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1996-253 ORDINANCE NO ~ AN ORDINANCE WHEREBY THE CITY OF DENTON, TEXAS, AND GTE SOUTHWEST INCORPORATED AGREE THAT, FOR THE PURPOSE OF OPERATING ITS TELECOMMUNICATIONS BUSINESS, THE TELEPHO~.~ 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 TELZPION~ COMPA~Y'B 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 CUM%FI~ATIVE, PROVIDING FOR GOVERNMENTAL IMMUNITY; PROVIDING FOR CONSENT AND ACCEPTANCE, PROVIDING FOR SEVERABILITY, PROVIDING FOR CHOICE OF LAW AND VENUE, FINDING AND DETERMINING T~AT 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 Co~any shall construct, maintain and operate its physical plant in the public rights-of- way within the City's corporate limits in the future, NOW, T~EFOP2~, BE IT ORDAINED BY 'r~ CITY COUNCIL OF THE CITY OF DENTON, TEXA~, TNAT~ ~ DEFINITIONS Whenever used in this Ordinance, the following words and terms shall have the definitions and meanings provided in this section (a) ~ 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, mult~-l~ne business, Centrex, Centranet, key lines, ISDN lines, COCT lines, sem~- 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) ~ Ail 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 Rlghts-of-Way (d) - - Ail present and future public streets, avenues, highways, alleys, bridges, v~aducts, public thoroughfares, public utility easements, public ways, publlc grounds, and without limitation by the foregoing enumeration, other public property within the city l~mlts of the City As used herein, the term ',RIghts-of-Way" does not Include facll~tles dedicated to the provision of electrical power to citizens of the City to the extent the CiCy may own the power utility providing electrical power in the City (e) ~?.~o~CATZONS OH TIL~COMMU~ICATZONS 8ERVICgS~ Ail services of any'nature, offered for sale by the Telephone Co~pany 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 otherwise, not chosen, created, or offered for distribution by the Telephone Co~pany, transmitted without change in form or content of the informatlon as sent and received, whlch transmission ~s offered for sale by the Telephone Con, any 1n the City, whlch services are provided in whole or part in the City to any customers of any type whatsoever "Telecommunications" and "Telecommunications Services" do not 1nclude such services as cable services, as defined ~n the Cable Communications Pollcy Act of 1984 (47 U S.C A § 521, et seq , amended) or as recognized by the Federal Communlcatlons Commlsslon or any other servlce wherein content ~s selected for distrlbutlon by the Telephone (f) T~L~RON~ COMPANYz GTE Southwest Incorporated (g) T~AN~M/S~IONM~DIAz Ail 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, v~deo, or data or other purposes, which are physically located ~n the City Rights-of-Way ~ONSTRUCTION AND MAINTENANCE OF TELEPRON~ P~%/~T AND SERVICE (a) Pursuant to the laws of the State of Texas and this Ordinance, the Telephone Co~any has the non-exclusive r~ght and prmvmlege to use and occupy the publmc rmghts-of-way mn the City for the purpose of mamntamnmng and operatmng mrs Transmmssmon Medma used mn the provmsion of Telecommunmcatmons Servmces and the operation of a telecommunmcatmons system, subject to the terms, condltmons, and stlpulatmons set forth in thms Ordmnance, the Constmtutlons and laws of the Unmted States and the State of Texas and the Cmty's Charter and Ordmnances to the extent such Ordinances are not in conflict herewith The Telephone Company ms not authorxzed to provide cable televmsmon servmce as a cable operator, as that term is defined mn the Cable Communmcatmons Polmcy Act of 1984, mn the City without obtamnlng a separate franchise from the Cmty The Telephone Company's Facilities and Transmmssion Medxa used in or incmdent to the provxslon of Telecommunmcat~ons Services and to the maintenance of a telecommunmcations business by the Telephone C~any in the City shall remamn as now constructed, subject to such changes as under the conditmons prescribed in this Ordinance may be consmdered necessary to the publmc health and safety by the City mn the exercmse of mrs lawful polmce powers and such changes and extensmons as may be considered necessary by the Telephone Company in the pursuit of its telecommunmcatmons bus~ness The Telephone Co~any shall at all tmmes during the term of thms Ordmnance be subject to all lawful exercise of the polmce power by the Cmty and to such reasonable and lawful regulatmon as the City shall hereafter by charter, resolutmon or ordinance provide The terms of th~s 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 Faclllt~es in a reasonable operating condition at all normal t~mes during the term or any extension of this Ordinance An exception to this condition is automatically in effect when service furnished by the Telephone C~m~any 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 Telep~ne Co~any 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 faclllt~es underground presents an undue economlc burden on Telephone Company, upon proof thereof being presented to the City, Telephone Company and City w~ll jointly agree to alternative installation of relocation options 6 1018961533 ~ SUPZRVISION 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 wlth 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 Fac~l~tles shall be fixed under the supervision of the City's governing body or an authorized committee or agent appointed by sa~d governlng body Ail 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 dra~n, and so that the same will interfere as l~ttle 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 C~ty shall have the r~ght to require the Telephone Con. any, at its own expense, to ~nstall or relocate above-ground Facilities as far from vehIcular travel lanes as reasonably possible for traffic safety purposes Except as provided in ~ection 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, condu~ts, cables and any other Fac~l~tles to be placed and constructed by the Telephone Company ~n the City R~ghts-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 d~rectlon of the City's governing body or of any City, C~ttee, 4epare-ent or official to whom such dutxes have been or may be delegated (b) The City shall have the right to change the grade, mnstall, relocate, or widen the publxc streets, sxdewalks, bikeways, alleys, public thoroughfares, highways, landscapxng, and publmc way and places w~thln the present l~m~ts of the City and within said limits as same may from time to time be extended, and in such events the Telephone C~mpany shall relocate, at its own expense, xts Facilltxes and Transmxss~on Media, ~n order to accommodate the installation, relocation, widenxng, or changxng of the grade of any such public street, sidewalk, bikeway, alley, public thoroughfare, highway or publxc ways, including if necessary relocating such Facilities and Transm~ssxon Med~a a sufficient distance from the edge of the pavement to permit a reasonable work area for machinery and ~ndmvmduals engaged in installing, relocating, widening, or changing the grade of any -- 8 - 1018961.533 publmc street, sidewalk, bmkeway, alley, publmc thoroughfare, highway or publmc way (c) The City shall have rmght to lay, and permmt to be laid, sewer, gas, water, electrmc, and othe~ pmpelmnes or cables or condumts, and to do and permit to be done any underground and overhead mnstallatlon or mmprovement that may be deemed necessary or proper by the governmng body of the City mn, across, along, over or under any City Rights-of-Way occupmed by the Telephone Company, and to change any curb or smdewalk or the grade of any street In permmttmng such work to be done, the City shall not be liable to the Telephone Co~mny for any damage so caused, nor shall the City be liable to the Telephone Con. any for any damages armsmng out of the performance by the City or its contractors or subcontractors not willfully and unnecessarily occasioned, provided, however, nothing herein shall relmeve any other person or corporation from liabilmty for damages to facllitmes of the Telephone C~mny, mncluding the City's contractors and subcontractors. The City shall also have the right to requmre the Telephone C~any to relocate, at the sole expense of the Telephone C~mny, any Facilities erected or maintained in City Rmghts-of-Way, mf samd relocatmon ms deemed necessary by the governing body or its designated representative for traffic safety purposes, Including traffic smgnals Whenever by reason of changes mn the grade of a thoroughfare or mn the location or 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 Co~any to relocate or remove Facilities, for the completion of public works projects or for reasons of public safety, the City will inform the Telephone Co~any 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 recl~lrement to relocate or remove said Facilities Whenever it shall be necessary to require Telephone C~mpany to alter, change, adapt, or conform its Facilities w~thin the Rights-of-Way, such alterations or changes shall be made promptly, with consideration given to the magnitude of such alterations or changes, w~thout claxm 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 If the City requzres the Telephone Company to adapt or conform mrs Facmlltmes to enable any other entity or person, except the City (as described ~n Section 3{c) above), to use, or to use wmth greater convenmence, R~ghts-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 rexmburse the Telephone Company for any loss and expense caused by or arlsmng out of such change, provided, however, that · n no event shall the City be liable for such reimbursement (e) Nothmng in this Ordmnance ms intended to add to or detract from any authority granted by federal or state law to the City or the Telephone C~any ~ ATTACHMENTS TO POLES AND SPACI IN DUCTS (a) As partial compensation for the use of the City's Rmghts-of- Way, the Telephone Ccm~any shall permmt the City to use, wmthout charge, solely for its own, non-commercial purposes, available duct space within one duct mn all of the Telephone Coa~any's exxstmng ducted Facilmtles within the City lmmits, upon written request by the City, mf such duct space ms avamlable when requested Alternatively, Telephone Company shall provide Cmty wmth space on existing telephone poles for the City's use, w~thout charge, solely for ~ts own, non-commercial purposes, ~f 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 c~rcults in such conduits or upon such poles to carry voltage ~n excess of one hundred thirty (130) volts for signal purposes, nor otherwise use any such clrcults so as to unreasonably ~nterfere with Telephone Company's Telecommunications Services or Telephone Company Facilities. (b) The City shall not sell, lease or otherwise make available · ts rights to use Telephone Com%~amy's Facilities to any third party Such r~ghts 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 ~s bound by the provisions of th~s Ordinance. (c) Should the'City desire to purchase or otherwise acquire additional Facmlltles from the Telephone Company for zts non- commerczal use, then a further separate, non-contzngent agreement 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 Facllltmes The Telephone Company agrees to respond mn wrmtmng to the City's requests wmthmn thirty (30) calendar days after recemvlng the request The City Councml shall designate one City contact person for requests for Facllmty usage (e) The City recognizes that the Telephone C~any cannot reserve Facilities for the City's use at some mndefinlte time mn the future Accordingly, the City will request the use of Telephone C~any's Facilities only after the City has an approved and funded constructmon plan Project constructmon by the City must commence wlthmn smx (6) months of the Telephone Company notmfymng the City that Facllmtles are avamlable Unless delay is occasioned through no fault of the City, any equmpment or facllmties of the City placed by the City on or mn Telephone Company's Facilities must be fully operatmonal wlthmn 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 facilltmes placed on or in Telephone Company's Facilities fully operational as soon as practicable with consideration given to the circumstances which caused the delay (f) Wlth regard to the City's equipment or facilities placed or on, Telephone Company,s Facilities, the Telephone Company shall be relieved of ~ts obl~gatlon to reserve space ~n or on ~ts Facilities for the specific Facility if construction is not started within slx (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 ~n Section 4(e), unless an extension of t~me 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 Co~m~any may not charge the City an additional fee for the use of the Telephone Ccm~any's Facilities. The City's use of Telephone C~any Facilities 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 ~he benefit of the City. The Telephone Company will not be liable for the installation or maintenance of any 14 - 1018961533 City facilzties under thzs Ordanance or for any damage not caused solely by the negligence of the Telephone Company (g) The City shall clearly mark all of ars facalataes that are placed an, or on, Telephone Company Facalataes In order to protect the telephone service to the citizens of the City, the City agrees that all constructaon by the City an, or on, Telephone Come, any Facilaties wall be an accordance wath Telephone Come, any standards and procedures and any applicable City Codes or Ordanances The Telephone C~m~any shall have the right to make on-site inspections durlng construction by the City In the event the City, in making its facilities operational, encounters any situation that might impact Telephone Co~any,e communication service to the citizens of the City, the City shall stop construction and notify the Telephone C~any ammediately (h) Except as otherwise provided in Sectlon 4(e) above, the Telephone C~m~any may deny the City's request for use of Telephone C~m~mny Facilities only af the Telephone Company has plans to use th~ 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 [018961533 show the City its current englneer~ng plans that demonstrate that the Telephone Com~A~any will use the requested Facilities for Telecommunlcat~ons 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 Cc~apany w~ll, from t~me to time, upon written request from the City provide to the City the names of resellers of telecommunication services uslng, or requesting to use, Telephone Con,any Facilities The Telephone C~ny may be required to attach ~ts 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 Coca, any upon reasonable, non-dxscrlminatory terms in a separate, non- contingent agreement which shall include reasonable compensation The Telephone Co=~any 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 cond~tmon precedent to granting permission to any such person or entity to attach transmissIon media to Telephone Company's - 16 ~0~696~533 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 (]) 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 w~th 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 Co~any wherein Telephone C~any or City agrees to pay the other a fee to place its facilities on a utility pole owned by the other ~F~ RI~HTS-OF-WAY TO BI RESTORED TO ~OOD CONDITION (a) The Telephone C~m~pany shall restore the surface of any and all Rights-of-Way within the City d~sturbed 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 per~od 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 per~od, the Telephone Company shall be responsible for all maintenance costs ~ncurred as a result of any defects, lmpa~rments or substandard cond~tlon in the Rights-of-Way caused by the construction, maintenance or restoration work of the Telephone C~m~mny The Telephone C~m~mny 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 perzod than shall be necessary to execute the work (b) The Telephone Company shall submit, zn a format prescribed by City and reasonably related to the purpose here stated, znformatlon descrlbzng the general nature, locatzon, and estimated duration of any activity which wzll result zn the dzsturbance of any Rights-of-Way The Telephone C~mpany shall not be required'to divulge proprzetary information in such submlsszon Proprzetary information may znclude, but ls not lzmlted to, type and szze of Facllzty and sub-routes onto przvate property This information shall be submztted prior to the activity except in the case of emergencies, ~n which case the lnformatlon shall be submltted as soon as practical This information requirement shall not apply to the Telephone Company's lnstallat~on 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 Com~mny shall protect the public by barriers and lights placed, erected and maintained by the Telephone Company ~ TEMPORARY R~MOVAL 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 w~res shall be paid by the benefitted party or parties, and the Telephone Company may require such payment ~n 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 th~ National Electrical Safety Code, National Bureau of Standards, Un,ted States Department of Commerce, as promulgated at the time of erection thereof ~ TREZ T~I~MING In the pursuit of maintaining its telecommunlcat~ons system, the Telephone Company, its contractors, agents, successors and assigns shall have the right to tr~m trees upon and overhanging the Rights-of-Way w~than the City, so as to prevent the branches of such trees from coming in contact with the wires, cables, or other Facalatles of the Telephone Company ~ COMPENSATION TO THE 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, regulatlon and supervision of such use and occupancy, an consideratLon for all other agreements and promises made herein by the City and ~n l~eu of and ~n full compensation for any lawful tax, license, charge, raght-of-way permlt fee or Inspection fee, whether charged to the Telephone Co~pany or at contractor(s), or any r~ght-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 wathan the City, excep~ the usual general ad valorem taxes and special assessments in accordance with State law, and sales taxes now or hereafter levied by the C~ty and an accordance with State law, the City hereby imposes upon the Telephone Con, any and the Telephone Company agrees to pay a fee upon each Access Lane ("Access Lane Fee"), which shall be assessed monthly upon all Access Lines an - 20 101096~53~ the City and whmch shall be paid quarterly as described in Sectlon~(b) here~n. The Access L~ne Fee shall be $1.&2 per month (for a total of $]7_0~ for such twelve month period) for each residential Access Lmne, and $ 2.00 per month (for a total of $.24.00 for such twelve month period) for each busmness 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 C~any 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 ~s mutually extended in writing for an additional five years, the Access L~ne fee w~ll be increased by three (3) percent per year above the prior year's Access L~ne fee on each annlversary of the effective date Except as otherwise provided herein, the City waives any right to audit or otherwise review any Telephone Co~p&ny records (d) The Telephone Company and the City agree that the accuracy of the Access Line count ~s important to both parties To satisfy any audit responsibilities the C~ty may have, the - 21 - ~0~896~533 Telephone Company agrees to provide the City a reconc~llatlon report of Access Lxnes and a Customer Servxce 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 , smngle party residence line, ISDN lmne or PABX trunk) provided to customers located in the City The parties agree to llmxt Telephone Ccm~any's responsibxl~ty to produce such reports to two occasions during the term of this Ordinance One such occasion shall occur during the third year of the Ordxnance City reserves the right to determine the other occasion for which such ~nformation shall be made available by Talaphon. C~any for · nspectxon 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 ~n which ~nspect~on is requested The Telephone Company will provide a report containxng a summary of residence and bus~ness Access Lines within the City and the gross amount of Access Line Fees billed customers with each quarterly remxttance The report shall include the number of Access Lines as of the end of each month in the calendar quarter being reported, as such 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 10189~1533 affects the accuracy of such Lmst, City shall promptly mnform the Telephone Company, and Telephone Company shall revmew such mnformatmon and, on vermfmcatmon, correct the Customer Servmce Address Lmst, and Access Line count City accepts and agrees that the Customer Servmce Address Lmst and Access Lmne count are proprmetary 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 copmed or taken therefrom in any form, to the Telephone C~m~any wlthmn sixty days of its recempt of such Lmst or report, unless such tmme ms extended by the written agreement of the parties As the Customer Service Address List ms the exclusmve property of the Telephone Co~pany, the City agrees not to release any mnformatmon contamned mn that Lmst to anyone unless ordered to do so by a court of competent jurisdiction (e) The compensatmon provided for here~n constitutes reasonable compensatmon for the consxderatmon granted to the Telephone Company here~n (f) Payment of the "Annual Fee" shall not relmeve the Telephone Co~any from paymng all applicable munmcmpally-owned utmlmty servmce charges, ad valorem and sales taxes adopted by the city (g) In the event that either (1) territory within the boundaries of the City shall be dlsannexed 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 effectlng a dlsannexatlon/annexatlon as described above, the City shall provide the Telephone C~m~mny with maps of the affected area(s) showing the new boundaries of the City If the City falls to timely provide the maps of the affected areas, then the fees from such additional Access Lanes wall not become payable to City until sixty (60) days after receipt by TZL~PHON~ COMPANY of such maps from the City (h) In the event of an annexation or dlsannexatlon as described above, the Annual Fee paid to the City will be adjusted based on the City's gain or loss of Access Lanes ~slng the same methodology prescribed an section The effective date of the adjustment shall be the same as the effective date of the annexation/disannexatlon action by the City, provided that the City has supplied the appropriate annexatlon/dlsannexatlon maps to the Telephone Co~any an accordance with the provisions herein. The City agrees to reimburse the Telephone Cool, any for any portion of any Armual Fee that may have been paid to the City 24 - 1018961533 after the effective date of a dls~nnexatlon but prior to the receipt by Telephone Con, any from City of notice of such dlsannexat~on (1) In the event a regulatory agency of the State, or court of competent jurisdiction f~nds that the Access Line ~ compensation methodology contained in Sectlon~(a~f~t~s 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 a~m~mny agrees to pay annual compensation under this Ordinance to Cl~y 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 ~ SUCCESSORS AND ASSIGNS The rights, powers, limitations, duties and restrictions here~n provided for shall inure to and be binding upon the parties hereto and upon their respective legal and bona fide representatives, successors and assigns ~ ~ERIOD OF A~REEM~NT This agreement shall be in full force and effect for the period beginning w~th the effective date hereof and ending five {5) years after such date Th~s Ordinance may be extended for an additional five (5) years if mutually agreed to ~n writing by both part~es and such extension is approved by the City in accordance w~th the City's Charter ~ FUTURE CONTINGENCIZS Notwithstanding anything contained in this Ordinance to the contrary, ~n the event that th~s 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 ~s declared or determined by judicial, administrative or legislative authority exercising ~ts jurisdiction to be excessive, unrecoverable, unenforceable, void, unconstitutional, unlawful, ~nval~d or otherwise ~nappl~cable, in whole or in part, the Telephone C~any and the City shall meet and negotiate ~n good faith to obtain a new ordinance that is in compliance with the author~ty's decision or enactment and ~n which the Telephone Company shall pay to City a reasonable but constitutional and valid compensation ~ 6K)V~P. NINGLAWANDVEN~E. (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 w~th or in violation of the Constitution and laws of the Unlted 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 negotlated at arms length and drafted by the combined efforts of the City and the Telephone Company ~ DISPUTI P. ESOLUTION (a) Notwithstanding any other provision of this Ordinance, the PartLee 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 ~n accordance with the provisions of th~s 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 wrLtten request of a party, each party will appoint a knowledgeable, responsible representative or representatives to meet and negotiate in good falth to resolve any dispute arising under this Ordinance The parties' representatives w~ll meet wlthLn 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 temporar~ restraining order or in]unction related to the purposes of this Ordinance, or su~t to compel compliance w~th this d~spute resolution process, the parties agree to use the following alternative dispute resolution procedure, and also agree not to sue any party to this Ordinance w~th 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 partmes are unable to settle themr dispute at the meetmng of representatmves provmded for an subsectmon (a), emther party may, on written notice to the other party, mnmtmate non- bmndmng medmatmon of the dispute before a smngle mediator affllmated wlth Judlcial Arbltratlon and MediatIon Servmces, Inc (JAMS) or another medmation servmce mutually agreeable to the partmes. Medmation Ks a forum in which an impartial person, the mediator, facilitate communication between the Part~es to promote reconciliation, settlement, or understanding among them A mediator may not impose his own judgment on the issues for that of the part~es. Unless expressly authorIzed by the parties, the mediator may not disclose to either party ~nformat~on given ~n 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 otherwmse, all matters, Including the conduct and demeanor of the parties and their counsel during mediation, are confidential and shall be ~nadmisslble as settlement d~scuss~on 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 thlrty (30) days after either party f~rst 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 l~st, 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 ~nformat~on for ~ts use ~n the mediation, ~t shall deliver such request to the other party w~thin f~ve (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 ob]ectlon, as to whether the lnformat~on is relevant to the issues presented for mediation and should be produced If either party refuses to proceed with the mediation ~n accordance with the r~llng 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 falls to resolve the dispute, the parties may then resort to means outside the scope of this Section including filing suit - 29 - ~0~896~533 (d) Nemther the City nor the ~elephone Company by accepting this 0rdlnance wamves mrs rmght to seek all appropriate legal and equitable remedmes as allowed by law upon vmolatmon of the terms of this 0rdmnance by the other party, including seeking injunctive re~!ef in a court of competent ]urmsd~ct~on Such rmght to seek ln]unctmve relmef ms expressly reserved and all terms and provisions hereof shall be enforceable through mn]unctmve relmef ~ ~OV~P~NTAL IMMUNITY. Ail of the regulatmons provided in thms Ordinance are hereby declared to be for a publmc purpose and the health, safety, and welfare of the general public Any member of the governing body or City offmcmal or employee charged with the enforcement of thms 0rdlnance, acting for the City mn the discharge of his duties, shall not thereby render hmmself personally lmable, and he ms hereby relmeved from all personal llabmlmty for any damage that might accrue to persons or property as a result of any act required or permmtted in the dmscharge of his samd dutmes ~ ~P~%NTING POWER (a) The City contmnues to take the posmtmon that the City has the power to gr~nt or deny consent to the Telephone Com~any,s occupancy and use of the Rmghts-Of-Way wmth~n the City The Telephone Co.any contmnues to take the posztlon that Federal law - 30 - 1018961533 and Texas law do not permmt the City to deny consent to the Telephone Company to occupy and use such Rmghts-Of-Way Both the City and the Telephon~ Company agree that themr actmons in entermng th~s agreement by ordmnance shall not mn any way be a waiver of e~ther party's posmtmon as stated here~n (b) Nothmng in this sectmon affects the authority of the City to manage the public Rights-Of-Way or to require a fair and reasonable compensation from all telecommunmcatlons providers, on a competmtmvely neutral and nondiscriminatory basks, and the compensatxon will be publmcly dmsctosed by the City ~ REPEAL OF CONFLICTING PROVISIONS Ail other ordmnances and agreements and parts of agreements and ordmnances mn conflict with the provmsmons of this Ordinance are hereby repealed to the extent of such xnconsmstency For any purposes related to this Ordmnance, notmce to the City shall be to. Office of Cmty Manager/Secretary Cmty of Denton 215 E McKmnney Denton, TX 76201 Notmce to the Telephone Co~any shall be to - 31 Associate General Counsel GTE Southwest Incorporated P O 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 ~ 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 portzons, it being the Intent of the City in adopting this Ordinance and the Telephone Company in accepting and agreeing to it that no portzon 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 32 - 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 ~ EFFECTIV~ DATE AND ACCEPTANCE OF AGREEMENT The Telephone Co~apany 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, th~s Ordinance shall take effect and the effective date of th2s Ordinance shall be January 1, 1997, and it shall be in force from and after such date, and shall effectuate and make b~ndlng the agreement provided by the terms hereof Ail costs of any publication required by law shall be at the expense of the Telephone Company in addition to other charges provided for herein ~ TI1ANSFZR OR ASSI~MENT 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 ~0~896~533 ~ OP~B~TIN~ It Is hereby offlclally found and determined that the meeting at which this Ordinance is passed is open to the pubhc as required by law and that public notice of the t~me, place and purpose of said meeting was given as required PASSED and APPROVED by the City Council of the City of ~nton, Tex. s, this /gr--d.y of ~Z~&~--__, A ~ ~RO~ ~ ~ ~ The City, acting herein by ~ts duly constltuted authorlt~es, hereby declares the foregoing Ordinance passed on first reading and finally effective (if a general law city) as of this /~ day of ~ , 19~__ ' Council ~ember er · Councll Membe~ The above and foregoing ordinance read, adopted on first reading and passed to second reading by the following votes, th~s the 5th day of NOVEMBER , 19 96 , at a reg~/lar 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 Councll 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, th~s the - 35 ~0~896~ 19th 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 JERRY COTT Council Member voting AYE JEFF KRUEGER Council Member voting AYE DAVID BILES Council Member voting AYE The~above and foregoing ordinance read, adopted on third read~_3~g and~l~sed by the following votes, this the day ~ , 19 , , at a regular session of~.~Se City M ~D~o.r, vot ~ng / Council Me.er, voting Council Me~er, voting STATE OF TEXAS § § COUNTY OF DENTON § I, JENNIFER WALTERS , City Secretary of the City of Dent~n, 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 WHEREAS, the City Council of the City of Denton, Texas, dld on the /~'~ day of .~1_ ~ , 19 ~ . enact an Ordinance entmtled AN ORDINANCE ~EREBY T~E CX~ OF DE~ON, TE~, ~ GTE SO~EST INCORPO~TED AGREE T~T, FOR T~E P~POSE OF OPE~TING ITS TELECO~I~TIONS BUSINESS, THE T~LEPHO~ CO~ S~L CONSTRUCT, ERECT, BUILD, EQUIP, O~, ~I~AIN ~ OPE~TE IN, ~ONG, ~ER, O~R ~ ACROSS, ~E STREETS, A~S, ~LEYS, BRIDGES, VI~UCTS, ~ P~LIC GRO~S OF ~E CI~, SUCH POSTS, POLES, WIRES, ~LES, CO~UITS ~ O~ER APPLI~CES, STRUC~S ~ FIX~ES ~CESS~Y OR CO~NIE~ FOR RE~ITION OF TELECO~I~TIONS SERVICES IN SAID CI~ ~ FOR CO~UCTING A GE~ LO~ ~ ~NG-DIST~CE TELEPHO~ BUSI~SS; P~SCRIBING ~E CO~ITIONS ~ING THE USE OF P~LIC RIGHTS-OF-WAY FOR ~E ~LEPHO~ CO~' S TELECO~I ~TIONS BUS I~SS, PRESCRIBING THE QU~TE~Y COMPENSATION D~ ~E CI~ ~ER THIS O~IN~CE, PROVIDING ~E RIGHT OF ~E CI~ TO USE CERTAIN FACILITIES OF THE ~LEPHO~ CO~; SPECIFYING ~IN~ ~WS, PROVIDING FOR ~SIG~, P~SCRIBING ~E TE~ ~ EFFECTI~ DATE OF SAID AGREEME~; PROVIDIN~ FOR NOTICE; PROVIDING FOR BI~ING EFFECT, PROVIDING ~T ~E O~IN~CE BE ~TI~, PROVIDING FOR ~~ I~ITY, PROVIDING FOR CONSE~ ~ ACCEPT~CE, PROVIDING FOR S~ILI~, PROVIDING FOR ~OICE OF ~W ~ ~, PROVIDING FOR FI~ING ~ DETE~INING ~T THE MEETING AT ~I~ ~IS O~IN~CE IS P~SED IS OPEN TO THE P~LIC ~ REQUIRED BY ~W, PROVIDIN~ FOR ~ CO~INGENCIES, PROVIDING FOR REP~ OF CO~LICTING O~IN~CES, PROVIDING FOR REL~E OF ~L C~IMS ~ER PRIOR O~IN~CES, PROVIDING FOR ~TE~ATE DISP~E RESOL~ION, ~ PROVIDING FOR METHOD OF ACCEPT~CE; and ~sald Ordinance was on the /~ day of , 1996, duly approved by the Mayor of samd City and the seal of samd City was thereto affmxed and attested by the City Sec~eta~, NOW THEREFORE, , GTE Southwest Inco~orated hereby mn all respects accepts, approves, and agrees to said Ordinance, and same shall constmtute and be a bmndmng contractual obllgatmon of GTE Southwest, Inc and of the City without waiver of any other remedy by GTE Southwest, Inc or the City and fmles thms its 1018961533 recorded as Ordinance No. 96-253 in the Ordinance Records of the City of Denton, Texas. WITNESS MY HAND this the 5th day of December, 1996 (Seal) 37 - written acceptance with the City Secretary of the City of Denton, Texas, ~n h~s off~ce. Acceptance flledlln the office of the,City Secretary of Denton, Texas, this /~' day of ,~_~ ~ , A D 19F~ ~ / City Secretary 2 1018961533 NO 95-50259-367 GTE SOUTHWEST INCORPORATED, § IN THE DISTRICT COURT OF a Delaware Corporation, § Plaintiff, § VS § DENTON COUNTY, TEXAS THE CITY OF DENTON, A TEXAS § INCORPORATED MUNICIPALITY, § et a~, § Defendant § 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, § PUBLIC UTILITY COMMISSION ET AL AGAINST § OF GTE SOUTHWEST INCORPORATED § TEXAS ROWSET 1021961021 SE'I-I'LEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims ("Agreement") ~s entered into by and between the City of Denton a Texas ~ncorporated munlclpahty ("C~ty"), and GTE Southwest Incorporated, a Delaware corporation ("GTE") The C~ty and GTE are referred to s~ngularly as a "Party" and collectively as "the Part~es" I THE RIGHT-OF-W/~Y LITIGATION Section 1.1 Denton L~t~a_at~on On April 25, 1995, GTE filed an action styled GTE Southwest Incorporated vs. C~t¥ of Denton. et al., Cause No 95-50259-367, In the 367th District Court of Denton County, Texas ("Denton Lawsuit") Sect~oq 1,~ Rusk Litigation On May 19, 1995, several C~tles hied an acbon styled City of Rusk. an ~ncorporated Texas mun~c~Dahty, et al. v GTE Southwest. Inc., Cause No 95-5-00360, ~n the D~stnct Court of Cherokee County, Texas ("Rusk Lawsuit") Secbon 1.3 The PUC ComDla~nt On Apnl 29, 1995, the C~bes which were parbes to the Rusk Lawsuit filed a Complaint against GTE at the Texas Public Utility Commission styled Complaint of City of Denton. Texas. et al. A_oa~nst GTE Southwest IpcorDQrated, PUC Docket No 14152, SOAH Docket No 473-95-1002 ("PUC Complaint," collectively referred to w~th the Denton Lawsuit and the Rusk Lawsuit as the "R~ght-of-Way L~t,gat~on") Section 1.4 The RLoht-of-Wav L~tlgat~on On ~ ~ 1996, the C~ty Council of Denton authonzed the Mayor to settle the R~ght-of-Way L~bgat~on pursuant to the terms outhned ~n th~s Agreement II CITY'S COVENANTS Section 2.1 RLaht to ComDrom~se C~ty covenants and warrants that ~t has the right to compromise all claims asserted ~n the R~ght-of-Way Litigation as to Denton, the Mayor is authorized to bind the C~ty 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 ~ Dismissal of RLaht-of-Wav L~bgat~on City agrees to d~smlss with prejudice any and all claims, counterclaims and causes of action It raised against GTE in the Denton Lawsuit, the Rusk Lawsuit, and the PUC Complaint, promptly upon execution of th~s Agreement ROW8ET - 1 - 1021961034 III. Section 3.1 R~ght to Compromise GTE covenants and warrants that Hardy E White, in h~s 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 ~ts terms, and that GTE has not assigned to any third party such claims, or any part of GTE's claims against the C~ty Section 3.2 Dmm~ssal of L~t~gat~on GTE agrees to dismiss w~th prejudice any and all claims, counterclaims and causes of action ~t ra,sed against the C~ty m the Denton Lawsuit, the Rusk Lawsuit, and the PUC Complaint, promptly upon execution of th~s Agreement Section 3.3 Cash Payment W~th~n seven (7) bus~ness days of the C~ty's final reading and enactment of the R~ght-of-Way Ordinance at Attachment "A" ("New Ordinance") hereto, which ~s ~ncorporated ~n th~s Agreement for all purposes as ~f fully set forth here~n, GTE w~ll pay to the C~ty the sum of $1,255,649 76 Th~s sum comprises the following a $205,147 00, which ~s the amount of all nght-of-way fee payments withheld by GTE pending resolubon of the R~ght-of-Way L~t~gat~on ("Withheld Amounts") plus four percent (4%) ~nterest on such amount, b $979,388 76, which represents a compromise of all claims related to payment of compensation by GTE to the C~ty for use of the C~ty's nghts- of-way from the beg~nmng of t~me to and ~nclud~ng December 31, 1996, and c $71,114 00, which represents advance payment of reasonable compensation for use of the City's nghts-of-way for the period not covered by Secbon 3 3a or b above and ending on December 31, 1996 GTE agrees not to pass through to ~ts present or future customers the interest amount descnbed m Section 3 3a and GTE agrees that all amounts that GTE ~s authonzed to pass through to ~ts customers under 3 3a above have already been passed through GTE agrees not to pass through to its present or future customers the amount descnbed in Secbon 3 3b hereof The amount ~n Secbon 3 3c above shall be passed through to GTE's customers Jack Stowe w~ll be permitted to meet w~th a GTE- designated representative, on or about October 16, 1996, to rewew GTE documents confirming the W~thheld Amounts ~ Termination of Ordinance or Authority Any current or pnor ordinance and/or authonty imposing a fee upon GTE for the use of the C~ty's nghts-of- way shall expire on or before December 31, 1996, and shall be replaced w~th the New ROWSET - 2 - 1021961021 Ordinance which shall take effect on January 1, 1997 The Part~es agree that the cash payment descnbed in Section 3 3 above ~ncludes an amount which the City has determined to be fair and reasonable compensation for GTE's use of the C~ty's nghts- of-way dunng the penod from and ~nclud~ng the date of the last payment made by GTE to the C~ty for use of Its rights-of-way to and ~nclud~ng the effecbve date of the New Ordinance IV, NEW RIGHT-OF-WAY ORDINANCE Secbon 4.1 New R~ght-of-Way Ordinance The C~ty and GTE agree to execute, adopt and enact the New Ordinance If a current ordinance or charter of the C~ty requires a ut~hty entenng ~nto an ordinance such as the New Ordinance to pay the cost of pubhcat~on of such ordinance ~n a local newspaper, GTE agrees to pay such cost of publication of the New Ordinance ~ CI~y'~ Er~actment of New Ordinance The C~ty agrees to pass and enact the New Ordinance m consecutive read~ngs, as required by law, w~th the first reading to be held on or before ~ _,~_, 1996, and w~th any and all required readings occumng on or before ~-~3 , 1996 ~ ~iTE's Accebtance of New Ordinance GTE agrees to execute and file w~th the C~ty Secretary ~ts acceptance of the New Ordinance within fourteen (14) bus~ness days of receipt of the executed New Ordinance after the final read~ng and passage of the New Ordinance by the C~ty ~ ~ GTE agrees that the C~ty may set an Access Line Fee as that term ~s defined m the New Ordinance up to $17 00 per year for each residential Access Line and up to $24 00 per year for each bus~ness Access L~ne As of September 30, 1996, there were 29,234 residential Access Lines and 18,399 bus~ness Access Lines ~n the C~ty of Denton The number of Access L~nes ~s subject to change V. MUTUAL RELEASES AND DISMISSAL OF CLAIMS IN RIGHT-OF-WAY LITIGATION ~ Release by C~b/ In consideration of the above, the C~ty, ~n ~ts own behalf and on behalf of ~ts successors and assigns, hereby ~rrevocably and uncond~bonally fully releases, acquits and d~scharges GTE Southwest Incorporated, its successors, parent corporation, affihated and subsidiary corporations, officers, d~rectors, employees, attorneys, representatives and agents from any and all claims from the beg~nmng of bme up to and ~nclud~ng December 31, 1996, (a) that relate to the payment by GTE to the C~ty of reasonable compensation for GTE's use of C~ty nghts-of- way, whether by agreement, ord,nance or otherwtse, and (b) that relate to the pass ROWSET ' 3 = 1021961021 through of such payments by GTE to ~ts customers, which the C~ty 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 D~str~ct Court of Denton County, Texas, C~ty of Rusk. an mcorDorated Texas munlcmahty, et al. v GTE Southwest. Inc., Cause No 95- 5-00360, In the Dlstnct Court of Cherokee County, Texas, and the proceeding styled Comulamt of C~ty of Denton. Texas. et al. Against GTE Southwest Incorporated. PUC Docket No 14152, SOAH Docket No 473-95-1002 in the Texas Pubhc Utdlty Commission Sectmn 5.2; Release bv GTE In consideration of the above, GTE Southwest Incorporated, ~n ~ts own behalf and on behalf of ~ts successors and assigns, hereby irrevocably and uncond~bonally fully releases, acquits and discharges the City of Denton, Texas, ~ts offm~ats, employees, representatives, attorneys and agents from any and all claims from the beginning of bme up to and including December 31, 1996, (a) that relate to the payment by GTE to the C~ty 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 ~ts customers, which GTE made or could have made ~n the lawsuits styled GTE Southwest Incomorated vs. C~ty of Denton. et al., Cause No 95-50259-367, ~n the 367th D~stnct Court of Denton County, Texas, C~ty of Rusk. an mcorDorated Texas mumc~Dahty, et al. v. GTE Southwest. Inc.. Cause No 95-5-00360, ~n the D~stnct Court of Cherokee County, Texas, and the proceeding styled ComDla~nt of O~ty of Denton. Texas. et al. A_oamst GTE Southwest ]Qr,9.r.~, PUC Docket No 14162, SOAH Docket No 473-95-1002 ~n the Texas Pubhc Utdlty Commms~on ~ DJ~ The Parties agree to submit, w~th~n ten (10) days after execution by the C~ty and GTE of th~s Agreement, an agreed order of dismissal of all claims, counterclaims and causes of action, w~th prejudice, by each Party against the other ~n the Denton Lawsuit, the Rusk Lawsuit, and the PUC Complaint If any of the agreed orders of d~smlssal are not accepted or s~gned by the Court or the PUC, respectwely, both Part~es agree to file motions for nonsu~t w~th prejudice regarding all claims, counterclaims and causes of action raised by such Part~es In Court or PUC Each Party shall pay all court costs ~ncurred by such Party VI MISCELLANEOUS PROVISIONS ~ Thru Agreement ~s a compromise settlement of d~sputed ~ssues and claims and, therefore, w~ll not be construed as an admission of habd~ty of any Party or of the vahd~ty of any claims or potential claims made by any Party against any other Party or otherwise construed as an admms~on of any Party and, as such, wdl not be offered or received as ewdence ~n any proceeding, prowded that nothing wdl prevent th~s Agreement or ItS terms from being used, offered or received ~n ewdence ~n any proceeding to enfome any or all of the terms here~n ROWSET - 4 - 1O21961021 Section 6.2 Th~s Agreement wdl neither constitute nor prowde to any third party any remedy, defense, claim, ewdence, or other nght ~n excess of those ex~stmg w~thout reference to th~s Agreement Section 6.3 This Agreement constitutes the entire agreement between the Part~es with respect to the matters specifically described harem, and all pr~or agreements, oral or wntten representations, statements, understandings, proposals and undertakings w~th respect to such matters are superseded and replaced by the prows~ons of th~s Agreement Section 6.4 The persons executing th~s Agreement on behalf of the respective Part~es 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 Thru Agreement shall be construed tn accordance w~th the laws of the State of Texas Section 6.6 The rights, powers, hm~tat~ons, duties, restnct~ons and releases here~n prowded for shall ~nure to and be binding upon the Part,es hereto and upon their respective legal and bona hde representatives, successors and assigns .~=R.~lg.J, t9.~ The effect,ve date of th,s Agreement ,s the2.~ day of ,1996 CITY OF DENTON, TEXAS ATTEST ~./,J.L~ By Cl~j~ec~'~ta~ City of Denton, Texas C~of Denton, Texas GTE SOUTHWEST iNCORPORATED ATTEST ,t ~,~ 'Hardy E White ' ~,'~--~.~.o..~.-.-~ '~,~--~~ Acting Regional President - Date //' '7 ~ ~ Texas/New Mex,co ROWSET - 5 - 1021961021