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HomeMy WebLinkAbout1996-253ORDINANCE NO \o a Jr'_--i_ AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, AND GTE SOUTHWEST INCORPORATED AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHOFtm Co%PANY SHALL, CONSTRUCT, ERECT, BUILD, EQUIP, OWN, MAINTAIN AND OPERATE IN, ALONG, UNDER, OVER AND ACROSS, THE STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS, AND PUBLIC GROUNDS OF THE CITY, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF TELECOMMUNICATIONS SERVICES IN SAID CITY AND FOR CONDUCTING A GENERAL LOCAL AND LONG-DISTANCE TELEPHONE BUSINESS, PRESCRIBING THE CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS -OF -WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS, PRESCRIBING THE QUARTERLY COMPENSATION DUE THE CITY UNDER THIS ORDINANCE, PROVIDING THE RIGHT OF THE CITY TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY, SPECIFYING GOVERNING LAWS, PROVIDING FOR ASSIGNMENT; PRESCRIBING THE TERM AND EFFECTIVE DATE OF SAID AGREEMENT, PROVIDING FOR NOTICE, PROVIDING FOR BINDING EFFECT, PROVIDING THAT THE ORDINANCE BE CUMULATIVE, PROVIDING FOR GOVERNMENTAL IMMUNITY; PROVIDING FOR CONSENT AND ACCEPTANCE, PROVIDING FOR SEVERABILITY, PROVIDING FOR CHOICE OF LAW AND VENUE, FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW, PROVIDING FOR FUTURE CONTINGENCIES, PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES, PROVIDING FOR RELEASE OF ALL CLAIMS UNDER 1018961533 PRIOR ORDINANCES, PROVIDING FOR ALTERNATE DISPUTE RESOLUTION, AND PROVIDING FOR METHOD OF ACCEPTANCE WHEREAS, it is to the mutual advantage of both the City of Denton ("City") and GTE Southwest Incorporated ("Telephone Company") that an agreement should be entered into between the Telephone Company and the City establishing the consideration for and conditions under which the Telephone Company shall construct, maintain and operate its physical plant in the public rights -of - way within the City's corporate limits in the future, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, THAT: SECTION 1. DEFINITIONS Whenever used in this Ordinance, the following words and terms shall have the definitions and meanings provided in this Section (a) ACCESS LINES: For purposes of this Ordinance, an Access Line shall be defined as any local line provided by Telephone Company to a customer in the City which provides access to the public Switched network, including all single line residence, party line residence, single line business, multi -line business, Centrex, Centranet, key lines, ISDN lines, COCT lines, semi- public pay telephone lines and PABX trunks or equivalents which - 2 - 1018961533 are assigned to locations inside the corporate limits of the City. (b) CITY: The City of Denton, Texas (c) gACxnxTiss: All Telephone Company duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated Transmission Media, which are located in the City Rights -of -Way (d) RIGHTS -OF -WAY, All present and future public streets, avenues, highways, alleys, bridges, viaducts, public thoroughfares, public utility easements, public ways, public grounds, and without limitation by the foregoing enumeration, other public property within the city limits of the City As used herein, the term "Rights -of -Way" does not include facilities dedicated to the provision of electrical power to citizens of the City to the extent the City may own the power utility providing electrical power in the City - •,.i: Ply! • � c • � • •,��VAM • . = services of any nature, offered for sale by the Telephone Company to subscribers in the City, which services are delivered to such subscribers by transmission, between or among points not specified by the Telephone Company, of information, voice or — 3 — 1018961533 otherwise, not chosen, created, or offered for distribution by the Telephone Company, transmitted without change in form or content of the information as sent and received, which transmission is offered for sale by the Telephone Company in the City, which services are provided in whole or part in the City to any customers of any type whatsoever "Telecommunications" and "Telecommunications Services" do not include such services as cable services, as defined in the Cable Communications Policy Act of 1984 (47 U S.0 A § 521, et seq , amended) or as recognized by the Federal Communications Commission or any other service wherein content is selected for distribution by the Telephone (f) TELEPHONE COMPANY: GTE Southwest Incorporated (g) 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, video, or data or other purposes, which are physically located in the City Rights -of -Way SECTION 2. CONSTRUCTION AND MAINTENANCE OF TELEPHONE PLANT AND SERVICE (a) Pursuant to the laws of the State of Texas and this Ordinance, the Telephone Company has the non-exclusive right and - 4 - 1018961533 privilege to use and occupy the public rights -of -way in the City for the purpose of maintaining and operating its Transmission Media used in the provision of Telecommunications Services and the operation of a telecommunications system, subject to the terms, conditions, and stipulations set forth in this Ordinance, the Constitutions and laws of the United States and the State of Texas and the City's Charter and Ordinances to the extent such Ordinances are not in conflict herewith The Telephone Company is not authorized to provide cable television service as a cable operator, as that term is defined in the Cable Communications Policy Act of 1984, in the City without obtaining a separate franchise from the City The Telephone Company's Facilities and Transmission Media used in or incident to the provision of Telecommunications Services and to the maintenance of a telecommunications business by the Telephone Company in the City shall remain as now constructed, subject to such changes as under the conditions prescribed in this Ordinance may be considered necessary to the public health and safety by the City in the exercise of its lawful police powers and such changes and extensions as may be considered necessary by the Telephone Company in the pursuit of its telecommunications business The Telephone Company shall at all times during the term of this Ordinance be subject to all lawful exercise of the police power by the City and to such reasonable and lawful regulation as the City shall hereafter by charter, resolution or ordinance provide The terms of this Ordinance shall apply throughout the City and - 5 - 1018961533 shall apply to all the Telephone Company's Facilities used, in whole or part, in the provision of Telecommunications Services, and shall include the provision of Telecommunications Services in any newly annexed areas of the City upon the effective date of such annexation or the date the City provides the Telephone Company notice of such annexation, whichever occurs later The Telephone Company shall maintain its Facilities in a reasonable operating condition at all normal times during the term or any extension of this Ordinance An exception to this condition is automatically in effect when service furnished by the Telephone Company is interrupted, impaired or prevented by fires, strikes, riots, or other occurrences beyond the control of the Telephone company, or by storms, floods, or other casualties, in any of which events the Telephone Company shall do all things reasonably within its power to do to restore normal service as soon as practicable (b) Facilities installed or relocated by the Telephone Company in the Rights -of -Way during the term of this Ordinance shall be located underground where technologically and economically feasible If technologically unfeasible, or if placement of facilities underground presents an undue economic burden on Telephone Company, upon proof thereof being presented to the City, Telephone Company and City will jointly agree to alternative installation of relocation options - 6 - 1018961533 SECTION 3. SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS (a) The Telephone Company shall lay, maintain, construct, operate, and replace its poles, wires, anchors, cables, manholes, conduits, and appurtenances used, in whole or part, to provide Telecommunications Services so as to interfere as little as possible with traffic and shall promptly clean up and restore, at its sole cost, all thoroughfares and other surfaces which it may disturb to as good a condition as before such disturbance The location of all Telephone Company Facilities shall be fixed under the supervision of the City's governing body or an authorized committee or agent appointed by said governing body All poles to be placed shall be of sound material and reasonably straight, and all poles, stubs, guys, anchors, and other above ground facilities shall be so set that they will not interfere with the flow of water in or to any gutter or drain, and so that the same will interfere as little as practicable with the ordinary travel on the streets, alleys, highways, public thoroughfares, public utility easements, public ways or sidewalks and so that they will not compromise public safety The City shall have the right to require the Telephone Company, at its own expense, to install or relocate above -ground Facilities as far from vehicular travel lanes as reasonably possible for traffic safety purposes Except as provided in Section 2(b), the City shall also have the right to require the Telephone Company, at its own expense, to install underground all new Facilities except those to which above -ground access is necessary for normal maintenance and connections, - 7 - 1018961533 without claim for reimbursement or damages against the City The location and route of all poles, stubs, guys, anchors, conduits, cables and any other Facilities to be placed and constructed by the Telephone Company in the City Rights -of -Way, and the location of all conduits to be laid by the Telephone Company within the City's Rights -of -way under this Ordinance, shall be subject to the reasonable and proper regulation, control and direction of the City's governing body or of any City, Committee, department or official to whom such duties have been or may be delegated (b) The City shall have the right to change the grade, install, relocate, or widen the public streets, sidewalks, bikeways, alleys, public thoroughfares, highways, landscaping, and public way and places within the present limits of the City and within said limits as same may from time to time be extended, and in such events the Telephone Company shall relocate, at its own expense, its Facilities and Transmission Media, in order to accommodate the installation, relocation, widening, or changing of the grade of any such public street, sidewalk, bikeway, alley, public thoroughfare, highway or public ways, including if necessary relocating such Facilities and Transmission Media a sufficient dist$nce from the edge of the pavement to permit a reasonable work area for machinery and individuals engaged in installing, relocating, widening, or changing the grade of any - 8 - 1018961533 public street, sidewalk, bikeway, alley, public thoroughfare, highway or public way (c) The City shall have right to lay, and permit to be laid, sewer, gas, water, electric, and other pipelines or cables or conduits, and to do and permit to be done any underground and overhead installation or improvement that may be deemed necessary or proper by the governing body of the City in, across, along, over or under any City Rights -of -Way occupied by the Telephone Company, and to change any curb or sidewalk or the grade of any street In permitting such work to be done, the City shall not be liable to the Telephone Company for any damage so caused, nor shall the City be liable to the Telephone Company for any damages arising out of the performance by the City or its contractors or subcontractors not willfully and unnecessarily occasioned, provided, however, nothing herein shall relieve any other person or corporation from liability for damages to facilities of the Telephone Company, including the City's contractors and subcontractors. The City shall also have the right to require the Telephone Company to relocate, at the sole expense of the Telephone Company, any Facilities erected or maintained in City Rights -of -Way, if said relocation is deemed necessary by the governing body or its designated representative for traffic safety purposes, including traffic signals Whenever by reason of changes 1n the grade of a thoroughfare or in the location or - 9 - 1010961533 manner of constructing a water pipe, gas pipe, sewer, or other aboveground or underground structure, it is deemed necessary by the City to remove, alter, change, adapt, or conform the underground or aboveground Facilities of the Telephone Company, the Telephone Company shall make the alterations as soon as practicable when ordered in writing by the City without claim for reimbursement or damages against the City (d) Whenever it becomes necessary to require Telephone Company to relocate or remove Facilities, for the completion of public works projects or for reasons of public safety, the City will inform the Telephone Company in writing of the aforementioned requirement Except in cases of an emergency, the City will provide at least ten (10) days' written notice to Telephone Company of the requirement to relocate or remove said Facilities 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, 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 - 10 - 1018961533 alternative proposals If the City requires the Telephone Company to adapt or conform its Facilities to enable any other entity or person, except the City (as described in Section 3(c) above), 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 in no event shall the City be liable for such reimbursement (e) Nothing in this Ordinance is intended to add to or detract from any authority granted by federal or state law to the City or the Telephone Company TO POLES AND SPACE IN DUCTS (a) As partial compensation for the use of the City's Rights -of - Way, the Telephone Company shall permit the City to use, without charge, solely for its own, non-commercial purposes, available duct space within one duct in all of the Telephone Company's existing ducted Facilities within the City limits, upon written request by the City, if such duct space is available when requested Alternatively, Telephone Company shall provide City with space on existing telephone poles for the City's use, - 11 - 1018961533 without charge, solely for its own, non-commercial purposes, if such pole space is available when requested The City shall not use any facilities which are provided for the City's use by the Telephone Company for power transmission purposes, nor use any circuits in such conduits or upon such poles to carry voltage in excess of one hundred thirty (130) volts for signal purposes, nor otherwise use any such circuits so as to unreasonably interfere with Telephone Company's Telecommunications Services or Telephone Company Facilities. (b) The City shall not sell, lease or otherwise make available its rights to use Telephone Company's Facilities to any third party Such rights are provided solely for the non-commercial exclusive use by the City However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City so long as no resale or other commercial use of such facilities shall occur and so long as the third party employed by the City is bound by the provisions of this Ordinance. (c) Should the City desire to purchase or otherwise acquire additional Facilities from the Telephone Company for its non- commercial use, then a further separate, non -contingent agreement - 12 - 1018961533 shall be a prerequisite to such purchase or acquisition Telephone Company and City agree to act in good faith in the negotiation of such agreement(s) with City (d) The City may, at any time, submit written requests to the Telephone Company for use of its Facilities The Telephone Company agrees to respond in writing to the City's requests within thirty (30) calendar days after receiving the request The City Council shall designate one City contact person for requests for Facility usage (e) The City recognizes that the Telephone Company cannot reserve Facilities for the City's use at some indefinite time in the future Accordingly, the City will request the use of Telephone Company's Facilities only after the City has an approved and funded construction plan Project construction by the City must commence within six (6) months of the Telephone Company notifying the City that Facilities are available Unless delay is occasioned through no fault of the City, any equipment or facilities of the City placed by the City on or in Telephone Company's Facilities must be fully operational within eighteen (18) months from the date project construction commences If such a delay occurs, City shall take all reasonable measures to make its equipment or facilities placed on or in Telephone - 13 - 1018961533 Company's Facilities fully operational as soon as practicable with consideration given to the circumstances which caused the delay (f) With regard to the City's equipment or facilities placed in, or on, Telephone Company's Facilities, the Telephone Company shall be relieved of its obligation to reserve space in or on its Facilities for the specific Facility if construction is not started within six (6) months of the Telephone Company notifying the City that Facilities are available or if such City equipment and facilities are not fully operational within the time limits specified in Section 4(e), unless an extension of time is mutually agreed upon, in writing, by both parties Upon the City's equipment or facilities being placed in, or on, Telephone Company's Facilities, the Telephone Company may not charge the City an additional fee for the use of the Telephone Company's Facilities. The City's use of Telephone Company Facilities will extend beyond the term of this Ordinance free of charge to the City so long as said Facilities remain in -place, but upon the expiration of this Ordinance Telephone Company shall be under no obligation to continue to provide, maintain or operate such Facilities for the benefit of the City. The Telephone Company will not be liable for the installation or maintenance of any - 14 - 1018961533 City facilities under this Ordinance or for any damage not caused solely by the negligence of the Telephone Company (g) The City shall clearly mark all of its facilities that are placed in, or on, Telephone Company Facilities In order to protect the telephone service to the citizens of the City, the City agrees that all construction by the City in, or on, Telephone Company Facilities will be in accordance with Telephone Company standards and procedures and any applicable City Codes or Ordinances The Telephone Company shall have the right to make on -site inspections during construction by the City In the event the City, in making its facilities operational, encounters any situation that might impact Telephone Company's communication service to the citizens of the City, the City shall stop construction and notify the Telephone Company immediately (h) Except as otherwise provided in Section 4(e) above, the Telephone Company may deny the City's request for use of Telephone Company Facilities only if the Telephone Company has plans to use the requested Facilities by installing telecommunications equipment no later than two (2) years from the date of the City's request In the event that the Telephone Company denies the City's request, the Telephone Company must - 15 - 1018961533 show the City its current engineering plans that demonstrate that the Telephone Company will use the requested Facilities for Telecommunications Services within two (2) years (1) 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 except to the extent required by law The Telephone Company will, from time to time, upon written request from the City provide to the City the names of resellers of telecommunication services using, or requesting to use, Telephone Company Facilities The Telephone Company may be required to attach its Transmission Media to facilities owned and maintained by any person or entity authorized by the City or to permit the transmission media of any person or entity authorized by the City to be attached to the Facilities owned and maintained by the Telephone Company upon reasonable, non-discriminatory terms in a separate, non - contingent agreement which shall include reasonable compensation 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 - 16 - 1018961533 Facilities; provided Telephone Company's requirements for such insurance shall be reasonable and at least in an amount to meet minimum City requirements, as determined by the City (3) 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 companies utilizing wire transmission of services which are authorized to operate within the City Further, nothing contained in this Ordinance shall preempt any pole attachment agreement between the City and Telephone Company wherein Telephone Company or City agrees to pay the other a fee to place its facilities on a utility pole owned by the other SECIMN 5• RIGHTS-08-WAY TO BE RESTORED TO GOOD CONDITION (a) The Telephone Company shall restore the surface of any and all Rights -of -Way within the City disturbed by the Telephone Company in building, constructing, renewing, or maintaining its Facilities or Transmission Media within a reasonable time after completion of the work to at least as good a condition as before commencement of the work and in compliance with the applicable Provisions of the Code of Ordinances of the City and shall further maintain the work to the satisfaction of the City's 17 1018961533 governing body, or of any City official to whom such duties have been or may be delegated, for a period of one (1) year following completion of the restoration, after which time responsibility for the maintenance shall revert to the City During that one (1) year period, the Telephone Company shall be responsible for all maintenance costs incurred as a result of any defects, impairments or substandard condition in the Rights -of -Way caused by the construction, maintenance or restoration work of the Telephone Company The Telephone Company shall comply with all reasonable rules and regulations of the City relative to street excavations, and permits therefor, provided that Telephone Company shall not be required to pay any fees required by such rules, regulations and permits No such Rights -of -way shall encumbered for a longer period than shall be necessary to execute the work (b) The Telephone Company shall submit, in a format prescribed by City and reasonably related to the purpose here stated, information describing the general nature, location, and estimated duration of any activity which will result in the disturbance of any Rights -of -Way The Telephone Company shall not be required -to divulge proprietary information in such submission Proprietary information may include, but is not limited to, type and size of Facility and sub -routes onto private property This information shall be submitted prior to the - 18 - 1016961533 activity except in the case of emergencies, in which case the information shall be submitted as soon as practical This information requirement shall not apply to the Telephone Company's installation of service wires serving a single residence or business When the Telephone Company shall make or cause to be made excavations, or shall place obstructions in any street, alley, highway, public thoroughfare, public utility easement or public way, the Telephone Company shall protect the public by barriers and lights placed, erected and maintained by the Telephone Company SECTION 6. TEMPORARY REMOVAL OF AERIAL WIRE& The Telephone Company on the request of any person shall remove or raise or lower its wires within the City temporarily to permit the moving of houses or other bulky structures The expense of such temporary removal, raising or lowering of wires shall be paid by the benefitted party or parties, and the Telephone Company may require such payment in advance The Telephone Company shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes The clearance of wires above ground shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, United States Department of Commerce, as promulgated at the time of erection thereof - 19 - 1019961533 SECTION-7- TREE TRIMMING In the pursuit of maintaining its telecommunications system, the Telephone Company, its contractors, agents, successors and assigns shall have the right to trim trees upon and overhanging the Rights -of -Way within the City, so as to prevent the branches of such trees from coming in contact with the wires, cables, or other Facilities of the Telephone Company SECTION e. COMPENSATION TO TEE CITY (a) As compensation for the Telephone Company's use and occupancy of the City's Rights -of -Way and for the City's oversight, regulation and supervision of such use and occupancy, in consideration for all other agreements and promises made herein by the City and in lieu of and in full compensation for any lawful tax, license, charge, right-of-way permit fee or inspection fee, whether charged to the Telephone Company or it contractor(s), or any right-of-way easement or street or alley rental or corporate franchise tax or other character of charge for the use and occupancy of the Right-of-way within the City, except the usual general ad valorem taxes and special assessments in accordance with State law, and sales taxes now or hereafter levied by the City and in accordance with State law, the City hereby imposes upon the Telephone Company and the Telephone Company agrees to pay a fee upon each Access Line ("Access Line Fee"), which shall be assessed monthly upon all Access Lines in - 2 0 - 1010961533 the City\ and which shall be paid quarterly as described in Sectionx(b)� herein. The Access Line Fee shall be $ 1.42 per month (for a total of $17_nn for such twelve month period) for each residential Access Line, and $ 2.00 per month (for a total of $24.00 for such twelve month period) for each business Access Line The Access Line Fee will be prorated based upon the number of days during the billing month the customer has service (b) The amount paid to the City will equal the aggregate amount of Access Line Fees assessed to the Telephone Company according to the method described above through the end of each calendar quarter The payment due dates shall be February 28, May 31, August 31, and November 30 of each Contract Year this Ordinance remains in effect The first payment under this Ordinance shall be due on May 31, 1997 (c) If the Ordinance is mutually extended in writing for an additional five years, the Access Line fee will be increased by three (3) percent per year above the prior year's Access Line fee on each anniversary of the effective date Except as otherwise provided herein, the City waives any right to audit or otherwise review any Telephone Company records (d) The Telephone Company and the City agree that the accuracy of the Access Line count is important to both parties To satisfy any audit responsibilities the City may have, the - 21 - 1010961533 Telephone Company agrees to provide the City a reconciliation report of Access Lines and a Customer Service Address List, which report and list shall be in a format and in sufficient detail to enable the City to verify the accuracy of the calculation of the Access Line count and type of local access service (e g , single party residence line, ISDN line or PABX trunk) provided to customers located in the City The parties agree to limit Telephone Company's responsibility to produce such reports to two occasions during the term of this Ordinance One such occasion shall occur during the third year of the Ordinance City reserves the right to determine the other occasion for which such information shall be made available by Telephone•Company for inspection City agrees to provide reasonable notice beforehand of each such request for inspection The parties contemplate that reports produced by Telephone Company will be as of September 30th of the year in which inspection is requested The Telephone Company will provide a report containing a summary of residence and business Access Lines within the City and the gross amount of Access Line Fees billed customers with each quarterly remittance The report shall include the number of Access Lines as of the end of each month in the calendar quarter being reported, as suth data is maintained in Telephone Company's REVUNIT database, or any successor database The Customer Service Address List shall not include any customer names or telephone numbers If the City becomes aware of information that - 22 - 1018961533 affects the accuracy of such List, City shall promptly inform the Telephone Company, and Telephone Company shall review such information and, on verification, correct the Customer Service Address List, and Access Line count City accepts and agrees that the Customer Service Address List and Access Line count are proprietary and the exclusive property of the Telephone Company, and agrees to return both the Customer Service Address List and Access Line count report, and any data copied or taken therefrom in any form, to the Telephone Company within sixty days of its receipt of such List or report, unless such time is extended by the written agreement of the parties As the Customer Service Address List is the exclusive property of the Telephone Company, the City agrees not to release any information contained in that List to anyone unless ordered to do so by a court of competent jurisdiction (e) The compensation provided for herein constitutes reasonable compensation for the consideration granted to the Telephone Company herein (f) Payment of the "Annual Fee" shall not relieve the Telephone Company from paying all applicable municipally -owned utility service charges, ad valorem and sales taxes adopted by the city - 23 - 1018961533 (g) 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) territory shall be consolidated or annexed into the City, then notwithstanding any other provision of this Ordinance, the Annual Fee shall be adjusted, effective on the effective date of the annexation To accomplish this adjustment, within sixty (60) 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 If the City fails to timely provide the maps of the affected areas, then the fees from such additional Access Lines will not become payable to City until sixty (60) days after receipt by TBLBPHONS COMPANY of such maps from the City (h) In the event of an annexation or disannexation as described above, the Annual Fee paid to the City will be adjusted based on the City's gain or loss of Access Lines using the same a methodology prescribed in section t(a)abbve The effective date of the adjustment shall be the same as the effective date of the annexation/disannexation action by the City, provided that the City has supplied the appropriate annexation/dtsannexation maps to the Telephone Company in accordance with the provisions herein. The City agrees to reimburse the Telephone Company for any portion of any Annual Fee that may have been paid to the City 24 - 1018961533 after the effective date of a disannexation but prior to the receipt by Telephone Company from City of notice of such disannexation (1) In the event a regulatory agency of the State, or court of competent jurisdiction finds that the Access ULin� compensation methodology contained in Section,Y(a) of this Ordinance is invalid or unenforceable, then for the remainder of the term of this Ordinance or until such time as the parties agree to another compensation methodology, whichever occurs first, Telephone company agrees to pay annual compensation under this Ordinance to City in an amount equal to the total of the previous four quarterly payments, such compensation to be paid in quarterly installments and if necessary prorated from the date of such Order of the regulatory agency or court SECTION 9. SUCCESSORS AND ASSIGNS The rights, powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective legal and bona fide representatives, successors and assigns SECTION 10. OSRIOD 08 AGREEMENT This agreement shall be in full force and effect for the period beginning with the effective date hereof and ending five (5) years after such date This Ordinance may be extended for an - 25 - 1018961533 additional five (5) years if mutually agreed to in writing by both parties and such extension is approved by the City in accordance with the City's Charter Notwithstanding anything contained in this Ordinance to the contrary, in the event that this Ordinance or any section, sentence, clause, phrase, or part thereof, providing any compensation due the City under this Ordinance, becomes, is held to be, or is declared or determined by judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unconstitutional, unlawful, invalid or otherwise inapplicable, in whole or in part, the Telephone Company and the City shall meet and negotiate in good faith to obtain a new ordinance that is in compliance with the authority's decision or enactment and in which the Telephone Company shall pay to City a reasonable but constitutional and valid compensation SECTION 12, GOVERNING LAW AND VRNUZ. (a) This Ordinance shall be construed in accordance with the law of the State of Texas and the City Charter and City Ordinances in effect on the date of passage of this Ordinance to the extent that such Charter and Ordinances are not in conflict with or in - 26 - 1018961533 violation of the Constitution and laws of the United States or of the State of Texas (b) Venue for any dispute arising under this Agreement shall be in Denton County, Texas (c) This Ordinance shall be construed and deemed to have been negotiated at arms length and drafted by the combined efforts of the City and the Telephone Company ECTTON 13, DISPUTE RESOLUTION (a) Notwithstanding any other provision of this Ordinance, the Parties hereto agree that any claim, cause of action or other dispute based upon or arising out of this Ordinance (a "dispute") shall be conducted, decided, determined and/or resolved pursuant to and in accordance with the provisions of this Section The parties desire to resolve disputes arising out of this Ordinance without litigation Accordingly, in the event of any dispute hereunder, the Parties hereto agree to attempt in good faith to resolve their dispute between themselves within ten (10) days after receipt of the written request of a party, each party will appoint a knowledgeable, responsible representative or representatives to meet and negotiate in good faith to resolve any dispute arising under this Ordinance The parties' representatives will meet within ten (10) days after the appointment of such representatives and negotiate in good faith to resolve any such dispute - 27 - 1018961533 (b) Except for action seeking a temporary restraining order or injunction related to the purposes of this Ordinance, or suit to compel compliance with this dispute resolution process, the parties agree to use the following alternative dispute resolution procedure, and also agree not to sue any party to this Ordinance with respect to controversy or claim arising out of or relating to this Ordinance or its breach prior to exhausting the procedures set out in this section (c) If the parties are unable to settle their dispute at the meeting of representatives provided for in subsection (a), either party may, on written notice to the other party, initiate non- binding mediation of the dispute before a single mediator affiliated with Judicial Arbitration and Mediation Services, Inc (JAMS) or another mediation service mutually agreeable to the parties. Mediation is a forum in which an impartial person, the mediator, facilitate communication between the Parties to promote reconciliation, settlement, or understanding among them A mediator may not impose his own judgment on the issues for that of the parties. Unless expressly authorized by the parties, the mediator may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during mediation, are confidential and shall be inadmissible as settlement discussion pursuant to Rule - 28 - 1018961533 408 of the Federal Rules of Evidence or the applicable state rules The mediator shall be selected by agreement of the parties within thirty (30) days after either party first requests mediation of the other If a single mediator cannot be agreed upon, then each party shall select its own mediator from those on the JAMS approved list, those two mediators will then select a third independent mediator who will conduct the mediation session(s) The mediator's fees will be borne equally by both parties In the event mediation is requested, any applicable statutes of limitations shall be automatically tolled until the mediator declares an impasse If either party desires to request the production of information for its use in the mediation, it shall deliver such request to the other party within five (5) days of the selection of the mediator Any objection to such production shall be delivered to the mediator and the requesting party within five days of receipt of the request, and the mediator shall issue an opinion within five (5) days of such objection, as to whether the information is relevant to the issues presented for mediation and should be produced If either party refuses to proceed with the mediation in accordance with the ruling of the mediator, the mediation shall be deemed to be at impasse, and the parties may then resort to any other available recourse In the event mediation occurs but fails to resolve the dispute, the parties may then resort to means outside the scope of this Section including filing suit - 29 - 1018961533 (d) Neither the City nor the telephone Company by accepting this Ordinance waives its right to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this Ordinance by the other party, including seeking injunctive relief in a court of competent jurisdiction Such right to seek injunctive relief is expressly reserved and all terms and provisions hereof shall be enforceable through injunctive relief All of the regulations provided in this Ordinance are hereby declared to be for a public purpose and the health, safety, and welfare of the general public Any member of the governing body or City official or employee charged with the enforcement of this Ordinance, acting for the City in the discharge of his duties, shall not thereby render himself personally liable, and he is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his said duties 2RCUM-1.5. GRANTING POWER (a) The City continues to take the position that the City has the power to grant or deny consent to the Telephone Company's occupancy and use of the Rights -Of -Way within the City The Telephone Company continues to take the position that Federal law - 30 - 1018961533 and Texas law do not permit the City to deny consent to the Telephone Company to occupy and use such Rights -Of -Way Both the City and the Telephone Company agree that their actions in entering this agreement by ordinance shall not in any way be a waiver of either party's position as stated herein (b) Nothing in this section affects the authority of the City to manage the public Rights -Of -Way or to require a fair and reasonable compensation from all telecommunications providers, on a competitively neutral and nondiscriminatory basis, and the compensation will be publicly disclosed by the City SECTION 16, REPEAL OF CONFLICTING PROVISIONS All other ordinances and agreements and parts of agreements and ordinances in conflict with the provisions of this Ordinance are hereby repealed to the extent of such inconsistency SECTION 17, NOTICE For any purposes related to this Ordinance, notice to the City shall be to - office of City Manager/Secretary City of Denton 215 E McKinney Denton, TX 76201 Notice to the Telephone Company shall be to - 3 1 - 1018961533 Associate General Counsel GTE Southwest Incorporated P 0 Box 152013 Irving, TX 75062 Notice will be effective upon delivery at the above addresses until the City or the Telephone Company notifies the other, in writing, of a change of address SECTION 18, PARTIAL INVALIDITY AND REPEAL PROVISIONS If any section, sentence, clause or phrase in this Ordinance is for any reason held to be illegal, ultra vires, unconstitutional, void, or unenforceable such invalidity shall not affect the validity of the remaining portions, it being the intent of the City in adopting this Ordinance and the Telephone Company in accepting and agreeing to it that no portion hereof or provision hereof shall be inoperative or fail by reason of any unconstitutionality or invalidity or any other portion, provision, or regulation, and to this end, all provisions of this Ordinance are declared to be severable This Ordinance shall be and is hereby declared to be cumulative of all other ordinances of the City, and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed to the extent of such inconsistency All ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed to the extent of such - 3 2 - 1018961533 inconsistency Provided all other ordinances, rules, regulations, and agreements which are not in conflict with this Ordinance and which in any manner relate to the regulation of the City streets, alleys, and public places or the business of the Telephone Company shall remain in full force and effect SECTION 19, EFFECTIVE DATE AND ACCEPTANCE OF The Telephone Company shall have sixty (60) days from and after the passage and approval of this Ordinance to file its written acceptance thereof with the City Secretary Upon such filing, this Ordinance shall take effect and the effective date of this Ordinance shall be January 1, 1997, and it shall be in force from and after such date, and shall effectuate and make binding the agreement provided by the terms hereof All costs of any publication required by law shall be at the expense of the Telephone Company in addition to other charges provided for herein SECTION 20• TRANSFER OR ASSIGNDO21T This Ordinance shall not be transferred or assigned by the Telephone Company except with the approval of the governing body of the City expressed by ordinance and subject to all terms of such ordinance, which shall not be unreasonably withheld - 33 - 1018961533 SECTION 21, OPMF NNBTINO It is hereby officially found and determined that the meeting at which this Ordinance is passed is open to the public as required by law and that public notice of the time, place and purpose of said meeting was given as required PASSED and APPROVED by the City Council of the City of Denton,, Texas, this � day of /�r� A D 19 4?6 MAYOR ii� SecrAtary APPROVED AS .. .%� 4' z —C/ity Attorney The City, acting herein by its duly constituted authorities, hereby declares the foregoing Ordinance passed on first reading and finally effective (if a general law city) as of this 19414— day of 19� j wl� ,,,. Ak to The above and foregoing ordinance read, adopted on first reading and passed to second reading by the following votes, this the 5th day of NOVEMBER 19 96 at a regular session of the City Council JACK MILLER Mayor, voting AYE EULINE BROCK Council Member, voting AYE RONI BEASLEY Council Member, voting AYE CARL YOUNG Council Member, voting AYE JEFF KRUEGER Council Member, voting AYE DAVID BILES Council Member, voting AYE JERRY COTT Council Member, voting AYE The above and foregoing ordinance read, adopted on second reading and passed to third reading by the following votes, this the - 3 5 - 1018961533 19th day of NOVEMBER 19 96 , at a regular session of the City Council JACK MILLER Mayor, voting AYE EULINE BROCK Council Member, voting RONI BEASLEY Council Member, voting CARL YOUNG Council Member, voting JERRY COTT Council Member, voting JEFF KRUEGER Council Member, voting DAVID BILES Council Member, voting AYE AYE AYE AYE AYE AYE Th above and foregoing ordinance read, adopted on third and ed sby the following votes, this the day 19 , at a regular sessio Council STATE OF TEXAS COUNTY OF DENTON M r, voting _ Council b voting Counc ember, tang ouncil Member, voting Council Member, voting Council Member, voting Council Member, voting 5 5 city I, JENNIFER WALTERS , City Secretary of the City of Denton, Texas, do hereby certify that the above and foregoing is a true and correct copy of the right- of-way rental agreement between the City of Denton, Texas, and GTE Southwest Incorporated as indicated herein The same is now - 36 - 1018961533 WHEREAS, the City Council of the City of Denton, Texas, did on the M� day of "n,MiD,ncd ,. 19_44�, enact an Ordinance entitled AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, AND GTE SOUTHWEST INCORPORATED AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHONE COMPANY SHALL CONSTRUCT, ERECT, BUILD, EQUIP, OWN, MAINTAIN AND OPERATE IN, ALONG, UNDER, OVER AND ACROSS, THE STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS, AND PUBLIC GROUNDS OF THE CITY, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF TELECOMMUNICATIONS SERVICES IN SAID CITY AND FOR CONDUCTING A GENERAL LOCAL AND LONG-DISTANCE TELEPHONE BUSINESS; PRESCRIBING THE CONDITIONS GOVERNING THE USE OF PUBLIC RIGHTS -OF -WAY FOR THE TELEPHONE COMPANY'S TELECOMMUNICATIONS BUSINESS, PRESCRIBING THE QUARTERLY COMPENSATION DUE THE CITY UNDER THIS ORDINANCE, PROVIDING THE RIGHT OF THE CITY TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY; SPECIFYING GOVERNING LAWS, PROVIDING FOR ASSIGNMENT, PRESCRIBING THE TERM AND EFFECTIVE DATE OF SAID AGREEMENT; PROVIDING FOR NOTICE; PROVIDING FOR BINDING EFFECT, PROVIDING THAT THE ORDINANCE BE CUMULATIVE, PROVIDING FOR GOVERNMENTAL IMMUNITY, PROVIDING FOR CONSENT AND ACCEPTANCE, PROVIDING FOR SEVERABILITY, PROVIDING FOR CHOICE OF LAW AND VENUE, PROVIDING FOR FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW, PROVIDING FOR FUTURE CONTINGENCIES, PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES, PROVIDING FOR RELEASE OF ALL CLAIMS UNDER PRIOR ORDINANCES, PROVIDING FOR ALTERNATE DISPUTE RESOLUTION, AND PROVIDING FOR METHOD OF ACCEPTANCE; and WHERE S, said Ordinance was on the � day of L—=, 1996, duly approved by the Mayor of said City and the seal of said City was thereto affixed and attested by the City Secretary, NOW THEREFORE, , GTE Southwest Incorporated hereby in all respects accepts, approves, and agrees to said Ordinance, and same shall constitute and be a binding contractual obligation of GTE Southwest, Inc and of the City without waiver of any other remedy by GTE Southwest, Inc or the City and files this its 1018961533 recorded as Ordinance No. 96-253 in the Ordinance Records of the City of Denton, Texas. (Seal) WITNESS MY HAND this the 5th day of December, 1996 - 37 - written acceptance with the City Secretary of the City of Denton, Texas, in his office. Dated this 10� day of 2)e_C-e-") e—r , A D 1991& GTE SOU HWEST INCORPORATED By ATF�s ( /� l &(la 8 i d 1l �CII �1 Assi�`sstant Secretary Acceptance file in the office of the /City Secretary of Denton, Texas, this day off1.r��, A D 19�'& I City Secretary - 2 - 1018961533 NO 95-50259-367 GTE SOUTHWEST INCORPORATED, § a Delaware Corporation, § Plaintiff, § vs § THE CITY OF DENTON, A TEXAS § INCORPORATED MUNICIPALITY, § et al , § Defendant § IN THE DISTRICT COURT OF DENTON COUNTY, TEXAS 367TH JUDICIAL DISTRICT NO 95-5-00360 CITY OF RUSK, et al, § IN THE 2D JUDICIAL Plaintiffs, § v § DISTRICT COURT OF GTE SOUTHWEST, INC, § Defendant § CHEROKEE COUNTY, TEXAS PUC DOCKET NO 14152 SOAH DOCKET NO 473-95-1002 COMPLAINT OF CITY OF DENTON, § ET AL AGAINST § GTE SOUTHWEST INCORPORATED § PUBLIC UTILITY COMMISSION OF TEXAS ROWSET 1021961021 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims ("Agreement") is entered into by and between the City or Denton a Texas incorporated municipality ("City"), and GTE Southwest Incorporated, a Delaware corporation ("GTE") The City and GTE are referred to singularly as a "Party" and collectively as "the Parties " Section 1.1 Denton Litigation On April 25, 1995, GTE filed an action styled GTE Southwest Incorporated vs. City of Denton, et al., Cause No 95-50259-367, in the 367th District Court of Denton County, Texas ("Denton Lawsuit") Section 1.2 Rusk Litt ag tion On May 19, 1995, several Cities filed an action styled City of Rusk an incorporated Texas municipality, et al v GTE Southwest Inc., Cause No 95-5-00360, in the District Court of Cherokee County, Texas ("Rusk Lawsuit') Section 1.3 The PUC Complaint On April 29, 1995, the Cities which were parties to the Rusk Lawsuit filed a Complaint against GTE at the Texas Public Utility Commission styled Complaint of City of Denton. Texas, et al. Against GTE Southwest Incorporated, PUC Docket No 14152, SOAH Docket No 473-95-1002 ("PUC Complaint," collectively referred to with the Denton Lawsuit and the Rusk Lawsuit as the "Right -of -Way Litigation") Section 1 A The Right -of -Way Litigation On -,;,1, 1996, the City Council of Denton authorized the Mayor to settle the Right -of -Way Litigation pursuant to the terms outlined in this Agreement Section 2.1 Right to Compromise City covenants and warrants that it has the right to compromise all claims asserted in the Right -of -Way Litigation as to Denton, the Mayor is authorized to bind the City by executing this Agreement on its behalf, and that it has not assigned to any third party such claims, or any part of such claims against GTE Section 2.2 Dismissal of Right -of -Way Litigation City agrees to dismiss with prejudice any and all claims, counterclaims and causes of action it raised against GTE 1n the Denton Lawsuit, the Rusk Lawsuit, and the PUC Complaint, promptly upon execution of this Agreement ROWSET - 1 - 1021961034 Section 3.1 Riaht to Com rp omise GTE covenants and warrants that Hardy E White, in his capacity as Acting Regional President - GTE Texas/New Mexico Region, has the authority to execute this Agreement on GTE's behalf and to bind GTE to its terms, and that GTE has not assigned to any third party such claims, or any part of GTE's claims against the City Section 3.2 Dismissal of Litigation GTE agrees to dismiss with prejudice any and all claims, counterclaims and causes of action it raised against the City in the Denton Lawsuit, the Rusk Lawsuit, and the PUC Complaint, promptly upon execution of this Agreement Section 3.3 Cash Payment Within seven (7) business days of the City's final reading and enactment of the Right -of -Way Ordinance at Attachment "A" ("New Ordinance") hereto, which is incorporated in this Agreement for all purposes as if fully set forth herein, GTE will pay to the City the sum of $1,255,649 76 This sum comprises the following a $205,147 00, which is the amount of all right-of-way fee payments withheld by GTE pending resolution of the Right -of -Way Litigation ("Withheld Amounts") plus four percent (4%) interest on such amount, b $979,388 76, which represents a compromise of all claims related to payment of compensation by GTE to the City for use of the City's rights - of -way from the beginning of time to and including December 31, 1996, and c $71,114 00, which represents advance payment of reasonable compensation for use of the City's rights -of -way for the period not covered by Section 3 3a or b above and ending on December 31, 1996 GTE agrees not to pass through to its present or future customers the interest amount described in Section 3 3a and GTE agrees that all amounts that GTE is authorized to pass through to its customers under 3 3a above have already been passed through GTE agrees not to pass through to its present or future customers the amount described in Section 3 3b hereof The amount in Section 3 3c above shall be passed through to GTE's customers Jack Stowe will be permitted to meet with a GTE - designated representative, on or about October 16, 1996, to review GTE documents confirming the Withheld Amounts Section 3.4 Termination of Ordinance or Authority Any current or prior ordinance and/or authority imposing a fee upon GTE for the use of the City's rights -of - way shall expire on or before December 31, 1996, and shall be replaced with the New ROWSET - 2 - 1021961021 Ordinance which shall take etfect on January 1, 1997 The Parties agree that the cash payment described in Section 3 3 above includes an amount which the City has determined to be fair and reasonable compensation for GTE's use of the City's rights - of -way during the period from and including the date of the last payment made by GTE to the City for use of its rights -of -way to and including the effective date of the New Ordinance Section 4.1 New Right -of -Way Ordinance The City and GTE agree to execute, adopt and enact the New Ordinance If a current ordinance or charter of the City requires a utility entering into an ordinance such as the New Ordinance to pay the cost of publication of such ordinance in a local newspaper, GTE agrees to pay such cost of publication of the New Ordinance Section 4.2 ity's Enactment of New Ordinance The City agrees to pass and enact the New Ordinance in consecutive readings, as required by law, with the first reading to be held on or before A^�, 1996, and with any and all required readings occurring on or before 3 , 1996 Section 4.3 GTE's Acceptance of New Ordinance GTE agrees to execute and file with the City Secretary its acceptance of the New Ordinance within fourteen (14) business days of receipt of the executed New Ordinance after the final reading and passage of the New Ordinance by the City Section 4.4 Access Line Fee GTE agrees that the City may set an Access Line Fee as that term is defined in the New Ordinance up to $17 00 per year for each residential Access Line and up to $24 00 per year for each business Access Line As of September 30, 1996, there were 29,234 residential Access Lines and 18,399 business Access Lines in the City of Denton The number of Access Lines is subject to change V. u _ :__ 41_1 • u • t IS ■ I C191ATEVAIR•► Section 5.1 Release by City In consideration of the above, the City, in its own behalf and on behalf of its successors and assigns, hereby irrevocably and unconditionally fully releases, acquits and discharges GTE Southwest Incorporated, its successors, parent corporation, affiliated and subsidiary corporations, officers, directors, employees, attorneys, representatives and agents from any and all claims from the beginning of time up to and including December 31, 1996, (a) that relate to the payment by GTE to the City of reasonable compensation for GTE's use of City rights -of - way, whether by agreement, ordinance or otherwise, and (b) that relate to the pass ROWSET .3- 1021961021 through of such payments by GTE to its customers, which the City made or could have made in the lawsuits styled GTE Southwest Incorporated vs. City of Denton, et al., Cause No 95-50259-367, in the 367th District Court of Denton County, Texas, City of Rusk an incorporated Texas municipality et al v GTE Southwest Inc., Cause No 95- 5-00360, in the District Court of Cherokee County, Texas, and the proceeding styled Complaint of City of Denton Texas et al Against GTE Southwest Incorporated, PUC Docket No 14152, SOAH Docket No 473-95-1002 in the Texas Public Utility Commission Section 5.2 Release by GTE In consideration of the above, GTE Southwest Incorporated, in its own behalf and on behalf of its successors and assigns, hereby irrevocably and unconditionally fully releases, acquits and discharges the City of Denton, Texas, its officials, employees, representatives, attorneys and agents from any and all claims from the beginning of time up to and including December 31, 1996, (a) that relate to the payment by GTE to the City of reasonable compensation for GTE's use of City rights -of -way, whether by agreement, ordinance or otherwise, and (b) that relate to the pass through of such payments by GTE to its customers, which GTE made or could have made in the lawsuits styled GTE Southwest Incorporated vs. City of Denton, et al., Cause No 95-50259-367, in the 367th District Court of Denton County, Texas, City of Rusk, an incorporated Texas municipality. et al. v. GTE Southwest, Inc., Cause No 95-5-00360, in the District Court of Cherokee County, Texas, and the proceeding styled Complaint of City of Denton. Texas. et al. Against GTE Southwest Incorporated, PUC Docket No 14152, SOAH Docket No 473-95-1002 in the Texas Public Utility Commission Section 5.3 Dismissal of Claims The Parties agree to submit, within ten (10) days after execution by the City and GTE of this Agreement, an agreed order of dismissal of all claims, counterclaims and causes of action, with prejudice, by each Party against the other in the Denton Lawsuit, the Rusk Lawsuit, and the PUC Complaint If any of the agreed orders of dismissal are not accepted or signed by the Court or the PUC, respectively, both Parties agree to file motions for nonsuit with prejudice regarding all claims, counterclaims and causes of action raised by such Parties in Court or PUC Each Party shall pay all court costs incurred by such Party Section 6.1 This Agreement is a compromise settlement of disputed issues and claims and, therefore, will not be construed as an admission of liability of any Party or of the validity of any claims or potential claims made by any Party against any other Party or otherwise construed as an admission of any Party and, as such, will not be offered or received as evidence in any proceeding, provided that nothing will prevent this Agreement or its terms from being used, offered or received in evidence in any proceeding to enforce any or all of the terms herein ROWSET - 4 - 1021961021 Section 6.2 This Agreement will neither constitute nor provide to any third party any remedy, defense, claim, evidence, or other right in excess of those existing without reference to this Agreement Section 6.3 This Agreement constitutes the entire agreement between the Parties with respect to the matters specifically described herein, and all prior agreements, oral or written representations, statements, understandings, proposals and undertakings with respect to such matters are superseded and replaced by the provisions of this Agreement Section 6.4 The persons executing this Agreement on behalf of the respective Parties hereto have been duly and properly authorized to execute the same by the passage of any necessary motion, resolution or other act Section 6.5 This Agreement shall be construed in accordance with the laws of the State of Texas Section 6.6 The rights, powers, limitations, duties, restrictions and releases herein provided for shall inure to and be binding upon the Parties hereto and upon their respective legal and bona fide representatives, successors and assigns D actQn-62 The effective date of this Agreement is the day of �— 1996 CITY OF DENTON, TEXAS ATTEST ' BY or Ci ecreta City of Denton, Texas C of Denton, Texas GTE SOUTHWEST INCORPORATED ATTEST By Hardy E White Acting Regional President - Texas/New Mexico Date• ROWSET - 5 - 1021961021