HomeMy Public PortalAboutOrdinance No. 671-92 07-28-1992 ORDINANCE NO. 671
AN ORDINANCE AMENDING ORDINANCE NO. 659, THE
CURRENT AGREEMENT BETWEEN THE CITY OF RICHLAND
HILLS, TEXAS, AND SOUTHWESTERN BELL TELEPHONE
COMPANY; AMENDING SECTION 4 "TERM", SECTION 10
"INDEMNITY", SECTION 12 "COMPENSATION TO THE CITY",
SECTION 14 "MUTUAL RELEASES", AND SECTION 17
"GOVERNING LAW" OF SAID AGREEMENT; ADDING A NEW
SECTION 19 "FUTURE AMENDMENTS" TO SAID
AGREEMENT; PROVIDING A SEVERABILITY CLAUSE;
PROVIDING A SAVING CLAUSE; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Council of the City of Richland Hills, Texas, on January
14, 1992, passed Ordinance No. 659 granting to Southwestern Bell Telephone
Company ("TELEPHONE COMPANY") the right to erect and maintain and operate a
telecommunications system within the City, together with the non-exclusive right
to use the public rights-of-way within the City for said purpose; and
WHEREAS, the TELEPHONE COMPANY and the City Council have determined
that certain portions of the Agreement as passed by the City Council on January 14,
1992, should be renegotiated and amended; and
WHEREAS, the amendments to said Agreement embodied herein will address
• the concerns of the TELEPHONE COMPANY and the City Council.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF RICHLAND HILLS, TEXAS:
I.
A. That Section 4 "TERM" of Ordinance 659, adopted by the City Council of the
City of Richland Hills on January 14, 1992, be hereby amended to be and read
as follows:
SECTION 4 -TERM
This Ordinance shall continue for a period of six (6) 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.
B. That Section 10 "INDEMNITY" of said Ordinance 659 be hereby amended to
hereafter be and read as follows:
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
ORDINANCE NO. 6 71 PAGE 1
• 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 or its agents and employees. This provision is not
intended to create a cause of action or liability for the benefit of third parties
but is solely for the benefit of the TELEPHONE COMPANY and the CITY nor
is this provision intended to abrogate the common law or statutory rights of
either the CITY or the TELEPHONE COMPANY to indemnity or contribution
from the other.
C. That Section 12 "COMPENSATION TO THE CITY" of said Ordinance 659 be
hereby amended by the insertion into the blank contained in paragraph (a) of
said Section 12 the figure $94,000.00, reflecting the agreed upon initial annual
compensation due to the City.
D. That the second paragraph of Section 14 "MUTUAL RELEASES" of said
Ordinance 659 be hereby amended to hereafter be and read as follows:
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. The
obligation, if any, of the TELEPHONE COMPANY to indemnify the CITY
• against third party claims for death, personal injuries or property damages
under Ordinance 593 is not hereby waived or released.
E. That Subsection (b) of Section 17 "GOVERNING LAW" of said Ordinance 659 be
hereby amended to hereafter be and read as follows:
(b) Venue of any legal action or proceeding arising under or in any way related
to this Ordinance shall lie in the courts of Dallas County, Texas.
F. That said Ordinance 659 be hereby amended by the addition thereto of a new
Section 19 "FUTURE AMENDMENTS", which section shall hereafter be and
read as follows:
SECTION 19 -FUTURE AMENDMENTS
This ordinance governing street use may be amended at any time by the mutual
agreement of the CITY and the TELEPHONE COMPANY. It is understood that
the TELEPHONE COMPANY is currently in the process of negotiating similar
ordinances with other cities throughout the state. It is understood and agreed
that if an ordinance governing street use with another city in this state
contains a provision which the CITY feels would be more advantageous to it
than the terms hereof, the CITY may require that the relevant portion of this
ordinance be reopened for negotiation. The intent of the parties is that the
•
ORDINANCE NO. 6 ~ 1 PAGE 2
• City of Richland Hills will be entitled only to treatment comparable to that
which was afforded under the ordinance with the other city or cities, giving due
consideration to the contextual meaning of the provision on which
renegotiation is sought and the effect of the proposed amendment on the
meaning of the ordinance as a whole. Under no circumstance may an
amendment result in a higher level of compensation than that level produced by
those methodologies utilized by the TELEPHONE COMPANY to calculate
compensation to other cities in Texas nor may an amendment be applied
retroactively.
II.
Severability Clause. That it is hereby declared to be the intention of the City
Council 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 invalid or unconstitutional by the valid judgment or
decree of any court of competent jurisdiction, such invalidity or unconstitutionality
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 ordinance of any such invalid or
unconstitutional phrase, clause, sentence, paragraph or section.
III.
Saving Clause. That Ordinance No. 659 of the Code of Ordinances, City of
Richland Hills, Texas, shall remain in full force and effect, save and except as
• amended by this ordinance.
IV.
Effective Date. This ordinance shall be in full force and effect from and after
its passage and publication as provided by the Richland Hills City Charter and the
laws of the State of Texas.
PRESENTED AND GIVEN FIRST READING at a regular meeting of the
Richland Hills City Council on the day of Julv 1992; GIVEN SECOND
READING AND APPROVED at a regular meeting of the Richland Hills City Council
on the 28 day of July 1992 by a vote of ayes, ~ nays,
and 0 abstentions.
APPROVE
C. F. Kelley, Mayor
ATTES
auline Kempe, City Secretary
ORDINANCE NO. 6 71 PAGE 3
• VED AS TO FORM:
aul F. Wieneskie, City Attorney
107MLIB/bh/102992
ORDINANCE NO. 6 ~ 1 PAGE 4