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G-99-11-23-12A1 - 11/23/1999ORDINANCE NO. �7" f ' 1 I" Z'"/ R l AN ORDINANCE GRANTING TXU COMMUNICATIONS TELECOM SERVICES COMPANY D.B.A. TXU COMMUNICATIONS AND ITS SUCCESSORS AND ASSIGNS A TEMPORARY FRANCHISE AUTHORIZING AND GOVERNING THE USE OF PUBLIC RIGHTS-OF- WAY TO PROVIDE TELECOMMUNICATIONS SERVICES WITHIN THE CITY OF ROUND ROCK PENDING IMPLEMENTATION OF HOUSE BILL 1777 BY THE PUBLIC UTILITY COMMISSION OF TEXAS WHEREAS, TXU COMMUNICATIONS TELECOM SERVICES COMPANY D.B.A. TXU COMMUNICATIONS (hereinafter called the "TELEPHONE COMPANY") plans to install FACILITIES within the RIGHTS-OF-WAY of the City of Round Rock (hereinafter called the "CITY") in order for the TELEPHONE COMPANY to provide TELECOMMUNICATIONS SERVICES to the TELEPHONE COMPANY's customers within the CITY; and WHEREAS, the TELEPHONE COMPANY'S placement of FACILITIES within the RIGHTS-OF-WAY of the CITY requires the TELEPHONE COMPANY to pay compensation to the CITY for such use and occupancy; and WHEREAS, the CITY and the TELEPHONE COMPANY agree that the TELEPHONE COMPANY'S provision of TELECOMMUNICATIONS SERVICES within the CITY should be encouraged and accomplished under the provisions of this TEMPORARY FRANCHISE ORDINANCE (hereinafter called the "ORDINANCE"); and WHEREAS, House Bill 1777 requires the Public Utility Commission of Texas to establish the rates which each municipality in Texas may charge telecommunications providers for use of public K: \WPDOCS\ORDINANC\091 109A 1. WPD.sls rights-of-way effective no later than March 1, 2000; and WHEREAS, pending development of such new rates by the Public Utility Commission , CITY and TELEPHONE COMPANY desire the adoption of this ORDINANCE permitting the TELEPHONE COMPANY to begin providing TELECOMMUNICATION SERVICES within the CITY prior to the Public Utility Commission's adoption of rates pursuant to House Bill 1777; and WHEREAS, the CITY possesses the requisite legal authority to adopt this ORDINANCE pursuant to the provisions of TEX. Loc. Gov'T CODE ANN. §§ 282.001 and 282.003 (Vernon 1998) , TEX. UTIL. CODE ANN. § 14.008 (Vernon 1998) , and Article 11 of the Charter of the CITY; Now Therefore BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, THAT: I. GRANT The CITY does hereby award the TELEPHONE COMPANY a temporary franchise governing the use of public rights-of-way for the purpose of providing TELECOMMUNICATIONS SERVICES within the CITY. II. ADDITIONAL AUTHORITY REQUIRED The TELEPHONE COMPANY is not authorized to provide cable television service in the CITY under this Ordinance, but must first 2 obtain a separate agreement from the CITY for that purpose, under such terms and conditions as may be required by law. This Section does not preclude the TELEPHONE COMPANY from providing its services to cable television companies. III. 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: any TELEPHONE COMPANY acquisition, construction, reconstruction, maintenance or operation of any FACILITIES in, over, under, along, through or across the public RIGHTS-OF-WAY for any purpose whatsoever. (c) CITY: The City of Round Rock, Texas. (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public grounds, within the city limits of the CITY owned and maintained by the CITY. (e) DIRECTION OF THE CITY: all ordinances, laws, rules, regulations, and charter provisions of the CITY now in force or that may hereafter be passed and adopted which are not inconsistent with this Ordinance. (f) TRANSMISSION MEDIA: all TELEPHONE fibers, wires or other physical devices and/or receive communication signals, digital or of other characteristics, voice, data or other purposes. COMPANY cables, used to transmit whether analog, and whether for (g) NON-EXCLUSIVE: no rights agreed to in this Ordinance by the CITY shall be exclusive, and the CITY reserves the right to grant franchises, licenses, easements or 3 permissions to use the public RIGHTS-OF-WAY within the CITY to any person or entity as the CITY, in its sole discretion, may determine to be in the public interest. (h) TELEPHONE COMPANY: TXU Communications Telecom Services Company, d.b.a. TXU Communications, its successors or assigns. (i) TELECOMMUNICATIONS: the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received. (j) TELECOMMUNICATIONS SERVICES: the offering of TELECOMMUNICATIONS for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the FACILITIES used. (k) PRIVATE LINE SERVICE: a non -switched telephone circuit dedicated for use between specific locations identified by an end-user customer. (1) PRIVATE LINE TERMINATION POINT: the channel termination point or points of a PRIVATE LINE SERVICE within the CITY. (m) ACCESS LINE: the transmission facilities located within the CITY between the end use customer's premises network interface and the serving facilities (including but not limited to, central office facilities, distribution frame facilities, or other similar facilities) which provide access to the local and toll switched network. The term Access Lines does not include Private Line Termination Point. (n) MUNICIPAL TELECOMMUNICATIONS LINE FEE: a fee set by the CITY to compensate the CITY for the use and occupancy of the CITY's RIGHTS-OF-WAY. 4 IV. TERM This ordinance shall be in force and in effect for the earlier of one year from the effective date hereof, or the effective date of rates as determined by the Public Utility Commission for Round Rock pursuant to House Bill 1777 unless earlier terminated pursuant to Section 15. V. SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS All poles placed shall be of sound material and reasonably straight, and shall be set so that they will not interfere with the flow of water in any gutter or drain, and so that the same will not unduly interfere with ordinary travel on the streets or sidewalks. The location and route of all poles, stubs, guys, anchors, conduits, fiber and cables placed and constructed by the TELEPHONE COMPANY in the construction and maintenance of its TELECOMMUNICATIONS system in the CITY shall be subject to the lawful, reasonable and proper control and DIRECTION OF THE CITY. VI. ATTACHMENTS TO POLES AND SPACE IN DUCTS Except as provided in Section 18, nothing contained in this Ordinance shall be construed to require any pole attachments for electric light or power wires or communications facilities or 5 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 within the CITY. VII. STREETS TO BE RESTORED TO PRE-EXISTING CONDITION The surface of any public street, avenue, highway, alley or public place disturbed by the TELEPHONE COMPANY in the construction or maintenance of its TELECOMMUNICATIONS system shall be restored within a reasonable time after the completion of the work to as good a condition as before the commencement of the work. Should the CITY reasonably determine, within one year from the date of such 6 restoration, that such surface requires additional restoration work to place it in as good a condition as before the commencement of the work, the TELEPHONE COMPANY shall perform such additional restoration work to the reasonable satisfaction of the CITY. No public street, avenue, highway, alley or public place shall be subject to construction for a longer period than shall be reasonably necessary to execute all work. VIII. 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 may further require up to ten (10) days advance notice from the requesting party or parties to enable the TELEPHONE COMPANY to coordinate the temporary rearrangements. IX. 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, sidewalks and public places of the 7 avenues, highways, alleys, 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. X. INSURANCE (a) Except as provided in Subparagraph (c) below, TELEPHONE COMPANY shall, as a condition of this ORDINANCE, secure and maintain the following liability insurance policies. All policies except workers' compensation and employers liability shall name the CITY, and its elected and appointed officers, officials, agents and employees as additional insureds: (1) General liability insurance with limits not less than (A) Five Million Dollars ($5,000,000) each occurrence for bodily injury or death ; (B) Five Million Dollars ($5,000,000) for property damage resulting from any one accident; and, (C) Three Million Dollars ($3,000,000) for premises - operations, explosions and collapse hazard, underground hazard and products completed operations. (2) Automobile liability for owned, non -owned and hired vehicles with a limit of Three Million Dollars ($3,000,000) combined single limit for bodily injury and property damage. 8 (3) Worker's compensation within statutory limits and employer's liability insurance with limits of not less than One Million Dollars ($1,000,000). (b) The liability insurance policies required by this section shall be maintained by the TELEPHONE COMPANY throughout the term of this ORDINANCE, and any such other period of time during which the TELEPHONE COMPANY is engaged in the removal of its TELECOMMUNICATIONS FACILITIES. All policies shall provide at least thirty (30) days written notice to CITY prior to cancellation or non -renewal of the policies, but ten (10) days notice for cancellation due to failure of TELEPHONE COMPANY to pay premium. In the event of such cancellation or non -renewal, the TELEPHONE COMPANY shall obtain and furnish to the CITY prior to the effective date of such cancellation or non -renewal evidence of replacement insurance coverage meeting the requirements of this Section. (c) Unless otherwise precluded by Law, TELEPHONE COMPANY may satisfy one or more of the insurance requirements specified in subsection (1) or (2) of this section through self-insurance. XI. INDEMNITY The TELEPHONE COMPANY shall indemnify and hold the CITY harmless from all costs, expenses (including attorney's fees) and 9 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. XII. ADMINISTRATION OF ORDINANCE (a) The CITY may make reasonable inquiries pertaining to this Ordinance and the TELEPHONE COMPANY shall respond to such inquiries on a timely basis. (b) As authorized by law, copies of 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 CITY's administration of this Ordinance and the construction of the TELEPHONE COMPANY'S FACILITIES on CITY property to the extent permitted by law. XIII. COMPENSATION TO THE CITY (a) As compensation for the use, occupancy, oversight, supervision and regulation of the CITY'S RIGHTS-OF-WAY, and in lieu of and in full compensation for any lawful tax or license or charge or RIGHT-OF-WAY permit fee or inspection fee, whether charged to the TELEPHONE COMPANY or its 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 - 10 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 TELEPHONE COMPANY shall pay to CITY during the term of this Ordinance a monthly Municipal Telecommunications Line Fee for each Access Line and Private Line Termination Point owned by TELEPHONE COMPANY, calculated to month-end, that is activated for use by an end use customer. For the period this Ordinance is in effect, the monthly Municipal Telecommunications Line Fee shall be fixed at $1.00 per Access Line or Private Line Termination Point. In the event the TELEPHONE COMPANY's monthly Municipal Telecommunications Line Fee generates annual revenue for the CITY that is less than fifteen cents ($0.15) per linear foot of CITY RIGHT-OF-WAY used by TELEPHONE COMPANY per year, TELEPHONE COMPANY shall make a payment to CITY before the last day of the calendar year equal to the difference between the total monthly Municipal Telecommunications Line Fee paid by TELEPHONE COMPANY that year and fifteen cents ($0.15) per linear foot of the CITY's RIGHT-OF-WAY used by TELEPHONE COMPANY; provided that payments, if any, for CITY RIGHT-OF-WAY used less than the full calendar year shall be pro rated and reduced by $0.0125 per linear foot per month not used during the calendar year. (b) TELEPHONE COMPANY shall be responsible for payment to CITY of the Municipal Telecommunications Line Fee on each activated Access Line and Private Line Termination Point owned by TELEPHONE COMPANY regardless of whether TELEPHONE COMPANY is the entity providing TELECOMMUNICATIONS SERVICES to the end user over those facilities. (c) TELEPHONE COMPANY shall remit the compensation required in this section on a quarterly basis. Each quarterly payment shall be due on the forty-fifth (45) day following the close of each calendar quarter for which the payment is calculated. The TELEPHONE COMPANY may adjust its billings to customers to account for any under collection or over collection of the Municipal Telecommunications Line Fee due the CITY. 11 (d) Such payments shall not relieve the TELEPHONE COMPANY from paying all applicable municipally -owned utility service charges. Should the CITY not have the legal power to agree that the payment of the Municipal Telecommunications Line Fee shall be in lieu of the taxes, licenses, charges, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes aforesaid, then the CITY agrees that it will apply so much of such payments as may be necessary to the satisfaction of the TELEPHONE COMPANY'S obligation, if any, to pay any such taxes, licenses, charges, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes. (e) TELEPHONE COMPANY shall keep complete and accurate books of accounts and records of their business and operations which pertain to any TELECOMMUNICATIONS SERVICES made the subject of any telecommunication franchise granted hereunder in accordance with generally accepted accounting principles. If required by the FCC, TELEPHONE COMPANY shall use the system of accounts and forms of accounts, records and memoranda prescribed by the FCC in 47 C.F.R. Part 32 or its successor and as may be further described herein. The CITY may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting compensation due the CITY under this section of this ordinance. In order to document the aggregate Municipal Telecommunications Line Fee revenues due the CITY each quarter from TELEPHONE COMPANY, TELEPHONE COMPANY shall file with the CITY Manager, at the time each quarterly payment is made, a sworn report to be prescribed and acceptable to the CITY in sufficient detail to itemize, by month, the number and proper classification of TELEPHONE COMPANY's active Access Lines and Private Line Termination Points within the CITY. In order to document the minimum fifteen cents ($0.15) per linear foot fee, TELEPHONE COMPANY shall file with the CITY Manager, at the end of each quarter, a sworn report to be prescribed by and acceptable to the CITY in sufficient detail to itemize the linear feet of TELEPHONE COMPANY's facilities in the CITY's RIGHTS-OF-WAY. CITY may, on a reasonable basis, have the books and records of TELEPHONE COMPANY examined by a CITY representative to ascertain the correctness of the reports agreed to be filed herein, provided however, that any CITY audit shall 12 be limited to verification of such reports for the period that this ordinance is in effect. XIV. ASSIGNMENT OF ORDINANCE Except as provided below, 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. Notwithstanding the foregoing, TELEPHONE COMPANY may assign this Ordinance and rights or privileges hereunder without the consent of the CITY to entities that control, are controlled by, or are under common control with, TELEPHONE COMPANY. XV. FUTURE CONTINGENCY (a) Notwithstanding anything contained in this Ordinance to the contrary, in the event that (1) this Ordinance or any part hereof, (2) any tariff or contractual provision by which the TELEPHONE COMPANY seeks to collect the Municipal Telecommunications Line Fee imposed by this Ordinance, or (3) any procedure provided in this Ordinance, or (4) any compensation due the CITY under this Ordinance, becomes, or is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful or otherwise inapplicable, in whole or in part, the TELEPHONE COMPANY and CITY shall meet and negotiate a new ordinance that is in compliance with the authority's decision or enactment and, unless explicitly prohibited, the new ordinance shall provide the CITY with a level of compensation comparable to that set forth in this Ordinance provided 13 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) Both parties agree that this Ordinance is an interim arrangement and is not intended to be used, and will not be cited or referred to by either party, as evidence of what is in compliance with the requirements of TEX. UTIL. CODE ANN. § 54.102(c), § 253 of the Federal Telecommunications Act or other applicable law. TELEPHONE COMPANY and CITY both hereby reserve all arguments and/or positions as to the appropriate interpretation and application required by the Texas Utility Code, the Federal Telecommunications Act and other applicable law. (c) The CITY agrees to provide written notice to the TELEPHONE COMPANY of an original application or an agreement thereto, for a consent, franchise or permit with the CITY for use of the RIGHTS-OF-WAY in the CITY for the provision of any TELECOMMUNICATIONS SERVICE within ten (10) days from receipt of such application. (d) Further, notwithstanding anything contained in this Ordinance to the contrary, both CITY and TELEPHONE COMPANY agree that either CITY or TELEPHONE COMPANY may terminate this Ordinance upon a minimum of thirty (30) days notice to the other party on or after the date that (1) any entity applies for an original of, or an amendment to, a consent, franchise or permit with the CITY for use of the RIGHTS-OF-WAY in the CITY for the provision of any TELECOMMUNICATIONS SERVICE; or (2) any entity with an existing consent, franchise, or permit for use of the RIGHTS-OF-WAY in the CITY files an application with the Public Utility Commission of Texas for a certificate of operating authority or a service provider certificate of operating authority which includes any geographic area which is wholly or partially within the corporate limits of the CITY. XVI. 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 14 and Code(s) are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas. (b) This Ordinance shall be construed and deemed to have been drafted by the combined efforts of the CITY and the TELEPHONE COMPANY. XVII. 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 have thirty (30) days from and after the final passage of this Ordinance to file its written acceptance of this Ordinance with the CITY Secretary. This Ordinance shall become effective beginning the first day of the first month following acceptance by the TELEPHONE COMPANY. TELEPHONE COMPANY shall have thirty (30) days from and after the passage and approval of this Ordinance to file its written acceptance hereof with the City Secretary, and upon such acceptance being filed, this Ordinance shall take effect and be in force as atamign., c23,1999 . XVIII. A. All ordinances, parts of ordinances, or resolutions in conflict herewith are expressly repealed. 15 B. The invalidity of any section or provision of this ordinance shall not invalidate other sections or provisions thereof. C. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Ordinance was adopted was posted and that such meeting was open to the public as required by law at all times during which this Ordinance and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. READ and APPROVED on first reading this the day of llAttillhal , 1999. READ, APPROVED and ADOPTED on second reading this the a3dayAof 1999. ATTEST: E LAND, City Secretary ROBERT A. STLUKA, Mayor City of Round Rock, Texas 16 DATE: November 16, 1999 SUBJECT: City Council Meeting — November 23, 1999 ITEM: 12.A.1. Consider an ordinance granting TXU Communications a temporary franchise authorizing and governing the use of public rights-of-way to provide telecommunications services. (Second Reading) The first reading of the ordinance was approved on November 9, 1999. Staff Resource Person: Steve Sheets, City Attorney.