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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