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98-019 ORD GRANT PEOPLES COMMUNICATION PERMITS TO USE COP STREETS, ALLEYS, HIGHWAYS, PUBLIC THOROUGHFARES AND WAYSORDINANCE NO. 98-019 AN ORDINANCE GRANTING TO PEOPLES COMMUNICATION, INC. , ITS SUCCESSORS AND ASSIGNS, PERMISSION TO USE AND OCCUPY THE CITY STREETS, ALLEYS, HIGHWAYS, PUBLIC THOROUGHFARES, AND WAYS OF THE CITY FOR THE PURPOSE OF MAINTAINING AND OPERATING ITS FACILITIES NEEDED AND NECESSARY TO PROVIDE SERVICE TO ITS CUSTOMERS IN PARIS, TEXAS, UNDER SPECIFIED CONDITIONS; PROVIDING FOR THE PAYMENT OF FEES OR CHARGES FOR THE USE OF THE STREETS, ALLEYS, HIGHWAYS, PUBLIC THOROUGHFARES, PUBLIC UTILITY EASEMENTS, AND PUBLIC WAYS AND THE RIGHT OF THE CITY TO USE CERTAIN FACILITIES OF THE COMMUNICATION COMPANY; PRESCRIBING THE TERM AND EFFECTIVE DATE OF SAID CONSENT; PROVIDING THAT THE ORDINANCE BE CUMULATIVE; PROVIDING FOR SEVERABILITY; PROVIDING FOR GOVERNMENTAL IMMUNITY; PROVIDING FOR INJUNCTIONS; PROVIDING FOR PUBLICATION AND BECOMING EFFECTIVE UPON PUBLICATION OF ITS CAPTION; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND FINDING AND DETERMI1vING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, PEOPLES COMMUNICATION, INC., hereinafter referred to as "PCI," is now and has been engaged in the business of providing telecommunication services in the State of Texas, and in furtherance thereof desires to erect and maintained certain facilities in the streets, alleys, highways, public thoroughfares, public utility easements, and public ways, sometimes hereinafter referred to as "thoroughfares" of the City of Paris, Paris, Texas, hereinafter referred to as CITY, pursuant to the consent given by the CITY for the term of years and under the conditions specified in this Ordinance granting such consent, subject to the exercise of reasonable regulation under the police power; and, WHEREAS, it is to the mutual advantage of both the CITY and PCI that PCI operate in the CITY and in furtherance thereof that PCI be permitted to construct and maintain its facilities in the streets, alleys, highways, public thoroughfares, public utility easements and public ways of the CITY under the conditions established by the CITY; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS; Section 1. That the CITY hereby grants to PEOPLES COMMUNICATION, INC., its successors and assigns, consent to use and occupy the streets, alleys, highways, public thoroughfares, public utility easements, and public ways of the CITY for the purpose of maintaining and operating its poles, wires, anchors, cables, manholes, conduits, and other facilities used in ar instant to the provision of telecommunications services, subject to the terms, conditions, and stipulations set forth in this ordinance, the Constitution and Law of the United States and the State of Texas and the CITY's Charter and Ordinances, as they may be amended from time to time; said consent being granted for a term of seven (7) years from the date hereof. Said consent may, at the option of the governing body of the CITY, be extended in five (5) year increments with the terms hereof being reviewed thirty (30) months prior to the expiration of the initial or subsequent terms. The right to use and occupy said streets, alleys, highways, public thoroughfares, public utility easements, and public ways of the CITY shall not be exclusive, and the CITY reserves the right to grant a similar use of said streets, alleys, highways, public thoroughfares, public utility easements, and public ways to any person or any corporation at any time during the period of this franchise. Section 2. That PCI shall, at all times during the life of this franchise, be subject to all lawful exercise of police power by the CITY and to such reasonable and lawful regulation as the CITY shall hereafter by charter, ardinance, or resolution provide. The terms of this franchise shall apply to all PCI facilities used, in whole or part, in the provision of telecommunications services in newly annexed areas upon the effective date of such annexation. Page -1- Section 3. That PCI shall lay, maintain, construct, operate, and replace its poles, wires, anchors, cables, manholes, conduits, and appurtenances used, in whole or in part, to provide telecommunications services so as to interfere as little as possible with traffic and shall promptly clean up and restore to as good or better condition, at its cost, all thoroughfares and other surfaces which it may disturb. The location of all PCI facilities shall be fixed under the supervision of the CITY's governing body or an authorized committee or agent appointed by said governing body. All poles, stubs, guys, anchors, and other aboveground facilities shall be set so that they shall not interfere with the flow of water in any gutter or drain, and so that the same shall not interfere with ordinary travel on the streets, alleys, highways, public thoroughfares, public utility easements, and public ways, and so that they shall not compromise public safety. The CITY herein reserves the right to require PCI to install or relocate aboveground facilities as far from vehicular travel lanes as reasonably possible for traffic safety purposes. The CITY also herein reserves the right to require PCI, at its own expense, to install underground all new facilities except to which aboveground access is necessary for normal maintenance and connections. without claim for reimbursement or damages against the CITY and to relocate all such existing facilities underground at the cost of the CITY or others. The location and route of all poles, stubs, guys, anchors, conduits, cables, and tiber-optic cables to be placed and con tructed by PCI in the CITY, and the location of all conduits to be laid by PCI within the limits of the CITY shall be subject to the reasonable and proper regulation, control, and direction of the governing body or of any city official to whom such duties have been or may be delegated. Section 4. That PCI shall comply with all reasonable rules and reg ~lations of e CITY c highwa s, publ relative to street excavations, and permits therefore. Any and all streets, alle s, thoroughfares, public utility easements, public ways and, without limitation by the foregoing enumerations, other public property disturbed by PCI in building, constructing, renewing, or maintaining its facilities 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 to the satisfaction of the governing body, or of any city official to whom ~u cured asva resul~rof may adelegated. or responsible for all maintenance cost ublic utilit easement, substandard condition in the street, alley, highway, public thoroughfare, p Y or public way caused by the construction, maintenance or restoration work of PCI. No street, alley, highway, public tharoughfare, public utility easement, or public way shall be encumbered for a longer period than shall be necessary to execute the work. PCI shall submit, in a format prescribed by CITY, information describing the nature, location, and estimated duration of any activity which will result in the disturbance of any street, highway, alley, public thoroughfare, public utiliry easement, or public way. This information shall be submitted prior to the activity except in the case of emergencies, in which case the information shall be submitted as soon as practicable. This information requirement shall not apply to PCI's installation of service wires. When PCI shall make or cause to be made excavations, or shall place obstructions in any street, alley, highway, public thoroughfare, public utility easement, or public way, the public shall be protected by barriers and lights placed, erected, and maintained by PCI; and in the event of injury to any person or damage to any property by reason of the construction, operation, or maintenance of PCI's facilities, PCI shall indemnify and hold harmless the CITY from any and all liability in connection therewith. PCI shall repair, clean up and restore to approximate or publidit~o ~ adisturbed dur ng highways, public thoroughfares, public y easements construction and repair of its facilities. Section 5. That PCI shall maintain its facilities in a reasonable operating condition at all normal times during the term or any extension of this franchise. An exception to this condition is automatically in effect when service furnished by PCI is interrupted, impaired, or prevented by tires, strikes, riots, or other occurrences beyond the control of PCI, or by storms, floods, or other casualties, in any of which events PCI shall do all things reasonably within its power to do to restore normal service. Section 6. The CITY reserves the right to lay, and permit to be laid, sewer, gas, water, electric, and other pipelines or cables or conduits, and to do and permit to be done any Page -2- underground and overhead installation or improvement that may be deemed necessary or proper by the governing body of the CITY in, across, along, over, or under any street, alley, highway, public thoroughfare, public utility easement, or public way occupied by PCI, and to change any curb or sidewalk or the grade of any street. In permitting such work to be done, the CITY shall not be liable to PCI for any damage so caused, nor shall the CITY be liable to PCI for any damages arising out of the performance by the CITY or its contractors or subcontractors, not willfully and unnecessarily occasioned; provided, however, nothing herein shall relieve any other person or corporation from liability for damages to facilities of PCL The CITY expressly reserves the right to change the grade, install, relocate, or widen the public streets, sidewalks, bikeways, alleys, public thoroughfares, highways, and public ways and places within the present limits of the CITY and within said limits as the same may from time to time be extended, and PCI shall relocate, at its own expense, its poles, wires, cables, anchors, manholes, conduits, fiber-optic cables, and other facilities and appurtenances in order to accommodate the installation, relocation, widening, or changing of the grade of any such public street, sidewalk, bikeway, alley, public thoroughfare, highway or public way, including, if necessary, relocating such poles, wires, cables, anchors, manholes, conduits, fiber-optic cables or other facilities or appurtenances to a sufficient distance from the edge of the pavement to permit a reasonable work area for machinery and individuals engaged in installing, relocating, widening, or changing the grade of any public street, sidewalk, bikeway, alley, public thoroughfare, highway or public way. The CITY also herein reserves the right to require PCI to relocate, at the sole expense of PCI, any facilities erected or maintained pursuant to the privilege granted herein, if said relocation is deemed necessary by the governing body or its designated representative for traffic safety purposes or the accommodation of other necessary utilities owned and/or operated by the CITY or the public service, including traffic signals. Whenever by reason of changes in the grade of a thoroughfare or in the location or manner of constructing a water pipe, gas pipe, sewer, or other aboveground or underground structure, it is deemed necessary by the CITY to remove, alter, change, adapt, or conform the underground or aboveground facilities of PCI, PCI shall make the alterations as soon as practicable when ordered in writing by the CITY, without claim for reimbursement or damages against the CITY. Section 7. That PCI, on request of any person, shall promptly remove, raise or lower its wires temporarily to permit the moving of houses or other bulky structures. The reasonable expense of such temporary removal, raising, or lowering of wires shall be paid by the benefitted party or parties. Section 8. That PCI, as a condition of the grant of this franchise, and in consideration thereof, shall protect, indemnify, and hold the CITY harmless against all claims for damages to persons or property by reasons of the construction, maintenance, and operation of its facilities and conduct of business, or in any way growing out of the granting of this franchise, directly, or indirectly, where injury is caused, or alleged to have been caused, wholly or in part, by any act, omission, negligence, or misconduct of PCI or any of its contractors, officers, agents, or employees, or by any person for whose act, omission, negligence, or misconduct PCI is by law responsible. This provision is not intended to create liability for the benefit of third parties but is solely for the benefit of PCI and the CITY. In the event any claim is made against the CITY that falls under this indemnity and a courC of competent jurisdiction should adjudge, by final decree, that the CITY is liable therefor, PCI shall indemnify and hold the CITY harmless of and from any such judgment or liability, including any court costs, expenses, and attorney fees incurred by the CITY in defense thereof . Upon commencement of any suit or proceeding at law or in equity against the CITY relating to or covering any matter covered by this indemnity, wherein PCI has agreed, by accepting this franchise, to indemnify and hold the CITY harmless, or to pay said final judgment and costs, as the case may be, the CITY shall give PCI immediate notice of such suit or proceeding. Whereupon PCI shall provide a defense to any such suit or suits, including any appellate proceedings brought in connection therewith, and pay as aforesaid, any final judgment or judgments that may be rendered against the CITY by reason of such damage suit. Upon failure of PCI to comply with the "defense of suit" provisions of the franchise, after reasonable notice to it by the CITY, the CITY shall have the right to defend the same in addition to being reimbursed far any such judgment that may be rendered against the CITY, together with all court costs incurred therein, PCI shall reimburse the CITY for attorney's fees, including those Page -3- employed by the CITY in such case or cases, as well as all expenses incurred by the CITY by reason of undertaking the defense of such suit or suits, whether such suit or suits are successfully defended, settled, compromised, or fully adjudicated against the CITY. In the event the CITY is compelled to undertake the defense of any such suit by reason of PCPs failure to perform as here and above provided, the CITY shall have the full right and authority to make or enter into any settlement or compromise of such adjudication as the City Council shall deem in the best interest of the CITY, this without the prior approval or consent of PCI with respect to the terms of such compromise or settlement. Section 9. As a condition of the grant of this franchise, and in consideration thereof, PCI shall reimburse the CITY for its reasonable costs of participating in rate making proceedings before any regulatory authority of the State exercising jurisdiction over the rates of PCI including any appeals therefrom to the courts to the extent such costs are found reasonable by the applicable regulatory authoriry. Section 10. In consideration for the rights and privileges herein granted, the value of such rights and privileges, the administration of this ordinance by the CITY, the usage and interference with the public's usage of public thoroughfares, and other costs and obligations undertaken by the CITY herein, PCI hereby agrees to pay the CITY during the term of this ordinance a sum equal to five percent (5 of annual gross receipts. Such fee payment shall be made in five (5) payments. The first four (4) payments shall be made on April 15, July 15, October 15, and January 15, and shall be estimated at twenty-five percent (25 of the prior year's gross receipts as herein defined. The fifth payment shall be a true-up payment to reflect the actual gross receipts for the entire year and will be made on April 15 of the following year and will include the first (April 15) payment for the then current year. PCI will file with the fifth payment to the CITY a financial statement prepared according to generally accepted accounting principles showing in detail the applicable gross receipts collected by category hereafter specified during the preceding calendar year. PCI shall maintain and shall make available for audit by the CITY, upon reasonable notice, all necessary accounts and records reflecting the amounts of and basis for computation of all gross receipts within the CITY and each category thereof. All such accounts and records shall be kept according to generally accepted accounting principles and PCI shall provide, within a reasonable response time, all information reasonably requested by CITY to ascertain the amount of such gross receipts within the CITY. "Gross receipts" shall mean all revenues collected by PCI for telecommunications and communications services and related services provided by PCI, its affiliates, successors, or assigns for telecommunications and communications services and related services provided by PCI to customers located within the corporate limits of the CITY or earned upon plant located within the corporate limits of the city of Paris. Section ll. CITY agrees that it will not impose a franchise fee upon PCPs lessees so long as a franchise fee is not imposed upon Southwestern Bell's lessees. At such time as PCI's lessees would be required to pay a franchise fee, they are hereby given and granted the option to pay the same rate as PCI pays hereunder without the requirement to seek a franchise with the CITY; or , if said lessee desires to pay the same fee as lessees of Southwestern Bell pay, the same being different from that paid by PCI, then such lessee would be required to enter into a direct franchise agreement with CITY, providing for such like fee as Southwestern Bell lessees pay. Section 12. This ordinance shall be and is hereby declared to be cumulative of all other ordinances of the CITY, and this ordinance shall not operate to repeal or affect any of such other ordinances. The consideration set forth herein shall be in addition to and shall not serve as an offset to, be in lieu of, or in any way reduce the amount payable to the CITY by PCI or others pursuant to any other franchise, charter provision, statute, tax, or without limitation by the foregoing enumeration, otherwise payable by PCI or others; it being the express intent hereof that all such obligations, impositions, and agreements of every kind and nature shall remain in full force and effect without reduction or limitation thereby. Page -4- Section 13. In addition to the consideration set forth above, PCI shall hold itself ready to furnish, subject to the use of the CITY, such wire or fiber-optic cable space and duct space as may be required from time to time by the CITY upon the poles, ducts, and cables now owned or hereafter erected, installed, or utilized by PCI in the CITY including, but not limited to, those for the use of the CITY's police, fire alarm, emergency warning systems, and traffic signal systems (hereinafter referred to in this section as "systems"). The location on the poles of the systems shall be determined on specific applications for space at the time the applications are received from the CITY and will be allotted in accordance with the considerations for electrical construction of the United States Department of Commerce, Bureau of Standards. PCI shall hold itself ready to furnish sufficient duct or cable space not to exceed the capacity of one duct or cable and four (4) fibers for the use by the CITY in carrying its systems. All such wires or fiber-optic cable, whether on poles or in conduits, shall be constructed, maintained, and operated in such manner as not to interfere with or create undue hazard in the operation of the communication system of PCI. Section 14. This ordinance and the agreements contained herein shall be in full force and effect for the period beginning with the effective date hereof and ending ten (10) years later unless extended by the governing body as provided herein. Section 15. The CITY, at its option, may terminate this franchise by giving written notice of such termination to PCI on the occurrence of any of the following: The filing of a voluntary bankruptcy by PCI. b. The taking of jurisdiction of PCI or its assets in bankruptcy proceedings by any court, such proceedings not being vacated within thirty (30) days. c. The taking of PCI's interest in this contract or a property placed on the premises by execution. d. The appointment by a court of a receiver for PCI, such proceedings not being vacated in thirty (30) days. Section 16. Notwithstanding any other provisions of this ardinance, the City Council shall have the option to forfeit, cancel, or terminate this franchise at any time for failure of PCI to comply with any terms, conditions, or provisions of this franchise or if PCI should fail to comply with any reasonable provisions of any ordinances of the CITY regulating the use by PCI of the streets, alleys, highways, thoroughfares, or public ways of the CITY in accordance with the following procedures: a. If PCI further continues to violate or fail to comply with the terms and provisions of this franchise or the terms and conditions of any applicable CITY ordinance for a period of thirty (30) days after PCI shall have been notified in writing by the CITY to cease and desist from such violation or failure to comply as specified, then PCI shall be deemed to have forfeited and annulled and shall thereby farfeit and annul all rights and privileges granted by this franchise; provided, however, that, if PCI is in violation of any provision of this ordinance other than the payment of money, and if PCI commences work or other efforts to cure such violations within thirty (30) days after receipt of written notice, and shall thereafter prosecute such curative work with reasonable diligence until such curative work is completed, then such violations shall cease to exist, and the franchise will not be forfeited. b. Provided that such forfeiture shall be declared only by a written decision of the governing body after an appropriate public proceeding before the governing body according to PCI due process and full opportunity to be heard and to respond to any such notice of violation or failure to comply. All due process requirements shall be met by providing PCI at least prior written notice of any public hearing concerning the forfeiture of the franchise and, in addition, fifteen (15) days notice Page -5- by publication shall be given of the date, time, and place of any public hearing to interested members of the public, which notice shall be paid for by PCI. c. The governing body, after full public hearing, may, in its discretion, forfeit the franchise, or upon finding a violation or failure to comply, impose a lesser penalty than forfeiture of this franchise, including, but not limited to a penalty of $1,000 per day per violation, or excuse the violation or failure to comply upon a showing by the company of mitigating circumstances, or upon a showing of good cause of said violation or failure to comply as may be determined by the governing body. PCI shall not be excused from complying with any of the terms and conditions of this franchise on any failure of the CITY upon any one or more occasions to insist upon or to seek compliance with any sach terms or conditions. Section 17. For the purpose of this Ordinance, notice to the CITY will be to: City of Paris Michael E. Malone, City Manager P. 0. Box 9037 Paris, TX 75461-9037 With a copy to: City of Paris City Attorney P. 0. Box 9037 Paris, TX 75461-9037 Notice to PCI will be to: PEOPLES COMMUNICATION, INC. P. O. Box 920 Quitman, Texas 75783 With a copy to: PEOPLES COMMUNICATION, INC. Attention: Legal P. 0. Box 920 Quitman, Texas 75783 Notice will be effective upon delivery at the above addresses until the CITY or PCI notifies the other, in writing, of a change in the address. Section 18. All the provisions of this franchise shall be binding upon PCI, its successors and assigns, whether expressly so stated herein or not, and all grants, rights, and privileges secured by this franchise to PCI shall inure to the benefit of its legal and bonafide representatives, successors, and assigns approved as provided herein. Section 19. This Ordinance shall be, and is hereby, declared to be cumulative of all other ordinances of the CITY, and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed to the extent of such inconsistency. Provided all other ordinances, rules, regulations, and agreements which are not in conflict with this Ordinance and which in any manner relate to the regulation of the city streets, alleys, and public places or the business of PCI shall remain in full force and effect. Page -6- Section 20. All valid provisions of the Charter of the CITY, and the Code of Ordinances of the CITY, as they may be amended from time to time, not in conflict with the express provisions hereof, shall become part of this franchise as fully as if same had been expressly stated herein, and the CITY may exercise all the powers and rights retained by it in said charter as fully as if all the provisions therein had been written herein. Section 21. This franchise shall not be transferred by PCI except with the approval of the governing body of the CITY expressed by ordinance. PCI shall provide the CITY with notice of all mergers, takeovers, consolidations, or changes in corporate structure. Section 22. The CITY's consent to PCPs use of and occupancy of the city streets, alleys, highways, public thoroughfares, and public ways in furtherance of the provision of local communication service is conditioned on PCI's compliance with the terms and conditions stated herein and the payment of the consideration stated herein. PCI's continued occupancy and use of the city streets to provide local communication service shall be deemed acceptance of the terms and conditions stated herein and agreement to pay the consideration stated herein. Section 23. It is hereby declared to be the intention of the City Council of the City of Paris that the sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable, and if any phrase, clause, sentence, paragraph, or section of this Ordinance shall be declared unconstitutional, invalid, or unenforceable by the valid judgement or decree of any court of competent jurisdiction, such unconstitutionality, invalidity, or unenforceability shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this ardinance of any unconstitutional, invalid, or unenforceable phrases, clauses, sentences, paragraphs, or sections. Section 24. All of the regulations provided in this Ordinance are hereby declared to be for a public purpose and the health, safety, and welfare of the general public. Any member of the governing body or city official or employee charged with the enforcement of this Ordinance, acting for the CITY in the discharge of his duties, shall not thereby render himself personally liable; and he is hereby relieved from all personal liability for any damage that might accrue to persons or properry as a result of any act required or permitted in the discharge of his said duties. Neither the CITY nor PCI by accepting this franchise waives its right to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this franchise, including seeking injunctive relief in a court of competent jurisdiction. Section 25. It is hereby officially found and determined that the meeting at which this Ordinance is passed is open to the public as required by law and that public notice of the time, place, and purpose of said meeting was given as required. Section 26. Within ten (10) days after the passage of this ordinance by the City Council, the grantee herein shall file with the City Clerk, in writing, the acceptance of the terms and provisions of this grant. Section 27. Introduced, read, and passed on first reading on February 9, 1998, at a regular meeting of the City Council of the City of Paris; on second reading on March 9, 1998, at a regular meeting of the City Council of the City of Paris; and on third and final reading on April 13, 1998, at a regular meeting of the City Council of the City of Paris, the same being three (3) separate regular meetings of the City Council of the City of Paris, and the last reading being not less than thirty (30) days from the first. This ordinance shall become effective sixty (60) days from the date of the third and final reading. Page -7- PASSED AND ADOPTED on the third and final readin this 13th day of April, 1998. Eric S. Cliff ATTEST: Mattie Cunningham, City Clerk APPROV ED AS T FORM: T. K. Haynes, Ciry Attorney Page -8-