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O118.~ ORDINANCE NO. 118 OFFICIAL CITY SECRETARY'S COPY AN ORDINANCE WHEREBY THE CITY OF KENNEDALE, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE TO AMEND ORDINANCE NO. 4 TO PROVIDE FOR A LONGER TERM AND TO ADD TERMINATION AND OTHER PROVISIONS AS A RESULT OF THE CHANGES MADE BY THE PUBLIC UTILITY REGULATORY ACT OF 1995, 74TH LEG., R.S. CH, 231, TEX. SESS. LAW SERV. 2017 (VERNON) (TO BE CODIFIED AS TEX. REV. CIV. STAT. ANN. ART. 1446C-0). WHEREAS, the City of Kennedale, hereinafter referred to as the "CITY", adopted and approved Ordinance No. 4 on July 23, 1991, which was accepted by Southwestern Bell Telephone Company, hereinafter referred to as the "TELEPHONE COMPANY", on August 8, 1991; and WHEREAS, TELEPHONE COMPANY and the CITY desire to extend the term of Ordinance No. 4 as provided in this Ordinance; and WHEREAS, it is to the mutual advantage of both the CITY and the TELEPHONE COMPANY that the term of Ordinance No. 4 be extended; and WHEREAS, it is recognized by the parties that provisions set forth in Ordinance No. 4 may create legal issue with respect to the CITY's compliance with Section 3.2555 of the Public Utility Regulatory Act of 1995 effective September 1, 1995, hereinafter referred to as the "Revised PURR"; the parties agree and intend that this amendment to Ordinance No. 4 constitutes an interim arrangement to accommodate the needs of the parties, pending clarification of the interpretation and application of the Revised PURR. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS, THAT; Section 1. Section 4 of Ordinance No. 4 entitle TERM is hereby amended to read as follows: This ordinance shall be in force and in effect from October 1, 1996 through December 31, 1997, unless earlier terminated pursuant to Section 16, provided that at the expiration of this initial period, such term shall be i !•. . ~.. automatically extended for successive periods of one (1) year, unless written notice of intent to terminate this agreement is given by either party not less than ninety (90) days prior to the termination of the then current period. When such notice is given this agreement shall terminate at the expiration of the then current period. Section 2. Section 16 of Ordinance No. 4 entitled FUTURE CONTINGENCY is hereby amended to add the designation "(a)" before the existing paragraph of that Section and to add paragraphs (b), (c) and (d) as set forth below: (b) Both parties agree that the extension of this Ordinance is an interim arrangement and is not intended to be used, and will not be cited or referred to by either party, as evidence of what is in compliance with the requirements of Section 3.2555 of the Revised PURA. TELEPHONE COMPANY and CITY both hereby reserve all arguments and/or positions as to the appropriate interpretation and application required by the Revised PURA. (c) The CITY agrees to provide written notice to the TELEPHONE COMPANY of an original application or an agreement thereto, for a consent, franchise or permit with the CITY for use of the RIGHTS- OF-WAY in the CITY for the provision of any telecommunications service within ten (10) days from receipt of such application. (d) Notwithstanding anything to the contrary contained in this Ordinance, if: (1) an entity applies to the CITY for an original of, or an amendment to a consent, franchise, or permit for the use of the RIGHTS-OF-WAY in the CITY for the provision of any telecommunications service that will be in competition with TELEPHONE COMPANY'S service provided within the geographical limits of the CITY; or (2) an entity files an application with the Public Utility Commission of Texas for the provision of any telecommunications service that will be in competition with TELEPHONE COMPANY's service provided within the geographical limits of the CITY, including, but not limited to a certificate of operating authority or a service provider certificate of operating authority; then, the CITY and TELEPHONE COMPANY agree to negotiate in good faith to ~' establish a nondiscriminatory basis for compensation to the CITY for use of CITY's RIGHTS-OF-WAY. Upon reaching an agreement on compensation, CITY will adopt an amendment to Ordinance No. 4 or adopt a separate ordinance to replace this Ordinance, and TELEPHONE COMPANY will file its acceptance. (e) The negotiations shall be governed by the following agreements: (1) If during the negotiations, CITY fails to negotiate with TELEPHONE COMPANY or fails to employ good faith in seeking a resolution of the issues or fails to include TELEPHONE COMPANY in a least one meeting each month with the competitor or competitors making application, to discuss resolution of the issues, TELEPHONE COMPANY may terminate Ordinance No. 4 upon a minimum of forty-five (45) days written notice to CITY. This provision does not require CITY to include TELEPHONE COMPANY in every meeting with competitors, but only to meet separately with TELEPHONE COMPANY and to meet at least monthly with all parties who wish to discuss the issues and participate in their resolution. (2) Notwithstanding the failure of CITY to negotiate or to employ good faith or include TELEPHONE COMPANY in meetings as described in (1) above, TELEPHONE COMPANY agrees that it will not exercise its right to give notice of termination of Ordinance No. 4 under (1) above until the time at which a competitor receives all approvals from the CITY and the Texas Public Utility Commission that are necessary to provide the competitive service within the CITY. (3) If during the negotiations, TELEPHONE COMPANY fails to employ good faith in seeking a resolution of the issues, CITY may terminate Ordinance No. 4 upon a minimum of forty-five (45) days written notice to TELEPHONE COMPANY, and adopt an ordinance imposing nondiscriminatory requirements and compensation for the use of CITY RIGHTS- OF-WAY for telecommunications services. (4) If CITY and TELEPHONE COMPANY are unable to reach agreement and Ordinance No. 4 is not terminated under (1) or (3), TELEPHONE COMPANY will continue to pay . •= ~ .x .' compensation to CITY under Ordinance No. 4 until such time as (i) agreement is reached, (ii) Ordinance No. 4 expires, or (iii) a competitor begins to offer service to customers within the CITY, whichever occurs first. If (ii) or (iii) occurs before an agreement is reached, CITY may adopt an ordinance imposing nondiscriminatory requirements and compensation for use of CITY RIGHTS-OF- WAY for telecommunications services. Acceptance of this Ordinance not withstanding, TELEPHONE COMPANY reserves any and all rights it may have, at law or in equity, to challenge the legality or propriety of any such ordinance. Section 3. The TELEPHONE COMPANY shall have thirty (30) days from and after the passage and approval of this Ordinance to file its written acceptance hereof with the City Secretary, and upon such acceptance being filed, this Ordinance shall take effect and be in force as of October 1, 1996. Passed and approved hereof this 10 day of A.D., 1996. October ~/ Mayor, -- City of Kenned Texas ATTEST: ~rdliL, ~ i ~o~ City ecr tart' I, Kathy Turner City Secretary of the City of Kennedale, Texas, do hereby certify that the foregoing is a true and correct copy of Ordinance Number llg finally passed and approved by the City Council of Kennedale, Texas, at a regular meeting held on the 10 day of October 1996. ~ ~' .~?off City ecr tart'