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HomeMy WebLinkAbout11-16-09 PacketPage 1 of 3 Milton City Hall City Council Chambers 13000 Deerfield Parkway, Suite E Milton, GA 30004 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. CITY OF MILTON, GEORGIA Joe Lockwood, Mayor CITY COUNCIL Karen Thurman Julie Zahner Bailey Bill Lusk Burt Hewitt Tina D’Aversa Alan Tart Monday, November 16, 2009 Regular Council Meeting Agenda 6:00 PM INVOCATION – Pastor Trent Cornwell, Vision Baptist Church 1) CALL TO ORDER 2) ROLL CALL 3) PLEDGE OF ALLEGIANCE (Led by the Mayor) 4) APPROVAL OF MEETING AGENDA (Add or remove items from the agenda) (Agenda Item No. 09-972) 5) PUBLIC COMMENT 6) CONSENT AGENDA 1. Approval of the November 2, 2009 Regular Meeting Minutes. (Agenda Item No. 09-973) (Jeanette Marchiafava, City Clerk and Clerk of the Court) 2. Approval of Financial Statements for the period ending October 2009. (Agenda Item No. 09-974) (Stacey Inglis, Finance Director) 3. Approval of the execution of a renewal contract with the Emory Clinic to continue provision of Medical Direction Service. (Agenda Item No. 09-975) (Matt Marietta, Assistant to the City Manager) MILTON CITY COUNCIL REGULAR MEETING AGENDA NOVEMBER 16, 2009 – 6:00 PM Page 2 of 3 Milton City Hall City Council Chambers 13000 Deerfield Parkway, Suite E Milton, GA 30004 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 4. Approval of a contract with Mauldin & Jenkins, LLC to audit the City’s financial statements for the fiscal year ending September 30, 2009. (Agenda Item No. 09-976) (Stacey Inglis, Finance Director) 5. Approval of a contract with Mauldin & Jenkins, LLC to audit the Annual Report of 9-1- 1 Collections and Expenditures for the year ended September 30, 2009. (Agenda Item No. 09-977) (Stacey Inglis, Finance Director) 6. Approval of a contract from AT&T providing a managed firewall for the T1 Internet circuit. (Agenda Item No. 09-978) (Kelley Christy, IT Manager) 7) REPORTS AND PRESENTATIONS (None) 8) FIRST PRESENTATION 1. Approval of an Ordinance Regulating the location, placement, and leasing of wireless telecommunications facilities. (Agenda Item No. 09-979) (Tom Wilson, Operations Director) 9) ZONING AGENDA 1. ZM09-03 – Northwest Corner of Webb and Morris Roads by Precision Design and Development (Bowen Family Homes). A request to modify the following conditions: 1) To modify Condition 1.d (RZ05-022) - Site development shall be substantially consistent with the rendering and elevation submitted to the Fulton County Department of Environment and Community Development on June 27, 2005 except for lots identified as 136 through 216 on the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. 2) To modify Condition 1.f. (RZ05-022) - The minimum heated floor area for a townhouse unit shall be 2,000 square feet except for those lots identified as 136 through 216 shall be a minimum heated floor area of 1,850 square feet. All units shall have a rear entry 2-car garage except for those lots identified as 136 through 216 on the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. 3) To modify Condition 2.a. (ZM07-03) To replace the revised site plan submitted on July 2, 2007 to the City of Milton Community Development Department with the revised site plan submitted on September 11, 2009 to MILTON CITY COUNCIL REGULAR MEETING AGENDA NOVEMBER 16, 2009 – 6:00 PM Page 3 of 3 Milton City Hall City Council Chambers 13000 Deerfield Parkway, Suite E Milton, GA 30004 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. the City of Milton Community Development Department. Any changes to the site plan must be approved by the Director of Community Development and must meet or exceed the requirements of the Zoning Ordinance and these conditions. Unless otherwise noted herein, compliance with all conditions shall be in place prior to the issuance of the first Certificate of Occupancy. (Agenda Item No. 09-952) (First Presentation on October 5, 2009. Deferred on October 19, 2009) (Presented by Tom Wilson, Interim Community Development Director) 10) UNFINISHED BUSINESS 1. Approval of an Ordinance establishing Solid Waste Collection Services within the City of Milton; providing for the scope and nature of the operation, providing for the disposal of garbage, solid waste and refuse; requiring the execution by service providers of a non- exclusive agreement with the City of Milton; with the City of Milton; providing procedures for the handling of complaints; providing for an infrastructure maintenance fee; requiring indemnity insurance; providing for revocation and amendment; prohibiting assignment and subletting without consent; providing for forfeiture; and for making other provisions. (Agenda Item No. 09-967) (Presented by Matt Marietta, Assistant to the City Manager) 11) NEW BUSINESS 1. Approval of a Resolution Continuing the Wired and Wireless Enhanced 911 Charge, and Establishing a Concurrent Enhanced 911 Charge on VoIP, for all such Communications within the City of Milton. (Agenda Item No. 09-980) (Presented by Matt Marietta, Assistant to the City Manager) 12) MAYOR AND COUNCIL REPORTS 13) STAFF REPORTS 14) EXECUTIVE SESSION (Agenda Item No. 09-981) 1. The purpose of the Executive Session is to discuss pending litigation, potential land acquisition, and personnel. 15) ADJOURNMENT (Agenda Item No. 09-982) The minutes will be Provided electronically City of Milton 13000 Deerfield Parkway Suite 107G Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Stacey Inglis, Finance Manager Date: November 9, 2009 City Council Meeting Agenda Item: Financial Status Report for Period 1 – October 2009 OVERVIEW and FINANCIAL HIGHLIGHTS: General Fund Revenue collections for the General Fund are 13.7% higher than anticipated for the first period of the fiscal year. Please remember that there are several revenue sources whose collections in the first two periods of a new fiscal year will be accrued back to the previous fiscal year. It is a generally accepted accounting principle to apply the revenue to the period it is intended for. As an example, intangible taxes that were submitted to us in October were actually for the month of September and should be posted accordingly. Total expenditures to-date are $609,678 and are 34.2% less than expected for this period of the fiscal year. Capital Project Fund Expenditures within this fund continue to occur on a project-by-project basis. With a total project expenditure budget of $6,334,903, capital expenditures-to-date total $196,100. FINANCIAL OPERATIONS: Tree Replacement Fund: Balance: $12,800 Sidewalk Replacement Fund: Balance: $70,558 City of MiltonSTATEMENT OF REVENUES & EXPENDITURESGeneral FundFor the Period Ending October 2009Actual BudgetedVarianceover/(under)Actual BudgetedVarianceover/(under)Property Tax9,177,549000000Motor Vehicle Tax500,000000000Intangible Tax190,000000000Real Estate Transfer Tax35,000000000Franchise Fees1,700,000000000Local Option Sales Tax3,400,000000000Alcohol Beverage Excise Tax254,000000000Business & Occupation Tax575,0002,53702,5372,53702,537Insurance Premium Tax850,000000000Financial Institution Tax23,000000000Penalties & Interest53,000000000Alcohol Beverage Licenses122,00050005005000500Other Non-Business Permits/Licenses11,7101,0695834861,069583486Zoning & Land Disturbance Permits32,5001,4722,708 (1,237)1,4722,708 (1,237)Building Permits50,0002,6084,167 (1,559)2,6084,167 (1,559)Other Charges for Service326,16017,537 21,347 (3,809)17,537 21,347 (3,809)Municipal Court Fines452,50050,841 37,708 13,13350,841 37,708 13,133Interest Earnings20,0009681,667(698)9681,667(698)Contributions & Donations0000000Other Revenue37,802202202Other Financing Sources7,000000000Total Revenue17,817,22177,534 68,1809,35477,534 68,1809,354Current MonthYear-to-DateAnnual BudgetRevenueCurrent MonthYear to DateActual BudgetedVarianceover/(under)Actual BudgetedVarianceover/(under)Mayor and Council157,1896,868 10,788 (3,920)6,868 10,788 (3,920)Clerk of the Council572,7855,777 113,491 (107,713)5,777 113,491 (107,713)City Manager395,02320,036 32,824 (12,788)20,036 32,824 (12,788)Finance1,029,28516,918 28,045 (11,127)16,918 28,045 (11,127)Legal200,0000 16,667 (16,667)0 16,667 (16,667)Information Technology1,073,45310,224 11,292 (1,068)10,224 11,292 (1,068)Human Resources334,2515,926 20,108 (14,183)5,926 20,108 (14,183)Risk Management195,252000000General Government Buildings482,41537,440 40,201 (2,762)37,440 40,201 (2,762)Public Information & Marketing493,8110 40,263 (40,263)0 40,263 (40,263)Municipal Court244,98215,708 19,010 (3,302)15,708 19,010 (3,302)Police2,583,623 140,591 201,877 (61,286) 140,591 201,877 (61,286)Fire4,189,001 275,312 326,351 (51,039) 275,312 326,351 (51,039)EMS Operations132,25011,021 11,021(0)11,021 11,021(0)Public Works2,024,60162,565 43,445 19,12062,565 43,445 19,120Parks & Recreation140,3391,2929,822 (8,529)1,2929,822 (8,529)Community Development1,379,7000850(850)0850(850)Debt Service - Capital Lease Payment709,395000000Operating Transfers to Other Funds1,316,236000000Operating Reserve163,630000000Total expenditures17,817,221 609,678 926,054 (316,376) 609,678 926,054 (316,376)Net Income/(Loss)(532,144)(532,144)Operating ExpendituresAnnual BudgetCurrent MonthYear-to-Date11/9/20092 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Contributions & Donations 5,000$ 3,700$ 3,700$ 3,700$ Interest Revenues - - - - Holiday Card Sales - - - - T-shirt Sales - - - - Total revenues 5,000$ 3,700$ 3,700$ 3,700$ EXPENDITURES Current: Special Events 45,000$ -$ 6,333$ (6,333)$ Total Expenditures 45,000$ -$ 6,333$ (6,333)$ OTHER FINANCING SOURCES (USES) Transfers in from Hotel/Motel Tax Fund 40,000$ -$ -$ -$ Total other financing sources and uses 40,000$ -$ -$ -$ Net change in fund balances -$ (2,633)$ City of Milton Special Events Fund Statement of Revenues, Ependitures, and Changes in Fund Balances - Budget and Actual For the Period Ended October 31, 2009 3 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Cash Confiscations $ - $ - $ - $ - Interest Revenues - 7 7 7 Total revenues $ - $ 7 $ 7 $ 7 EXPENDITURES Current: Public Safety $ - $ - $ - $ - Total Expenditures $ - $ - $ - $ - OTHER FINANCING SOURCES (USES) Transfers in from General Fund $ - $ - $ - $ - Total other financing sources and uses $ - $ - $ - $ - Net change in fund balances $ - $ 7 City of Milton Confiscated Assets Fund Statement of Revenues, Ependitures, and Changes in Fund Balances - Budget and Actual For the Period Ended October 31, 2009 4 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Wireless 911 Fees 570,000$ -$ -$ -$ Total revenues 570,000$ -$ -$ -$ EXPENDITURES Current: Public Safety 554,000$ -$ 144,509$ (144,509)$ Total Expenditures 554,000$ -$ 144,509$ (144,509)$ OTHER FINANCING USES Unallocated 16,000$ -$ -$ -$ Total other financing sources and uses 16,000$ -$ -$ -$ Net change in fund balances -$ (144,509)$ City of Milton E-911 Fund Statement of Revenues, Ependitures, and Changes in Fund Balances - Budget and Actual For the Period Ended October 31, 2009 5 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Intergovernmental Revenues SAFER Grant 85,934$ -$ -$ -$ Crabapple Festival Grant - - - - Total revenues 85,934 -$ -$ -$ EXPENDITURES Current: Public Safety 118,530$ -$ -$ -$ Community Development 20,000 - - - Total Expenditures 138,530$ -$ -$ -$ Excess of revenues over expenditures (52,596) - - - OTHER FINANCING SOURCES (USES) Transfers in from General Fund 52,596$ -$ -$ -$ Total other financing sources and uses 52,596$ -$ -$ -$ Net change in fund balances - - City of Milton Operating Grant Fund Statement of Revenues, Ependitures, and Changes in Fund Balances - Budget and Actual For the Period Ended October 31, 2009 6 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Taxes Hotel/Motel Taxes 47,000$ -$ -$ -$ Total revenues 47,000$ -$ -$ -$ OTHER FINANCING SOURCES (USES) Transfers out to General Fund (7,000) -$ -$ -$ Transfers out to Special Events Fund (40,000) - - - Total other financing sources and uses (47,000)$ -$ -$ -$ Net change in fund balances - - City of Milton Hotel/Motel Tax Fund Statement of Revenues, Ependitures, and Changes in Fund Balances - Budget and Actual For the Period Ended October 31, 2009 7 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Charges for Service Infrastructure Maintenance Fee 65,000$ -$ -$ -$ Landfill Host Fees 185,000 - - - Tree Recompense 12,800 - - - Interest Revenue 2,000 - - - Sidewalk Replacement Account 70,558 - - - Total revenues 335,358 -$ -$ -$ EXPENDITURES Capital Outlay City Council 9,466$ -$ -$ -$ IT 35,000 Police 128,852 - - - Fire 182,479 Public Works 4,491,632 196,100 196,100 (196,100) Parks & Recreation 1,198,514 - - - Community Development 288,960 - - - Total Capital Outlay 6,334,903$ 196,100$ 196,100$ (196,100)$ Excess of revenues over expenditures (5,999,545) (196,100) (196,100) 196,100 OTHER FINANCING SOURCES (USES) Transfers in from General Fund 1,068,400$ -$ -$ -$ Bd tdF dBl 4 931 145 City of Milton Capital Project Fund Statement of Revenues, Ependitures, and Changes in Fund Balances - Budget and Actual For the Period Ended October 31, 2009 Budgeted Fund Balance 4,931,145 - - - Total other financing sources and uses 5,999,545 - - - Net change in fund balances - (196,100) 8 Original Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Intergovernmental Revenues Transportation Master Plan 348,048$ 80,957$ 80,957$ 80,957$ GDOT HPP Funds - - - - Bathroom Renovation - - - - Interest Revenues - - - - Contributions & Donations - - - Total revenues 348,048$ 80,957$ 80,957$ 80,957$ EXPENDITURES Capital Outlay Public Works 1,828,578$ -$ -$ -$ Total Capital Outlay 1,828,578$ -$ -$ -$ Excess of revenues over expenditures (1,480,530) 80,957 80,957 80,957 OTHER FINANCING SOURCES (USES) Transfers in from General Fund 178,240$ -$ -$ -$ Budgeted Fund Balance 1,302,290 - - -$ Total other financing sources and uses 1,480,530$ -$ -$ -$ Net change in fund balances - 80,957 City of Milton Capital Grant Fund Statement of Revenues, Ependitures, and Changes in Fund Balances - Budget and Actual For the Period Ended October 31, 2009 9 City of Milton 13000 Deerfield Parkway, Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Matt Marietta, Assistant to the City Manager Date: Submitted on November 2, 2009 for the November 16, 2009 Council Meeting Agenda Item: Consent for the Execution of a Renewal Contract with the Emory Clinic to Continue Provision of Medical Direction Services City Manager’s Office Recommendation Consent for the City Manager, upon signature of the Mayor, to execute a renewal of the contract with the Emory Clinic for provision of medical direction of our emergency medical services with the Milton Fire Department. Background In order to provide EMS response in the City, our EMTs and Paramedics (e.g. firefighters) need to practice under the auspices and direction of a medical doctor. This contract allows that service to continue. Discussion The Emory Clinic provides this service to local fire departments and EMS services, and has been providing this service to Milton since the inception of its fire department. The execution of this contract would represent a renewal of that right to perform under the medical direction of the Emory Clinic for a fixed price. It would also allow for the potential transition to Advanced Life Support (e.g. paramedic-level). Funding and Fiscal Impact The contract price for this service is $28,375.00, which is paid in monthly installments. Alternatives The City may discontinue this service and cease to perform emergency medical services to our citizens, relying on Rural Metro Ambulance’s availability. We may also conduct an RFP for this service (which may require some period of time without medical direction and, thereby, a lapse in our ability to provide EMS service). Concurrent Review Chris Lagerbloom, City Manager Bob Edgar, Fire Chief 1 MEDICAL DIRECTOR AGREEMENT THIS MEDICAL DIRECTOR AGREEMENT (“Agreement”) is effective as of the 1st day of August, 2009 by and between The City of Milton ( hereinafter” City), a political subdivision of the State of Georgia, acting by and through its appointed City Manager, and The Emory Clinic, Inc. ( hereinafter “ Contractor”), a Georgia nonprofit corporation. WITNESSETH WHEREAS, the City, through its Fire Department has identified a need for a Medical Director to provide emergency medical planning and oversight service to the City; WHEREAS, The City by and through its Fire Department has determined that this need can best be met by retaining the services of an independent contractor; WHEREAS, the City and the Contractor desire to enter into an Agreement for the provision of such services. WHEREAS, the Contractor and the City wish to enter into an arrangement in accordance with the provisions of the personal services safe harbor set forth in section 1001.952 (d), 56 Fed Reg. 35952 and 35985. NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the parties hereunto agree as follows: ARTICLE I- CONTACTOR’S SERVICES 1. The City retains the Contractor, and the Contractor accepts retention by the City to render the services as hereinafter defined and required; to perform such services in the manner and to the extent required by the parties herein; and as may be hereafter amended in writing by mutual agreement of the parties. 2. Donald Brunn., represents that he is the Chief Operating Officer of The Emory Clinic, as such, is authorized to bind and enter into contracts on behalf of the Contractor. 3. Nothing contained in this Agreement shall be construed to be a waiver of the City’s sovereign immunity, any individual’s qualified good faith immunity, or any exemption from liability provided pursuant to O.C.G.A. 46- 5-131. ARTICLE II- SCOPE OF CONTRACTOR’S DUTIES 4. Upon execution of this agreement by all parties, the Contractor shall commence providing the following to the City: Prospective Protocols Formulation and periodic review/revision of patient treatment protocols, including standing orders. Formulation and periodic review of patient destination protocols 2 Assist in the formulation of protocols for mutual aid, HAZMAT responses, and disaster planning and management Personnel Approve hiring standards for EMS work Participation in formulating and approval of the orientation program for EMT’s Participation in the orientation program for EMT’s Contribute recommendations for promotion of EMS personnel Training Contribute to the formulation of all EMS training programs in conjunction with Fire Department training supervisors Review EMS program instruction plans prior to teaching sessions with alteration of program contents in coordination with EMS training supervisors Review testing materials used in the evaluation of EMT’s Concurrent Field Activities May respond on scene to observe and assist direct patient care delivered by EMS personnel Respond on scene when requested by Fire Department supervisor and logistically feasible On line Direction Monitor EMS radio transmissions Give on line medical direction when requested and as indicated Retrospective Patient Care Reports (PCR) Formulation of audit filters for selecting PCR’s to review Monthly review of all audited PCR’s resulting from review of all PCR’s Critical review of all PCR’s on patient care cases from which a complaint has been filed Participate in the monthly meeting reviewing summarized statistics on EMS runs to guide changes in EMS protocols, hiring standards, orientation, and further training Patient Care Complaints Investigation of all externally generated filed complaints and internally generated incident reports regarding patient care with respect for departmental due process policies Co-representation of the Fire Service in all meetings with medical representatives of other organizations resulting from Fire Service EMT- patient interactions Internal report to the Fire Chief of all patient care investigations Discipline Participation in appeals of EMS personnel from decisions to restrict or deny patient care privileges Review and approval of the disciplinary process for EMS personnel patient care infractions Recommend all EMS personnel for certification, re-certification, de-certification to the appropriate EMS certifying body, state or national Research Opportunities for clinical research studies involving injury prevention for patients and firefighters as well as clinical care innovations will benefit from the data generated by Milton Fire Department EMS activity, grant monies available only to fire departments, and the research experience and resources provided by the Department of Emergency Medicine at Emory. 3 ARTICLE III- COMPENSATION FOR SERVICES 5. In consideration for the professional services to be rendered by the Contractor hereunder, the City shall pay to Contractor Twenty-eight Thousand Three Hundred Seventy Five Dollars ($28,375) per year for the services of a Medical Director hereunder (the Fee) payable in twelve equal monthly installments of $2,364.60 each. This Fee shall be based on the provision of a minimum of 144 hours of service per year (12 hours/month); however, the Contractor agrees that the Medical Director may provide other additional hours of service in the nature of on-call consultation assistance at no additional cost. The Fee shall become due and payable on a monthly basis on or before the fifteenth of each month for the preceding month. The Fee shall increase by five (5%) percent upon each annual renewal of this Agreement as set forth in Section 9 below. All amounts over thirty (30) days old will accrue interest at the rate of one and one half percent (1 ½ %) per month. The Contractor shall be entitled to the Fee upon performing the service set out hereunder without regard to whether the City has received payment on behalf of any patient being transported. 6. The City shall supply and maintain at no cost to the Contractor equipment essential for the performance of emergency medical dispatch sufficient to enable the Medical Director to perform services hereunder at the level consistent with national standards established in the emergency medical dispatch community. Recommendations of the Medical Director for purchase other acquisition of such equipment will be given reasonable consideration by the City. The final decision on a request to purchase any equipment shall be that of the City. 7. The City will provide to the Medical Director all needed expendable supplies, small tools and accessories required in the provision of services; however, the final decision on any request to purchase such supplies, small tools and accessories will be that of the City. 8. If any Medical Director performing services hereunder is unable to provide the services described herein( whether due to loss of his/her license to practice medicine in the State of Georgia or loss of his/her DEA license or for any other reason and whether for an interim or extended period of time) then the Contractor in order to provide continuous service under this Agreement shall provide a substitute Medical Director, who shall be a physician licensed in the State of Georgia to practice medicine and board certified or board eligible in Emergency Medicine and who shall be acceptable to the City. The Contractor shall provide the City a minimum of 30 days notice of such a contemplated replacement and of the identity and credentials of any proposed substitute replacement and of the identity and credentials of any proposed substitute Medical Director. If any such replacement Medical Director is not acceptable to the City, then notwithstanding anything to the contrary herein, the City may automatically terminate this Agreement. ARTICLE IV- TERM AND TERMINATION 9. This Contract will become effective August 1, 2009. The initial term of the Agreement will expire on July 31, 2010. Thereafter, the Agreement will automatically renew for additional one year terms unless: (1) the funds being allocated for this Contract by the City are discontinued; or (2) either party delivers written notice of non- renewal to the other party at least ninety (90) days prior to the expiration of the then existing-term. If the funds are discontinued or written notice of non- renewal is given, this Agreement will terminate upon expiration of the then- existing term. 4 10. If through any cause of any kind as determined by the City in its sole discretion , the Contractor shall fail to fulfill its obligations under this Contract in a timely and proper fashion or in the event that any of the provisions or stipulations of this Agreement are violated by the Contractor, the City shall thereupon have the right to immediately suspend or terminate this Agreement by serving written notice as defined herein upon the Contractor of its intent to suspend or terminate this Agreement . If this Agreement is terminated pursuant to this paragraph, the Contractor will be, exclusively limited to receiving only the compensation for the work satisfactorily performed up to and including the effective date identified in the written termination notice as advised under Article VII- section 16. 11. The City shall have the right to suspend immediately the Contractor’s performance hereunder on an emergency basis whenever necessary in the opinion of the City, to avert a life-threatening situation or other sufficiently serious deficiency. 12. If there is a change in federal or state programs such that the provision of services pursuant to this Agreement to all or any category or patients would violate applicable laws, regulations, interpretations, guidelines or governmental policy or impose unreasonable burdens on either party, the parties agree to negotiate in good faith to attempt to restructure this Agreement to comply with any such change while at the same time preserving the economic expectations of the parties to the greatest extent possible in a manner consistent with any such change. If any such restructuring is not feasible or if this Agreement is no amended in writing as aforesaid prior to the effective date of the change, then this Agreement shall terminate and upon such termination neither party shall have any further rights hereunder except those which expressly survive termination. ARTICLE V- INDEPENDENT CONTRACTOR STATUS 13. Nothing contained herein shall be deemed to create any relationship other than that of independent contractor between the City and the Contractor. The Contractor acknowledges that any and all individuals supplied hereunder to provide the services provided by the Contractor shall be employees, contractors, or agents of the Contractor. As between the Contractor and the City, the Contractor will be responsible for all FICA, federal and state withholding taxes and worker’s compensation coverage, and for any and all employment benefits due the Medical Director assigned to the City, and any other employees, contractors, or agents of the Contractor. ARTICLE VI- DEFAULT PROVISIONS 14. The occurrence of any of the following events which continues for thirty (30) days after prior written notice thereof to one party from the other party hereto shall constitute a default under this Agreement. 1. If the City fails to make any payments when due or fails to perform or observe any other covenant to be performed or observed under this agreement. 2. If the City shall have made any warranty or representation in connection with this Agreement which is found to have been false at the time such warranty or representation was made and is materially harmful to the Contractor. 3. If the City becomes insolvent or bankrupt or makes an assignment for the benefit of creditors or a trustee or receiver is appointed for a substantial portion of the City’s property is applied for by the City. 4. If the Contractor fails to perform any duty under the terms of this Agreement or fails to observe any other covenant to be performed or observed under this agreement. 5 5. If the Contractor shall have made any warranty or representation in connection with this Agreement which is found to have been false at the time such warranty or representation was made and is materially harmful to the City. ARTICLE VII-MISCELLANEOUS 15. ASSIGNMENT: Neither party shall assign this Agreement without the prior express written consent of the other party hereto. Any attempted assignment by the Contractor without the prior express written approval of the City shall at the City’s sole option terminate this Agreement without any notice to the Contractor of such termination. The City and the Contractor each binds itself, its successors, assigns, and legal representatives of such other party in respect to all covenants, agreements and obligations contained herein. 16. NOTICE: All notices or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally in hand, or when mailed by certified or registered mail, return receipt requested with proper postage prepaid, addressed to the appropriate party at the following address or such other address as may be given in writing to the parties: If to City: Chris Lagerbloom City Manager Milton City Hall 13000 Deerfield Parkway Suite 107 Milton GA 30004 With copies to: If to Contractor: The Emory Clinic, Inc 1365 Clifton Road N.E. Atlanta, Georgia 30322 Attention: Donald Brunn With copies to: Office of the General Counsel The Emory Clinic, Inc. 201 Dowman Drive 101 Administration Building Atlanta, Georgia 30322 Richard G. McAdam, MHA Administrator Emergency Medicine Section The Emory Clinic, Inc. 531 Asbury Circle, Suite N340 Atlanta, GA 30322 Alex Isakov, MD Department of Emergency Medicine Emory University School of Medicine 49 Jesse Hill Jr. Drive Atlanta, Georgia 30303-3073 6 17. GOVERNING LAW AND CONSENT TO JURISDICTION; This Agreement is made and entered into in the State of Georgia and this Agreement and the rights and obligation of the parties hereto shall be governed by and construed according to the laws of the State of Georgia without giving effect to the principles of conflicts of laws. 18. ENTIRE AGREEMENT : This Agreement constitutes the entire agreement of the parties pertaining to the subject matter hereof and is intended as a complete and exclusive statement of the promises, representations , negotiations, discussions and agreements oral or otherwise that have been made in connection therewith. No modification or amendment to this Agreement shall be binding upon the parties unless the same is in writing, signed by the City’s and the Contractor’s duly authorized representative, and entered upon the minutes of the City of Milton Council. 19. WAIVER OF BREACH: The waiver by either party of a breach or violation of any provision of this Agreement shall not operate or be construed to be a waiver of any subsequent breach or violation of the same or other provision thereof. 20. FORCE MAJEURE: Neither the City nor the Contractor shall be deemed in violation of this Agreement if either is prevented from performing its obligations hereunder for any reason beyond its control, including but not limited to ,acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, or catastrophic failure of public transportation, provided however that nothing herein shall relieve or be construed to relieve the Contractor from performing its obligations hereunder in the event of riots, rebellions, or legal strikes. 21. SEVERABILITY; If any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of the Agreement, which shall remain in full force and effect, and enforceable in accordance with its terms. 22. CITY’S RIGHT OF INSPECTION; City shall have the right, at its sole discretion to inspect and review the services provided by the Contractor hereunder to determine their acceptability. City shall also have the right to review all of the Contractor’s records pertaining to this Agreement and Contractor agrees to properly maintain its records so as to allow the City to audit its fees, standards and services. Contractor shall make such records available to City officials within three (3) business days of receipt of City’s written notice to review such records. 23. COOPERATION BY CONTRACTOR WITH CITY; The Contractor shall maintain regular communications with the City and its administrative staff and shall actively cooperate in all matters pertaining to this Agreement including, without limitation, assisting the City in investigating and responding to any and all provision of services under this Agreement. 24. COMPLIANCE WITH APPLICABLE LAWS ; The Contractor shall at all times observe and comply with all federal, state, local and municipal ordinances, rules, regulations, relating to the provision of the services contracted to be provided by the Contractor hereunder or which in any manner affect this Agreement. 7 25. NO CONFLICT; The Contractor represents and warrants that it presently has no interest, direct or indirect and covenants and agrees that it will not, during the term of this Agreement , acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of its duties and obligations hereunder. The Contractor further covenants and agrees for itself, its agents, employees, directors and officers to comply fully with the provision of the Official Code of Georgia (O.C.G.A. Sec. 45-10-20 et.seq.), as such provisions now exist or may be amended hereafter. The Contractor represents and warrants that such provisions are not and will not be violated by this Agreement or the Contractor’s performance hereunder. 26. NO REFERRAL CONTINGENCY; It is hereby specifically acknowledged and agreed that any benefit which the Contractor or the Medical Director may directly or indirectly receive hereunder in no way requires, is in no way contingent upon, as is in no way intended to induce, the referral of any patient to the City or any of its facilities. In addition, there is no requirement that the Contractor or the Medical Director make referrals to, being in a position to make or influence referrals to, or otherwise generate business for the City or any of its facilities as a condition for receiving any such benefit. 27. The Contractor shall provide the City with all customary and required medical and administrative records and written reports at the City’s expense and said records shall be and remain the exclusive property of the City. The Contractor shall have access to those records to the extent required to perform services pursuant to this Agreement. 28. If required by Section 952 of the Omnibus Budget Reconciliation Act of 1980 for a period of four (4) years after furnishing services with a value of ten thousand dollars ($10,000) or more over a twelve (12) month period and upon written request, the parties shall make available to the Fire Chief or the Comptroller General of the United States or his designees, this Agreement and the books, documents, and records necessary to verify the cost of such services. If the Contractor provides any services through a subcontract with a related organization such contract shall contain an access to books and records similar to this one if required by the Act. 29. City shall secure and maintain at all times during the Term of this agreement, at its sole expense, commercial general liability insurance, covering itself and its employees. Such coverage provided by city may be afforded via commercial insurance, self-insurance, a captive, or some combination thereof at limits of at least $1,000,000 per claim/occurrence and $3,000,000 in the aggregate. City also will maintain excess coverage in an amount of not less than $5,000,000. Such insurance shall not be cancelable except upon 30 days’ prior written notice to the other party. Upon Contractor’s request, City shall provide a certificate of insurance evidencing such coverage. Should any of the insurance policies be written on a claims-made basis, insurance requirements shall survive the expiration of the Agreement and extended coverage shall be afforded for at least two (2) years after the expiration of this Agreement. Contractor shall have a right to terminate this Agreement in the event of changes in City’s insurance that are unacceptable. City shall secure and maintain at all times during the Term, at its sole expense, workers’ compensation and employers’ liability insurance covering its employees. Such coverage provided by City may be afforded via commercial insurance or self-insurance at the following limits: Workers’ Compensation: Statutory limits Employers’ Liability: $1,000,000 each accident; $1,000,000 disease policy limit; $1,000,000 disease each employee 8 City shall secure and maintain at all times during the Term of this agreement, its sole expense, professional liability insurance (medical malpractice), covering itself and its employees. Such coverage provided by City may be afforded via commercial insurance, self-insurance, a captive, or some combination thereof at limits of at least $1,000,000 per claim/occurrence and $3,000,000 aggregate. City shall also maintain excess coverage in an amount of not less than $5,000,000. Should any of City’s insurance policies be written on a claims-made basis, insurance requirements shall survive the expiration of the Agreement and extended coverage shall be afforded for at least two (2) years after the expiration of this Agreement. Contractor shall have a right to terminate this Agreement in the event of changes in City’s insurance that are unacceptable. Upon Contractor’s request, City shall provide a certificate of insurance evidencing such coverage. Contractor shall secure and maintain at all times during the Term of this agreement, at its sole expense, commercial general liability insurance, covering itself and its employees. Such coverage provided by Contractor may be afforded via commercial insurance, self-insurance, a captive, or some combination thereof at limits of at least $1,000,000 per claim/occurrence and $3,000,000 in the aggregate. Contractor also will maintain excess coverage in an amount of not less than $5,000,000. Such insurance shall not be cancelable except upon 30 days’ prior written notice to the City. Upon City’s request, Contractor shall provide a certificate of insurance evidencing such coverage. Contractor shall secure and maintain at all times during the Term of this agreement, at its sole expense, professional liability insurance (medical malpractice), covering itself and its employees. Such coverage provided by Contractor may be afforded via commercial insurance, self-insurance, a captive, or some combination thereof at limits of at least $1,000,000 per claim/occurrence and $3,000,000 aggregate. Contractor also will maintain excess coverage in an amount of not less than $5,000,000. Should any of Contractor’s insurance policies be written on a claims-made basis, insurance requirements shall survive the expiration of the Agreement and extended coverage shall be afforded for at least two (2) years after the expiration of this Agreement. City shall have a right to terminate this Agreement in the event of changes in Contractor’s insurance that are unacceptable. Upon City’s request, Contractor shall provide a certificate of insurance evidencing such coverage. To the extent provided by law, contractor hereby agrees to release, indemnify, defend and hold harmless the City, its Mayor and Councilors, officers, subcontractors, successors, assigns and agents from and against any and all losses, claims, damages, liabilities, costs, and expenses (including but not limited to all actions, proceedings, or investigations in respect thereof and any acts of judgment, settlements, court costs, attorney’s fee or expenses, regardless of the outcome of any such action, proceeding or investigation) caused by, relating to, based upon or arising out of any act or omission by Contractor, its directors, officers, employees, subcontractors, successors, assigns or agents, or otherwise in connection with its acceptance, or the performance or nonperformance of its obligations under this contract. Said agreement to release, indemnify, defend and hold harmless shall survive the termination explanation of said contract. To the extent provided by law, City hereby agrees to release, indemnify, defend and hold harmless Contractor, its employees, officers, subcontractors, successors, assigns and agents from and against any and all losses, claims, damages, liabilities, costs, and expenses (including but not limited to all actions, proceedings, or investigations in respect thereof and any acts of judgment, settlements, court costs, attorney’s fee or expenses, regardless of the outcome of any such action, proceeding or investigation) caused by, relating to, based upon or arising out of any act or omission by City, its directors, officers, employees, subcontractors, successors, assigns or agents, or otherwise in connection with its acceptance, or the performance or nonperformance of its obligations under this contract. Said agreement to release, indemnify, defend and hold harmless shall survive the termination explanation of said contract. IN WITNESS HEREOF, the parties hereto have set their hands and seals. City of Milton, Georgia By: ________________________ Joe Lockwood Mayor The Emory Clinic, Inc. By:________________________ Donald Brunn Chief Operating Officer AULDIN ENKINS CERTIFIED PUBLIC AccoUNTANTs, LLC October 1, 2009 Honorable Mayor and Members of the City Council and City Manager City of Milton, Georgia Attention: Stacey Inglis, Finance Manager 13000 Deerfield Parkway, Suite 107G Milton, Georgia 30004 We are pleased to confirm our understanding of the services we are to provide the City of Milton, Georgia (the City) for the year ended September 30, 2009. We will audit the financial statements of the governmental activities, each major fund, and the aggregate remaining fund information, which collectively comprise the basic financial statements, of the City of Milton, Georgia as of and for the year then ended. Accounting standards generally accepted in the United States provide for certain required supplementary information (RSI), such as management's discussion and analysis (MD&A), to accompany the City's basic financial statements. As part of our engagement, we will apply certain limited procedures to the City's RSI. These limited procedures will consist principally of inquiries of management regarding the methods of measurement and presentation, which management is responsible for affirming to us in its representation letter. Unless we encounter problems with the presentation of the RSI or with procedures relating to it, we will disclaim an opinion on it. The following RSI is required by generally accepted accounting principles and will be subjected to certain limited procedures, but will not be audited: 1. Management's Discussion and Analysis (MD&A). 2, Schedule of Funding Progress -- Retirement Plan. 3. Budgetary comparisons for the General Fund and any Major Special Revenue Funds. Supplementary information other than RSI also accompanies the City's basic financial statements. We will subject the following supplementary information to the auditing procedures applied in our audit of the basic financial statements and will provide an opinion on it in relation to the basic financial statements: 1. Combining and individual fund statements. The following additional information accompanying the basic financial statements will not be subjected to the auditing procedures applied in our audit of the financial statements, and for which our auditor's report will disclaim an opinion: 1. Introductory section 2. Statistical section 200 GALLERIA PARKWAY S.E., SUrM 1700 ■ ATLANTA, GA 30339-5946 • 770-955-8600 • 800-277-0080 ■ FAX 770-980-4489 ■ www.mjcpa.com Members of The American Institute of Certified Public Accountants - RSM International Audit Objectives The objective of our audit is the expression of opinions as to whether your basic financial statements are fairly presented, in all material respects, in conformity with accounting principles generally accepted in the United States of America and to report on the fairness of the additional information referred to in the first paragraph when considered in relation to the basic financial statements taken as a whole. Our audit will be conducted in accordance with auditing standards generally accepted in the United States of America and the standards for financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States, and will include tests of the accounting records of the City of Milton, Georgia and other procedures we consider necessary to enable us to express such opinions. if our opinions on the financial statements are other than unqualified, we will fully discuss the reasons with you in advance. If, for any reason, we are unable to complete the audit or are unable to form or have not formed opinions, we may decline to express opinions or to issue a report as a result of this engagement. We will also provide a report (that does not include an opinion) on internal control related to the financial statements and compliance with laws, regulations, and the provisions of contracts or grant agreements, noncompliance with which could have a material effect on the financial statements as required by Government Auditing Standards. The report on internal control and compliance will include a statement that the report is intended solely for the information and use of management, the body or individuals charged with governance, others within the entity, and specific legislative or regulatory bodies and is not intended to be and should not be used by anyone other than these specified parties. If during our audit we become aware that the City is subject to an audit requirement that is not encompassed in the terms of this engagement, we will communicate to management and those charged with governance that an audit in accordance with U.S. generally accepted auditing standards and the standards for financial audits contained in Government Auditing Standards may not satisfy the relevant legal, regulatory, or contractual requirements. Management Responsibilities Management is responsible for the basic financial statements and all accompanying information as well as all representations contained therein. As part of the audit, we will assist with preparation of your draft financial statements and related notes. You are responsible for making all management decisions and performing all management functions relating to the financial statements and related notes and for accepting full responsibility for such decisions. You will be required to acknowledge in the management representation letter our assistance with preparation of the financial statements and that you have reviewed and approved the financial statements and related notes prior to their issuance and have accepted responsibility for them. Further, you are required to designate an individual with suitable skill, knowledge, or experience to oversee any nonaudit services we provide and for evaluating the adequacy and results of those services and accepting responsibility for them. We will prepare the trial balance for use during the audit. Our preparation of the trial balance will be limited to formatting information in the City of Milton, Georgia's general ledger and trial balances provided by you into w=orking trial balances based on management's chart of accounts. AULDIN ENKnVS Management, with oversight of the City Council, is responsible for establishing and maintaining effective internal controls, including monitoring ongoing activities, to help ensure that appropriate goals and objectives are met; for the selection and application of accounting principles; and for the fair presentation in the financial statements of the respective financial position of the governmental activities, each major fund, and the aggregate remaining fund information of the City of Milton, Georgia and the respective changes in financial position, in conformity with U.S. generally accepted accounting principles. Management is responsible for the basic financial statements and all accompanying information as well as all representations contained therein. Our audit of the basic financial statements does not relieve management or the City Council, of their responsibilities related to the financial statements. Management is also responsible for snaking all financial records and related information available to us and for ensuring that management and financial information is reliable and properly recorded. Management's responsibilities include adjusting the financial statements to correct material misstatements and for confirming to us in the representation letter that the effects of any uncorrected misstatements aggregated by us during the current engagement and pertaining to the latest period presented are immaterial, both individually and in the aggregate, to the financial statements taken as a whole. You are responsible for the design and implementation of programs and controls to prevent and detect fraud, and for informing us about all known or suspected fraud or illegal acts affecting the government involving (1) management, (2) employees who have significant roles in internal control, and (3) others where the fraud or illegal acts could have a material effect on the financial statements. Your responsibilities include informing us of your knowledge of any allegations of fraud or suspected fraud affecting the government received in communications from employees, former employees, grantors, regulators, or others. In addition, you are responsible for identifying and ensuring that the entity complies with applicable laws, regulations, contracts, agreements, and grants and for taking timely and appropriate steps to remedy any fraud, illegal acts, violations of contracts or grant agreements, or abuse that we may report. Management is responsible for establishing and maintaining a process for tracking the status of audit findings and recommendations. Management is also responsible for identifying for us previous financial audits, attestation engagements, performance audits or other studies related to the objectives discussed in the Audit Objectives section of this letter. This responsibility includes relaying to us corrective actions taken to address significant findings and recommendations resulting from those audits, attestation engagements, performance audits, or studies. You are also responsible for providing management's views on our current findings, conclusions, and recommendations, as well as your planned corrective actions, for the report, and for the timing and format for providing that information. With regard to the electronic dissemination of audited financial statements, including financial statements published electronically on your website, you understand that electronic sites are a means to distribute information and, therefore, we are not required to read the information contained in these sites or to consider the consistency of other information in the electronic site with the original document. 1111AULDIN &JENKINS Effective two-way communication between our Firm and the City Council is important to understanding matters related to the audit and in developing a constructive working relationship. Your insights may assist us in understanding the City and its environment, in identifying appropriate sources of audit evidence, and in providing information about specific transactions or events. We will discuss with you your oversight of the effectiveness of internal control and any areas where you request additional procedures to be undertaken. We expect that you will timely communicate with us any matters you consider relevant to the audit. Such matters might include strategic decisions that may significantly affect the nature, timing, and extent of audit procedures, your suspicion or detection of fraud, or any concerns you may have about the integrity or competence of senior management. The City agrees that our report on the financial statements will not be included in an official statement or other document involved with the sale of debt instruments without our prior consent. Additionally, if the City intends to publish or otherwise reproduce the financial statements and/or make reference to us or our audit, you agree to provide us with printer's proofs or a master for our review and consent before reproduction and/or release occurs. You also agree to provide us with a copy of the final reproduced material for our consent before it is distributed or released. Our fees for any additional services that may be required under our quality assurance system as a result of the above will be established with you at the time such services are determined to be necessary. In the event our auditor / client relationship has been terminated when the organization seeks such consent, we will be under no obligation to grant such consent or approval. Our professional standards require that we perform certain additional procedures, on current and previous years' engagements, whenever a partner or professional employee leaves the firm and is subsequently employed by or associated with a client (in this case the City of Milton, Georgia). Accordingly, the City agrees it will compensate Mauldin & Jenkins for any additional costs incurred as a result of the employment of a partner or professional employee of Mauldin & Jenkins. Audit Procedures—Gencral An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements; therefore, our audit will involve judgment about the number of transactions to be examined and the areas to be tested. We will plan and perform the audit to obtain reasonable rather than absolute assurance about whether the financial statements are free of material misstatement, whether from (1) errors, (2) fraudulent financial reporting, (3) misappropriation of assets, or (4) violations of laws or governmental regulations that are attributable to the entity or to acts by management or employees acting on behalf of the entity. Because the determination of abuse is subjective, Government Auditing Standards do not expect auditors to provide reasonable assurance of detecting abuse. Our audit approach places a strong emphasis on obtaining an understanding of how your government functions. This enables us to identify key audit components and tailor our procedures to the unique aspects of your government. The development of a specific audit plan will begin by meeting with you and with management to obtain an understanding of objectives, strategies, risks, and performance. We will obtain an understanding of internal control over financial reporting and compliance with laws, regulations, and provisions of contracts and grant agreements to assess the impact of internal control on determining the nature, timing and extent of audit procedures, and we will establish an overall AULDnV & ENKINS materiality limit for audit purposes. We will conduct formal discussions among engagement team members to consider how and where your financial statements might be susceptible to material misstatement due to fraud or error or to instances of noncompliance. We will use this knowledge and understanding, together with other factors, to first assess the risk that errors or fraud may cause a material misstatement at the financial statement level. The assessment of the risks of material misstatement at the financial statement level provides us with parameters within which to design the audit procedures for specific account balances and classes of transactions. Our risk assessment process at the account -balance or class -of -transactions level consists of: • An assessment of inherent risk (the susceptibility of an assertion relating to an account balance or class of transactions to a material misstatement, assuming there are no related controls), and • An evaluation of the design effectiveness of internal control over financial reporting and our assessment of control risk (the risk that a material misstatement could occur in an assertion and not be prevented or detected on a timely basis by the City's internal control). Similar assessments will also be made relative to compliance with laws, regulations, and the provisions of contracts and grant agreements. We will then determine the nature, timing and extent of tests of controls and substantive procedures necessary given the risks identified and the controls as we understand them. In planning the audit, the materiality limit is viewed as the maximum aggregate amount of misstatements, which if detected and not corrected, would cause us to modify our opinion on the basic financial statements. The materiality limit is an allowance not only for misstatements that will be detected and not corrected but also for misstatements that may not be detected by the audit. Our assessment of materiality throughout the audit will be based on both quantitative and qualitative considerations. Because of the interaction of quantitative and qualitative considerations, misstatements of a relatively small amount could have a material effect on the current financial statements as well as financial statements of future periods. At the end of the audit, we wilt inform you of all individual unrecorded misstatements aggregated by us in connection with our evaluation of our audit test results. Because an audit is designed to provide reasonable, but not absolute assurance and because we will not perform a detailed examination of all transactions, there is a risk that material misstatements may exist and not be detected by us. In addition, an audit is not designed to detect immaterial misstatements or violations of laws or governmental regulations that do not have a direct and material effect on the financial statements. However, we will inform you of any material errors and any fraudulent financial reporting or misappropriation of assets that come to our attention. We will also inform you of any violations of laws or governmental regulations that come to our attention, unless clearly inconsequential. Our responsibility as auditors is limited to the period covered by our audit and does not extend to later periods for which we are not engaged as auditors. Our procedures will include tests of documentary evidence supporting the transactions recorded in the accounts, and may include tests of the physical existence of inventories, and direct confirmation of receivables and certain other assets and liabilities by correspondence with selected individuals, funding sources, creditors, and financial institutions. We will request written representations from your attorneys as part of the engagement, and they may bill you for responding to this inquiry. At the AULDIN ENKINS conclusion of our audit, we will also require certain written representations from you about the financial statements and related matters. Audit Procedures—Internal Controls Our audit will include obtaining an understanding of the entity and its environment, including internal control, sufficient to assess the risks of material misstatement of the financial statements and to design the nature, timing, and extent of further audit procedures. Tests of controls may be performed to test the effectiveness of certain controls that we consider relevant to preventing and detecting errors and fraud that are material to the financial statements and to preventing and detecting misstatements resulting from illegal acts and other noncompliance matters that have a direct and material effect on the financial statements. Our tests, if performed, will be less in scope than would be necessary to render an opinion on internal control and, accordingly, no opinion will be expressed in our report on internal control issued pursuant to Government Auditing Standards. An audit is not designed to provide assurance on internal control or to identify significant deficiencies. However, during the audit, we will communicate to management and those charged with governance internal control related matters that are required to be communicated under AICPA professional standards and Government Auditing Standards. Audit Procedures—Compliance As part of obtaining reasonable assurance about whether the financial statements are free of material misstatement, we will perform tests of the City of Milton, Georgia's compliance with the provisions of applicable laws, regulations, contracts, agreements, and grants. However, the objective of our audit will not be to provide an opinion on overall compliance and we will not express such an opinion in our report on compliance issued pursuant to Government Auditing Standards. Other Attestation Services Our annual examination will also be conducted to provide for attestation on certain management assertions in accordance the American Institute of Certified Public Accountant's (AICPA's) Statement on Standards for Attestation Engagements (SSAE) No. 3, Compliance Attestation, as amended. The objective of our reports will to examine management's assertion about Milton's compliance with the requirement to use grant proceeds solely for the purpose or purposes for which the grants were made for each Local Assistance Grant. Management will be responsible for compliance with the respective requirements. Our responsibility will be to express an opinion on management's assertion about Milton's compliance based on our examination. Our report will include a statement that the report is intended for the information and use of the Georgia Department of Audits and Accounts and Milton's management and is not intended to be and should not be used by anyone other than these specified parties. Independence Our independence policies and procedures are designed to provide reasonable assurance that our firm and its personnel comply with applicable professional independence standards. Our policies address AULDIN ENKINS financial interests, business and family relationships, and non -audit services that may be thought to bear on independence. For example, without our permission no partner or professional employee of Mauldin & Jenkins is permitted to own any direct financial interest or a material indirect financial interest in a client or any affiliates of a client. Also, if an immediate family member or close relative of a partner or professional employee is employed by a client in a key position, the incident must be reported and resolved in accordance with Firm policy. In addition, our policies restrict certain non - audit services that may be provided by Mauldin & Jenkins and require audit clients to accept certain responsibilities in connection with the provision of permitted non -attest services. Audit Administration, Fees, and Other We understand that your employees will prepare all cash or other confirmations we request and will locate any documents selected by us for testing. We will provide copies of our reports to the City of Milton, Georgia; however, management is responsible for distribution of the reports and financial statements. Unless restricted by law or regulation, or containing privileged and confidential information, copies of our reports are to be made available for public inspection. We will coordinate audit fieldwork with the City's staff. Adam Fraley is the engagement partner and is responsible for supervising the engagement and signing the reports or authorizing another individual to sign them. Our fee for these services will be $35,500 for the year ended September 30, 2009_ This includes fees for our audit of the primary government. The above fee does not include fees for our attestation procedures related to the City's Local Assistance Grant Certifications. Our fees for our procedures and reporting associated with the City's Local Assistance Grant Certifications will be $1,000 for each grant requiring certification. Our hourly rates vary according to the degree of responsibility involved and the experience level of the personnel assigned to your audit. However, if major problems arise during our examination, any additional work necessary will be billed at standard rates. This above fee will be subject to adjustments based on unanticipated changes in the scope of our work and/or the incomplete or untimely receipt by us of the information on the client participation listings. All other provisions of this letter will survive any fee adjustment. No changes will be made without approval from you regarding the proposed change. Our invoices for these fees will be rendered as work progresses and are payable upon presentation. The above fees are based on anticipated cooperation from your personnel and the assumption that unexpected circumstances will not be encountered during the audit. If significant additional time is necessary, we will discuss it with management and arrive at a new fee estimate before we incur the additional costs. The audit, including other attestation examination, documentation for this engagement is the property of Mauldin & Jenkins and constitutes confidential information. However, pursuant to authority given by law or regulation, we may be requested to make certain audit documentation available to a federal agency providing direct or indirect funding, or the U.S. Government Accountability Office for purposes of a quality review of the audit, to resolve audit findings, or to carry out oversight responsibilities. We will notify you of any such request. If requested, access to such audit documentation will be provided under the supervision of Mauldin & Jenkins personnel. Furthermore, upon request, we may provide copies of selected audit documentation to the aforementioned parties. AULDIN ENKINS These parties may intend, or decide, to distribute the copies or information contained therein to others, including other governmental agencies. The audit documentation for this engagement will be retained for a minimum of five years after the report release date or for any additional period requested by a regulatory body. If we are aware that a federal awarding agency or auditee is contesting an audit finding, we will contact the party(ies) contesting the audit finding for guidance prior to destroying the audit documentation. In the event we are requested or authorized by the City of Milton, Georgia or are required by the City of Milton, Georgia or are required by government regulation, subpoena, or other legal process to produce our documents or our personnel as witnesses with respect to our engagements for the City, the City will, so long as we are not a party to the proceeding in which the information is sought, reimburse us for our professional time and expenses, as well as the fees and expenses of our counsel, incurred in responding to such requests. If circumstances arise relating to the conditions of your records, the availability of appropriate audit evidence, or indications of a significant risk of material misstatement of the financial statements caused by error, fraudulent financial reporting, misappropriation of assets, or noncompliance which in our professional judgment prevent us from completing the audit or forming an opinion, we retain the unilateral right to take any course of action permitted by professional standards, including declining to express an opinion or issue a report, or withdrawal from the engagement. Government Auditing Standards require that we provide you with a copy of our most recent external peer review report and any letter of comment, and any subsequent peer review reports and letters of comment received during the period of the contract. Our 2008 peer review report accompanies this letter. We did not receive a letter of comment with the peer review report. We appreciate the opportunity to be of service to the City of Milton, Georgia and believe this letter accurately summarizes the significant terms of our engagement. If you have any questions, please let us know. If you agree with the terms of our engagement as described in this letter, please sign the enclosed copy and return it to us. Sincerely, MAULDIN & JENKINS, LLC Adam M. I~ rale RESPONSE: This letter correctly sets forth the understanding of the City of Milton, Georgia. By: _ Title: Date: AULDIN ENKINS Clifton Gunderson , , :, - Ccilllivil Pi€O€d:Ac�cf ufflmltl; N i.€iEt4 1t,lllE� August 15, 2008 To the Owners of Mauldin & Jenkins, LLC and the Center for Public Company Audit Firms Peer Review Committee We have reviewed the system of quality control for the accounting and auditing practice of Mauldin & Jenkins, LLC (the firm) applicable to non -SEC issuers in effect for the year ended May 31, 2008. The firm's accounting and auditing practice applicable to SEC issuers was not reviewed by us since the Public Company Accounting Oversight Board (PCAOB) is responsible for inspecting that portion of the firm's accounting and auditing practice in accordance with PCAOB requirements. A system of quality control encompasses the firm's organizational structure and the policies adopted and procedures established to provide it with reasonable assurance of complying with professional standards_ The elements of quality control are described in the Statements on Quality Control Standards issued by the American Institute of Certified Public Accountants (the AICPA). The design of the system, and compliance with it, are the responsibilities of the firm. Our responsibility is to express an opinion on the design of the system, and the firm's compliance with that system based on our review. Our review was conducted in accordance with standards established by the Peer Review Committee of the Center for Public Company Audit Firms and included procedures to plan and perform the review that are summarized in the attached description of the peer review process. Our review would not necessarily disclose all weaknesses in the system of quality control or all instances of lack of compliance with it since it was based on selective tests. Because there are inherent limitations in the effectiveness of any system of quality control, departures from the system may occur and not be detected. Also, projection of any evaluation of a system of quality control to future periods is subject to the risk that the system of quality control may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. In our opinion, the system of quality control for the accounting and auditing practice applicable to the non -SEC issuers of Mauldin & Jenkins, LLC in effect for the year ended May 31, 2008, has been designed to meet the requirements of the quality control standards for an accounting and auditing practice established by the AICPA, and was complied with during the year then ended to provide the firm with reasonable assurance of complying with applicable professional standards. Of' ves in V, states and Washington. DC Attachment to the Peer Review Report or Mauldin & Jenkins, LLC Description or the Peer Review Process Overview Firms enrolled in the AICPA Center for Public Company Audit Firms (the Center) Peer Review Program have their system of quality control periodically reviewed by independent peers. These reviews are system and compliance oriented with the objectives of evaluating whether: The reviewed firm's system of quality control for its accounting and auditing practice applicable to non -SEC issuers has been designed to meet the requirements of the Quality Control Standards established by the AICPA. The reviewed firm's quality control policies and procedures applicable to non -SEC issuers were being complied with to provide the firm with reasonable assurance of complying with professional standards. A peer review is based on selective tests and directed at assessing whether the design of and compliance with the firm's system of quality control for its accounting and auditing practice applicable to non -SEC issuers provides the firm with reasonable, not absolute, assurance of complying with professional standards. Consequently a peer review on the firm's system of quality control is not intended to, and does not, provide assurance with respect to any individual engagement conducted by the firm or that none of the financial statements audited by the firm should be restated. The Center's Peer Review Committee (PRC) establishes and maintains peer review standards. At regular meetings and through report evaluation task forces, the PRC considers each peer review, evaluates the reviewer's competence and performance, and examines every report, letter of comments, and accompanying response from the reviewed firm that states its corrective action plan before the peer review is finalized. The Center's staff plays a key role in overseeing the performance of peer reviews working closely with the peer review teams and the PRC. Once the PRC accepts the peer review reports, letters of comments, and reviewed firms' responses, these documents are maintained in a file available to the public. In some situations, the public file also includes a signed undertaking by the firm agreeing to specific follow-up action requested by the PRC. Firms that perform audits or play a substantial role in the audit of one or more SEC issuers, as defined by the Public Company Accounting Oversight Board (PCAOB), are required to be registered with and have their accounting and auditing practice applicable to SEC issuers inspected by the PCAOB. Therefore, we did not review the firm's accounting and auditing practice applicable to SEC issuers. 2 Planning the Review for the Firm's Accounting and Auditing Practice Applicable to Nan - SEC Issuers To plan the review of Mauldin & Jenkins, LLC, we obtained an understanding of (I) the nature and extent of the firm's accounting and auditing practice, and (2) the design of the firm's system of quality control sufficient to assess the inherent and control risks implicit in its practice. Inherent risks were assessed by obtaining an understanding of the firm's practice, such as the industries of its clients and other factors of complexity in serving those clients, and the organization of the firm 's personnel into practice units. Control risks were assessed by obtaining an understanding of the design of the firm's system of quality control, including its audit methodology, and monitoring procedures. Assessing control risk is the process of evaluating the effectiveness of the reviewed firm's system of quality control in preventing the performance of engagements that do not comply with professional standards. Performing the Review for the Firm's Accounting and Auditing Practice Applicable to Non -SEC Issuers Based on our assessment of the combined level of inherent and control risks, we identified practice units and selected engagements within those units to test for compliance with the firm's system of quality control. The engagements selected for review included engagements performed under the Government Auditing Standards, audits performed under FDICIA, multi -office audits, and audits of Employee Benefit flans. The engagements selected for review represented a cross- section of the firm's accounting and auditing practice with emphasis on higher -risk engagements. The engagement reviews included examining working paper files and reports and interviewing engagement personnel. The scope of the peer review also included examining selected administrative and personnel files to determine compliance with the firm's policies and procedures for the elements of quality control pertaining to independence, integrity, and objectivity; personnel management; and acceptance and continuance of clients and engagements. Prior to concluding the review, we reassessed the adequacy of scope and conducted a meeting with firm management to discuss our findings and recommendations. 3 AULDIN & ENKINS CERTIFIED PUBLIc AccoUNTANTs, LLC October 1, 2009 Honorable Mayor and Members of the City Council and City Manager City of Milton, Georgia Attention: Stacey Inglis, Finance Manager 13000 Deerfield Parkway, Suite 107G Milton, Georgia 30004 This letter is to explain our understanding of the arrangements regarding our engagement to examine management's assertion that the information presented in the Annual Report of 9-1-1 Collections and Expenditures for the year ended September 30, 2009 is accurate and correct and that 9-1-1 funds were expended in compliance with the expenditure requirements specified in the Official Code of Georgia Annotated (OCGA), Section 46-5-134, in accordance with attestation standards established by the American Institute of Certified Public Accountants. We ask that you either confirm or amend this understanding. The attestation standards require that we perform our examination engagement only if we have reason to believe that management's assertion is capable of evaluation against criteria that are suitable and available to users. We will notify you immediately if, in our judgment, management's assertion does not meet the foregoing presentation standards. In such event, you will either need to modify management's assertion that the information presented in the Annual Report of 9-1-1 Collections and Expenditures is accurate and correct and that 9-1-1 funds were expended in compliance with the expenditure requirements specified in the Official Code of Georgia Annotated (OCGA), Section 46-5-134, to comply with the foregoing presentation standards, or we will be required to withdraw from the engagement. If circumstances arise relating to the condition of your records, the availability of sufficient, competent evidential matter, or indications of a significant risk of material misstatement of the subject matter because of error or fraud which in our professional judgment prevent us from completing the engagement, we retain the unilateral right to take any course of action permitted by professional standards, including withdrawal from the engagement. The services that we will perform are not designed and cannot be relied upon to disclose errors, fraud or illegal acts, should any exist. However, we will inform the appropriate level of management of any material errors that come to our attention and any fraud or illegal acts that come to our attention, unless they are clearly inconsequential. Management is responsible for its assertion that the information presented in the Annual Report of 9-1-1 Collections and Expenditures is accurate and correct and that 9-1-1 funds were expended in compliance with the expenditure requirements specified in the Official Code of 200 GALLERIA PARKWAY S.E., SUM 1700 ■ ATLANTA, GA 30339-5946 • 770-955-8600 • 800-277-0080 • FAX 770-980-4489 • www.mjcpa.com Members of The American Institute of Certified Public Aceonntants • RSM International Georgia Annotated (OCGA), Section 46-5-134. As you know, management is responsible for identifying and ensuring that the City of Milton, Georgia complies with the laws and regulations applicable to its activities and for making all records and related information available to us. Our responsibility is to express positive assurance concerning management's assertion in relation to established or stated criteria. Accordingly, we will perform such procedures as we consider necessary to evaluate management's assertion in relation to the established or stated criteria for purpose of expressing positive assurance on the assertion. At the conclusion of our engagement, we will request certain written representations from management about its assertion that the information presented in the Annual Report of 9-1-1 Collections and Expenditures is accurate and correct and that 9-1-1 funds were expended in compliance with the expenditure requirements specified in the Official Code of Georgia Annotated (OCGA), Section 46-5-134 and matters related thereto. Our report will detail the nature of reservations, if any, we have with respect to management's assertion. Should we have any reservations, we will discuss them with you prior to issuing our report. The City of Milton, Georgia hereby indemnifies Mauldin & Jenkins, LLC and its partners, principals and employees and holds them harmless from all claims, liabilities, losses and costs arising in circumstances where there has been a knowing misrepresentation by a member of the City of Milton, Georgia's management, regardless of whether such person was acting in the City of Milton, Georgia's interest. This indemnification will survive termination of this letter. During the course of our engagement, we may accumulate records containing data that should be reflected in your books and records. You will determine that all such data, if necessary, will be so reflected. Accordingly, you will not expect us to maintain copies of such records in our possession. The assistance to be supplied by your personnel has been discussed and coordinated with you. The timely and accurate completion of this work is an essential condition to our completion of our services and issuance of our report. Our fees are based on the time required by the individuals assigned to the engagement, plus direct expenses. Our invoices will be rendered as work progresses and are payable upon presentation. In the event we are requested or authorized by the City of Milton, Georgia or are required by government regulation, subpoena, or other legal process to produce our documents or our personnel as witnesses with respect to our engagements for the City of Milton, the City of Milton will, so long as we are not a party to the proceeding in which the information is sought, reimburse us for our professional time and expenses, as well as the fees and expenses of our counsel, incurred in responding to such requests. The working papers for this engagement are the property of Mauldin & Jenkins, LLC and constitute confidential information. However, as required by law or regulation, we may be requested to make certain workpapers available to certain regulatory bodies. We will notify you of any such request. If requested, access to the requested workpapers will be provided under the supervision of Mauldin & Jenkins, LLC engagement personnel. AULDIN ENKINS It is agreed by the City of Milton, Georgia and Mauldin & Jenkins, LLC or any successors in interest that no claim arising out of services rendered pursuant to this agreement by or on behalf of the City of Milton, Georgia shall be asserted more than two years after the date of the last examination report issued by Mauldin & Jenkins, LLC. This letter constitutes the complete and exclusive statement of agreement between Mauldin & Jenkins, LLC and the City of Milton, Georgia, superseding all other communications oral or written with respect to the terms of the engagement between the parties. If this letter defines the arrangements as you understand them, please sign and date the enclosed copy and return it to us. We appreciate your business. Sincerely, Mauldin & Jenkins, LLC *141L Adam M. Fraley RESPONSE: This letter correctly sets forth the understanding of the City of Milton, Georgia. By: _ Title: Date: MAULDIN ENKINS City of Milton 13000 Deerfield Parkway, Building 100 Milton, Georgia 30004 To: Honorable Mayor and City Council Members From: Kelley Christy, IT Manager Date: November 2, 2009 for submission onto the November 16, 2009 City Council Meeting Agenda Item: Approval of a contract from AT&T providing a managed firewall for the T1 Internet circuit. CMO (City Manager’s Office) Recommendation: Staff recommends approval of the attached contract from AT&T providing a managed firewall to the existing T1 Internet connection. Background: The City of Milton is currently implementing new Records Management software for the Public Safety department that requires Internet service for Milton City Hall. This firewall solution will help ensure the safety of the data that is being transferred through the T1 Internet connection. Discussion: The managed firewall will enable the IT department to better secure the data coming in and out of the new Public Safety network. Along with other security measures, this will prove to be the most efficient and cost effective way to secure the data. Alternatives: Purchasing a firewall appliance from another vendor and configuring. Concurrent Review: Chris Lagerbloom, City Manager Paul Higbee, City Attorney ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 1 of 9 eCRM ID ______________ AT&T MA Reference No. MASTER AGREEMENT Customer AT&T City of Milton 13000 Deerfield Parkway Alpharetta, GA 30004 USA AT&T Corp. or enter the International Affiliate Name Customer Contact (for notices) AT&T Contact (for notices) Name: Kelley Christy Title: 13000 Deerfield Parkway Milton , GA 30004 United States Telephone: 6782422517 Fax: Email: kelley.christy@cityofmiltonga.us 1600 WILLIAMS ST COLUMBIA, SC 29201 With a copy to: AT&T Corp. One AT&T Way Bedminster, NJ 07921-0752 ATTN: Master Agreement Support Team Email: mast@att.com This Master Agreement (“Master Agreement”), between the customer named above (“Customer”) and the AT&T entity named above (“AT&T”), is effective when signed by both Customer and AT&T, and continues in effect as long as Services are provided under this Master Agreement. This Mas ter Agreement will apply to all services and equipment Customer buys from AT&T, now and in the future, that are provided under Pricing Schedules attached to or referencing this Master Agreement (“Services”). Other Services may be provided by signing additi onal Pricing Schedules at any time. AT&T standard service offerings are described in Tariffs, Guidebooks, Service Guides and other documents identified in this Master Agreement. Customer (by its authorized representative) AT&T (by its authorized representative) By: By: Name: Name: Title: Title: Date: Date: ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 2 of 9 eCRM ID ______________ 1. INTRODUCTION 1.1 Overview of Documents. The terms and conditions governing the Services that AT&T provides to Customer are set forth in this Master Agreement, the following additional documents , and any other documents executed by the parties and referencing this Master Agreement (which documents together with this Master Agreement are called “this Agreement”): (a) Pricing Schedules. A Pricing Schedule (including related attachments) identifies the Services AT&T may provide to Customer, the price (including discounts , if applicable) for each Service, and the term during which such prices are in effect (“Pricing Schedule Term”). (b) Tariffs and Guidebooks. “Tariffs” are documents containing the standard descriptions, pricing, and other terms and conditions for a Service that AT&T files with regulatory commissions . “Guidebooks” are documents containing the standard descriptions, pricing, and other terms and conditions for a Service that were, but no longer are, filed with regulatory commissions. Tariffs and Guidebooks may be found at att.com/servicepublications or other locations AT&T may designate. (c) Acceptable Use Policy. AT&T’s Acceptable Use Policy (“AUP”) applies to Services provided over or access ing the Internet. The AUP may be found at att.com/aup, or other locations AT&T may designate . (d) Service Guides. The description, pricing, and other terms and conditions for the Service not covered by a Tariff or Guidebook may be contained in a Service Guide , which may be found at att.com/servicepublications or other locations AT&T may designate. 1.2 Priority of Documents. The order of priority of the documents that form this Agreement is: Pricing Schedules; this Master Agreement; the AUP; and Tariffs, Guidebooks and Service Guides ; provided that, Tariffs will be first in priority in any jurisdiction where existing law or regulation does not permit contract terms to take precedence over inconsistent tariff terms. 1.3 Revisions to Documents. Subject to Section 8.2(c) (Materially Adverse Change), AT&T may revise Tariffs, Guidebooks, Service Guides or the AUP (collectively “Service Publications”) at any time. 1.4 Execution by Affiliates. An AT&T Affiliate or Customer Affiliate may sign a Pricing Schedule referencing this Agreement in its own name and such Affiliate contract will be a separate, but associated, contract incorporating the terms of this Master Agreement with respect to that Pricing Schedule. Customer and AT&T will arrange to have their respective Affiliates comply with this Agreement, regardless of whether an Affiliate has signed a Pricing Schedule. 1.5 Capitalized Terms. Capitalized terms not otherwise defined in this Agreement are defined in Section 11 (Definitions). 2. AT&T DELIVERABLES 2.1 Services. AT&T agrees to either provide or arrange to have an AT&T Affiliate provide Services to Customer in accordance with this Agreement, subject to availability and operational limitations of systems, facilities and equipment. Where required, an AT&T Affiliate authorized by the appropriate regulatory authority will be the service provider. 2.2 AT&T Equipment. Services may include use of certain equipment owned by AT&T that is located at the Site (“AT&T Equipment”), but title to the AT&T Equipment will remain with AT&T. Customer must provide electric power for the AT&T Equipment and keep the AT&T Equipment physically secure and free from liens and encumbrances. Customer will bear the risk of loss or damage to AT&T Equipment (other than ordinary wear and tear) except to the extent caused by AT&T or its agents. 2.3 Software. Any software used with the Services will be governed by the written terms and conditions applicable to such software. Title to software remains with AT&T or its supplier. Customer must comply with all such terms and conditions and they take precedence o ver this Agreement as to such software. 3. CUSTOMER’S COOPERATION 3.1 Access Right. Customer will in a timely manner allow AT&T to access property and equipment that Customer controls as reasonably required to provide the Services , and Customer will obtain, at Customer’s expense, timely access for AT&T to property that Customer does not control (other than public property) as reasonably required to provide the Services. Access rights include the right to construct, install, repair, maintain, replace and remove access lines and network facilities, as ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 3 of 9 eCRM ID ______________ well as to use ancillary equipment space within a building, as necessary for Customer’s connection to AT&T’s network. Custom er must provide AT&T timely information and access to Customer’s facilities and equipment as AT&T reasonably requires to provide the Services , subject to Customer’s reasonable security policies . Customer will furnish any conduit, holes, wireways, wiring, plans, equipment, space, power/utilities, and other items reasonably required to perform installation of the Services, and obtain any necessary licenses, permits and consents (including easements and rights -of-way). Customer will have the Site ready for AT &T to perform its work according to a mutually agreed schedule. 3.2 Safe Working Environment. Customer will ensure that the location at which AT&T installs , maintains or provides Services is a suitable and safe working environment, free of Hazardous Materials. “Hazardous Materials” means any substance or material capable of posing an unreasonable risk to health, safety or property or whose use, transport, storage, handling, disposal, or release is regulated by any law related to pollution, protection of air, water, or soil, or health and safety. AT&T does not handle, remove or dispose of Hazardous Materials , and AT&T has no obligation to perform work at a location that is not a suitable and safe working environment. AT&T will not be liable for any Hazardous Materials. 3.3 Users. “User” means anyone who uses or accesses any Service provided to Customer. Customer will cause Users to comply with this Agreement, and Customer agrees that Customer is responsible for Users’ use of any Services , unless expressly provided to the contrary in applicable Service Publications. 3.4 Internet Services. If a Service is provided over or access es the Internet, Customer, Customer’s Affiliates, and Users must comply with the AUP. 3.5 Resale of Services. Customer may not resell the Services to third parties without AT&T’s written consent. Where permitted under applicable law, Customer may resell the Services to Customer’s Affiliates without AT&T’s consent. 4. PRICING AND BILLING 4.1 Pricing and Pricing Schedule Term; Terms Applicable After End of Pricing Schedule Term. Unless a Pricing Schedule states otherwise, the prices listed in a Pricing Schedule are stabilized until the end of the Pricing Schedule Term. No promotion, credit or waiver set forth in a Service Publication will apply unless the Pricing Schedule states otherwise. At the end of a Pricing Schedule Term, Customer will have the option to either: (a) cease using the Service (which will require Customer to take all steps required by AT&T to terminate the Service); or (b) continue using the Service under a month -to - month service arrangement. Unless a Pricing Schedule states otherwise, during any month -to -month service arrangement, the prices, terms and conditions in effect on the last day of the Pricing Schedule Term will continue until changed by AT&T on 30 days’ prior notice to Customer. 4.2 Additional Charges and Taxes. Prices set forth in a Pricing Schedule are exclusive of, and Customer will pay, all current and future taxes (excluding those on AT&T’s net income), surcharges, recovery fees, custom clearan ces, duties, levies, shipping charges, and other similar charges (and any associated interest and penalties resulting from Customer’s failure to timely pay such taxes or similar charges ) relating to the sale, transfer of ownership, installation, license, use or provision of the Services, except to the extent Customer provides satisfactory proof of a valid tax exemption prior to the delivery of Services. To the extent Customer is required by law to withhold or deduct any applicable taxes from payments due to AT&T, Customer will use reasonable commercial efforts to minimize any such taxes to the extent allowed by law or treaty, and Customer will furnish AT&T with such evidence as may be required by relevant taxing authorities to establish that such tax has been paid so that AT&T may claim any applicable credit. 4.3 Billing. Unless a Pricing Schedule specifies otherwise, Customer’s obligation to pay for all Services will begin upon installation and availability of the Services to Customer. AT&T will invoice Customer for the Services on a monthly basis, or otherwise as specified in the Pricing Schedule. Customer will pay AT&T without deduction (except for withholding taxes as provided in Section 4.2 – Additional Charges and Taxes ), setoff (except as provided in Section 4.5 – Delayed Billing; Disputed Charges), or delay for any reason. At Customer’s request, but subject to AT&T’s consent (which may be withheld if there will be operational impediments or tax consequences), Customer’s Affiliates may be invoiced separately and AT&T will accept payment from such Affiliates. Customer will be responsible for payment if Customer’s Affiliates do not pay charges in accordance with this Agreement. AT&T may require Customer or its Affiliates to tender a deposit if AT&T dete rmines, in its reasonable judgment, that Customer or Customer’s Affiliates are not creditworthy. 4.4 Payments. Payment is due within 30 days after the date of the invoice (unless another date is specified in an applicable Tariff or Guidebook) and must refer to the invoice number. Charges must be paid in the currency specified in the invoice. Restricti ve endorsements or other statements on checks are void. Customer will reimburse AT&T for all costs associated with collecting delinquent or dishonored payments, including reasonable attorney’s fees . AT&T may charge late payment fees (a) for Services contained in a Tariff or Guidebook, at the rate specified therein, or (b) for all other Services, at the lower of 1.5% per month (18% per annum) or the maximum rate allowed by law for overdue payments. ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 4 of 9 eCRM ID ______________ 4.5 Delayed Billing; Disputed Charges. Customer will not be required to pay charges for Services invoiced more than 6 months after close of the billing month in which the charges were incurred, except for a utomated or live operator assisted calls of any type. If Customer disputes a charge, Customer will provide notice to AT&T specifically identifying the charges and the reason it is disputed within 6 months after the date of the affected invoice or Customer waive s the right to dispute the charge (except to the extent applicable law or regulation otherwise requires). Disputed charges may be withheld, but if not paid when due, Customer will incur late payment fees in accordance with Section 4.4 (Payments); however, to the extent AT&T determines the charges Customer disputed and withheld were invoiced in error, late payment fees for such charges will be reversed. 4.6 MARC. Minimum Annual Revenue Commitment (“MARC”) means an annual revenue commitment of MARC-Eligible Charges set forth in a Pricing Schedule that Customer agrees to satisfy during each 12 consecutive month period of the Pricing Schedule Term. At the end of each such 12 month period, if Customer has failed to satisfy the MARC for the preceding 12 month period, Customer will be invoiced a shortfall charge in an amount equal to the difference between the MARC and the total of the applicable MARC-Eligible Charges incurred during the 12 month period , and payment will be due in accordance with Section 4.4 (Payments). 4.7 Adjustments to MARC. (a) In the event of a business downturn beyond Customer’s control, or a corporate divestiture, merger, acquisition or significant restructuring or reorganization of Customer’s business, or network optimization using oth er Services, or reduction of AT&T’s prices, or force majeure events, any of which significantly impairs Customer’s ability to meet Customer’s MARC, AT&T will offer to adjust the affected MARC to reflect Customer’s reduced usage of Services (with a corresponding adjustment to the prices or discount available at the reduced MARC level). If the parties reach mutual agreement on a revised MARC, AT&T and Customer will amend the affected Pricing Schedule prospectively. This Section 4.7 will not apply to a change resulting from Customer’s decision to use service providers other than AT&T. Customer will provide AT&T written notice and evidence of the conditions Customer believe s will require the application of this provision. This provision does not constitute a waiver of any charges, including monthly recurring charges and shortfall charges Customer incurs prior to amendment of the affected Pricing Schedule. (b) If Customer, through merger, consolidation, acquisition or otherwise, acquires a new business or operation, Customer and AT&T may mutually agree to include the new business or operation under this Agreement. Such agreement will specify the impact, if any, of such addition on Customer’s MARC or other volume or growth discounts , and Customer’s attainment thereof. 5. CONFIDENTIAL INFORMATION 5.1 Confidential Information. Confidential Information means: (a) information the parti es share with each other in connection with this Agreement or in anticipation of providing Services under this Agreement, but only to the extent identified as Confidential Information in writing; and (b) except as may be required by applicable law or regulation, the terms of this Agreement and any pricing or other proposals. 5.2 Obligations . Each party’s Confidential Information will, for a period of 3 years following its disclosure to the other party (except in the case of software, which is indefinite): (a) be held in confidence; (b) be used and transmitted between countries only for purposes of using the Services or performing this Agreement (including in the case of AT&T, the ability to utilize Customer’s Confidential Information in order to detect fraud, check quality, and to operate, maintain and repair the Services); and (c) not be disclosed, except to the receiving party’s employees, agents and contractors having a need -to -know (but only if such agents and contractors are not direct competitors of the other party and agree in writing to use and disclosure restrictions as restrictive as this Section 5 ), or to the extent authorized to be revealed by law, governmental authority or legal process (but only if such disclosure is limited to that which is so authorized and prompt notice is provided to the disclosing party to the extent practicable and not prohibited by law, governmental authority or legal process). 5.3 Exceptions . The restrictions in this Section will not apply to any information that: (a) is independently developed by the receiving party; (b) is lawfully received by the receiving party free of any obligation to keep it confidential; or (c) becomes generally available to the public other than by breach of this Agreement. 5.4 Privacy Laws. Each party is responsible for complying with the privacy laws applicable to its business . If Customer does not want AT&T personnel to comprehend Customer data to which they may have access in performing Services, Customer should encrypt such data so that it will be unintelligible. Until directed otherwise by Customer in writing, if AT&T designates a dedicated account representative as Customer’s primary contact with AT&T, Customer authorizes that representative to discuss and disclose Customer’s customer proprietary network information (CPNI) to any employee or agent of Customer without a need for further authentication or authorization. ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 5 of 9 eCRM ID ______________ 6. DISCLAIMERS AND LIMITATIONS OF LIABILITY 6.1 Discla imer of Warranties. AT&T MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON -INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE OR COURSE OF DEALING. FURTHER, AT&T MAKES NO REPRESENTATION OR WARRANTY THAT TELEPHONE CALLS OR OTHER TRANSMISSIONS WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING CALLS TO 911 OR ANY SIMILAR EMERGENCY RESPONSE NUMBER), OR GUARANTEE REGARDING NETWORK SECURITY, THE ENCRYPTION EMPLOYED BY ANY SERVICE, THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED OR SUBJECT TO LOAD BALANCING, OR THAT AT&T’S SECURITY PROC EDURES WILL PREVENT THE LOSS OR ALTERATION OF, OR IMPROPER ACCESS TO, CUSTOMER’S DATA AND CONFIDENTIAL INFORMATION. 6.2 Limitation of Liability. (a) AT&T’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR DAMAGES ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN THE SERVICES, AND NOT CAUSED BY CUSTOMER’S NEGLIGENCE, SHALL IN NO EVENT EXCEED THE APPLICAB LE CREDITS SPECIFIED IN A SERVICE PUBLICATION OR PRICING SCHEDULE, OR IF NO CREDITS ARE SPECIFIED, AN AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE TO CUSTOMER FOR THE PERIOD OF SERVICE DURING WHICH SUCH MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR OR DEFECT IN THE SERVICES OC CURS AND CONTINUES. IN NO EVENT SHALL AN Y OTHER LIABILITY ATTACH TO AT&T. (b) SECTION 6 .2(a) WILL NOT APPLY TO: (i) BODILY INJURY, DEATH, OR DAMAGE TO REAL OR TANGIBLE PROPERTY DIRECTLY CAUSED BY AT&T’S NEGLIGENCE; (ii) BREACH OF SECTION 5 (Confidential Information), SECTION 10.1 (Publicity), OR SECTION 10.2 (Trademarks ); (iii) SETTLEMENT, DEFENSE OR PAYMENT OBLIGATIONS UNDER SECTION 7 (Third Party Claims ); OR (iv) DAMAGES ARISING FROM AT&T’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. (c) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES, OR INCREASED COST OF OPERATIONS. 6.3 Disclaimer of Liability. AT&T WILL NOT BE LIABLE FOR ANY DAMAGES, EXCEPT TO THE EXTENT CAUSED BY AT&T’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT, OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICE DEFECTS, SERVIC E LEVELS, DELAYS, OR INTERRUPTIONS (EXCEPT FOR LIABILITY FOR SUCH EXPLICITLY SET FORTH IN THIS AGREEMENT); ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS (INCLUDING 911 CALLS OR ANY SIMILAR EMERGENCY RESPONSE NUMBER); LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS, OR DESTRUCTION OF CUSTOMER’S, ITS AFFILIATE’S, USERS’, OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, PROGRAMS, CONFIDENTIAL INFORMATION, NETWORK, OR SYSTEMS . 6.4 Application and Survival. The disclaimer of warranties and limitations of liability set forth in this Agreement will apply regardless of the form of action, whether in contract, equity, tort, strict liability or otherwise and whether damages were foreseeable, and will apply so as to limit the liability of each party and its Affiliates, and their respective employees, directors, subcontractors, and suppliers . The limitations of liability and disclaimers set out in this Section 6 will survive failure of any exclusive remedies provided in this Agreement. 7. THIRD PARTY CLAIMS 7.1 AT&T’s Obligations . AT&T agrees at its expense to defend or settle any third-party claim against Customer, its Affiliates, and its and their respective employees and directors, and to pay all compensatory Damages that a court may finally award against such parties to the extent the claim alleges that a Service provided to Customer under this Agreement infringes any patent, trademark, copyright, or trade secret, but not in circumstances where the claim ed infringement arises out of or results from: (a) Customer’s , its Affiliate’s or a User’s content; (b) modifications to the Service by Customer, its Affiliates or ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 6 of 9 eCRM ID ______________ third parties, or combinations of the Service with any services or products not provided by AT&T; (c) AT&T’s adherence to Customer’s or its Affiliate’s written requirements; or (d) use of the Service in violation of this Agreement. 7.2 Customer’s Obligations . Customer agrees at its expense to defend or settle any third-party claim against AT&T, AT&T’s Affiliates, and its and their respective employees, directors, subcontractors, and suppliers, and to pay all compensatory Damages that a court may finally award against such parties to the extent the claim: (a) arises out of Customer’s, its Affiliate’s, or a User’s access to, or use of, the Services and the claim is not the responsibility of AT&T under Section 7.1; (b) alleges that a Service infringes any patent, trademark, copyright or trade secret, and falls within the exceptions in Section 7.1 ; or (c) alleges a breach by Customer, its Affiliates, or Users of a software license agreement governing software provided in connection with the Services. 7.3 Infringing Services. Whenever AT&T is liable under Section 7.1 , AT&T may at its option either procure the right for Customer to continue using, or may replace or modify, the alleged infringing Service so that the Service becomes non - infringing. 7.4 Notice and Cooperation . The party seeking defense or settlement of a third party claim under this Section 7 will notify the other party promptly upon learning of any claim for which defense or settlement may be sought, but failure to do so will have no effect except to the extent the other party is prejudiced thereby. The party seeking defense or settlement will allow the other party to control the defense and settlement of the claim and will reasonably cooperate with the defense; but the defending party will use counsel reasonably experienced in the subject matter at issue, and will not settle a claim without the consent of the party being defended, which consent will not be unreasonably withheld or delayed, except that no consent will be required where relief on the claim is limited to monetary damages that are paid by the defending party under this Section 7 . 8. SUSPENSION AND TERMINATION 8.1 Termination of Agreement. This Agreement may be terminated immediately upon notice by either party if the other party becomes insolvent, ceases operations, is the subject of a bankruptcy petition, enters receivership or any state insolvency proceeding, or makes an assignment for the benefit of its creditors. 8.2 Termination or Suspension of Services. The following additional termination provisions apply: (a) Fraud or Abuse. AT&T may terminate or suspend an affected Service, and if the activity implicates the entire Agreement, terminate the entire Agreement, immediately by providing Customer with as much advance notice as is reasonably practicable under the circumstances if Customer: (i) commits a fraud upon AT&T; (ii) utilizes the Service to commit a fraud upon another party; (iii) unlawfully uses the Service; (iv) abuses or misuses AT&T’s network or Service; or (v) interferes with another customer’s use of AT&T’s network or services. (b) Material Breach. If either party fails to perform or observe any material term or condition of this Agreement, including non-payment of charges (subject to Section 4.5 – Delayed Billing; Disputed Charges), and such failure continues unremedied for 30 days after receipt of notice, the non-breaching party may terminate the affected Service, and if the breach implicates the entire Agreement, terminate the entire Agreement. If Customer is in breach, AT&T may elect to suspend (and later terminate) the affected Service, and if the breach implicates the entire Agreement, suspend (and later terminate) the entire Agreement. (c) Materially Adverse Change . If AT&T revises a Service Publication and the revision has a materially adverse impact on Customer, and AT&T does not effect revisions that remedy such materially adverse impact within 30 days after notice from Customer, then Customer may, as Customer’s sole remedy, elect to terminate the affected Service Components on 30 days’ notice to AT&T, given not later than 90 days after Customer first learns of the revision to the Service Publication. However, a revision to a Service Publication will not be considered materially adverse to Customer if it changes prices that are not fixed (stabilized) in a Pricing Schedule, if the price change was mandated by a governmental authority, or if the change affects a charge imposed under Section 4.2 (Additional Charges and Taxes). (d) Internet Services. If Customer fails to rectify a violation of the AUP within 5 days after receiving notice from AT&T, AT&T may suspend the applicable portion of the Service. AT&T has the right; however, to suspend or terminate the applicable portion of the Service immediately when: (i) AT&T’s suspension or termination is in response to multiple or repeated AUP violations or complaints; (ii) AT&T is acting in response to a court order or governmental notice that certain conduct must be stopped; or (iii) AT&T reasonably determines: (a) that it may be exposed to sanctions, liability, prosecution, or other adverse consequences under applicable law if AT&T were to allow the violation to continue; (b) that such violation may cause harm to or interfere with the integrity or normal operations or security of AT&T’s network or networks with which AT&T is interconnected or interfere with another customer’s use of AT&T Services or the Internet; or (c) that such violation otherwise presents imminent risk of harm to AT&T or AT&T’s custom ers or their respective employees. ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 7 of 9 eCRM ID ______________ (e) Infringing Services. If neither of the options described in Section 7.3 (Infringing Services) are reasonably available, AT&T may terminate the affected Service without liability other than as stated in Section 7.1 (AT&T’s Obligations). (f) Hazardous Materials . If AT&T encounters any Hazardous Materials at the Site where AT&T is to install , maintain or provide Services, AT&T may terminate the affected Service or Service Component, or suspend performance until Customer removes and remediate s Hazardous Materials at Customer’s expense in accordance with applicable law. 8.3 Withdrawal of Services. Notwithstanding that a Pricing Schedule may commit AT&T to provide a Service to Customer for a Pricing Schedule Term, and unless applicable law or regulation mandates otherwise, AT&T may discontinue providing a Service upon 12 months ’ notice, or a Service Compon ent upon 120 days ’ notice, but only where AT&T generally discontinues providing the Service or Service Component to similarly–situated customers. 8.4 Effect of Termination. (a) Termination by either party of a Service does not waive any other rights or rem edies a party may have under this Agreement. Termination or suspension of a Service will not affect the rights and obligations of the parties regarding any other Service. (b) If a Service or Service Component is terminated, Customer will pay all amounts incurred prior to the effective date of termination. If Customer terminates a Service or Service Component prior to the date Customer’s obligation to pay for Services begins as provided in Section 4.3 (Billing), Customer will reimburse AT&T for time and materials incurred prior to the effective date of termination, plus any third party charges resulting from the termination. 8.5 Termination Charges. (a) If Customer terminates this Agreement or an affected Service or Service Component pursuant to Sections 8.1 (Termination of Agreement), 8.2(b) (Material Breach), or 8.2(c) (Materially Adverse Change); AT&T terminates a Service pursuant to Section 8.2(e) (In fringing Services ), or AT&T withdraws a Service pursuant to Section 8.3 (Withdrawal of Services), Customer will not be liable for the termination charges set forth in Section 8.5(b). (b) If Customer terminates a Service or Service Component other than as s et forth in Section 8.5(a), or AT&T terminates an affected Service or Service Component pursuant to Sections 8.1 (Termination of Agreement), or 8.2(a) (Fraud or Abuse), 8.2(b) (Material Breach), 8.2(d) (Internet Services), or 8.2 (f) (Hazardous Materials), Customer will pay applicable termination charges as follows : (i) if termination occurs before the end of the Minimum Payment Period, Customer will pay 50% (unless a different percentage is specified in the Pricing Schedule) of the monthly recurring charges for the terminated Service or Service Component multiplied by the months remaining in the Minimum Payment Period, plus any waived or unpaid non-recurring charges identified in the Pricing Schedule (including, but not limited to, any and all charges for failure to satisfy a Minimum Retention Period (MRP)), plus any charges incurred by AT&T from a third party (e.g., not an AT&T Affiliate) due to the termination, all of which will, if applicable, be applied to Customer’s MARC-Eligible Charges; and (ii) if Customer terminates a Pricing Schedule that has a MARC, Customer will pay an amount equal to 50% of the unsatisfied MARC, after applying amounts received pursuant to (i), for the balance of the Pricing Schedule Term. (c) The charges set forth in Section 8.5(b)(i) will not apply if a terminated Service Component is replaced with an upgraded Service Component at the same Site, but only if (i) the Minimum Payment Period and associated charge for the replacement Service Component are equal to or greater than the Minimum Payment Period and associated charge for the terminated Service Component, and (ii) the upgrade is not restricted in the applicable Service Publication. 9. IMPORT/EXPORT CONTROL The parties acknowledge that equipment, s ervices , software, and technical information (including technical assistance and training) provided under this Agreement may be subject to import and export laws, conventions or regulations, and any use or transfer of the equipment, products, software, and technical information must be in compliance with all such laws, conventions and regulations. The parties will not use, distribute, transfer, or transmit the equipment, services , software, or technical information (even if incorporated into other products) except in compliance with such laws, conventions and regulations. Customer, not AT&T, is responsible for complying with such laws, conventions and regulations for all information, equipment and software Customer transmits between countries using the Servi ces. 10. MISCELLANEOUS PROVISIONS 10.1 Publicity. Neither party may issue any public statements or announcements relating to the terms of this Agreement or the provision of Services without the prior written consent of the other party. ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 8 of 9 eCRM ID ______________ 10.2 Trademarks. Each party agrees not to display or use, in advertising or otherwise, any of the other party’s trade names, logos, trademarks, service marks , or other indicia of origin without the other party’s prior written consent, which consent may be revoked at any time by notice. 10.3 Force Majeure. Except for payment of amounts due, neither party will be liable for any delay, failure in performance, loss or damage due to fire, explosion, cable cuts, power blackout, earthquake, flood, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism, acts of God, acts of a public enemy, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond such party’s reasonable control. 10.4 Amendm ents and Waivers. Any supplement to or modification or waiver of any provision of this Agreement must be in writing and signed by authorized representatives of both parties . A waiver by either party of any breach of this Agreement will not operate as a wa iver of any other breach of this Agreement. 10.5 Assignment and Subcontracting. (a) This Agreement may not be assigned by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed). Custom er may, without AT&T’s consent, but upon notice to AT&T, assign in whole or relevant part, its rights and obligations under this Agreement to an Affiliate, but Customer will remain financially responsible for the performance of such obligations . AT&T may, without Customer’s consent, assign in whole or relevant part, its rights and obligations under this Agreement to an Affiliate , or subcontract to an Affiliate or a third party work to be performed under this Agreement, but AT&T will in each such case remain financially responsible for the performance of such obligations . (b) In countries where AT&T does not have an Affiliate to provide Service, AT&T may assign its rights and obligations related to a Service to a local service provider, but AT&T will remain responsible to Customer for such obligations. In certain countries, Customer may be required to contract directly with the local service provider. (c) Any assignment other than as permitted by this Section 10.5 is void. 10.6 Severability. If any portion of this Agreement is found to be invalid or unenforceable or if, notwithstanding Section 10.10 (Governing Law), applicable law mandates a different interpretation or result, the remaining provisions will remain in effect and the parties will negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually acceptable provision consistent with the original intention of the parties. 10.7 Injunctive Relief. Nothing in this Agreement is intended, or should be construed, to limit a party’s right to seek preliminary or permanent injunctive relief from a court of competent jurisdiction for a breach of any provision of this Agreement. 10.8 Legal Action . Any legal action arising in connection with this Agreement must be filed within 2 years after the cause of action accrues or it will be deemed time-barred and waived. The parties waive any statute of limitations to the contrary. 10.9 Notices. All notices required under this Agreement will be delivered in writing to the recipient's contact designated on the cover page of this Master Agreement, or to such other contact as designated in writing from time to time. Notices shall be by internationally recognized overnight courier, certified or registered mail, email, or facsimile and will be effective upon receipt or when delivery is refused, whichever occurs sooner. 10.10 Governing Law. This Agreement will be governed by the law of the State of New York, without regard to its conflict of law principles , unless a regulatory agency with jurisdiction over the applicable Service applies a different law. The United Nations Convention on Contracts for International Sale of Goods will not apply. 10.11 Compliance with Laws. Each party will comply with all applicable laws, regulations, and orders issued by courts or other governmental bodies of competent jurisdiction. 10.12 No Third Party Beneficiaries. This Agreement is for the benefit of Customer and AT&T, and does not provide any third party (including Users) the right to enforce or bring an action for any remedy, claim, liability, reimbursement, cause of action, or other right or privilege. 10.13 Survival. The respective obligations of Customer and AT&T that by their nature would continue beyond the termination or expirati on of this Agreement, including without limitation, the obligations set forth in Section 5 (Confidential Information), Section 6 (Disclaimers and Limitations of Liability), and Section 7 (Third Party Claims), will survive termination or expiration. 10.14 Agreement Language . The authentic language of this Agreement is English. If there is a confli ct between this Agreement and any translation, the English version will take precedence. ua_ver_i.pdf UA VER I 07/14/08 AT&T and Customer Confidential Information Page 9 of 9 eCRM ID ______________ 10.15 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Services provided under this Agreement. Except as provided in Section 2.3 (Software), this Agreement supersedes all other agreements, proposals, representations, statements or understandings, whether written or oral, concerning the Services or the rights and obligations relating to the Services , and the parties disclaim any reliance thereon. This Agreement will not be modified or supplemented by any written or oral statements, proposals, representations, advertisements, service descriptions or purchase order forms not expressly set forth in this Agreement. 11. DEFINITIONS The following terms have the meanings set forth below: “Affiliate” of a party means any entity that controls, is controlled by, or is under common control with, such party. “Damages” means collectively all injury, damage, liability, loss, penalty, interest and expense incurred. “Effective Date” means, for any Pricing Schedule, the date on which the last party signs the Pricing Schedule unless a later date is required by regulation or law. “MARC-Eligible Charges” means, unless the applicable Pricing Schedule indicates otherwise, the recurring and usage charges, after deducting applicable discounts and credits (other than outage or SLA credits), that AT&T charges Customer for the Services identified in the applicab le Pricing Schedule as MARC-contributing. The following are not MARC-Eligible Charges: (a) charges for or in connection with Customer’s purchase of equipment; (b) taxes; and (c) charges imposed in connection with governmentally imposed costs or fees (such as USF, PICC, payphone service provider compensation, E911 and deaf relay charges). “Minimum Payment Period” means, in respect to any Service, the minimum period for which Customer is required to pay recurring charges for the Service, as specified in the Pricing Schedules or Service Publication for that Service. “Minimum Retention Period” means, in respect to any Service, the period of time for which Customer is required to maintain service to avoid the payment of certain credits, waived charges , or unpaid amortized charges, all as specified in the Pricing Schedule or Service Publication for that Service. “Service Component” means an individual component of a Service provided under this Agreement. “Site” means Customer’s physical location, including Customer’s collocation space on AT&T’s, its Affiliate’s, or subcontractor’s property, where AT&T installs or provides a Service. AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 1 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 AT&T Managed Internet Service Pricing Schedule Customer AT&T AT&T Sales Contact Primary Contact City of Milton 13000 Deerfield Parkway Alpharetta, GA 30004 USA AT&T Corp. WILLIAM B JENNINGS 1600 WILLIAMS ST COLUMBIA, SC 29201 Telephone: 8037437945 Fax: 8473262981 Email: bj7914@semail.att.com Branch Manager: John Barron Sales Strata: Small Business Market Sales Region: Southeastern Customer Contact (for notices) AT&T Contact (for notices) AT&T Solution Provider or Representative Information (if applicable) Name: Kelley Christy Title: 13000 Deerfield Parkway Milton , GA 30004 United States Telephone: 6782422517 Fax: Email: kelley.christy@cityofmiltonga.us Customer Account Number or Master Account Number: 1600 WILLIAMS ST COLUMBIA, SC 29201 With a copy to: AT&T Corp. One AT&T Way Bedminster, NJ 07921-0752 ATTN: Master Agreement Support Team Email: mast@att.com Name: Company Name: Telephone: Fax: Email: Agent Code: This Pricing Schedule is part of the Agreement between AT&T and Customer referenced above. Customer (by its authorized representative) AT&T (by its authorized representative) By: By: Name: Name: Title: Title: Date: Date: AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 2 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 1. SERVICES • AT&T Managed Internet Service • AT&T Private Network Transport (PNT) Service is an option of MIS and can be ordered as an MPLS PNT feature under Section I, Tables 13 and 14. • AT&T’s Acceptable Use Policy is located at http://www.att.com/aup or such other AT&T-designated location . 2. PRICING SCHEDULE TERM AND EFFECTIVE DATES Pricing Schedule Term Term Start Date 12 Months Effective Date of this Pricing Schedule Effective Date of Rates and Discounts Effective Date of this Pricing Schedule 3. MINIMUM PAYMENT PERIOD Portion of Monthly Service Fees Applicable to Minimum Payment Period Service Components Minimum Payment Period 50% All Service Components Until end of Pricing Schedule Term, but not less than 12 months per component AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 3 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 4. RATES (US Mainland, HI and Alaska† only) † Service in Alaska requires a separate AT&T Addendum for Service in Alaska. The rates stated in this Pricing Schedule apply to Service locations and/or Service Components in Alaska only in the event that a Service Component and/or Service location is not listed in the Addendum for Service in Alaska. In the event of the conflict between this Pricing Schedule and the Addendum for Service in Alaska, the Addendum for Service in Alaska controls. NOTE 1: MIS w/ Managed Router Option 2 available only as described in the Service Guide. NOTE 2: If Customer orders the MPLS PNT feature under Section I, Tables 13 and 14 as part of the MIS service, Customer will be billed for PNT transport and uplifts and all applicable taxes will be stated on the Customer’s invoice. NOTE 3: The charges for the Class of Service (CoS) feature set forth in Section I, Table 9 and 10 are waived for Sites at which Customer also maintains AT&T Business Voice over IP (VoIP) Service. (*) = not available with MPLS PNT ICB = available only on an Individual Case Basis. N/A = Not Available Section I: AT&T Managed Internet Service Access Bandwidth - Table 1: Tiered T-1, NxT-1, E-1 And Frame Access Method Speed MIS Monthl y Service Fee List Price MIS w/ Managed Router Monthly Service Fee List Price MIS w/ Managed Router Option 2 Monthly Service Fee List Price Discount N/A 56/64 Kbps $190 $260 N/A N/A T-1 128 Kbps $225 $295 $285 N/A T-1 256 Kbps $280 $350 $340 N/A T-1 384 Kbps $335 $405 $395 N/A T-1 512 Kbps $390 $460 $450 N/A T-1 768 Kbps $410 $480 $470 N/A T-1 – Frame* 1024 Kbps $425 $495 $485 N/A T-1 T-1 $470 $540 $530 36.0 % E-1* E-1 $470 $540 N/A N/A 2xT-1 3 Mbps $850 $1,145 N/A N/A 3xT-1 4.5 Mbps $1,100 $1,395 N/A N/A 4xT-1 6 Mbps $1,250 $1,545 N/A N/A 5xT-1 7.5 Mbps $1,480 $2,360 N/A N/A 6xT-1 9 Mbps $1,715 $2,595 N/A N/A 7xT-1 10.5 Mbps $1,915 $2,795 N/A N/A 8xT-1 12 Mbps $2,190 $3,070 N/A N/A v.2.3.06 AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 4 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 Table 2: Burstable T-1 Discount: : N/A Sustained Usage Undiscounted MIS Monthly Service Fee Undiscounted MIS w/Managed Router Monthly Service Fee Undiscounted MIS w/Managed Router Option 2 Monthly Service Fee up to 128kbps $270 $340 $330 128.01 - 256 Kbps $340 $410 $400 256.01 - 384 Kbps $405 $475 $465 384.01 - 512 Kbps $470 $540 $530 512.01 Kbps - 1.544 Mbps $565 $635 $625 v.2.3.06 Table 3: DNS Services Option Monthly Service Fee Additional Primary DNS (available in increments of up to 15 zones with a maximum of 150 Kilobytes of zone file data) $100 per DNS increment Additional Secondary DNS (available in increments of up to 15 zones with a maximum of 150 Kilobytes of zone file data) $100 per DNS increment v.07.01.04 Table 4: Multiple Access Redundancy Option (MARO) - Burstable T-1 with Shadow Billing Option Discount: N/A Sustained Usage MIS w/Managed Router Undiscounted Monthly Service Fee MIS w/Managed Router Option 2 Undiscounted Monthly Service Fee Up to 56 Kbps For MARO Redundant Link Service Only (Shadow Billing) $170 $160 up to 128kbps $340 $330 128.01 - 256 Kbps $410 $400 256.01 - 384 Kbps $475 $465 384.01 - 512 Kbps $540 $530 512.01 Kbps - 1.544 Mbps $635 $625 v.2.20.06 Table 5: MARO Features - Monthly Service Fees Option Monthly Service Fee List Price Service Component Discount T-1: $500 Alternate Backbone Node Option - additional charges via Private Line, per Service Component NxT1: $500 per T-1 N/A T-1: $120 CPE Redundant Configuration Option - Per Service Component NxT-1: $350 N/A Backbone Node Redundancy Option - additional charges via Private Line, per Redundant Link $500 per T-1 Redundant Link N/A Outbound Load Balancers (2) (Dual Managed Customer Routers) T-1 & NXT-1: $350 N/A v.2.3.06 Table 6: MARO Features - Installation Fees (ICB Only) Discount: 0.0 % Option Undiscounted Installation Fee List Price MIS, MIS w/Managed Router, & MIS w/ Managed Router Option 2 MARO - Outbound Load Balancers (2) (Dual Managed Customer Routers) $1000 v.2.6.06 Table 7: MIS Tele – Installation Discount: 100.0 % MIS Speed Undiscount ed MIS Undiscounted MIS w/ Managed Router Undiscounted MIS w/ Managed Router Option 2 56 Kbps $1,000 $1,000 $1,000 128 Kbps - 1.5 Mbps $1,000 $1,000 $1,000 NxT-1 $2,500 $2,500 $2,500 v.12.10.07 AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 5 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 Table 8: On -Site Installation Discount: 0.0 % MIS Speed Undiscounted MIS w/ Managed Router Only Undiscounted MIS w/ Managed Router Option 2 Only 56 Kbps $999 $999 128 Kbps - 1.5 Mbps $999 $999 NxT-1 $999 $999 v.12.10.07 Table 9: Class Of Service Option - Tiered T-1 and Burstable Service - Monthly Service Fees Discount: 62.0 % Speed Class of Service Monthly Fee – List Price (w/ or w/out Managed Router, including Managed Router Option 2, except as indicated) 56 Kbps† $225 128 Kbps† $225 256 Kbps† $225 384 Kbps† $225 512 Kbps† $225 768 Kbps $225 1024 Kbps* $225 1.5 Mbps $225 2xT-1 (3 Mbps) $225 3xT-1 (4.5 Mbps) $225 4xT-1 (6 Mbps) $225 5xT-1 (7.5 Mbps) $225 6xT-1 (9 Mbps) $225 7xT-1 (10.5 Mbps) $225 8xT-1 (12 Mbps) $225 (†) no real-time class available v.6.1.06 Table 10: Class Of Service Option - Installation Fees Discount: 100.0 % Class of Service Undiscounted Installation Fee $1,000 v.2.3.06 Table 11: MIS+NCS Option (ICB Only) Discount: N/A Feature Undiscounted Monthly Service Fee MIS Only MIS + NCS Site License Fee (3 yr) $1,200 MIS + NCS Site License Fee (5 yr) $1,050 MIS + NCS Tier 1 Support $100 v.04.29.02 Table 12: MIS + NCS Installation Fees (ICB Only) Discount: 0.0 % Feature Undiscounted Installation Fee List Price MIS MIS + NCS Site Preparation Fee $2,500 v.2.3.06 Table 13: MPLS PNT Feature Discount: : N/A Access Method Speed Undiscoun ted Monthly Service Fee MIS, MIS w/Managed Router , and MIS w/ Managed Router Option 2 Private Line Fractional T -1 (56K – 768K)** Fractional T -1 (56K – 768K)** $200 Private Line NxT-1 (2 through 8) Private Line NxT-1 (3 Mbps – 12 Mbps) $200 Private Line T1 T-1 (1.54 Mbps) $200 ** (1024K not available with MPLS PNT) v.9.28.05 Table 14: MPLS PNT UniLink Feature Discount: N/A Access Method Speed Undiscounted Monthly Service Fee MIS PNT and MIS PNT with Managed Router Private Line T-1 T-1 (1.54 Mbps) Burstable T1 $200 v.04.15.05 Table 15: MultiCast Monthly Service Fee N/A MultiCast Monthly Service Fee ICB AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 6 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 Table 16: MultiCast Installation N/A MultiCast Installation Fee ICB Section II: AT&T Business in a BoxSM Table 1: Service Component Replacement – Next Business Day Shipped (5x8) Monthly Charges Discount: N/A Service Component/Device Undiscounted Monthly Service Charge Base Unit 12 Port $50 Base Unit 24 Port $70 8 Port POE Add-On $30 24 Port POE Add-On $75 8 Port Analog Module Add-On $35 v.5.14.09 Table 2: On -Site Maintenance (24X7X4) Monthly Charges Discount: N/A Option Undiscounted Monthly Service Charge Base Unit 12 Port $75 Base Unit 24 Port $95 8 Port POE Add-On $35 24 Port POE Add-On $85 8 Port Analog Module Add-On $40 v.5.14.09 Table 3: Life -Cycle Management Charges - Service Charges Discount: N/A Per Site / Per Occurrence during Standard Business Hours (Monday- Friday, 8:00 am - 5:00 pm, local time) Undiscounted Service Charge List Price Move, Addition, Change to Service $260 Delete Service $500 v. 5.14.09 Table 4: Class Of Service Option - when ordered with AT&T BVoIP Services only Discount: 100% Class of Service Monthly Service Fee $225 v.1.9.09 Section I II: Managed Firewall Service Pricing - ICB Table 1: Monthly Fees for Router and Server Based Firewalls Option Monthly Service Fee List Price Service Component Discount Router Based Firewall Option $300 N/A Server Based Firewall Option $2,500 0.0 % v.11.27.02 Table 2: Installation Fees for Router and Server Based Firewalls Option Tele -Installation Fee - List Price Discount To be Applied To The List Price Router Based Firewall $2500 N/A Server Based Firewall $5000 50.0 % v.04/29/02 Table 3: Server Based High End Firewall Monthly Discount: 0.0 % Options Monthly Service Fees List Price Undiscounted Hi Availability/Load Balancing (Cluster of 2 Firewalls) $6250 Undiscounted Additional Firewalls in High Availability Cluster (Up to 5 total) $2,500 per additional firewall 04/29/02 Table 4: Server Based High End Firewall Installation Options Undiscounted Installation Fees List Price Additional Service Component Discount Managed Firewall - Hi Availability/Load Balancing (Cluster of 2 Firewalls) $12,500 0.0 % Additional Firewalls in High Availability Cluster (above cluster of 2, up to a total of 5) $5,000 per additional firewall 0.0 % v.04/29/02 AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 7 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 Table 5: Server Based Firewall Options - ICB (i) Monthly Service Charges Discount: 0.0 % Server Based Firewall Options Undiscounted Monthly Service Fees List Price Triple Homed Option (DMZ) (Server Based) $500 Double Homed Option (Unprotected DMZ) $0 URL Screening (Websense) Managed Firewall URL Screening 100 User $100.00 Managed Firewall URL Screening 500 User $350.00 Managed Firewall URL Screening 1000 User $500.00 Managed Firewall URL Screening 3000 User $900.00 Managed Firewall URL Screening 5000 User $1,250.00 100 Mb Ethernet Support - Managed Firewall 100Mb Ethernet $200.00 Support For Customer-Provided Strong Authentication Server $50.00 Managed Firewall - Support For Extranet $750.00 Managed Firewall - Support For Remote User VPN $0 Firewall to Firewall VPN - (AT&T Managed Firewall Location) $500 Firewall to Firewall VPN - (Customer Managed Firewall Location) $1000 Firewall Availability Reporting $500 Managed Firewall - Support For Hardware Encryption Acceleration $500 v.02/05/04 (ii) Installation Charges Discount: 50.0 % Firewall Options Undiscounted Installation Fees List Price Triple Homed Option (DMZ) (Server Based) $0 Double Homed Option (Unprotected DMZ) $200 URL Screening (Websense) Managed Firewall URL Screening 100 User $350.00 Managed Firewall URL Screening 500 User $350.00 Managed Firewall URL Screening 1000 User $350.00 Managed Firewall URL Screening 3000 User $350.00 Managed Firewall URL Screening $350.00 5000 User 100 Mb Ethernet Support - Managed Firewall 100Mb Ethernet $200.00 Support For Customer Provided Strong Authentication Server $250.00 Managed Firewall - Support for Extranet $500.00 Managed Firewall - Support for Remote User VPN $1000.00 Firewall to Firewall VPN - (AT&T Managed Firewall Location) $500 Firewall to Firewall VPN - (Customer Managed Firewall Location) $1000 Firewall Availability Reporting $500 Managed Firewall - Support For Hardware Encryption Acceleration $500 v.02/05/04 Table 6: Triple Homed Option - Router based Discount: N/A Option Undiscounted Installation Fee Triple Homed Option $500 v.11/27/02 Table 7: On -Site Maintenance/Service Level Response Time Options - Monthly Service Charges Discount: 0.0 % Maintenance/Service Level Response Time Undiscounted Monthly Service Charge 5 days/week, 8 hours/day, Next Business Day Standard - available at no additional charge 5 days/week, 8 hours/day, 4 Business Hours $150.00 7 days/week. 8 hours/day Next Business Day $300.00 7 days/week, 24 hours/day, 4 Business Hours $500.00 v.04/29/02 Table 8: MFS -- CP Option - Monthly Charges Option Undiscounted Monthly Service Fee List Price Service Component Discount Small Office $500.00 N/A Medium Office $2,000.00 N/A Medium Office High Availability $4,000.00 N/A Large Office High Availabilty $7,000.00 N/A Large Office High Availability GigE $7,500.00 N/A Extra-Large High Availability GigE $15,000.00 N/A v.08/28/02 AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 8 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 Table 9: MFS -- CP Option - Installation Charges Option Undiscounted Installation Fees List Price Service Component Discount Small Office $2,500.00 N/A Medium Office $2,500.00 N/A Medium Office High Availability $4,500.00 N/A Large Office High Availabilty $10,500.00 N/A Large Office High Availability GigE $11,000.00 N/A Extra-Large High Availability GigE $18,500.00 N/A v.08/28/02 Table 10: MFS -- CP Options - Monthly Charges Option Undiscounted Monthly Service Fee List Price Service Component Discount Virtual Private Network Option $500.00 N/A DMZ Option $700.00 N/A Extranet Option $700.00 N/A v.07/29/02 Table 11: MFS -- CP Options - Installation Charges Option Undiscounted Installation Fees List Price Service Component Discount Virtual Private Network Option $500.00 N/A URL Filtering Option $1,000.00 N/A DMZ Option $500.00 N/A Extranet Option $500.00 N/A v.07/29/02 Table 12: Managed Firewall Service - CN Option Monthly Prices - Standard AT&T CPE AT&T CPE Type of CN Appliance Number of Users Undiscounted Monthly Service Fee List Price Service Component Discount Small 1 - 25 $500 N/A Small 26 - 50 $550 N/A Small 51 - 100 $600 N/A Medium 1 - 50 $1,825 N/A Medium 51 - 100 $1,975 N/A Medium 101 - 250 $2,095 N/A Medium Unlimited $2,500 N/A Large 1 - 50 $2,640 N/A Large 51 - 100 $2,820 N/A Large 101 - 250 $2,960 N/A Large Unlimited $3,500 N/A v.08.05.05 Table 13: Managed Firewall Service - CN Option Monthly Prices - High Availability AT&T CPE AT&T CPE Type of CN Appliance Number of Users Undiscoun ted Monthly Service Fee List Price Service Component Discount Medium (Cluster of 2 Firewalls) Unlimited $3,750 N/A Large (Cluster of 2 Firewalls) Unlimited $5,500 N/A v.08.05.05 Table 14: Managed Firewall Service - CN Option Installation Charges - Standard and High Availability AT&T CPE Type of CN Appliance Category of CN Appliance Undiscounted Installation Fees List Price Service Component Discount Small Standard $1,000 N/A Medium Standard $5,000 N/A Medium High Availability $8,250 N/A Large Standard $5,000 N/A Large High Availability $8,250 N/A v.10.05.05 AT&T Managed Internet Service – Pricing Schedule AT&T MA Reference No. ______________ CSM091009133750 AT&T and Customer Confidential Information Page 9 of 9 eCRM ID ps_mis_t1_with_security_svcs_20060528_gcsm.rtf v.0 5/14/09 Table 15: Managed Firewall Service - CN Option CN Appliance Options - Monthly Prices Service Option Undiscounted Monthly Service Fee List Price Service Component Discount Professional Resource - ICB $2,000 N/A Capacity Upgrade Management - ICB $2,000 N/A Managed DMZ Support $500 N/A Support for Customer Provided Authentication $50 N/A Firewall to Firewall VPN $500 N/A Managed Extranet Support $750 N/A Managed Complex Policy: 30-100 firewall rules - ICB $50 N/A Managed Extra Complex Policy: over 100 firewall rules - ICB $250 N/A v.10.05.05 Table 16: Managed Firewall Service - CN Option CN Appliance Options - Installation Prices Service Option List Price Service Component Discount Professional Resource - ICB $5,000 N/A Capacity Upgrade Management - ICB $5,000 N/A Managed DMZ Support $500 N/A Support for Remote User VPN Configuration $1,000 N/A Support for Customer Provided Authentication $250 N/A Firewall to Firewall VPN $500 N/A Managed Extranet Support $500 N/A Managed Complex Policy: 30-100 firewall rules - ICB $500 N/A Managed Extra Complex Policy: over 100 firewall rules - ICB $1,000 N/A v.10.05.05 Section I V : Managed Intrusion Detection Service ("MIDS") - ICB Table 1: MIDS Standalone Option - Monthly Service Fees Discount: N/A MIDS Option Undiscounted Monthly Service Fee List Price Stand Alone Managed Intrusion Detection Service (MIDS) 10 MB $2,700 Stand Alone Managed Intrusion Detection Service (MIDS) 100 MB $3,200 Table 2: MIDS Standalone Option - Installation Fees Discount: N/A MIDS Option Undiscounted Installation Fee List Price Stand Alone Managed Intrusion Detection Service (MIDS) 10 MB $7,500 Stand Alone Managed Intrusion Detection Service (MIDS) 100 MB $7,500 v.04.29.02 Table 3: MIDS Bundled Option - Monthly Service Fees Discount: N/A MIDS Option Undiscounted Monthly Service Fee List Price Bundled with MFS-SB Managed Intrusion Detection Service (MIDS) 10 MB $2,250 Bundled with MFS-SB Managed Intrusion Detection Service (MIDS) 100 MB $2,750 v.04.29.02 Table 4: MIDS Bundled Option - Installation Fees Discount: N/A MIDS Option Undiscounted Installation Fee List Price Bundled with MFS-SB Managed Intrusion Detection Service (MIDS) 10 MB $3,000 Bundled with MFS-SB Managed Intrusion Detection Service (MIDS) 100 MB $3,000 v.04.29.02 Section V : Additional Service Fees Moving Fee (during standard operating hours – 8:00 a.m. to 5:00 p.m. Monday through Friday) $1,000 per location Additional Moving Fee (outside standard operating hours) Additional $500 per location v.07/01/04 City of Milton 1300 Deerfield Parkway, Suite 107 Milton, Georgia 30004 To: Honorable Mayor and City Council Members From: Tom Wilson, Interim Community Development Director Date: November 4, 2009 for Submission on the November 16, 2009 City Council Agenda (First Reading) and December 7, 2009 City Council Agenda Agenda Item: An Ordinance Regulating the Location, Placement, and Leasing of Wireless Telecommunications Facilities. CMO (City Manager’s Office) Recommendation: Approve the attached ordinance for the establishment of siting guidelines for all wireless communications towers and antennas by encouraging the development of wireless communications while protecting the general health, safety, and welfare of the public in addition to maintaining the aesthetic integrity of the neighboring communities in the future placement of these facilities. The approval of this ordinance will supersede article 19.4.7 of the City of Milton Zoning Ordinance. Background: The Milton City Council directed staff to evaluate a telecommunications ordinance for the city which would minimize the visual impact of proposed vertical telecommunications tower structures and employed modern-day technological advances to integrate these federally regulated communications facilities within the rural context of the new municipality, as appropriate. Wireless telecommunication towers have been approved in the past under the City of Milton’s Zoning Ordinance, Article 19, Use Permits. The Council has requested additional performance requirements for the review of wireless telecommunications towers and suggested a stand- alone City Ordinance in lieu of the Zoning Ordinance as the best avenue to pursue this initiative. Pursuant to Section 704 (a) of the Federal Telecommunications Policy Act of 1996 the ability for local governments to regulate policy specific to wireless telecommunication facilities is rather limited though having a comprehensively developed ordinance that provides reasonable accommodations for these modern-day technologies will place the city in a good position to defend aggressive measures to install visually intrusive telecommunication towers through the municipal landscape. Discussion: The City of Milton staff’s effort to continue to create ordinances which will promote the agrarian context of the new city has carefully researched wireless telecommunications facility ordinances City of Milton 1300 Deerfield Parkway, Suite 107 Milton, Georgia 30004 around the region, in order to develop the proposed plan for public review and consideration. Developing this ordinance will help insure that new wireless telecommunications facilities are integrated into the natural fabric of the surrounding community and are designed in an aesthetically pleasurable manner, where applicable. The ordinance promotes the co-location of new cellular service providers on existing structures, in an effort to minimize the need for additional vertical structures to be placed in greenfield areas of the city. The ordinance also considers encouraging wireless telecommunications towers within municipal properties when it is determined that service delivery is lacking by the provider. The revenues from the telecommunication facility franchise fees would serve the City of Milton tax base. The ordinance does place the burden of proof on the wireless telecommunication providers to supply professional engineering analysis that validates the need for new facility locations to be installed in areas where service delivery is proposed to be limited. The ordinance also encourages the utilization of “stealth” technological design options where the appearance of the telecommunications facility is not outwardly apparent to the public at first glance or can be retrofitted into existing community-based structures as an effective alternative, whenever possible. Alternatives: The Mayor and City Council may or may not approve this proposed City Ordinance Concurrent Review: Ken Jarrard, City Attorney Chris Lagerbloom, City Manager ORDINANCE NO. 20072009-______ STATE OF GEORGIA COUNTY OF FULTON AN ORDINANCE REGULATING THE LOCATION, PLACEMENT AND LEASING OF WIRELESS TELECOMMUNICATIONS FACILITIES Section 1: Purpose and Intent. The purpose of this Ordinance is to establish guidelines for the siting of all wireless communications towers and antennas which will encourage the development of wireless communications while protecting the health, safety, and welfare of the public and maintaining the aesthetic integrity of the community. The goals of this ordinance are: (a) To protect residential areas and land uses from potential adverse impact of telecommunications towers, antenna support structures and wireless communications facilities; (b) To minimize the total number of towers and antennas within the community necessary to provide adequate personal wireless services to residents of Milton; (c) To locate telecommunications towers and antennas in areas where adverse impacts on the community are minimized; (d) To encourage the design and construction of towers and antennas to minimize adverse visual impacts; (e) To avoid potential damage to property caused by wireless communications facilities by insuring that such structures are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or when determined to be structurally unsound; (f) To preserve those areas of significant scenic or historic merit; (g) To facilitate implementation of a master siting Plan for the City of Milton; (h) To promote and encourage the joint use of new and existing tower sites among service providers; (i) To enhance the ability of the providers of wireless communications services to deliver such services to the community effectively and efficiently. (j) To supersede article 19.4.7 of the City of Milton Zoning Ordinance. Comment [rhm1]: Ken – Would we also reference the Admin Use Permits in Article 19.3 that address other cell towers? 2 Section 2: Severability If any word, phrase, sentence, part, section, subsection, or other portion of this Ordinance or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the prescribed Application thereof, shall be severable, and the remaining provisions of this Ordinance, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect. Section 3: Definitions For the purposes of this Ordinance, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely directory. As used in this Ordinance, the following terms shall have the meanings ascribed below: Abandonment - The intent to abandon or discontinue operations as evidenced by voluntary conduct or failure to use a wireless telecommunications facility for a period of six months or more. Accessory Facility or Structure - Means an accessory facility or structure serving or being used in conjunction with the wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to: utility or transmission equipment storage equipment storage sheds or cabinets. Accessory Use – A tower and/or antenna is considered a principal use if located on any lot or parcel of land as the sole or primary structure, and is considered an accessory use if located on a lot or parcel shared with a different existing primary use or existing structure. Alternative tower structure - Means man-made trees, clock towers, bell steeples, light poles and similar alternative-design structures, that in the opinion of the City Council, are compatible with the natural setting and surrounding structures, and effectively camouflage or conceal the presence of antennas or towers. Antenna - Means a system of electrical conductors that transmit and/or receive electromagnetic waves or radio frequency or other wireless signals. Such shall include, but not be limited to radio, television, cellular, paging, Personal Telecommunications Services (PSC), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the City’s siting, building and permitting authority. 3 Antenna Array - means a single set or group of antennas and their associated mounting hardware, transmission lines or other appurtenances which share a common attachment device such as a mounting frame or mounting support. Applicant - means a person or entity submitting an application for a special use permit for a wireless telecommunications facility, including the property owner, antenna support structure owner, and any proposed tenants for the facility. Attached Wireless Telecommunications Facility - means an antenna or antenna array that is secured to an existing building or structure (except an antenna support structure) with any accompanying pole or device which attaches it to the building or structure, together with transmission cables, and an equipment cabinet, which may be located either on the roof or inside/outside of the building or structure. An attached wireless telecommunications facility is considered to be an accessory use to the existing principal use on a site. Co-location - means a situation in which two or more wireless personal service providers place a wireless telecommunications antenna or antennas and feed lines on a common antenna support structure or other structure on which there is an existing antenna array. Concealed - means a wireless telecommunications facility that is disguised, hidden, part of an existing or proposed structure or placed within an existing or proposed structure, to include antennas, ancillary structures, and utilities. Directional antenna - means an antenna or array of antennas designed to concentrate a radio signal in a particular area. Effective radio power (ERP) - The product of the antenna power input and the numerically equal antenna power gain. FAA - means the Federal Aviation Administration. FCC - means the Federal Communications Commission. Guy tower - means a tower supported, in whole or in part, by guy wires and ground anchors. Height - See Structure Height Historic or Scenic Views - means geographic areas in Milton which have been formally designated as part of any a Historic District Structure; have been included in any nature preserve or scenic preservation efforts; or have sufficient historic or scenic merit as determined by the City Council and the Historic Preservation Commission so as to require preservation. A scenic view may vary from a stationary viewpoint or be seen as one travels along a roadway or path, and as having historic and/or architectural significance through an ordinance, guideline, map, listing or designation by a local, state or federal government. 4 Lattice tower - means a guyed or self-supporting, open frame structure that has three or four sides used to support telecommunications equipment. Low power mobile radio service telecommunications facility - means an unmanned facility which consists of equipment for the reception, switching and transmission of low power mobile radio service communications. Such facilities may be elevated, either building-mounted or ground mounted; transmitting and receiving antennas; low power mobile radio service base equipment; or interconnection equipment. The facility types include: roof and/or building mounted facilities, freestanding low power mobile radio service facilities, and micro-cell or repeater facilities. Low power telecommunications facility - means an unmanned facility consisting of equipment for the reception, switching and/or receiving of wireless telecommunications operating at 1,000 watts or less effective radiated power (ERP), including but limited to the following: a. Point-to-point microwave signals. b. Signals through FM radio transmitters. c. Signals through FM radio boosters under 10 watts ERP. d. Cellular, Enhanced Specialized Mobile Radio (ESMR), paging services and Personal Communications Networks (PCN). e. Private, low power mobile radio services which include industrial, land transportation, emergency public safety and government, automatic vehicle monitoring, personal mobile (CB’s) and HAM operators. Low power telecommunications facility accessory building - means an unmanned building used to house equipment related to a communications facility. Low power commercial radio mobile network - means a system of low power commercial telecommunications facilities which allows wireless conversation to occur from site to site. Master Siting Plan - refers to the siting map developed by staff and approved by City Council to identify appropriate sites for the location of wireless transmission facilities as may be amended from time to time. Such map may be derived from propriety information submitted by wireless providers. (See Map 1) Micro-cell - means a low power mobile radio service telecommunications facility used to provide increased capacity in high call-demand areas or to improve coverage to weak areas. Micro-cells communicate with the primary low power mobile radio service facility in a coverage area via fiber optic cable or microwave. The typical coverage area for a micro-cell is a one-mile radius or less. Microwave antenna - means a dish-like antenna used to link communications sites by wireless transmission of voice or data. Monopole - means a cylindrical self-supporting i.e. not supported by guy wires, communications tower constructed of a single spire, used to support telecommunications equipment. 5 Omni-directional antenna - means an antenna that is equally effective in all directions, the size of which varies depending on the frequency and gain for which it is designed. Planning and Zoning - See Community Development. Planning Commission - means the Planning & Zoning Commission of the City of Milton, Georgia. Preexisting Towers and Preexisting Antennae mean any tower or antenna for which a building permit or special use permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Repeater - means a low power mobile radio service telecommunications facility used to extend coverage of cell areas to areas not covered by the originating facility. Roof and/or building-mounted telecommunications facility - means a low power mobile radio service telecommunications facility in which antennas are supported entirely by a building other than a building accessory to a telecommunications facility. Such facilities may include micro-cell and/or repeater facilities. Screening - The use of design, existing buildings and structures, existing and proposed vegetation and color to obscure a wireless telecommunications facility. Separation - The vertical distance between one carrier’s antenna array and the antenna array of another carrier. Sectorized panel antennas - means an array of antennas, usually rectangular in shape, used to transmit and receive telecommunications signals. Siting - The method and form of placement of a wireless telecommunications facility on a specific area of a property. Structure Height - means the distance measured vertically from the average ground elevation adjacent to the structure being measured to the highest point when positioned for operation. The height of a tower includes the height of any antenna positioned for operation attached to the highest point on the tower. Technically Feasible and Viable means capable of being provided through technology which has been demonstrated in actual applications (not simply through tests or experiments) to operate in a workable manner. 6 Telecommunications Facility - means a telecommunications tower, monopole tower, antenna or any and all buildings, structures, or other supporting equipment used in connection with a telecommunications tower, monopole tower, or antenna. Source: www.cdc.gov/niosh Tower - means any structure designed primarily for the purpose of supporting one or more antennas used for transmitting or receiving analog, digital, microwave, cellular, telephone, personal wireless service or similar forms of electronic communication, including self- supporting lattice towers, guy towers or monopole towers constructed as a free-standing structure or in association with a building or other permanent structure. Towers include radio and television transmission towers, microwave towers, common-carrier towers, cellular and digital telephone towers, alternative tower structures, and the like. Whip antenna - means an antenna that is cylindrical in shape. Whip antennas can be directional or omni-directional; size varies with the frequency and gain for which they are designed. Wireless Telecommunications Facility (WTF) - A staffed or unstaffed commercial facility for the transmission and/or reception of radio frequency signals, or other wireless communications, and usually consisting of an antenna or groups of antennas, transmission cables and equipment enclosures, and may include an antenna support structure. The following non-exclusive list shall 7 be considered a wireless telecommunications facility: new and existing antenna support structures, replacement antenna support structures, collocations on existing antenna support structures, attached wireless telecommunications facilities and concealed wireless telecommunications facilities. Also see Telecommunications Facility WTF - See Wireless Telecommunications Facility. Section 4: Applicability. All new wireless towers and antennas shall be subject to the regulations contained within this article except as provided in subsections a-c, inclusive: (a) Public Property. Nothing in this article shall be read to prohibit a government owned tower from being located at a specific site when the tower is required to protect the public welfare or safety. (b) Amateur Radio; Receive-Only Antennas. This ordinance shall not govern any amateur radio tower, or the installation of any antenna, that is under sixty (60) feet in height and is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only antennas. (c) Pre-Existing Towers and Antennas. Any tower or antenna for which a permit has been properly issued prior to the effective date of this ordinance shall not be required to meet the provisions of this ordinance, other than the requirements of Section 7. Any such towers or antennae shall be referred to in this ordinance as "preexisting towers” or “preexisting antennae.” However, in the event a preexisting tower or antennae ceases to function, then the subject tower, antennae and related equipment shall be removed from the subject property within ninety (90) days. Section 5: General Requirements. (a) An application shall be required for the construction or placement of all new wireless transmission facilities and new co-location facilities, antennas or towers within the City limits. Approval of any application for the construction of a tower or placement of an antenna shall be based on consideration of the following factors: (1) Proximity to residential structures and residential district boundaries; (2) The proposed height of the tower; (3) Nature of uses on adjacent properties; (4) Surrounding topography, tree coverage and foliage; (5) Design of the facility, with particular reference to design characteristics which have the effect of reducing or eliminating visual obtrusiveness; 8 (6) Proposed ingress and egress; (7) Availability of suitable existing towers, other structures, or alternative technologies (microcells) not requiring the use of towers or structures. (8) Demonstrated need for the telecommunications facility at the specified site. (9) Utilization of the City of Milton Master Siting Plan, as amended. (b) All applications submitted to the Community Development Department shall include a complete inventory of the applicant’s existing wireless transmission facilities including towers and receivers/transmitters located within the City of Milton or a one-half mile radius surrounding the city limits, including each asset’s location (plane coordinates), height and co-location usage or capabilities, and any special design features. The City shall utilize such information, subject to any restrictions on disclosure requested by the applicant, to promote co-location alternatives for other applicants. (c) At the time of filing the application for construction or placement of a wireless transmission facility or antenna, the applicant shall provide a site plan and information regarding tower or accessory structure location, neighboring uses and proposed landscaping as described below. Additional documentation to be submitted with the site plan and certified by an experienced radio frequency engineer shall delineate coverage and propagation zones, identify type of antenna and mounting location, specify type of band currently in use, and state co-location capabilities. (1) The scaled site plan shall clearly indicate the location, type and height of the proposed tower or accessory structure to be utilized, on-site land uses and zoning, adjacent land uses and zoning including proximity to historic or scenic view corridors, adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower, accessory structure and any other structures, topography, parking, and other information deemed necessary by the Community Development Director to assess compliance with this ordinance. (2) Legal description of the parent tract and leased parcel (if applicable). (3) A study including a definition of the area of coverage and radio frequency goals to be served by the antenna or tower and the extent to which such antenna or tower is needed for coverage and/or capacity. A professional engineer stamp shall also be required for the study. (4) The setback distance between the proposed wireless transmission facility and the nearest residential unit or residentially used structure. (5) Structural integrity analysis where antennas and equipment will be attached to an existing structure 9 (6) Landscaping shall be designed in such a way as to preserve existing mature growth and to provide in the determination of the City Design Review Board, a suitable buffer of plant materials that mitigates the view of the telecommunications facility and accessory structures from surrounding property within 60 days. (d) Each application shall be accompanied by a fee of one thousand dollars ($1000.00) to offset the costs associated with processing such application. In addition, applicants shall be responsible for independent engineering costs incurred by the City which exceed such fee up to an additional two thousand dollars ($2,000.00), if requested by the City. The applicant shall be responsible for additional fees throughout the process as described further within this ordinance. All fees are subject to change as amended by the Mayor and City Council by resolution. (e) Landscaping plans and the design and placement of the wireless transmission facility on an approved site shall require review and approval of the appropriate Overlay District City Design Review Board prior to issuance of a building permit to insure architectural and aesthetic compatibility with the surrounding area within 60 days. (f) Prior to issuance of a building permit, compliance with Section 106 of the National Historic Preservation Act, 16 U.S.C. § 461 et. seq. shall be demonstrated. (See Appendix 1) (g) In approving any application, the Director of Community Development, applicable City Design Review Board, or Council may impose additional conditions to the extent determined necessary to minimize adverse effects on adjoining properties. Section 6: Development Requirements for Towers. (a) Towers may be located only in the following zoning districts subject to the restrictions and standards contained herein: O-I Office and Institutional District C-1 or C-2 Commercial District M-1, M-2 or M-1A Industrial District AG-1 Agricultural District A or AL Apartment District or Apartments Limited (b) No new wireless transmission facilities shall be located within 2,500 feet of any preexisting wireless transmission site unless such new facility is concealed through use of alternative tower structures or is otherwise camouflaged, and a variance is granted by the Zoning Board of Zoning Appeals of the City of Milton. (c) All applicants seeking to erect a tower must demonstrate that no existing tower or structure can accommodate the proposed antenna(s). Evidence of an engineering nature shall be 10 documented by the submission of a certification by an engineer. Such evidence may consist of the following: 1. No existing towers or structures are located within the geographic area required to meet applicant’s engineering requirements. 2. No existing structure is of sufficient height to meet the applicant’s engineering requirements. 3. No existing tower or structure has sufficient structural strength to support applicant’s proposed antenna(s) and related equipment. 4. Applicant’s proposed antenna(s) would cause electromagnetic interference with the antenna(s) on the existing tower or structure. 5. Such other limiting factor(s) as may be demonstrated by the applicant and verified by an engineer of the City's choosing. (d) Setbacks: Setbacks for towers and above-ground transmission facilities shall be as follows: 1. All transmission facilities, except buried portions, shall be set back from all adjoining properties zoned non-residential a distance equal to the underlying setback requirement in the applicable zoning district. 2. When a tower is adjacent to a residential use or residential zoning, the tower and entire transmission facility must be set back from the nearest residential lot line a distance equal to the height of the tower. (e) Unless otherwise specified by Community Development Staff and the City Design Review Bboard, towers and above ground equipment shelters shall be enclosed by vinyl clad chain link security fencing not less than 6 feet in height and shall be equipped with an appropriate anti- climbing device. Said fencing shall be surrounded by a minimum 10-foot wide landscape strip planted to buffer standards unless the City of Milton Arborist determines that existing plant materials are adequate. (f) All new towers in excess of 100 feet which do not incorporate alternative design features must be designed and built in a manner that allows other entities to co-locate on the structure using the following guidelines: MAXIMUM TELECOMMUNICATIONS TOWER HEIGHTS Zoning District Two Users Three Users Four Users O-I 120’ 150’ 180’ 11 C-1/C-2/M-1/M-1A/ M-2/A/AL/AG-1 120’ 150’ 150’ (g) All towers and their related structures shall maximize the use of building materials, colors, textures, screening and landscaping that, in the opinion of the City Design Review Board and Community Development sStaff, effectively blend the tower facilities within the surrounding natural setting and built environment. Where appropriate, towers shall be painted so as to reduce their visual obtrusiveness, subject to any applicable standards of the Federal Aviation Administration (FAA). (h) Roof top antennas and associated structures shall not project more than 10 feet above roof lines. (i) The structure shall comply with applicable state and local statutes and ordinances, including, but not limited to, building and safety codes. Structures which have become unsafe or dilapidated shall be repaired or removed pursuant to applicable state and local statutes and ordinances. (j) Facilities shall not be artificially lighted except to assure human safety or as required by the Federal Aviation Administration (FAA). (k) Structures shall be designed and constructed to ensure that the structural failure or collapse of the tower will not create a safety hazard to adjoining properties, according to applicable Federal Standards which may be amended from time to time. (l) Structures shall not be used for advertising purposes and shall not contain any signs for the purpose of advertising. (m) A telecommunication facility that ceases operation for a period of 12 consecutive months shall be determined to have terminated and shall be removed within 90 days of termination at the property owner’s expense. It shall be the duty of both the property owner and the tower owner to notify the city in writing of any intent to abandon the use of the tower. (n) Communication facilities shall not be located in 100-year flood plain or delineated wetlands. (o) All guy wires must be anchored on site and outside of right-of-way and outside minimum building setback. (p) Structures not requiring FAA painting/marking shall have either a galvanized finish or be painted a dull blue, green, gray, or black finish. Section 7: Approval Process. (a) Subject to certification by the Director of Community Development of compliance with the general requirements and standards enumerated herein and with the consent of Council, the 12 following uses are subject to expedited approval, which shall be defined as approval within sixty (60) days of receiving applications, supporting engineering certifications and lease approval, if any, without the necessity of public hearing: 1. Antennas or towers located on property owned, leased, or otherwise controlled by the City of Milton provided accessory structures are located underground, where technically feasible, and a license, permit or lease authorizing such tower is thereafter approved by City of Milton. 2. Installing an antenna on an existing structure, so long as said installation is considered to be a stealth technology installation that does not significantly change the profile of the existing structure and so that the installation is not readily noticeable to the untrained eye. Such installations including cables leading to the antennas shall be painted to match the paint and colors on the existing structure and shall not protrude from the existing structure in a noticeable fashion. 3. Co-location by installing an antenna on any existing tower or alternative tower structure. 4. Replacing an existing tower with a new tower designed to accommodate two or more users so long as such new tower does not exceed the height limitations of section 5 (f) above and setback requirements of this ordinance are met. After the replacement tower is built, only one tower shall remain on such site. Support equipment shall, where technically feasible, be located underground. 5. Locating any alternative tower structures provided accessory structures are located underground, where technically feasible, or otherwise incorporated into the alternative structure. 6 Installing any antenna or tower not to exceed the limitations contained in section 5(f) in any area zoned M-1, M-1A, M-2, A, AL, AG-1, C-1 or C-2 and provided accessory structures are located underground, where technically feasible, or shielded to the satisfaction of the Design Review Board. 7 Installing any antenna or tower in a location identified on the City of Milton Master Siting Plan, as amended, provided accessory structures are located underground where technically feasible, or shielded to the satisfaction of the Design Review Board. If the City Council determines that any application does not meet the general application requirements, development requirements and/or standards enumerated herein, or such application conflicts with the Master Siting Plan, approval of the application shall be denied provided substantial evidence exists to support such denial. Any aggrieved party may appeal the denial to the Fulton County Superior Court. For purposes of this section, an aggrieved party is one who demonstrates 13 that his or her property will suffer special damage as a result of the decision complained of rather than merely some damage that is common to all property owners and citizens similarly situated. (b) If the proposed tower or antenna is not included under the above described expedited approval uses, or the application does not on its face satisfy the development standards and other criteria specified herein, then a public hearing before the Mayor and Council shall be required for the approval of the construction of a wireless transmission facility in all zoning districts. Applicants shall apply for a public hearing through the Community Development Department and pay the required five hundred dollar ($500.00) fee at such time. Applications, when complete, shall be placed on the next available agenda of the Mayor and Council at which zoning matters are considered. At least thirty (30) days prior to any scheduled hearing, the Community Development Department shall cause a sign to be posted on the property and the publication of a public notice in a newspaper of general circulation. Said notice shall state the nature of the application, street location of the proposal and height of the proposed structure. Before approving an application, the governing authority may impose conditions to the extent necessary to buffer or otherwise minimize any adverse effect of the proposed tower on adjoining properties. The factors considered in granting such a permit include those enumerated in Sections 4 and 5 above. The Mayor and Council may waive one or more of these criteria, if, in their discretion doing so will advance the goals of this article as stated in Section 2 above. Approved applications shall be valid for one (1) year from the date of the approval by the Mayor and Council. Section 8: Maintenance of Facilities. (a) All wireless transmission facilities and related landscaping shall be maintained by the facility owner in good condition, order, and repair so that they shall not endanger the life or property of any person, nor shall they be a blight upon the property as determined by the Community Development Director. (b) All maintenance or construction on wireless transmission facilities shall be performed by persons employed by or under contract to the owner between the hours of 8:30 a.m. and 5:30 p.m. Monday through Friday except in cases of emergency or when an after-hours permit is obtained pursuant to the City of Milton Noise Ordinance. Access to facilities on City owned property shall be determined on a case-by-case basis by the department responsible for such property. The hours of access to City sites shall not exceed those specified above. Persons may not be present on site unless performing construction or maintenance at such site. (c) The owner or user of any telecommunications facility shall be required to submit a “Facility in Use Certification” annually to the Community Development Department. Any antenna or tower that is not operated for a continuous period of twelve (12) months or is not properly maintained shall be considered abandoned, and the owner of such antenna or tower shall remove same and any structures housing supporting equipment within ninety (90) days of receipt of notice from the governing authority of such abandonment. If such antenna or tower is 14 not removed or returned to good condition within said ninety (90) days, the governing authority may remove such antenna or tower at the owner’s expense and a lien shall be placed upon the property. Section 9: Waiver of Requirements. No exception, waiver or variance to the conditions and requirements contained herein shall be granted unless expressly provided for in this ordinance, or the Mayor and Council find that the proposed tower or wireless transmission facility is necessary and essential to providing the wireless service. Section 10: Facilities Lease. The City Council may approve facilities leases for the location of wireless transmission facilities and other telecommunications facilities upon City owned property. Neither this section, nor any other provision of this article shall be construed to create an entitlement or vested right in any person or entity of any type. Section 11: Lease Application. Any person that desires to solicit the City's approval of a facilities lease pursuant to this Article shall file a lease proposal with the City’s Community Development Department which, in addition to the information required by Section 4, shall include the following: a. A description of the wireless transmission facilities or other equipment proposed to be located upon City property; b. A description of the City property upon which the applicant proposes to locate wireless transmission facilities or other equipment; c. Preliminary plans and specifications in sufficient detail to identify: 1) The location(s) of existing wireless transmission or telecommunications facilities or other equipment upon the City property, whether publicly or privately owned. 2) The location and source of electric and other utilities required for the installation and operation of the proposed facilities. d. Accurate scaled conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed wireless transmission facilities or other equipment; 15 e. Whether the applicant intends to provide cable service, video dial tone service or other video programming service from the facility, and sufficient information to determine whether such service is subject to cable franchising; f. An accurate map showing the location of any wireless transmission or telecommunications facilities in the City that applicant intends to use or lease; g. A landscaping bond in an amount to be determined by the city arborist; h. Such other and further information as may be requested by the City; and i. An application fee for lease negotiation in the amount of $250.00. Section 12: Determination by the City. Recognizing that the City is under no obligation to grant a facilities lease for the use of City property, the City shall strive to consider and take action on applications for facilities leases within 60 days after receiving a complete application for such a lease. When such action is taken, the City shall issue a written determination granting or denying the lease in whole or in part, applying the standards set forth below, or any other such criteria as the Mayor and City Council may choose to apply. If the lease application is denied, the determination shall include the reason for denial following review of these factors: a. The capacity of the City property and public right-of-ways to accommodate the applicant's proposed facilities. b. The capacity of the City property and public right-of-ways to accommodate additional utility and wireless transmission or telecommunications facilities if the lease is granted. c. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted. d. The public interest in minimizing the cost and disruption of construction upon City property and within the public ways. e. The service that applicant will provide to the community and region. The effect, if any, on public health, safety, and welfare if the lease requested is approved. The availability of alternate locations for the proposed facilities. f. Whether the applicant is in compliance with applicable federal and state telecommunications laws, regulations and policies, including, but not limited to, the registration requirements administered by the Georgia Public Service Commission. 16 g. The potential of radio frequency and other interference with existing public and private telecommunications or other facilities located upon the City property. h. The potential for radio frequency and other interference or impact upon residential, commercial, and other uses located within the vicinity of the City property. i. Recommendations of the Public Works Department with respect to maintenance and security of water towers. j. Such other factors, such as aesthetics, as those factors may impact the community. k. The maximization of co-location opportunities with other similar uses. Section 13: Agreement. No facilities lease shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the City property. Section 14: Nonexclusive Lease. No facilities lease granted under this Article shall confer any exclusive right, privilege, license, or franchise to occupy or use City property for delivery of telecommunications services or any other purposes nor shall approval of a lease entitle the applicant to a permit to construct or place a wireless transmission facility. Section 15: Term of Facilities Lease. Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of up to five (5) years, with the lessee granted a maximum of three (3) five (5) year renewal options which options shall also be subject to approval of Council. The term of any such agreement shall not exceed twenty (20) years. Section 16: Rights Granted. No facilities lease granted under this Article shall convey any right, title or interest in the City property, but shall be deemed a license only to use and occupy the City property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title. Section 17: Interference with Other Users. No facilities lease shall be granted under this Article unless it contains a provision which is substantially similar to the following: 17 The City has previously entered into leases with other tenants for their equipment and wireless transmission facilities. Lessee acknowledges that the City is also leasing the City property for the purposes of transmitting and receiving telecommunication signals from the City property. The City, however, is not in any way responsible or liable for any interference with lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the lessee's use of the City property, and the lessee cannot work out this interference with the other tenants, the lessee may, upon 30 days notice to the City, terminate this lease and restore the City property to its original condition, reasonable wear and tear excepted. The lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications or other facilities located upon the City property subject to this lease. Section 18: Ownership and Removal of Improvements. No facilities lease shall be granted under this Article unless it contains a provision which states that all buildings, landscaping, and all other improvements, except telecommunications equipment, shall become the property of the City upon expiration or termination of the lease. In the event that the City requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed within 90 days after receiving notice from the City requiring removal of the improvements. In the event that wireless transmission facilities or other equipment are left upon City property after expiration or termination of the lease, they shall become the property of the City if not removed by the lessee upon 30 days written notice from the City. Section 19: Compensation to the City. (a) Each facilities lease granted under this Article is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the lessee; provided, nothing in these sections shall prohibit the City and a lessee from agreeing to the compensation to be paid. Such compensation shall be payable in advance of the effective date of the lease and on or before January 31 of each calendar year. Any payments received after the due date shall include a late payment penalty of 2% of the annual rental fee for each day or part thereof past the due date. The compensation shall be negotiated by the City Manager or designee, subject to the City Council’ s final approval, based on the following criteria: (1) Comparable lease rates for other public or private property; (2) In the case land is leased, an appraisal opinion upon which the land and air space is rented; (3) If structure of another user is involved, any amount needed to reimburse that user; in addition to the above; 18 (4) A yearly escalator rate commonly used in comparable leases. (5) The additional rent such structure may generate if leased to additional users. (The City should be entitled to rent as a result of a sublease). (6) Additional fees or charges may be established by the City to cover actual costs of processing the application, including engineering review, inspection and appraisal cost, legal, administration of the agreement, providing on-site services, and/or other direct or indirect costs. Section 20: Amendment of Facilities Lease. Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located upon City property. If ordered by the City to locate or relocate its telecommunications facilities or other equipment on the City property, the City shall grant a lease amendment without further application. Such amendment must be approved by Council. Section 21: Renewal Application. A lessee that desires to exercise a renewal option in its facilities lease under this Article shall, not more than one hundred eighty (180) days nor less than one hundred twenty (120) days before expiration of the current facilities lease term, file an application with the City for renewal of its facilities lease which shall include the following: a. The information required pursuant to Section 12 of this Article; b. Any information required pursuant to the facilities lease agreement between the City and the lessee; c. A report certified by a radio frequency engineer that the site is in compliance with current FCC radio emission standards. d. All deposits or charges required pursuant to this Article; and e. An application fee which shall be set by the City Council as referenced in this ordinance or as amended from time to time by resolution. Section 22: Renewal Determination. Recognizing that the City is under no obligation to grant a renewal of a facilities lease for the use of City property, the City shall strive to consider and take action on applications for renewal of such leases within 30 days after receiving a complete application for such a lease renewal. When such action is taken, the City shall issue a written determination granting or denying the lease renewal in whole or in part, applying the standards set forth below, or any other such criteria as the City Council may choose to apply. If the renewal application is denied, the written determination shall include the reason for denial; such denial may be made after review of these factors or on other grounds as determined by Mayor and Council: a. The financial and technical ability of the applicant. 19 b. The legal ability of the applicant. c. The continuing capacity of the City property to accommodate the applicant's existing facilities. d. The applicant's compliance with the requirements of this Article and the lease agreement. e. Applicable federal, state and local telecommunications laws, rules and policies. f. Continued need for the facility in light of technological advances and current industry standards. g. Such other factors as may demonstrate that the continued grant to use the City property will serve the community interest. Section 23: Obligation to Cure as a Condition of Renewal. No facilities lease shall be renewed until any ongoing violations or defaults in the lessee's performance of the lease agreement, or of the requirements of these sections, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the City. In no event shall a facilities lease be renewed if lessee fails to cure. 20 Master Siting Plan – Map 1 21 Appendix 1 Page 1 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 PETITION NUMBER(S): ZM09-03 PROJECT NAME Deerfield Green PROPERTY INFORMATION ADDRESS Northwest corner of Webb and Morris Roads DISTRICT, LAND LOT 2/2, 1044, 1045, 1046 OVERLAY DISTRICT State Route 9 EXISTING ZONING MIX (Mixed Use Development (RZ05-022 and ZM07-03) ACRES 32.029 EXISTING USE Townhouse Development OWNER Precision Design and Development (Bowen Family Homes) Corbitt Woods ADDRESS 6640 Sugarloaf Parkway, Suite 200 Duluth, GA 30097 INTENT 1) To modify Condition 1.d (RZ05-022) - Site development shall be substantially consistent with the rendering and elevation submitted to the Fulton County Department of Environment and Community Development on June 27, 2005 except for lots identified as 136 through 216 on the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. 2) To modify Condition 1.f. (RZ05-022) - The minimum heated floor area for a townhouse unit shall be 2,000 square feet except for those lots identified as 136 through 216 shall be a minimum heated floor area of 1,850 square feet. All units shall have a rear entry 2-car garage except for those lots identified as 136 through 216 on the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. 3) To modify Condition 2.a. (ZM07-03)-To replace the revised site plan submitted on July 2, 2007 to the City of Milton Community Development Department with the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. Any changes to the site plan must be approved by the Director of Community Development and must meet or exceed the requirements of the Zoning Ordinance and these conditions. Unless otherwise noted herein, compliance with all conditions shall be in place prior to the issuance of the first Certificate of Occupancy. Page 2 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 OCTOBER 19, 2009 Mayor and City Council – Deferred to November 16, 2009 to allow the applicant to re- evaluate the site plan to allow a 20 foot setback from the front of the garage to the sidewalk. NOVEMBER 16, 2009 COMMUNITY DEVELOPMENT DEPARTMENT RECOMMENDATION ZM09-03 (Parts 1-3) – DENIAL Page 3 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 Location Map Page 4 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 Revised Site Plan Submitted 10/30/09 Page 5 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 REVISED SITE PLAN SUBMITTED 9/11/09 Page 6 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 View from Webb Road of existing rear entry garages Page 7 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 View from Webb Road of existing front facades View from Morris Road where units are proposed for front entry garages adjacent to retaining wall Page 8 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 Analysis and Recommendation: The subject site is currently under construction and has been approved for 256 town homes and 56,400 square feet retail/office zoned MIX (Mixed Use) pursuant to Z05-22 and ZM07-03. Staff notes that the applicant plans to build a total of 248 units, 8 units less than the approved zoning*. A total of 55 units have been built. COMMUNITY ZONING INFORMATION MEETING – SEPTEMBER 30, 2009 There were a total of four attendees at the meeting, Corbitt Woods, the applicant, and three residents of Deerfield Green. They asked how the proposed changes to the site plan would affect their homes. It appeared that they were not opposed to changing the type of building type from rear entry to front entry garages. The residents asked Mr. Woods various questions regarding the future of the development. DESIGN REVIEW BOARD MEETING – OCTOBER 6, 2009 Staff asked the applicant to attend the DRB meeting for a courtesy review of the proposed townhouse with a front entry garage as well as the overall change of the site plan. Below are their comments: • Provide a continuous evergreen planting along the retaining wall adjacent to the front entry garage units as required by Article 12G4.C.3 . • Recommended front entry garages for lots 136-163 but not adjoining the amenity area. • Utilize same building materials as in the existing townhomes. EXISTING Condition 1.d: Site development shall be substantially consistent with the rendering and elevation submitted to the Department of Environment and Community Development on June 27, 2005. PROPOSED Condition 1.d.- Site development shall be substantially consistent with the rendering and elevation submitted to the Fulton County Department of Environment and Community Development on June 27, 2005 except for lots identified as 136 through 216 on the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. The revised site plan dated October 30, 2009 provides rear alley access on lots 186-220, where the units front the amenity area as recommended by Staff. Based on input from the community Staff recommends that the front entry driveways allow adequate length to accommodate parked cars without blocking the sidewalk. The revised site plan also depicts a total of 28 units (Lots 136-163) with front entry 2-car garages. All of the 28 units provide a minimum of 18’ from the back of sidewalk to the garage door based on the Page 9 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 location of an underground pipe along the rear of the units. Based on this plan*, a total of 248 units are shown, 4 more than the September 11, 2009 revised site plan but still 8 less than approved per RZ05-022. This style may help support the originally envisioned village concept, and will in part be keeping with the style of the 55 units already constructed. Staff believes that these changes may encourage the original village concept of this area. Staff notes that similar front entry garage units have been built directly to the north of this development at the Views and Park at Morris Lake. This may promote a cohesive transition between developments, and allow for easier access to the homes on these lots. Although, the revised site plan promotes the village concept by providing an alley and rear entry garages adjacent to the amenity area, this request does not appear to be entirely consistent with the original concept to provide a village like feel with alleys, on- street parking and rear entry garages for the entire development as approved by the Fulton County Board of Commissioners. Therefore, Staff recommends DENIAL of Condition 1.d. Below are the renderings that are conditioned in Condition 1.d. that depict the concept of the development. Page 10 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 Page 11 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 Existing Condition 1.f. – The minimum heated floor area for a townhouse unit shall be 2,000 square feet. All units shall have a rear entry 2-car garage. Proposed Condition 1.f. - The minimum heated floor area for a townhouse unit shall be 2,000 square feet except for those lots identified as 136 through 216 shall be a minimum heated floor area of 1,850 square feet. All units shall have a rear entry 2-car garage except for those lots identified as 136 through 216 shall have a front entry 2-car garage per the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. The revised site plan dated October 30, 2009 provides rear alley access on lots 186-220, where the units front the amenity area as recommended by Staff. Based on input from the community Staff recommends that the front entry driveways allow adequate length to accommodate parked cars without blocking the sidewalk. Page 12 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 The revised site plan also depicts a total of 28 units (Lots 136-163) with front entry 2-car garages with a minimum heated floor area of 1,850 square feet based on the change in configuration from rear entry to front entry garage units. All of the 28 units provide a minimum of 18’ from the back of sidewalk to the garage door based on the location of an underground pipe along the rear of the units. A condition is included in the Recommended Conditions to require a minimum of 18 feet from the back of sidewalk to the garage door for these 28 units. Based on this plan*, a total of 248 units are shown, 4 more than the September 11, 2009 revised site plan but still 8 less than approved per RZ05- 022. This style will help support the originally envisioned village concept, and may in part be in keeping with the style of the 55 units already constructed. Staff believes that these changes will encourage the original village concept of this area. Staff notes that similar front entry garage units have been built directly to the north of this development at the Views and Park at Morris Lake. This may promote a cohesive transition between developments, and allow for easier access to the homes on these lots. Although, the revised site plan promotes the village concept by providing an alley and rear entry garages adjacent to the amenity area, this request does not appear to be entirely consistent with the original concept to provide a village like feel with alleys, on- street parking and rear entry garages and a minimum heated floor area of 2,000 square feet for the entire development as approved by the Fulton County Board of Commissioners. Therefore, Staff recommends DENIAL of Condition 1.f. to delete rear entry garages and provide a minimum heated floor area of 1,850 square feet for lots 136 through 216 as requested. Existing Condition 2.a. (ZM07-03) – To the revised site plan received by the Community Development Department on July 2, 2007. Said site plan is not conceptual; the developer must strictly adhere to the site plan as submitted. Any changes to the site plan must be approved by the Director of Community Development and must meet or exceed the requirements of the Zoning Ordinance and these conditions. Unless otherwise noted herein, compliance with all conditions shall be in place prior to the issuance of the first Certificate of Occupancy. Condition 2.a.(ZM07-03) - To replace the revised site plan submitted on July 2, 2007 to the City of Milton Community Development Department with the revised site plan submitted on September 11, 2009 to the City of Milton Community Development Department. Any changes to the site plan must be approved by the Director of Community Development and must meet or exceed the requirements of the Zoning Ordinance and these conditions. Unless otherwise noted herein, compliance with all conditions shall be in place prior to the issuance of the first Certificate of Occupancy. The revised site plan dated October 30, 2009 provides rear alley access on lots 186-220, where the units front the amenity area as recommended by Staff. Based on input from the community Staff recommends that the front entry driveways allow adequate length to accommodate parked cars without blocking the sidewalk. The revised site plan also Page 13 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 depicts a total of 28 units (Lots 136-163) with front entry 2-car garages. All of the 28 units provide a minimum of 18’ from the back of sidewalk to the garage door based on the location of an underground pipe along the rear of the units. Based on this plan*, a total of 248 units are shown, 4 more than the September 11, 2009 revised site plan but still 8 less than approved per RZ05-022. This style may help support the originally envisioned village concept, and may in part be keeping with the style of the 55 units already constructed. Staff believes that these changes may encourage the original village concept of this area. Staff notes that similar front entry garage units have been built directly to the north of this development at the Views and Park at Morris Lake. This may promote a cohesive transition between developments, and allow for easier access to the homes on these lots. Although, the revised site plan promotes the village concept by providing an alley and rear entry garages adjacent to the amenity area, this request does not appear to be entirely consistent with the original concept to provide a village like feel with alleys, on- street parking and rear entry garages for the entire development as approved by the Fulton County Board of Commissioners. Therefore, Staff recommends DENIAL of Condition 2.a. to replace the revised site plan with the revised site plan submitted on October 30, 2009. CONCLUSION: Staff is of the opinion that the proposed modifications do encourage the village concept by reducing the number of front entry garages and minimal reduction in house size. But based on the policy pursuant to RZ05-022 approved by the Fulton County Board of Commissioners, Staff recommends DENIAL of ZM09-03, Parts 1-3. Page 14 of 14 *Revised Site Plan Submitted on October 30, 2009 Prepared by the Community Development Department for the Mayor and City Council Meeting November 16, 2009 RECOMMENDED CONDITIONS Should the Mayor and City Council approve this petition, the recommended conditions (RZ05-03, ZM07-03) should be revised to read as follows: 1. To the owner's agreement to restrict the use of the subject property as follows: d. Site development shall be substantially consistent with the rendering and elevation submitted to the Fulton County Department of Environment and Community Development on June 27, 2005 except for lots identified as 136 through 163 on the revised site plan submitted on October 30, 2009 to the City of Milton Community Development Department. (ZM09-03) f. The minimum heated floor area for a townhouse unit shall be 2,000 square feet except for those lots identified as 136 through 163 shall be a minimum heated floor area of 1,850 square feet. All units shall have a rear entry 2-car garage except for those lots identified as 136 through 163 shall have a front entry 2-car garage per the revised site plan submitted on October 30, 2009 to the City of Milton Community Development Department. (ZM09-03) g. To provide a minimum of 18 feet from the back of sidewalk to the garage door for lots 136-163 that provide front entry garages. 2. To the owner's agreement to abide by the following: a. To the revised site plan received by the City of Milton Community Development Department on October 30, 2009 Said site plan is not conceptual; the developer must strictly adhere to the site plan as submitted. Any changes to the site plan must be approved by the Director of Community Development and must meet or exceed the requirements of the Zoning Ordinance and these conditions. Unless otherwise noted herein, compliance with all conditions shall be in place prior to the issuance of the first Certificate of Occupancy. (ZM09-03) City of Milton 13000 Deerfield Parkway, Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Matt Marietta, Assistant to the City Manager Date: Submitted on October 26, 2009 for First Presentation at the November 2, 2009 Regular Council Meeting and the November 16, 2009 Regular Council Meeting for its Second Reading Agenda Item: Annual Re-enactment of the Ordinance Approving and Establishing the Regulation of Solid Waste Collection Services within the City of Milton, and Providing for the Scope and Nature of the Operation of Such Services City Manager’s Office Recommendation Re-approve the ordinance approving and establishing the regulation of solid waste collection services within the City of Milton, and direct City Staff to facilitate the contracting of such services to providers currently in operation and those who may become in operation. Background The original ordinance was passed on November 21, 2006 and has been renewed each successive year since its original enactment. The City’s authority to enter into solid waste franchise agreements emanates from this ordinance. Discussion This ordinance needs to be re-enacted each year in order to continue the validity of our solid waste franchise agreements. Funding and Fiscal Impact The ordinance contains the requirement for an infrastructure maintenance fee to be paid to the City quarterly in the amount of 5% of gross revenues. The impact to residential constituents has been less than one dollar ($1.00) per month. Further, this revenue is dedicated to the maintenance of infrastructure, primarily the resurfacing of roadways. Alternatives If not re-enacted, the City would lose its authority to regulate solid waste collection within our corporate limits and the ability to collect franchise fees for the same activity, with the accompanying loss of revenue. Concurrent Review Chris Lagerbloom, City Manager Page 1 of 14 ORDINANCE NO. ______ CITY OF MILTON COUNTY OF FULTON STATE OF GEORGIA AN ORDINANCE ESTABLISHING SOLID WASTE COLLECTION SERVICES WITHIN THE CITY OF MILTON; PROVIDING FOR THE SCOPE AND NATURE OF THE OPERATION; PROVIDING FOR THE DISPOSAL OF GARBAGE, SOLID WASTE AND REFUSE; REQUIRING THE EXECUTION BY SERVICE PROVIDERS OF A NON-EXCLUSIVE AGREEMENT WITH THE CITY OF MILTON; PROVIDING PROCEDURES FOR THE HANDLING OF COMPLAINTS; PROVIDING FOR AN INFRASTRUCTURE MAINTENANCE FEE; REQUIRING INDEMNITY INSURANCE; PROVIDING FOR REVOCATION AND AMENDMENT; PROHIBITING ASSIGNMENT AND SUBLETTING WITHOUT CONSENT; PROVIDING FOR FORFEITURE; AND FOR MAKING OTHER PROVISIONS. WHEREAS, several companies (“Company”) currently operate solid waste services within the corporate city limits pursuant to their contracts with their customers; and WHEREAS, the City of Milton (“City”) seeks to provide standards of operation, regulation, and oversight in the providing of solid waste services within the corporate city limits; and WHEREAS, it is in the interest of the City and its citizens to offer companies currently providing such services a non-exclusive contract on such terms and conditions that will provide the City with the controls and options necessary to provide for the public good. NOW, THEREFORE, COUNCIL OF THE CITY OF MILTON HEREBY ORDAINS: Section 1. Definitions. 1.0 For the purpose of this ordinance, whenever inconsistent with the context, words used in the present tense include the future tense, words in the plural include the singular, words in the singular include the plural, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive. Words not defined in this Section 1 or otherwise in this ordinance shall be given their common and ordinary meaning. The following words, terms, phrases and their derivations shall, in this ordinance, have the meaning given in this section. 1.1 “City” means the City of Milton, Georgia, an incorporated municipal government in Fulton County, State of Georgia. Boundaries defining the City limits may be changed via ordinances approved by the City Council, for which any new boundary created shall be subject to this contract. 1.2 “Company” means any organization, firm, person, entity, corporation or other business that contracts with customers to provide for the collection and disposal of solid waste material as defined in this ordinance, and including but not limited to construction/demolition debris, dead animals, garbage, waste, storm debris, yard trimmings, and recyclable material. 1.3 “Solid Waste” means the collection of residential and commercial non-recyclable waste, residential and commercial recyclable waste, and residential yard trimmings/waste. Page 2 of 14 1.4 “Approved Container or Approved Bag” or “Container” or “Bag” means those containers used in the collection of solid waste, as defined in this ordinance, which have been approved by the Company for use by both residential and commercial customers. 1.5 “Construction/Demolition Debris” shall have the meaning set forth by the Georgia Department of Natural Resources, Environmental Protection Division (Georgia EPD Chapter 391-3-4.01(14)). 1.6 “Dead Animals” shall mean animals or portions thereof equal to or greater than ten (10) pounds in weight that have died from any cause, except those slaughtered or killed for human use. 1.7 “Effective Date” means any contract executed between the City and any Company on or after December 1, 2009. 1.8 “Term” shall mean a period of one year from the effective date. 1.9 “Environmental Laws” means all applicable laws, directives, rules, ordinances, codes, guidelines, regulations, governmental, administrative or judicial orders or decrees or other legal requirements of any kind, including, without limitation, common law, whether currently in existence or hereafter promulgated, enacted, adopted or amended, relating to safety, preservation or protection of human health and the environment (including ambient air, surface water, groundwater, land, or subsurface strata) and/or relating to the handling, treatment, transportation or disposal of waste, substances or materials, including, without limitation, any matters related to releases and threatened releases of materials and substances. 1.11 “Area” shall mean the area within the boundaries of the incorporated areas of the City of Milton, as they exist as of the Effective Date in addition to future boundary changes as outlined in section 1.1. 1.12 “Garbage” shall have the meaning set forth at Georgia Department of Natural Resources, Environmental Protection Division (“Georgia EPD Chapter 391-3-4-.01(21)). 1.13 “Hazardous Materials” means any pollutant, contaminant, hazardous or toxic substance, constituent or material, including, without limitation, petroleum products and their derivatives, or other substances, regulated under or pursuant to any Environmental Laws. The term Hazardous Materials also includes any pollutant, contaminant, hazardous or toxic substance, constituent or material, including, without limitation, petroleum products and their derivatives, or other substance that is, after the date first written above, deemed hazardous be any judicial or governmental entity, body or agency having jurisdiction to make that determination. 1.14 “Hazardous Waste” means any waste regulated under or pursuant to any Environmental Laws, including, but not limited to, any solid waste which has been defined as a hazardous waste in regulations promulgated by the Board of Natural Resources, Chapter 291-3-11. The term Hazardous Waste also includes Hazardous Materials and any waste that is, after the Effective Date of this Agreement, deemed hazardous by any judicial or governmental entity, board, body or agency having jurisdiction to make that determination. The term “Hazardous Waste” will be construed to have the broader, more Page 3 of 14 encompassing definition where a conflict exists in the definitions employed by two or more governmental entities having concurrent or overlapping jurisdiction over Hazardous Waste. 1.15 “Residential Unit” shall mean any structure, whether single family, multi-family, or otherwise whose primary purpose is for living. 1.16 “Commercial Unit” shall mean any structure, whether free standing or designed to serve multiple tenants, whose primary purpose is for conducting business. 1.17 “Construction Site” shall mean any parcel of land or real property having land disturbance, clearing & grading, demolition, improvements & betterments, renovation, remodeling and/or new construction work performed thereon or about the real property or premises whether or not a land disturbance and/or building permit is required. 1.18 “Recycling” shall have the meaning set forth at Georgia Department of Natural Resources, Environmental Protection Division (“Georgia EPD”) Chapter 391-3-4- .01(57). 1.19 “Waste” means all putrescible and non putrescible solid, semi-solid, and liquid wastes, including residential or commercial garbage, trash, refuse, paper, rubbish, ashes, manure, vegetable or animal solid and semi-solid wastes, and other discarded solid and semi-solid wastes. 1.20 “Yard Trimmings” shall have the meaning set forth at Georgia Department of Natural Resources, Environmental Protection Division (“Georgia EPD”) Chapter 391-3-4- .01(77). 1.21 “Customer” shall mean any firm, person, entity, corporation or organization that contracts with a Company for the collection and disposal of solid waste material as defined in this ordinance,and including but not limited to construction/demolition debris, dead animals, garbage, waste, storm debris, yard trimmings, and recyclable material. 1.22 "Gross Receipts" shall mean the total amount collected by the Company from any and all Customers for services rendered under authority of this Ordinance as a result of charges for service. Gross receipts shall not include the Infrastructure Maintenance Fee identified in this ordinance. Section 2. Grant of Non-Exclusive Contract. The City shall hereby grant to Companies a non-exclusive contract pursuant to the terms set forth herein to use the public streets, alleys, roads and thoroughfares within the City for the purpose of operating and engaging in the business of collecting and disposing of Waste; including, but not limited to, contracting with Customers and providing service pursuant to contract therefore, placing and servicing containers, operating trucks, vehicles and trailers, and such other operations and activity as are customary and/or incidental to such business and service. Page 4 of 14 Section 3. Term. The term of any agreement shall be for a period of one (1) year beginning on the effective date of the Contract execution and terminating on the first anniversary of said date. The Company shall begin performance under this contract immediately after the effective date of the Contract execution. Section 4. Scope and Nature of Operation. 4.1 Residential and Commercial Refuse and Waste. The Company may collect and deliver for disposal all Residential and Commercial Refuse and Waste accumulated within the corporate limits of the City by the Company's Customers and the words "refuse", "garbage", "trash" and "waste" when used in this Ordinance are used for convenience and, unless the context shows otherwise, refer to yard trimmings, recycling, storm debris, garbage, and construction/demolition debris. The Company will furnish the personnel and equipment to collect refuse, provide the services described herein, and as contracted for with its Customers, in an efficient and businesslike manner. 4.2 Service Provided-Company shall provide container, bin and other collection service for the collection of Residential and Commercial Refuse and Waste according to the individual Customer agreements and applicable City regulations and shall make provision for the special collection of such refuse and waste upon request. The Company shall cause or require its equipment, containers and bins to be kept and maintained in a manner to not cause or create a threat to the public health and shall keep the same in a good state of repair. 4.3 Collection Operation- (a) Save and except as provided in this Section, collection shall not start before 7:30 AM or continue after 7:30 PM at any location. Company may request variances to this collection period provided that collections: (i) are made in a manner that does not cause or result in loud noise; and (ii) that are made at a location which will not cause the disturbance of persons occupying the premise or neighboring property must first be confirmed prior to the request. All requests for variances of times must be submitted to the City Manager, or his designee, and include documentation on the hardship created by the collection operation period. Should such a collection operation variance be granted and the city receive two complaints about the collection operation in any six month time period, the City shall verify and substantiate the factual basis for any complaints. Should the complaints be substantiated, the collection operation variance will be revoked. The frequency of collection shall be determined by each individual customer agreement. 4.4 Holidays- The Company shall observe such holidays as it, in its sole discretion, determines appropriate. Notification must be given by the Company to it’s Customers of the holidays and resulting collection cycles. 4.5 All Companies must maintain a local customer service telephone number while conducting business within the City. The telephone number must be publicly listed in a phone book and available through directory assistance. Each Company providing trash receptacles, whether commercial or residential, must mark each receptacle with the Company’s name and telephone number in letters not less than four (4) inches in height. Each Company must provide a mechanism to accept, investigate, and respond to customer complaints. Companies are strongly encouraged to use multi-media devices including interactive websites, e-mail, fax, and automated telephone systems. Service calls received by the City as a result of non-Company performance will result in the consideration of revocation of a non-exclusive contract or the City’s choice to not renew an existing agreement. Page 5 of 14 4.6 Any invoice, bill, statement, or other device intended to request remittance by the customer to the Company of funds for payment of service shall include at a minimum, the Company’s telephone number and payment methods available to customers. 4.7 All Companies providing residential service or service to residential multi-family units must provide a recycling program to all customers. This program is intended to promote recycling programs throughout the City by reducing the amount of waste landfilled. Commodities may be commingled by the consumer and collected commingled by the hauler. Recycled commodities which must be offered in all programs are as follows: brown, clear, and green glass; steel and tin cans; aluminum cans, foil, pie pans, plastic items (#1, #2, and #3); cardboard, cereal boxes and any non-waxed paper containers; brown paper grocery bags; newspapers; magazines; telephone books; junk mail; office papers; and school papers. Customers shall be charged for the recycling program by the Company regardless of utilization of the service. Haulers are to include this service with their residential rate structure; however, the charge for recycling shall be shown separate from other services provided. 4.8 All Companies providing commercial service must offer and promote a recycling program to all customers. This program is intended to promote recycling programs throughout the City by reducing the amount of waste landfilled. 4.9 All Companies providing residential service must offer the collection of yard trimmings to all customers. This program is intended to assist in the collection and disposal of grass clippings; leaves; pine cones and needles; twigs, limbs, and trunks of trees meeting size limitations set by Company; bushes, brush, and all other general debris generated from the maintenance of residential yards and lawns. 5.0 It shall be the Company’s obligation and responsibility to educate all Customers on industry trends and best practices relating to solid waste collection, removal, and disposal. Such education programs must consist of the following elements: recycling; holiday schedules; new customer information; and any service related items. All Companies have the obligation to inform Customers of any non-collected trash or items placed for collection by the Customer but not covered under the agreement between the Customer and the Company. Further, it shall be the Company’s obligation and responsibility to educate Customers on days of collection for each specific service provided. All education and communication between the Company and Customers should promote the placement of residential collectibles at the curb the night before pick-up. Receptacles, containers, or bagged materials shall not be left at the curb for longer than a twenty-four (24) hour period. Section 5. Vehicles to be Covered and Identified. All vehicles used by Company for the collection and transportation of refuse shall be covered at all times while loaded and in transit to prevent the blowing or scattering of refuse onto the public streets or properties adjacent thereto, and such vehicles shall be clearly marked with the Company's name and telephone number in letters not less than four (4) inches in height. 5.1 Company must provide a comprehensive and proactive driver safety education program which encourages safety on City streets. Such program must be demonstrated and conveyed to the City. Company must comply with all other regulatory agencies, both local, state, or otherwise with respect to commercial vehicle operation within the City. Service calls received by the City as a result of non-Company performance will result in the Page 6 of 14 consideration of revoking a non-exclusive contract or the City’s choice to not renew an existing agreement. 5.2 Company must manage collection services delivered within the City to minimize the number of vehicles on City roads. Coordination between haulers and service providers is strongly encouraged to manage service vehicles on residential streets and neighborhoods. 5.3 Should Company utilize “Scout” trucks to facilite collection in residential areas where it is not feasible to use standard collection vehicles, such vehicles must be covered at all times while loaded and in transit should they exceed 30 miles per hour or be driven more then 300 yards on a public street. Section 6. Regulation of Containers. The Company may rent, lease, provide or define specifications for containers to any customer within the corporate limits of the City for refuse storage and collection purposes subject to the following requirements: 6.1 All containers shall be constructed and maintained according to industry practice; 6.2 All containers shall be equipped with stable covers to prevent blowing or scattering of refuse while being transported for disposal of their contents; 6.3 All containers, save and except those being used for the purpose of collecting and storing rubble, building and scrap construction materials, shall be equipped with covers suitable to prevent blowing or scattering refuse and access to the container by animals while the container is at the site designated by Customer; 6.4 All containers shall be periodically cleaned, maintained, serviced and kept in a reasonably good state of repair, to prevent the unreasonable accumulation of refuse residues, to avoid excessive odor and harborage for rodents and flies resulting from excessive residues remaining after collection of containers; and 6.5 All containers shall be clearly marked with the Company’s name and telephone number in letters not less than four (4) inches in height. 6.6 All containers shall not be on public rights of way and shall be located so as to not interfere, block, obstruct or impede the normal use of any sidewalk, street, alley driveway or fire lane, or to block, obstruct or impede sight distance at street, road or alley intersections. 6.7 All containers, bins, or other collection instruments must be kept free from graffiti, rust, broken and non-operational parts and pieces, and litter in and around the area. 6.8 It shall be the responsibility of each Company to educate their Customers on the regulations of containers and maintain industry standards, policies, and procedures, which promote an asethically pleasing environment in and around all refuse and waste containers and receptacles. Section 7. Disposal of Refuse. The Company will deliver all Waste collected by it from it’s customers within the City, except for materials which the Company may select for recovery and recycling, to a disposal facility that is permitted by the EPD to accept such refuse and waste. Rules and regulations governing hours of Page 7 of 14 operation and disposal practices at the disposal facility will be observed and followed by the Company while engaged in the disposal of refuse pursuant to this Ordinance. Any items collected as part of a recycling program must be delivered to a facility where recovery and reuse occurs. Should any company choose to offload or dispose of materials collected by one vehicle into another for transport to the final disposal facility, Company shall make every available effort to perform such refuse transfer on property owned by the Company or privately owned property where the Company has an agreement with the property owner to perform such activity. In the event any transfer occurs on public land, including streets, alleys, rights-of-ways, roads, thoroughfares, avenues, parkways, expressways, or other areas designed and designated for public travel, Company shall make every effort available to clean the area after completion of the transfer to insure the area is maintained at the same or better level than if the area was not used for this activity. In the event the City receives complaints regarding this practice, Company shall be required to cease from this activity at the location of the complaint. Section 8. Contract and Rental Fees. 8.1 Contract Fee- The streets, rights-of-way, and public easements to be used by the Company in the operation of its business within the boundaries of the City as such boundaries now exist and exist from time to time during the term of this contract, are valuable public properties acquired and maintained by the City at great expense to its taxpayers, and the City will incur costs to regulate and administer this Ordinance. In consideration of such benefits, costs and expenses, the Company shall through the term of its Contract collect an “Infrastructure Maintenance Fee” equal to 5% of the Company’s gross receipts to Customers within the City (exclusive of Sales Tax). The term “Infrastructure Maintenance Fee” shall be used on all bills, invoices, or statements sent by any Company to a Customer under this Ordinance. 8.1.1 Fees Paid- The Infrastructure Mainteanance Fee shall be payable quarterly to the City and delivered to the City in conjunction with a statement indicating the derivation and calculation of such payment. Each such quarterly payment shall be due on the 15th day of the second month following the end of the quarterly period for which said payment is due. The quarterly payments shall be due on February 15, May 15, August 15, and November 15 of each year during the term hereof, with the February 15 payment being based upon the Company's gross receipts during the calendar quarter ending the prior December 31 and being payment for the rights and privileges granted hereunder for said calendar quarter, the May 15 payment being based upon the Company's gross receipts during the calendar quarter ending the prior March 31 and being payment for the rights and privileges granted hereunder for said calendar quarter, the August 15 payment being based upon the Company's gross receipts during the calendar quarter ending the prior June 30 and being payment for the rights and privileges granted hereunder for said calendar quarter, and the November 15 payment being based upon the Company's gross receipts during the calendar quarter ending the prior September 30 and being payment for the rights and privileges granted hereunder for said calendar quarter. During the implementation of this ordinance, all bills generated by Companies after December 1, 2006 shall include the Infrastrusture Maintenance Fee. The City shall provide material relating to the education and marketing efforts of the Infrastructure Maintenance Fee as well as provide education and training to Company employees to ensure a consistent message is conveyed to constitutents of the City of Milton. For purposes of verifying the amount of such fee, the books of Page 8 of 14 the Company shall at all reasonable times be subject to inspection by the duly authorized representatives of the City. 8.1.2 No Other Rental Fees- The Contract fee shall be in lieu of any and all other City- imposed rentals or compensation or contract, privilege, instrument, occupation, excise or revenue taxes or fees and all other exactions or charges (except ad valorem property taxes, special assessments for local improvements, city sales tax, and such other charges for utility services imposed uniformly upon persons, firms or corporations then engaged in business within the City) or permits upon or relating to the business, revenue, installations and systems, fixtures, and any other facilities of the Company and all other property of the Company and its activities, or any part thereof, in the City which relate to the operations of the Company pursuant to this Ordinance; provided, that this shall not be construed to prevent the Company from being required to pay any and all applicable fees and charges in effect from time to time for dumping at a landfill or transfer station. 8.1.3 Credit for Fees Paid- Should the City not have the legal power to agree that the payment of the foregoing sums of money shall be in lieu of contracts, fees, street of alley rentals or charges, easement or ordinance fees or charges aforesaid, then City agrees that it will apply so much of said sums of money paid as may be necessary to Company's obligations, if any, to pay any such contract, ordinance charges, other charges, fees, rentals, easement, taxes or charges. 8.1.4 Reporting – Any Company providing service pursuant to this Ordinance or a resulting Contract shall from time to time provide the City with the necessary statistics regarding waste collected and disposed which shall allow the City to comply with State reporting requirements. Such information shall be in the manner and format requested by the City and provide adequate details for the City to maintain compliance with local, state, federal, and all other guidelines relating to solid waste collection, removal, and disposal. 8.1.5 Dedicated Revenue – The Infrastrusture Maintenance Fee collected by the City under this ordinance shall be dedicated to the following: (i) maintenance of the City’s streets, corridors, alleys, thoroughfares, and transportation routes; (ii) administration of contract compliance between Customers and Companies where service is received as provided in this Ordinance; and (iii) collection of litter and trash within the City. Section 9. Compliance with Law. The Company shall conduct under this Ordinance in compliance with the material provisions of all applicable local, state and federal laws, rules and regulations, and with the general specifications contained in this Ordinance. Section 10. Insurance Provided by Company. 10.1 Minimum Coverage Requirements- The Company shall maintain throughout the term of its Contract, property damage coverage, general liability insurance, and automobile liability insurance for any automobile owned or operated by Company, with an insurance company authorized and licensed to do business in the State of Georgia and acceptable to the City, insuring against claims for liability and damages for the benefit of the City. The insurance shall include the City as an additional insured. General liability coverage insurance under this section shall be a minimum of One Million and No/100 Dollars ($1,000,000) per occurrence with a Two Million and No/100 Dollars Page 9 of 14 ($2,000,000) aggregate. Automobile liability insurance under this section shall, at a minimum, have limits of One Million and No/100 Dollars ($1,000,000) for each occurrence. Additionally, an umbrella coverage of One Million and No/100 Dollars ($1,000,000) on both automobile liability insurance and general liability insurance is required. 10.2 Employer's Liability- If the Company is required by Georgia Statute, the Company shall maintain throughout the term of the Contract resulting from this Ordinance the requisite statutory workers' compensation insurance, and a minimum of One Hundred Thousand and No/100 Dollars ($100,000) employer's liability insurance. Company shall be required to show compliance to this section by submitting documentation of such coverage from an approved carrier licenses in the State of Georgia, or documentation explaining the exemption from employer’s liability insurance should they not meet the state requirements to carry such coverage. 10.3 Certificate of Insurance- The insurance policy, or policies, obtained by the Company in compliance with this section shall be approved by the City Manager or his designee in the City Manager’s or his designee’s reasonable discretion, and the certificate of insurance for the insurance policy shall be filed and maintained with the City during the term of the Contract resulting from this Ordinance with a copy of the endorsement required under Section 10.4 to be attached or made a part of such certificate. 10.4 Endorsements- All insurance policies maintained pursuant to this Ordinance shall contain the following conditions by endorsement: 10.4.1 Additional Insured- The City shall be an additional insured and the term "owner" and "City" shall include all authorities, Boards, Bureaus, Commissions, Divisions, Departments and offices of the City and the individual members, officers, employees and agents thereof in their official capacities and/or while acting on behalf of the City. 10.4.2 Other Insurance Clause- The policy clause "Other Insurance" shall not apply to the City when the City is an insured on the policy; 10.4.3 No Recourse- Companies issuing the insurance policies shall not recourse against the City for payment of any premium or assessment. 10.5 Increase Requirements-The City may chose to amend this Ordinance to make reasonable adjustments to the insurance coverage and their limits when deemed necessary and prudent based upon changes in statutory law, court decisions, or the claims history of the industry. Section 11. Indemnification and Hold Harmless. The Company agrees to indemnify, defend and save harmless the City, its agents, officers and employees, against and from any and all claims by or on behalf of any person, firm, corporation or other entity arising from any negligent act or omission or willful misconduct of the Company, or any of its agents, contractors, servants, employees or contractors, and from and against all costs, counsel fees, expenses and liabilities incurred in or about any such claim or proceeding brought thereon. Promptly after receipt from any third party by City of a written notice of any demand, claim or circumstance that, immediately or with the lapse of time, would give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation (an “Asserted Page 10 of 14 Claim”) that may result in losses for which indemnification may be sought hereunder, the City shall give written notice thereof (the “Claims Notice”) to the Company provided, however, that a failure to give such notice shall not prejudice the City’s right to indemnification hereunder except to the extent that the Company is actually and materially prejudiced thereby. The Claims Notice shall describe the Asserted Claim in reasonable detail, and shall indicate the amount (estimated, if necessary) of the losses that have been or may be suffered by the City when such information is available. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Asserted Claim. If the Company elects to compromise or defend such Asserted Claim, it shall, within twenty (20) business days following its receipt of the Claims Notice (or sooner, if the nature of the Asserted Claim so required) notify the City of its intent to do so, and the City shall cooperate, at the expense of the Company, in the compromise of, or defense against, such Asserted Claim. If the Company elects not to compromise or defend the Asserted Claim, fails to notify the City of its election as herein provided or contests its obligation to provide indemnification under this Agreement, the City may pay, compromise or defend such Asserted Claim with all reasonable costs and expenses borne by the Company. Notwithstanding the foregoing, neither the Company nor the City may settle or compromise any claim without the consent of the other party; provided, however, that such consent to settlement or compromise shall not be unreasonably withheld. In any event, the City and the Company may participate at their own expense, in the defense of such Asserted Claim. If the Company chooses to defend any Asserted Claim, the City shall make available to the Company any books, records or other documents within its control that are necessary or appropriate for such defense. Section 12. Forfeiture and Terminating of Contract. 12.1 Material Breach- In addition to all other rights and powers retained by the City under this Ordinance or otherwise, the City reserves the right to declare any resulting Contract from this Ordinance forfeited and to terminate the Contract and all rights and privileges of the Company hereunder in the event of a material breach of the terms and conditions hereof. A material breach by Company shall include, but shall not be limited to, the following: 12.1.1 Fees- Failure to pay the fees set out in Section 8; 12.1.2 Telephone Listings- Failure to keep and maintain a local telephone listing and office or answering service that is available by phone without long distance charge during regular business hours for service to the public, and which telephone or office shall, at minimum, provide and maintain the following services: (a) Coordinate and provide information concerning deposits, payments and accounts to Customers and prospective Customers; (b) Respond to Customer and prospective Customer questions and issues about billings, accounts, deposits and services; (c) Coordination with the City with respect to private sector and public works projects and issues related to or affecting the Company's operation; and (d) Immediate response, upon request, to police, fire and other emergency situations in which the public health and safety requires action with respect to or assistance regarding Company's property. 12.1.3 Failure to Provide Service- Failure to materially provide the services provided for in this Ordinance; 12.1.4 Misrepresentation- Material misrepresentation of fact in the application for or negotiation of any contract resulting from this Ordinance; or Page 11 of 14 12.1.5 Conviction- Conviction of any director, officer, employee, or agent of the Company of the offense of bribery or fraud connected with or resulting from the award of a contract from this Ordinance. 12.2 Operation Information- Material misrepresentation of fact knowingly made to the City with respect to or regarding Company's operations, management, revenues, services or reports required pursuant to this Ordinance. 12.3 Economic Hardship- Company shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers or employees. 12.4 Forfeiture and Proceedings- Any unwarranted and intentional neglect, failure or refusal of the Company to comply with any material provision of this Ordinance or resulting Contract within thirty (30) days after written notice from City setting forth the specific provision and noncompliance, said notice to be mailed to Company at its principal place of business by certified mail, return receipt requested, shall be deemed a breach of this Ordinance, and the City Council, upon notice to Company and hearing, may, for good cause declare a Contract forfeited and exclude Company from further use of the streets of the City under this Ordinance, and the Company shall thereupon surrender all rights in and under this Ordinance and Contract. 12.4.1 Proceedings- In order for the City to declare a forfeiture pursuant to Sections 12.1, 12.2, 12.3, or 12.4, the City shall make a written demand that the Company comply with any such provision, rule, order, or determination under or pursuant to this Ordinance. If such violation by the Company continues for a period of thirty (30) days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the Council may take under consideration the issue of termination of the resulting Contract from this Ordinance. The City shall cause to be served upon Company, at least twenty (20) days prior to the date of such a Council meeting, a written notice of intent to request such termination and the time and place of the meeting. Notice shall be given of the meeting and issue which the Council is to consider. 12.4.2 Hearing - The Council shall hear and consider the issue, hear any person interested therein, and shall determine whether or not any violation by the Company has occurred. 12.4.3 Forfeiture- If the Council shall determine that the violation by the Company was the fault of Company and within its control, the Council may declare the contract forfeited and terminated, or the Council may grant to Company a period of time for compliance. Section 13. Transfer, Sale or Conveyance by Company. The Company shall not transfer, assign, sell or convey any rights granted under any resulting Contract from this Ordinance without the prior approval of the City Council; provided that this section shall not apply to vehicles, replacements, maintenance, upgrades or modifications of equipment, machinery, containers and buildings by Company for the purpose of maintaining and continuing its operation within the City; and provided further that Company may, in its sole discretion and upon written notice to the City, transfer, assign, sell or convey their rights under this Ordinance to a wholly owned subsidiary of the Company or to an affiliated entity that is under common control with Company (i.e. has a common parent entity). Page 12 of 14 Section 14. Foreclosure. Upon the foreclosure or other judicial sale of all or a substantial part of the assets and property of the Company used for and dedicated to providing service pursuant to this Ordinance, the Company shall notify the City of such fact, and such notification shall by treated as a notification that a change in control of the Company has taken place and the provisions of this Ordinance governing the consent of the Council to such change in control of the Company shall apply. Upon the foreclosure or judicial sale, or the leasing of all or a substantial part of the property and assets of the Company dedicated to and used for the purposes of providing service pursuant to this Ordinance, without the prior approval of the Council, the Council may, upon hearing and notice, terminate any Contract resulting from this Ordinance. Section 15. Receivership and Bankruptcy. 15.1 Cancellation Option - The Council shall have the right to cancel any Contract resulting from this Ordinance one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the Company, whether in receivership, reorganization, bankruptcy, other action or preceding, whether voluntary or involuntary, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, unless: 15.1.1 Trustee Compliance- Within one hundred twenty (120) days after his election or appointment, such receiver trustee shall have fully complied with all the provisions of this Ordinance and remedied all defaults thereunder; or 15.1.2 Trustee Agreement- Such receiver or trustee, within one hundred twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction, whereby the receiver or trustee assumes and agrees to be bound by each and every provision of this Ordinance granted to the Company. Section 16. Retention of City Police Powers. The City retains and reserves all of its police powers and the rights, privileges, and immunities that it now has under the law to regulate, patrol and police the streets and public ways within the City, and the granting of any Contract as a result of this Ordinance shall in no way interfere with the improvements to, or maintenance of, any street, alley or public way, and the rights of the City to use said streets, alleys and public ways. Section 17. Amendments of City Ordinances and Regulations. The City reserves the right and power, pursuant to its police power, after due notice to Company, to modify, amend, alter, change or eliminate any rules, regulations, fees, charges and rates of the City, and to impose such additional conditions, that are not inconsistent with the rights granted by this Ordinance, upon the Company and all persons, firms or entities of the same class as the Company, as may be reasonably necessary in the discretion of the City Council to preserve and protect the public, health, safety and welfare and/or insure adequate service to the public. Section 18. Taxes. The Company shall promptly pay all lawful ad valorem taxes, levies and assessments, if any, that are imposed upon the Company. Absent an administrative or judicial challenge, or appeal, the failure to pay any such tax, levy or assessment shall be a breach of this Ordinance. Page 13 of 14 Section 19. Public Necessity. The Council hereby finds and declares that the public welfare, convenience and necessity require the service which is to be furnished by the Company. Section 20. Solvability. If any section, paragraph, subdivision, clause, part or provision hereof shall be adjudged invalid or unconstitutional the same shall not affect the validity hereof as a whole or any part or provision other than the part or parts held invalid or unconstitutional. Section 21. Captions and Headings. The use of captions or headings for the various sections of this Ordinance are for convenience of parties only and do not reflect the intent of the parties. The rule of interpretation to solve ambiguities in a contract against the party drafting such contract shall not apply to this Ordinance. Section 22. No Suspension of Laws. All provisions of the ordinances of the City as now existing or as may be amended from time to time, and all provisions of the statues of the State of Georgia applicable to general law cities shall be a part of any resulting contract from this Ordinance as fully as if the same had been expressly stated herein, and said the City retains and may exercise all of the governmental and police powers and all other rights and powers not directly inconsistent with the terms, conditions and provisions of this Ordinance. Section 23. Peaceful Employment. From and after the effective date of this ordinance, the City and the Company shall be and are hereby authorized and entitled to act in reliance upon the terms, conditions and provisions of this Ordinance and any resulting Contract and, subject thereto, the Company shall collect rates for service, operate and conduct its business and work within the City, and enjoy the benefits and privileges of this Ordinance during the term hereof. Section 24. Open Meetings. It is hereby officially found and determined that the meeting at which this ordinance was passed was open to the public, and public notice of the time, place, and purpose of said meeting was given, as required by the Open Meetings Act, Georgia Code. Section 25. Endorsements and Records. The City Clerk is directed to make endorsements as appropriate over his/her official hand and the seal of the City on the form provided at the conclusion of this Ordinance, for the public record and convenience of the citizens, of the date upon which this Ordinance is finally passed and adopted. Section 26. Acceptance by Company. Within thirty (30) days after the passage of this Ordinance, or within thirty (30) days of establishing a business within the corporate City limits, all Companies operating a Residential or Commercial Refuse Waste service shall file with the City its acceptance of the terms and provisions of this Ordinance, and request for Contract. The acceptance and request for Contract shall be in writing on the Company's letterhead and provide as follows: Page 14 of 14 City of Milton Attention: City Manager 13000 Deerfield Parkway, Suite 107A/B Milton, GA 30004 _______________________________________(the "Company"), acting by and through an officer who is acting within its official capacity and authority, hereby accepts the City of Milton Solid Waste Ordinance to operate a refuse and solid waste collection and disposal system within the City as said Ordinance is set forth and provided herewith. The Company agrees to be bound and governed by each term, provision and condition of the Ordinance, to accept and to give the benefits provided by the Ordinance, and to perform each service and duty set forth and provided for in the Ordinance in a businesslike and reasonable manner and in compliance with the Ordinance. Company: ____________________________________ By: _________________________________________ Printed Name: _________________________________ Title: ________________________________________ THIS ORDINANCE PASSED AND APPROVED on the _____________ day of ____________________________, 2009. Approved: __________________________________________ Joe Lockwood, Mayor Attest: _____________________________________ Jeanette R. Marchiafava, City Clerk (Seal) Approved as to Form and Content: _____________________________________ Ken Jarrard, City Attorney City of Milton 13000 Deerfield Parkway, Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Matt Marietta, Assistant to the City Manager Date: Submitted on November 4, 2009, for adoption at the November 16, 2009 Council Meeting Agenda Item: A Resolution Continuing the Wired and Wireless Enhanced 911 Charge, and Establishing a Concurrent Enhanced 911 Charge on VoIP, for all such Communications within the City of Milton City Manager’s Office Recommendation Adopt the attached resolution continuing the Enhanced 911 charge on wired and wireless communications in the City of Milton and including a charge on Voice over Internet Protocol (VoIP) services. Background State law allows for each telecommunications line established within the corporate limits of the City of Milton to charge a fee to support the provision of emergency 911 services. The resolution continues that fee, and clarifies the current charge through the explicit addition of language addressing VoIP. The VoIP change will take effect 120 days after its inclusion in the resolution. Funding and Fiscal Impact This resolution provides funding to support our Enhanced 911 Service that is currently provided by an intergovernmental agreement with the City of Alpharetta. Alternatives: The City may assume the costs for 911 provision and begin to fund it out of the Maintenance and Operating budget. Concurrent Review: Chris Lagerbloom, City Manager Deb Harrell, Police Chief Bob Edgar, Fire Chief STATE OF GEORGIA RESOLUTION NO.:_________ COUNTY OF FULTON RESOLUTION OF THE MAYOR AND COUNCIL OF THE CITY OF MILTON, GEORGIA REGARDING “9-1-1” AND WIRELESS ENHANCED “9-1-1” CHARGES BE IT RESOLVED by the City Council of the City of Milton, GA while in regular session on the ______day of November, 2009 at 6:00 pm. as follows: WHEREAS, the Mayor and Council of the City of Milton provide Enhanced “9-1-1” services for the citizens of the City of Milton through an intergovernmental agreement with the City of Alpharetta, Georgia; WHEREAS, the Mayor and Council of City of Milton on November 21, 2006 adopted a resolution imposing “9-1-1” charges on landline and wireless telecommunications with billing addresses within the City of Milton, Georgia; WHEREAS, pursuant to the requirements of O.C.G.A. § 46-5-134(g)(2), the wireless enhanced “9-1-1” system implemented in the City of Milton through its intergovernmental agreement with the City of Alpharetta, Georgia is capable of providing automatic number identification and automatic location identification of a wireless telecommunication connection, and the City of Milton is thus authorized to assess a fee not exceeding $1.50 per month per telephone service provided to the telephone subscriber pursuant to O.C.G.A. § 46-5- 134(a)(2)(B); WHEREAS, the General Assembly during its 2007 session modified Title 46, Chapter 5, Article 2 of the Official Code of Georgia to authorize charges for additional telecommunication services, including voice over internet protocol service and any other communication, message, signal, or information delivery system capable of initiating a 9-1-1 emergency call; WHEREAS, the General Assembly specifically has replaced the defined term “exchange access facility” in O.C.G.A. § 46-5-133(a) with the new defined term “telephone service”; WHEREAS, this Resolution has been adopted only after at least ten (10) days public notice and a public hearing as required by O.C.G.A. § 46-5-133(b)(1)(B); and WHEREAS, it being in the best interest of the residents of the City of Milton and those persons using the City of Milton “9-1-1” and wireless enhanced “9-1-1” systems for the “9-1-1” fees to be assessed at their maximum allowable rates in all allowable instances, the Mayor and Council desires to affirm the necessity for the “9-1-1” and the wireless enhanced “9-1-1” charges. 2 NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the City of Milton that, in accord with O.C.G.A. §§ 46-5-133(a) and 46-5-134(a)(1)(A) and (a)(2)(B), the necessity for the “9-1-1” and the wireless enhanced “9-1-1” charges is hereby affirmed, and the maximum allowable fee rates are set at a rate not to exceed One Dollar, Fifty Cents ($1.50) per month: 1) per telephone service subscribed to by telephone subscribers whose exchange access lines are in the areas served or which would be served by the City’s emergency 9-1-1 service; and 2) per each wireless telecommunications connection, other than a connection for prepaid wireless service, subscribed to by telephone subscribers whose place of primary use is within the geographic area that is served by the City or that would be served by the City for the purpose of the City’s emergency 9-1-1 system. This Resolution shall become effective one hundred and twenty (120) days after its adoption by the Mayor and Council of the City of Milton. A copy of this Resolution shall be forwarded to each supplier providing telecommunication services, including voice over internet protocol service and any other communication, message, signal, or information delivery system capable of initiating a 9-1-1 emergency call, in the City of Milton, Georgia. WITNESS my hand and official seal this ______ day of ______________, 2009. _______________________________________ Joe Lockwood, Mayor CITY OF MILTON Attest: ___________________________________ Jeanette R. Marchiafava, City Clerk