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1995F17-TELECOMMUNICATIONS BUSINESS ORDINANCE NO. 9s-~-/1 AN ORDINANCE WHEREBY THE CITY OF SCHERTZ, 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, A VENUES, HIGHWAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC PROPERTY IN SAID CITY; PRESCRIBING THE ANNUAL COMPENSATION DUE THE CITY UNDER THIS ORDINANCE; PRESCRIBING THE CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS-OF-WAY AND THE PERFORMANCE OF CERTAIN CONSTRUCTION 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 AN 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 Schertz, 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 powers granted by and under said laws to the CITY and as reflected in prior Ordinances of the CITY; and WHEREAS, the TELEPHONE COMPANY has operated its telecommunications business in the CITY under successive ordinances of the CITY, the last of which was Ordinance Number 28, adopted October 5, 1959, which provided compensation to the 0161291 CITY for that agreement based upon a percentage of gross receipts received by the TELEPHONE COMPANY from certain services rendered within the corporate limits of the CITY; and WHEREAS, certain disputes have arisen regarding those prior Ordinances and 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 for telecommunications utilities. In order to resolve these issues in a manner satisfactory to both the CITY and the TELEPHONE COMPANY, the CITY and the TELEPHONE COMPANY have chosen the method of determining the amount of compensation provided for in this Ordinance to eliminate the expense and time related to audits, to achieve administrative simplicity, to provide the CITY with predictable revenues and an opportunity for growth and to avoid the expense and delays of further litigation which otherwise would be necessary to resolve the issues in controversy between the parties; and WHEREAS, 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 establishing the conditions under which the 0161291 -2- TELEPHONE COMPANY shall maintain and construct its physical plant in the CITY in the future; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, THAT: SECTION 1 - PURPOSE Pursuant to the laws of the State of Texas, the CITY Charter and this Ordinance, the TELEPHONE COMPANY has the NON-EXCLUSIVE right and privilege to USE the public 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 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 the 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 0161291 -3- 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 as a cable operator in the CITY under this Ordinance, but must first obtain a franchise from the CITY for that purpose, under such terms and conditions as may be required bylaw. SECTION 3 - DEFINITIONS 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. (b) USE: the TELEPHONE COMPANY's acquisition, construction, reconstruction, maintenance or operation of any FACILITIES in, over, under, along, through or across the public RIGHTS-OF-WAY, for any telecommunications purpose whatsoever. 0161291 -4- (c) CITY: The City of Schertz, Texas. (d) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public ways within the city limits of the CITY. (e) TRANSMISSION MEDIA: all TELEPHONE COMPANY cables, fibers, wires or other physical devices used to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other telecommunications purposes. CD NON-EXCLUSIVE: no rights provided 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. (g) TELEPHONE COMPANY: Southwestern Bell Telephone Company. (h) STIPULATION AND SETTLEMENT: As filed by the Settlement Class and Settling Defendants in connection with Cause No. D-142,176 in the 136th District Court of Jefferson County, Texas. 0161291 -5- SECTION 4 - TERM (a) Subject to Paragraph 4(b) below, 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 shall be 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 expiration of the then current period. When such notice is given, this agreement shall terminate at the expiration of the then current period. (b) Notwithstanding the term set out in Paragraph 4(a) above, this Ordinance shall terminate if Final Approval does not occur as set forth in the STIPULATION OF SETTLEMENT. SECTION 5 - SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS 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 CITY shall have the option, but not the obligation, to exercise any and all lawful, reasonable and proper control related to 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. 0161291 -6- SECTION 6 - ATTACHMENTS TO POLES AND SPACE IN DUCTS 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 attachment(s) 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 in the CITY. SECTION 7 - STREETS TO BE RESTORED TO PREEXISTING CONDITION The surface of any street, alley, avenue, highway or public place disturbed by the TELEPHONE COMPANY in building, constructing, renewing or maintaining its telecommunications system shall be restored within a reasonable time after the completion of the work to as good a condition as before the commencement of work and maintained to the satisfaction of the City Council or of any city official to whom such 0161291 -7- duties have been or may be delegated for one (1) year from the date the surface of said street, alley, avenue, highway or public place is broken for such construction or maintenance work, after which time responsibility for the maintenance shall become the duty of the CITY; provided, however, that the TELEPHONE COMPANY shall not take up or excavate any pavement at any time without first securing permission, in writing, of the City Manager or his nominee except in cases of emergencies; and provided further, that all excavation and installation so made shall be performed in such a manner as will cause the least inconvenience to the public. No street, alley, avenue, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work. SECTION 8 - 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, 0161291 -8- avenues, highways, alleys, sidewalks and public places of the CITY so as to prevent the branches of such trees from coming in contact with the aerial wires, fiber or cables of the TELEPHONE COMPANY, and 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 whom said duties have been or may be delegated, SECTION 10 - INDEMNITY THE TELEPHONE COMPANY SHALL INDEMNIFY AND HOLD THE CITY HARMLESS FROM ALL COSTS, EXPENSES (INCLUDING ATTORNEY'S FEES) AND DAMAGES TO PERSONS OR 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. This provision is not intended to create a cause of action or liability for the benefit of third parties but is solely for the benefit of the TELEPHONE COMPANY and the CITY; nor is this provision intended to abrogate the common law or statutory rights of either the CITY or the TELEPHONE COMPANY to indemnity or contribution from the other. SECTION 11 - ADMINISTRATION OF ORDINANCE (a) The CITY may, at any time, make inquiries pertaining to this Ordinance and the TELEPHONE COMPANY shall respond to such inquiries on a timely basis by 0161291 -9- providing information which is prepared, maintained and available in the ordinary course of business. (b) Copies of specifically identified 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) 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 12 - COMPENSATION TO THE CITY (a) As compensation for the use, occupancy, oversight, supervision and regulation of the CITY'S RIGHTS-OF-WAY and for any other consideration provided by the CITY under this agreement, 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 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 0161291 -10- a Charge upon the Gross Receipts (as hereinafter defined) of the TELEPHONE COMPANY. The amount of the Charge for the first year this Ordinance is in effect shall be $40,000.00. In no event shall such Charge be less than the above amount for each year this Ordinance is in effect, except as provided in the case of disannexation as set forth in paragraph l2(e), or as provided in Section 16 herein. The TELEPHONE COMPANY will, according to tariff, bill such Charge to the customers billed the 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) such charges are for TELEPHONE COMPANY services provided within the CITY; (2) such charges are billed through the TELEPHONE COMPANY'S Customer Records Information System ("CRIS"); (3) such 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 (the "FCC"). 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 l2(c). This adjustment for the 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 due the CITY. 0161291 -11- (b) The Charge for each year shall be paid in four (4) equal payments. The first payment under this Ordinance shall be due on the last day of the fifth month following the effective date hereof, with subsequent payments due on the last day of each third successive month thereafter during the term of this Ordinance. 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 l2(a). 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 such overcollection shall be paid to the CITY. (c) The Growth Factor shall be calculated by dividing the TELEPHONE COMPANY'S revenues within the corporate limits of the CITY subject to state sales taxes ("Sales Tax Revenues") for the twelve month period ending three (3) months prior to the next anniversary date of this Ordinance by the Sales Tax Revenues for the twelve month period ending three (3) months prior to either the initial effective date or the preceding anniversary date of this Ordinance, as applicable. The Growth Factor calculated by the method set forth in the preceding sentence, if greater than one, shall be multiplied by the current year's Charge to determine the dollar amount of the Charge for the next year. If the Growth Factor calculated above is one or less, the Charge for the next year shall be equal to the current year's Charge. The TELEPHONE COMPANY will adjust its customer billing to account for the Growth Factor calculated above. 0161291 -12- Once the Growth Factor calculation is completed, the TELEPHONE COMPANY will provide the CITY with the Sales Tax Revenues upon which the Growth Factor calculation was based. The CITY agrees to rely upon audits by the Texas Comptroller of Public Accounts of state sales taxes as reported by the TELEPHONE COMPANY in compliance with Sections 151.023 and 151.027 of the Texas Tax Code Annotated. 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 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 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. Cd) Such payments shall not relieve the TELEPHONE COMPANY from paying all applicable municipally-owned utility service charges. Should the CITY not have the 0161291 -13- legal power to agree that the payment of the foregoing Charge shall in lieu of the taxes, licenses, charges, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF- WAY easements or franchise taxes aforesaid, then the City agrees that it will apply so much of such payments as may be necessary to the satisfaction of the TELEPHONE COMPANY'S obligation, if any, to pay any such taxes, licenses, charges, RIGHTS-OF- WAY permit or inspection fees, rentals, RIG HTS-OF -WAY easements or franchise taxes. (e) In the event that either (1) territory within the boundaries of the CITY shall be disannexed and a new incorporated 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 Charge shall be adjusted. To accomplish this adjustment, within thirty days following the action effecting a disannexation/annexation as described above, the CITY shall provide the TELEPHONE COMPANY with maps of the affected area(s) showing the new boundaries of the CITY. In the event of an annexation as described above, the Charge for the CITY will be adjusted to include the amount of the payment by the TELEPHONE COMPANY to the existing incorporated municipality being annexed. In the event that the annexed municipality had no ordinance imposing a Charge on the event of a disannexation, the adjustment to the Charge will be calculated using the effective date of the imposition of Local Sales Taxes as determined by the Texas Comptroller of Public Accounts. The adjustment shall be the percent increase/decrease in the TELEPHONE COMPANY'S Gross Receipts as defined herein for the CITY for the first calendar month following 0161291 -14- the Local Sales Tax effective date compared to the last month prior to such effective date. This adjustment to the Charge will be made on the first day of the second month following the Local Sales Tax effective date and the adjusted Charge shall be prorated from that date through the remainder of the payment year. The Charge as adjusted shall be used for all future calculations required by this Ordinance. SECTION 13 - 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 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. SECTION 14 - MUTUAL RELEASES Upon Final Approval, as defined in the STIPULATION OF SETTLEMENT, 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. 28, adopted October 5, 1959, and renewed or extended from time to time thereafter, and its predecessor ordinances, if any (hereinafter referred to collectively as "Ordinance 28"). This full and complete release of claims for any matters under Ordinance 28 shall be for the benefit of Southwestern Bell Telephone Company; its parent; its affiliates; their directors, officers, attorneys and employees; successors and assigns; and includes any and all claims, actions, causes of action and controversies, presently known or 0161291 -15- unknown, arising directly or indirectly out of or connected with the TELEPHONE COMPANY'S obligations to the CITY pursuant to the provisions of Ordinance 28. Upon Final Approval as defined in the STIPULATION OF SETTLEMENT, 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, attorneys or its employees, arising out of or connected with any matters under Ordinance 28. 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. SECTION 15 - ADOPTION OF STIPULATION OF SETTLEMENT The CITY hereby adopts, ratifies, confirms, and agrees to be bound by the terms of the STIPULATION OF SETTLEMENT in Cause No. D-142,176 in the l36th Judicial District Court in and for Jefferson County, Texas (the "Class Litigation"), in its entirety, in all respects as if the CITY were an original signatory thereto. The CITY acknowledges that as a member of the Settlement Class in the Class Litigation it has 0161291 -16- received and reviewed the STIPULATION OF SETTLEMENT and that the CITY has had access to and/or has consulted counsel, to the extent that it desired to do so, in connection with its evaluation of the STIPULATION OF SETTLEMENT. SECTION 16 - REPEAL OF CONFLICTING ORDINANCES AND AGREEMENTS Ordinance Number 28 adopted October 5, 1959, 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 AGREEMENT AND EFFECTIVE DATE". The final payment (including payment for any partial year) under Ordinance 28 shall be due 60 days following the effective date of this Ordinance, as set out in Section 19 hereof, All other ordinances and agreements and parts of ordinances and agreements in conflict herewith are also repealed, to the extent of such conflict only, which repeal shall take effect at the time and on the date specified in the preceding sentence. SECTION 17 - FUTURE CONTINGENCY (a) 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, 0161291 -17- 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. (b) Notwithstanding anything contained in the preceding paragraph to the contrary, the CITY and TELEPHONE COMPANY agree that in the event this Ordinance is submitted for review to any court in which the currently existing case styled Citv of Port Arthur. et al v. Southwestern Bell Teleohone Companv. et aI, Cause No. D-142,176 in the l36th Judicial Court, Jefferson County, Texas is pending, the CITY and TELEPHONE COMPANY agree to take any and all actions reasonably necessary to obtain approval and ratification of the Ordinance by the court. SECTION 18 - GOVERNING LAW (a) 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 such Charter and Code(s) are not in conflict with or violation of the Constitution and laws of the United States or the State of Texas. 0161291 -18- (b) This Ordinance shall be construed and deemed to have been drafted by the combined efforts of the CITY and the TELEPHONE COMPANY. SECTION 19 - 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 file its written acceptance of this Ordinance in accordance with the STIPULATION OF SETTLEMENT, This Ordinance shall become effective beginning on the first day of the first calendar month which begins not less than thirty (30) days after entry of judgment, as defined in the STIPULATION OF SETTLEMENT. * * * 016]291 -19- FIRST READING on the 6tL day of June, 1995. PASSED AND APPROVED following the second reading hereof this {,il day of July, A.D., 1995. Mayor, City l.--- f fL' 110:/11 ATTEST: 7'1I-t IU (ZiC"-~~.a.R.- / City Secretary I, Norma Althouse, City Secretary of the City of Schertz, Texas, do hereby certify that the foregoing is a true and correct copy of Ordinance Numberti-P-/7, finally passed and approved by the City Council of the City of Scheji;z, Texas, following the second reading thereof at a regular meeting held on the 61::1- day of July, 1995. \~) '2~" ' - 'M-;-J(,,~_/ 0Lf::Cfl-<'-u~~ City Secretary 0161291 -20- 1 ;/ 5!1l1ll1\\-(':;1('rIllll'11 Tl'lt'plwllt' I @ Southwestern Bell December 14, 1999 The Honorable Hal Baldwin Mayor City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Re: Southwestern Bell Telephone Company - Municipal Fees Ordinance (the "Ordinance") Notice of Non-Renewal Dear Mayor Baldwin: In accordance with the terms of the Ordinance, Southwestern Bell Telephone Company ("SWBT") respectfully notifies the City that it is exercising its option not to renew the Ordinance. Instead, subject to applicable law (including the newly passed H.B. 1777), the Ordinance will terminate as of the end of its current term. Please call Jim Alaniz at 512-870-1390 if you have any questions or would like to discuss this matter further. Sincerely, X4- cc: City Secretary Evenly Harrison, Southwestern Bell PUC DOCKET NO. 20935 IMPLEMENT A TION OF PUBLIC UTILITY COMMISSION HOUSE BILL 1777 9 9 Ii Ii OF TEXAS ORDER I. Introduction Under Ii 283.055(b), Local Government Code, by March I, 2000, the Commission is required to establish: (l) for each municipality, rates per access line by category; and (2) the statewide average of those rates per access line by category for each certificated telecommunications provider (CTP). Pursuant to Ii 283.055(a), Local Government Code, not later than November 1, 1999, the Commission is required to establish not more than three categories of access lines for statewide use. The three categories of access line-residential, non-residential, and point-to-point-have been established by P,U.c. SUBST. R. 26.461, which was adopted by the Commission on October 21, 1999. When applied to the total number of access lines by category in the municipality, the Commission's rates shall be equal to the base amount, consistent with g283.055(c), Local Government Code. The specific formula for rate determination is reflected in P.U.c. SUBST. R. 26.467(c). The Commission-established rates are maximum rates, pursuant to P.U.c. SUBST. R. 26.467(g)(l)(3). In an effort to accommodate the desires of municipalities. and certificated telecommunications providers (CTPs) for an opportunity to review and possibly amend filings made with the Commission, P.U.c. SUBST. R 26.467(g) allows an update period. Specifically, p,u,c. SUBST. R. 26.467(g)(l) allows municipalities to update their base amounts and/or allocations, by filing with the Commission no later than March 31, 2000. Moreover, a municipality may choose lower access line rates than the maximum rates initially established under P.U,c. SUBST. R. 26.467(1), by notifying the Commission no later than March 31, 2000. In addition, under P.U.c. SUBST. R 26.467(g)(2), no later than March 15, 2000, a CTP may Implementation ofHB 1777 Order Page 2 of 19 request to update its access line count filed with the Commission pursuant to P.U.c. SUBST. R 26.465. Section 26.467(g) requires the Commission to establish updated rates for each category of access line in a requesting municipality no later than April 14, 2000. Pursuant to 9 283.055(d) of the Local Government Code and P.U.c. SUBST, R 26.467(i), the Commission shall implement a municipality's allocation unless, on complaint by an affected CTP, the Commission determines that the allocation is not just and reasonable, is not competitively neutral, or is discriminatory. Under P.U,c. SUBST. R 26.467(i), any affected CTP may complain regarding a municipality's initial allocation no later than March 15, 2000; complaints regarding a municipality's revised allocation must be filed no later than April 7, 2000. On March 15, 2000, four affected CTPs filed complaints regarding municipal initial allocation. Two of the affected CTPs also raised concerns regarding municipal base amounts. Numerous municipalities revised their initial allocation and/or base amounts in response to the complaints. On April 7, 2000, two affected CTPs, Southwestern Bell Telephone Company (SWBT) and GTE Southwest, Incorporated (GTESW) filed complaints regarding municipal updated allocation. Municipalities whose base amounts and/or allocations were contested by SWBT and/or GTESW were ordered to provide affidavits and supporting documentation no later than April 17, 2000, The Commission orders that: (I) The fee per access line maximum rates established using either a municipality's base amount or statewide average by CTP, including updated municipal base amount information, shall be assessed as reflected on Attachment A, for the listed municipalities; (2) The fee per access line rates for municipalities that have: (a) chosen lower than maximum rates, pursuant to P.U.c. SUBST. R 26.467(g)(3); and/or (b) chosen to forgo municipal compensation from access lines serving Lifeline customers or customers of other similar low-income assistance programs; shall be assessed as reflected on Attachment A, for the listed municipalities; Implementation of HB 1777 Order Page 3 ofl9 (3) The statewide average rates for CTPs, as determined by the Commission on March I. 2000, are adopted, as retlected on Attachment B, for the listed CTPs; (4) CTPs shall use approved tariff language and customer notification language, as reflected on Attachment C and consistent with the schedule set forth in this Order; (5) Municipalities that did not provide base amount filings to the Commission are not eligible to receive franchise compensation unless and until they file base amount information with the Commission, no later than September I of each year, at which time the Commission shall develop municipality-specific rates; (6) Municipalities for which rates cannot be developed due to unresolved municipal boundary issues, as shown on Attachment D, may, upon resolution of such issues, file revised information no later than September I of each year, at which time the Commission shall develop municipality-specific rates; and (7) Municipalities served by CTPs that paid no franchise compensation in 1998 to any of the municipalities served, as shown on Attachment E, are ineligible to receive franchise compensation under Chapter 283, Local Government Code. II. Purpose ofHB 1777 According to 9 283.00l(c), Local Government Code, the purpose of Chapter 283 is to establish a uniform method for compensating municipalities for the use of a public right-of-way by CTPs that: (I) is administratively simple for municipalities and CTPs; (2) is consistent with state and federal law; (3) is competitively neutral; (4) is nondiscriminatory; (5) is consistent with the burdens on municipalities created by the incursion of CTPs into a public right-of-way; and (6) provides fair and reasonable compensation for the use of a public right-of-way. Section 283,051(a), Local Government Code, provides that a CTP that provides telecommunications services within a municipality is required to pay, as compensation to a municipality for use of the public rights-of-way in the municipality, only the amount detennined by the Commission pursuant to 9 283.055, Local Government Code. Implementation of HB 1777 Order Page 4 of 19 III. Calculation of Rates Based on Municipal Filings A. Base Amount The amount of a municipality's right-of-way fee is determined using the municipality's base amount. Section 283.053(b), Local Government Code, states that the base amount for a municipality is "the total amount of revenue received by the municipality in franchise, license, permit, and application fees and in-kind servIces or facilities from certificated telecommunications providers in 1998 within the boundaries of the municipality, including all newly annexed areas." Under S 283.053(a), Local Government Code, pole rental fees, special assessments, and taxes of any kind, including ad valorem or sales and use taxes, or other compensation not related to the use of a public right-of-way are specifically excluded from the base amount determination. P.U.c. SUBST. R 26.463(d), clarifies that payments received inside or outside of calendar year 1998 can be included as revenue received only to the extent that those payments represent compensation for calendar year 1998 usage of a public right-of-way. Pursuant to P.U,c. SUBST. R. 26.463(i)(2)(A), municipalities shall file their base amount figures no later than December I, 1999. Section S 283.053(b), Local Government Code, provides that in-kind services or facilities received in 1998 specifically prescribed in applicable agreements or ordinances effective or adopted January 12, 1999, are also included in the base amount. Under S 283.053(t), Local Government Code, in-kind services or facilities provided to municipalities under existing franchise agreements or ordinances by CTPs shall be valued at one percent (1 %) of the total 1998 revenue from franchise, permit, license, and application fees paid to the municipality, unless a municipality can establish that those services or facilities received by the municipality had a greater value in ] 998. In order to establish that the total value of in-kind compensation received from CTPs in 1998 had a greater value than one percent (1%) of the municipality's base amount, the municipality must make a showing consistent with P.U.c. SUBST. R 26.463(e). Under P.U.c. SUBST. R. 26.463(e), specific valuation methods are provided for (1) telecommunications Implementation of HB 1777 Order Page 5 of 19 equipment; (2) dark fiber; (3) poles, ducts and conduits; (4) telecommunications service; and (5) all other faci]itiesand services. Generally, facilities are valued only to the extent the municipality utilized them during calendar year 1998. As to services, in-kind compensation is limited to services received in calendar year 1998. Besides revenue received and in-kind compensation, if any, the base amount shall include the municipal fee rate escalation provisions specifically prescribed in applicable agreements or ordinances effective or adopted by January 12, 1999, pursuant to 9283.053(b), Local Government Code. Under 9283.053(b), Local Government Code, additional compensation attributable to municipal fee rate escalation provisions may not become part of the base amount before it becomes effective under the existing franchise agreement or ordinance. The inclusion in the base amount of additional compensation attributable to fee rate escalation is limited to the amounts received in calendar year 1999 and in the first two months of 2000. Under P.U.c. SUBST. R. 26.463(d)(2), the municipality shall calculate and report its fee rate escalation amount that is known and measurable for calendar year 1999, as specifically prescribed in effective agreements or ordinances, and add that escalation amount to the base amount calculation. In addition, pursuant to P.U.C. SUBST. R. 26.467(g)(I)(A)(iv), municipalities may demonstrate eligibility under their existing franchise agreement or ordinance to receive a known and measurable amount due to specifically prescribed fee rate escalation provisions for the period between January 1,2000 and March 1,2000. The known and measurable amount is dependent upon the specific terms of the existing franchise agreement or ordinance, Section 283.053(c), Local Govemment Code allows a municipality (I) located in a county with a population of less than 25,000; or (2) that did not have an effective franchise agreement or ordinance on January 12, 1999; or (3) was not in existence on January ]2, 1999, to choose between several options in developing its base amount. Such municipalities can choose to follow the general approach outlined in this section of this Order, by providing the total amount of revenue received from CTPs in 1998. To address the situation in which a municipality may not have received any revenue in 1998, Section 283.053(c), Local Government Code, allows such a municipality to develop a base amount using the statewide average fee per line, by category, of the CTP with the greatest number of access lines in that municipality, Implementation ofHB 1777 Order Page 6 of 19 multiplied by the total number of access lines in each category located within the municipal boundaries on December 31, 1998. Alternatively, such a municipaliry may choose to adopt the base amount of a similarly sized municipality. The adopting municipality and the similarly sized municipaliry, however. must be in the same or an adjacent county. and the CTP with the greatest number of lines must be the same for each municipality. Similarly, cities involved in municipal franchise fee litigation are given a specific method for developing a base amount. Under Section 283.053(d), Local Government Code, this option applies only to a municipality that was involved in such litigation with one or more CTPs during any part of 1998. Such a municipality is required first to repeal any ordinance subject to dispute in litigation, no later than December 1, 1999. In addition, cities involved in municipal franchise fee litigation must voluntarily dismiss with prejudice any claims in the litigation for compensation and waive any potential claim for compensation under any franchise agreement or ordinance expired or in existence on September I, 1999. Upon taking these actions, such a municipality is allowed to choose to establish its base amount using either: (1) the statewide average access line rate for the CTP with the greatest number of access lines in that municipality multiplied by the total number of access lines located wit..l:lin the boundaries of the municipality on December 31, 1998; or (2) an amount not to exceed 21 % of the total sales and use tax revenue received by the municipality pursuant to Chapter 321, Tax Code, excluding certain specific sales and use taxes. B. Allocation Under S 283.055(d), Local Government Code, by December I, 1999, a municipality that wishes to request a specific allocation of the base amount over specific access line categories subject to rates must notifY the Commission of the desired allocation. As part of the base amount filings, municipalities must include their requested allocation. Under S 283.055(d), Local Government Code, the Commission shall establish an allocation of the base amount over the categories of access lines if a municipality does not file its proposed allocation by December I, 1999. In P.U.c. SJBST. R. 26.467(e), the Commission developed a default allocation of Implementation of HB 1777 Order Page 7 of 19 1:2.3:3.5. This default allocation represents an average of all allocation ratios filed by municipalities. C Access Line Counts The final component of the rate calculation is the access line counts provided by each CTP for each municipality in which it operates. Section 283.005, Local Government Code, allows the Commission to collect and compile any information from CTPs and municipalities as is necessary to implement Chapter 283 of the Local Government Code (HB 1777). By January 24, 2000, pursuant to P.U.c. SUBST. R. 26.465(g)(2)(A)(i), all CTPs were required to file an access line count for December 31, 1998. If a CTP could not file a 1998 access line count, it could request a good cause exception and file the line count available for December, 1999. Under P.U.c. SUBST. R. 26.467(d), when a CTP does not provide an actual 1998 access line count, the Commission shall use the CTP's 1999 access line count to derive an estimated 1998 access line count, using estimated statewide growth rate figures. D. Formula The attached rates are adopted in accordance with the requirements of HB 1777, and in this Order, using the formula adopted in P,U.c. SUBST. R. 26.467(c), as follows: B- Total base amount for 1998. AI= Allocation by percentage to Category I access lines. A2- Allocation by percentage to Category 2 access lines. A3 - Allocation by percentage to Category 3 access lines, Ll- Nwnber of access lines in Category I. L2- Nwnber of access lines in Category 2. L3= Nwnber of access lines in Category 3. Rl= Fee per access line rate for Category 1. R2= Fee per access lil1e rate for Category 2. R3= Fee per access line rate for Category 3. Implementation of HB 1777 Order Page 8 of 19 Ri = (Al*B)/Ll R2 = (A2*B)!L2 R3 = (A3*B)1L3 B = (Ll *RI) + (L2*R2) + (L3*R3) N. Calculation of Statewide Average Rates for each CTP As part of the Commission's determination of fees under 9283.055, Local Govemment Code, the Commission must also develop the statewide average of municipalities' rates per access line by category, for each CTP. The statewide average is used to develop base amounts for eligible municipalities. Under 9 283.053(c), Local Government Code, eligible municipalities can be one of three types: (I) a municipality located in a county with a population of less than 25,000; (2) a municipality without an effective franchise agreement or ordinance on January 12, 1999; or (3) a municipality not in existence on January 12, 1999. In addition, under 9 283,053(d), a municipality involved in litigation relating to franchise fees with one or more CTPs during any part of 1998 is eligible to choose to develop a base amount using the statewide average by CTP or to claim up to 21 % of total sales and tax revenue as its base amount. V. Tariff Filings and Customer Notification Section 283.051(c), Local Government Code, provides that fees imposed under Chapter 283, Local Government Code, constitute "a municipal fee" or "municipal fees" within the meaning of the Public Utility Regulatory Act' (PURA) 99 51.009 and 54.206. Pursuant to PURA 9 54.206(a), a CTP has the right to collect a fee that a municipality imposes under 99 54.204 or 54.205 through a pro rata charge to the customers in the boundaries of the municipality. PURA 9 54.206(b) also states that the charge may be shown on the customer's bill as a separate line item. Under P,U.C. &JBST. R. 26.31(b), each utility is required to notify customers affected by a change in rates, I TEX. IJTIL. COOE ANN. ss 11.001 - 64.158 (Vernon 1998 & Supp. 2000). Implementation of HB 1777 Order Page 9 of 19 Standardized tariff language and customer notification language appear in Attachment C to this Order. To' the extent that a CTP wishes to deviate from this approved language, it shall request a good cause exception. VI. Complaints Regarding Allocation and/or Base Amounts Pursuant to S 283.055(d) of the Local Government Code and P.U.c. SUBST. R 26.467(i), the Commission shall implement a municipality's allocation unless, on complaint by an affected CTP, the Commission determines that the allocation is not just and reasonable, is not competitively neutral, or is discriminatory. Under P,U.c. SUBST. R 26.467(i), any affected CTP may complain regarding a municipality's initial allocation no later than March IS, 2000; complaints regarding a municipality's revised allocation must be filed no later than April 7, 2000. On March 15, 2000, four affected CTPs, SWBT, GTESW, Alenco and Sage, filed complaints regarding municipal initial allocation. Alenco and Sage filed complaints regarding only one municipality; the municipality revised its base amount filing to correct an error, thereby addressing the allocation concems of Sage and Alenco. The two remaining affected CTPs, SWBT and GTESW, also raised concerns regarding municipal base amounts. Many municipalities revised their initial allocation and/or base amounts in response to the complaints. On April 7, 2000, pursuant to P.U.c. SUBST. R 26.467(i)(2), SWBT and GTESW filed complaints regarding updated municipal allocations and raising concerns regarding municipal base amounts. CTPs were directed to provide notice to all municipalities whose allocations they contested. The PUC also notified these cities immediately and requested the cities to provide affidavits with supporting documentation, as appropriate. A significant number of contested base amount issues were resolved. VII. Municipalities Ineligible for Franchise Compensation Implementation ofHB 1777 Order Page 10 of 19 Pursuant to 9 283.051(a), Local Government Code, notwithstanding any other law, a CTP that provides telecommunications services within a municipality is required to pay as compensation to a municipality for use of the public rights-of-way within a municipality only the amount determined by the Commission under 9283.055, Local Government Code. Under 9 283.055(c), Local Government Code, the rates when applied to the total number of access lines by category in the municipality shall be equal to the base amount. Pursuant to P.U.c. SUBST. R. 26.463(i), all municipalities are required to file their base amount no later than December I, 1999. P.U.c. SUBST. R. 26.463(1) provides that the base amount for a municipality that fails to complete its base amount report by December I, 1999 shall be $0. Furthermore, for purposes of determining the amount of a municipality's right-of-way fee, 9 283.053(b), Local Government Code, provides that the base amount is to reflect the total amount received by the municipality from CTPs in 1998 within the boundaries of the municipality. Once rates are established, 9 283.055(c) provides that the rates when applied to the total number of access lines by category in the municipality shall equal the base amount. When municipal boundaries cannot be adequately established, neither a base amount nor a total number of access lines by category can be developed. Accordingly, the Commission cannot set rates for such municipalities. The affected municipalities are listed on Attachment D. Municipalities for which rates cannot be developed due to unresolved municipal boundary Issues may, upon resolution of such issues, file revised information no later than September 1 of each year, at which time the Commission shall develop municipality-specific rates. Finally, municipalities served by CTPs that paid no franchise compensation in 1998 to !!ill' of the municipalities served are ineligible to receive franchise compensation under Chapter 283, Local Government Code. Excepting municipalities that were involved in litigation relating to franchise fees during 1998, the municipal base amount under Chapter 283, Local Government Code, can be calculated in three different ways. First, under 99 283.053(b) and (c)(3), Local Government Code, the base amount is the total amount of revenue received by the municipality from CTPs in 1998, Secondly, pursuant to 9 283,053(c)(l), Local Government Code, the base amount for certain eligible municipalities is an amount not greater than the statewide average fee per line for each category of access line of the CTP with the greatest number of access lines in Implementation of HB 1777 Order Page 11 of 19 that municipality, multiplied by the total number of access lines in each category within the boundaries of the municipality, Lastly, pursuant to S 283.053(c)(I), Local Government Code, the base amount for certain eligible municipalities is an amount not greater than the base amount determined for a similarly sized municipality in the same or an adjacent county in which the CTP with the greatest number of access lines in the municipality is the same for each city, In each option, whether based on actual revenue, on the average fee per line, or on the base amount of a similarly sized municipality, the calculation of base amount requires actual revenue figures. However, where a CTP paid no franchise compensation in 1998 to anv of the municipalities it serves, each such municipality is ineligible to receive franchise compensation under Chapter 283, Local Government Code. Each such municipality cannot develop its own base amount, adopt a neighbor's base amount or develop a statewide average fee per line because no compensation was received in 1998 on which to calculate a base amount. VIII. Findings of Fact 1. Section 283.001(c), Local Government Code, includes a legislative finding that the purpose of Chapter 283, Local Government Code, is to establish a uniform method for compensating municipalities for the use of a public right-of-way by CTPs that: (I) is administratively simple for municipalities and telecommunications providers; (2) is consistent with state and federal law; (3) is competitively neutral; (4) is nondiscriminatory; (5) is consistent with the burdens on municipalities created by the incursion of CTPs into a public right-of-way; and (6) provides fair and reasonable compensation for the use of a public right-of-way. 2. Section 283.051(a), Local Government Code, provides that a CTP that provides telecommunications services within a municipality is required to pay as compensation to a municipality for use of the public rights-of-way in the municipality only the amount determined by the Commission under S 283.055, Local Govemment Code. 3. Section 283.051(c), Local Government Code, provides that fees imposed under Chapter 283, Local Government Code, constitute "a municipal fee" or "municipal fees" within the Implementation of HB 1777 Order Page 12 of 19 meaning of PURA S S 51.009 and 54.206. Pursuant to PURA S 54.206(a), a CTP has the right to collect a fee that a municipality imposes under SS 54.204 or 54.205 through a pro rata charge to the customers in the boundaries of the municipality, PURA 9 54.206(b) also states that the charge may be shown on the customer's bill as a separate line item. Under P.U.c. SUBST. R. 26.3I(b), each utility is required to notify customers affected by a change in rates. 4. Section283.055(b), Local Government Code, reqUIres that, by March 1, 2000, the Cornmission must establish: (I) for each municipality, rates per access line by category; and (2) the statewide average of those rates per access line by category. Section283.055(a), Local Government Code, requires that, not later than November I, 1999, the Commission must establish not more than three categories of access lines for statewide use. The three categories of access line-residential, non- residential, and point-to-point-are established in P.U.c. SUBST. R. 26.461. Consistent with S 283.055(c), Local Government Code, when applied to the total number of access lines by category in the municipality, the Commission's rates for these categories of access lines shall equal the base amount. 5. Section 283.053, Local Government Code, states that the base amount for a municipality is the total amount of revenue received by the municipality in franchise, license, permit, and application fees and in-kind services or facilities from CTPs in 1998 within the boundaries of the municipality, including all newly annexed areas. P.U.c. SUBST. R. 26.463(d) clarifies that payments received inside or outside of calendar year 1998 can be included as revenue received only to the extent that these payments represent compensation for calendar year 1998 usage of a public right-of-way. P.D.C. SUBST. R. 26,463(i)(2)(A) reqUIres municipalities to file their base amount figures no later than December I, 1999. 6. Section283,055(d), Local Government Code, reqUIres that, by December I, 1999, a municipality that wishes to specify an allocation of the base amount over specific access line categories subject to rates must notify the Commission of the desired allocation. Municipalities included their requested allocation as part of the base amount filings, Section283.055(d), Local Government Code, requires the Commission to establish an Implementation of HB 1777 Order Page I3 of 19 allocation of the base amount over the categories of access lines if a municipality did not file its proposed allocation by December I, 1999. Consequently, the Commission developed a default allocation of 1:2.3:3.5 in P.U.c. SUBST. R. 26.467(e). This default allocation represents an average of all allocation ratios tiled by municipalities. 7. Section 283.005, Local Government Code, allows the Commission to collect and compile any information from CTPs and municipalities as is necessary to implement Chapter 283 of the Local Government Code, P.U.c. SUBST. R. 26.465(g)(2)(A)(i) requires all CTPs to file an access line count for December 31, 1998, by January 24, 2000. If a CTP cannot file a 1998 access line count, it can request a good cause exception and file the line count available for December, 1999. Under P,U.c. SUBST. R. 26.467(d), in a situation in which a CTP does not provide an actual 1998 access line count, the Commission shall use the CTP's 1999 access line count to derive an estimated 1998 access line count, using estimated statewide growth rate figures. 8. P.U,c. SUBST. R. 26.467(c) sets out the formula the Commission shall use to develop access line rates, by category, as follows: B- Total base amount for 1998. Al- Allocation by percentage to Category 1 access lines. A2= Allocation by percentage to Category 2 access lines, A3- Allocation by percentage to Category 3 access lines. Ll= Nwnber of access lines in Category 1, L2= Nwnber of access lines in Category 2. LJ- Nwnber of access lines in Category 3. RI- Fee per access line rate for Category 1. R2- Fee per access line rate for Category 2, RJ= Fee per access line rate for Category 3. Rl= (AI *B)/LI R2 = (A2*B)/L2 Implementation of HB 1777 Order Page 14 ofl9 R3 = (A3*B)!L3 B = (LI*RI) + (U*R2) + (U*R3) 9. As part of its determination of fees under S 283,055, Local Government Code, the Commission must also develop the statewide average of municipalities' rates per access line by category, for each CTP. Section 283.053(c), Local Government Code, allows the statewide average to be used to develop base amounts for eligible municipalities such as: (l) a municipality located in a county with a population of less than 25,000; (2) a municipality without an effective franchise agreement or ordinance on January 12, 1999; or (3) a municipality not in existence on January 12, 1999. Section 283.053(d), Local Government Code, allows a municipality to choose between developing a base amount using the statewide average or claiming up to 21 % of total sales and tax revenue as its base amount if it was involved in litigation relating to franchise fees with one or more CTPs during any part of 1998 and, not later than December I, 1999, repealed any ordinance subject to dispute in the litigation, voluntarily dismissed with prejudice any claims in litigation for compensation, and agreed to waive any potential claim for compensation under any franchise agreement or ordinance expired or in existence on September I, 1999, 10. The statewide average fee per access line by category for each CTP shall be developed only one time, based on all actual base amounts filed by municipalities. Although P. U.C. SuBST. R. 26.467(g) allows updates to municipal filings between March I and April I, 2000, the Commission will not update the statewide average. On March I, 2000, the Commission approved the statewide average fee per access line by category for each CTP. 11. P,U.C. SJBST. R 26.467(g) allows an update period for both municipalities and CTPs. Specifically, P.U.c. SUBST. R. 26.467(g)(l) allows municipalities to update their base amounts and/or allocations, by filing with the Commission no later than March 3 I, 2000. Moreover, a municipality may choose lower access line rates than the maximum rates initially established under P.U.c. SUBST. :". 26.467(1), by notifYing the Commission no later than March 31, 2000. In addition, under P. U,c. SUBST. R 26.467(g)(2), no later than March Implementation ofHB 1777 Order Page 15 of 19 15, 2000, a CTP may request to update its access line count filed with the Commission pursuant to P.U.c. SUBST. R 26.465. P.U.c. SUBST. R. 26.467(g) requires the Commission to establish updated rates for each category of access line ina requesting municipality no later than April 14, 2000. The Commission issued an interim order approving rates on April 12, 2000 for all affected municipalities except those municipalities for which such rates remained in question, 12. Pursuant to 9 283.055(d) of the Local Government Code and P.U.C. SUBST. R 26.467(i), the Commission shall implement a municipality's allocation unless, on complaint by an affected CTP, the Commission detennines that the allocation is not just and reasonable, is not competitively neutral, or is discriminatory. Under P.U.c. SUBST. R 26.467(i), any affected CTP may complain regarding a municipality's initial allocation no later than March 15,2000; complaints regarding a municipality's revised allocation must be filed no later than April 7, 2000. 13. Pursuant to 9 283.05 I (a), Local Government Code, notwithstanding any other law, a CTP that provides telecommunications services within a municipality is required to pay as compensation to a municipality for use of the public rights-of-way within a municipality only the amount determined by the Commission under 9283,055, Local Government Code. Under 9 283.055(c), Local Govemment Code, the rates when applied to the total number of access lines by category in the municipality shall be equal to the base amount. Pursuant to P.U.C. SUBST. R 26.463(i), all municipalities are required to file their base amounts no later than December I, 1999. P.U.c. SUBST. R 26.463(1) provides that the base amount for a municipality that fails to complete its base amount report by December 1, 1999 shall be $0. 14. For purposes of determining the amount of a municipality's right-of-way fee, 9283.053(b), Local Government Code, provides that the base amount is to reflect the total amount received by the municipality from CTPs in 1998 within the boundaries of the municipality. Section 283.055(c), Local Govemment Code, provides that the rates when applied to the total number of access lines by category in the municipality shall equal the base amount. When Implementation of HB 1777 Order Page 16 of 19 municipal boundaries cannot be adequately established, neither a base amount nor a total number of access lines by category can be developed. Accordingly, the Conunission cannot set rates for such municipalities, Municipalities for which rates cannot be developed due to unresolved municipal boundary issues may, upon resolution of such issues, file revised information no later than September I of each year, at which time the Conunission shall develop municipality-specific rates, 15. Municipalities served by CTPs that paid no franchise compensation in 1998 to any of the municipalities served are ineligible to receive franchise compensation under Chapter 283, Local Government Code. Excepting municipalities that were involved in litigation relating to franchise fees during 1998, Chapter 283, Local Government Code, provides three ways for calculating base amount. Under ~~ 283.053(b) and (c)(3), Local Government Code, the base amount is the total amount of revenue received by the municipality from CTPs in 1998. Pursuant to ~ 283,053(c)(l), Local Government Code, the base amount for certain eligible municipalities is an amount not greater than the statewide average fee per line for each category of access line of the CTP with the greatest number of access lines in that municipality, multiplied by the total number of access lines in each category within the boundaries of the municipality. Pursuant to ~ 283.053(c)(I), Local Government Code, the base amount for certain eligible municipalities is an amount not greater than the base amount determined for a similarly sized municipality in the same or an adjacent county in which the CTP with the greatest number of access lines in the municipality is the same for each city. In each option, the calculation of base amount requires actual revenue figures. Therefore, where a CTP paid no franchise compensation in 1998 to any of the municipalities it serves, each such municipality is ineligible to receive franchise compensation under Chapter 283, Local Government Code. IX. Conclusions of Law 1. The Conunission has jurisdiction of this matter under ~~ 283.005, 283.055, and 283.058, Local Government Code, and under ~ ~ 14,001, 14.002, 14.003,52.002 of the Public Utility Implementation of HB 1777 Order Page 17 of 19 Regulatory Act (PURA), codified at TEX. UrIL CODE ANN. 9911.001 - 64.158 (Vernon 1998 & Supp. 2000). 2. The fee per access line rates established by the Commission, when applied to the total number of access lines by category in each municipality, equal that municipality's base amount. 3. The fee per access line rates and the statewide average of those rates by category for each CTP, as established by the Commission, are consistent with, and meet the requirements of, Chapter 283, Local Government Code, and the Commission's rules. 4. The municipal allocations of the base amount over the specific access line categories subject to rates are just and reasonable, competitively neutral and non-discriminatory. 5. Municipalities that did not provide base amount filings to the Commission are not eligible to receive franchise compensation unless and until they file base amount information with the Commission, no later than September I of each year, at which time the Commission shall develop municipality-specific rates. 6. Municipalities for which rates cannot be developed due to unresolved municipal boundary issues may, upon resolution of such issues, file revised information no later than September I of each year, at which time the Commission shall develop municipality-specific rates. 7. Municipalities served by CTPs that paid no franchise compensation in 1998 to any of the municipalities served are ineligible to receive franchise compensation under Chapter 283, Local Government Code. X. Ordering Paragraphs In accordance with these findings of fact and conclusions of law, the Commission orders: Implementation ofHB 1777 Order Page 18 of 19 I. CTPs shall pay to municipalities the approved rates, according to Attachment A, consistent with Chapter 283, Local Govemment Code and Commission rules. 2. Consistent with P.U.C. SUBST. R. 26.43 1 (b), each utility shall notify customers affected by a change in rates. CTPs shall use tariff language and customer notification wording in accordance with Attachment C. To the extent that a CTP wishes to deviate from this approved language, it shall request a good cause exception. The CTP shall indicate in bold print in the cover letter to its compliance filing if it has chosen to deviate from the PUC approved language. 3. CTPs shall file all tariffs and customer notification language necessary to comply with this Order by May 5, 2000 in Project No. 22382. Staff shall issue recommendations on tariff and customer notification filings no later than May 12, 2000. The following timeline shall apply to these compliance filings: May 5, 2000 May 12, 2000 May 18, 2000 May 22, 2000 CTPs file revised tariffs and customer notification language Staff issues recommendations on tariff and customer notification langua ge Office of Policy Development issues final approval Effective date of tariffs and customer notification 4. CTPs shall implement the rates approved in this Order in accordance with Chapter 283, Local Government Code and Commission rules by June I, 2000, but in no event later than July I, 2000. Implementation of HB 1777 Order Page 19 of 19 SIGNED AT AUSTIN, TEXAS the day of April, 2000. PUBLIC UTILITY COMMISSION OF TEXAS PAT WOOD, III, CHAIRMAN JUDY WALSH, COMMISSIONER BRETT A. PERLMAN, COMMISSIONER \\PUCSRVRO I \DA T A \SHARED\opd\Rules\hb I 777-20935\Final rates\df0420.doc 111 0 Legal NOl,ces ORD'NANCE NO. 95-F-17 AN ORD'NANCE WHER, EBY THE C'TY OF SCHERTZ, TEXAS AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERAT- ING ITS TELECOMMUNI, CAT'ONS BUS'NESS. THE TELEPHONE COMPANY SHALL MA'NTA'N AND CONSTRUCT 'TS POLES. W'RES. ANCHORS, FIB, ER, CABLES, MANHOLES, CONDUITS AND OTHER PHYS'CAL PLANT AND APPURTENANCES 'N. ALONG, ACROSS. ON, OVER. THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS, S'DEWALKS. BR'DGES OR PUBLIC PROPERTY IN SAID C'TY; PRESCRIB'NG THE AN- NUAL COMPENSAT'ON DUE THE CITY UNDER TH'S ORD'NANCE; PRE- SCRIB'NG THE COND,- T'ONS GOVERNING THE USE OF PUBLIC RIGHTS, OF,WAY AND THE PER, FORMANCE OF CERT A'N CONSTRUCTION WORK ON PUBLIC R'GHTS,OF, WAY FOR THE TELE, PHONE COMPANY'S TELECOMMUN'CATIONS BUS'NESS; PROV'D'NG AN 'NDEMNITY CLAUSE; SPEC'FYING GOVERN, ING LAWS; PROV'DING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES; PROVID- 'NG FOR FUTURE CON- T'NGENC'ES; PROVID, ING FOR WRITTEN AC, CEPT ANCE OF THIS OR- D'NANCE BY THE TELE- PHONE COMPANY; AND PROVIDING FOR A TERM ANO AN EFFECTIVE DATE. WHEREAS, Southwestern Bell Telephone Company (hereinafter referred to as Ihe 'TELEPHONE COM, PANY") is now and has been engaged in the tele- communications business in the State of Texas and in furtherance thereof, has erected and maintained cer. tain items of its physical p'ant in the City of Schertz, 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 sub- ject to the reasonable exer- cise of the powers granted by and under said laws to the CITY and as reflected in prior Ordinances of the CITY; and WHEREAS, the TELE- PHONE COMPANY has operated its telecommuni~ cations business in the CITY, under success;ve ordinanc- es of the CITY, the last of 11 0 Legal Notices which was Ordinance Number 28, adopted Octob- er 5, 1959, which provided compensation to the CITY for that agreement based upon a percentage of gross receipts received by the TELEPHONE COMPANY from certain services ren- dered within the corporate limits of the CITY; and WHEREAS, certain dis- putes have arisen regarding those prior Ordinances and it is recognized by the par- ties that changes in the telecommunications irx:lustry, changes in technology, changes in state and federal law, and changes in the ac- counting practices man- dated by the Uniform System of Accounts promulgated by the Federal Communications ComrrOssion ("FCC'), along with regulatory requirements of the Texas Public Utility Commission ("PUC"), have caused the traditional method of deter- mining the amount of com- pensation to municipalities to become administratively impractical for telecom- munications utilities. In or- der to resolve these issues in a manner satisfactory to both the C'TY and the TEL- EPHONE COMPANY. the C'TY and the TELEPHONE COMPANY have chosen the method of determining the amount of compensation provided for in this Ordi- nance to eliminate the ex- pense and time related to audits, to achieve adminis- trative simplicity, to provide the CITY with predictable revenues and &.n opportunity lor growth and to avoid the expense and delays of further litigation which otherwise would be necessary to resolve the issues in controversy between the parties; and WHEREAS, it is to the mu- tual advantage of both the CITY and the TELEPHONE COMPANY that an agree- ment should be entered into between the TELEPHONE COMPANY and the C'TY establishing the conditions under which the TELE- PHONE COMPANY shall maintain and construct its physica' p'ant in the CITY in the future; NOW, THEREFORE, BE 'T ORDA'NED BY THE C'TY COUNCIL OF THE CITY OF SCHERTZ. TEXAS, THAT: SECTION I-PURPOSE Pursuant to the laws of the State of Texas, the CITY Charter and this Ordinance, tMe TELEPHONE COMPA- NY has the NON-EXCLU- SIVE right and privilege to USE the public RIGHTS- OF,WAY in the C'TY for 11 0 Legal Notices the operation of a telecom- munications system subject to the restrictions set forth herein. The TELEPHONE COMPANY may USE such R'GHTS-OF-WAY for its telecommunications FACIL- IT'ES. The TELEPHONE COMPANY'S FAC'LlTtES and TRANSM'SS'ON ME- DIA used in or incident to the provision of telecommuni- cations service and to the maintenance of a telecom- munications business by the TELEPHONE COM- P ANY in the CITY shall remain as now constructed, subject to such changes as under the conditions prescribed in this Ordinance may be consid- ered necessary to the public health and safety by the CITY in the exercise of its lawful powers and such changes and extensions as may considered necessary by the TELEPHONE COM, PANY in the pursuit of its telecommunications busi- ness. The terms of the Or- dinance shall apply through- out the CITY, and to all op. erations of the TELEPHONE COMPANY within the CITY, and shall include all operations and FACILITIES used in whole or in part in the provision of telecom- munications services in newly annexed areas upon the effective date of any an- nexation. SECTION 2- ADDITION- AL AUTHORITY RE- QUIRED The TELEPHONE COM, P ANY is not authorized to provide cable television service as a cable operator in the CITY under this Ordi- nance, but must first obtain a franchise from the CITY for that purpose, under such terms and conditions as may be required by law. SECTION 3- DEFINITIONS Whenever used in this Ordi. nance, the following words and terms shall have the definitions and meanings provided in this Section: (a) FACILITIES: all TELE, PHONE COMPANY duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurt. enances and all associated TRANSMIS- SION MED'A. (b) USE: the TELEPHONE COMPANY's acquisition, construction, reconstruction, maintenance or operation of any FACILITIES in, over, under, along, through or across the public R'GHTS- OF-WAY, for any telecom- munications purpose what- soever. (c) CITY: The City of Schertz, Texas. 11 0 Legal Notices (d) R'GHTS,OF,WAY: all present and future streets, avenues, highways, alleys, bridges and public ways within the city limits of the CITY, (e) TRANSM'SSION ME- DIA: aft TELEPHONE COMPANY cables, fibers, wires or other physical de- vices used to transmit and! or receive communication signals, whether analog, digital or of other character- istics, and whether for voice, data or other telecommuni- cations purposes. (~ NON,EXCLUS'VE: no rights provided in this Ordi- nance by the CITY shalt be exclusive, and the CITY re- serves the right to grant franchises, licenses, ease- ments 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. (g) TELEPHONE COMPA, NY: Southwestern Bell Tel. ephone Company. (h) ST'PULAT'ON AND SETTLEMENT: As filed by the Settlement Class and Settling Defendants in con- nection with Cause No. 0- 142,176 in the 136th District Court of Jefferson County, Texas. SECTION 4 - TERM (a) Subject to Paragraph 4(b) below, this Ordinance shall continue for a period of five (5) years from the ef- fective date hereof; provided that at the expiration of the initial period, such term shall be automatically ex- tended for successive peri- ods of one (1) year, unless written notice of intent to ter- minate this agreement is given by either party not less than ninety (90) days prior to the expiration of the then current period. When such notice is given, this agree- ment shall terminate at the expiration of the then current period. (b) Notwithstanding the term set out in Paragraph 4(a) above, this Ordinance shall terminate if Final Ap- proval does not occur as set forth in the STIPULAT'ON OF SETTLEMENT. SECTION 5 - SUPER- VISION BY CITY OF LO- CATION OF POLES AND CONDUITS All poles p'aced shall be of sound material and reason. ab'y straight, and shail be set so that they will not in- terfere 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 CITY shall have the 0p- tion, but not the obligation, to exercise any and all lawful, reasonable and 11 0 Legal Notices - proper control related to the location and route of a! 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. SECTION 6 - A IT ACH- MENTS TO POLES AND SPACE IN DUCTS Nothing contained in this Ordinance shall be con- strued to require or permit any pole attachments for electric light or power wires or communications facilities or systems not provided by the TELEPHONE COMPA- NY to be attached to the TELEPHONE COMPANY'S poles or other physical plant or placed in the TELE. PHONE COMPANY'S con- duit. 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 communication facili. ties or systems not provided by the TELEPHONE COM- PANY in any TELEPHONE COMPANY duel. then a fur- ther separate, non- contingent agreement shall be prerequisite to such aUachment(s) or such use of any duct by the CITY. Nothing contained in this Ordinance shall ob- ligate or restrict the TELE- PHONE COMPANY in ex- ercising 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 wiring-using companies whtch are au- thorized to operate in the C'TY. SECTION 7-STREETS TO BE RESTORED TO PRE- EXISTING CONDITION The surface of any street, alley, avenue, highway or public place distUlbed by the TELEPHONE COMPANY in building, constructing, re- newing or maintaining its telecommunications system shall be restored within a reasonable time after the completion of the work to as good a condition as before the commencement of work and maintained to the satis- faction of the City Councilor of any city official to whom such duties have been or may be delegated for one (1) year from the date the sur~ face of said street, alley, avenue, highway or public place is broken for 'such construction or maintenance work, after which lime re- sponsibility for the. main- tenance shall become thA , ,1 0 Legal Nolices duly of the CITY; provided, howpver, that the TELE- PHONE COMPANY shall not take up or excavate any pavement at any time with- t'ut first securing permis- SIon, in writing, of the City Manager or his nominee ex- cepl in cases of emergen- cies; and provided further, thai all excavation and in- stallation so made shall be performed in such a manner as will cause the least in- convenience to the public. No street. alley, avenue, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work. SECTION 8-TEMPORARY REARRANGEMENT OF AERIAL WIRES Upon request, the TELE- PHONE 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 ex- pense of such temporary rearrangements shall be paid by the party or parties requesting them, and the TELEPHONE COMPANY may require payment in ad- vance. The TELEPHONE COMPANY shall be given not less than forty-eight (48) hours advance notice to ar- ange for such temporary l earrangements. SECTION 9- TREE TRIM- MING 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 coming 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 un- der the supervision and di- rection of the CITY or of any CITY official to whom said duties have been or may be deleaated. SECTION 111-lNDEMNIFY THE TELEPHONE COM- PANY SHALL INDEMN~ TY AND HOLD THE CITY HARMLESS FROM ALL COSTS, EXPENSES (IN- el UOING .6.TTORNFV'S 11 0 Legal Nolices 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 RIGHTS-OF-WAY within the CITY, except the usual general ad valorem taxes, special assessments in ac- cordance with State law or sales taxes now or hereafter levied by the CITY in accor- dance with State law, the CITY hereby imposes a Charge upon the Gross Re- ceipts (as hereinafter de- fined) of the TELEPHONE COMPANY. The amount of the Charge for the first year this Ordinance is in effect shall be $40,000.00. In no event shall such Charge be less than the above amount for each year this Ordinance is in effect, except as pro- vided in the case of disan- nexation as set forth in paragraph 12(e), or as provided in Section 16 herein. The TELEPHONE COM- PANY will, according to tar- iff, bill such Charge to the customers billed the cus- tomer service charges in- cluded within the term "Gross Receipts," as de- fined herein. Gross Re- ceipts, for the purposes of this Charge, shall include only customer service charges which meet all four of the following conditions: (1) such charges are for TELEPHONE COMPANY services provided within the CITY; (2) such charges are billed through the TELE- PHONE COMPANY'S Customer Records Infor- mation System ("CRIS"); (3) such charges are tha re- curring charges for the local exchange access rate ele- ment specified in the TELE- PHONE COMPANY'S tar- iff's fi'ed wijh the PUC; and (4) such charges are subject to an interstate end user common line (-EUCL-) charge as imposed by the Federal Communications Commission (the "FCC-). For the second and subse- quent years while this Ordi- nance remains in effect, the above Charge is subject to adjustment by application of the Growth Factor set out in paragraph 12(c). This ad- justment for the Growth Factor will be made effec- livp. A!!':. of p::!och AnnivAr~rv 11 0 Legal Nolices tion is completed, the TELE- PHONE COMPANY wi'l provide the CITY with the Sales Tax Revenues upon which the Growth Factor calculation was based. The CITY agrees to rely upon audits by the Texas Comptroller of Public Ac- counts of state sales taxes as reported by the TELE- PHONE COMPANY in compliance with Sections 151.023 and 151.027 of the Texas Tax Code Annotated. The Growth Factor shall be recomputed to reflect any final, nonappealable adjust- ments made pursuant to an audit finding by the Texas Comptroller of an inaccura- cy in the TELEPHONE COMPANY'S reports of revenues subject to state sales taxes. The Charge shall be recalculated using the Growth Factor recom- puted as specified in the preceding sentence, and the recalculated Charge shall be used for all future calculations required by this Ordinance. Any ove- rpayment or underpayment resulting from such recalculation shall be subtracted from or added to the first installment due the following year. If any overpayment or underpay- ment shall be due during the final year of this Ordinance, then payment shall be made as follows. In the case of overpayment by the TELE- PHONE COMPANY, the CITY shall pay such over- payment to the TELE- PHONE COMPANY within 150 days following the expi- ration of this Ordinance and, in the case of underpayment by tha TELEPHONE COM- PANY. the TELEPHONE COMPANY shall pay such underpayment to the CITY within 150 days following the expiration of this Ordinance. (d) Such payments shall not relieve the TELEPHONE COMPANY from paying all applicable municipally- owned utility service charg- es. Should the CITY no have the legal power to agree that the payment of the foregoing Charge shall in lieu of the taxes, licenses, charges, R'GHT5-QF,WAY permit or inspection fees, renta's, RIGHTS-OF-WAY easements or franchise l::!o)(p!!::. ::!oforP.AAirt thAn thP. r.itv 11 0 Legal Notices all future calculations required by this Ordinance. SECTION 13-ASSIGN- MENT OF ORDINANCE This Ordinance and any rights or privileges hereun- der 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. SECTION 14-MUTUAL RELEASES Upon Final Approval, as defined in the STIP- ULA TION OF SETTLE- MENT, 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 Onlinance No 28, adopted October 5, 1959, and renewed or extended from time to time thereafter, and its predecessor ordinances, if any (hereinafter referred to collectively as -Ordinance 28"). This full and complete release of claims for any matters under Ordinance 28 shall be for the benef~ of Southwestern Bell Tele~ phone Company; its parent; its affiliates; their directors, officers, attorneys and emptoyees; su~ssors and assigns; and irdudes any and all claims, actkms, causes of action and controversies, presently known or un- known, arising directly or indirectly out of or connected with the TELEPHONE COMPANY'S obligations to the CITY pursuant to the provisions of Ordinance 28. Upon Final Approval as de- fined in the ST'PULATlON OF SETTLEMENT, South- western Bell Telephone Company, its parent, its af- filiates, successors and as- signs hereby fully release, discharge, settle and com- promise 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, attor- neys or its employees, aris- ing out of or connected with any matters under Ordi- nance 28. II i!!::. Ihl'! intpnt nf thp r.ITV 11 0 Legal Notices I , ) such conflict only, which ~ repeal shall take effect at the ) time and on the date sped- j fied in the preceding sen- Il tence. SECTION 17-FUTURE ~ CONTINGENCY ,I (a) Notwithstanding Ii anything contained in this II Ordinance to the contrary, in ~ the event that (a) this ( Ordinance or any part 'l hereof, (b) any tariff provision by which the TEL- j EPHONE COMPANY 'I seeks to collect the Charge ~ imposed by this Ordinance, J or (c) any procedure provid- II ad in this Ordinance, or (d) .) any compensation due the ~ CITY under this Ordinance, :I becomes, or is declared or I' determined by a judicial ad- :) ministrative or legislative ~ authority exercising its ju- risdiction to be excessive, j unrecoverable, unenforce- able, void, unlawful or other- f wise inapplicable, in whole ,:I or in part, the TELEPHONE d COMPANY and C'TY shall J meet and negotiate a new:) ordinance that is in com- II pliance with the authority's 1. decision or enactment and, U unless explicitly prohibited, :) the new ordinance shall 'J provide the CITY with a level :::I of compensation com- ~ parable to that set forth in this Ordinance provided that ~a such compensation is recoverable by the rL TELEPHONE COMPANY d in a mutually agreed '^ manner permitted by :) law for the unexpired portion :::> of the term of this Ordi-.:I nance. 'J (b) Notwithstanding n anything contained in the ~ preceding paragraph to the. contrary, the C'TY and ~ TELEPHONE COMPANY N agree that in the d event this Ordinance is sub- d mitted for review to any court in which the currently ~ existing case styled City of V Port Arthur, et al v. Southwestern Bell Tele- d phone Company, et ai, "t 2'1 Cause No. D142,176 in the B) 136th Judicia' Court. Jeffer- At, ~on County, Texas is pend- St. lng, the CITY and TELE- PHONE COMPANY agree to take any and aU actions reasonably necessary to obtain approval and ratification of the Ordinance by the court. SECTION 18-GOVERNING law FFES) AND DAMAGES TO PERSONS OR PROP- ERTY ARISING D'RECT- L Y OR INDIRECTLY OUT OF THE CONSTRUC- i ION, MAINTENANCE OR OPERATION OF THE TELEPHONE COMPA- NY'S FACILITIES LO- CA TED WITHIN THE PUBLIC RIGHTS-OF- WAY FOUND TO BE BASED SOLELY BY THE NEGLIGENCE OF THE TELEPHONE COMPANY. This provision is not intend- ed to create a cause of ac- tjon or liability for the benefit of third parties but salety for Ihe benefit of the TELE' PHONE COMPANY and the CITY; nor is this provision intended to abrogate the common law or statutory rights of either the CITY or Ihe TELEPHONE COMPA- NY to indemnity or contribu- tion from the other. SECTION 11-ADMINIS- TRATION OF ORDI- NANCE (a) The CITY may, at any time, make inquiries per- taining to this Ordinance and the TELEPHONE COMPA- NY shall respond to such in- quiries on a timely basis by providing information which is prepared, maintained and available in the ordinary course of business. (b) Copies of specifically identified petitions, applica- tions, communications and reports submitted by the TELEPHONE COMPANY to the Federal Communica- tions Commission or the Public Utility Commission of Texas shall be provided to the CITY upon request. (c) The C'TY may establish, after reasonable notice, such rules and regulations as may be appropriate for the administration of this Ordi- nance and the construction of the TELEPHONE COM- PANY'S FACILITIES on CITY property to the extent permitted by law. SECTION 12-COMPEN. SA TlON TO THE CITY (a) As compensation for the use, occupancy, oversight, supervision and regulation of Ihe CITY'S RIGHTS-OF- WAY and for any other con- skleration provided by the CITY under this agreement, and in lieu of and in full compensation for any lawful tax or Ik:snse or charge or RIGHT -DF-WA Y permn fee or inspection fee, whether charged to the TELEPHONE COMPANY date of this Ordinance. The TELEPHONE COM, P ANY shall adjust its bill- ings to customers to account for any undercollection or over. collection of the Charge due the CITY. (b)The Charge for each year shall be paid in four (4) equal payments. The first payment under this Ordi- nance shall be due on the last day at the fifth month following the effective date hereof I with subsequent payments due on the last day of each third successive month thereafter during the tann of this Ordinance. In the event of any over or un- dercollection from custom. ers at the expiration of this Ordinance, the TELE- PHONE COMPANY may make a pro rata one-time credit or charge to the cus- tomer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 12(a). This will be accomplished within 150 following the date of expiration of this Ordinance. If however, it is impractical to credit any overcollection to customers, then such overcollection shall be paid to the C'TY. (c) The Growth Factor shall be calculated by dividing the TELEPHONE COMPANY'S revenues within the corpo- rate limits of the CITY sub- ject to state sales taxes (-Sales Tax RevenuesU) for the twelve month period ending three (3) months prior to the next anniversary date of this Ordinance by the Sales Tax Reve'1ues for the twelve month period ending three (3) months prior to either the initial effective date or the preceding anniversary date of this Ordinance, as applicab'e. The Growth Factor calculated by the method set fort~ in the preceding sentence, n great- er than one, shall be multi- plied by the curtent year's Charge to determine the do'lar amount of the Charge for the next year. If the Growth Factor calculated above e is one or less, the Charge for the next year shall be equal to the current yea(s Charge. The TELE- PHONE COMPANY wiff adjust its customer billing to account for the Growth Fac- tor calculated above. Once the Growth Factor calcula- agrees that it will apply so much of such payments as may be necessary to the satisfaction of the TELE- PHONE COMPANY'S obli- gation, if any, to pay any such taxes, licenses, charg. es, RIGHTS.OF.WAY per. mit or inspection fees, rentals, AIGHTS,OF,WAY easements or franchise tax- es. (e) In the event that either (1) territory within the boun- daries of the CITY shall be disannexed and a new in- corporated municipality created which includes such territory or (2) an entire, ex- isting incorporated munici- pality shall be consolidated or annexed in to the CITY, then notwithstanding any other provision of this Ordi- nance, the Charge shall be adjusted. To accomplish this adjustment, within thirty days following the action ef- fecting a disannexationlan- nexalion as described above. the C'TY shall pro- vide the TELEPHONE COMPANY with maps of the affected area(s) showing the new boundaries of the CITY. In the event of an annexation as described above, the Charge for the CITY will be adjusted to include the amount of the payment by the TELEPHONE COMPA- NY to the existing incorpo- rated municipality being an- nexed.ln the event th~t the annexed municipality had no ordinances imposing a Charge on the event of a disannexation, the adjust- ment to the Charge will ba calculated using the effective date of the imposition of Local Sales Taxes as deter- mined by the Texas Comp- 'troller of Public Accounts. The adjustment shall be the percent increase/decrease in the TELEPHONE COM- PANY'S Gross Receipts as defined herein for the CITY for the first calender month following the Local Sales Tax effective date compared to the last month prior to such affective date. This ad- justment to the Charge will be made on the first day of the second month following the Local Sales Tax effective date and the adjusted Charge shall be prorated form that date through the remeinder of the payment year. The Charga as adjusted shall be used for ~- th pi, and the TELEPHONE (a) This Ordinance shall be COMPANY to enter into the construed in accordance foregoing mutual releases in with the CITY Charter and order to reach a compro- CITY Code(s) in effect on mise that is acceptable to the date of passage of this both the CITY and the TEL-Ordinance to the extent that m EPHONE COMPANY. This Charter and Code(s) are not 01 Ordinance and the mutual in conflict with or violation of I re'eases set forth in this the Construction and laws of , ;: Section represent a com- the United States or the 0 promise of each party's State of Texas, claims as well as each par. (b) This Ordinance shall be ty's defenses, and is not in- construed and deemed to n Ii tended to be and is not an have been drafted by -the admission of liability or vul. combined efforts of the nerability by either party to CITY and theTELEPHONE the other with respect to COMPANY. either the ciaims orthe de- SECTION 19-ACCEPT- fenses asserted against the ANCE OF AGREEMENT other, AND EFFECTIVE DATE '~ SECTION 15-ADOPTION The CITY shall deliver a ' OF STIPULATION OF properly certified copy of I SETTLEMENT this Ordinance to the TELE- - The CITY hereby adopts. PHONE COMPANY within I ratifies, confirms, and three (3) working days of its; agrees to be bound by the final passage. The TELE- ' terms 01 the STIPULATION PHONE COMPANY shall ! OF SETTLEMENT in file its wriUen 'acceptance of Cause No. D-142,176 in this Ordinance in accor- the 136th Judicia' District dance with th~ STIPULA- Court in and lor Jefferson TION OF SETTLEMENT. County, Texas (the "Class This Ordinanc;:e shall be- Litigation-), in its entirety, in come become effective be~ all' respects as if the CITY ginning on the first day of the were an original signatory first calender month which thereto. The CITY begins not less than thirty acknowledges that as a (30) days after entry of judg~ member of the Set~ ment, as defined in the t'ement C'ass in the Clas STIPULATION OF SET- Litigation it has received TlEMENT. and reviewed the PASSED AND STIPULATION OF APPROVED SETTLEMENT and that the the 6th day of July, 1995. CITY has had access to Norma Althouse, andlor has consulted coun- City Secretary sel, to the extent that it de- ~ sired to do so, in connection CAUSE NO. 95-045&-CV with ns avaluation 01 the CITATION BY STIPULATION OF SET- PUBLICATION TLEMENT, THE STATE OF TEXAS SECTION 16-REPEAL OF TO: Andrew Newton Cach- CONFLICTING ORDt- ran, Jr. NANCES AND AGREE- Rt. 1, Box 56 MENTS Martinda'e, Texas Ordinance Number 28 Defendant, Greeting: adopted October 5, t 959, is -You have been sued. You hereby repealed; provided, may employ an allorney. If however, such repeal shall you or your aUomey do not take effect at 11 :59 p.m. on I file a wriUen answer with the the day immediately pre- I, clerk who issued this cita- ceding the effective date! tion at or before 10:00 specified in the Section of I o'clock a.m. of the first this Ordinance entitled - Af;- Monday after the expiration CEPTANCE OF AGREE- of forty-two days Irom the MENT AND EFFECTIVE date of the issuance 01 this ~ATE:: The final payment I citation, same being Mon- (InclUding payment lor any I day, the 3rd day of August, partial year) under Ordl- 1995 a defauh judgment nance 28 shall be due 60 I' '_ d f II . th ff ct' may be taken against you. ays 0 owing e e e Ive d t f thO Ord' In the above numbered a eo. IS . Inance, as cause, styled, set out In SectIOn 19 hereof, ALFREDO ESQUtVEL VB. All other ordinances and 3-D WELDtNG AND IN. agreements and parts of or- dinances and agreements in DUSTRIAL SUPPL V,INC., conflict herewith are also AND ANDREW NEWTON repealed to the extent of , COCHRAN, JR. , Said Plantiffs PLAINTIFF'S m I c I 11 0 L Jal Nolices ORDINANCE NO, 95-F-17 AN ORD'NANCE WHER, EBY THE C'TY OF SCHERTZ, TEXAS AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERAT- 'NG 'TS TELECOMMUN', CATIONS BUSINESS, THE TELEPHONE COMPANY SHALL MA'NTAIN AND CONSTRUCT 'TS POLES. WIRES. ANCHORS, F'B- ER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN. ALONG, ACROSS. ON, OVER. THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS. AVENUES, H'GHWAYS, ALLEYS, SIDEWALKS. BR'DGES OR PUBLIC PROPERTY 'N SA'D C'TY; PRESCR'B'NG THE AN- NUAL COMPENSATION DUE THE C'TY UNDER TH'S ORD'NANCE; PRE, SCR'B'NG THE COND'- T'ONS GOVERN'NG THE USE OF PUBLIC R'GHTS- OF-WAY AND THE PER- FORMANCE OF CERTAIN CONSTRUCTION WORK ON PUBLIC R'GHTS-OF- WAY FOR THE TELE- PHONE COMPANY'S TELECOMMUNICAT'ONS BUS'NESS; PROVIDING AN INDEMNITY CLAUSE; SPEC'FYING GOVERN, ING LAWS; PROVID'NG FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES; PROV'D- 'NG FOR FUTURE CON- T'NGENC'ES; PROV'D- 'NG FOR WR'TTEN AC- CEPTANCE OF THIS OR- D'NANCE BY THE TELE- PHONE COMPANY; AND PROVIDING FOR A TERM AND AN EFFECT'VE DATE. WHEREAS, Southwestem 11 0 Legal Not,ces Bell Telephone Company (hereinafter referred to as the "TELEPHONE COM- PANY") is now and has been engaged in the tele. communications business in the State of Texas and in furtherance thereof, has erected and maintained cer- tain items or its physical plant in the City of Schertz, 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 sub- ject to the reasonable exer- cise of the powers granted by and under said laws to the CITY and as reflected in prior Ordinances of the CITY; and WHEREAS, the TELE- PHONE COMPANY has operated its telecommuni- cations business in the CITY under successive ordinanc- es of the CITY I the last of which was Ordinance Number 28, adopted Octob- er 5, 1959, which provided compensation to the CITY for that agreement based upon a percentage of gross receipts received by the TELEPHONE COMPANY from certain services ren- dered within the corporate limits of the CITY; and WHEREAS, certain dis- putes have arisen regarding those prior Ordinances and it is recognized by the par- ties that changes in the telecommunications industry, changes in technology, changes in state and federal law, and changes in the ac- counting practices mandated by the Uniform System of Accounts promulgated by the Federal Communications Comrrission ("FCC"), a'ong with regulatory requiremenlS of the Texas Public Utility Commission rpUC~), have caused the traditional method 01 deter- mining the amount of <Xlm- _tton to municipalities to beoome admlnlslratively Impractical for telecom- munications utIlnies. In or- der to reooIve these Issues In a mamer sall8factory to both the CITY and the TEL- EPHONE COMPANY, the CITY and the TELEPHONE COMPANY have chosen the meIhod d _no .'91he amount of compansatlon provided for In lhIa Ord~ nance to eliminate the ex- _ and time related to audits, to achieve admlnls-' tralIve simplicity, to provide the CITY with pnKlictable ~venues and an ~.lorglDWth and to avoid the expense and . delays 01 funher litigation which otherwise would be n8cessary to resolve the Ilsues In controversy between the panles; and WHEREAS, tt Is to the mu- tual edvantage 01 both the CITY and the TELEPHONE COMPANY that an sgree- ment should be entered Into 11 0 Legal Notices between the TELEPHONE COMPANY and the CITY establishing the conditions under which the TELE- PHONE COMPANY shaff maintain and construct its physical plant in the CITY in the future; NOW, THEREFORE, BE IT ORDA'NED BY THE C'TY COUNC'L OF THE C'TY OF SCHERTZ, TEXAS, THAT: SECTION I-PURPOSE Pursuant to the laws of the State 01 Texas, the C'TY Charter and this Ordinance, lhe TELEPHONE COMPA- NY has the NON-EXCLU- SIVE right and privilege to USE the public R'GHTS- OF-WAY in the C'TY lor the operation of a telecom- munications system subject to the restrictions set forth herein. The TELEPHONE COMPANY may USE such RIGHTS-OF-WAY for its telecommunications FACIL- IT'ES. The TELEPHONE COMPANY'S FAC'L1T1ES and TRANSMISS'ON ME- DIA used in or incident to the provision of telecommuni- cations service and to the maintenance of a telecom- munications business by the TELEPHONE COM- P ANY in the CITY shaff remain as now constructed, subject to such changes as under the conditions prescribed in this Ordinance may be consid- ered necessary to the public heaffh and safely by the CITY in the exercise of its lawful powers and such changes and extensions as may considered necessary by the TELEPHONE COM- P ANY in the pursuit of its telecommunications busi- ness. The terms of the Or- dinance shalf apply through- out the C'TY, and to aff op- erations of the TELEPHONE COMPANY within the CITY, and shalf include IIll operations and FACIUTIES used In whole or In pan in the provision of teIecanuTu-.s_ in newty anne~ed areas upan the eIIecIMI dele of 8lf'J annexation. SEcnON 2- ADDITION- AL AUTHORITY RE- QUIRED The TELEPHONE COM- PANY Is not auth0ri2ed to provide cable t....lSlon servic8 88 a cable operator In the CITY underthls 0rdI- nance, but mUlllllrsl obIain a franchise from 1he CITY for tha1 purpose, under 'SUCh terms and conditione sa may be requlnKl by law. SECTION.3- DEFINI110NS Whenever used In thIS 0rdI- nance, the following wonls and terms shall have the definltlons and meanings provided In thIS SectIon: (a) FACIUTES: all TELE- PHONE COMPANY duct spaces, manhofes, poIee, conduits, underground and overhead passageways, and other equIpment, structures and appur. tenances and aU 11 0 Legal Notices associated TRANSMIS- SION MEDIA. (b) USE: the TELEPHONE COM P ANY's acquisition, construction, reconstruction, maintenance or operation of any FAC'L1TIES In, over, under, along, through or across the public RIGHTS- OF-WAY, for any telecom- munications purpose what- soever. (c) C'TY: The Cily of Schertz, Texas. (d) RIGHTS,OF.WAY: ell present and future streets, avenues, highWays, alleys, bridges and public ways within the city limits of the C'TY. (e) TRANSMISSION ME- DIA: all TELEPHONE COMPANY cables, fibers, wires or other physical de- vices used to transmit andf or receive communication signals, whether analog, digital or of other character. istics, and whether for voice, data or other telecommuni- cations purposes. (n NON-EXCLUSIVE: no rights provided in this Ordi- nance by the CITY shall be exctusive, and the CITY re-- serves the right to grant franchises, licenses, ease- ments or permissions to use the pub'ic RIGHTS.QF- WAY within the CITY to any person or entity as the CITY, in its sole discretion, may determine to be in the public interest. (g) TELEPHONE COMPA- NY: Southwestem Bell Te'- ephone Company. (h) STIPULATION AND SETTLEMENT: As filed by the Settlement Class and Settling Defendants in con-- nection with Cause No. [).. 142, 176 In the 136th District Court of Jefferson County, Texas. SECTION 4 - TERM (0) Subject to Paragraph 4(b) be'ow, this Ordinance shall continue for a perlod of five (5) yeal1l from the eI- Iective date IteIwof; provided that at the 8lIpIratton of llIe Inttlal period, SuClh Ienn shall be aulllmat~ ex- tended for SUCClIIIl!Ive perl- ods of one (1) year,_ wrtt1en _ of Intent to ter- minate lhIa eg_nt IS given by _ paI1y not Iesa than ninety (90) days prior to the expiration of the lhen current period. When SUCh notlc.18 givan, thIS agree- ment .haN tennlnate.at the expiration 01 the lhen current period. (b) Notwtthatandlng the teRn sot out In Paragl1lph 4(a) above,thIe 0ldInance 'shall terminate If FfnaI Ap- proval does not occur 88 set forth in the STIPULATION OF SETTLEMENT. SECTION 5 - SUPER- VISION BY CITY OF L0- CATION OF POLU AND CONDUITS All poles placed shall be of sound material and """""'" ably streight, and shall be set SO that they wtll not In- temre with lhe flow of water In any gutter or dreIn, and so 11 0 Legal Notices that the same will not unduly interfere with ordinary travel on the streets or sidewalks. The C'TY shaff have the op- tion, but not the obligation, to exercise any and all lawful, reasonable and proper control related to the location and route of all poles, stubs, guys, anchors, conduits, fiber and cables pIaoed and consIructed by \he TELEPHONE COMPANY in the construction and maintenance of its telecommunications system In the CITY. SECTION 6 - ATTACH- MENTS TO POLES AND SPACE IN DUCTS Nothing contained in this Ordinance shall be con- strued to require or permit any pole attachments for electric light or power wires or communications facilities or systems not provided by the TELEPHONE COMPA- NY to be attached to the TELEPHONE COMPANY'S poles or other physical p'ent or placed in the TELE- PHONE COMPANY'S con- duit. If the CITY desires pole ettachmentslor 8Iectric light or power wires or communications facilities or systems not provided by the TELEPHONE COMPANY, or if the CITY desires to place communication facili- ties or systems not provided by the TELEPHONE COM- PANY In any TELEPHONE COMPANY duct, then a fur- ther separate, non. contingent agreement shall be prerequisite to such attachment(s) or such use of any duct by the CITY. Nothing contained in this Ordinance shall ob- ligate or restrict the TELE- PHONE COMPANY In ex- ercising its rights voluntarily to enter into pole attachment, pole usage, joint ownership or other wire space or lacllttles agreemenl. wtth tight and/or power COIlIp8I1iee or with other wtllog.-Ullng COIIlp8niM _.are .... tholtzed to operate In the CITY. SECTION 7-8TREETS TO BE RESTORED TO PRE- EXISTING CONDIl1ON .The surface of any street, alley, avenue, hIghWay or po&lIic place dI8Iurbed by 1he TELEPHONE COMPANY In IlUIIdIng, oonstrllCting, re- Mwtng or maInlaining tts IllleCoQlmwlicatlollllyste", shall be rutored within a reuonable time after the compIeIIon of the ~ to. 88 good . condIIlon sa beI<lj"e 1he~of_ and rnaintaIned to the satIa- f8ctIon of the CIIY CouncIl or of any city offictal to whom ouch dutiee have been or may be delIgaIId bone (1) Y8II from lhe datlt the sur- '- of IIl!kI *-I. alley, avenue, highway or public pIace.18 broken lor ouch 00I1Ilru!:tl0n or rnaintenence work, after which time re- sponsibility lor the main- tenance shall becofne the 11 0 Legal Nollces 11 0 Legal Notices duty 01 the C'TY; provided, PHONE COMPANY and the however, that the TELE- CITY; nor is this provision. PHONE COMPANY shall intended to abrogate the not take up or excavate any common law or statutory pavement at any time with- rights of either the CITY or oct first securing permis- the TELEPHONE COMPA- sion, in writing, of the City NYtoindemnityorcontribu. Manager or his nominee ex- tion from the other. cept in cases of emergen- SECTION l1-ADMINI8- cies; snd provided further, TRATION OF ORDI- that ell excavation and In- NANCE stellation so made sheff be (a) The C'TY may, at any performed in such a manner time, make inquiries per~ as will cause the least in- taining to this Ordinance and convenience to the pub'ic. the TELEPHONE COMPA- No street, alley, avenue, NY shall respond to such in- highway or public place qulries on a timely basis by shall be encumbered for a providing information which longer period than shall be is prepared, maintained and necessary to execute the available in the ordinary work. course of business. SECTION 8-TEMPORARY (b) Copies of specifically REARRANGEMENT OF Identified petitions. app'ica- AERIAL WIRES tions, communications and Upon request. the TELE- repons submitted by the PHONE COMPANY shall TELEPHONE COMPANY remove or raise or lower its to the Federal Communica- aerial wires, fiber or cables tions Commission or the temporarily to permit the Public Utility Commission moving of houses or other of Texas shall be provided bulky structures. The ex- to the CITY upon request. pense 01 such temporary (c) The CITY may establish, rearrangements shall be after reasonable notice, paid by the party or panies such rules and regulations as requesting them. and the may be appropriate for the TELEPHONE COMPANY administration of this Oldl- may require payment in ad- nance and the construction vence. The TELEPHONE 01 the TELEPHONE COM- COMPANY shall be given PANY'S FACILITIES on not 'ass than lorty-elghl (48) CITY proparty to the extent hours advance notice to ar. permitted by law. range lor such temporary SECTION 12-COMPEN- rearrangements. SA TION TO THE CITY SECTtON 9-TREE TRIM- (a)Ascompensatlonlorthe MING use, occupancy, oversight, The right, license, privilege supervision and regulation of and permission is hereby the CITY'S R'GHTS-OF- granted to the TELEPHONE WAY and for any other <XlI>- COMPANY, tts contractol1l sideratlon provided by the and agents, to trim trees CITY under this agreement, upon and overhanging the and in lieu of and in full streets, avenues, highways, compensation for any lawful alleys, sidewalks and public tax or license or charge or places 01 the CITY so es to R'GHT .QF-WA Y perm" fee prevent the branches of or inspection fee, whether such trees from coming in charged to the contact wtth the eerial wires. TELEPHONE COMPANY fiber or cables of the or its contractor(s), or any TELEPHONE COMPANY, RIGHT-OF-WAY easement and wtien so dhllcted by 1he or _ or alley rental or Crrv;eeldtrtmmlngshallbe lranchlee tax or other _ under the IllpefVisIoo oIlaraCler of oIlarge and dktctlon of the ClTYor for.... end 0flCI4l8IlCY of the ofanyClTYoftIcfaItowhom RIGHTs-OF-WAY within seldcUa.twwbeenormey the CITY, axcept the usuaJ be delegated. general ad vaIonlm taxes, SEC11ONl_DEIiINIFY special_mente in ac- THE' TELEPHONE COM- _ wtth State law or PIIHY 8HALL INDEIIIO- ___or'-lter TY AND HOLD. THE CITY levied by the CITY In accor- HARMLESS FROM ALL dance wtth S1ate law, the . COSTS, EXPENSES (IN- CITY hereby imposes a CLUDlNG A TTORNEY'SCharge upon the GIIl88 Re- FEES) AND DAMAGES ceipte (88 hereinaner de- TO PERSONS OR PROp. fined) of the TELEPHONE ERTY ARISING DIRECT. COMPANY. The amount of L Y OR INDIRECTLY OUT the Charge for the firsl year OF. THE CONSTRUe- thIa Onllnenoa Ie In effect nON, MAlN""'''NCE shaD be $40,000.00. In no OR OPERATION OF THE event sheti SUCh Charge be TELEPHONE COMPA- _thantheeboveamount NY'S FAClUnES LQ- for each y8arthls OrdInance CA TED WITHIN THE ie In effect, except 88 pro- P,",UC RIGHTS-OF- vided In the case of dIsan- WAY FOUND TO.,. naxatIon. as set forth In IIA11EiUOLELYU'htE .pal1lflteph 12(e), or a. NEGUGENCE 0' TIll: 'provt48d In Seo1lon 16 .TELEPHONE COMPIIHY. herein, This provlllon 18 not Intend- The TELEPHONE COM- ed to oreal. a CllIUIlI of eo- PANY wtll, accordtng to tar- lion or IIablIIty Iortha benefit Iff, biU such Charge to the of third parties but eoIaIy for cuatomell billed the cue- the . benefit of the TELE- torner servtce oIlargee in- 11 0 Legal Nollces I eluded within the term NGross Receipts,. as de- - fined herein. Gross Ae- .- ceipts, for the purposes of this Charge, shall include only customer service charges which meet all four of the following conditions: (1) such charges are for TELEPHONE COMPANY services provided within the CITY; (2) such charges are billed through the TELE- PHONE COMPANY'S Customer Records Infor- mation System ("CR'S"); (3) such charges are the re- curring charges for the local exchange access rate ele- ment specified In the TELE- PHONE COMPANY'S tar- iffs fi'ed 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 (the "FCC'). For the second and subse- quent years while this Ordi- nance remains in effect, the above Charge is subject to adjustment by application of the Growth Factor set out in peragreph 12(c). This ad- justment for the Growth Factor will be made effec- tive as of each anniversary date of this Ordinance. The TELEPHONE COM- PANY shall adjust its bill- ings to . customers to account for any undercollection or over- collection of the Charge due the CITY. (b)The Charge for each year shall be paid in four (4) equal peyments. The first payment under this Ordi- nance shall be due on the 'ast day of the fifth month following the effective date hereof, with subsequent payments due on the last day 01 eeoll third successive month thereafter during the term of this Ordinance. In the event of any over or un. _ from oueto.... el1l at the explre\ton of \hie Ordinance, the TELE- PHONE COMPANY may make a pro rata one-lime credit or charge to the cue- tomer billing lor affected customers who are bIIed lor a _ Included within GIIl88 Receipts, sa daffned iii paragl1lph 12(a). This ' wll be accomplished within ' 150 following the date 01 ._ dthls OrdInance. "Ilowever, tt 18 Impractical to credit any overcoIlectlon to cuetomell, than SUCh overcollectlon shaB be paid to the CITY. (e) The GIOWth Factor shall be calculated by ~ 1he TELEPHONE COMPANY'S revenues within the <Xlrpo- rate Umits of the CITY !RIb- ject to state _ taxes ('Salas Tax Revenues') for tha twelve month period ending three (3) months prior to the next anniversary date of this 0nIInance by 1he SliIa. Tax Revenues for the twelve month period ending three (3) months prior to etther the Initial 1 0 Legal Notices (e) In the event that either (1) territory within the boun- aetton and controversies, daries of the CITY shall be presently known or un- effective date or the disannexed and a new in- known, arising directly or preceding anniversary date corporated municipality indirectly out of or at this Ordinance, as created which includes such connected with the app'icab'e. The Growth territory or (2) an entire, ex. TELEPHONE COMPANY'S Factor calculated by isting incorporated munict- obligations to the CITY the method set forth in the pality shall be consolidated pursuant to the provisions of preceding sentence, if great- or annexed in to the CITY, Ordinance 28. Upon Final ar than one, shall be multi- then notwithstanding any Approval as defined in. the plied by the current year's otherprovisionofthisOrdi- STIPULATION OF Charge to determine the nance, the Charge shall be SETTLEMENT, South- dollar amount of the Charge adjusted. To accomplish western Bell Telephone for the next year. If the this adjustment, within thirty Company, its parent, its af. Growth Factor calculated days following the action af. filiates, successors and as- above e is one or less, the facting a disannexationlan- signs hereby fully release, Charge for the next year nexation as described discharge, settle and com- shall be equal to the current above, the CITY shall pro-- promise any and all yea(s Charge. The TELE- vide the TELEPHONE claims,actions, causes of PHONE COMPANY will COMPANY with maps of action or controvelllies adjust its customer billing to the affected araa(s) showing heretofore made or which account for the Growth Fac. the new boundaries of the could have been made tor calculated above. Once CITY. known or unknown, against the Growth Factor calcula- In the event of an the CITY, its officers, attor- lion is completed, the TELE- annexation as described ney~ or ,its emPloyees, arts- PHONE COMPANY will above, the Charg.e for the inM1!t!,f~~co,nnect~~, proVide the CITY w"h the i CITY Will be adjusted to any tirallers under" ofdl; Sales Tax Revenues upon include the amount of the nance 28. which the Growth Factor I payment by the It is the intent of the CITY calculation was based TELEPHONE COMPA. and the TELEPHONE The CITY agrees to' rely ! NY to the. existing i~corp()- COMPANY to enter into Ihe upon audits by the Texas , rated municipality being an- foregoing mutual releases in ComptroUer of Public Ac- nexed. In the event that the order to reach a compro- counts of state sales taxes amexed municipality had no mise that is acceptabit to as reported by the TELE- ordinances imposing a both the CITY and the TEL- PHONE COMPANY in Charge on the event of a EPHONE COMPANY. This compliance with Sections ctisanneXlition, the adjust- Ordinance and the mutual 151.023 and 151.027 of the ment to the Charge will be rele...s set forth in this Texas Tax Code Annotated calculated using the Sectton represent a com- The Growth Factor shall ~ effective date of the promise of each party's recomputed to reflect any imposition of Local Sales claims as well as each par. final, nonappealable adjust- Taxes as determined by ty's defenses, and is not in- ments made pursuant to an the T exa~ Comp- tended to be and is not an audit finding by the Texas troIler?f Public Accounts. admission of liability or vul- Comptroller of an inaccura- The adjustment shall be the nerability by either party to cy in the TELEPHONE percent increase/decrease the other with respect to COMPANY'S reports of in the ,TELEPHONE COM- either the claims or the de-I revenues subject to state PANY S Gross Receipts as fenses asserted against the, sales taxes. The Charge defined herein for the CITY other. shalf be recalcu'ated using for the filllt calender month SECTION l5-ADOPTlON the Growth Factor recom. following the Local Sales OF STIPULATION OF' puled as specified in the Tax effective date compared SETTLEMENT preceding sentence and i to the last month pnor to The CITY hereby adopts, the recalculated Charge ~ effective date. This ad- ratifies, confirms, and shall be used for alf future lustment to the Charge wiff agrees to be bound by the calculations required by this be made on the fil1ll day of terms of the STIPULATION Ordinance. Any over- the second month following OF SETTLEMENT in payment or underpayment the Local Sales Tax Cause No. 0-142,176 in resulting from such effective date and the the 136th Judicial District recalculation shall be adjusted Charge shall be Court in and for Jefferson subtracted from or prorated form that date County, Texas (the "Class added to the first installment through the remainder of the Utigation"), in its entirety, in due the following year. II any payment year. The Charge all respects as if the CITY overpayment or underpay- as adjusted shall be used for were an original signatory men! shall be due during the all future caicu'ations thereto. The CITY final year of this Ordinance, required by this Ordinance. acknowledges that as a then payment shalf be made SECTION l3-ASSIGN- member of the Set- as follows. In the case of MENT OF ORDINANCE Uemont Class in the Clas overpayment by the TELE- This Ordinance and any Utigation it has received PHONE COMPANY, the rights or privileges hereun- and reviewed the C'TY shall pay such over, der shall not be assignab'e STIPULATION OF payment to the TELE, to any other entity without SETTLEMENT and that PHONE COMPANY within the express consent of the, the CITY has had acce.. to 150 days following the expi. CfTY. Such consent shall be ' and/or has consulted coun- ration of this Ordinance and, evidenced by an ordinance sel, to the extent that it de- in the case of underpayment which shall fully recite the sired to do so, in connection by the TELEPHONE COM- terms and cond"ions, if any. with"s evaluation of the PANY, the TELEPHONE upon which such consent is ~~:MUE~;ION OF SET- COMPANY shall pay such given. . underpayment to the CITY SECTION l4-MUTUAL SECTION 16-REPEAL OF -., 150 days IoIowIng Ihe RELEASES CONFLICTING ORDI- ..pre.lion. of this Ordinance. . Upon Fina' Approva', as I NANCES AND AGREE- ! .J!I}...!!~JU,jiYWI8QtS shall defined in the MENTS not r;'li.vij"'~' the' STIPULATION OF ,Ordinance Number 28 TELEPHONE"tl'!MPANY SETTLEMENT, the CITY adopted OctoberS, 1959, is from paying all hereby fully releases hereby repealed; provided, applicable municipally- discharges, setlles and however, such repeal shall owned utility service charg_ compromises any and all take eff~ at 11 :59 p.m. on as. Should the crrv no have claims which the CITY has the day Immediately pre- the legal powerto agree that made or could have made ceding the effective date the payment of the arising out of or connected . ~ified in the Section of foregoing Charge shaI in leu with Ordinance No 28.; thIS Ordinance ent"led 'ACe of the taxes, licenses" adopted October 5, 1959, CEPTANCE OF AGREE- charges, RIGHTS-OF-WAY and renewed or extended MENT AND EFFECT'VE permit or inspection fees,' from time to time thereafter, l?ATE:: The final payment rentals, RIGHTS-OF-WAY and its predecessor ordi- (lncl.udlng payment for any easements or franchise nances, if any (hereinafter partial year) under Ordi- taxes atoresaid then the City I referred to collectively as nance 28 shall be due 60 agrees that it :.viii appty so ' "Ordinance 28"). This full days folJowing the effective much of such payments as and complete release of date of this Ordinance, as may be necessary to the claims for any matters un- set out in Section 19 hereof. satisfaction of the TELE- der Ordinance 28 shall be All other ordinances and PHONE COMPANY'S obl~ for the benefit of Southwest. a~reements and pans of or. gatton, if any, to pay any em Bell Telephone Compa- dl~andagreementsin such taxes, licenses, charg- ny;. its .parent; its affiliates; conflict herewith are also es, RIGHTS.OF-WAY per- the" dlrectOlll, officelll. at- repealed, t~ the extent of mit or inspection fees. torneys and employees; such conflict only, which renta's, RIGHTS-OF-WAY successors and assigns; repeahhalllakeeffectatlhe easements or franchise tax- and includes any and all time and on the date speci- es. claims, actions, causes of fied in the preceding sen- tence. SECTION 17"FUTURE CONTINGENCY (a) Notwithstanding any- thing 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 TEL- EPHONE COMPANY seeks to collect the Charge imposed by this Ordinance, or (c) any procedure provid- ed in this Ordinance, or (d) any compensation due the CITY under this Ordinance becomes, or is declared o~ determined by a judicial ad- ministrative or legislative authority exercising its ju- risdiction to be excessive unrecoverable, unenforce~ able, void, unlawful or other- wise inapplicable, in whole or in part. the TELEPHONE COMPANY and CITY shaff meet and negotiate a new ordinance that is in com- pliance with the authority's decision or enactment and. unless explicitty prohibited, the new ordinance shall provide the CITY with a level of compensation compa- rable 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 Ordi- nance. (b) Notwithstandinganything contained in the preceding paragraph to the contrary, the C'TY and TELEPHONE COMPANY agree that in the event this Ordinance is sub- mitled for review to any court in which the currently existIng case sly'ed City of Port Arthur, et al v. Southwestern Bell Tele- phone Company, et ai, Cause No. D142, 176 in the 136th Judicial Court, Jeffer- son County, Texas is pend- ing, the CITY and TELE, PHONE COMPANY agree to take any and all actions reasonably necessary to obtain approval and ratificatton of the Ordinance by the court. SECTION la-GOVERNING LAW (a) This Ordinance shaff be construed in accordance with the CITY Charter and C'TY Code(s) in effect on the date of passage of this Ordinance to the extent that Charter and Code(s) are not in conflict with or violation of the Construction and 'aws of the, Un"~ State$ or the ~,~,qtI~..\(!IL, ""'-' , .". . (b) This Ori:tinance shall be construed and deemed to have been drafted by the combined efforts of the C'TY and the TELEPHONE COMPANY. SECTION la-ACCEPT- ANCE OF AGREEMENT AND EFFECTIVE DATE The C'TY shaff deliver a properly certified copy of this Ordinance to the TELE- PHONE COMPANY within three (3) working days of its fina' passage. The TELE. PHONE COMPANY shall file. its written acceptance of this Ordinance in accor- denee with the STIPULA- T'ON OF SETTLEMENT. This Ordinance shall be- come become effective be- ginning on the first day of the first calender month which begins not less than thirty (30) days after entry of judg- ment, as defined in the STIPULAT'ON OF SET- TLEMENT. I PASSED AND APPROVED the 6th day of Ju'y. 1995. Norma Althouse City Secretary , I THE STATE OF TEXAS, , PUBLISHER'S AFFIDAVIT Lv1 tL .,l~~ /YV /;J ~bq.8 County of Guadalupe Before me, the undersigned authority, on this date personally appeared r. ~ RF.YNor.ns known to me, who, being by me duly sworn, on his oath deposes and says that he is the Publisher of The Seguin Gazette-Enterprise, a newspaper published in said county; that a copy of the within and foregoing notice was pUblished in said newspaper c:< times before the return day named therein, such publications being on the following dates: Sj-'J/>JU 9' I } qq 5' iJ.u~ 15: /qqS- (Ai go ~ and a newspap"''''py a/which. _ "fach:~~ Sworn to and subscribed before me, this )i.tJ ~ day of ~~ A.D., 19 q ~ '~It /f.-)~--"'~:.'-"'~~~('..\ MARGARET L. CLARKSON i., ~\;f(:' ~ NotlIyPublic,StateotTelI<1S \ ~>,.0._,/'~ j MyCommisskm E~in5Jal114, 1998 11~~t:-;;f"~~:+-:"'- "............... ~~~~ Notary Public, Guadalupe County, Texas . ,~-~ ~ , -----1~~__-- ~ ~- - ' --,~~~ . " AN ORDINANCE WHEREBY THE CllY OF SCHERTZ, TEXAS AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERAT- ING ITS TELECOMMUNI- CATIONS BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND CONSTRUCT ITS POLES, WIRES, ANCHORS, FIB- ER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN. ALONG, ACROSS, ON, OVEH. THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS. SIDEWALKS, BRIDGES OR PUBLIC PROPERlY IN SAID CllY; PRESCRIBING THE AN- NUAL COMPENSATION DUE THE CllY UNDER THIS ORDINANCE; PRE- SCRIBING THE CONDI- ... TIONS GOVERNING THE USE OF PUBLIC RIGHT- OF"WAY AND THE PER- FORMANCE OF CERTAIN CONSTRUCTION WORK ON PUI!L1C RIGHT-OF. WAY FOR THE TELE- PHONE COMPANYS TELECOMMUNICATIONS BUSINESS; PROVIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERN- ING LAWS; PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES; PROVID- ING FOR FUTURE CON- TINGENCIES; PROVIDING FOR WRITTEN ACCEPT- ANCE OF THIS ORDI. NANCE BY THE TELE- PHONE COMPANY; AND PROVIDING FOR A TERM AND AN EFFECTIVE DATE. Approved on first reading the 6th day of June, 1995. Nonna A~house, City Secretary .'1' . AN ORDINANCE WHEREBY THE CllY OF SCHERTZ, TEXAS AND SOUTHWESTERN BELL TELEPHON~ COMPANY AGREE THAT, FOR THE PURPOSE OF OPERAT. ING ITS TELECOMMUNI- CATIONS BUSINESS, THE TELEPHONE COMPANY SHALL MAINTAIN AND CONSTRUCT ITS POLES. WIRES, ANCHORS, FIB- ER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN, ALONG. ACROSS, ON. OVER, THROUGH, ABOVE AND UNDER ALL . PUBI;1C-" "'STREETS. AVENUES, HIGHWAYS, ALLEYS, .S'DEWALKS, BRIDGES OR PUBLIC PROPERlY IN SAID C'lY; PRESCRIBING THE AN- NUAL COMPENSATION DUE THE CllY UNDER THIS ORDINANCE; PRE, SCRIBING THE CONDI- TIONS GOVERNING THE USE OF PUBLIC fliGHT, OF-WAY AND THE PER- FORMANCE OF CERTAIN CONSTRUCTION WORK ON PUBLIC RIGHT-OF- WAY FOR THE TELE- PHONE COMPANY'S TELECOMMUNICATIONS BUSINESS; PROVIDING AN INDEMNllY CLAUSE; SPECIFYING GOVERN- ING LAWS; PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES; PROVID- ING FOR FUTURE CON- TINGENCIES; PROVIDING FOR WRITTEN ACCEPT, ANCE OF THIS ORDI- NANCE BY THE TELE. PHONE COMPANY; AND PROVID'NG FOR A TERM AND AN EFFECTIVE DATE. Approved on first reading the 6th day of June, 1995. Nonna Althouse. City Secretary SENT BY: 0161261 June 6 June June 14 July 6 July 7 July 14 July 15 July _ 6- 1-95 2:48PM ;FULBRIGHT & JAWORSKI~ 07828150946593204#;# 2/ 2 Acceptance of SWB'f Settlement Ofrer SehedJJle First reading of ordinance Publication of synopsis of ordinance Work seMion concerning settlement offer and final reading of ordinance Accept settlement and final reading and adoption of ordinance First publication of full ordinance Second publication of full ordinance City files Affidavit of City Attorney, certified copy of ordinance, and certified copy of city charter with SWBT, SWBT counsel, and Court SWBT files acceptance of ordinance with City COVER SHEET ************************************************************** TO: ~ 1/ ~L-4 ~Lec-"'e/ DATE: b'" ~cf-:l~ FROM: 'a/~ ...~tl ,J NAME OF SENDER ~~ t2tLL~ NUMBER OF COPIES j' (INCLUDING THIS PAGE) ************************************************************** SUBJECT: ~5tu ~tl..2tA#v:) v " A.(..z:-,z ~(.j tl "L?'~.tL Y; ,J j- !LCcMd't./C!' L "Ld ;IL-C.'v I~ . ~. 0- Le... '-- .(.0 :""6 - ~~i.l.t?C..-.' Q::1:t ~.l-L /1-# -dJ k/Lrd.d'LL /Lt.L;i- ~~ ~ f:.~ ~~ ~f (jali /~ {i~~ ~t1,--_ ~_P 0.n;.L J~~ , dULIL'P:ILC/0 fS- ;:--/1 COS Form No. F0001 (Rev. 3-91) RECEIVING THIS , 7 / ~ : I)... f.tY^ fV<>-te. h '\'V,,~:\,e-cl 'fr/V ~ tv~clL +0 ~0 4'7,. <(;00'[;( . JJ. ~ IJ...,.... \?..L.' C"UI"et,! F'J4.t> J 00 0 CJ5 , ... ~ "\ "'.cALO N J Irs. Ki5 PLEASE CALL IF YOU HAVE ANY PROBLEMS TRANSMISSION. f~~~'dEII'J'~~ _ 1400 SCHERTZ PARKWAY P.O. DRAWER 1 ~... ,. ~ SCHERTZ, TEXAS 78154-0890 ~Rro~i-S'7 AC (210) 658-7477 FAX (210) 659.3204 FAX COVER SHEET ************************************************************** FROM: tli 41 ~ TO: ~~r ?;f~~ DATE: h -o11-fS- NAME OF SENDER ~ ~ NUMBER OF COPIES ~ (INCLUDING THIS PAGE) ************************************************************** , SUBJECT: d~4A1V SPECIAL ~ J~ ' - INSTRUCTIONS: ' A""P) (t-A d .PAf~ ~ ~ n 1. /flfS. Ji~. PLEASE CALL IF YOU HAVE ANY PROBLEMS RECEIVING THIS TRANSMISSION. COS Form No. F0001 (Rev. 3-91) (b) This Ordinance shall be construed and deemed to have been drafted by the combined efforts of the CITY and the TELEPHONE COMPANY. SECTION 19 - 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 file its written acceptance of this Ordinance in accordance with the STIPULATION OF SETTLEMENT. This Ordinance shall become effective beginning on the first day of the first calendar month which begins not less than thirty (30) days after entry of judgment, as defined in the STIPULATION OF SETTLEMENT. * * * PASSED AND APPROVED the 6th day of July, 1995. Norma Althouse, City Secretary 0161291 -19- -,-,~_._._--_.,._-,-,--------~'-'._-~~~'~"--'-----~--,._---~ SENT BY:FULBRIGHT&JAWORSKI 7-11-95 17:43 FULBRIGHT&JAWORSKI~ 0762615094659320'" I T~LE"WOIJE: 110/n4.11.. 'ACIIMIL.E: 1101114..33. W"'UIl'1 D'JIlII;"T DIAL NUMIlER: 1I0""'O.7IM FULBRIGHT & JAWORSKI L.L.P. A "EQI.Tl~r;~ llMITEO I..IA.,LITv P"'FlTNr"SHI~ 300 CONVltNT ST"I!:I:T. SUITE: 2200 SAN ANTONIO, TEXAS 78205 t-lOUSTON WASI-tINGTON, D.C, AUSTIN 8AIrII ANTONIO DAI.I.I\$ I'll EW VOlltt< l.OS ANGELEl:$ LONDON 1-1011.I0 KONG July 11, 1995 He: City of Port Arthur et. al v. Southweltern Bell Telephone Company et. al Mr. John M. Helme, Jr, BUlman Godfrey L,L.P. Allianz Financial Centre 2828 Bryan Street, Suite 1400 Dallu, TllXalI 76201-2633 Dear John: BY TELECOPY 2141754-1933 The Schertz City Council adopted the final version of its new franchise ordinance with Southwestern Bell Telephone Company on second reading at its meeting on July 6, 1996, and, to be effective, the ordinance is now being published as required by the City Charter. The second and final publication will take place on July 14, and the City Manager will send to you on July 15 ths enclosed form of Affidavit from me, together with (i) a certified copy of the ordinance and (Ii) a certified copy of the City Charter, Pleue provide me with ths precise addresses and names of addressees to whom thll" material. mould be .ent. I. there 8J.IYthing else required of the City to effectuate ita acceptance of the settlement? Pleue note for your records that, at the second reading of the ordinance, the City Council determined to reducs the amount of annual pass-through franchise p~ent that it will receive from Southwestern Bell Telephone Company from the maximum allowable 0*,*47,800 to $40,000, The City has chosen not to take the full amount whJch it could receive during the five-year term of the new franchise arrangement, Very - ~ Michael L. Spain MLS/mjw EnclolUl'G Ol.mo .--.--. ,.._..~... I ---"".-".-'1"-- SENT BY:FULBRIGHT&JAWORSKI 7-11-85. ; 17:44 FULBRIGHT&JAWORSKI~ 07626150846583204;# 3 I Pap 2' cc: KeThny R. Sweatt (w/enclolure) (City Manager City of Schertz) OXllU Thomu ' 01"'10 -..-. _.~- "--...- . . , -:-"""""-'~~~~'-~~,~""'-~--"1--.":_ --:-::-""1. r'~''''''-""-",_.,, ,~."'. SENT BY:FULBRlqHT&JAWORSKI ; 7-11-95 17:44 FULBRIGHT&JAWOR5Kl~ 07626150946~93204;# 4 I NO, D 142,176 8 . . . i 5 8 . . . SOUTHWESTERN BELL TELEPHONE t COMPANY, a Missouri corporation, . and H. PAUL ADAMS, f fi . CITY OF PORT ARTHUR, an incorporated Tezu municipality, on behalf or itself and all others similarly situation, Plaintiff, IN THE DISTRICT COURT OF VB, JEFFERSON COUNTY, TEXAS Defendants. 186th JUDICIAL DISTRICT AFFIDAVIT Iw the City Attorney for the City of Schertz, Texas (the "City"), I affirm that the new Ordinance No, 96.F.17, attached hereto, was finally and effectively adoptsd pursuant to the applicable laws of the State of Texas and the City Charter by the City Councll of the City, at the requisite number of Council meetings, attended by a quorum of Council members, with proper notice (including publication, if requIred) of the bUlineas or said Council having been provided to the public and is the official act of the City. Michael L. Spain SWORN AND SUBSCRIBED TO BEFORE ME on this 14th day of July, 1995. Notary Public in and for the State of Texas Ol'nOl .....--.-..-..-.-.---.,.--.-.---."'..------..-..,.. ~-'-""-~ .