONDITION
The surface of any street,
alley, avenue, highway or
public place distUlbed by the
TELEPHONE COMPANY
in building, constructing, re-
newing or maintaining 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 work
and maintained to the satis-
faction of the City Councilor
of any city official to whom
such duties have been or
may be delegated for one (1)
year from the date the sur~
face of said street, alley,
avenue, highway or public
place is broken for 'such
construction or maintenance
work, after which lime re-
sponsibility for the. main-
tenance shall become thA
, ,1 0 Legal Nolices
duly of the CITY; provided,
howpver, that the TELE-
PHONE COMPANY shall
not take up or excavate any
pavement at any time with-
t'ut first securing permis-
SIon, in writing, of the City
Manager or his nominee ex-
cepl in cases of emergen-
cies; and provided further,
thai all excavation and in-
stallation so made shall be
performed in such a manner
as will cause the least in-
convenience to the public.
No street. alley, avenue,
highway or public place
shall be encumbered for a
longer period than shall be
necessary to execute the
work.
SECTION 8-TEMPORARY
REARRANGEMENT OF
AERIAL WIRES
Upon request, the TELE-
PHONE 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 ex-
pense of such temporary
rearrangements shall be
paid by the party or parties
requesting them, and the
TELEPHONE COMPANY
may require payment in ad-
vance. The TELEPHONE
COMPANY shall be given
not less than forty-eight (48)
hours advance notice to ar-
ange for such temporary
l earrangements.
SECTION 9- TREE TRIM-
MING
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 un-
der the supervision and di-
rection of the CITY or of any
CITY official to whom said
duties have been or may be
deleaated.
SECTION 111-lNDEMNIFY
THE TELEPHONE COM-
PANY SHALL INDEMN~
TY AND HOLD THE CITY
HARMLESS FROM ALL
COSTS, EXPENSES (IN-
el UOING .6.TTORNFV'S
11 0 Legal Nolices
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 ac-
cordance with State law or
sales taxes now or hereafter
levied by the CITY in accor-
dance with State law, the
CITY hereby imposes a
Charge upon the Gross Re-
ceipts (as hereinafter de-
fined) of the TELEPHONE
COMPANY. The amount of
the Charge for the first year
this Ordinance is in effect
shall be $40,000.00. In no
event shall such Charge be
less than the above amount
for each year this Ordinance
is in effect, except as pro-
vided in the case of disan-
nexation as set forth in
paragraph 12(e), or as
provided in Section 16
herein.
The TELEPHONE COM-
PANY will, according to tar-
iff, bill such Charge to the
customers billed the cus-
tomer service charges in-
cluded within the term
"Gross Receipts," as de-
fined herein. Gross Re-
ceipts, for the 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 TELE-
PHONE COMPANY'S
Customer Records Infor-
mation System ("CRIS");
(3) such charges are tha re-
curring charges for the local
exchange access rate ele-
ment specified in the TELE-
PHONE COMPANY'S tar-
iff's fi'ed wijh the PUC; and
(4) such charges are subject
to an interstate end user
common line (-EUCL-)
charge as imposed by the
Federal Communications
Commission (the "FCC-).
For the second and subse-
quent years while this Ordi-
nance remains in effect, the
above Charge is subject to
adjustment by application of
the Growth Factor set out in
paragraph 12(c). This ad-
justment for the Growth
Factor will be made effec-
livp. A!!':. of p::!och AnnivAr~rv
11 0 Legal Nolices
tion is completed, the TELE-
PHONE COMPANY wi'l
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 Ac-
counts of state sales taxes
as reported by the TELE-
PHONE COMPANY in
compliance with Sections
151.023 and 151.027 of the
Texas Tax Code Annotated.
The Growth Factor shall be
recomputed to reflect any
final, nonappealable adjust-
ments made pursuant to an
audit finding by the Texas
Comptroller of an inaccura-
cy in the TELEPHONE
COMPANY'S reports of
revenues subject to state
sales taxes. The Charge
shall be recalculated using
the Growth Factor recom-
puted as specified in the
preceding sentence, and
the recalculated Charge
shall be used for all future
calculations required by this
Ordinance. Any ove-
rpayment or underpayment
resulting from such
recalculation shall be
subtracted from or
added to the first installment
due the following year. If any
overpayment or underpay-
ment shall be due during the
final year of this Ordinance,
then payment shall be made
as follows. In the case of
overpayment by the TELE-
PHONE COMPANY, the
CITY shall pay such over-
payment to the TELE-
PHONE COMPANY within
150 days following the expi-
ration of this Ordinance and,
in the case of underpayment
by tha TELEPHONE COM-
PANY. 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 charg-
es. Should the CITY no have
the legal power to agree that
the payment of the
foregoing Charge shall in lieu
of the taxes, licenses,
charges, R'GHT5-QF,WAY
permit or inspection fees,
renta's, RIGHTS-OF-WAY
easements or franchise
l::!o)(p!!::. ::!oforP.AAirt thAn thP. r.itv
11 0 Legal Notices
all future calculations
required by this Ordinance.
SECTION 13-ASSIGN-
MENT OF ORDINANCE
This Ordinance and any
rights or privileges hereun-
der 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
RELEASES
Upon Final Approval, as
defined in the STIP-
ULA TION OF SETTLE-
MENT, the CITY hereby
fully releases discharges,
settles and compromises
any and all claims which the
CITY has made or could have
made arising out of or
connected with Onlinance No
28, adopted October 5,
1959, and renewed or
extended from time to time
thereafter, and its
predecessor ordinances, if
any (hereinafter referred to
collectively as -Ordinance
28"). This full and complete
release of claims for any
matters under Ordinance
28 shall be for the benef~ of
Southwestern Bell Tele~
phone Company; its parent;
its affiliates; their directors,
officers, attorneys and
emptoyees; su~ssors and
assigns; and irdudes any and
all claims, actkms, causes of
action and controversies,
presently known or un-
known, arising directly or
indirectly out of or
connected with the
TELEPHONE COMPANY'S
obligations to the CITY
pursuant to the
provisions of Ordinance 28.
Upon Final Approval as de-
fined in the ST'PULATlON
OF SETTLEMENT, South-
western Bell Telephone
Company, its parent, its af-
filiates, successors and as-
signs hereby fully release,
discharge, settle and com-
promise any and all
claims,actions, causes of
action or controversies
heretofore made or which
could have been made,
known or unknown, against
the CITY, its officers, attor-
neys or its employees, aris-
ing out of or connected with
any matters under Ordi-
nance 28.
II i!!::. Ihl'! intpnt nf thp r.ITV
11 0 Legal Notices
I
,
)
such conflict only, which ~
repeal shall take effect at the )
time and on the date sped- j
fied in the preceding sen- Il
tence.
SECTION 17-FUTURE ~
CONTINGENCY ,I
(a) Notwithstanding Ii
anything contained in this II
Ordinance to the contrary, in ~
the event that (a) this (
Ordinance or any part 'l
hereof, (b) any tariff
provision by which the TEL- j
EPHONE COMPANY 'I
seeks to collect the Charge ~
imposed by this Ordinance, J
or (c) any procedure provid- II
ad in this Ordinance, or (d) .)
any compensation due the ~
CITY under this Ordinance, :I
becomes, or is declared or I'
determined by a judicial ad- :)
ministrative or legislative ~
authority exercising its ju-
risdiction to be excessive, j
unrecoverable, unenforce-
able, void, unlawful or other- f
wise inapplicable, in whole ,:I
or in part, the TELEPHONE d
COMPANY and C'TY shall J
meet and negotiate a new:)
ordinance that is in com- II
pliance with the authority's 1.
decision or enactment and, U
unless explicitly prohibited, :)
the new ordinance shall 'J
provide the CITY with a level :::I
of compensation com- ~
parable to that set forth in this
Ordinance provided that ~a
such compensation is
recoverable by the rL
TELEPHONE COMPANY d
in a mutually agreed '^
manner permitted by :)
law for the unexpired portion :::>
of the term of this Ordi-.:I
nance. 'J
(b) Notwithstanding n
anything contained in the ~
preceding paragraph to the.
contrary, the C'TY and ~
TELEPHONE COMPANY N
agree that in the d
event this Ordinance is sub- d
mitted for review to any
court in which the currently ~
existing case styled City of V
Port Arthur, et al v.
Southwestern Bell Tele- d
phone Company, et ai, "t 2'1
Cause No. D142,176 in the B)
136th Judicia' Court. Jeffer- At,
~on County, Texas is pend- St.
lng, the CITY and TELE-
PHONE COMPANY agree
to take any and aU actions
reasonably necessary to
obtain approval and
ratification of the Ordinance
by the court.
SECTION 18-GOVERNING
law
FFES) AND DAMAGES
TO PERSONS OR PROP-
ERTY ARISING D'RECT-
L Y OR INDIRECTLY OUT
OF THE CONSTRUC-
i ION, MAINTENANCE
OR OPERATION OF THE
TELEPHONE COMPA-
NY'S FACILITIES LO-
CA TED WITHIN THE
PUBLIC RIGHTS-OF-
WAY FOUND TO BE
BASED SOLELY BY THE
NEGLIGENCE OF THE
TELEPHONE COMPANY.
This provision is not intend-
ed to create a cause of ac-
tjon or liability for the benefit
of third parties but salety for
Ihe benefit of the TELE'
PHONE COMPANY and the
CITY; nor is this provision
intended to abrogate the
common law or statutory
rights of either the CITY or
Ihe TELEPHONE COMPA-
NY to indemnity or contribu-
tion from the other.
SECTION 11-ADMINIS-
TRATION OF ORDI-
NANCE
(a) The CITY may, at any
time, make inquiries per-
taining to this Ordinance and
the TELEPHONE COMPA-
NY shall respond to such in-
quiries 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, applica-
tions, communications and
reports submitted by the
TELEPHONE COMPANY
to the Federal Communica-
tions Commission or the
Public Utility Commission
of Texas shall be provided
to the CITY upon request.
(c) The C'TY may establish,
after reasonable notice,
such rules and regulations as
may be appropriate for the
administration of this Ordi-
nance and the construction
of the TELEPHONE COM-
PANY'S FACILITIES on
CITY property to the extent
permitted by law.
SECTION 12-COMPEN.
SA TlON TO THE CITY
(a) As compensation for the
use, occupancy, oversight,
supervision and regulation of
Ihe CITY'S RIGHTS-OF-
WAY and for any other con-
skleration provided by the
CITY under this agreement,
and in lieu of and in full
compensation for any lawful
tax or Ik:snse or charge or
RIGHT -DF-WA Y permn fee
or inspection fee, whether
charged to the
TELEPHONE COMPANY
date of this Ordinance.
The TELEPHONE COM,
P ANY shall adjust its bill-
ings to customers to
account for any
undercollection or over.
collection of the Charge
due the CITY.
(b)The Charge for each
year shall be paid in four (4)
equal payments. The first
payment under this Ordi-
nance shall be due on the
last day at the fifth month
following the effective date
hereof I with subsequent
payments due on the last
day of each third successive
month thereafter during the
tann of this Ordinance. In
the event of any over or un-
dercollection from custom.
ers at the expiration of this
Ordinance, the TELE-
PHONE COMPANY may
make a pro rata one-time
credit or charge to the cus-
tomer 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 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 C'TY.
(c) The Growth Factor shall
be calculated by dividing the
TELEPHONE COMPANY'S
revenues within the corpo-
rate limits of the CITY sub-
ject to state sales taxes
(-Sales Tax RevenuesU) for
the twelve month period
ending three (3) months
prior to the next anniversary
date of this Ordinance by the
Sales Tax Reve'1ues 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
applicab'e. The Growth
Factor calculated by
the method set fort~ in the
preceding sentence, n great-
er than one, shall be multi-
plied by the curtent year's
Charge to determine the
do'lar amount of the Charge
for the next year. If the
Growth Factor calculated
above e is one or less, the
Charge for the next year
shall be equal to the current
yea(s Charge. The TELE-
PHONE COMPANY wiff
adjust its customer billing to
account for the Growth Fac-
tor calculated above. Once
the Growth Factor calcula-
agrees that it will apply so
much of such payments as
may be necessary to the
satisfaction of the TELE-
PHONE COMPANY'S obli-
gation, if any, to pay any
such taxes, licenses, charg.
es, RIGHTS.OF.WAY per.
mit or inspection fees,
rentals, AIGHTS,OF,WAY
easements or franchise tax-
es.
(e) In the event that either
(1) territory within the boun-
daries of the CITY shall be
disannexed and a new in-
corporated municipality
created which includes such
territory or (2) an entire, ex-
isting incorporated munici-
pality shall be consolidated
or annexed in to the CITY,
then notwithstanding any
other provision of this Ordi-
nance, the Charge shall be
adjusted. To accomplish
this adjustment, within thirty
days following the action ef-
fecting a disannexationlan-
nexalion as described
above. the C'TY shall pro-
vide 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 COMPA-
NY to the existing incorpo-
rated municipality being an-
nexed.ln the event th~t the
annexed municipality had no
ordinances imposing a
Charge on the event of a
disannexation, the adjust-
ment to the Charge will ba
calculated using the
effective date of the
imposition of Local Sales
Taxes as deter-
mined by the Texas Comp-
'troller of Public Accounts.
The adjustment shall be the
percent increase/decrease
in the TELEPHONE COM-
PANY'S Gross Receipts as
defined herein for the CITY
for the first calender month
following the Local Sales
Tax effective date compared
to the last month prior to
such affective date. This ad-
justment 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 form that date
through the remeinder of the
payment year. The Charga
as adjusted shall be used for
~-
th
pi,
and the TELEPHONE (a) This Ordinance shall be
COMPANY to enter into the construed in accordance
foregoing mutual releases in with the CITY Charter and
order to reach a compro- CITY Code(s) in effect on
mise that is acceptable to the date of passage of this
both the CITY and the TEL-Ordinance to the extent that m
EPHONE COMPANY. This Charter and Code(s) are not 01
Ordinance and the mutual in conflict with or violation of I
re'eases set forth in this the Construction and laws of , ;:
Section represent a com- the United States or the 0
promise of each party's State of Texas,
claims as well as each par. (b) This Ordinance shall be
ty's defenses, and is not in- construed and deemed to n
Ii
tended to be and is not an have been drafted by -the
admission of liability or vul. combined efforts of the
nerability by either party to CITY and theTELEPHONE
the other with respect to COMPANY.
either the ciaims orthe de- SECTION 19-ACCEPT-
fenses asserted against the ANCE OF AGREEMENT
other, AND EFFECTIVE DATE '~
SECTION 15-ADOPTION The CITY shall deliver a '
OF STIPULATION OF properly certified copy of I
SETTLEMENT this Ordinance to the TELE- -
The CITY hereby adopts. PHONE COMPANY within I
ratifies, confirms, and three (3) working days of its;
agrees to be bound by the final passage. The TELE- '
terms 01 the STIPULATION PHONE COMPANY shall !
OF SETTLEMENT in file its wriUen 'acceptance of
Cause No. D-142,176 in this Ordinance in accor-
the 136th Judicia' District dance with th~ STIPULA-
Court in and lor Jefferson TION OF SETTLEMENT.
County, Texas (the "Class This Ordinanc;:e shall be-
Litigation-), in its entirety, in come become effective be~
all' respects as if the CITY ginning on the first day of the
were an original signatory first calender month which
thereto. The CITY begins not less than thirty
acknowledges that as a (30) days after entry of judg~
member of the Set~ ment, as defined in the
t'ement C'ass in the Clas STIPULATION OF SET-
Litigation it has received TlEMENT.
and reviewed the PASSED AND
STIPULATION OF APPROVED
SETTLEMENT and that the the 6th day of July, 1995.
CITY has had access to Norma Althouse,
andlor has consulted coun- City Secretary
sel, to the extent that it de- ~
sired to do so, in connection CAUSE NO. 95-045&-CV
with ns avaluation 01 the CITATION BY
STIPULATION OF SET- PUBLICATION
TLEMENT, THE STATE OF TEXAS
SECTION 16-REPEAL OF TO: Andrew Newton Cach-
CONFLICTING ORDt- ran, Jr.
NANCES AND AGREE- Rt. 1, Box 56
MENTS Martinda'e, Texas
Ordinance Number 28 Defendant, Greeting:
adopted October 5, t 959, is -You have been sued. You
hereby repealed; provided, may employ an allorney. If
however, such repeal shall you or your aUomey do not
take effect at 11 :59 p.m. on I file a wriUen answer with the
the day immediately pre- I, clerk who issued this cita-
ceding the effective date! tion at or before 10:00
specified in the Section of I o'clock a.m. of the first
this Ordinance entitled - Af;- Monday after the expiration
CEPTANCE OF AGREE- of forty-two days Irom the
MENT AND EFFECTIVE date of the issuance 01 this
~ATE:: The final payment I citation, same being Mon-
(InclUding payment lor any I day, the 3rd day of August,
partial year) under Ordl- 1995 a defauh judgment
nance 28 shall be due 60 I' '_
d f II . th ff ct' may be taken against you.
ays 0 owing e e e Ive
d t f thO Ord' In the above numbered
a eo. IS . Inance, as cause, styled,
set out In SectIOn 19 hereof, ALFREDO ESQUtVEL VB.
All other ordinances and 3-D WELDtNG AND IN.
agreements and parts of or-
dinances and agreements in DUSTRIAL SUPPL V,INC.,
conflict herewith are also AND ANDREW NEWTON
repealed to the extent of , COCHRAN, JR.
, Said Plantiffs PLAINTIFF'S
m
I c
I
11 0 L Jal Nolices
ORDINANCE NO, 95-F-17
AN ORD'NANCE WHER,
EBY THE C'TY OF
SCHERTZ, TEXAS AND
SOUTHWESTERN BELL
TELEPHONE COMPANY
AGREE THAT, FOR THE
PURPOSE OF OPERAT-
'NG 'TS TELECOMMUN',
CATIONS BUSINESS, THE
TELEPHONE COMPANY
SHALL MA'NTAIN AND
CONSTRUCT 'TS POLES.
WIRES. ANCHORS, F'B-
ER, CABLES, MANHOLES,
CONDUITS AND OTHER
PHYSICAL PLANT AND
APPURTENANCES IN.
ALONG, ACROSS. ON,
OVER. THROUGH,
ABOVE AND UNDER ALL
PUBLIC STREETS.
AVENUES, H'GHWAYS,
ALLEYS, SIDEWALKS.
BR'DGES OR PUBLIC
PROPERTY 'N SA'D C'TY;
PRESCR'B'NG THE AN-
NUAL COMPENSATION
DUE THE C'TY UNDER
TH'S ORD'NANCE; PRE,
SCR'B'NG THE COND'-
T'ONS GOVERN'NG THE
USE OF PUBLIC R'GHTS-
OF-WAY AND THE PER-
FORMANCE OF CERTAIN
CONSTRUCTION WORK
ON PUBLIC R'GHTS-OF-
WAY FOR THE TELE-
PHONE COMPANY'S
TELECOMMUNICAT'ONS
BUS'NESS; PROVIDING
AN INDEMNITY CLAUSE;
SPEC'FYING GOVERN,
ING LAWS; PROVID'NG
FOR A RELEASE OF ALL
CLAIMS UNDER PRIOR
ORDINANCES; PROV'D-
'NG FOR FUTURE CON-
T'NGENC'ES; PROV'D-
'NG FOR WR'TTEN AC-
CEPTANCE OF THIS OR-
D'NANCE BY THE TELE-
PHONE COMPANY; AND
PROVIDING FOR A TERM
AND AN EFFECT'VE
DATE.
WHEREAS, Southwestem
11 0 Legal Not,ces
Bell Telephone Company
(hereinafter referred to as
the "TELEPHONE COM-
PANY") is now and has
been engaged in the tele.
communications business
in the State of Texas and in
furtherance thereof, has
erected and maintained cer-
tain items or its physical
plant in the City of Schertz,
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 sub-
ject to the reasonable exer-
cise of the powers granted
by and under said laws to
the CITY and as reflected in
prior Ordinances of the
CITY; and
WHEREAS, the TELE-
PHONE COMPANY has
operated its telecommuni-
cations business in the CITY
under successive ordinanc-
es of the CITY I the last of
which was Ordinance
Number 28, adopted Octob-
er 5, 1959, which provided
compensation to the CITY
for that agreement based
upon a percentage of gross
receipts received by the
TELEPHONE COMPANY
from certain services ren-
dered within the corporate
limits of the CITY; and
WHEREAS, certain dis-
putes have arisen regarding
those prior Ordinances and
it is recognized by the par-
ties that changes in the
telecommunications industry,
changes in technology,
changes in state and federal
law, and changes in the ac-
counting practices
mandated by the Uniform
System of Accounts
promulgated by the Federal
Communications Comrrission
("FCC"), a'ong with
regulatory requiremenlS of the
Texas Public Utility
Commission rpUC~), have
caused the traditional
method 01 deter-
mining the amount of <Xlm-
_tton to municipalities
to beoome admlnlslratively
Impractical for telecom-
munications utIlnies. In or-
der to reooIve these Issues
In a mamer sall8factory to
both the CITY and the TEL-
EPHONE COMPANY, the
CITY and the TELEPHONE
COMPANY have chosen
the meIhod d _no .'91he
amount of compansatlon
provided for In lhIa Ord~
nance to eliminate the ex-
_ and time related to
audits, to achieve admlnls-'
tralIve simplicity, to provide
the CITY with pnKlictable
~venues and an
~.lorglDWth and to
avoid the expense and
. delays 01 funher litigation
which otherwise would be
n8cessary to resolve the
Ilsues In controversy
between the panles;
and
WHEREAS, tt Is to the mu-
tual edvantage 01 both the
CITY and the TELEPHONE
COMPANY that an sgree-
ment should be entered Into
11 0 Legal Notices
between the TELEPHONE
COMPANY and the CITY
establishing the conditions
under which the TELE-
PHONE COMPANY shaff
maintain and construct its
physical plant in the CITY in
the future;
NOW, THEREFORE, BE IT
ORDA'NED BY THE C'TY
COUNC'L OF THE C'TY
OF SCHERTZ, TEXAS,
THAT:
SECTION I-PURPOSE
Pursuant to the laws of the
State 01 Texas, the C'TY
Charter and this Ordinance,
lhe TELEPHONE COMPA-
NY has the NON-EXCLU-
SIVE right and privilege to
USE the public R'GHTS-
OF-WAY in the C'TY lor
the operation of a telecom-
munications system subject
to the restrictions set forth
herein. The TELEPHONE
COMPANY may USE such
RIGHTS-OF-WAY for its
telecommunications FACIL-
IT'ES. The TELEPHONE
COMPANY'S FAC'L1T1ES
and TRANSMISS'ON ME-
DIA used in or incident to the
provision of telecommuni-
cations service and to the
maintenance of a telecom-
munications business by
the TELEPHONE COM-
P ANY in the CITY shaff
remain as now constructed,
subject to such changes as
under the conditions
prescribed in this
Ordinance may be consid-
ered necessary to the public
heaffh and safely by the
CITY in the exercise of its
lawful powers and such
changes and extensions as
may considered necessary
by the TELEPHONE COM-
P ANY in the pursuit of its
telecommunications busi-
ness. The terms of the Or-
dinance shalf apply through-
out the C'TY, and to aff op-
erations of the
TELEPHONE COMPANY
within the CITY, and shalf
include IIll operations and
FACIUTIES used In whole
or In pan in the provision of
teIecanuTu-.s_
in newty anne~ed areas
upan the eIIecIMI dele of 8lf'J
annexation.
SEcnON 2- ADDITION-
AL AUTHORITY RE-
QUIRED
The TELEPHONE COM-
PANY Is not auth0ri2ed to
provide cable t....lSlon
servic8 88 a cable operator
In the CITY underthls 0rdI-
nance, but mUlllllrsl obIain
a franchise from 1he CITY for
tha1 purpose, under 'SUCh
terms and conditione sa
may be requlnKl by law.
SECTION.3- DEFINI110NS
Whenever used In thIS 0rdI-
nance, the following wonls
and terms shall have the
definltlons and meanings
provided In thIS SectIon:
(a) FACIUTES: all TELE-
PHONE COMPANY duct
spaces, manhofes, poIee,
conduits, underground and
overhead passageways,
and other equIpment,
structures and appur.
tenances and aU
11 0 Legal Notices
associated TRANSMIS-
SION MEDIA.
(b) USE: the TELEPHONE
COM P ANY's acquisition,
construction, reconstruction,
maintenance or operation of
any FAC'L1TIES In, over,
under, along, through or
across the public RIGHTS-
OF-WAY, for any telecom-
munications purpose what-
soever.
(c) C'TY: The Cily of
Schertz, Texas.
(d) RIGHTS,OF.WAY: ell
present and future streets,
avenues, highWays, alleys,
bridges and public ways
within the city limits of the
C'TY.
(e) TRANSMISSION ME-
DIA: all TELEPHONE
COMPANY cables, fibers,
wires or other physical de-
vices used to transmit andf
or receive communication
signals, whether analog,
digital or of other character.
istics, and whether for voice,
data or other telecommuni-
cations purposes.
(n NON-EXCLUSIVE: no
rights provided in this Ordi-
nance by the CITY shall be
exctusive, and the CITY re--
serves the right to grant
franchises, licenses, ease-
ments or permissions to
use the pub'ic RIGHTS.QF-
WAY within the CITY to any
person or entity as the
CITY, in its sole discretion,
may determine to be in the
public interest.
(g) TELEPHONE COMPA-
NY: Southwestem Bell Te'-
ephone Company.
(h) STIPULATION AND
SETTLEMENT: As filed by
the Settlement Class and
Settling Defendants in con--
nection with Cause No. [)..
142, 176 In the 136th District
Court of Jefferson County,
Texas.
SECTION 4 - TERM
(0) Subject to Paragraph
4(b) be'ow, this Ordinance
shall continue for a perlod of
five (5) yeal1l from the eI-
Iective date IteIwof; provided
that at the 8lIpIratton of llIe
Inttlal period, SuClh Ienn
shall be aulllmat~ ex-
tended for SUCClIIIl!Ive perl-
ods of one (1) year,_
wrtt1en _ of Intent to ter-
minate lhIa eg_nt IS
given by _ paI1y not Iesa
than ninety (90) days prior
to the expiration of the lhen
current period. When SUCh
notlc.18 givan, thIS agree-
ment .haN tennlnate.at the
expiration 01 the lhen
current period.
(b) Notwtthatandlng the
teRn sot out In Paragl1lph
4(a) above,thIe 0ldInance
'shall terminate If FfnaI Ap-
proval does not occur 88 set
forth in the STIPULATION
OF SETTLEMENT.
SECTION 5 - SUPER-
VISION BY CITY OF L0-
CATION OF POLU AND
CONDUITS
All poles placed shall be of
sound material and """""'"
ably streight, and shall be
set SO that they wtll not In-
temre with lhe flow of water
In any gutter or dreIn, and so
11 0 Legal Notices
that the same will not unduly
interfere with ordinary travel
on the streets or sidewalks.
The C'TY shaff have the op-
tion, but not the obligation,
to exercise any and all
lawful, reasonable and
proper control related to the
location and route of all poles,
stubs, guys, anchors,
conduits, fiber and cables
pIaoed and consIructed by \he
TELEPHONE COMPANY
in the construction and
maintenance of its
telecommunications system
In the CITY.
SECTION 6 - ATTACH-
MENTS TO POLES AND
SPACE IN DUCTS
Nothing contained in this
Ordinance shall be con-
strued to require or permit
any pole attachments for
electric light or power wires
or communications facilities
or systems not provided by
the TELEPHONE COMPA-
NY to be attached to the
TELEPHONE COMPANY'S
poles or other physical p'ent
or placed in the TELE-
PHONE COMPANY'S con-
duit. If the CITY desires
pole ettachmentslor 8Iectric
light or power wires or
communications facilities or
systems not provided by the
TELEPHONE COMPANY,
or if the CITY desires to
place communication facili-
ties or systems not provided
by the TELEPHONE COM-
PANY In any TELEPHONE
COMPANY duct, then a fur-
ther separate, non.
contingent agreement shall
be prerequisite to such
attachment(s) or such use of
any duct by the CITY.
Nothing contained in this
Ordinance shall ob-
ligate or restrict the TELE-
PHONE COMPANY In ex-
ercising its rights voluntarily
to enter into pole
attachment, pole usage,
joint ownership or other wire
space or lacllttles
agreemenl. wtth tight
and/or power COIlIp8I1iee or
with other wtllog.-Ullng
COIIlp8niM _.are ....
tholtzed to operate In the
CITY.
SECTION 7-8TREETS TO
BE RESTORED TO PRE-
EXISTING CONDIl1ON
.The surface of any street,
alley, avenue, hIghWay or
po&lIic place dI8Iurbed by 1he
TELEPHONE COMPANY
In IlUIIdIng, oonstrllCting, re-
Mwtng or maInlaining tts
IllleCoQlmwlicatlollllyste",
shall be rutored within a
reuonable time after the
compIeIIon of the ~ to. 88
good . condIIlon sa beI<lj"e
1he~of_
and rnaintaIned to the satIa-
f8ctIon of the CIIY CouncIl or
of any city offictal to whom
ouch dutiee have been or
may be delIgaIId bone (1)
Y8II from lhe datlt the sur-
'- of IIl!kI *-I. alley,
avenue, highway or public
pIace.18 broken lor ouch
00I1Ilru!:tl0n or rnaintenence
work, after which time re-
sponsibility lor the main-
tenance shall becofne the
11 0 Legal Nollces
11 0 Legal Notices
duty 01 the C'TY; provided, PHONE COMPANY and the
however, that the TELE- CITY; nor is this provision.
PHONE COMPANY shall intended to abrogate the
not take up or excavate any common law or statutory
pavement at any time with- rights of either the CITY or
oct first securing permis- the TELEPHONE COMPA-
sion, in writing, of the City NYtoindemnityorcontribu.
Manager or his nominee ex- tion from the other.
cept in cases of emergen- SECTION l1-ADMINI8-
cies; snd provided further, TRATION OF ORDI-
that ell excavation and In- NANCE
stellation so made sheff be (a) The C'TY may, at any
performed in such a manner time, make inquiries per~
as will cause the least in- taining to this Ordinance and
convenience to the pub'ic. the TELEPHONE COMPA-
No street, alley, avenue, NY shall respond to such in-
highway or public place qulries on a timely basis by
shall be encumbered for a providing information which
longer period than shall be is prepared, maintained and
necessary to execute the available in the ordinary
work. course of business.
SECTION 8-TEMPORARY (b) Copies of specifically
REARRANGEMENT OF Identified petitions. app'ica-
AERIAL WIRES tions, communications and
Upon request. the TELE- repons submitted by the
PHONE COMPANY shall TELEPHONE COMPANY
remove or raise or lower its to the Federal Communica-
aerial wires, fiber or cables tions Commission or the
temporarily to permit the Public Utility Commission
moving of houses or other of Texas shall be provided
bulky structures. The ex- to the CITY upon request.
pense 01 such temporary (c) The CITY may establish,
rearrangements shall be after reasonable notice,
paid by the party or panies such rules and regulations as
requesting them. and the may be appropriate for the
TELEPHONE COMPANY administration of this Oldl-
may require payment in ad- nance and the construction
vence. The TELEPHONE 01 the TELEPHONE COM-
COMPANY shall be given PANY'S FACILITIES on
not 'ass than lorty-elghl (48) CITY proparty to the extent
hours advance notice to ar. permitted by law.
range lor such temporary SECTION 12-COMPEN-
rearrangements. SA TION TO THE CITY
SECTtON 9-TREE TRIM- (a)Ascompensatlonlorthe
MING use, occupancy, oversight,
The right, license, privilege supervision and regulation of
and permission is hereby the CITY'S R'GHTS-OF-
granted to the TELEPHONE WAY and for any other <XlI>-
COMPANY, tts contractol1l sideratlon provided by the
and agents, to trim trees CITY under this agreement,
upon and overhanging the and in lieu of and in full
streets, avenues, highways, compensation for any lawful
alleys, sidewalks and public tax or license or charge or
places 01 the CITY so es to R'GHT .QF-WA Y perm" fee
prevent the branches of or inspection fee, whether
such trees from coming in charged to the
contact wtth the eerial wires. TELEPHONE COMPANY
fiber or cables of the or its contractor(s), or any
TELEPHONE COMPANY, RIGHT-OF-WAY easement
and wtien so dhllcted by 1he or _ or alley rental or
Crrv;eeldtrtmmlngshallbe lranchlee tax or other
_ under the IllpefVisIoo oIlaraCler of oIlarge
and dktctlon of the ClTYor for.... end 0flCI4l8IlCY of the
ofanyClTYoftIcfaItowhom RIGHTs-OF-WAY within
seldcUa.twwbeenormey the CITY, axcept the usuaJ
be delegated. general ad vaIonlm taxes,
SEC11ONl_DEIiINIFY special_mente in ac-
THE' TELEPHONE COM- _ wtth State law or
PIIHY 8HALL INDEIIIO- ___or'-lter
TY AND HOLD. THE CITY levied by the CITY In accor-
HARMLESS FROM ALL dance wtth S1ate law, the
. COSTS, EXPENSES (IN- CITY hereby imposes a
CLUDlNG A TTORNEY'SCharge upon the GIIl88 Re-
FEES) AND DAMAGES ceipte (88 hereinaner de-
TO PERSONS OR PROp. fined) of the TELEPHONE
ERTY ARISING DIRECT. COMPANY. The amount of
L Y OR INDIRECTLY OUT the Charge for the firsl year
OF. THE CONSTRUe- thIa Onllnenoa Ie In effect
nON, MAlN""'''NCE shaD be $40,000.00. In no
OR OPERATION OF THE event sheti SUCh Charge be
TELEPHONE COMPA- _thantheeboveamount
NY'S FAClUnES LQ- for each y8arthls OrdInance
CA TED WITHIN THE ie In effect, except 88 pro-
P,",UC RIGHTS-OF- vided In the case of dIsan-
WAY FOUND TO.,. naxatIon. as set forth In
IIA11EiUOLELYU'htE .pal1lflteph 12(e), or a.
NEGUGENCE 0' TIll: 'provt48d In Seo1lon 16
.TELEPHONE COMPIIHY. herein,
This provlllon 18 not Intend- The TELEPHONE COM-
ed to oreal. a CllIUIlI of eo- PANY wtll, accordtng to tar-
lion or IIablIIty Iortha benefit Iff, biU such Charge to the
of third parties but eoIaIy for cuatomell billed the cue-
the . benefit of the TELE- torner servtce oIlargee in-
11 0 Legal Nollces
I
eluded within the term
NGross Receipts,. as de-
- fined herein. Gross Ae-
.- ceipts, for the 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 TELE-
PHONE COMPANY'S
Customer Records Infor-
mation System ("CR'S");
(3) such charges are the re-
curring charges for the local
exchange access rate ele-
ment specified In the TELE-
PHONE COMPANY'S tar-
iffs fi'ed 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 (the "FCC').
For the second and subse-
quent years while this Ordi-
nance remains in effect, the
above Charge is subject to
adjustment by application of
the Growth Factor set out in
peragreph 12(c). This ad-
justment for the Growth
Factor will be made effec-
tive as of each anniversary
date of this Ordinance.
The TELEPHONE COM-
PANY shall adjust its bill-
ings to . customers to
account for any
undercollection or over-
collection of the Charge
due the CITY.
(b)The Charge for each
year shall be paid in four (4)
equal peyments. The first
payment under this Ordi-
nance shall be due on the
'ast day of the fifth month
following the effective date
hereof, with subsequent
payments due on the last
day 01 eeoll third successive
month thereafter during the
term of this Ordinance. In
the event of any over or un.
_ from oueto....
el1l at the explre\ton of \hie
Ordinance, the TELE-
PHONE COMPANY may
make a pro rata one-lime
credit or charge to the cue-
tomer billing lor affected
customers who are bIIed lor
a _ Included within
GIIl88 Receipts, sa daffned
iii paragl1lph 12(a). This '
wll be accomplished within '
150 following the date 01
._ dthls OrdInance.
"Ilowever, tt 18 Impractical
to credit any overcoIlectlon
to cuetomell, than SUCh
overcollectlon shaB be paid
to the CITY.
(e) The GIOWth Factor shall
be calculated by ~ 1he
TELEPHONE COMPANY'S
revenues within the <Xlrpo-
rate Umits of the CITY !RIb-
ject to state _ taxes
('Salas Tax Revenues') for
tha twelve month period
ending three (3) months
prior to the next anniversary
date of this 0nIInance by 1he
SliIa. Tax Revenues for
the twelve month period
ending three (3) months
prior to etther the Initial
1 0 Legal Notices
(e) In the event that either
(1) territory within the boun- aetton and controversies,
daries of the CITY shall be presently known or un-
effective date or the disannexed and a new in- known, arising directly or
preceding anniversary date corporated municipality indirectly out of or
at this Ordinance, as created which includes such connected with the
app'icab'e. The Growth territory or (2) an entire, ex. TELEPHONE COMPANY'S
Factor calculated by isting incorporated munict- obligations to the CITY
the method set forth in the pality shall be consolidated pursuant to the provisions of
preceding sentence, if great- or annexed in to the CITY, Ordinance 28. Upon Final
ar than one, shall be multi- then notwithstanding any Approval as defined in. the
plied by the current year's otherprovisionofthisOrdi- STIPULATION OF
Charge to determine the nance, the Charge shall be SETTLEMENT, South-
dollar amount of the Charge adjusted. To accomplish western Bell Telephone
for the next year. If the this adjustment, within thirty Company, its parent, its af.
Growth Factor calculated days following the action af. filiates, successors and as-
above e is one or less, the facting a disannexationlan- signs hereby fully release,
Charge for the next year nexation as described discharge, settle and com-
shall be equal to the current above, the CITY shall pro-- promise any and all
yea(s Charge. The TELE- vide the TELEPHONE claims,actions, causes of
PHONE COMPANY will COMPANY with maps of action or controvelllies
adjust its customer billing to the affected araa(s) showing heretofore made or which
account for the Growth Fac. the new boundaries of the could have been made
tor calculated above. Once CITY. known or unknown, against
the Growth Factor calcula- In the event of an the CITY, its officers, attor-
lion is completed, the TELE- annexation as described ney~ or ,its emPloyees, arts-
PHONE COMPANY will above, the Charg.e for the inM1!t!,f~~co,nnect~~,
proVide the CITY w"h the i CITY Will be adjusted to any tirallers under" ofdl;
Sales Tax Revenues upon include the amount of the nance 28.
which the Growth Factor I payment by the It is the intent of the CITY
calculation was based TELEPHONE COMPA. and the TELEPHONE
The CITY agrees to' rely ! NY to the. existing i~corp()- COMPANY to enter into Ihe
upon audits by the Texas , rated municipality being an- foregoing mutual releases in
ComptroUer of Public Ac- nexed. In the event that the order to reach a compro-
counts of state sales taxes amexed municipality had no mise that is acceptabit to
as reported by the TELE- ordinances imposing a both the CITY and the TEL-
PHONE COMPANY in Charge on the event of a EPHONE COMPANY. This
compliance with Sections ctisanneXlition, the adjust- Ordinance and the mutual
151.023 and 151.027 of the ment to the Charge will be rele...s set forth in this
Texas Tax Code Annotated calculated using the Sectton represent a com-
The Growth Factor shall ~ effective date of the promise of each party's
recomputed to reflect any imposition of Local Sales claims as well as each par.
final, nonappealable adjust- Taxes as determined by ty's defenses, and is not in-
ments made pursuant to an the T exa~ Comp- tended to be and is not an
audit finding by the Texas troIler?f Public Accounts. admission of liability or vul-
Comptroller of an inaccura- The adjustment shall be the nerability by either party to
cy in the TELEPHONE percent increase/decrease the other with respect to
COMPANY'S reports of in the ,TELEPHONE COM- either the claims or the de-I
revenues subject to state PANY S Gross Receipts as fenses asserted against the,
sales taxes. The Charge defined herein for the CITY other.
shalf be recalcu'ated using for the filllt calender month SECTION l5-ADOPTlON
the Growth Factor recom. following the Local Sales OF STIPULATION OF'
puled as specified in the Tax effective date compared SETTLEMENT
preceding sentence and i to the last month pnor to The CITY hereby adopts,
the recalculated Charge ~ effective date. This ad- ratifies, confirms, and
shall be used for alf future lustment to the Charge wiff agrees to be bound by the
calculations required by this be made on the fil1ll day of terms of the STIPULATION
Ordinance. Any over- the second month following OF SETTLEMENT in
payment or underpayment the Local Sales Tax Cause No. 0-142,176 in
resulting from such effective date and the the 136th Judicial District
recalculation shall be adjusted Charge shall be Court in and for Jefferson
subtracted from or prorated form that date County, Texas (the "Class
added to the first installment through the remainder of the Utigation"), in its entirety, in
due the following year. II any payment year. The Charge all respects as if the CITY
overpayment or underpay- as adjusted shall be used for were an original signatory
men! shall be due during the all future caicu'ations thereto. The CITY
final year of this Ordinance, required by this Ordinance. acknowledges that as a
then payment shalf be made SECTION l3-ASSIGN- member of the Set-
as follows. In the case of MENT OF ORDINANCE Uemont Class in the Clas
overpayment by the TELE- This Ordinance and any Utigation it has received
PHONE COMPANY, the rights or privileges hereun- and reviewed the
C'TY shall pay such over, der shall not be assignab'e STIPULATION OF
payment to the TELE, to any other entity without SETTLEMENT and that
PHONE COMPANY within the express consent of the, the CITY has had acce.. to
150 days following the expi. CfTY. Such consent shall be ' and/or has consulted coun-
ration of this Ordinance and, evidenced by an ordinance sel, to the extent that it de-
in the case of underpayment which shall fully recite the sired to do so, in connection
by the TELEPHONE COM- terms and cond"ions, if any. with"s evaluation of the
PANY, the TELEPHONE upon which such consent is ~~:MUE~;ION OF SET-
COMPANY shall pay such given. .
underpayment to the CITY SECTION l4-MUTUAL SECTION 16-REPEAL OF
-., 150 days IoIowIng Ihe RELEASES CONFLICTING ORDI-
..pre.lion. of this Ordinance. . Upon Fina' Approva', as I NANCES AND AGREE- !
.J!I}...!!~JU,jiYWI8QtS shall defined in the MENTS
not r;'li.vij"'~' the' STIPULATION OF ,Ordinance Number 28
TELEPHONE"tl'!MPANY SETTLEMENT, the CITY adopted OctoberS, 1959, is
from paying all hereby fully releases hereby repealed; provided,
applicable municipally- discharges, setlles and however, such repeal shall
owned utility service charg_ compromises any and all take eff~ at 11 :59 p.m. on
as. Should the crrv no have claims which the CITY has the day Immediately pre-
the legal powerto agree that made or could have made ceding the effective date
the payment of the arising out of or connected . ~ified in the Section of
foregoing Charge shaI in leu with Ordinance No 28.; thIS Ordinance ent"led 'ACe
of the taxes, licenses" adopted October 5, 1959, CEPTANCE OF AGREE-
charges, RIGHTS-OF-WAY and renewed or extended MENT AND EFFECT'VE
permit or inspection fees,' from time to time thereafter, l?ATE:: The final payment
rentals, RIGHTS-OF-WAY and its predecessor ordi- (lncl.udlng payment for any
easements or franchise nances, if any (hereinafter partial year) under Ordi-
taxes atoresaid then the City I referred to collectively as nance 28 shall be due 60
agrees that it :.viii appty so ' "Ordinance 28"). This full days folJowing the effective
much of such payments as and complete release of date of this Ordinance, as
may be necessary to the claims for any matters un- set out in Section 19 hereof.
satisfaction of the TELE- der Ordinance 28 shall be All other ordinances and
PHONE COMPANY'S obl~ for the benefit of Southwest. a~reements and pans of or.
gatton, if any, to pay any em Bell Telephone Compa- dl~andagreementsin
such taxes, licenses, charg- ny;. its .parent; its affiliates; conflict herewith are also
es, RIGHTS.OF-WAY per- the" dlrectOlll, officelll. at- repealed, t~ the extent of
mit or inspection fees. torneys and employees; such conflict only, which
renta's, RIGHTS-OF-WAY successors and assigns; repeahhalllakeeffectatlhe
easements or franchise tax- and includes any and all time and on the date speci-
es. claims, actions, causes of
fied in the preceding sen-
tence.
SECTION 17"FUTURE
CONTINGENCY
(a) Notwithstanding any-
thing 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 TEL-
EPHONE COMPANY
seeks to collect the Charge
imposed by this Ordinance,
or (c) any procedure provid-
ed in this Ordinance, or (d)
any compensation due the
CITY under this Ordinance
becomes, or is declared o~
determined by a judicial ad-
ministrative or legislative
authority exercising its ju-
risdiction to be excessive
unrecoverable, unenforce~
able, void, unlawful or other-
wise inapplicable, in whole
or in part. the TELEPHONE
COMPANY and CITY shaff
meet and negotiate a new
ordinance that is in com-
pliance with the authority's
decision or enactment and.
unless explicitty prohibited,
the new ordinance shall
provide the CITY with a level
of compensation compa-
rable 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 Ordi-
nance.
(b) Notwithstandinganything
contained in the preceding
paragraph to the contrary,
the C'TY and TELEPHONE
COMPANY agree that in the
event this Ordinance is sub-
mitled for review to any
court in which the currently
existIng case sly'ed City of
Port Arthur, et al v.
Southwestern Bell Tele-
phone Company, et ai,
Cause No. D142, 176 in the
136th Judicial Court, Jeffer-
son County, Texas is pend-
ing, the CITY and TELE,
PHONE COMPANY agree
to take any and all actions
reasonably necessary to
obtain approval and
ratificatton of the Ordinance
by the court.
SECTION la-GOVERNING
LAW
(a) This Ordinance shaff be
construed in accordance
with the CITY Charter and
C'TY Code(s) in effect on
the date of passage of this
Ordinance to the extent that
Charter and Code(s) are not
in conflict with or violation of
the Construction and 'aws of
the, Un"~ State$ or the
~,~,qtI~..\(!IL, ""'-' , .". .
(b) This Ori:tinance shall be
construed and deemed to
have been drafted by the
combined efforts of the
C'TY and the TELEPHONE
COMPANY.
SECTION la-ACCEPT-
ANCE OF AGREEMENT
AND EFFECTIVE DATE
The C'TY shaff deliver a
properly certified copy of
this Ordinance to the TELE-
PHONE COMPANY within
three (3) working days of its
fina' passage. The TELE.
PHONE COMPANY shall
file. its written acceptance of
this Ordinance in accor-
denee with the STIPULA-
T'ON OF SETTLEMENT.
This Ordinance shall be-
come become effective be-
ginning on the first day of the
first calender month which
begins not less than thirty
(30) days after entry of judg-
ment, as defined in the
STIPULAT'ON OF SET-
TLEMENT.
I
PASSED AND
APPROVED
the 6th day of Ju'y. 1995.
Norma Althouse
City Secretary ,
I
THE STATE OF TEXAS,
,
PUBLISHER'S AFFIDAVIT
Lv1 tL
.,l~~ /YV
/;J ~bq.8
County of Guadalupe
Before me, the undersigned authority, on this date personally appeared r. ~ RF.YNor.ns
known
to me, who, being by me duly sworn, on his oath deposes and says that he is the Publisher of The Seguin
Gazette-Enterprise, a newspaper published in said county; that a copy of the within and foregoing
notice
was pUblished in said newspaper c:< times before the return day named therein, such
publications being on the following dates:
Sj-'J/>JU 9' I } qq 5'
iJ.u~ 15: /qqS- (Ai go ~
and a newspap"''''py a/which. _ "fach:~~
Sworn to and subscribed before me, this )i.tJ ~ day of ~~ A.D., 19 q ~
'~It
/f.-)~--"'~:.'-"'~~~('..\ MARGARET L. CLARKSON
i., ~\;f(:' ~ NotlIyPublic,StateotTelI<1S
\ ~>,.0._,/'~ j MyCommisskm E~in5Jal114, 1998
11~~t:-;;f"~~:+-:"'-
"...............
~~~~
Notary Public, Guadalupe County, Texas
. ,~-~ ~
, -----1~~__--
~ ~- - ' --,~~~
. "
AN ORDINANCE
WHEREBY THE CllY OF
SCHERTZ, TEXAS AND
SOUTHWESTERN BELL
TELEPHONE COMPANY
AGREE THAT, FOR THE
PURPOSE OF OPERAT-
ING ITS TELECOMMUNI-
CATIONS BUSINESS, THE
TELEPHONE COMPANY
SHALL MAINTAIN AND
CONSTRUCT ITS POLES,
WIRES, ANCHORS, FIB-
ER, CABLES, MANHOLES,
CONDUITS AND OTHER
PHYSICAL PLANT AND
APPURTENANCES IN.
ALONG, ACROSS, ON,
OVEH. THROUGH,
ABOVE AND UNDER ALL
PUBLIC STREETS,
AVENUES, HIGHWAYS,
ALLEYS. SIDEWALKS,
BRIDGES OR PUBLIC
PROPERlY IN SAID CllY;
PRESCRIBING THE AN-
NUAL COMPENSATION
DUE THE CllY UNDER
THIS ORDINANCE; PRE-
SCRIBING THE CONDI-
...
TIONS GOVERNING THE
USE OF PUBLIC RIGHT-
OF"WAY AND THE PER-
FORMANCE OF CERTAIN
CONSTRUCTION WORK
ON PUI!L1C RIGHT-OF.
WAY FOR THE TELE-
PHONE COMPANYS
TELECOMMUNICATIONS
BUSINESS; PROVIDING
AN INDEMNITY CLAUSE;
SPECIFYING GOVERN-
ING LAWS; PROVIDING
FOR A RELEASE OF ALL
CLAIMS UNDER PRIOR
ORDINANCES; PROVID-
ING FOR FUTURE CON-
TINGENCIES; PROVIDING
FOR WRITTEN ACCEPT-
ANCE OF THIS ORDI.
NANCE BY THE TELE-
PHONE COMPANY; AND
PROVIDING FOR A TERM
AND AN EFFECTIVE
DATE.
Approved on first reading
the
6th day of June, 1995.
Nonna A~house,
City Secretary
.'1' .
AN ORDINANCE
WHEREBY THE CllY OF
SCHERTZ, TEXAS AND
SOUTHWESTERN BELL
TELEPHON~ COMPANY
AGREE THAT, FOR THE
PURPOSE OF OPERAT.
ING ITS TELECOMMUNI-
CATIONS BUSINESS, THE
TELEPHONE COMPANY
SHALL MAINTAIN AND
CONSTRUCT ITS POLES.
WIRES, ANCHORS, FIB-
ER, CABLES, MANHOLES,
CONDUITS AND OTHER
PHYSICAL PLANT AND
APPURTENANCES IN,
ALONG. ACROSS, ON.
OVER, THROUGH,
ABOVE AND UNDER ALL
. PUBI;1C-" "'STREETS.
AVENUES, HIGHWAYS,
ALLEYS, .S'DEWALKS,
BRIDGES OR PUBLIC
PROPERlY IN SAID C'lY;
PRESCRIBING THE AN-
NUAL COMPENSATION
DUE THE CllY UNDER
THIS ORDINANCE; PRE,
SCRIBING THE CONDI-
TIONS GOVERNING THE
USE OF PUBLIC fliGHT,
OF-WAY AND THE PER-
FORMANCE OF CERTAIN
CONSTRUCTION WORK
ON PUBLIC RIGHT-OF-
WAY FOR THE TELE-
PHONE COMPANY'S
TELECOMMUNICATIONS
BUSINESS; PROVIDING
AN INDEMNllY CLAUSE;
SPECIFYING GOVERN-
ING LAWS; PROVIDING
FOR A RELEASE OF ALL
CLAIMS UNDER PRIOR
ORDINANCES; PROVID-
ING FOR FUTURE CON-
TINGENCIES; PROVIDING
FOR WRITTEN ACCEPT,
ANCE OF THIS ORDI-
NANCE BY THE TELE.
PHONE COMPANY; AND
PROVID'NG FOR A TERM
AND AN EFFECTIVE
DATE.
Approved on first reading
the 6th day of June, 1995.
Nonna Althouse.
City Secretary
SENT BY:
0161261
June 6
June
June 14
July 6
July 7
July 14
July 15
July _
6- 1-95 2:48PM ;FULBRIGHT & JAWORSKI~ 07828150946593204#;# 2/ 2
Acceptance of SWB'f Settlement Ofrer
SehedJJle
First reading of ordinance
Publication of synopsis of ordinance
Work seMion concerning settlement offer and final reading
of ordinance
Accept settlement and final reading and adoption of
ordinance
First publication of full ordinance
Second publication of full ordinance
City files Affidavit of City Attorney, certified copy of
ordinance, and certified copy of city charter with SWBT,
SWBT counsel, and Court
SWBT files acceptance of ordinance with City
COVER SHEET
**************************************************************
TO:
~ 1/ ~L-4
~Lec-"'e/
DATE:
b'" ~cf-:l~
FROM:
'a/~ ...~tl
,J
NAME OF SENDER ~~ t2tLL~
NUMBER OF COPIES j'
(INCLUDING THIS PAGE)
**************************************************************
SUBJECT:
~5tu ~tl..2tA#v:)
v "
A.(..z:-,z ~(.j tl "L?'~.tL Y; ,J
j- !LCcMd't./C!'
L "Ld ;IL-C.'v I~ . ~.
0- Le... '-- .(.0 :""6 - ~~i.l.t?C..-.'
Q::1:t ~.l-L /1-# -dJ k/Lrd.d'LL /Lt.L;i- ~~
~ f:.~ ~~ ~f (jali /~ {i~~
~t1,--_ ~_P 0.n;.L J~~
,
dULIL'P:ILC/0
fS- ;:--/1
COS Form No. F0001 (Rev. 3-91)
RECEIVING THIS
, 7 / ~ : I)... f.tY^
fV<>-te. h
'\'V,,~:\,e-cl 'fr/V ~ tv~clL
+0 ~0 4'7,. <(;00'[;( .
JJ. ~ IJ...,.... \?..L.' C"UI"et,!
F'J4.t> J 00 0 CJ5 , ... ~ "\
"'.cALO N J Irs. Ki5
PLEASE CALL IF YOU HAVE ANY PROBLEMS
TRANSMISSION.
f~~~'dEII'J'~~ _ 1400 SCHERTZ PARKWAY
P.O. DRAWER 1
~... ,. ~ SCHERTZ, TEXAS 78154-0890
~Rro~i-S'7 AC (210) 658-7477
FAX (210) 659.3204
FAX COVER SHEET
**************************************************************
FROM: tli 41 ~
TO: ~~r ?;f~~
DATE:
h -o11-fS-
NAME OF SENDER ~ ~ NUMBER OF COPIES ~
(INCLUDING THIS PAGE)
**************************************************************
,
SUBJECT:
d~4A1V
SPECIAL ~ J~ ' -
INSTRUCTIONS: ' A""P) (t-A d .PAf~
~ ~ n 1. /flfS.
Ji~.
PLEASE CALL IF YOU HAVE ANY PROBLEMS RECEIVING THIS
TRANSMISSION.
COS Form No. F0001 (Rev. 3-91)
(b) This Ordinance shall be construed and deemed to have been drafted by the
combined efforts of the CITY and the TELEPHONE COMPANY.
SECTION 19 - ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE
The CITY shall deliver a properly certified copy of this Ordinance to the TELEPHONE
COMPANY within three (3) working days of its final passage. The TELEPHONE
COMPANY shall file its written acceptance of this Ordinance in accordance with the
STIPULATION OF SETTLEMENT. This Ordinance shall become effective beginning
on the first day of the first calendar month which begins not less than thirty (30) days
after entry of judgment, as defined in the STIPULATION OF SETTLEMENT.
*
*
*
PASSED AND APPROVED the 6th day of July, 1995.
Norma Althouse, City Secretary
0161291
-19-
-,-,~_._._--_.,._-,-,--------~'-'._-~~~'~"--'-----~--,._---~
SENT BY:FULBRIGHT&JAWORSKI
7-11-95 17:43
FULBRIGHT&JAWORSKI~ 0762615094659320'"
I
T~LE"WOIJE: 110/n4.11..
'ACIIMIL.E: 1101114..33.
W"'UIl'1 D'JIlII;"T DIAL NUMIlER:
1I0""'O.7IM
FULBRIGHT & JAWORSKI
L.L.P.
A "EQI.Tl~r;~ llMITEO I..IA.,LITv P"'FlTNr"SHI~
300 CONVltNT ST"I!:I:T. SUITE: 2200
SAN ANTONIO, TEXAS 78205
t-lOUSTON
WASI-tINGTON, D.C,
AUSTIN
8AIrII ANTONIO
DAI.I.I\$
I'll EW VOlltt<
l.OS ANGELEl:$
LONDON
1-1011.I0 KONG
July 11, 1995
He: City of Port Arthur et. al v. Southweltern Bell Telephone Company et. al
Mr. John M. Helme, Jr,
BUlman Godfrey L,L.P.
Allianz Financial Centre
2828 Bryan Street, Suite 1400
Dallu, TllXalI 76201-2633
Dear John:
BY TELECOPY 2141754-1933
The Schertz City Council adopted the final version of its new franchise
ordinance with Southwestern Bell Telephone Company on second reading at its meeting
on July 6, 1996, and, to be effective, the ordinance is now being published as required
by the City Charter. The second and final publication will take place on July 14, and
the City Manager will send to you on July 15 ths enclosed form of Affidavit from me,
together with (i) a certified copy of the ordinance and (Ii) a certified copy of the City
Charter, Pleue provide me with ths precise addresses and names of addressees to
whom thll" material. mould be .ent. I. there 8J.IYthing else required of the City to
effectuate ita acceptance of the settlement?
Pleue note for your records that, at the second reading of the ordinance, the
City Council determined to reducs the amount of annual pass-through franchise
p~ent that it will receive from Southwestern Bell Telephone Company from the
maximum allowable 0*,*47,800 to $40,000, The City has chosen not to take the full
amount whJch it could receive during the five-year term of the new franchise
arrangement,
Very
-
~
Michael L. Spain
MLS/mjw
EnclolUl'G
Ol.mo
.--.--. ,.._..~...
I
---"".-".-'1"--
SENT BY:FULBRIGHT&JAWORSKI
7-11-85. ; 17:44
FULBRIGHT&JAWORSKI~ 07626150846583204;# 3
I
Pap 2'
cc:
KeThny R. Sweatt (w/enclolure) (City Manager City of Schertz)
OXllU Thomu '
01"'10
-..-. _.~- "--...-
. . ,
-:-"""""-'~~~~'-~~,~""'-~--"1--.":_
--:-::-""1.
r'~''''''-""-",_.,, ,~."'.
SENT BY:FULBRlqHT&JAWORSKI
; 7-11-95 17:44
FULBRIGHT&JAWOR5Kl~ 07626150946~93204;# 4
I
NO, D 142,176
8
.
.
.
i
5
8
.
.
.
SOUTHWESTERN BELL TELEPHONE t
COMPANY, a Missouri corporation, .
and H. PAUL ADAMS, f
fi
.
CITY OF PORT ARTHUR, an
incorporated Tezu
municipality, on
behalf or itself and all
others similarly situation,
Plaintiff,
IN THE DISTRICT COURT OF
VB,
JEFFERSON COUNTY, TEXAS
Defendants.
186th JUDICIAL DISTRICT
AFFIDAVIT
Iw the City Attorney for the City of Schertz, Texas (the "City"), I affirm that the
new Ordinance No, 96.F.17, attached hereto, was finally and effectively adoptsd
pursuant to the applicable laws of the State of Texas and the City Charter by the City
Councll of the City, at the requisite number of Council meetings, attended by a quorum
of Council members, with proper notice (including publication, if requIred) of the
bUlineas or said Council having been provided to the public and is the official act of the
City.
Michael L. Spain
SWORN AND SUBSCRIBED TO BEFORE ME on this 14th day of July, 1995.
Notary Public in and for the State of Texas
Ol'nOl
.....--.-..-..-.-.---.,.--.-.---."'..------..-..,..
~-'-""-~ .