Southwestern Bell-CS 970507 MEMORANDUM
DATE: May 7, 1997
TO: KEN GRIFFIN, CITY ENGINEER
FROM: Steven G. Goram, Director of Information & Customer
RE: Proposed Southwestern Bell Franchise Agreement
Attached is a draft copy of the proposed franchise agreement with Southwestern Bell. Please
review it by May 14 and get back to me with your thoughts on issues of construction, permit
and approval, and traffic control needs. We are shooting for the May 27 Council agenda for
approval. Thanks for your cooperation.
5-7.'97
.~gmem~ -~ wbt-kea.mem
DRAFT
SOUTHWESTERN BELL FRANCHISE ORDINANCE
SECTION 1. PURPOSE.
(a) That there is hereby granted to Southwestern Bell Corporation (hereina~er called
"Grantee"), for a term of years commencing on
, the non-exclusive privilege, to have, acquire, construct,
reconstruct, extend, maintain, use, and operate in, along, across, on, over, through,
above, and under public streets, alleys, highways, public places, public
thoroughfares, and rights-of-way (hereinafter called "City property") in the City of
Coppell, Texas (hereinafter called "City"), a telecommunications system, including,
but not limited to cables, fibers, wires and any associated equipment or other
facilities necessary to transmit and/or receive communication signals in, out of, and
through the City.
(b) Grantee shall not provide cable television services or operate a cable television
system as defined in the Cable Communications Policy Act of 1984 (47 U.S.C.A. §
521 et seq., as amended) as recognized by the Federal Communications
Commission (the FCC) without first obtaining a separate franchise from the City.
This franchise is granted solely to the Grantee. Grantee is not authorized to license
or lease to any person or entity the right to occupy and use any of City property for
any private business or other purpose. Communication services provided by
Grantee to or for others shall not be considered a licensing or leasing of any right to
occupy and use any City property.
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SECTION 2. CONSTRUCTION AND MAINTENANCE.
Work done in connection with the construction, maintenance, expansion, reconstruction,
operation and use of thc telecommunications system and facilities shall be subject to the following
conditions:
(a) General
All construction, reconstruction, expansion, repairs, excavation, or other work
performed by Grantee, and ail facilities of the Grantee, which are installed within
City property, shall be in accordance with all generally applicable City Codes and
Ordinances, including City standard construction details applicable to the
construction of public improvements, the subdivision regulations and tree
preservation ordinances and the Comprehensive Zoning Ordinance, as may be
hereafter adopted or amended. Grantee shall be responsible for all repairs and
maintenance resulting fi.om any defects, impairments, or other substandard
conditions of City property, including any disturbed, damaged or destroyed
landscaping material, caused by thc construction, maintenance, expansion,
reconstruction, operation or use of City property by Grantee.
(b) Permit and Approval
In accordance with generally applicable permitting City ordinances, Grantee shall
submit to an official of the City, as designated fi.om time to time proposed
construction plans of all facilities, including sketches of piping or wiring layouts, to
be installed, reconstructed, repaired, or expanded in, on, above, across, or under City
property and any related street closure plans prior to the issuance of any applicable
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permit and the commencement of such construction or other work. City may
require the submittal of a traffic control plan and may also require all lanes to be
open and available to the traffic during peak hours. The City's designated
representative shall review said plans and may require reasonable modifications in
order to protect existing or anticipated public improvements or other existing
utilities. Grantee shall not be required to obtain a permit prior to responding to
emergency situations, but shall notify the City within forty-eight (48) hours
following the initiation of work on City property in response to any emergency
situation. Grantee and Grantee's contractors shall not be required to pay any permit
fees or provide any performance bonds in connection with Grantee's work on City
property.
(c) Traffic Control
The Grantee shall conduct all traffic control in accordance with the latest version of
the Texas Manual on Uniform Traffic Control Devices, as amended.
(d) Restoration
The City and Grantee shall use ail reasonable caution to avoid disturbing the
facilities of the other party. The surface of any City property disturbed by the
Grantee in the construction, relocation, or maintenance of any of its facilities shall
be restored to as good a condition as before commencement of the work to the
reasonable satisfaction of the City within a reasonable time after completion of the
work. If there is an um'easonable delay by Grantee in restoring or maintaining City
property after excavation, construction or repairs have been made, the City shall
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have the right, after five (5) days' written notice to Grantee, to restore or repair the
same and to require the Grantee to pay the reasonable costs of such work.
(e) Compliance with Safety Laws
Upon request of the City, Grantee shall remove and abate any portion of the utility
system or any of its facilities that is dangerous to life or property in accordance with
any applicable law. Grantee shall operate and maintain its utility system and its
related facilities in material compliance with applicable federal, state and local laws
governing telecommunications facilities.
(f). Upon request, the Grantee 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 rean'angements shall be paid by the party or parties
requesting them, and the Grantee may require payment in advance. The Grantee
shall be given not less than forty-eight hours advance notice to arrange for such
temporary rearrangements.
(g). The Grantee, its contractors and agents have the right, permission and license to trim
trees upon and overhanging the rights-of-ways to prevent trees from coming in
contact with the Grantee's facilities and transmission media. When directed by the
City, tree trimming shall be done under the supervision and direction of the City or
under the supervision of the City's delegated representative.
SECTION 3. OCCUPANCY CONDITIONS.
All facilities constmc, ted, relocated, or maintained by Grantee within the City property shall
be located so as to not unreasonably interfere with the use of such property by the City or other
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utilities; and shall not unreasonably interfere with the rights of the owners or occupiers of any
adjoining property. Grantee shall not place any of its facilities where the same will unreasonably
interfere with any existing gas, electric, or telephone fmture, water hydrant, or main, drainage
facility, or sanitary sewer, or unreasonably interfere with travel on or public use of the streets,
alleys, or other City property. Um'easonable interference includes any electrical interference shown
to be unreasonable.
SECTION 4. RELOCATION.
When the Grantee is required by City to remove or relocate its facilities to accommodate
construction of streets, alleys, drainage improvements, water line and/or sewer lines by City, and
Grantee is eligible under federal, state, county programs for reimbursement of costs and expenses
incurred by Grantee as a result of such removal or relocation, and such reimbursement is required to
be handled through City, Grantee costs and expenses shall be included in any application by City
for reimbursement, if Grantee submits its cost and expense documentation to City prior to the filing
of the application. City shall provide reasonable notice to Grantee of the deadline for Grantee to
submit documentation of the costs and expenses of such relocation to City. If the Grantee is
required by City to remove or relocate its facilities for any reason other than construction of City
facilities, Grantee shall be entitled to reimbursement from City or others of the cost and expense of
such removal or relocation.
If City abandons any City property in which Grantee has facilities, such abandonment shall
be conditioned on Grantee's right to maintain its use of the former City property. If the party to
whom the City property is abandoned requests the Grantee to remove or relocate its facilities and
Grantee agrees to such removal or relocation, such removal or relocation shall be done within a
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reasonable time at the expense of the party requesting the removal or relocation. If relocation
cannot practically be made to another City property, the expense of any fight-of-way acquisition
shall be considered a relocation expense to be reimbursed by the party requesting the relocation.
SECTION 5. WORK BY OTHERS.
(a) The City reserves the fight to lay and permit to be laid telephone, cable, sewer, gas,
water, and other pipelines or cables and conduits and to do and permit to be done
any underground or overhead work that may be necessary or proper in, across,
along, over, or under a City property occupied by Grantee. City also reserves the
fight to change in any manner any curb, sidewalk, highway, alley, public way or
street, or the grade thereof. When City damages Grantee's,-facilities w~.'le doing
work on City facilities, Grantee shall repair any such damage at its own expense.
Likewise, when Grantee damages City's facilities while doing work on Grantee's
facilities, City shall repair any such damage at its own expense.
~ In the event the City authorizes someone other than the Grantee to occupy any City
property, such grant shall be subject to the rights herein granted to Grantee.
SECTION 6. REPORTS AND RECORDS.
(a) Grantee shall keep complete and accurate books of accounts and records of its
business and operations from which compensation under this ordinance may be
determined. Copies of relevant portions of such books of accounts and records shall
be available at the Grantee's office located in Dallas County, Texas. The City shall
have access to all books of accounts and records of Grantee relating to this franchise
as reasonably needed to determine the accuracy of any and all reports related to the
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services provided by, and right of ways used by, the Grantee in the City. The City
agrees to the extent allowed by law that any confidential or proprietary matter shall
not be disclosed by the City, except as needed to enforce the City's fights under this
ordinance.
(b) The City shall have the right, at reasonable times, to inspect the plant, equipment
and other property of the Grantee and its affiliates to examine, audit, and obtain
copies of the papers, books, accounts, documents, and other business records of the
Grantee consistent with state law'.
SECTION 7. QUALITY OF SERVICE.
Grantee shall at all times furnish service in a manner consistent with its Quality of Service
Rules, as amended from time to time, and as on file with the City.
SECTION 8. FRANCHISE ADMINISTRATION.
(a) The City Manager, or his designee, is the principal City officer responsible for the
administration of this f~anchise and shall oversee and review the operations of
Grantee under this ordinance.
(b) The City may delegate to the City Manager, or his designee, the exercise of any
powers conferred upon the City by its Charter or by law relating to the regulation of
Grantee and exercise of the rights and privileges conferred, by this franchise, but the
City Council reserves unto itself the exclusive power to fix and regulate the general
charges and rates of Grantee, to the full extent that this authority is provided in the
Charter, this franchise, and state law.
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(c) It shall be the right and duty of the City Manager, or his designee, to keep fully
informed as to all matters in connection with or affecting the construction,
reconstruction, maintenance, operation, and repair of the Grantee's communications
system, its accounting methods and procedures, the conduct of Grantee's business in
the City, and of service being rendered by the Grantee.
SECTION 9. SERVICE RATES.
(a) City Council hereby expressly reserves the right, power, and authority to fully
regulate and fix the rates and charges for the services of the Grantee to its customers
as provided by state law and City Charter.
(b) Grantee may from time to time propose changes in its general rates by filing an
application with the City Secretary for consideration of the City Council. Within a
reasonable time consistent with law, the City Council shall afford Grantee a fair
hearing with reference to the application and shall either approve or disapprove the
proposed changes or make such order as may be reasonable.
(c) In order to ascertain any and all facts, the City Council shall have the full power and
authority to inspect or cause to be inspected, the books of Grantee, and to inventory
and appraise, or cause to be inventoried and appraised, the property of Grantee, and
to compel the attendance of witnesses and production of books and records.
(d) Grantee shall have the fight, subject to City roles and regulations and consistent
with the applicable state and federal law, to require a reasonable security deposit for
the payment of services.
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SECTION 10. COMPENSATION.
(a) For the mason that the City property to be used by Grantee in the operation of its
telecommunications system and facilities within the City are valuable public
properties, acquired and maintained by the City at great expense to the taxpayers;
and that Grantee's use of said property is a valuable property right which Grantee
would be required to invest substantial capital in right-of-way cost and acquisition,
Grantee agrees to pay and City agrees to accept a sum of money which shall be
equivalent to either the "Usage Fee" or the "Annual Fee," whichever is greater, as
calculated and compared on a quarterly basis.
(1)a. The "Usage Fee" shall be an amount equal to $ dollars per
linear foot of City property utilized or occupied by Grantee's facilities, pursuant to
this Franchise, as calculated per quarter year.
(1)b. The Usage Fee shall be calculated on a quarterly basis and shall be paid, if
applicable, on March 31, June 30, September 30, and December 31, during the life
of this franchise, pro-rated for any use of the right-of-way for a partial quarter.
(1)c. Usage or occupation of City property for purposes of calculating the Usage
Fee shall be considered effective upon the Grantee's obtaining a permit from the
City or other initiation of work on City property pursuant to this Ordinance.
(2)a. The "Annual Fee" for each year of this Ordinance shall be an amount equal
to the total amount billed by applying per customer fees described in attachment
"A" hereto.
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(2)b. The "Annual Fee" for each year, if applicable, shall be paid quarterly in
four payments on or before March 31, June 30, September 30, and December 31,
and adjusted for any partial quarter, as necessary.
(3) The compensation provided herein shall be in lieu of any and all other and
additional occupation taxes, easement, franchise taxes or charges (whether levied as
a special, or other character of tax or charge), municipal license, permit, and
inspection fees, bonds, street taxes, and street or alley rentals or charges, and all
other and additional municipal taxes, charges, levies, fees, and rentals of whatsoever
kind and character which City may now impose or hereafter levy and collect from
Grantee or Grantee's agents, excepting only the usual general or special ad valorem
taxes which City is authorized to levy and impose upon real and personal property.
Should City not have the legal power to agree that the payment of the foregoing
sums of money shall be in lieu of taxes, licenses, fees, street or alley rentals or
charges, easement or franchise taxes or charges aforesaid, then City agrees that it
will apply so much of said sums of money paid as may be necessary to satisfy
Grantee's obligations, if any, to pay any such taxes, licenses, charges, fees, rentals,
easement or franchise taxes or charges aforesaid.
(4) Payment of the "Annual Fee" or "Usage Fee," shall not relieve the
Telephone Company from paying all applicable municipally owned utility services
charges.
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SECTION 11: BILLING CITY CUSTOMERS
The Grantee will bill to its customers residing within the corporate limits of the CITY, the
customer fees listed in Attachment "A." The customer fees listed in Attachment "A" may not be
increased during the term of this Ordinance without approval by a three fourths vote of the City
Council. The CITY agrees to rely upon the growth process in local exchange access lines in
determining growth of future payments in lieu of any other audit process for the direction of this
Ordinance.
SECTION 12. ASSIGNMENT.
This franchise shall not be assigned without the express written consent of the City. The
terms and conditions contained in this Ordinance shall be binding upon Grantee, its successors, and
assigns.
SECTION 13. GOVERNING LAW.
This franchise is subject to all applicable state laws and the provisions of the City Charter.
This franchise shall in no way affect or impair the present or future rights, obligations or remedies
of the City or Grantee under State or federal law.
SECTION 14. INDEMNIFICATION.
Grantee shall defend, indemnify and save whole and harmless the City, its officers, agents,
and employees against any and all claims, lawsuits, judgments, costs, and expenses for personal
injury (including death), property damage, or other harm for which recovery damages are sought by
any person or persons that may be occasioned by, or arise out of Grantee's breach of any of the
terms or provisions of this Ordinance, or by any negligent or strictly liable act or omission by
Grantee, its officers, agents, employees, subcontractors, affiliates and subsidiaries, in the
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construction, maintenance, operation, or repair of the telecommunications system, or by the conduct
of Grantee's business in the City pursuant to this Ordinance; except that the indemnity provided for
in this section shall not apply to any liability resulting from the sole negligence or fault of the City,
its officers, agents, or employees or separate contractors, and in the event of joint and concurrent
negligence or fault of both the Grantee and the City, responsibility and indemnity, if any, shall be
apportioned comparatively in accordance with the laws of the State of Texas without, however,
waiving any governmental immunity available to the City under Texas law, and without waiving
any of the defenses of the parties under Texas law. It is further understood that it is not the
intention of the Grantee and the City to create liability for the benefit of third parties, but that this
section shall be solely for the benefit of the Grantee and City and shall not create or grant any
rights, contractual or otherwise, to any other person or entity.
SECTION 15. ANNEXATION.
This franchise shall extend to and include any and all territory that is within the City's
corporate limits. The franchise shall also extend to any territory which is annexed by the City
during the term of this franchise. In the event of disannexation, this franchise shall be reduced to
the territory that continues to be in the City. City shall promptly furnish the Grantee with maps or
other documents showing the affected area in the event of an annexation or disannexation. Within
thirty (30) days of such maps or other documents are furnished, Grantee shall identify all customers
located within such annexed or disannexed territory and adjust its accounting system and records
accordingly. Compensation under this franchise shall include annexed territory within thirty (30)
days from the date the City furnishes the maps or other documents to the Grantee.
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SECTION 16. TERMINATION
In addition to ail rights and powers of the City by virtue of this franchise or otherwise, the
City may terminate this franchise if, after notice and hearing, Grantee is found to be in violation of
any material, term, condition, or provision of this franchise and fails or refuses to effect compliance
within forty-five (45) days following written demand for compliance from the City following such
hearing.
SECTION 17. REPEALING CLAUSE.
Upon the effective date of this Ordinance, all other telecommunications franchise
ordinances of the City of Coppell, Texas, applicable to Grantee shall be and the same are hereby
repealed and all other ordinances not in conflict with the provisions of this Ordinance shall remain
in full force and effect.
SECTION 18. SEVERABILITY CLAUSE.
That should any word, phrase, paragraph, section or portion of this ordinance be held to be
void or unconstitutional, the same shall not affect the validity of the remaining portions of said
ordinance, which shall remain in full force and effect.
SECTION 19. EFFECTIVE DATE.
Subject to Grantee's acceptance, this Ordinance shall take effect thirty (30) days from and
after its passage as the law and charter in such cases provide.
SECTION 20. ACCEPTANCE.
Grantee shall file its acceptance of this Ordinance within thirty (30) days of its passage by
filing with the office of the City Secretary a written acceptance signed and acknowledged by a duly
authorized officer substantially in the following form:
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To the Honorable Mayor and City Council of the City of Coppell, Texas:
Grantee, Southwestern Bell Corporation, acting by and through the undersigned
authorized officer, hereby accepts Ordinance No. granting a
franchise to Southwestern Bell Corporation.
Southwestern Bell Corporation
EXECUTED this the day of ,1997.
Upon filing of the acceptance, this Agreement shall become effective. In the event that such
acceptance is not filed within thirty (30) days after the passage of this Ordinance, this Ordinance
shall terminate and become null and void.
DULY PASSED by the City Council of the City of Coppell, Texas, this the day
of ,1997.
APPROVED:
TOM MORTON, MAYOR
ATTEST:
~RAU cITY
, SECRETARY
APPROVED AS TO FORM:
PETER G. SMITH, CITY ATTORNEY
(PGS/ct 5/2/97)
AGG07C9D
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