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ORD 430 12/13/19919-27-91 NO. HID AN ORDINANCE WHEREBY THE CITY OF CIBOLO, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND CONSTRUCT ITS POLES, WIRES, ANCHORS, FIBER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN, ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC WAYS 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 is furtherance thereof, has erected and maintained certain items of its physical plant in the City of Cibolo, Texas (hereinafter referred to as the "CITY") for many years pursuant to such rights as have been granted it by and under the laws of the State of Texas, and subject to the reasonable exercise of the police, powers granted by and under said laws to the CITY; and WHEREAS, the TELEPHONE COMPANY has operated its telecommunications business in the CITY under successive ordinances of the CITY, the last of which was Ordinance Number 48 adopted December 21, 1972, which provided compensation to the CITY for the superintendence of that agreement based upon a percentage of gross receipts received by the TELEPHONE COMPANY from certain local services rendered within the corporate limits of the CITY; and WHEREAS, it is recognized by the parties that changes in the telecommunications industry, changes in technology, changes in state and federal law, and changes in the accounting practices mandated by the Uniform System of Accounts promulgated by the 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 and obsolete 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 litigation which could be - Page 2 - necessary to resolve any issues in controversy between the parties; and WHEREAS, it is to the mutual advantage of both the CITY and the TELEPHONE COMPANY that an agreement should be entered into between the TELEPHONE COMPANY and the CITY establishing the conditions under which the TELEPHONE COMPANY shall maintain and construct its physical plant in the CITY in the future; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CIBOLO, TEXAS, THAT: SECTION 1 - PURPOSE Pursuant to the laws of the State of Texas 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 - Page 3 - the conditions prescribed in this Ordinance may be considered necessary to the public health and safety by the CITY in the exercise of its lawful police powers and such changes and extensions as may be considered necessary by the TELEPHONE COMPANY in the pursuit of its telecommunications business. The terms of this Ordinance shall apply throughout the CITY, and to all operations of the TELEPHONE COMPANY within the CITY, and shall include all operations and FACILITIES used in whole or in part in the provision 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 in the CITY under this Ordinance, but must first 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 tariffed services to cable television companies. - Page 4 - 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: 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 Cibolo, Texas. (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public property, excluding public buildings, within the city limits of the CITY. (e) DIRECTION OF THE CITY: all ordinances, laws, rules, and regulations of the -CITY now in force or that may hereafter be passed and adopted which are not inconsistent with this Ordinance. (f) ;TRANSMISSION .MEDIA: all TELEPHONE COMPANY cables, fibers, wires or other physical devices used to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other purposes. - Page 5 - 0 (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 permissions to use the public RIGHTS-OF-WAY within the CITY to any person or entity as the CITY, in its sole discretion, may determine to be in the public interest. (h) TELEPHONE COMPANY: Southwestern Bell Telephone Company. SECTION 4 - TERM ,This Ordinance shall continue for a period of five (5) years from the effective date hereof; provided that at the expiration of the initial period, such term may be extended by mutual written agreement of the CITY and TELEPHONE COMPANY. SECTION 5 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS All poles placed shall be of sound material and reasonably straight, and shall be set so that they will not interfere with the flow of water in any gutter or drain, and so that the same will not unduly interfere with ordinary travel on the streets or sidewalks. The location and route of all poles, stubs, guys, anchors, conduits, fiber and cables placed and constructed by the TELEPHONE t - Page 6 - COMPANY in the construction and maintenance of its telecommunications system in the CITY shall be subject to the lawful, reasonable and proper control and DIRECTION OF THE'CITY. SECTION 6 - ATTACHMENTS TO POLES AND SPACE IN DUCTS Nothing contained in this Ordinance shall be construed to require or permit any pole attachments for electric light or power wires 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 within the CITY. - Page 7 - SECTION 7 - STREETS TO BE RESTORED TO PRE-EXISTING CONDITION The surface of any public street, avenue, highway, alley or public place disturbed by the TELEPHONE COMPANY in the 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 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 encumbered for a longer period than shall be reasonably necessary to execute all work. SECTION 8 - TEMPORARY REARRANGEMENT OF AERIAL WIRES Upon request, the. TELEPHONE COMPANY shall;remove or raise or lower its aerial wires, fiber or cables temporarily to permit the moving of houses, or other bulky structures. The expense of such temporary rearrangements shall be paid by the party or parties requesting them, and the TELEPHONE COMPANY may require payment in advance. - Page 8 - 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, 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 - Page 9 - provision is not intended to create a cause of action or liability for the benefit of third parties but is solely for the benefit of the TELEPHONE COMPANY and the CITY. SECTION 11 - ADMINISTRATION OF (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. (b) 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 administration of this Ordinance and the construction of the TELEPHONE COMPANY'S FACILITIES on CITY property to the extent permitted by law. - Page 10 - 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 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 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 $8,500.00. 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 12(e), or as provided in Section 16 herein. The TELEPHONE COMPANY will, according to tariff, bill such Charge to the customers billed the customer service charges included within the term "Gross Receipts," as defined herein. Gross Receipts, for purposes of this Charge, shall include only customer service charges which meet all four of the following conditions: - Page 11 - (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 ("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 12(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 for the prior year. (b) The Charge for each year shall be paid in four (4) equal installments on May 31, August 31, November 30 and February 28 except for the final installment for the last year which shall be due as hereafter provided. This final installment for the year in which this Ordinance expires, after making any necessary adjustment for the balance of any overcollection or undercollection of the - Page 12 - Charge to or from the TELEPHONE COMPANY'S customers, shall be paid to the CITY within one hundred fifty (150) days following the date of expiration of this Ordinance. In the event of any overcollection balance from customers at the expiration of this Ordinance, the TELEPHONE COMPANY may make a pro rata one-time credit to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 12(a), provided, however, if it is impractical to credit such 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 the state telecommunications sales tax ("Sales Tax Revenues") applicable to services rendered within the corporate limits of the CITY 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 years Charge. The TELEPHONE - Page 13 - COMPANY will adjust its customer billing to account for the Growth Factor calculated above. Stated another way, for example, the Charge and Growth Factor for the first three years of an ordinance shall be calculated as follows: Example: Payment Oct. 1, 1991- Charge for the first = First Year Year 1 Sept. 30, 1992 payment year Charge Payment Oct. 1, 1992- First year Charge x = Second Year Year 2 Sept. 30, 1993 Growth Factor, if any Charge (Sales Tax Revenues for 12 month period ending 3 months prior to Oct. 1, 1992 ["STR"] + by Sales Tax Revenues for 12 month period ending 3 months prior to Oct. 1, 1991 ["STR"]) Payment Oct. 1, 1993- Second year Charge x = Third Year Year 3 Sept. 30, 1994 Growth Factor, if any Charge (Sales Tax Revenues for 12 month period ending 3 months prior to Oct. 1, 1993 ["STR"] = by Sales Tax Revenues for 12 month period ending 3 months prior to Oct. 1, 1992 ["STR"]) Once the Growth Factor calculation is completed, the COMPANY will provide the CITY with the Sales Tax Revenues upon which the Growth Factor calculation was based. - Page 14 - The CITY agrees to rely upon audits by the Texas Comptroller of Public Accounts of state telecommunications sales taxes as reported by the TELEPHONE COMPANY which are performed in compliance with Sections 151.023 and 151.027 of the Texas Tax Code Annotated (Vernon's 1982). (d) Such payments shall not relieve the TELEPHONE COMPANY from paying all applicable municipally -owned utility service charges. Should the CITY not have the legal power to agree that the payment of the foregoing charge shall be in lieu of the taxes, licenses, charges, RIGHTS-OF-WAY permit or 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) 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 - Page 15 - 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 or in the event of a disannexation, then the adjustment to the Charge will be calculated using the effective date of the imposition of Local Sales Taxes as determined by the Texas Comptroller of Public Accounts. The adjustment shall be the percent increase/decrease in the TELEPHONE COMPANY'S Gross Receipts as defined herein for the CITY for the first calendar month following the Local Sales Tax effective date compared to the last month prior to such effective date. This adjustment to the Charge will be made on the first day of the second month following the Local Sales Tax effective date and the adjusted Charge shall be prorated from that date through the remainder of the payment year. The Charge as adjusted shall be used for all future calculations required by this Ordinance. - Page 16 - 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 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 Number 48 adopted December 21, 1972, and renewed or extended from time to time thereafter, and its predecessor ordinances, if any, (hereinafter referred to collectively as "Ordinance 48'11). This full and complete release of claims for any matters under Ordinance 48 shall be for the benefit of Southwestern Bell Telephone Company; its parent; its affiliates; their directors,_ officers and employees; successors and assigns; and includes any and all claims, actions, causes of action and controversies, presently known or unknown, arising directly or indirectly out of or connected with the TELEPHONE COMPANY'S obligations to the CITY pursuant to the provisions of Ordinance 48. Southwestern Bell - Page 17 - 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 or its employees, arising out of or connected with any matters under Ordinance 48. 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 - REPEAL OF CONFLICTING'ORDINANCES AND AGREEMENTS Ordinance Number 48 adopted December 21, 1972, is hereby repealed; provided, however, such repeal shall take effect at 11:59 p.m. on the day immediately preceding the effective date specified in the Section of this Ordinance entitled "ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE". All other ordinances and Page 18 - agreements and parts of ordinances and agreements in conflict herewith are also repealed, which repeal shall take effect at the time and on the date specified in the preceding sentence. SECTION 16 - FUTURE CONTINGENCY Notwithstanding anything contained in this Ordinance to the contrary, in the event that (a) this Ordinance or any part 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, 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. - Page 19 - SECTION 17 - GOVERNING LAW (a) This Ordinance shall be construed in accordance with the CITY Code(s) in effect on the date of passage of this Ordinance to the extent that such 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 COMPANY. SECTION 18 - 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 January 1, 1992. - Page 20 - Passed and approved following the 1,;e reading hereof this �f? day of ��jay�/c.� , A.D., 1991. Mayor,. City of Cibolo, Texas ATTEST: J 9"— City Secretary I,�& % . , City Secretary of the City of Cibolo, Texas, do hereby certify that the foregoing is a true and correct copy of ordinance Number h/3 d , finally passed and approved by the City Council of Cibolo, Texas, following the reading thereof at a regular meeting held on the ,* day of 1991. City Secretary - Page 21 - Southwestern Bell Telephone Joe Ramos 1010 N. St. Mary's Room 1319 San Antonio, Texas 78215 December Z I , 1991 The Honorable Sam Bauder Mayor City of Cibolo 109 S. Main Street Cibolo, Texas 78108 Dear Mayor Bauder: Enclosed are two originals of the Southwestern Bell Telephone Company's signed acceptance of Ordinance No. 430 passed by the City of Cibolo on November 26, 1991. After the filing date has been noted by the City Secretary, one countersigned acceptance document should be returned to me for filing with Southwestern Bell Telephone's official records. The effective date for Ordinance No. 430 will be January 1, 1992. The payment for the first year will be $8,500. The payments for years two through five of the ordinance may be increased according to the growth factor stated in the ordinance. Calculations for future payments will be available during December of each year, and you will be advised of the payment at that time. Southwestern Bell Telephone Company will continue to operate under the terms of the previous ordinance until the effective date of the new ordinance. The City's payment under this old ordinance is due to the City by April 15, 1992. Please feel free to contact me at 512-222-6330 if I can be of any further assistance. Sincerely, Area Manager -External Affairs Enclosures ACCEPTANCE WHEREAS, the City of Cibolo, Texas, did on the 26th day of November, 1991, enact Ordinance Number 430 entitled: AN ORDINANCE WHEREBY THE CITY OF CIBOLO, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND CONSTRUCT ITS POLES, WIRES, ANCHORS, FIBER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN, ALONG, ACROSS, ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC WAYS IN SAID CITY; PRESCRIBING THE ANNUAL COMPENSATION DUE THE CITY UNDER THIS ORDINANCE; PRESCRIBING THE CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS-OF-WAY AND THE PERFORMANCE OF CERTAIN CONSTRUCTION WORK ON PUBLIC RIGHTS-OF-WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS; PROVIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERNING LAWS; PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES; PROVIDING FOR FUTURE CONTINGENCIES; PROVIDING FOR WRITTEN ACCEPTANCE OF THIS ORDINANCE BY THE TELEPHONE COMPANY; AND PROVIDING FOR A TERM AND AN EFFECTIVE DATE. and WHEREAS, said Ordinance was on the 26th day of November, 1991, duly approved by the Mayor of said City and, the Seal of said City was thereto affixed and attested by the City Secretary: NOW,, THEREFORE, in compliance with the terms of said Ordinance as enacted, approved and attested, the Southwestern Bell Telephone Company hereby accepts said Ordinance, and files this its written acceptance with the City Secretary of Cibolo, Texas. Pursuant to the terms of said Ordinance and this Acceptance, said Ordinance shall become effective on January 1, 1992. Dated this 43 day ofA ' 1917/. SOUTHWESTERN BELL TELEPHONE COMPANY Press ent-T xas Di 'sion fijL, Acceptance filed in the office of the City Secretary of Cibolo, Texas this Z day of //, 199-1-. City Secretary h, ' Q Southwestern Bell Telephone "The One to Call On"5M November 15, 1991 TO WHOM IT MAY CONCERN: Re: Docket No. 10463 Enclosed are the notice and application in the above referenced docket. 11 Southwestern Bell Telephone Company 1616 Guadalupe Room 640 Austin, Texas 78701 Public Notice On July 1, 1991, Soft western Bell Telephone filed an applica- tion with the Public Udtity'CommiAsion of Texas that proposes to delete Paragraph 3.4(0) from Section 3 of Southwestern Bell's intrastate Access Service Tariffwhich concerns credits where a customer usee Switched Access Service to furnish a service which ties been defined to be an exchange service. The applica- tion was assigned Docket No.10483. Because Southwestem Bell is not aware of any customers who presently use switched access service to furnish an ex- change service, Southwestern Bell does not believe its revenues will be affected. However, certain interexchange carrier customers of switched access service have made claims under the afore- mentioned tariff. Such customs, but only to the extern they provide an exchange service using switched access, would be affected by this application Based on claims made for credits (assuming such credits were allowable), Southwestern Bell's revenues woWd be affected by no more than $1.168,962 annuallg which is .037 percent of the Compartys adjusted revenue for the 12 -month pericd ending December 31, 1M. R is not possible to know how many intstacef lge ca risrs might believe themselves entitled to credits, but 186 carriers have registered with the Commission pursuant to PUC Substantive Rub 23.81. The tariff, after suspension, is proposed to be effective May 1. 1992. Persons who wish to intervene or otherwise participate in these prooeedlrgs shoo notify the Cammiesicn as soon as pos. sibk% but no later there November 15. 1991. A request to intervert•, partkipste, or for further infOrmatim should be mailed to the Pubre WRY Commission of Texas. 7800 Shoal Creek Blvd, Suite 400K Austin. Texas 78757. Further information may tdso be ole` tainted by c&UV the Pubic Utility Commissbn Public information Office at (512) 4684M. The tetecommunkations device for the deaf (TDD) number is (512) 458-0221. 2Fe-;', • Southweste..ii Bell Telephone -The 011e to Cal! Oil" June a$ , 1991 Ms. Mary Ross McDonald Cassandra C. carr Secretary and Director of Hearings V-ce P•esident Public Utility Commission of Texas RevVues&Public Affairs 7800 Shoal Creek Blvd., Suite 40ON Austin, Texas 78757 Dear Ms. McDonald: Attached for filing in Southwestern Bell Telephone Company's ("Company" or "SWBT") Access Service Tariff are five sets of a tariff sheet which deletes Paragraph 3.4(G) from Section 3 of the tariff. The paragraph which the Company proposes to delete concerns the provision of Carrier Comnon.Line (CCL) and Interexchange Carrier Access Charge (ICAC) credits in situations where a customer uses Switched Access Service to furnish a service which has been defined by the Commission to be an exchange service. Paragraph 3.4(G) reads as follows: When the customer uses a Switched Access Service to furnish a service which is defined by the appropriate Regulatory Commission to be an exchange service, the customer may apply for credit to its monthly Transitional Charges in accordance with the regulations as` set forth in 3.7(E) following by reporting the originating and terminating access minutes that both originate and terminate in the same local calling area. The local calling area is determined as set forth in Telephone Company general and/or local exchange service tariffs and is a geographical area associated with an exchange within which calls may be made without MTS charges. The IC shall report to the Telephone Company the access minutes for credit on a calendar month basis and the name of the service. This paragraph was originally drafted to provide credits to Radio Common Carriers and Cellular Carriers on Feature Group "E" (FGE) Switched Access Service; however, FGE Service was not incorporated into the Access Service Tariff at the time it was approved by the Commission. While other related provisions, i.e., 3..7(.E) which 1616 Guapalupe provided the administrative provisions related to 3.4(G), were Room 630 Ausu" Texas 78701 Phone 512 870-3333 A' -2 - deleted when the Company filed revisions pursuant to the Final Order in Docket No. 5220, the Company mistakenly failed to delete 3.4(G). The Company requests that the tariff provisions become effective in 35 days pursuant to Section 23.24(i) of the -Substantive Rules. Notice is being provided to all Interexchange Carriers and Operator Service Providers registered with the Commission as well as to parties in Docket No. 9967 contemporaneously with this filing. If this matter should be docketed, please enter on the service list the following name and address for -Southwestern Bell Telephone Company: Mr. T. Michael Payne Vice President Southwestern Bell Telephone Co. 1616 Guadalupe, Room 600 Austin, Texas 78701 Acknowledgement and date of receipt of this filing are requested. Attached,for your use is a duplicate letter of transmittal with attachments. Sincerely, �� 6 Cassandra C. Carr Attachments DEAR CUSTOMER: Southwestern Bell will be filing the attached revised tariff sheet in the Access Service Tariff with the Public Utility Commission of Texas ("Commission") for approval of the deletion of Paragraph 3.4(G) pertaining to Carrier Common Line and Interexchange Carrier Access Charge credits in situations where a customer uses Switched Access Service to furnish a service which has been defined by the Commission to be an exchange service. Paragraph 3.4(G) reads as follows: When the customer uses a Switched Access'Service to furnish a service which is defined by the appropriate Regulatory"Commission to be an exchange service, the customer may apply for credit to its monthly Transitional Charges in accordance with the regulations as set forth in 3.7(E) following by reporting the originating and terminating access'minutes that both originate and terminate in the same local calling area. The local calling area is determined as set forth in Telephone Company general and/or local exchange service tariffs and is a geographical area associated with an exchange within which calls may be made without MTS charges. The IC shall report to the Telephone Company the access minutes for credit on a calendar month basis and.the.name` of the service. Any person who wishes to participate in these proceedings, or who would like further information, should mail a request as -soon as possible to the Public Utility Commission of Texas, 7800 Shoal Creek Boulevard, Suite 400N, Austin, Texas 78757. Further information may also be obtained by calling the Public Information Office at (512) 458-0223, or (512) 459-0221, teletypewriter for the deaf. Sincerely, Attachment TARIFF CHECK SHEET TARIFF SECTION SHEET Access Service Tariff 3 Sheet 4.1 2nd Revision President - Texas Divisi CCESS SERVICE TARIFF ! Southwestern Bell Telephone Company Section: .3 Dallas, Texas Sheet: 4.1 Issued: Revision: 2 Effective: Replacing: 1 Reissued ACCESS SERVICE 3. Carrier Common Line Access Service (Cont'd) 3.4 Obligations of the Customer (Cont'd) (F) When the customer is reselling MTS and/or MTS -type service as set forth in 3.3(B) preceding, the customer will be charged the Carrier Common Line Access charges in accordance with the regulations as set forth in 3.70) following if the customer or the provider of the MTS service furnishes documentation of the MTS usage and/or the customer furnishes documentation of the MTS -type service. Such documentation supplied by the customer shall be supplied each month and shall identify the involved resold MTS and/or MTS -type services. The monthly period used to determine the minutes of use for resold MTS and/or MTS -type service(s) shall be the most recent monthly period for which the customer has received a bill for such resold MTS and/or MTS -type service(s). This information shall be delivered to the Telephone Company at a location specified by the Telephone Company, no later than 15 days from the bill date shown on the resold MTS and/or MTS -type service bill. If the required information is not received by the Telephone Company, the previously reported information, as described preceding, will be used for the next two months. For any subsequent month, no allocation or credit will be made until the required documentation is delivered to the Telephone Company by the customer. (B) When the customer orders Switched Access Service as set forth in (F) preceding, the Telephone Company or the billing entity may request, when resold MTS is involved, a certified copy of the customer's MTS usage billing from either the customer or the provider of the MTS Service and/or when resold MTS type service is involved, a certified copy of customer's MTS -type usage billing from either the customer or the provider of the MTS -type service. The requests for this billing will relate back no more than 12 months prior to the current billing period.