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Ordinance No. 488r 1 LJ ORDMANCE N0. 1488 AN ORDINANCE GRANTING TO HOUSTON LIGHTING & POWER COMPANY, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVI- LEGE AND FRANCHISE TO CONDUCT WITHIN THE CITY AN ELECTRICAL LIGHTING AND POWER BUSINESS AND TO ERECT, CONSTRUCT, MAINTAIN, OPERATE, USE, EXTEND, REMOVE, REPLACE AND REPAIR IN, UNDER, UPON, OVER, ACROSS AND ALONG ANY AND ALL OF THE PRESENT AND FUTURE PUBLIC ROADS, HIGHWAYS, STREETS, LANES AND ALLEYS OF THE CITY AND OVER AND ACROSS ANY STREAM OR STREAMS, BRIDGE OR BRIDGES, NOW OR HEREAFTER OWNED OR CON - TROLLED BY IT A SYSTEM OF POLES, POLE LINES, TOWERS, TRANSMISSION LINES, WIRES, GUYS, CABLES, CONDUITS AND OTHER DESIRABLE INSTRUMENTALITIES AND APPURTENANCES (INCLUDING TELEGRAPH AND TELEPHONE POLES AND WIRES FOR COMPANY'S OWN USE), NECESSARY OR PROPER FOR THE SUPPLY AND DISTRIBUTION OF ELECTRICITY FOR LIGHT, POWER AND HEAT, AND FOR ANY OTHER PURPOSE FOR WHICH ELECTRICITY MAY BE USED, TO THE MUNICIPALITY AND IN- HABITANTS OF THE MUNICIPALITY, OR ANY OTHER PERSON OR PERSONS FOR A PERIOD OF FIFTY (50) YEARS FROM AND AFTER THE 30th DAY OF Se mbar , 1958; REGULATING THE USE OF STREETS BY THE COMPANY AND THE REPAIR AND RESTORATION OF STREETS DISTURBED BY CONSTRUCTION; CONTAINING A CONTRACT BY THE COMPANY TO FURNISH FIRST -CLASS SERVICE AND THE GRADE OF SERVICE TO ITS CUSTOMERS AS PROVIDED BY ITS RATE SCHEDULES EXCEPT UNDER CONDITIONS BEYOND THE COMPANY'S CONTROL; PRO- VIDING FOR THE TEMPORARY REMOVAL, RAISING AND LOWER- ING OF WIRES AND OTHER APPURTENANCES AND ESTABLISH- ING STANDARDS FOR THEIR CONSTRUCTION; PROVIDING FOR COMPENSATION TO BE PAID TO THE CITY; PROVIDING FOR USE BY THE CITY FOR ITS TRAFFIC SIGNAL LIGHT SYSTEM AND ITS POLICE AND FIRE ALARM SYSTEM OF CERTAIN WIRE AND CONDUIT SPACE; PROVIDING THAT THIS FRANCHISE SHALL NOT BE EXCLUSIVE; PROVIDING THE COMPANY'S OBLI- GATION TO FURNISH EFFICIENT SERVICE AT REASONABLE RATES; PROVIDING A SEVERABILITY CLAUSE; RESERVING ALL POWERS OF REGULATION; PROVIDING FOR INDEMNITY BY THE COMPANY TO THE CITY; MAKING PROVISIONS IN CONNECTION WITH MORTGAGES; MAKING MISCELLANEOUS PROVISIONS • RELATIVE TO THIS GRANT OF FRANCHISE; REPEALING ALL PREVIOUS ELECTRICAL LIGHTING AND POWER FRANCHISE ORDINANCES; PROVIDING FOR ACCEPTANCE BY THE COMPANY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN: Section 1. That, subject to the terms, conditions and provisions of this ordinance, the City of Baytown, Texas, hereinafter referred to as "City ", does hereby grant unto H ,)uston Lighting & Power Company, hereinafter called "Company', its successors and assigns, the right, privilege and franchise to conduct within the boundaries of the City, • as such boundaries now exist or may hereafter be extended, II�- I I0 It CI • an electrical lighting and power business and to erect, con- struct, maintain, operate, use, extend, remove, replace and repair, in, under, upon, over, across and along any and all of the present and future public roads, highways, streets, lanes and alleys owned or controlled by the City, and over and across any stream or streams, bridge or bridges, now or hereafter owned or controlled by City, a system of poles, pole lines, towers, transmission lines, wires, guys, con- duits, cables and other desirable instrumentalities and appurtenances (including telegraph and telephone poles and wires for use of Company), necessary or proper for the pur- pose of carrying, conducting, supplying, distributing and selling to the municipality and the inhabitants of said City or other person or persons, firms or corporations, elec- tricity for light, power and heat, and for any other purpose for which electricity may be used; to carry, conduct, supply and distribute electricity by means of said poles, pole lines, towers, transmission lines, conduits, cables or other in- strumentalities, and to sell same to said City and inhabi- tants thereof, or to any other person or persons, firms or corporations. Section 2. Upon the filing with the City by the Company of the acceptance required hereunder, this fran- chise shall be in full force and effect for a term and period of fifty (50) years from and after the — 30th day of September , 19 58 . Section 3. All poles erected by the Company pur- suant to the authority herein granted shall be of sound material and reasonably straight, and shall be so set that they will not interfere with the flow of water in any gutter or drain, and so that the same will interfere as little as practicable with the ordinary travel, on the streets, side- 2. a. I• I• 0 0 walks, or other public ways. Within the streets or other public ways of the City, the location and route of all poles, stubs, guys, anchors, lines, conduits and cables placed and constructed and to be placed and constructed by Company in the construction and maintenance of its electrical lighting and power system in the City, shall be subject to the reason- able and proper regulation, control and direction of the City, or of any City official to whom such duties have been or may be duly delegated, which regulation and control shall include, but not by way of limitation, the right to require in writing the relocation of Company facilities, exclusive of street lighting and facilities installed for service directly to the City, at Company's cost within the streets or other public ways whenever such shall be reasonably neces- sary on account of the widening, change of grade, relocation, or other City construction within such streets or public ways. Section 4. The surface of any public road, high- way, streets, lanes, alleys, or other public place disturbed by Company in erecting, constructing, maintaining, operat- ing, using, extending, removing, replacing or repairing its electrical lighting and power system shall be restored immediately after the completion of the work to as good a condition as before the commencement of the work and maintained to the satisfaction of the City, or of any City official to whom such duties have been or may be duly dele- gated, for one year from the date the surface of said public road, highway, street, lane, alley, or other public place is broken for such construction, maintenance or removal work, after which time responsibility for the maintenance shall become the duty of the City. No public road, highway, street, 3. �• I• lane, alley, or other public place shall be encumbered by construction, maintenance or removal work by Company for a longer period than shall be necessary to execute such work. Section 5. The service furnished hereunder to the City and its inhabitants shall be first -class in all respects, considering all circumstances, and Company shall furnish the grade of service to its customers as provided by its rate schedules and shall maintain its system in reasonable operating condition during the continuance of this agreement. An exception to this requirement is auto- matically in effect when due to shortages in materials, supplies and equipment beyond the control of the Company and when due to fires, strikes, riots, storms, floods, war and other casualties, and when due to Governmental regula- tions, limitations and restrictions as to the use and avail- ability of materials, supplies and equipment and as to the use of the services, and when due to unforeseen and unusual demands for service. In any of which events the Company shall do all things reasonably within its power to restore normal service. Section 6. The Company on the written request of • or to permit the moving of houses or other bulky structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the benefited party or parties, and Company may require such payment in advance, being without obligation to remove, raise, or lower its wires until such payment shall have been made. The Company shall be given not less than forty -eight (48) hours advance notice to arrange for such temporary wire changes. All of Com- pany's lines for the transmission and distribution of 4. any person shall remove or raise or lower its wires tempo- rarily to permit construction work in the vicinity thereof • or to permit the moving of houses or other bulky structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the benefited party or parties, and Company may require such payment in advance, being without obligation to remove, raise, or lower its wires until such payment shall have been made. The Company shall be given not less than forty -eight (48) hours advance notice to arrange for such temporary wire changes. All of Com- pany's lines for the transmission and distribution of 4. electrical energy, located within City, shall be constructed, • operated and maintained, as to clearances, in accordance with the National Electrical Safety Code, as published in March, 1948, by the National Bureau of Standards, Handbook 30; provided, however, nothing herein shall impair the right of the City in the future by ordinance to adopt and require compliance with any new, amended or revised code, or by ordinance to require compliance with such further or dif- ferent standards as may be found to be in the public interest. Section 7. In consideration for the rights and privileges herein granted, the Company agrees to pay to the Is City for each year of the term of this franchise the sum of $500 plus a sum equal to 4% of the gross receipts for such year, exclusive of receipts for street lighting, received by the Company from its electrical lighting and power sales for consumption within the corporate limits of the City. Pay- ment shall be made by the 15th day of each February for the preceding calendar year. For fractional calendar years said $500 shall be proportionately reduced and said 4% shall be based upon the gross receipts for that part of the year in- volved. Said payments shall be in lieu of any license charge or fee, street or alley rental, or other character of charge • or levy by the City for the use or occupancy of the public roads, highways, streets, lanes, alleys or other public places in the City and in lieu of any pole tax or inspection fee tax. Section 8. In addition to the considerations set forth in Section 7, the Company shall hold itself ready to furnish, free of charge, subject to the use of the City, such pole space as may be required from time to time for the installation of City owned traffic, police and fire alarm system conductors; provided such conductor space does • not exceed the capacity of one crossarm on any one pole and provided such space is then available on existing poles. The specific location for these traffic, police and fire alarm conductors on Company poles shall be determined by 5. the Company and will be allotted at the time specific appli- cations for space are received from the City. All City traf- fic, police and fire alarm circuits on Company poles shall be installed in strict compliance with the applicable pro- visions of the National Electrical Safety Code, Handbook 30, as published in March, 1948, by the United States Department of Commerce, Bureau of Standards; provided, however, noth- ing herein shall impair the right of the City in the future by ordinance to adopt any new, amended or revised code, or by ordinance to specify such further or different standards as may be found to be in the public interest. Where main .� underground duct lines are located between manholes, the Company shall permit free of charge the installation in one interior duct by the City of its traffic, police or fire alarm signal cables; provided space is available in an in- terior duct not suitable for power circuits without inter- ference with the Company's system neutral conductors. All cables installed by the City in Company ducts shall be of the non - metallic sheath type to prevent corrosive or electro- lytic action between City and Company owned cables. A request for duct assignment shall in each instance be submitted to the Company and a sketch showing duct allocation shall be received from the Company prior to the installation of City cables in Company owned duct lines. All City owned conductors and cables, whether on poles or in duct lines, shall be constructed, maintained and operated in such manner as to not interfere with or create a hazard in the operation of the Company's electrical transmission and distribution system. It is further agreed that the Company shall not be responsible to any party or parties whatsoever for any claims, demands, losses, suits, judgments for damages or injuries to persons or property by reason of the construction, mainte- nance, inspection or use of the traffic signal light system 6. or police and fire alarm systems belonging to the City and • constructed upon Company's poles or in its ducts, and the City shall indemnify and hold the Company harmless against all such claims, losses, demands, suits and judgments, but the City does not, by this agreement, admit primary lia- bility to any third party by reason of the City's operation and use of such police and fire alarm wires, such being a function of government. Section 9. Nothing contained in this ordinance shall ever be construed as conferring upon Company any ex- clusive rights or privileges of any nature whatsoever. • Section 10. It shall be the Company's obligation as provided in Section 5 hereof to furnish efficient electri- cal service to the public at reasonable rates and to maintain its property in good repair and working order, except when prevented from so doing by forces and conditions not reason- ably within the control of Company. Should Company fail or refuse to maintain its properties in good order and furnish efficient service at all times throughout the life of this grant, except only when prevented from so doing by forces and conditions not reasonably within the control of the Company, or should the Company fail or refuse to furnish • efficient service at reasonable rates, lawfully determined by the City, throughout the life of this grant, excepting only during such periods as the Company shall in good faith and diligently contest the reasonableness of the rates in question, then it shall pay to the City the sum of Twenty - Five Dollars ($25) for each day it shall so fail or refuse after reasonable notice thereof and a hearing thereon by the City. Any suit to recover such sum shall be filed within one year from the date of accrual. Section 11. If any provision, section, sub- 40 section, sentence, clause, or phrase of this ordinance is 7. • for any reason held to be unconstitutional, void or invalid (or for any reason unenforceable), the validity of the re- maining portions of this cr dinance shall not be affected thereby, it being the intent of the City in adopting this ordinance that no portion thereof or provision or regulation contained herein shall become inoperative or fail by reason of any unconstitutionality or invalidity of any other portion, provision or regulation, and to this end, all provisions of this ordinance are declared to be severable. Section 12. The City by the granting of this shall indemnify and hold the City harmless from and on • account of all damages, costs, expenses, actions, and causes 8. franchise does not surrender or to any extent lose, waive, • impair or lessen the lawful powers and rights, now or here- after vested in the City to regulate the rates and services of Company; and Company by its acceptance of this franchise agrees that all such lawful regulatory powers and rights as the same may be from time to time vested in the City shall be in full force and effect and subject to the exercise thereof by the City at any time and from time to time. Section 13. The Company, its successors and as- signs, shall protect and hold City harmless against all claims for damages or demands for damages to any person or • property by reason of the construction and maintenance of its electrical lighting and power system, or in any way growing out of the granting of this franchise, either directly or indirectly, or by reason of any act, negli- gence, or nonfeasance of the contractors, agents or em- ployees of Company, its successors or assigns, and shall refund to City all sums which it may be adjudged to pay on any such claim, or which may arise or grow out of the ex- ercise of the rights and privileges hereby granted, or by the abuse thereof, and Company, its successors and assigns, shall indemnify and hold the City harmless from and on • account of all damages, costs, expenses, actions, and causes 8. i 0 or be brought b an person, of action that may accrue t gh y y p , ® persons, company or companies at any time hereafter by reason of the exercise of the rights and privileges hereby granted, or of the abuse thereof. Section 14. The City recognizes that Company finances a substantial portion of its construction, im- provements and extensions with funds obtained through the iss y a on the P issuance of bonds secured b mortgage u properties of the Company. In order to facilitate the construction, extension and improvement of Company's facilities and to insure the discharge of Company's obli- • g ations under this franchise the City agrees that in the event Company's mortgaged property shall be sold under a foreclosure of a mortgage thereon all rights and in- terests of Company in and under this franchise may be sold and assigned to any party purchasing all or a substantial part of the mortgaged property located within the City. Section 15. In granting this franchise, it is understood that the lawful power vested by law in the City to regulate all public utilities within City, and to regu- late the local rates of public utilities within the City within the limits of its charter and the Constitution and laws of the State of Texas and to require all persons or corporations to discharge the duties and undertakings, for the performance of which this franchise was made, is reserved; and this grant is made subject to all lawful rights, powers and authorities, either of regulation or otherwise, reserved to the City by its charter and the general laws of the State of Texas. Section 16. This franchise replaces all former franchise agreements and franchise ordinances of City, or its • predecessors, with Company, or its predecessors, which 9. I• • 9 • are hereby repealed, such repeal to be effective upon the date operations are started under this franchise. Section 17. The Company shall, within thirty (30) days from the date this ordinance is passed on its third and final reading, file with the City a written statement signed in its name and behalf in the following form: "To the City of Baytown: "The Company for itself, its successors and assigns, hereby accepts the attached or- dinance and agrees to be bound by all of its terms and provisions. HOUSTON LIGHTING & POWER COMPANY 9M "Dated the day of 19.11 Section 18. This ordinance shall take effect and be in force sixty (50) days after its passage on its third and final reading; and pending such time (after final read- ing and before taking effect), the full text of this ordi- nance shall be published once each week for four consecutive weeks in the official newspaper published in the City of Baytown and the expense of such publication shall be borne by the Company. After this ordinance has been accepted by the Company, the term of this franchise shall begin and continue in accordance with Section 2 hereof. Passed first reading (in full) the 12thday of June , 1950 June Passed second reading (in full) the 26th day of , 195 8. Passed third and final reading (in full) the j __V th _ day of July , 1958. Adopted this the nth day of July 195 8 . Approved this the 24th day of JulY , 195 8. MAYOR -CITY CLERK 10. THE STATE OF TEXAS ) COUNTY OF HARRIS ) I, Edna Oliver , the duly appointed, qual- ified and acting City Clerk of e City of Baytown, Texas, hereby certify that the above and foregoing ordinance of the City of Baytown was passed on first reading at a regular meeting of the City Council of the City of Baytown held on the 12thday of Jhne , 195 8 , at which meeting the Mayor and Counci men Mears — , Hollaxay , QA=ison , Clayton and Lusk were presentand —ac a as the Council throughout, was passed on second reading at a regular meeting of the City Council of the City of Baytown held on the 26th day of June , 195 g, at which meeting the Mayor and Councilmen Hollaway , Nears , and L1 were present and acted as the Council �rortl ughout, and was passed on third and final reading at a regular meeting of the City Council of the City of Baytown held on the nth day of July 195 8, at which meeting the Mayor and Councilmen Clayton — W„rd , J�ro Tem Lusk ® an were presen and acted as a Counc throug ou , a e same has been ap- proved by the Mayor and is duly attested by the City Clerk; and that the same has been duly engrossed and enrolled in the records of the City of Baytown. EXECUTED under my hand and the official seal of the City of Baytown, Texas, at said City, this 30th day of July , 1950 CITY CLERK, A 0 , TEXAS To the City of Baytown: The Company for itself, its successors and assigns, hereby accepts the attached ordinance and agrees to be bound by all of its terms and provisions. HOUSTON LIGHTING & POWER COMPANY ® BY �f� — If F% ustin, ViC6., President Dated the 30th day of July , 195 8. THE STATE OF TEXAS COUNTY OF HARRIS ) I, EDNA OLIM , the duly appointed, qual- ified and acting City Clerk of e City of Baytown, Texas, hereby certify that the above and foregoing Acceptance was received and filed in the office of the City Clerk of the City of Baytown on the 30th day of July , 195 g. EXECUTED under my hand and the official seal of the City of Baytown, Texas, at said City, this �lay of July , 195 8. CITY CLERK., CITY -OF A OWN, TEXAS