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CITY OF KENNEDALE
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WHEREA Southwestern Bell Telephone Company (hereinafter referred
to as the "TMEPHONE 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
Kennedale, 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
WEMREAS, the TELEPHONE COMPANY has operated its telecomtunications
business in the CITY under successive ordinances of the CITY, the last of
which was the Ordinance adopted June 10, 1948, which provided Cation to
the CITY for the superintendence of that agreement based upon a percentage of
gross receipts received by the TELEPHONE COMPANY frcm certain local services
rendered within the corporate limits of the CITY; and
WHEMEAS, it is recognized by the parties that changes in the
teleccmmications 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 C.om =ications Commission
( "FCC "), along with regulatory requirements of the Texas Public Utility
Ccmmmission ("PUC"), have caused the traditional method of determining the
amount of compensation to municipalities to become administratively
inpractical and obsolete for teleconmiu ucations utilities. In order to
resolve these issues in a manner satisfactory to both the CITY and the
TELEPHONE COMPANY, the CITY and the TELEPHONE CcmpANY have chosen the method
of determining the amount of ccmpensation 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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WM'AS, it is to the mutual advantage of both the CITY and the
TELEPHONE COMPANY that an agreement should be entered into between the
TELEPH COMPANY and the CITY establ the conditions under which the
TELEPHONE COMPANY shall maintain and construct its physical plant in the CITY
in the future;
• i I M • �� I ICI• • ,ry1I• i /•
Pursuant to the laws of the State of Texas, the CI'T'Y Code 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 -OF4 AY for its telecommunications FACILITIES. The
TELEPH 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 TELEPH 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
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COMPANY in the pursuit of its telecamunications 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.
The TELEPHONE COMPANY is not authorized to provide cable television service
in the CITY under this Ordinance, but must first obtain a separate agreement
from 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.
yD1 M Q:► D151311 IYV 0 :::
Whenever used in this Ordinance, the following words and terms shall have the
definitions and meanings provided in this Section:
(a) FACILITIES: all TELEPHONE COMPANY duct spaces, manholes, poles,
conduits, underground and overhead passageways, and other equipment,
structures and appurtenances and all associated TRANSMISSION MEDIA.
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(b) 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.
(c) CITY: The City of Kennedale, Texas.
(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
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
other physical devices used to transmit and/or receive connnunication
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 -WAY
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 Company.
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This, Ordinance shall continue for a period of five (5) 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 OCMPANY.
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 OOMPANY in the construction and maintenance of its
teleccmmrunications system in the CITY shall be subject to the lawful,
reasonable and proper control and DIRECTION OF THE CITY.
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5 •; V • 11� • •• �. 11 •I •
Nothing contained in this Ordinance shall be construed to require or permit
any pole attachments for electric light or power wires or communications
facilities or systems not provided by the TELEPHONE COMPANY to be attached to
the TELEPHONE COMPANY'S poles or other physical plant or placed in the
TELEPHONE COMPANY'S conduit. If the CITY desires pole attachments for
electric light or power wires or communications facilities or systems not
provided by the TELEPHONE COMPANY, or if the CITY desires to place
communications facilities or systems not provided by the TELEPHONE COMPANY 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
companies which are authorized to operate within the CITY.
The surface of
any public
street,
avenue, highway, alley or public
place
disturbed by the
TELEPHONE
COMPANY
in the construction or maintenance
of its
telecommunications system shall be restored within a reasonable time after
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the completion of the work to as good a condition as before the conmencement
of the work. Should the CITY reasonably determine, within one year from the
date of such restoration, that such surface requires additional restoration
work to place it in as good a condition as before the o mmiencement of the
work, the TELEPHONE COMPANY 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.
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 CCMPANY 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.
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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
places of the CITY so as to prevent the branches of such trees from canning in
contact with the aerial wires, fiber or cables of the TELEPHONE COMPANY, and
when 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
duties have been or may be delegated.
The TELEPHONE COMPANY shall indemnify and hold the CITY harmless from 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
RIGHTS -OF -WAY found to be caused solely by the negligence of the TELEPHONE
COMPANY or its agents and employees. This provision is not intended to
create a cause of action or liability for the benefit of third parties but is
solely for the benefit of the TELEPHONE COMPANY and the CITY.
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(a) The CCTY may, at any time, make inquiries pertaining to this Ordinance
and the TELEPHONE COMPANY shall respond to such inquiries on a timely basis.
(b) Copies of petitions, applications, ccmm- mications and reports submitted
by t,ie TELEPHONE COMPANY to the Federal Communications Commission or the
Public Utility Commission of Texas shall be provided to the CITY upon
request.
(c) The CITY may establish, after reasonable notice, such rules and
regulations as may be appropriate for the actninistration of this Ordinance
and the construction of the TELEPHONE CompANYIS FACILITIES on CITY property
to the extent permitted by law.
•; z •• I• D4 . •: • I W
(a) As cnsation
for the use, occupancy,
oversight,
supervision
and
regulation of the
CTTYIS 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 TELEPHONE COMPANY or its
contractor(s), or any RIGHT -OF -WAY easement or street or alley rental or
franchise tax or other character of charge for use and occupancy of the
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RIGHTS -OF -WAY within the CITY, except the usual general ad valorem taxes,
special 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 an Annual Change of Thirty Thousand Six Hundred Dollars ($30,600.00)
(the "Annual Change ") upon the Gross Receipts (as hereinafter defined) of the
TELEPHONE COMPANY which will be determined in the following manner. The
Annual Charge for the first calendar year shall be prorated from the
effective date of this Ordinance to December 31 next following the effective
date of this Ordinance. In no event shall the Annual Change be less than the
base amount of Thirty Thousand Six Hundred Dollars ($30,600.00) per full
calendar year, except as provided in the preceding sentence or in the case of
the year in which this Ordinance expires as set forth in paragraph 12(b), or
in the case of disannexation as set forth in paragraph 12(e), or as provided
in Section 16 herein.
The TELEPHONE COMPANY will, according to tariff, bill the Annual Charge to
the customers billed the customer service charges included within the term
"Gross Receipts," as defined herein. Gross Receipts, for purposes of the
Annual Charge, shall include only customer service changes billed through the
TELEPHONE COMPANY'S Customer Records Information System ( "CRjS") for the
recurring changes for the local exchange access rate element specified in the
TELEPHONE COMPANY'S tariffs filed with the PUC for any TELEPHONE COMPANY
services provided within the CITY which are also subject to an interstate end
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user ccumnon line ("EUCL") c harg e as imposed by the Federal Communications
Commission ( "FCC ") at the time of enactment of this Ordinance.
For the
second and
subsequent
calendar years while this
Ordinance remains in
effect,
the Annual
Charge is
subject to adjustment by
application of the
Growth Factor set out in paragraph 12(c).
The TELEPHONE COMPANY may adjust its billings to customers to account for any
undercollection or overcollection for the prior year.
(b) The Annual Charge for each calendar year shall be paid in four (4) equal
installments on May 31, August 31, November 30 and February 28 of the
following year except for the first installment for the year in which this
Ordinance is passed and the final installment for the last year which shall
be due as hereafter provided. The Annual Change for the year in which this
Ordinance is passed shall be prorated fran the effective date through
December 31 of that year. The first installment payment for the year in
which this Ordinance is passed shall be paid on February 28, 1992. The
Annual Change for the year in which this Or<3inance expires shall be prorated
from January 1 through such expiration date. After making any necessary
adjustment for the balance of any overcollection or undercollection of the
Annual Charge to or from the TELEPH COMPANY'S customers, the f inal
installment for the last year of this Ordinance shall be paid to the CITY one
hundred fifty (150) days following the date of expiration of this Ordinance.
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In the event of any overcollection balance from customers at the expiration
of this Ordinance, the TELEPHONE OCMPANY 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 Growth Factor
shall be calculated by
dividing
the TELEPHONE
CCMPANY'S revenues within
the
corporate limits of
the CITY
subject to the
state telecoimmmications
sales tax ( "Sales Tax Revenues ")
applicable to
services rendered within
the
corporate limits of
the CITY
for the twelve
month period ending with
the
month of September
of the year immediately
preceding the year for which
the particular Annual
Charge
is to be made
(i.e., payment year minus one) by the Sales Tax Revenues for the twelve month
period ending with the month of September two years preceding the year for
which the particular Annual Charge is to be made (i.e., payment year minus
two). The Growth Factor
calculated by the method set
forth in the
preceding
sentence, if greater than
one, shall be multiplied
by the full
previous
Year's Annual Charge (i.e., payment year minus one) to determine the dollar
amount of the Annual Charge for the payment year. If the Growth Factor
calculated above is one or less, the Annual Charge for the payment year shall
be equal to the previous year's Annual Charge. The Growth Factor calculation
shall be made during the fourth quarter of the first calendar year and each
subsequent calendar year during the term of this Ordinance. The TELEPHONE
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COMPANY will adjust its custcaner billing to account for the Growth Factor
calculated above. Once the Growth Factor calculation is corpleted, the
TELEPHONE COMPANY will provide the CITY with the following information: the
Sales Tax Revenues upon which the Growth Factor calculation was based and the
Sales Tax remittance amounts.
Stated another way, the Annual Charge and Growth Factor for the years 1991
through 1995, used as an example, shall be calculated as follows:
Example: Annual Change and Growth Factor
Year 1 Effective Date- Annual Charge, prorated
Dec. 31, 1991
Year 2 Jan. 1 -Dec.
31,
1992
Year 3 Jan. 1 -Dec.
31,
1993
Year 4 Jan. 1 -Dec.
31,
1994
Annual Change x 1991 Growth
Factor, if any
(Sales Tax Revenues for
12 month period ending
9/91 ["STR"] . by
Sales Tax Revenues for
12 month period ending
9/90 [ nS-IRn ] )
AC 1992 x 1992 Growth
Factor, if any
(9/92 STR
9/91 STR)
AC 1993 x 1993 Growth
Factor, if any
(9/93 STR
9/92 STR)
= Annual Charge
1991
('IAC 1991
= Annual Charge
1992
CIAC 1992
= Annual Change
1993
CI AC 1993
= Annual Change
1994
( "AC 1994
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Year 5 Jan. 1 -Dec. 31, AC 1994 x 1994 Growth = Annual Charge
1995 Factor, if any 1995
(9/94 STR t ( " AC 1995
9/93 STR)
The CITY agrees that, in compliance with the Texas Tax Code Annotated,
Sections 151.023 and 151.027 (Vernon 1982), the only person who may examin
the records and /or audit the TELEPHONE COMPANY'S revenues subject to the
state telecamm-mications sales tax as reported by the TELEPHONE COMPANY is
the Texas comptroller of Public Accounts or his statutorily authorized
designee.
(d) Such payments shall not relieve the TELEPHONE CCMpANy front paying all
applicable municipally -owned utility service charges. Should the CITY not
have the legal power to agree that the payment of the foregoing Annual Charge
shall be in lieu of the taxes, licenses, charges, RIGIm- OF-wAy permit or
inspection fees, rentals, RIGHTS -OF -WAY easements or franchise taxes as
aforesaid, then the CITY agrees that it will apply so much of such payments
as may be necessary to the satisfaction of the TELEPHO COMPANY'S
obligation, if any, to pay any such taxes, licenses, charges, RIGHT'S - OF-JJAy
permit or inspection fees, rentals, RIGHTS -OF -WAY easements or franchise
taxes except the usual general ad valorem taxes, special assessments in
accordance with State law or sales taxes now or hereafter levied by the City
in accordance with State law.
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Year 5 Jan. 1 -Dec. 31, AC 1994 x 1994 Growth = Annual Charge
1995 Factor, if any 1995
(9/94 STR t ( " AC 1995
9/93 STR)
The CITY agrees that, in compliance with the Texas Tax Code Annotated,
Sections 151.023 and 151.027 (Vernon 1982), the only person who may examine
the records and/or audit the TELEPHONE COMPANY'S revenues subject to the
state telec,ammnications sales tax as reported by the TELEPHONE COMPANY is
the Texas Coa troller of Public Accounts or his statutorily authorized
designee.
(d) Such payments shall not relieve the TELEPHONE CcmpANy from paying all
applicable municipally -awned utility service charges. Should the CITY not
have the legal power to agree that the payment of the foregoing Annual Charge
shall be in lieu of the taxes, licenses, charges, RIGHTS- OF-Jay 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 may be necessary to the satisfaction of the TELEPHONE CCmpANY'S
obligation, if any, to pay any such taxes, licenses, charges, RIGHTS- w-rAmY
permit or inspection fees, rentals, RIGHTS -OF -WAY easements or franchise
taxes except the usual general ad valorem taxes, special assessments in
accordance with State law or sales taxes now or hereafter levied by the City
in accordance with State law.
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(e) In the event that either (1) territory within the boundaries of the CITY
shall be disannexed and a new incorporated municipality created which
includes such territory or (2) an entire, existing incorporated municipality
shall be consolidated or annexed into the CITY, then notwithstanding any
other provision of this Ordinance, the Annual Charge shall be adjusted in
proportion to the Gross Receipts, as defined in paragraph 12(a), which are
removed from or added to the total Gross Receipts generated within the
boundaries of the CITY prior to the disannexation / annexation, as set forth
below.
Within thirty (30) days following the date of passage of any action affecting
any disannexation / annexation described in the preceding sentence, the CITY
shall provide to the TELEPHONE CCMPANY maps of the affected area(s), showing
the new boundaries of the CITY. After identifying the affected customers,
the TELEPHONE CCMPANY shall calculate the total Gross Receipts which were
billed within the CITY during the first full calendar month following the
date of the disannexation / annexation as determined by the Texas Ccnptroller
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
disannexation / annexation as determined by 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 Annual Charge shall be adjusted; in the case of annexation, the Annual
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Charge shall be increased by this percent, and, in the case of disannexation
the Annual Charge shall be decreased by this percent. The Annual Charge, as
adjusted, shall be prorated for the remainder of the calendar year following
the date of the disannexation/annexation as determined by the Texas
Cctrptroller of Public Accounts for purposes of the local sales and use tax.
Once adjusted, the new Annual Charge shall be used for all future
calculations required by this Ordinance.
This Ordinance and any 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.
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 the Ordinance adopted June 10, 1948, and renewed or extended
from time to time thereafter, and
its
predecessor
ordinances,
if
any,
(hereinafter referred to collectively
as
"the 1948 Ordinance
").
This
full
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and complete release of claims for any matters under the 1948 Ordinance 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 CCHPANY'S obligations to the CITY pursuant to
the provisions of the 1948 Ordinance. 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 the 1948 Ordinance.
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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*Z `+
The Ordinance adopted June 10, 1948, is hereby repealed; provided, however,
such repeal shall take effect at 11:59 p.m. on the day immediately preceding
the effective date specified in the Section of this Ordinance entitled
'.'ACCEPTANCE OF AGREEMI NT AND EFFECTIVE DUE ". 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.
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 Annual Charge inposed 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
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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.
`1S •: e• DI -
(a) This Ordinance shall be construed in accordance with the CITY Charter
and CITY Codes) in effect on the date of passage of this Ordinance to the
extent that such Charter and Codes) 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
combined efforts of the CITY and the TELEPHONE COMPANY.
`18 0: • DI• V — • • e! •lal� I� 9 D" Y
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
TELEPH COMPANY shall have thirty (30) days from and after the final
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passage of this Ordinance to file its written acceptance of this Ordinance
with the CITY Secretary. This Ordinance shall become effective beg inning the
first day of the second month following acceptance by the TELEPHONE CCHPANY.
Passed and approved following the reading hereof this Aa day of
A.D., 1991.
of Kennedale, Texas
ATTEST:
City Secretary
Kennedale, h i that the fo City Secretary of the City of
hereby fy regoing is a true and correct
copy of Ordinance Number , finally passed and approved by the City
Council of Kennedale, Texas, following the reading thereof at a
regular meeting held on the day of , 1991.
City Sdcretary
- Page 21 -
ACCEPTANCE
WHEREAS, the City of Kennedale, Texas, did on the 23rd day
of July, 1991, enact Ordinance Number 4 entitled:
AN ORDINANCE WHEREBY THE CITY OF KENNEDALE, TEXAS,
AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT,
FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS
BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND
CONSTRUCT ITS POLES, WIRES, ANCHORS, FIBER, CABLES,
MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND
APPURTENANCES IN, ALONG, ACROSS, ON, OVER, THROUGH,
ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES,
HIGHWAYS, ALLEYS, BRIDGES OR PUBLIC WAYS IN SAID
CITY; PRESCRIBING THE CONDITIONS GOVERNING THE USE
OF PUBLIC RIGHTS -OF -WAY AND THE PERFORMANCE OF
CERTAIN CONTRUCTION WORK ON PUBLIC RIGHTS -OF -WAY
FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS
BUSINESS; PROVIDING AN INDEMNITY CLAUSE; SPECIFYING
GOVERNING LAWS; PROVIDING FOR A RELEASE OF ALL
CLAIMS UNDER PRIOR ORDINANCES; PROVIDING FOR FUTURE
CONTINGENCIES; PROVIDING FOR WRITTEN ACCEPTANCE OF
THIS ORDINANCE BY THE TELEPHONE COMPANY; AND
PROVIDING FOR A TERM AND EFFECTIVE DATE.
and WHEREAS,
July, 1991, duly
Seal of said City
Secretary:
said Ordinance was on the 23rd day of
approved by the Mayor of said City and, the
was thereto affixed and attested by the City
NOV, THEREFORE, in compliance with the terms of said
Ordinance as enacted, approved and attested, the Southwestern
Bell Telephone Company hereby accepts said Ordinance, and
files this its written acceptance with the City Secretary of
Kennedale, Texas. Pursuant to the terms of said Ordinance and
this Acceptance, said Ordinance shall become effective on
October 1, 1991.
Dated this day of , 19 71 .
tj
SOUTHWESTERN BELL
TELEPHONE COMPANY
k. 4r. A A &AIVA0
President -T xa .r 6ivi 6 on
Acceptance filed in the office of the City Secretary of
Kennedale, Texas this �_ day of j, , 19 .
CITY OF KENNEDALE.
"Out ldiny_for_Jomorro O .
209 N. New Hope Road, P. O. Box 268 . Kennedale, Texas 76060 • (817) 478.5418
April 20, 1998
Mr. Mark A. Haney
Haney & Ticknor
9001 Airport Freeway
Suite 650
Fort Worth, Texas 76180
RE: City Franchise for Telecommunications
Dear Mr. Haney:
In response to the request in your recent letter I have enclosed copies of our most
recent ordinances regulating our relationship with Southwestern Bell. I had hoped to
also enclose a copy of the proposed new agreement which is still under review at SWB.
All seven cities of the Southwest Metroplex Alliance have agreed to collectively
approach the new agreement in a "fee per line" format. I expect to have a copy of the
new agreement within the next few weeks and will be happy to forward a copy to you at
that time.
I appreciate your advance contact and I look forward to working with you in the near
future. ,
Sincerely,
ed owe
City Manager
April 15, 1998
City of Kennedale
City Manager's Office
P.O. Box 268
Kennedale, TX 76060
RE: City Franchise Arrangements for Construction
of Telecommunications Infrastructure
Dear Sir or Madame:
Our firm was recently engaged by several competitive local exchange providers who
are looking to construct telecommunications networks throughout the North Texas markets.
These efforts will likely bring them in contact with your community in order to determine
the feasibility of constructing this infrastructure through use of the city rights of ways and
easements.
This letter is being sent to introduce myself and our firm to you, and to request
copies of your city's proposed franchise agreement or applicable city ordinance, which
addresses these matters. I would also welcome any suggestions that you may offer which
might ease the process. We would be happy to pay for any reasonable costs associated with
your providing this material to us.
If you have any questions, please do not hesitate to contact me, and I will attempt
to answer them to the best of my ability. We look forward to working with you, and hope
that through a cooperative approach my clients can timely provide to your community the
latest in state of the art communications infrastructure.
Sincerely,
Mark A. Haney
MAH /td
9001 Airport Freeway, Suite 650, Fort Worth, Texas 76180
Metro (817) 498 -9911 Fax: (817) 656 -1191 Internet: HTattys@flash.net
Dallas, August 9, 1991
DON ELLIS:
Attached for your handling is a letter to your city confirming the
payments under both the new and old ordinance and three acceptance
letters that have been authorized by Mr. Dreyer. At your earliest
convenience, please present the letter and these copies to the
appropriate city for signature and stamping, then leave one
original copy with the City and return two original copies to this
office.
If you have any questions please contact John McInnis at 214 - 464 -0889.
n
Area Manager - External Affairs
August 9, 1991
Honorable Steve Radakovich
Mayor, City of Kennedale
209 N. New Hope Road
Kennedale, Texas 76060
Dear Mayor Radakovich:
Enclosed are three originals of the Southwestern Bell Telephone Company's
signed acceptance of Ordinance No. 4 passed by the City of Kennedale on
July 23, 1991. After the filing date has been noted by the City Secretary,
two countersigned acceptance documents should be returned to me for filing
with Southwestern Bell Telephone's official records.
The effective date for Ordinance No. 4 will be October 1, 1991. The
prorated payment for the first calendar year, representing the Annual
Charge of $30,600 prorated over three months, is $7,650. Payments will be
as follows:
February 29, 1992 = $ 7,650
The 1992 payment may be increased according to the growth factor stated in
the ordinance. Calculations for the 1992 payment will be available during
December, and you will be advised of the new payment at that time.
Southwestern Bell Telephone Company will continue to operate under the
terms of the previous ordinance until the effective date of the new
ordinance. The City's payment under this old ordinance is due to the City
by April 15, 1991/. However, I have asked our Comptrollers organization to
begin processing this final payment and the check should be remitted to the
City no later than November 30, 1991.
Please feel free to contact me at 817 - 477 -1335 if I can be of any further
assistance.
Sincerely,
r A K _ -
Area Manager- External Affairs
Enclosures
Southwestern Bell Telephone
♦1 ,I,1(I ( .t i tt_ I 'IO C" � l 011
July 17, 1991
John Mclnnls Mayor Steve Radakovich
Area Manager • City of Kennedale
External Affairs 209 N. New Hope Road
Kennedale, Texas 76060
Dear Mayor Radakovich:
In response to your interest in a quick resolution to our
ordinance negotiations, Don Ellis will provide copies of the
proposed ordinance for your consideration. As we discussed in
our meeting of July 11,. 1991, several of your recommended changes
are included. Further, the version is more recent and includes
very minor improvements of which Don is aware and can identify.
Two options are offered, one with growth based upon Southwestern
Bell Telephone Company telecommunications revenues subject to
State*Sales Tax, and one using The Texas Industrial Production
Index. I cannot strongly support either since they are so
similar. Our most,recent examination of data reveals no
appreciable change in growth.
To implement this ordinance by October 1, 1991, I will need to
have a signed and stamped original by August 20, 1991. I will
make every effort to accommodate this time frame for an October
1, 1991 start.
Please contact Don if further questions arise. Thanks to you and
the City for your hospitality and consideration of this matter.
Sincerely,
CC: Don Ellis <--
One Bell Plaza
Room 3020.28
P.O. Box 655521
Dallas, Texas 75265.5521
Phone (214) 464.0889
fax (214) 464.5838
Charge shall be increased by this percent, and, in the case of disannexation
the Annual Charge shall be decreased by this percent. The Annual Charge, as
adjusted, shall be prorated for the remainder of the calendar year following
the date of the disannexation,/annexation as determined by the Texas
Ccmrptroller of Public Accounts for purposes of the local sales and use tax.
Once adjusted, the new Annual Charge shall be used for all future
calculations required by this Ordinance.
This Ordinance and any 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.
The
CITY hereby fully
releases,
discharges, settles
and
ccnprcmises any
and
all
claims which the
CITY has
made or could have
made
arising out of
or
connected with the Ordinance adopted June 10, 1948, and renewed or extended
from time to time thereafter, and its predecessor ordinances, if any,
(hereinafter referred to collectively as "the 1948 Ordinance"). This full
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and =nplete release of claims for any matters under the 1948 Ordinance shall
be for the benefit of Southwestern Bell Telephone ccnpany; 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 }mown or unknown, arising directly or indirectly out of or
connected with the TELEPHONE =ANY'S obligations to the CITY pursuant to
the provisions of the 1948 Ordinance. Southwestern Bell Telephone Carmpany,
its parent, its affiliates, successors and assigns hereby fully release,
discharge, settle and ccnmpromi.se any and all claims, actions, causes of
action or controversies heretofore made or which could have been made, ]mown
or unknown, against the CI'T'Y, its officers or its employees, arising out of
or connected with any matters under the 1948 Ordinance.
It is the intent of the CITY and the TELEF'f-iONE COMPANY to enter into the
foregoing mutual releases in order to reach a compromise that is acceptable
to both the CITY and the TELEPHONE CCMPANY. This Ordinance and the mutual
releases set forth in this Section represent a ccapromise of each parry'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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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 second month following acceptance by the TELEPHONE COMPANY.
Passed and approved following the reading hereof this day of
A.D., 1991.
r
Mayor,
City of Kennedale, Texas
ATTEST:
City Secretary
I , City Secretary of the City of
Kennedale, 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 Kennedale, Texas, following the reading thereof at a
regular meeting held on the day of , 1991.
city secretary
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passage of this ordinance to file its written acceptance of this ordinance
with the CITY Secretary. This Ordinance shall beccme effective beginning the
first day of the second month following acceptance by the TELEPHONE CoANY.
Passed and approved following the reading hereof this day of
A.D., 1991.
Mayor,
City of Kennedale, Texas
ATTEST:
City secretary
Ity Secretary of the City of
Kennedale, Texas, do h certify that the foregoing erebY fy is a true and correct
copy of ordinance Number , finally passed and approved by the City
Council of Kennedale, Texas, following the reading thereof at a
regular meeting held on the day of , 1991.
city secretary
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