1991-10-15 CC Packet City of Southlake,Texas
CITY OF SOUTHLAKE, TEXAS
flow REGULAR CITY COUNCIL MEETING: OCTOBER 15, 1991
LOCATION: 667 North Carroll Avenue, Southlake, Texas
City Council Chambers of City Hall
WORK SESSION: 6 : 30 P.M.
1. Discussion of all items on tonight' s Regular Council Meeting
Agenda.
REGULAR SESSION: 7 : 00 P.M.
1 . A. Call to order. Invocation.
B. Executive Session
Pursuant to the Open Meetings Act, Article 6252-17
V.T.C.S. , Section 2(e) 2( f) 2(g) . Refer to posted list
attached hereto and incorporated herein.
C. Reconvene: Action necessary on items discussed in
Executive Session.
2 . Approval of the Minutes of the October 1, 1991 Regular City
Council Meeting.
twl 3. Mayor' s Report.
4 . City Manager' s Report.
CONSENT AGENDA
All items listed below are considered to be routine by the City
Council and will be enacted with one motion. There will be no
separate discussion of items unless a Council member or citizen so
request, in which event the item will be removed from the general
order of business, and considered in its normal sequence.
5. Consider:
A. Permission to advertise for bids for Lift Stations to be
located at Bicentennial Park and on East Southlake Blvd.
REGULAR AGENDA
6 . Public Forum.
City of Southlake,Texas
City Council Agenda
October 15, 1991
page two
.►r
7 . Consider: Ordinances, second reading and related items .
A. Ordinance No. 480-59, 2nd reading. (ZA 91-52)
Zoning change request for 128 . 33 acres out of the W.E.
Crooks Survey, Abstract No. 295, Tract 2 and Hall Medlin
Survey, Abstract No. 1038, Tracts 2, 2A, and 2B. The
current zoning is "SF-20A" Single Family-20A Residential
with a requested zoning for "PUD" Planned Unit
Development. Amended request is for 126 . 94 acres
(excluding the "C-1" lot on the corner) .
® Owner/Applicant: Charles Young and Larry Cole dba The
i Hills of Monticello.
Public Hearing.
8. Consider: Ordinances, first reading and related items .
A. Ordinance No. 544, 1st reading. Landscape Ordinance.
Continuation of the public hearing.
B. Ordinance No. 545, 1st reading. Relating to Burning
Permits .
C. Ordinance No. 547, 1st reading. T.M.R.S. Updated
(we' service credits on an annual basis .
D. Ordinance No. 548, 1st reading. T.M.R.S. Providing for
increased municipal contributions .
9 . Consider: Resolutions (no items for this agenda)
10 . Other items for consideration.
A. Participation in Keep America Beautiful .
B. Agreement for a utility billing audit.
11. Other items for discussion.
A. Sign ordinance.
B. Weed Lien.
C. City Council Procedures .
D. Continental Park Estates Sewer.
E. Southwestern Bell Franchise Agreement.
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City of Southlake,Texas
City Council Agenda
irr October 15, 1991
page three
12 . Meeting Adjourned.
I hereby certify that the above agenda was posted on the official
bulletin boards at city hall, 667 North Carroll Avenue, Southlake,
Texas, on Friday, October 11, 1991 at 5:00 p.m. , pursuant to the
Open Meetings Act, Article 6252-17 V.T.A.S.
A111- ....
andra L. LeGrand o : �k fs
City Secretary => : %
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City of Southlake,Texas
EXECUTIVE SESSION
PENDING LITIGATION- Section 2 (e)
The City Council may consider pending and contemplated litigation
subjects. The following subjects may be discussed:
1 . Russell Sivey v. City of Southlake, September 1989 .
2 . Essig Claim, February 1991.
3. Margaret Freemen Claim, January 1990 .
4 . West Beach Addition.
5 Murawski Claim.
6 . Garrett Claim.
7 . Ken Smith, July 1991 .
Litigation is, by nature, an on-going process, and questions may
arise as to trial tactics which need to be explained to the City
Council. Upon occasion, the City Council may need information from
the City Attorney as to the status of the pending or contemplated
litigation subjects set out above. After discussion of the pending
and contemplated litigation subjects, in executive session, any
final action, or vote taken, will be in public.
LAND ACQUISITION- Section 2 ( f)
The City Council may consider the purchase, exchange, lease, or
sale of real property.
After discussion of land acquisitions in executive session, any
final action, or vote taken, will be in public.
PERSONNEL- Section 2 (q)
The City Council may consider the appointment, employment,
evaluation, reassignment, duties, discipline, or dismissal of
public officers or employees, including the City Manager, City
Secretary, City Attorney, and City Board and Commission Members. A
complete list of the City Boards and Commissions are on file in the
City Secretary' s Office.
After discussion of any or all of the above, in executive session,
any final action or vote taken will be in public by the City
Council .
If personnel issues or litigation issues arise as to the posted
subject matter of this City Council Meeting, an executive session
will be held.
SLL 10/10/91
CITY OF SOUTHLAKE
667 N. Carroll Avenue
REGULAR CITY COUNCIL MEETING
October 15, 1991 7 : 00 p.m.
MINUTES
COUNCILMEMBERS PRESENT: Mayor, Gary Fickes; Mayor Pro Tem Rick
Wilhelm; Deputy Mayor Pro Tem Sally Hall . Members : Mike O'Brien,
Barry Emerson, Jerry Farrier, and W. Ralph Evans .
CITY STAFF PRESENT: Curtis E. Hawk, City Manager; Billy Campbell,
Director of Public Safety; Michael Barnes, Director of Public
Works; Lou Ann Heath, Director of Finance; Don Wilson, Deputy
Director of Public Safety, Fire Services; Chris Terry, Assistant to
the City Manager; Greg Last, City Planner; Karen Gandy, Zoning
Administrator; Eddie Cheatham, City Engineer; Wayne Olson, City
Attorney; and Sandra L. LeGrand, City Secretary.
INVOCATION: Councilmember W. Ralph Evans .
The work session was called to order at 6 : 30 p.m. to discuss the
agenda items for tonight' s meeting.
Mayor Gary Fickes called to meeting to order at 7 :00 p.m.
Agenda Item #1-B, Executive Session
The Mayor hereby advised the audience that Council would be going
into executive session pursuant to Sections 2(e) 2 ( f) 2 (g) of the
Open Meetings Act, to seek the advise of our City Attorney with
respect to pending and contemplated litigations, to discuss the
purchase, exchange, lease or sale of real property, and to consider
the appointment and evaluation of public officials . Council left
for executive session at 7 :05 p.m.
Council returned to open session at 7 :40 p.m.
Council recessed from 7 :40 p.m. to 7 :50 p.m.
Agenda Item #1-C, Reconvene/Action necessary on items discussed in
Executive Session.
As the result of the executive session, motion was made to approve
the settlement of the Sivey Lawsuit.
Motion: Wilhelm
Second: Evans
Ayes : Wilhelm, Evans, Farrier, O'Brien, Hall, Emerson, Fickes
Nays : None
Approved: 7-0 vote
Councilmember Barry Emerson left the meeting at this time.
Illkommo
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City Council Minutes
October 15, 1991
page two
Agenda Item #2, Approval of the Minutes
Motion was made to approve the Minutes of the Regular City Council
meeting held on October 1, 1991 as presented.
Motion: O'Brien
Second: Farrier
Ayes : O'Brien, Farrier, Evans, Hall, Wilhelm, Fickes
Nays : None
Approved: 6-0 vote
Agenda Item #3, Mayor's Report
Mayor Fickes referenced a public hearing held in Grapevine in
regards to the improvememts to be made on Hwy 121, and SH 114
exchange,in Grapevine. A consultant was retained to recommend some
improvements .
Deputy Mayor Pro Tem Sally Hall reported on the Teen Court Advisory
Committee meeting, stating the committee will be posting agenda and
having minutes taken at their meetings . She referenced donations
which have been made by the Southlake Chamber, Women' s Division,
and the Chamber of Commerce, for members of the Teen Court Advisory
Committee, who wish to attend a Teen Court Conference to be held
in November.
Agenda Item #4, City Manager's Report
No comments were made during this agenda item.
Agenda Item #5, Consent Agenda
The Consent agenda consisted of the following item:
5-A. Permission to advertise for bids for Lift Stations to
be located at Bicentennial Park and on East Southlake
Blvd.
Motion was made to approve the consent agenda as presented.
Motion: Wilhelm
Second: Hall
Ayes : Wilhelm, Hall, O'Brien, Farrier, Evans, Fickes
Nays: None
Approved: 6-0 vote
Agenda Item #6, Public Forum
Peter Sporrer, 1214 Woodsey Court, Southlake. He asked if the
Citizens could offer input into the street priority list, which is
being complied by the Road Improvements Task Force. He asked if
the list could be placed in the City newsletter.
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City Council Minutes
Cie October 15, 1991
page three
Agenda Item #7-A, Ordinance No. 480-59, 2nd reading (ZA 91-52)
Ordinance No. 480-59, is a zoning change request for 128 . 33 acres
out of the W.E. Crooks Survey, Abstract No. 295, Tract 2 and Hall
Medlin Survey, Abstract No. 1038, Tracts 2, 2A, and 2B. The
current zoning is "SF-20A" Single Family-20 Residential with a
requested zoning for "PUD" Planned Unit Development. Amended
request is for 126 . 94 acres excluding the "C-1" lot on the corner.
Owner/applicant: Charles Young and Larry Cole dba The Hills of
Monticello.
Karen Gandy, Zoning Administrator, noted thirteen notices were sent
to property owners within 200 ' and one response was received, Dee
Irwin, 1203 Ridgewood Circle, opposing the request.
On October 1, City Council approved the 1st reading by a 7-0 vote
subject to the September 29, summary review letter.
Terry Wilkenson, representing Larry Cole was present to answer
questions for Council .
The public hearing resulted with no comments from the audience.
Mayor Pro Tem Wilhelm stated about one and one/half years ago
he represented a shareholder in this development and has not
represented him since. He stated he has had nothing to do
with this development during any of these stages and does not
feel he is disqualified from a legal standpoint, or from any
other standpoint and is going to continue to sit on this
situation and is going to continue to vote on this issue.
Motion was made to approve Ordinance No. 480-59, 2nd reading,
subject to the September 27, 1991 summary review letter.
Motion: Farrier
Second: O'Brien
Mayor Fickes read the caption of the ordinance.
Ayes : Farrier, O'Brien, Hall, Wilhelm, Evans, Fickes
Nays : None
Approved: 6-0 vote.
Councilmember Barry Emerson returned to the Council table.
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City Council Minutes
October 15, 1991
page four
Agenda Item #10-A, "Keep America Beautiful"
The City Manager reminded Council that during the budget work
sessions a presentation was made by Bob Mundlin, to the Council
concerning participation in the Keep American Beautiful Program.
The consensus of the Council during the budget presentation was to
direct staff to look at funding the Southlake participation through
proceeds from the recycling program, rather than to budget
specifically in the General Fund.
Bob Mundlin stated for a city our size, there is a one-time
certification fee of $850 . and an annual program service fee of
$85 . There is also the cost of training the three (3) member
team. The next available training session will be in the
metroplex, which will cut down on expenses .
Councilmember Mike O'Brien suggested the City Council only commit
for one ( 1) year at a time. He would like to see the exact dollar
amounts of the program.
Mayor Fickes stated the Keep American Beautiful Program was taken
out of the budget and is to be funded by profits from recycling.
Councilmember Barry Emerson stated he feels the program is a good
one. He encourages getting businesses involved. He added, the
project is fairly well known throughout the state.
Councilmember Ralph Evans stated he feels individuals will also
want to get involved.
Councilmember Jerry Farrier stated he appreciates Mr. O'Brien's
concerns, however, he shares the Mayor' s opinion, that we do not
hamstring this group that is being put together at this initial
stage.
Motion was made to accept the recommendation that the City make
application into the Keep America Beautiful Program and commit the
funds for the application and to pay our dues . The funds are to be
coming out of the recycling program.
Motion: Farrier
Second: Hall
Ayes : Farrier, Hall, Evans, Emerson, Wilhelm, Fickes
Nays: O'Brien
Approved: 6-1 vote
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City Council Minutes
October 15, 1991
page five
Agenda Item #8-A, Ordinance No. 544, 1st reading. Landscape
The City Manager stated this item will need to be tabled as the
Planning and Zoning Commission will hopefully complete their review
at their next meeting.
Motion was made to table Ordinance No. 544, 1st reading.
Motion: Emerson
Second: Farrier
Ayes : Emerson, Farrier, Evans, O'Brien, Hall, Wilhelm, Fickes
Nays : None
Approved: 7-0 vote (to table)
Agenda Item #8-B, Ordinance No. 545, 1st reading Burning Permits
Director of Public Safety, Billy Campbell, presented Ordinance No.
545, explaining Section #6 will be omitted as it is covered in the
Uniform Fire Code.
After discussion, motion was made to approve Ordinance No. 545, 1st
reading, omitting Section #6 .
Motion: Emerson
L40., Second: Farrier
Mayor Fickes read the caption of the ordinance.
Ayes : Emerson, Farrier, Evans, O'Brien, Hall, Wilhelm, Fickes
Nays : None
Approved: 7-0 vote
Agenda Item #8-C, Ordinance No. 547, 1st reading TMRS Update
LouAnn Heath, Finance Director, introduced an ordinance that
provides for an automatic annual updating of service credits and
annuity increases . This is the first time this option has been
available in the Texas Municipal Retirement Program. In prior
years, updated service credits and annuity increases had to be
annually approved.
The updated service credit provides for a recalculation of
retirement benefits based upon a member' s average monthly salary
for the previous three year period. Retirement benefits are
updated based upon the higher wages earned in more recent years .
Motion was made to approve the 1st reading of Ordinance No. 547 .
Motion: Farrier
Second: Emerson
Mayor Fickes read the caption of the ordinance.
Ayes : Farrier, Emerson, Hall, Evans, O'Brien, Wilhelm, Fickes
Nays : None
Approved: 7-0 vote
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City Council Minutes
October 15, 1991
page six
Agenda Item #8-D, Ordinance No. 548, 1st reading TMRS
Finance Director, LouAnn Heath, presented Ordinance No. 548, 1st
reading, stating the fiscal year 1991-92 budget recently adopted
made a provision for increasing the matching ratio for the
retirement program. The city pays for its retirement program
through TMRS. Currently, the city' s matching ratio is 1-1/2 to 1,
with employees contributing 5% of salary. The budget incorporates
a change in the plan to a 2 to 1 matching ratio, effective January
1, 1992 .
The City' s current contribution rate is 3 . 01% of total salary with
the 1-1/2 to 1 matching ratio. The proposed 2 to 1 ratio plan
increases the rate to 4 . 19%, plus, . 01% for the increase in
annuitants benefits, for a total rate of 4 .20% . The 1991-92 budget
for retirement benefits increased approximately $30,000, from
$80,000 to $111,000 to provide for this additional benefit.
Motion was made to approve Ordinance No. 548, 1st reading.
Motion: Farrier
Second: Emerson
Mayor Fickes read the caption of the ordinance.
Ayes : Farrier, Emerson, Hall, Evans, O'Brien, Wilhelm, Fickes
Nays : None
Approved: 7-0 vote
Agenda Item #10-B, Agreement for Utility Billing Audit
The City Manager, Curtis Hawk, stated the audit agreement is
similar to the contract we entered with City Research Services in
1989 to audit our sales tax receipts . The sales tax audit resulted
in a new return of $9,562 .88 to the City. Although the 60% fee
sounds high on the surface, any revenue the audit generates will be
lost without the audit. Staff does not have the time to conduct
such an audit.
City Council asked this item to be brought back to Council during
the next meeting, in the meantime, Staff will look into other
options .
Agenda Item #11-A, Discussion: Sign Ordinance.
Eddie Wilson, Code Enforcement Officer, present and explained the
recommendations made by the Planning and Zoning Commission on the
Sign Ordinance. The draft presented also has the comments made by
Wayne Olson, City Attorney. Areas discussed include:
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City Council Minutes
October 15, 1991
page seven
Agenda Item #11-A, Continued
1 . Section 16-B, Political signs in right-of-way.
Council suggested they not be allowed.
2 . Section 20, Billboards . The City Attorney
recommended a minimum of 672 square feet-
1,760 feet a part and 1,760 feet from a residence.
3 . Section 2 . Balloons .
4 . Article 2- Fee Structure
Council went into recess at 9 : 32 p.m.
Council returned to open session at 9 :45 p.m.
Agenda Item #11-E, Southwestern Bell Franchise Agreement
Gary Terry, was present, representing SW Bell Telephone Company.
He stated most of the franchise ordinances in the area are at least
twenty (20) years old, and Southlake' s ordinance will expire in
January 1992 . He stated Southwestern Bell has been discussing a
new uniform agreement for the 535 cities they have agreements with
tod.1 for the past several months . He presented their position to
Council .
Agenda Item #11-B, Discussion: Weed Lien Ordinance
The City Manager, Curtis Hawk, expressed this ordinance for weed
liens, is a follow-up to the agenda item of July 9, 1991 . The
proposed ordinance reflects changes necessary due to statutory
amendments in the last legislative session.
Director of Public Safety, Billy Campbell reviewed the recommended
changes for Council, stating this ordinance will be presented for
1st reading in the near future.
Agenda Item #11-C, Discussion: City Council Procedures
The City Manager, Curtis Hawk, stated over the past several years,
the City Council Procedures ordinance has been discussed. The
memorandum from Chris Terry, Assistant to the City Manager, has
outlined the discrepancies between our practice and the ordinance
which was adopted in 1985, and amended in 1987 .
Councilmember Mike O'Brien stated he would like to work on this
item with a couple of other Councilmembers and bring a suggested
amendment back to Council in the near future. He would like to
find a way to streamline the Council meetings .
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City Council Minutes
thre October 15 , 1991
page eight
Agenda Item #11-D, Discussion: Continental Park Sewer
Curtis Hawk, City Manger, stated their is still a number of people
in Continental Park Estates who have not yet connected to the sewer
system. He informed Council that in July he sent out letters to
each individual property owner not connected and told them we would
' begin enforcing the ordinance beginning Friday, November 1, 1991 .
Agenda Item #12, Adjournment
Motion was made to adjourn the meeting at 11 : 15 p.m.
Motion: Wilhelm
Second: Emerson
Ayes : Wilhelm, Emerson, Hall, O'Brien, Farrier, Evans, Fickes
Nays : None
, p�end,' 7-0 vote
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Sandra L. LeGrand
City Secretary
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Southwestern Bell Telephone /.`/t5/
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L. CITY OF SOUTHLAKE
ORDINANCE:
ENACTED: 8/15/72 RATE: 4 . 0%
EXPIRES : 1/1/92 ACCTS: LETTS
PAYMENT HISTORY: % INCR.
1981 $79
1982 $96 21 . 5%
1983 $106 10 . 4%
1984 $94 -11 . 3%
1985 $54 -42 . 6%
1986 $40 -25 .9%
1987 $11 -72 . 5%
1988 $4 , 925 *******
1989 $7 , 607 54 . 5%
1990 $7 , 515 -1 .2% r
OPTIONS (ALL ON 4% ) :
BEST YR. + TIPI : $7 , 890 5. 0%
BEST YR. + LOCAL: $9 , 828 30 .8%
+10% IGA $983
BASE YEAR PROPOSAL: $10,800 43 . 7%OVER ' 90
GROWTH IN SALES TAXABLE SWBT REVENUES : 0 .25%
====== _���aaa=_= aaa=aaaaaaa===aaaaaa
....•• ESTIMATED CUSTOMER IMPACT: FEE AMOUNT
TODAY PROP.
BASIC SERVICE RATE:
RESIDENCE SINGLE $9 .85 $0. 54 $0 .79
BUSINESS (ONE LINE) $23 .10 $1 .11 $1 .84
- 3 LINE HUNTING $82 . 05 $3.80 $6. 54
PBX TRUNK $35.20 $1 . 41 $2 . 81
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9-27 •91
CREMNAME
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AN CEDINANCE WHEREBY THE CITY OF SCUMLARE, TE7AS, AND
SCUTHMSTERN BELL TELEPHME PINY AGREE THAT, FUR THE
PURPOSE OF OPERATING ITS TEIF7CCMU IICATICNS BUSDESS, THE
TELEPHONE COMPANY SHALL MAINEADI AND C CRSTR liCT ITS POLES,
WINS, ANCHORS, FIBER, CABLES, MANHOLES, CIS AND OTHER
PHYSICAL PLANE AND APEURMENANCES IN, ALONG, ACROSS, ON, OVER,
IHRCU3H, ABOVE AND IIMEt AIL PUBLIC STREETS, AVENUES,
I! HIGHPAYS, ALLEYS, STEMMAS, BRIDGES aR PUBLIC WAYS IN SAID
CITY; PRESCRIBING THE ANWIAL CEMPENSATICH WE THE CITY UNDER
THIS ; PRESCRIBING THE aI'IO GOVERN:MIME USE
OF PUBLIC RIGHTS-OF-WAY AND THE PERFORMANCE OF C1 I7fli
CCNSTRUCTION %MK ON PUBLIC RIGHTS-OP-WAY FOR THE TEIEPH3RE
C CMPANY'S LEIBOOMUNICATIONS BUSINESS; PROVIDING AN IRDEmNrly
C L I]:SE; SPECIFYING GOVERNIM LAWS; FROMQS — A RELEASE OF
ALL CLAIMS CIAIMS UNDER PRICII ORDINANCES; PROVIDING FOR FUTURE
: PROUD:CM FOR WRITTEN ACCEPrANCE OF THIS
CL2DDiANCE BY THE TEUMRINg OQPANY; AND PROVIDING PU A TERM
AND AN EF FECI'IVE DATE.
Southwestern Bell Telephone Ca pany (hereinafter referred
to as the "TELEPHONE C ANY") is now and has been engaged in the
telecar¢mzications business in the State of Texas and in furtherance thereof,
has erected and maintained certain items of its physical plant in the City of
Southlake, 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
ttit.„
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WRAS, the TELEPHONE COMPANY has operated its teleoca munications
business in the CITY under successive ordinances of the CITY, the last of
which was Ordinance Number 189 adopted August 15, 1972, which provided
compensation to the CITY for the superintendence of that agreement based upon
I! a percentage of gross receipts received by the TELEPHONE COMPANY from certain
local services rendered within the corporate limits of the CITY; and
MFAS, 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 acting practices mandated by the Uniform
System of Accounts promulgated by the Federal Ccamamications Commission
(64e ("FCC") , along with regulatory requirements of the Texas Public Utility
Commission ("PUC") , have caused the traditional method of determining the
11[
amount of compensation to municipalities to beocatie 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
necessary to resolve any issues in controversy between the parties; and
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S, it is to the mutual advantage of both the CITY and the
TIIiE COMPANY that an agreement should be entered into between the
TELEPHONE COMPANY and the CITY establishing the conditions under which the
TELEPHONE COMANY shall maintain and construct its physical plant in the CITY
I! in the future;
}uq, THEREFORE, BE IT ORDAINED BY THE CITY 0....
OF THE CITY OF 9WIIIIARE, TEXAS, THAT:
SECTION 1 - PORPOSE
Law
Pursuant to the laws of the State of Texas, the CITY Charter and this
Ordinance, the TELEPHONE COMPANY has the NON-EXCLUSIVE right and privilege to
USE the public RIGHT'S-OF-WAY in the CITY for the operation of a
telecommunications system subject to the restrictions set forth herein. The
TEMPHCCE OQPANY may USE such RIGHTS-OF-WAY for its telecaaramications
FACILITIES. The TE1EPHONE COMPANY'S FACILITIES and TRANSMISSION MEDIA used
in or incident to the provision of telecommunications service and to the
1: maintenance of a teleoaimiunications business by the TELEPHONE CI ANY in the
CITY shall remain as now constructed, subject to such changes as under the
conditions prescribed in this Ordinance may be considered necessary to the
kb. 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
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TELEPHONE OCNPANY in the pursuit of its telecanmunications business. The
terms of this Ordinance shall apply throughout the CITY, and to all
I! operations of the TELEPFICNE COMPANY within the CITY, and shall include all
operations and FACILITIES used in whole or in part in the provision of
110 telecommunications services in newly annexed areas upon the effective date of
any annexation.
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SECTION 2 - ADOII'IZ CHsiL AUTHORITY REQUIEM
I!
The TELEPHONE COMPANY is not authorized to provide cable television service
in the CITY under this Ordinance, bit must first obtain a separate agreement
frau 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.
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SECTION 3 - IEFfl TIa
1: Whenever used in this Ordinance, the following words and terms shall have the
definitions and meanings provided in this Section:
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(a) FACILITIES: all IIIIEFHONE COUTANY duct spaces, manholes, poles,
1: conduits, underground and overhead passageways, and other equipnent,
11 structures and appurtenances and all associated TRANSMISSION MEDIA.
(b) USE: any TELEPHONE CCNRANY acquisition, construction, reconstruction,
I! maintenance or operation of any FAcrums in, over, under, along,
through or across the public RIGHTS-OF-WAY for any purpose whatsoever.
11 (c) CITY: The City of Southlake, Texas.
11 (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways,
alleys, bridges and public property within the city limits of the CITY.
(e) DIRECTION OF THE CITY: all ordinances, laws, rules, regulations, and
fre 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 COMPANY cables, fibers, wires or
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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.
(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-W Y
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 Canpany.
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SECTION 4 - TERN
11 This Ordinance shall continue for a period of one (1) year from the effective
date hereof; provided that at the expiration of the initial period, such term
nay be extended by mutual written agreement of the CITY and TELEPHONE
OCANY.
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SE TICK 5 - SQPFRVISICN BY CITY OF LOCATION OF POIES AND CENEUIiS
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Al]. poles placed shall be of sound material and reasonably straight, and
1:41' 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. Zhe 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
telecxamamications system in the CITY shall be subject to the lawful,
reasonable and proper control and DIRECTION OF THE CITY.
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SEC I'ICN 6 - ATTACHMENTS TO POUFS AND SPACE IN
11 Nothing contained in this Ordinance shall be construed to require or permit
any pole attachments far electric light or power wires or o®muzicationls
facilities or systems not provided by the TELEPHONE OCMPANY to be attached to
the TELEPHONE OCNPANY'S poles or other physical plant or placed in the
11
TELEPHONE COMPANY'S conduit. If the CITY desires pole attachments for
11 electric light or power wires or communications facilities or systems not
provided by the TELEPHONE COMPANY, or if the CITY desires to place
11 ocxmninications facilities or systems not provided by the TEIEPHONE C MNANY in
any TELEPHONE COMPANY duct, then a further separate, noncontingent agreement
shall be prerequisite to such attachments) 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
C: carpanies which are authorized to operate within the CITY.
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SECTION 7 - sue-eaS TOPE RESIORED TO PM-MC[57TM OCNDITICN
The surface of any public street, avenue, highway, alley or public place
disturbed by the TELEPHONE COMPANY in the construction or maintenance of its
(we telecormunications system shall be restored within a reasonable time after
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the oailetion of the work to as good a condition as before the canumx emnt
of the work. Should the CITY reasonably determine, within one year fran the
date of such restoration, that sudh surface requires additional restoration
work to place it in as good a condition as before the oaamenoement of the
1! work, the TEIZIMINTE OCMANY 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.
Caw SECTION 8 - maxmampaumenomaa OF AERIAL WIRES
Upon request, the IELEXHONE 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 TEUMMNE COMPANY shall be given not less
than forty-eight (48) hours advance notice to arrange for such temporary
rearrangements.
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SECTION 9 - TREE TRIMMING
11 The right, license, privilege and permission is hereby granted to the
TELEPHONE OCMPANY, 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
11 then so directed by the CITY, said trimming shall be done under the
supervision and direction of the CITY or of any CITY official to wham said
11 duties have been or may be delegated.
SECTION 10 - INDEMNITY
The TELEPHONE COMPANY shall indemnify and hold the CITY harmless fray 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
RIG IS-OF-WAY found to be caused solely by the negligence of the TE1EPHONE
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.
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SECFIQi11 - AL24INISIPAT7Cti OFQ E
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(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.
11
(b) Copies of petitions, applications, ommunicatfons and reports submitted
by the TELEPHONE OCi PANY to the Federal Catmanications Commission or the
Public Utility Commission of Texas shall be provided to the CITY upon
request.
11
(c) The CITY may establish, after reasonable notice, such rules and
(Vie regulations as may be appropriate for the administration of this Ordinance
and the construction of the TELEPHONE CCITANY'S FACILITIES an CITY property
to the extent permitted by law.
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SECTION 12 - OQTICN TO THE CITY
(a) As compensation for the use, occupancy, oversight,
gh , 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 TEUTHCVE COMPANY or its
coartractor(s), or any RICW-OF-WAY easement or street or alley rental or
franchise tax or other character of charge for use and ocalpancy of the
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RIG IS-OF Y within the CITY, except the usual general ad valorem taxes,
ICspecial 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 CPANY. The amount of the Charge for the first year this
Ordinance is in effect shall be $ . 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 disarmexation as set forth in
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paragraph 12(e) , or as provided in Section 16 herein.
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The TEIEPHONE COMPANY will, according to tariff, bill such Charge to the
ire customers billed the customer service charges included within the term "Gross
Receipts," as defined herein. Gross Receipts, for purposes of this Charge
1[
shall include only customer service charges which meet all four of the
1[ following conditions: (1) such charges are for TIIiE COMPANY services
provided within the CITY; (2) such charges are billed through the TELHO E
COMPANY'S Customer Records Information System ("CRIS") ; (3) such charges are
the recurring charges for the local exchange access rate element specified in
1: the TELEIHONE COMPANY'S tariffs filed with the PUC; (4) such charges are
subject to an interstate end user common line ("EUCL") charge as imposed by
the Federal Communications Commission ("FCC") .
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For the second and subsequent years while this Ordinance remains in effect,
1:„., the above Charge is subject to adjustment by application of the Growth Factor
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set out in paragraph 12(c) . This adjustment for the Growth Factor will be
1[ made effective as of each anniversary date of this Ordinance.
The TELEPHONE CCIIPANY 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
fr.
undercol lection of the Charge to or fran 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 fran 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 Grawth Factor shall be calculated by dividing the TELEPHONE COMPANY'S
revenues within the corporate limits of the CITY subject to the state
telecotmiunications sales tax ("Sales Tax Revenues") applicable to services
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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
11 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 year's Charge. The
TELEPHONE COMPANY will adjust its customer billing to account for the Growth
Factor calculated above.
fir
Stated another way, for example, the Charge and Growth Factor for the first
three years of an ordinance shall be calculated as follows:
Examp le: a and Growth Factor for an Ordinance Effective October1, 1991
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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 Growth = Second Year
Year 2 Sept. 30, 1993 Factor, if any Charge
(Sales Tax Revenues for
12 month period ending
3 months prior to
Oct. 1, 1992 ("STR"] s by
Sales Tax Revenues for
12 month period ending
3 months prior to
Oct. 1, 1991 ["STR"])
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Payment Oct. 1, 1993- Second year Charge x Growth - Third Year
Year 3 Sept. 30, 1994 Factor, if any Charge
(Sales Tax Revenues for
12 month period ending
3 months prior to
Oct. 1, 1993 ("SIR"] t 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 TELEPHONE COMPANY will
provide the CITY with the Sales Tax Revenues upon which the Growth Factor
calculation was based.
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The CITY agrees to rely upon audits by the Texas Ctroller of Public
Accounts of state telecommunications sales taxes as reported by the TELEPHONE
OOMPANY 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 changes. 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 nay be necessary to the satisfaction of the TELEPHONE COMPANY'S
obligation, if any, to pay any such taxes, licenses, charges, RI(3 IS-OF-WAY
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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 n nicipality created which
includes such territory or (2) an entire, existing incorporated municipality
ICshall be consolidated or annexed into the CITY, then notwithstanding any
other provision of this Ordinance, the Charge shall be adjusted. To
Ifh
accomplish this adjustment, within thirty days following the 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 amaint of the payment by the TOTE
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
1:
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
Fikib, date. This adjustment to the Charge will be made on the first day of the
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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
ICyear. The Charge as adjusted shall be used for all future calculations
required by this Ordinance.
SECTION 13 - ASSIGNMENT OF ORDINANCE
This Ordinance andaTl 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.
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SECTION 14 - 14.71UAI RELEASES
The CITY hereby fully releases, discharges, settles and cca pronises any and
all claims which the CITY has made or could have made arising out of or
1: connected with Ordinance Ntmber 189 adopted August 15, 1972, and renewed or
extended from time to time thereafter, and its predecessor ordinances, if
any, (hereinafter referred to collectively as "Ordinance 189"). This full
and complete release of claims for any matters under Ordinance 189 shall be
for the benefit of Southwestern Bell Telephone Company; its parent; its
1:by affiliates; their directors, officers and employees; successors and assigns;
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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 189. Southwestern Bell Telephone Company, its
parent, its affiliates, successors and assigns hereby fully release,
discharge, settle and compromise any and all claims, actions, causes of
1[ action or controversies heretofore made or which could have been made, known
or unknown, against the CITY, its officers or its employees, arising cut of
or co nected with any matters under Ordinance 189.
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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.
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SECTION 15 - REPEAL OF OVPLICI'IIC ORDINANCES AND AXIS
Ordinance Ntmiber 189 adopted August 15, 1972, is hereby repealed; provided,
however, such repeal shall take effect at 11:59 p.m. on the day immediately
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preceding the effective date specified in the Section of this Ordinance
entitled "ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE". All other ordinances
and 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 TEZ ONE OCN1PANY 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
tion le to that set forth in this Ordinance provided that
��� comparable
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.
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SEC ICN 17 - DOVE N1 IAW
(a) This Ordinance shall be construed in accordance with the CI'rY Charter and
CITY Code(s) in effect on the date of passage of this Ordinance to the extent
that such Carter 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
c anbined efforts of the CITY Y and the TELEPHONE CaMPANY.
fre
SECTION 18 - ACCEPTANCE OF ACTT 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
TOTE COMPANY shall have thirty (30) days fran and after the final
passage of this Ordinance to file its written acceptance of this Ordinance
with the CITY Secretary. This Ordinance shall became effective beginning the
first day of the quarter not less than forty-five (45) days after its final
passage by the CITY.
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Passed and approved following the, A.D., 1991. reading hereof this day of
Mayor,
City of Scuthiake, Texas
ATTEST:
City Secretary
I, , City Secretary of the City of
IfVe
Southlake, Texas, do hereby certify that the foregoing is a true and correct
copy of Ordinance Number , finally passed and approved by the City
Council of Southiake, Texas, following the reading thereof at a
regular meeting held on the day of , 1991.
City Secretary
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