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Ord 013-92 2/18/1992 1-13-92 ORDINANCE NO. /)'-/: � AN ORDINANCE WHEREBY THE CITY OF WICHITA FALLS, TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL CONTINUE TO MAINTAIN AND CONSTRUCT ITS POLES, WIRES, ANCHORS, FIBER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSICAL PLANT AND APPURTENANCES IN, ALONG, ACROSS, ON, OVER, THROUGH, ABOVE, AND UNDER ALL PUBLIC STREETS, AVENUES, HIGHWAYS, ALLEYS SIDEWALKS BRIDGES OR PUBLIC WAYS 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 AND LIMITATIONS; 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 AN EFFECTIVE DATE. WHEREAS, Southwestern Bell Telephone Company, a private corporation, (hereinafter "TELEPHONE COMPANY") has been engaged in providing telecommunications services in the CITY of Wichita Falls for many years and is now so engaged; and WHEREAS, the TELEPHONE COMPANY has operated said business under successive ordinances of the CITY of Wichita Falls, the last of which being Ordinance Number 2138, adopted December 14, 1964; and WHEREAS, it is appropriate that the CITY of Wichita Falls, acting by and through its governing body, consent to a continuation of privileges similar to those heretofore granted in Ordinance Number 2138, but under terms and conditions which take into account changes in technology, the telecommunications industry, and state and federal law; and WHEREAS, this Ordinance is adopted by the City Council of the CITY of Wichita Falls pursuant to the provisions of Article 1175, Section 2 , V.A.C.S. , Article 1446c, Section 21, V.A.C.S. , and Sections 121 through 129 of the Charter of the CITY of Wichita Falls; Now, Therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS THAT: SECTION 1 - PURPOSE Pursuant to the laws of the State of Texas, the Wichita Falls City Charter and this Ordinance, Southwestern Bell Telephone Company has the NON-EXCLUSIVE right and privilege to USE the public RIGHTS-OF-WAY in the CITY of Wichita Falls for the operation of a telecommunications system subject to the restrictions set forth herein. The TELEPHONE COMPANY may USE such RIGHTS-OF-WAY only for - Page 2 - FACILITIES for its telecommunications system. The terms of this Ordinance shall apply throughout the CITY, and to all operations of the TELEPHONE COMPANY within the CITY, and shall include all operations and FACILITIES used in whole or in part in the provision of telecommunications services in newly annexed areas upon the effective date of any annexation. SECTION 2 - ADDITIONAL AUTHORITY REQUIRED TELEPHONE COMPANY is not authorized to provide cable television service as a cable operator in the City of Wichita Falls under this Ordinance, but must first obtain a franchise from the CITY for that purpose, under such terms and conditions as may lawfully be provided by the City Council. This Section does not preclude the TELEPHONE COMPANY from providing its tariffed services to cable television companies. However, nothing herein shall authorize the TELEPHONE COMPANY to license or lease to any cable television operator not franchised by the CITY the right to use or utilize the TRANSMISSION MEDIA or FACILITIES of the TELEPHONE COMPANY unless Federal or State law allows such cable television operator to conduct its business without first obtaining a franchise from the CITY. - Page 3 - • 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 duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated TRANSMISSION MEDIA. (b) TELECOMMUNICATIONS: for purposes of this Ordinance only, TELECOMMUNICATIONS means the transmission of sounds, data, signals or other information via the TRANSMISSION MEDIA and FACILITIES of the TELEPHONE COMPANY. (c) TELECOMMUNICATIONS SYSTEM: all TELEPHONE COMPANY FACILITIES and TRANSMISSION MEDIA used to provide TELECOMMUNICATIONS services. (d) USE: any acquisition, construction, reconstruction, maintenance or operation of any FACILITIES in, over, under, along, through or across the public RIGHTS-OF-WAY for any TELECOMMUNICATIONS services. (e) CITY: The CITY of Wichita Falls, Texas. (f) RIGHTS-OF-WAY: all present and future streets, avenues, highways, alleys, bridges and public ways (excluding railroad RIGHTS-OF-WAY) within the city limits of the CITY. (g) GOVERNED BY THE CITY OR CITY GOVERNANCE: all ordinances, laws, rules, regulations, and charter provisions of the CITY - Page 4 - now in force or that may hereafter be passed and adopted which are not inconsistent with this Ordinance. (h) TRANSMISSION MEDIA: all 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 purposes. (i) NON-EXCLUSIVE: no rights agreed to in this Ordinance by the CITY shall be exclusive, and the CITY reserves the right to grant franchises, licenses, easements or permissions to use the public RIGHTS-OF-WAY within the CITY to any person or entity as the CITY, in its sole discretion, may determine to be in the public interest. SECTION 4 - TERM This Ordinance shall continue for a period of five (5) years from the effective date; provided that at the end of the expiration of the initial period, such term may be extended by mutual written agreement of the CITY and TELEPHONE COMPANY. SECTION 5 - GENERAL CONDITIONS OF USE (a) Any work done in connection with the TELEPHONE COMPANY'S USE of the RIGHTS-OF-WAY shall be subject to the police power and CITY - Page 5 - Governance. The TELEPHONE COMPANY may be required to place certain FACILITIES underground according to reasonable requirements that may be adopted from time to time by the Wichita Falls City Council; provided, however, TELEPHONE COMPANY shall be given due notice and shall be entitled to a hearing before the Wichita Falls City Council prior to the adoption of any such requirements. (b) All USE of the RIGHTS-OF-WAY shall interfere as little as reasonably practicable with the use of the RIGHTS-OF-WAY by others. (c) The TELEPHONE COMPANY shall permit the CITY of Wichita Falls to use without charge, solely for its own non-commercial telecommunications purposes, the following described facilities: One duct in all of TELEPHONE COMPANY'S existing ducted FACILITIES within the city limits. Also, TELEPHONE COMPANY shall provide adequate space on all non-ducted FACILITIES now existing or hereafter constructed on or within the RIGHTS-OF-WAY for the CITY to attach TRANSMISSION MEDIA for the City's own non-commercial use. Where insufficient FACILITIES exist to accommodate the CITY, other existing FACILITIES may be substituted. If the TELEPHONE COMPANY shall thereafter extend its existing underground conduits, it shall provide one duct in each additional conduit for the CITY'S own purposes, as provided above. (d) CITY shall not sell, lease or otherwise make available its rights to use TELEPHONE COMPANY'S FACILITIES to any third party for commercial purposes. Such rights are provided solely for the non-commercial exclusive use by the CITY. However, this - Page 6 - restriction shall not prevent the CITY from using the services of a third party commercial entity to manage or operate the CITY'S facilities on behalf of the CITY so long as no resale or other commercial use of such facilities shall occur. (e) The TELEPHONE COMPANY is not authorized to license or lease to any person or entity the right to occupy or use the CITY'S RIGHTS-OF-WAY for the conduct of any private business. The TELEPHONE COMPANY may be required to attach its TRANSMISSION MEDIA to FACILITIES owned and maintained by any person or entity franchised by the CITY or to permit the TRANSMISSION MEDIA of any person or entity franchised by the CITY to be attached to the FACILITIES owned and maintained by the TELEPHONE COMPANY upon reasonable, non-discriminatory terms. The TELEPHONE COMPANY may require any such person or entity to furnish evidence of adequate insurance covering the TELEPHONE COMPANY and adequate bonds covering the performance of the person or entity attaching to the TELEPHONE COMPANY'S FACILITIES as a condition precedent to granting permission to any such person or entity to attach TRANSMISSION MEDIA to TELEPHONE COMPANY'S FACILITIES; provided TELEPHONE COMPANY'S requirements for such insurance shall be reasonable, as determined by the CITY. (f) Any such TRANSMISSION MEDIA shall be so located on the FACILITIES as to be safe and not to interfere unnecessarily with the use of the RIGHTS-OF-WAY by others, including persons or entities authorized to use the FACILITIES. The TELEPHONE COMPANY shall not be required to attach its TRANSMISSION MEDIA to the - Page 7 - FACILITIES of any other person or entity or to permit the TRANSMISSION MEDIA of any other person or entity to be attached to TELEPHONE COMPANY'S FACILITIES if it can be shown satisfactorily to the CITY that the TELEPHONE COMPANY will be subjected to increased risks of interruption of service or to increased liability for accidents, or if the facilities of such other person or entity are not of the character, design, and construction required by, or are not being maintained in accordance with industry standards or practice. (g) Upon not less than 48 hours advance notice, the TELEPHONE COMPANY shall promptly move or remove its aerial FACILITIES temporarily to permit the moving of houses or other bulky structures when necessary. The expenses of such temporary relocation or removal shall be paid by the party or parties requesting and benefiting from such temporary relocation or removal, and the TELEPHONE COMPANY may require such payment in advance. SECTION 6 - CONSTRUCTION, MAINTENANCE AND EXCAVATION (a) The CITY shall have the power at any time to order and require the TELEPHONE COMPANY to remove any of its FACILITIES that are dangerous to life or property, and in case the TELEPHONE COMPANY, after reasonable notice to the District Manager-External Affairs, fails or refuses to act, then the CITY, at the direction of the - Page 8 - Director of Public Works, shall have the power to remove or abate the same at the expense of the TELEPHONE COMPANY, all without compensation or liability for damages to the TELEPHONE COMPANY. TELEPHONE COMPANY shall promptly restore to as good condition as before and to the reasonable satisfaction of the Director of Streets and Sanitation, all RIGHTS-OF-WAY damaged or excavated by the TELEPHONE COMPANY. Engineering plans for projects involving significant amounts of new buried cable and underground conduit systems to be placed in RIGHTS-OF-WAY shall be submitted to the Director of Public Works for review and approval prior to construction. (b) Except in an emergency, the TELEPHONE COMPANY shall not excavate any RIGHTS-OF-WAY without first notifying the Director of Public Works, and, if approval is required, it shall be given if the proposed excavation is in compliance with the requirements of CITY Governance. The TELEPHONE COMPANY shall comply with any reasonable requirements of the Director of Public Works for the restoration of the RIGHTS-OF-WAY within the CITY. SECTION 7 - WORK BY OTHERS, CONSTRUCTION BY ABUTTING OWNERS, ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENT (a) The CITY reserves the right to lay, and permit to be laid, sewer, gas, water, and other pipe lines or cables and conduits, including telecommunications and cable television lines, and to do and permit to be done any underground and overhead work that may be - Page 9 - L -- deemed necessary or proper by the CITY, in, across, along, over, or under any RIGHTS-OF-WAY or public place occupied by the TELEPHONE COMPANY, and to change any curb or sidewalk or the grade of any street. In performing or permitting such work to be done, the CITY shall not be liable to the TELEPHONE COMPANY for any damages related to such work, nor shall the CITY be liable to the TELEPHONE COMPANY for any damages not proximately caused by the CITY'S, including the Public Works Department's, sole negligence, provided, however, nothing herein shall relieve any other person or corporation from liability for damage to FACILITIES of the TELEPHONE COMPANY. (b) In the event that the CITY authorizes abutting landowners to occupy space under the surface of any street, alley, highway, or public place, such grant to an abutting landowner shall be subject to the rights of the TELEPHONE COMPANY described herein. In the event that the CITY plans to close or abandon any RIGHTS-OF-WAY which contains any existing TELEPHONE COMPANY FACILITIES, CITY shall, if requested by TELEPHONE COMPANY, (1) reserve a continuing right for the TELEPHONE COMPANY'S FACILITIES, (2) give notice of the date the Wichita Falls City Council is to consider the closure or abandonment, and (3) make any subsequent conveyance of land involved in the closure or abandonment subject to the specific right of continued occupancy by TELEPHONE COMPANY. (c) Whenever it shall be necessary to require TELEPHONE COMPANY to alter, change, adapt, or conform its FACILITIES within the RIGHTS-OF-WAY, such alterations or changes shall be made promptly, - Page 10 - with consideration given to the magnitude of such alterations or changes, without claim for reimbursement or damages against the CITY. If any such requirements impose a financial hardship upon the TELEPHONE COMPANY, the TELEPHONE COMPANY shall have the right to present alternative proposals to the CITY, and the CITY shall give due consideration to any such alternative proposals. It is understood and further provided, however, that the CITY shall not require TELEPHONE COMPANY to remove its FACILITIES entirely from such RIGHTS-OF-WAY. If the CITY requires the TELEPHONE COMPANY to adapt or conform its FACILITIES to enable any other entity or person, except the CITY, to use, or to use with greater convenience, RIGHTS-OF-WAY or public property, TELEPHONE COMPANY shall not be required to make any such changes until such other entity or person shall reimburse or make arrangements satisfactory to TELEPHONE COMPANY to reimburse the TELEPHONE COMPANY for any loss and expense caused by or arising out of such change; provided, however, that the CITY shall never be liable for such reimbursement. (d) For public improvement projects where, after notification that facility relocation is required, the TELEPHONE COMPANY has not, prior to the beginning of construction by the CITY, relocated its affected FACILITIES within the RIGHTS-OF-WAY after being afforded a reasonable length of time to do so as determined by the CITY'S Director of Public Works, giving consideration to the scope of the facility relocation, and when such delays are not caused by actions of the CITY, the following procedure will be followed. The CITY - Page 11 - t 1 shall provide the TELEPHONE COMPANY with reasonable notice of failure to act and request relocation. If the TELEPHONE COMPANY continues to delay, the CITY'S Director of Public Works and the TELEPHONE COMPANY'S District Manager-External Affairs will jointly review the relocation request in an expeditious manner to establish a mutually acceptable completion date for the relocation. If the TELEPHONE COMPANY continues to delay or does not meet the revised completion date, the CITY'S Director of Public Works shall provide not less than five (5) days written notice to the TELEPHONE COMPANY'S District Manager-External Affairs advising the TELEPHONE COMPANY of the CITY'S intent to effect the relocation of the affected FACILITIES. If after expiration of the written notice required by the preceding sentence, the TELEPHONE COMPANY continues to delay, the CITY shall have the right to effect relocation of the affected FACILITIES and the TELEPHONE COMPANY shall reimburse the CITY for all costs of such relocation. The CITY shall not be liable to the TELEPHONE COMPANY for any damage to such FACILITIES unless proximately caused by the CITY'S gross negligence, and shall not be liable in any event for any consequential damages relating to service interruptions. Such relocation by the CITY will be performed only when the Director of Public Works determines that it is necessary to prevent disruption of a CITY project. Such relocation will be accomplished by means of temporary construction and in a manner which will not unreasonably disrupt telecommunications services. The CITY shall make every effort to coordinate with the TELEPHONE COMPANY prior to such necessary - Page 12 - IL 4 • relocations and will not attempt to relocate such FACILITIES until the CITY has exhausted the foregoing procedures. The TELEPHONE COMPANY shall ultimately be responsible for the final permanent relocation of the TELEPHONE COMPANY'S FACILITIES. SECTION 8 - 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 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. SECTION 9 - DESIGNATION OF ADMINISTRATIVE OFFICER; RIGHT TO OBTAIN INFORMATION The CITY may delegate to the City Manager or any other designated CITY official the exercise of any and all of the powers conferred upon the CITY by its Charter or by general law relating to the administration and supervision of this Ordinance. - Page 13 - 1 SECTION 10 - ADMINISTRATION OF ORDINANCE (a) The CITY may, at any time, make inquiries pertaining to this Ordinance. The TELEPHONE COMPANY shall respond to such inquiries on a timely basis. (b) Copies of petitions, applications, communications and reports submitted by the TELEPHONE COMPANY to the Federal Communications Commission and 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 within the CITY, to the extent permitted by law. SECTION 11 - ORDINANCE VIOLATIONS The City Council shall have the option to declare this Ordinance terminated at any time for failure of the Telephone Company to comply with any term, condition or provision of this Ordinance, in accordance with the following procedures: (a) If the TELEPHONE COMPANY continues to violate or fails to comply with the terms and provisions of this Ordinance for a period of thirty (30) days after the TELEPHONE COMPANY shall have been notified in writing by the CITY to cure such specific alleged - Page 14 - I violation or failure to comply, then the CITY may pursue the procedures set forth below to declare that the TELEPHONE COMPANY has terminated all rights and privileges consented to in this Ordinance; provided, however, that if the TELEPHONE COMPANY is alleged to be in violation of any provision of this Ordinance other than the payment of money and if the TELEPHONE COMPANY commences efforts to cure such alleged violation(s) within thirty (30) days after receipt of written notice and shall thereafter prosecute such curative efforts with reasonable diligence until such curative efforts are completed, then such alleged violation(s) shall cease to exist and this Ordinance shall not be declared to be terminated. (b) Any such termination shall be declared only by a written decision of the City Council after an appropriate public proceeding before the City Council, which shall accord the TELEPHONE COMPANY due process and full opportunity to be heard and to respond to any such notice of alleged violation or failure to comply. All notice requirements shall be met by providing the TELEPHONE COMPANY at least an additional fifteen (15) days prior written notice of any public hearing concerning the proposed termination of this Ordinance. In addition, fifteen (15) days notice by publication shall be given of the date, time and place of any public hearing to interested members of the public. (c) The City Council, after full public hearing and upon finding a violation or failure to comply, may either declare this Ordinance terminated or excuse the violation or failure to comply upon a - Page 15 - showing by the TELEPHONE COMPANY of mitigating circumstances or good cause for said violation or failure to comply. (d) Neither the TELEPHONE COMPANY'S acceptance of this Ordinance, TELEPHONE COMPANY'S appearance before the City Council at any public hearing concerning proposed termination of this Ordinance nor any action taken by the City Council as a result of any such public hearing, including a declaration of termination or a finding of a violation or failure to comply, shall be construed to waive or otherwise affect the TELEPHONE COMPANY'S right to seek a judicial determination of the rights and responsibilities of the parties under this Ordinance. (e) The TELEPHONE COMPANY shall not be excused from complying with any of the terms and conditions of this Ordinance by the previous failure of the CITY to insist upon or to seek compliance with such terms or conditions. 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 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 - Page 16 - 1 • 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 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 $700, 000. 00. For the second year the Charge shall be $859, 000. 00 increased by the Growth Factor as set forth in paragraph 12 (c) , if applicable. For the third 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 12 (c) . This adjustment for the Growth Factor will be made effective as of each anniversary date of this Ordinance. In no event shall the Charge for subsequent years that this Ordinance is in effect be less than the above amount stated for the second year of this Ordinance, except as provided in the case of disannexation as set forth in paragraph 12 (e) , or as provided in Section 16 herein. The TELEPHONE COMPANY will, according to tariff, bill 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 - Page 17 - charges are the recurring charges for the local exchange access rate element specified in the TELEPHONE COMPANY'S tariffs filed with the PUC; and (4) such charges are subject to an interstate end user common line ("EUCL") charge as imposed by the Federal Communications Commission ("FCC") . The TELEPHONE COMPANY shall adjust its billings to customers to account for any undercollection or overcollection of the Charge due the CITY. (b) The Charge for each year shall be paid in four (4) equal installments on May 31, August 31, November 30 and February 28. In the event of any over or undercollection from customers at the expiration of this Ordinance, the TELEPHONE COMPANY may make a pro rata one-time credit or charge to the customer billing for affected customers who are billed for a service included within Gross Receipts, as defined in paragraph 12 (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 the state telecommunications sales tax ("Sales Tax Revenues") applicable to services rendered within the corporate limits of the PP P - Page 18 r _ CITY for the twelve month period ending three (3) months prior to the next anniversary date of this Ordinance by the Sales Tax Revenues for the twelve month period ending three (3) months prior to either the initial effective date or the preceding anniversary date 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 appropriate year's Charge as stated above. For the third and subsequent years of this Ordinance, the Growth Factor, if greater than one, shall be multiplied by the then current year's Charge to determine the Charge for the next year. The TELEPHONE COMPANY will adjust its customer billing to account for the Growth Factor calculated above. 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 telecommunications sales taxes as reported by the TELEPHONE COMPANY which are performed in compliance with Sections 151. 023 and 151. 027 of the Texas Tax Code Annotated (Vernon's 1982) . The Growth Factor shall be recomputed to reflect any final, nonappealable adjustments made pursuant to an audit finding by the Texas Comptroller of an inaccuracy in the TELEPHONE COMPANY'S reports of revenues subject to state telecommunications sales taxes. The Charge shall be recalculated using the Growth - Page 19 - 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. (d) Such payments shall not relieve the TELEPHONE COMPANY from paying all applicable municipally-owned utility service charges. Should the CITY not have the legal power to agree that the payment of the foregoing Charge shall be in lieu of the taxes, licenses, charges, RIGHTS-OF-WAY permit or inspection fees, rentals, RIGHTS-OF-WAY easements or franchise taxes aforesaid, then the CITY agrees that it will apply so much of such payments as 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, RIGHTS-OF-WAY easements or franchise taxes. - Page 20 - (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 or in the event of a disannexation, then the adjustment to the Charge will be calculated using the effective date of the imposition of Local Sales Taxes as determined by the Texas Comptroller of Public Accounts. The adjustment shall be the percent increase/decrease in the TELEPHONE COMPANY'S Gross Receipts as defined herein for the CITY for the first calendar month following the Local Sales Tax effective date compared to the last month prior to such effective 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. - Page 21 - : The Charge as adjusted shall be used for all future calculations required by this Ordinance. SECTION 13 - ASSIGNMENT OF ORDINANCE (a) The TELEPHONE COMPANY shall be a legal entity with legal capacity to operate and maintain a local telecommunications system in the CITY of Wichita Falls. (b) This Ordinance and any rights or privileges hereunder shall not be assignable to any other entity without the express consent of the Wichita Falls City Council, such consent to be evidenced by an ordinance of the City Council, which ordinance shall fully recite the terms and conditions, if any, upon which such consent is given. SECTION 14 - MUTUAL RELEASES In consideration of the performance by TELEPHONE COMPANY of its obligations hereunder, 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 Number 2138, adopted December 14, 1964 and extended from time to time thereafter, and its predecessor ordinances (hereinafter "Ordinance 2138") . This full and complete release of claims for - Page 22 - any matters under Ordinance 2138 shall be for the benefit of Southwestern Bell TELEPHONE COMPANY; its parent; its affiliates; their directors, officers and employees; successors and assigns; and includes any and all claims, actions, causes of action and controversies, presently known or unknown, arising directly or indirectly out of or connected with the TELEPHONE COMPANY'S obligations to the CITY pursuant to the provisions of Ordinance 2138. In consideration of the performance by the CITY of its obligations hereunder, the TELEPHONE COMPANY, its parent, its affiliates, successors and assigns hereby fully release, discharge, settle and compromise any and all claims, actions, causes of action or controversies heretofore made or which could have been made, known or unknown, against the CITY, its officers or its employees, arising out of or connected with any matters under Ordinance 2138 . 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. - Page 23 - 1 SECTION 15 - ACCEPTANCE OF ORDINANCE (a) The TELEPHONE COMPANY shall on or before file in the Office of the City Clerk, a written instrument signed and acknowledged by its proper officer in substantially the following form: "To the City Council of the CITY of Wichita Falls: Southwestern Bell Telephone Company acting by its undersigned official hereunto duly authorized under TELEPHONE COMPANY'S Schedule of Authorizations, hereby accepts Ordinance No. granting an ordinance to Southwestern Bell Telephone Company. SOUTHWESTERN BELL TELEPHONE COMPANY By President-Texas Division ATTEST: Vice President & General Counsel (Texas) Executed this, the day of 19 NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS Print/Type Name: My Commission Expires: " (b) In the event such acceptance is not filed within the said period, this Ordinance and the rights and privileges hereby granted shall be and become terminated, null, and void; provided however, that the City Council of the CITY of Wichita Falls may by ordinance extend the time herein allowed for the filing of such - Page 24 - I acceptance for a period not to exceed an additional ninety (90) days. SECTION 16 - FUTURE CONTINGENCY In the event this Ordinance, or any tariff that authorizes the TELEPHONE COMPANY to recover the Annual Charge provided in this Ordinance, or any procedure provided in this Ordinance, or any compensation due the CITY under this Ordinance, becomes unlawful or is declared or determined by a judicial or administrative authority exercising its jurisdiction to be excessive, unenforceable, void, or illegal, in whole or in part, TELEPHONE COMPANY and CITY shall meet and negotiate a new agreement that is in compliance with the authority' s decision and, unless explicitly prohibited, the new agreement shall provide the CITY with a level of compensation comparable to that set forth in this Ordinance, which 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. - Page 25 - • SECTION 17 - CONFORMITY TO CONSTITUTION, STATUTES, CHARTER AND CITY CODE This Ordinance is passed subject to the provisions of the Constitution and the Laws of the State of Texas and the Charter provisions of the CITY of Wichita Falls and applicable sections of the Wichita Falls City Code. SECTION 18 - ACCEPTANCE OF AGREEMENT AND EFFECTIVE DATE The CITY shall deliver a properly certified copy of this Ordinance to the TELEPHONE COMPANY within three (3) working days of its final passage. The TELEPHONE COMPANY shall have thirty (30) days from and after the final passage of this Ordinance to file its written acceptance of this Ordinance with the City Clerk. This Ordinance shall become effective beginning the first day of the month following acceptance by the TELEPHONE COMPANY. Passed and approved this the aav day of ;.e L. , 19 I -e Mayor, City of Wichita Falls, Texas - Page 26 - l Attest: City Clerk I,t_4;.0./.,g_,) --,-,M LAr-,Qr/tity Clerk of the CITY of Wichita Falls, Texas, do hereby certify that the foregoing is a true and correct copy of Ordinance Number finally passed and approved by the City Council of Wichita Falls, Texas, --■---^��-•---•• .�_...',.�....���a• •-- at a regular meeting held on the bi day of c L1, 19 �. City Clerk - Page 27 - • i . tr:, - y. 1 - •y •.. 1 - 1 Ad458406 Affidavit of Publication THE STATE OF TEXAS COUNTY OF WICHITA (Paste Clipping Here) On this 13th March day of A.D. 1992 personally appeared before me, the undersigned authority ORDINANCE NO.4-92 Karen Cobb bookkeeper ORDINANCE CLOSING HEAR- ING AND FINDING CERTAIN for the Times Publishing Company of Wichita Falls, publishers of the Wichita Falls BUILDINGS AND/OR STRUC- TURES _TO BE DANGEROUS: COMMANDING PROPERTY Times/Record News, a newspaper published at Wichita Falls in Wichita County,- OWNERS TO REPAIR OR DE- MOLISH SAID BUILDINGS Texas, and upon being duly sworn by me, on oath states that the attached AND/OR STRUCTURES WITHIN THIRTY(30)DAYSOFTHEDATE advertisement is a true and correct copy of advertising published OF THIS ORDINANCE AND DECLARING ORDINANCE EMERGENCY. I in 1 Cone) issues thereof on the following dates: ORDINANCE WAIVING SEC- TION 22-1(0)(9)AND SECTION March 1 3, 1992 22-4 OF THE CODE OF ORDI- NANCES TO PERMIT BANNERS'° AND POSSESSION AND CON- SUMPTION OF, ALCOHOLIC I � e , BEVERAGES AND RESERVATION �°'m"' -----""" s X/�i OF A PORTION OF THE PARK BY THE AMERICAN CANCER SO- €,;:. ',`1/5. Bookkeeper for Times Publishing Company CIETY IN HAMILTON PARK. ORDINANCE NO.6-92 of Wichita Falls ORDINANCES WAIVING SEC- TION 22-1(0)(9)AND SECTION 22-4 OF THE CODE OF ORDI- '' NANCES TO PERMIT BANNERS SEAL) Subscribed and sworn to before me this the day and year first above written. AND POSSESSION AND CON- SUMPTION OF ALCOHOLIC BEVERAGES AND RESERVATION R PA A PORTION MA OF HAMILTON a. .a...... '�r )Jl.✓`^1"� \, C ---4,"1.-- DUR DURING THE ANNUAL EASTER rt G.1'� _� SEAL RUN. c ,812 ORDINANCE NO.7-92 + AN ORDINANCE REZONING A ti ,i 3.33 ACRE TRACT OUT OF 44.L. NS,6-3?-tf5 it BLOCK 9, DENTON COUNTY 40,......**/ SCHOOL LANDS, LEAGUE 1 a (PORTION OF 4720 KELL FREE- WAY, WICHITA FALLS, TEXAS FROM SINGLE-FAMILY RESIDEN- TIAL (SF-2) ZONE, TO MULTI- FAMILY RESIDENTIAL (MFR) 4 ZONE(R-92-02) ORDINANCE NO.8-92 AN ORDINANCE REZONING A 0.5 ACRE TRACT OF LAND OUT OF BLOCK 9,DENTON COUNTY ' SCHOOL LANDS, LEAGUE 1 (PORTION OF 4720 KELL FREE- WAY), WICHITA FALLS, TEXAS FROM SINGLE FAMILY RESIDEN- TIAL,(SF-2)ZONE,TO GENERAL • COMMERCIAL (GC) ZONE , (R-92-01) • ORDINANCE NO.9-92 • I ORDINANCE MAKING AN AP- PROPRIATION IN THE GENERAL FUND FROM DESIGNATED FUND • _- •.,.. •, DI711JQ - 1 ORDINANCE NO.9-92 ORDINANCE MAKING AN AP- PROPRIATION IN THE GENERAL FUND FROM DESIGNATED FUND BALANCE AND AUTHORIZING THE REPLENISHMENT OF FUNDS FROM UNDESIGNATED FUND BALANCE ORDINANCE NO.10-92 ORDINANCE APROPRIATING $2,500.00 IN HOTEL/MOTEL FUNDS FOR THE RENTAL OF A SECURITY FENCE TO BE USED AT THE ACTIVITIES CENTER DUR- ING THE COUNTY FAIR ORDINANCE NO.11-92 ORDINANCE AMENDING SEC- TION 22-90-94 OF THE CODE OF ORDINANCES CHANGING THE SOFTBALL COMPLEX OPERAT- ING PROCEDURES. ORDINANCE NO.12-92 AN ORDINANCE AMENDING SECTIONS 14-62, 14-83 AND 14-84 OF THE CODE OF ORDI- NANCES OF THE CITY OF WICHITA FALLS, TEXAS IN ORDER TO UPDATE THOSE SEC- TIONS OF THE CITY ELECTRICAL CODE. ORDINANCE NO.13-92 AN ORDINANCE WHEREBY THE CITY OF WICHITA FALLS,TEXAS, AND SOUTHWESTERN BELL TELEPHONE COMPANY AGREE THAT,FOR THE PURPOSE OF OP- ERATING ITS TELE I COMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL CONTINUE TO MAIN- TAIN AND CONSTRUCT ITS POLES, WIRES, ANCHORS, FIBER, CABLES, MANHOLES, CONDUITS AND OTHER PHYSI- CAL PLANT AND AP- PURTENANCES IN, ALONG, ACROSS,ON,OVER,THROUGH, ABOVE,AND UNDER ALL PUBLIC STREETS, AVENUES, HIGH- WAYS, ALLEYS, SIDEWALKS, BRIDGES OR PUBLIC WAYS IN SAID CITY; PRESCRIBING THE ANNUAL COMPENSATION DUE THE CITY UNDER THIS ORDI- NANCE; PRESCRIBING THE I 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 TELE- COMMUNICATIONS BUSINESS; PROVIDING AN INDEMNITY CLAUSE; SPECIFYING GOVERN- ING LAWS AND LIMITATIONS; PROVIDING FOR A RELEASE OF ALL CLAIMS UNDER PRIOR ORDI- I NANCES; PROVIDING FOR FU- TURE CONTINGENCIES; PROVIDING FOR WRITTEN AC- CEPTANCE OF THIS ORDINANCE BY THE TELEPHONE COMPANY; AND PROVIDING FOR AN EF- FECTIVE DATE. ORDINANCE NO.14-92 AN ORDINANCE REZONING LOT 6& 10 FT.OF LOT 7,BLOCK 1, NELSON STONE SUBDIVISION (2010 ALIEN ROAD), WICHITA FALLS, TEXAS FROM SINGLE FAMILY RESIDENTIAL (SF-2) ZONE, TO GENERAL COM- MERCIAL(GC)ZONE(R-92-03) ORDINANCE NO.15-92 ORDINANCE AMENDING CHAPTER 18 OF THE CODE OF ORDINANCES TO CREATE ARTICLE V111, REGULATING POOLS, SPAS AND OTHER WATER RELATED ACTIVITIES; AND REPEALING CHAPTER 22, ARTICLE 1 V OF THE CODE OF ORDINANCES. ORDINANCE NO.16-92 AN ORDINANCE WAIVING SEC- TION 25-69 OF THE CODE OF ORDINANCES TO ALLOW THE OPERATION OF A TRANSIENT SHOW, AND AUTHORIZING TEMPORARY ON-PREMISE SALE OF WINE AND BEER PURSUANT TO SECTION 5420(5) OF THE ZONING ORDINANCE, AT THE NOTRE DAME HIGH SCHOOL HIGH SCHOOL 16TH ANNUAL SPRING FESTIVAL ON MAY 1-3, 1992