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0565 33NKNIG Io sMoismoixnmoosrias sxmsnos do asio 11-5 'ON =MIMI° 8T swaUTAed AT1a.ienb (p) LT •abaeu3 au4 3o 4uauz4snCpV Tenuuv (o) LT •ab1eu3 alp 3o buTTTTg (q) 91 •abieuo sgdTeoag sso1O (e) 9T ALIO 3Hy OS NOIIVSN3dW0O - TT MOIy33S 91 satnu (o) 91 s.uauznoou (q) 9T saTITnbuI (e) 91 3ONVNIQUO 30 NOIIV2I3SINIWQV - OT NOIy33S ST ONINNIUy 33ay - 6 NOIy33S ST S32IIM 'IKIU3V 30 3Mamaoriv IUff32i xuirdaodwas - 8 NOISO3S CT SeT.TTToe3 3o uoTgeOOTag (p) ZT 'AeM-3o-s4ubTH 04 Sabueu3 JO SU0T4e.19.TV (o) ZT SlaufO oq swe1O AeM-3o-s4ubTU (q) TT •uoT4onz4suo3 AeM-3o-4ubTU ieq o (e) TT ' • Lmawano IdWI OI'Igfld H1LIM W IO3NOO OZ NOI IVHaNIK 'S2i3NM0 sNIuf1Sv xa NoLion2iJSNOO 'SH 1LL0 As ?RIOM - L M0LL33S TT oTTgnd au4 3o uoT4oa4oad (o) OT uoT4eao4sag pue uoT4eneox3 (q) 6 •saTgTtToed snoiabueQ 3o Tenomag (e) 6 ' • ' ' NOILVAVOX3 QNK 3ONVN33NIVW 'NOI3Of12IS1SNOO - 9 NOIy33S 6 eTpayi uoTssTuzsueay 3o uoT4eooZ (T) 8 •saT4T4u3 aau.O Aq saT4TTToe3 3o asn (u) 8 AgTO Aq asn TeToaaunuoo-uoN (b) L saT4TTT0e3 mem uT asn S,A4T0 1O3 coeds (j) 9 •saTgT TT0e3 buT.STX3 uT asn s,AgTO 1O3 coeds (e) 9 aouaaa31a4uT-uoN (p) 9 •4uameovid punolb epun (o) 9 •uoT4eo0Tag 30 wauza1Tnbag (q) S weuzdTnb3 pue saTod 3o quauzaoetd (e) S asn 30 SNOILIQNOO 'IKU3N39 - S NOIy33S S wam - I NOIy33S I, SNOILINI33Q - C NOIy33S Q3uIlb32I mummy 'IVNOI3IQQV - Z NOI L33S £ 3SOdUfld - T NOIy33S SLN33NO3 dO awes corm IU IO sxoism3iMnwWoos'iss illiMAOS AO AJIO • , • TT 9Z • • • alma SAIJLOs33S QNIY ZN awaausv 30 amgvLda3OV - 8T NIOISOss 9Z s4,zo;3S PauzquzoO (q) 9Z uoT4s4aIdIaquI (s) 9Z MV'I DNIINRISAOD - LT NIOIZO3S SZ SOMKNIIQ2i0 SIRS dO SONISQapaud QNY s3NVNIIQ2i0 SIIOIA3Ud dO 'Ivada2i - 9T NIOLLOSS bZ SSmIO HSHZO 30 ,L akums2u - ST NIOIwSS vZ AONSDNIIZNIOO S2uf Lf13 - bT NIOIZOss ZZ SaSV3'ISu 'IKf1LfN - £T NIOIZOss ZZ SONIVNIIQUO 30 1NSMNIJISSV - ZT NOISoss ZZ 861s1O 3o uoTgoa1Z03 3o pou4914 (T) OZ uoTgsxauussTQ pus uoT4sxauuV (q) OZ uoTgspTTsnui 3o ass3 ut gasggo (b) 6T SgTPnV (;) 81 •,zogos3 11fMo19 (a) rim) vid aogy) s,la2euew KID :itaunoD I n mgns so3 panoaddd •tuali sigi 3o ienoidde itounoj spuaunuooai Buis :uopupuammoaag JJ 2S 666T 'LI 'Ceyi Pawl) `uolsng •M LINgtuo13 faun :sauamnaou 2ui3Joddns -`14 ZJO Z aged Faun flag tua1saMtllnos Hagdump Aye 'I'h.-'ee 8~II Plaaa, {k, xn 1110..A~ P'flou~ 214 ~ 1 Fax 214 ~ May 17, 1999 The Honorable Rick Stacy Mayor Cpty of Southlake 667N Carroll Ave Southiake, TX 76092 Cear Mayor Stacy: This is to confirm the C~ty's understanding regarding the expiration date for Ordinance 565 (the 'Ordinance') that was adopted on June 2, 1992, to address SWBT's occupation and use of'public ngnt~f-way and compensation paid to the City. In our previous letter to you, SWBT had said that our recorcs showed tbat the Ordinance would expire on June 30, 1999, ACtor discussing the ~erms of the Ordinance with Ms. Debra Drayovitch, City Attorney, and SWBT legal representatives, we are in agreement that the Ordinance will be in effect through September 30, ~ 999 The growth factor that is included in the Ordinance will continue to be effective on July 1, 1999, and the City will be receiving another letter from us Yep' soon informing you of the new annual payment rate That new annual payment rate will only be effective, however, for one quarto--- from July 1 : 999 until September 30, 1999--resulting in a one-quarter pro rata payment at the new annual payment rate. We are hopeful that a replacement ordinance can be in effect pdor to the expiration of the Ordinance, otherwise we will need to consider an extension of the current agreement ~o ailow the completion of those discussions. FWBT would appreciate your signature below confirming the City's understanding of the status of C"dinance 565 and returning Io me at: Three Bell Plaza, Room 1110 A2 308 S. Akarc Dallas, Texas 75202-5399 Pease let me know if you have any questions or would like to discuss this matter furlher. Robe~W Burton Confirmed: City of Southlake Title: Mayor CC: Lori Leu, SWBT Gan/Tern/, SWBT Deb'a ?aycvitch Taylor, Olson, Adkins, Sralla, 8, Elam, LLP. 3400 Bank One Tower 500 Throckmorton Street Fort Worth, Texas 76102-2'~21 LZ8E-ZO L9L sexel 'y}JoM pod }aaJ}s uo}Jow)IooJyl 009 JOMol Duo )U88 OOiC •d•1 1 'W813 '8 'elle-IS 'sul)Ipy 'uos10 'J01A81 yo}inoneJa eJgaa 18MS 'Ailed.AJeO 18MS `nal poi :00 JO :al}Il uopn8 M}Jogod °°°° ,1P Z.V/F 7 aMely} 10 40 .paiwquo0 'nlaJaouls •JegpnJ Ja}}ew sly}ssnoslp 01 mill pinoM Jo suol}sanb nue aney noA II mow{ aw }al aseald 66E9-ZOZSL sexal `sellea pJe)IV 'S E0E Z`d'O L L I• 1-u001 '2zeld Ilea aaJyl :}e aw 01 6uluJn}aJ pue ggg aoueulpJo }o sn}e}s ay}40 6ulpue}sJepun s,40 ay} 6u!WJ!Juoo Molaq aJn}eu6ls Jno( a}eloaJdde mom 18MS •suolssn0slp asoy}j0 uol}aldwoo ay}Molle o}}uewaaJ6e }uaJJno ay}Jo uolsua}xa ue Japlsuoo 01 paau IIIM am as!MJay}o 'aoueulpJo ay}4o uol}eJldxa ay} o}JoLid}oajia ul eq ueo aoueulpJo}uaweoeld8J a ley} InJedoy aJe am •alai}uawned Ienuue Mau ay}}e}uawned mei ad Ja}Jenb-auo a ul 6uglnsaJ-6661. 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'OE aunp uo aildxe pinoM aoueulpJo ay}ley} paMOys spJooe Jno ley} ples peg 18MS 'non 01.181181 sno!AeJd Jno uI •40 8141 01 pled uol}esuedwoO pue neM-Jo-1y6u ollgnd Jo asn pue uol}edn00o s,18MS ssaJppe 01 'Z66 L 'Z ounr uo pa}dope sem ley}(„aoueulpJo„ ay}) ggg aoueulpJo JoJ a}ep uogeJldxa ay} 6ulpJe6aJ 6ulpue}sJepun s,40 ay} WJI}uo0 0} Si s!41 :noe}s JOneyy aee() Z609L Xl `e)felq}nos any IIoJJeO N L99 a)Iely}nos Jo 40 Jonew doelS )1O! algeJouoH 841 6661•'L1. neW nag Lualsamtmos 9£89-'6916 1716 red 190'6-$'9$'416 auogd 6O 9L sexay'seileU sne3Jd ledlalunj.j 6V'0T11 uzoog`ezeid Hag"JILL -aa2euew ea y auogdalay flag uaalsan&ginos VdO`uollng liagog ORDINANCE NO. ~ lan oRDINANCE WHEREBY THE CITY OF SOUTHL~KE, TEX~S, ~ SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THATt THE TELEPHONE COMPAITY MAY OPERATE ITS TELECOMMUNICATIONS BUSINESS IN, ALONGt ACROSS, ONt OVERt ~ UNDER ALL PUBLIC STREETS, AVENUESt HIGHWAYSt ALLEYSt SIDEWALKSt BRIDGES OR PUBLIC WAYS IN THE CITY; PROVIDING A TERM; PRESCRIBING THE COMPENSATION DUE THE CITY UNDER THIS ORDINi~NCE; PRESCRIBING THE CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS-OF-WAY ~a~ND THE PERFORMANCE OF CERTAIN CONSTRUCTION WORK ON PUBLIC RIGHTS-OF-WAY FOR THE TELEPHONE COMPi~NYtS TELECOMMUNICATIONS BUSINESS; SPECIFYING GOVERNINGL~WS; PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDIN/s~NCES; PROVIDING FOR FUTURE CONTINGENCIES; PROVIDING FOR WRITTEN ACCEPT~=NCE OF THIS ORDINi~NCE BY THE TELEPHONE COMPlS/~IY; ~ PROVIDING ~ 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 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; and WHEREAS, the Telephone Company has operated its telecommunications business in the City under successive ordinances last of which was ordinance Number 189 adopted of the city, the August 15, 1972; and waEREAS, 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 only. 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 W~EREAS, this Ordinance is adopted by the City Council of the City of Southlake pursuant to the provisions of Article 1175, Section 2, V.A.T.S., Article 1446c, Section 21, V.A.T.S., and Chapter X of the Charter of the City of Southlake; and W~EREAS, 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 pursuant to Section 10.02 of the Charter of the City of Southlake, establishing the conditions under which the Telephone Company shall maintain and construct its physical plant in the City in the future; NOWt THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE~ TEXAS, THAT: $[akel I \s~be [ [ .or1 SECTION i - PURPOSE Pursuant to the laws of the State of Texas, Chapter X of the Charter of the City of Southlake, 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 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 stakel 1 \$~bet t. or1 obtain a franchise agreement from the city for that purpose, under such terms and conditions as may be required by law. SECTION 3 - DEFINITIONS Whenever used in this Ordinance, the following words and terms shall have the definitions and meanings provided in this Section: (1) FACILITIES= all Telephone Company duct spaces, manholes, poles, conduits, underground equipment, structures and transmission media. and overhead passageways, and other appurtenances and all associated (3) (4) highways, of the City. (2) 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. CITY: The City of Southlake, Texas. RIGHTS-OF-WAY: all present and future streets, avenues, alleys, bridges and public ways within the city limits (5) DIRECTION OF THE CITY: all regulations, and charter provisions of ordinances, laws, rules, the city now in force or that may hereafter be passed and adopted which are not inconsistent with this Ordinance. (6) TRANSMISSION MEDIA: fibers, wires or other physical all Telephone Company cables, devices used to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other purposes. - 4 - stakel I \st*~e[ [.or1 (7) 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 interest. (S) its sole discretion, may determine to be in the public TELEPHONE COMPANY: Southwestern Bell Telephone Company. SECTION 4 - TERM This Ordinance shall continue for a period of seven (7) 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 - GENERAL CONDITIONS OF USE (a) Placement of Poles and Equipment. 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 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. s t akel 1 \st~be[ [.o~'1 -- 5 -- (b) Requirement of Relocation. As authorized by Section 55(b) of the Public Utility Regulatory Act (PUl{A) Art. 1446c V.A.C.S., the City reserves the right to require the Telephone Company, at Telephone Company's expense, to relocate its facilities to permit the widening or straightening of streets by giving to the Telephone Company thirty (30) days notice and specifying the new location for the facilities along the right-of-way of the street or streets. (c) Undergroun4 Placement. Any work done in connection with the Telephone Company's use of the rights-of-way shall be subject to the police power and direction of the City. The Telephone Company may be required to place certain facilities underground according to reasonable requirements that may be adopted from time to time by the Southlake city Council; provided, however, Telephone Company shall be given due notice and shall be entitled to a hearing before the Southlake city Council prior to the adoption of any such requirements. (d) Non-interference. All use of the rights-of-way by the Telephone Company shall interfere as little as reasonably practicable with the use of the rights-of-way by others. (e) Space for City's use in Existing Facilities. The Telephone Company shall permit the City of Southlake to use without charge, solely for its own non-commercial telecommunications purposes, the following described facilities: One duct in all of Telephone Company's existing ducted facilities within the city - 6 - slakel I \s~bet [.or1 limits, with sufficient space for necessary joints. Also, Telephone Company shall provide adequate space on all non-ducted facilities now existing or hereafter constructed on or within the rights-of-way for the city to attach transmission media for the city's own non-commercial use. Where insufficient facilities exist to accommodate the city, other existing facilities may be substituted therefore with the concurrence of the city. (f) Space for city's Use in New Facilities. If the Telephone Company shall hereafter extend its existing underground conduits, it shall provide one duct in each additional conduit for the city's own purposes, as provided above. The Telephone Company shall cooperate with the city at all times by providing timely, complete and continuous information regarding the location of all conduit, along with such maps, plats, construction documents and drawings as may exist or be created from time to time. The city shall not use any facilities which are provided for City's use by the Telephone Company for power transmission purposes, nor otherwise use any such circuits so as to unreasonably interfere with telecommunications or facilities; provided, that Telephone Company shall not use high potential wires for power transmission in its facilities, nor otherwise so as to unreasonably interfere with the operation of city's communications or facilities. Telephone Company and City shall cooperate and coordinate their efforts to make the most efficient and economical use of facilities. To this end, the parties will make periodic assessments of their needs, s~akel I \s~be~ [.or1 - 7 - including, but not limited to use and exchange of facilities to meet requirements. The City shall keep Telephone Company aware of its needs and shall notify Telephone utilizes Telephone Company facilities. (g) Non-commercial Use by city. Company in writing when it city shall not sell, lease or otherwise make available its right to use Telephone Company's facilities to any third party for commercial purposes. Such rights are provided solely for the non-commercial exclusive use by the City. However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City so long as no resale or other commercial use of such facilities shall occur. (h) Use of Facilities by Other Entities. The Telephone Company is not authorized to license or lease to any person or entity the right to occupy or use the City's rights-of-way for the conduct of any private business. The Telephone Company may be required to attach its transmission media to facilities owned and maintained by any person or entity franchised by the City or to permit the transmission media of any person or entity franchised by the City to be attached to the facilities owned and maintained by the Telephone Company upon reasonable, non-discriminatory terms. The Telephone Company may require any person or entity to furnish evidence of adequate insurance covering the Telephone Company and adequate bonds covering the performance of the person or entity attaching to the Telephone Company's facilities as a condition - 8 - sLakel I \s~bet L.orl precedent to granting permission to attach transmission media to Telephone Company's facilities; provided Telephone Company's requirements for such insurance shall be reasonable, as determined by the City. (i) Location of Transmission Media. Transmission media shall be so located on the facilities as to be safe and not to interfere unnecessarily with the use of the rights-of-way by others, including persons or entities authorized to use the facilities. The Telephone Company shall not be required to attach its transmission media to the facilities of any other person or entity or to permit the transmission media of any other person or entity to be attached to Telephone Company's facilities if it can be shown satisfactorily to the City that the Telephone Company will be subjected to increased risks of interruption of service or to increased liability for accidents, or if the facilities of the other person or entity are not of the character, design, and construction required by, or are not being maintained in accordance with industry standards or practice. SECTION 6 - CONSTRUCTION, MAINTENANCE AND EXCAVATION (a) Removal of Dangerous Facilltles. The City shall have the power at any time to order and require the Telephone Company to remove any of its facilities that are dangerous to life or property, and in case the Telephone Company, after reasonable notice to the Division Manager over outside plant engineering and slake] ]\sMbeL t .or1 - 9 construction, fails or refuses to act, then the City, at the direction of the Director of Public Works, shall have the power to remove or abate the dangerous conditions at the expense of the Telephone Company, all without compensation or liability for damages to the Telephone Company. (b) Excavation and Restoration. (i) Except in an emergency, the Telephone Company shall not excavate any right-of-way without first notifying the Director of Public Works, and, if approval is required it shall be given if the proposed excavation is in compliance with the requirements of federal, state, and City, laws, plans for projects involving cable and underground conduit way shall be submitted to the rules and regulations. Engineering significant amounts of new buried systems to be placed in rights-of- Director of Public Works for review and approval prior to construction. The Director of Public Works or the Director's designee shall be notified as soon as practicable regarding work performed under emergency conditions. (ii) Telephone Company shall promptly restore to as good condition as before the commencement of work as determined by the Director of Public Works, all rights-of-way damaged or excavated by the Telephone Company. If the City reasonably determines within one year from the date of the restoration, that the right-of-way requires additional condition as before Company shall restoration work to place it in as good a the commencement of the work, the Telephone perform the additional work to the reasonable - l0 - stakel I\s~beL L .or1 satisfaction of the Director of Public Works. The Telephone Company shall not obstruct a right-of-way for a longer period than reasonably necessary to execute all work. (¢) Proteotion of the Public. When Telephone Company shall make or cause to be made excavations or shall place obstructions in any street, alley, or other public place, the public shall be protected by barriers, lights and signs, which shall be placed, erected, and maintained by Telephone Company. All construction and maintenance signs and barricades at work sites shall be consistent with the standards and provisions of the Texas Manual on Uniform Traffic Control Devices. SECTION 7 - WORK BY OTHERSt CONSTRUCTION BY ABUTTING OWNERS, ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENT (a) Other Right-of-Way Construction. The city reserves the right to lay, and permit to be laid, sewer, gas, water, and other pipe lines or cables and conduits, including telecommunications and cable television lines, and to do and permit to be done any underground and overhead work that may be deemed necessary or proper by the city, in, across, along, over, or under any right- of-way or public place occupied by the Telephone Company, and to change any curb or sidewalk or the grade of any street. In performing or permitting such work to be done, the city shall not be liable to the Telephone Company for any damages related to the work, nor shall the City be liable to the Telephone Company for any slake! ! \sMbeL k .or1 11 - damages not proximately caused by the City's sole negligence; provided nothing herein shall relieve any other person or corporation from liability for damage to facilities of the Telephone Company. abutting Rights-of-Way Grants landowners to occupy to Others. If the City authorizes space under the surface of any street, alley, highway, or public place, the grant to an abutting landowner shall be subject to the rights of the Telephone Company granted in this ordinance. If the City plans to close or abandon any right-of-way which contains any existing Telephone Company facilities, city shall, if requested by Telephone Company, (1) reserve a continuing right for the Telephone Company's facilities, (2) give notice of the date the City of Southlake city Council is to consider the closure or abandonment, and (3) make any subsequent conveyance of land involved in the closure or abandonment subject to the specific right of continued occupancy by Telephone Company. (c) Alterations or Changes to shall be necessary for the city to alter, change, adapt, or conform its Rights-of-Way. Whenever it require Telephone Company to facilities within the right- of-way, the alterations or changes shall be made promptly, with consideration given to the magnitude of the alterations or changes, without claim for reimbursement or damages against the city. If these requirements impose a financial hardship upon the Telephone Company, the Telephone Company shall have the right to present alternative proposals to the city, and the city shall give due - 12 - stakel l\s~be[ [.or1 consideration to any alternative proposals. It is however, that the City shall not require Telephone remove its facilities entirely from the right-of-way. understood, Company to If the City requires the Telephone Company to adapt or conform its facilities to enable any other entity or person, except the City, to use, or to use with greater convenience, rights-of-way or public property, Telephone Company shall not be required to make any changes until the other entity or person shall reimburse or make arrangements satisfactory to Telephone Company to reimburse the Telephone Company for any loss and expense caused by or arising out of the change; provided, however, that the City shall never be liable for the reimbursement. (d) Relocation of Facilities. For public improvement projects the city will notify the Telephone Company and give it a reasonable time, as determined by the Director of Public Works, when relocation of facilities is required. Prior to the beginning of construction by the City, if the Telephone Company has not relocated its affected facilities within the rights-of-way after being afforded a reasonable length of time to do so, giving consideration to the scope of the facility relocation, and when the delay is not caused by actions of the city, the following procedure will be followed. The City shall provide the Telephone Company with reasonable notice of failure to act and request relocation. If the Telephone Company continues to delay, the City's Director of Public Works and the Telephone Company's stakel I \sW~e t t .or1 -- 13 -- Division Manager over outside plant engineering and construction will jointly review the relocation request in an expeditious manner to establish a mutually acceptable completion date for the relocation. If the Telephone Company continues to delay or does not meet the revised completion date, the City's Director of Public Works shall provide not less than five (5) days written notice to the Telephone Company's Division Manager over outside plant engineering and construction advising the Telephone Company of the City's intent to relocate the affected facilities. If after expiration of the written notice required by the preceding sentence, the Telephone Company continues to delay, the city shall have the right to relocate the affected facilities, and the Telephone Company shall reimburse the city for all costs of the relocation. The City shall not be liable to the Telephone Company for any damage to the facilities unless proximately caused by the city's gross negligence, and shall not be liable in any event for any consequential damages relating to service interruptions. The relocation by the City will be performed only when the Director of Public Works determines that it is necessary to prevent disruption of a City project. The relocation will be accomplished by means of temporary construction and in a manner which will not unreasonably disrupt telecommunications services. The city shall make every effort to coordinate with the Telephone Company prior to the necessary relocations and will not attempt to relocate the facilities until the city has exhausted the foregoing procedures. sLakel l\s~beL L.o~l - 14 - The Telephone Company shall ultimately be responsible for the final permanent relocation of the Telephone Company's facilities. SECTION S - 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. 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 ways of the City so as to prevent the branches from coming in contact with the aerial wires, fiber or cables of the Telephone Company, and when so directed by the City, trimming shall be done under the supervision and direction of the City and of any City official to whom these duties have been or may be delegated. - 15 - stakell\s~Lt.orl SECTION 10 - ADMINISTRATION OF ORDINANCE (a) Inquiries. The City may, at pertaining to this Ordinance and the any time, Telephone make inquiries Company shall respond to the inquiries on a timely basis. (b) Documents. 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) Rules. 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. SECTION 11 - COMPENSATION TO THE CITY (a) Gross Receipts Charge. As compensation occupancy, oversight, supervision and regulation for the use, of the city's rights-of-way, the City hereby imposes a Charge upon the Gross Receipts (as hereinafter defined) of the Telephone Company. This Charge is in lieu of and in full compensation for any tax, license, charge, right-of-way permit or inspection fee, whether charged to the Telephone Company or its contractor(s), or any right-of-way, easement, street or alley rental, corporate franchise tax or other character of charge for use and occupancy of the rights-of-way within the city, except for the usual ad valorem taxes, special stakel l\s~bet t .or1 -- 16 - assessments in accordance with State law, applicable municipally owned utility service charges, or sales taxes now or hereafter levied by the City in accordance with State law. The amount of the Charge for the first year this Ordinance is $10,800.00. In no event shall this Charge be amount for each year this Ordinance is in provided in the case (h) of this Section, (b) Billing of according to tariff, 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: (1) the charges are for Telephone Company services provided within the city; (2) the charges are billed through the Telephone Company's Customer Records Information System ("CRIS"); (3) the 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"). (c) Annual Adjustment of the Charge. 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 (e) of this Section. This adjustment for the in effect shall be less than the above effect, except as of disannexation as set forth in Paragraph or as provided in Section 16. the Charge. The Telephone Company will, bill the Charge to the customers who pay the s[akel l\s~be[ ~ .or1 -- 17 - 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 of the Charge for the prior year. (d) Quarterly Payments. The Charge for each year shall be paid in four (4) equal installments on May 31, August 31, November 30 and February 28. In the event of any over or undercollection from customers at the expiration of this Ordinance, the Telephone Company may make a pro rata one-time credit or charge to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in Paragraph (b) of this Section. This will be accomplished within 150 days following the date of expiration of this Ordinance. If, however, it is impractical to credit any overcollection to customers, then the overcollection shall be paid to the City. (e) Growth Factor. 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 (12) month period ending three (3) months prior to the next anniversary date of this Ordinance by the Sales Tax Revenues for the twelve (12) 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 - 18 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. Once the Growth Factor calculation is complete, the Telephone Company will provide the City with the following information: the Sales Tax Revenues upon which the Growth Factor calculation was based. (f) Audits. 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). The Growth Factor shall be recomputed to reflect any final, nonappealable adjustments made pursuant to an audit finding by the Texas Comptroller of an inaccuracy in the Telephone Company's reports of revenues subject to State telecommunications sales taxes. The Charge shall be recalculated using the Growth Factor recomputed as specified in the preceding sentence, and the recalculated Charge shall be used for all future calculations required by this Ordinance. Any overpayment or underpayment resulting from such recalculation shall be subtracted from or added to the first installment due the following year. If any overpayment or underpayment shall be due during the final year - 19 sLakell\s~bett.orl of this Ordinance, then payment shall be made as follows. In the case of overpayment by the Telephone Company, the City shall pay such overpayment to the Telephone Company within 150 days following the expiration of this Ordinance and, in the case of underpayment by the Telephone Company, the Telephone Company shall pay such underpayment to the City within 150 days following the expiration of this Ordinance. (g) Offset in Case of Invalidation. Should the City not have the legal power to agree that the payment of the Charge calculated in this Section may be accepted in lieu of the tax, license, charge, right-of-way permit or inspection fees, or any right-of- way easement, street or alley rental, corporate franchise tax, or other character of charge for use and occupancy of the right-of- way within the City, then the City agrees that it will apply so much of the compensation under this ordinance that is necessary to pay the tax, license, charge, right-of-way permit or inspection fees, or any right-of-way easement, street or alley rental, corporate franchise tax, or other character of charge. (h) Annexation and Disannexation. (i) If territory within the boundaries of the City is disannexed and a new incorporated municipality is created or an existing incorporated municipality is consolidated or annexed and the affected municipality is serviced by the Telephone Company, notwithstanding other provisions of this ordinance, the Charge shall be adjusted. To accomplish the adjustment, the City shall, - 2O skakell\s~tt.~l within thirty (30) days of the annexation or disannexation, provide the Telephone Company with maps of the affected area showing the new boundaries of the City. (ii) If a city is annexed or consolidated into the City, the charge for the city will be adjusted to include the amount of the payment, if any, made by the Telephone Company in the preceding payment year to the incorporated municipality being annexed or consolidated. If the annexed municipality did not impose a charge or if the territory is disannexed and a new incorporated municipality is created, then the Telephone Company shall calculate the total Gross Receipts which were billed within the City during the first full calendar month following the date of the annexation or disannexation in accordance with the rules of the Texas Comptroller of Public Accounts for purposes of the local sales and use tax. This sum shall be divided by the total Gross Receipts which were billed within the City during the last full calendar month prior to the date of the annexation or disannexation in accordance with the rules of the Texas Comptroller of Public Accounts for purposes of the local sales and use tax. The resulting figure shall be rounded to four decimal places and yields the percentage by which the Charge shall be adjusted; in the case of annexation, the Charge shall be increased by this percent, and, in the case of disannexation the Charge shall be decreased by this percent. The Charge, as adjusted, shall be prorated for the remainder of the calendar year following the date of the annexation - 21 - stakell\s.beLi.orl or disannexation in accordance with the rules of the Texas Comptroller of Public Accounts for purposes of the local sales and use tax. Once adjusted, the new Charge shall be used for all future calculations required by this Ordinance. (i) Method of Collection of Charge. The recovery of the Charge from Telephone Company's customers is subject to the jurisdiction of the regulatory authorities and not the City. The obligation of Telephone Company to pay compensation under this Ordinance is contractual, and the City makes no requirements as to the method the Telephone Company uses to recover the Charge. SECTION 12 - 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 Southlake City Council. The consent shall be evidenced by an ordinance which shall fully recite the terms and conditions, if any, upon which such consent is given. SECTION 13 - 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 No. 189 adopted August 15, 1972, and renewed or extended thereafter, and its Dredacessor ordinances, if any, (hereinafter referred to collectively as "Ordinance 189"). This full and complete release - 22 - of claims for any matters under Ordinance 189 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 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 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 189. 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. - 23 s[akell\sube[[.~l sECTION 14 - 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. sECTION 15 - TREATMENT OF OTHER cITIES It is understood that the Telephone company is currently in the process of negotiating similar ordinances with other cities throughout the state. The Telephone company agrees that if an ordinance governing street use with another city in this state contains a provision which the city determines would be more advantageOUS to it than the terms of this ordinance, including but - 24 - not limited to indemnity and venue provisions, the City may require that this ordinance be reopened for negotiation of the more advantageous provision. The Telephone Company agrees that it will provide to the city treatment comparable to that afforded other cities by the Telephone Company, giving due consideration to the context of the provision on which the renegotiation is sought and the effect of the proposed amendment on the meaning of the ordinance as a whole. It is understood that the Telephone Company will not agree to an amendment that results in a higher level of compensation methodologies compensation section will to the city than that level used by the Telephone Company to in other Texas cities. An amendment not be applied retroactively. produced by the calculate under this SECTION 16 - REPEAL OF PREVIOUS ORDINANCE ORDINANCE ordinance No. 189, adopted August 15, 1972, repealed upon the effective date of this ordinance. AND PRECEDENCE OF THIS as amended, is This ordinance takes precedence over any past or future ordinance that would, by its terms or effect, regulate the use or occupancy of the city's right-of-way by the Telephone Company for its telecommunications system as described and regulated in this ordinance. stakel l~st~bet t.orl - 25- SECTION 17 - GOVE~ING L~W (a) Interpretation. This Ordinance shall be construed in accordance with the city Charter and city Code(s) in effect on the date of passage of this Ordinance to the extent that the Charter 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) combined Efforts. This Ordinance shall be construed and deemed to have been drafted by the combined efforts of the City and the Telephone 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 beginning the first day of the quarter not less than forty-five (45) days after its final passage by the City. PASSED AND APPROVED following the ~nd reading hereof this 2nd 1992. day of June - 26 . ~ty Secretary I, Sandra L. LeGrand , City Secretary of the City of Southlake, Texas, do hereby certify that the foregoing is a true and correct copy of Ordinance No. 565 , finally passed and approved by the City Council of Southlake, Texas, following the ~nnn~ reading thereof at a regular meeting held on the 2nd day of June 1992. 27 - Fort Worth Star-Telegram k**INVOICE/AFFIDJVT T***INVOTCE".r VIT*** 400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 THE STATE OF TEXAS unty of Tarrant Before me, a Notary Public in and for said County and State, this day personally appeared KELLEY ALLARD Billing Specialist for the Fort Worth Star-Telegram , published by the Star-Telegram Inc . at Fort Worth, in Tarrant County, Texas ; and who, after being duly sworn, did depose and say that the following clipping of an advertisement was published in the above named paper on the following dates: DATE AD INVOICE NO. DESCRIPTION AD SIZE TOTAL RATE AMOUNT INCHLI' NE JUN 05 . 6880776 CL . 358 1X63 L 63 . 40 25 . 20 ORDINANCE NO.565 June 5 AN ORDINANCE WHEREBY THE CITY OF SOUTHLAKE TEX- '.P . O • # ORD . 565 AS AND SOUTNWEST- Ef�N BELL TELE- PHONE COMPANY AGREE THAT, THE - - - TELEPHONE COMPA- NY MAY OPERATE ITS TELECOMMUNI- CATIONS BUSINESS IN ALONG( ACROSS ON, OVER AND UNDER ALL PUBLIC STREETS AVE- NUES HIGHWAYS AL- LEYS SIDEWALKS _ _ BRIDGES OR PUBLIC WAYS IN THE CITY; PROVIDING A TERM, - PRESCRIBING THE COMPENSATION DUE ------- ---- ---- I THE CITY UNDER THIS � ORDINANCE PRES- CRIBING THE CONDI- SIGNS TIONS GOVERNING HE USE OF PUBLIC ND SWORN TO B FOfE- ME, T I''S HE ', Y OF "---- - , 1992 IGHTS-OF-WAY AND F CERTAIN PERFORMANCE NOTARY PUBLIC _ ON STR UCT I ON -7C5_&\_N,2N , WORK ON PUBLIC .. ._...-_..._...._. __._.... .......__ RIGHTS-OF-WAY FOR TARRANT COUNT , T XAS THE TELEPHONE COM- PANY'S TELECOM- MUNICATIONS BUSI- NESS,. SPECIFYING GOVRNING LAWS; -tv.-s1'�vy.y�y^y PROVIDING FOR A RE- o µY, sIt pl�� '�' LEASES ALL CLAIMS _ ..44 / ''%% KET R�-4:�T 14C-EER--0 UNDER PRIOR ORDI- --- FORNAN F; PROVIDING �• 1c-•�COMMISSION EXPIRES P FOR FUTURE CON- TINGENCIES; PROVID- ING FOR WRITTEN AC- CEPTANCE OF THIS ...__.. . ..._..-_... _....-......._..___... ___._. ....Jhit''or`'�`''_ _JANUAaY-.28.,-19 -_- -....... . _.......__ _..._..._. ORDINANCE BY THE ` �= TELPHONE COMPANY,. AND PROVIDING AN ,� EFFECTIVE DATE.P AnLt//v) ED IN SECONED D READING THIS-TEAR A NG THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT— Gary FIckes, AMar'orrof Soufhlake TSandraL.LeGrand, REMIT TO : 400 W . SEVENTH, FW, TX 76102 City Secretary Approved as to form: Eim0r t hStaFIENIl i• X kcPFXIXrg X)401-2051 r-Tele� ;� ACCOUNT C I T 5 7 AMOUNT 25. 20 NUMBER DUE PAGE Or z CITY OF SOUTHLAKE ORIGINAL 667 N CARROLL AVE 25.20 SOUTHLAKE TX 76092-8898 PLEASE PAY ► ATTN : SANDY LEGRAND THIS AMOUNT PLEASE WRITE IN AMOUNT ENCLOSED Fort Worth Star-Telegram ***INVOICE/AFFIDAVIT***INVOICE/AFFIDAVIT*** 400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 • --E STATE OF TEXAS unty of Tarrant Before me, a Notary Public in and for said County and State, this day personally appeared is r,Ry Ar,r,r,RD Billing Specialist for the Fort Worth Star-Telegram, published by the Star-Telegram Inc . at Fort Worth, in Tarrant County, Texas; and who, after being duly sworn, did depose and say that the following clipping of an advertisement was published in the above named paper on the following dates: DATE AD INVOICE NO. DESCRIPTION AD SIZE TOTAL INCH/LINE RATE AMOUNT MAY 08 6867333 CL . 358 1X73 L 73 . 40 29 . 20 May 8 NOTICE RINGBLIC P . O. # ORD . NO . 565 NOTICE 1s hereby 9IVentoalI Interestedoersons at theLi ty Council of the City of Souglh" ain �u �Texas,hearing d llprrnieetihegg to be held on May 19 lwz,at 7d10D•n r SWarrketityHall, ": .m.fh Carroll Avenue, Southlake,Texas. to Purpose°f he readingof 1358 Legal Notices the followln9 ordinance: ORDINANCE NO.-0 AN ORDINANCE WHEREBY THE CITY V ^F SOUTHLAKE TEx- SIGNED S ANDSOUTH{NEST- E- ND SWORN TO BEFORE ME , THIS THE 12TH D Y OF HONi�N BELL TELE- GREE COMPANY I Y, 992 EL EE THAT THE ELEPHONE cbMPA- NOTARY PUBLIC — NY MAY OPERATE ITS TELECOMMUNICA- l Z0 �-` �\ TIONS BUSINESS IN, ALONG, ACROSS ON, TARRANT COLNTY, TEXAS OVER THROUGH ABOVE AND UNDEIii -- ALLPUBLICSTREETS AVENUES HIGH- �,yKt;m,,o.y.yo wov�9+0^d WAYS ALLEYS SIDE- WALKS BRIDGES OR -��av P"h PUBLIE WAYS IN THE ' ��'��z4f CITY; PROVIDING A �b �, KRTttRYiW�. SPENCER THRMCOMPENRIBOATION i �r��'4 OOMMISSION EXPIRES DUE THE CITY UN- $''"e• yam: O NANCET PIRESCRIIB- 4tq`�oF.ti*}_.....-}AN��R ALB; ��7j ... ING THE CONDITIONS 1'ib.,w 4.o Gp-WAY VERNINGTHE USE SF PUB A N D THE )11-) PERFORMANCE C- TEAR ALON THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT-� CERTAIN CONSTRUC- TION WORK ON PUB- LIC RIGHTS-OF-WAY FOR THE TELEPHONE COMPANY CS REMIT TO : 400 W . SEVENTH, FW, TX 76102 TIONSBUSINESS-PRO- VIDINC L AI UDSME I_ SPECIFYING GOV- I F, C ERNING LAWS• PRO Star-Telegram F:EiVil UNDERG FOR %1 R I- LEASEORALLCLAIMS UNDER PRIOR ORDI- I FORCFSUTUREICON NUMBERT C I T 5 7 AMOUNT DUE 29. 20 TINGENCIES• PRO- a / V IDING FOR Wlf ITTE ACCEPTANCEOFTHINS 4+f , °' ORDINANCE BY THE • TELEPHONE COMP4 4 PAGE OF I NY• AND PROVIDING t• 4 AN EFFECTIVE DATE. ;My of Southlake Sandra L.LeGrand City Secretary CITY OF SOUTHLAKE ORIGINAL 667 N C A R R O L L A V E PLEASE PAY 29. 20 SOUTHLAKE TX 76092-8898 THIS AMOUNT ATTN : SANDRA L . LEGRAND PLEASE WRITE IN AMOUNT ENCLOSED