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Ordinance No. 1,205ORDINANCE NO. 1205 AN ORDINANCE GRANTING TO GENERAL TELEPHONE COMPANY OF THE SOUTHWEST, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO USE THE CITY'S PRESENT AND FUTURE PUBLIC STREETS, ALLEYS, EASEMENTS AND OTHER PUBLIC THOROUGHFARES, FOR ITS TELEPHONE SYSTEM FOR A PERIOD OF FIFTEEN (15)YEARS FROM AND AFTER REGULATING THE USE OF THE STREETS BY THE COMPANY AND THE REPAIR AND RESTORATION OF STREETS DISTURED BY CONSTRUCTION; CONTAINING A CONTRACT BY THE COMPANY TO FURNISH THE GRADE OF SERVICE TO ITS SUBSCRIBERS AS PROVIDED BY ITS TARIFFS EXCEPT UNDER CONDITIOMS BEYOND THE COMPANY'S CONTROL; PROVIDING FOR THE TEMPORARY REMOVAL, RAISING AND LOWERING OF WIRES; PROVIDING FOR COMPENSATION TO BE PAID TO THE CITY OF BAYTOWN; PROVIDING FOR USE BY THE CITY FOR ITS POLICE AND FIRE ALARM SYSTEM OF CERTAIN WIRE SPACE AND CONDUITS; PROVIDING THAT THIS FRANCHISE SHALL NOT BE EXCLUSIVE; PROVIDING THE COMPANY'S OBLIGATION TO FURNISH EFFICIENT TELEPHONE SERVICE AT REASONABLE RATES; PROVIDING A SEVERABILITY CLAUSE; RESERVING ALL POWERS OF REGULATION; PROVIDING FOR INDEMNITY BY THE COMPANY TO THE CITY; MAKING MISCELLANEOUS PROVISIONS RELATIVE TO THIS GRANT OF FRANCHISE; PROVIDING FOR ACCEPTANCE BY THE COMPANY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN: Section I. That, subject to the terms conditions and provisions of this ordinance, the right, privilege and franchise is hereby extended and granted to General Telephone Company of the Southwest, its successors and assigns, hereinafter called "Company," to use the street, alleys, easements and other public thoroughfares of the City of Baytown for the maintaining, erecting, constructing, reconstructing, extending and removing its poles, wires, anchors, cables, manholes, conduits and other plant construction and appurtenances, used in or incident to the giving of telephone service and to the maintenance of a telephone business and system by the Telephone Company in the City, within the corporate limits thereof, as the same are now and as the same may be from time to time extended. Section 2. Upon the filing with the City by the Company of the acceptance required hereunder, this franchise shall be in full force and effect for a. term and period of fifteen (15) ears from and after. Section 3. All poles to be placed 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 street or sidewalk. The location and route of all poles, stubs, guys, anchors, conduits and cables placed and constructed and to be placed and constructed by the Telephone Company in the construction and maintenance of its telephone system in the City, and the location of all conduits laid and to be laid by the Telephone Company within the limits of the City shall be subject to the reasonable and proper regulation, control and direction of the City of Baytown or of any City official to whom such duties have been or may be delegated. It is expressly understood that underground conduits shall be extended to other parts of the City of Baytown, when necessary for the public safety and welfare and when required under the lawful and reasonable exercise of the police power, allowing a reasonable time for completion of such work as may be from time to time required, and that this right of the City of Baytown shall not be construed to be limited or restricted by any any other language in this grant. It is further understood that the Telephone Company will give every possible consideration to requests by the City to relocate underground any of its present aerial facilities or place new facilities underground. Section 4. The surface of any street, alley, highway, or public place disturbed by the Telephone Company in building, constructing, renewing or maintaining its telephone plant and 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 of Baytown, or of any City official to whom such duties have been or may be delegated, for one year from the date the surface of said street, alley, highway or public place is broken for such construction or maintenance work, after which time responsibility for the maintenance shall become the duty of the City. No street, alley, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work. If there is in the opinion of the City Council an unreasonable delay by the Company in restoring and maintaining streets, highways, parks and alleys after excavation, repairs and extensions have been made, the City shall have the right without further notice to restore or repair same and require the Company to pay the reasonable cost of so restoring or repairing them. -2- Section 5. The Telephone Company shall furnish the grade of service to its subscribers as provided by its tariffs and shall maintain its system in reasonable operating condition during the continuance of this agreement. An exception to this requirement is automatically 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, and other casualties, and when due to governmental regulations, limitations and restrictions as to the use and availability of materials, supplies and equipment and as to the use of the service. In any of which events the Telephone Company shaT1 do all things reasonably within its power to restore normal service. Section 6. The Telephone Company on the request of any person shall remove or raise or lower its wires temporarily to permit the moving of houses or other bulky structures. The expense of such temporary removal, raising or Towering of wires shall be paid by the benefited party or parties, and the Telephone Company may require such payment in advance. The Telephone Company shall be given not less than forty-eight hours advance notice to arrange for such temporary wire changes. All wires and cables, constructed or replaced from the date of this agreement, except drop and service wires and cables shall be not less than eighteen (18) feet above the traveled surface of any City street, alley or sidewalk, and above the surface of any City parks or playgrounds. Section 7. (a) In consideration for the rights and privileges herein granted, the Company agrees, as more particularly specified below, to pay to the City during the continuance of this agreement a sum of money equal to two per cent (2%) of the annual gross receipts received by the Company from its telephone operations within the corporate limits of the city. Such payments shall be made on the lst day of each April for the preceeding caTendar year. Said payment 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 streets, avenues, parkways, squares, alleys, or other public places in the City of Baytown. -3- The Telephone Company shall pay Two Hundred and No/100 ($200.00) Dollars per day as penalty if payment is not made as hereinabove provided. (b) The consideration set forth in this section shall be paid and received in lieu of any license, charge, fee, street or alley rental or other character of charge for use and occupancy of the streets, alleys and public places of the City and in lieu of any pole tax or inspection fee tax; provided, however, that Section 7 of this franchise shall never be pleaded in defense or in bar against the imposition of an involuntary gross receipts tax or charge by the City which is greater than the percentage set forth in such section, if the City is hereafter by statute authorized to impose the same, and if it has imposed said greater involuntary tax or charge uniformly upon all persons, firms, or corporations then engaged in rendering gas or electric or telephone service within said city, but the amounts due under this section shall be included within and credited upon any such greater involuntary tax or charge, if the same ever be imposed. Section 8. In addition to the consideration set forth in Section 7, the Telephone Company shall hold itself ready to furnish, free of charge, subject to the use of the City, such wire space as may be required from time to time by the City upon the poles now owned or hereafter erected by the Telephone Company in the City for the use of the City's police and fire alarm system; provided that the required wire space shall not exceed the wire capacity of one cross arm on any one pole. The location on the poles of this fire and police wire space shall be determined on specific applications for space, at the time the applications are received from the City, and will be allotted in accordance with the considerations for electrical construction of the United States Department of Commerce, Bureau of Standards. In its wire construction on the Telephone Company's poles, the City will follow the suggestions and requirements laid down for wire construction in the Rules and Regulations of the Bureau of Standards of the United States Department of Commerce. Hereafter, when conduits are laid or constructed by the Telephone Company, said Company shall furnish, sufficient duct space free of charge, not to exceed the capacity of one duct, for use by the City in carrying -4- its police and fire alarm wires. All such wires, whether on poles or in conduits, shall be constructed, maintained and operated in such manner as not to interfere with nor create undue hazard in the operation of the telephone system of the Telephone Company. It is further agreed that the Telephone 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, maintenance, inspection or use of the police and fire alarm wires belonging to the City, and the City shall insure, indemnify and hold the Telephone Company harmless against all such claims, losses, demands, suits and judgments, but the City does not, by this agreement, admit primary liability to any third party by reason of the City's operation and use of such police and fire alarm wires, such being a governmental function. Section 9. Nothing contained in this ordinance shall ever be construed as conferring upon the Company any exclusive 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 telephone 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 reasonably within the control of the Company. Should the 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 Council of the City of Baytown, 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 forfeit and pay to the City the sum of Two Hundred Dollars ($200.00) for each day it shall so fail or refuse after reasonable notice thereof and a hearing thereon by the City, and within -5- a reasonable time for correction after final determination of default. Any suit to recover such penalty shall be filed within one year from the date the penalty accrued. Section 11. If any provision section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional, void or invalid (or for any reason unenforceable), the validity of the remaining portions of this ordinance shall not be affected thereby, it being the intent of the City Council of the City of Baytown in adopting this ordinance that no portion hereof 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 of Baytown by the granting of this franchise does not surrender or to any extent lose, waive, impair or lessen the lawful powers and rights, now or hereafter vested in the City of Baytown under the Constitution and Statutes of the State of Texas and under the Charter of the City of Baytown to regulate the rates and services of the Grantee in this franchise; and the Grantee 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 of Baytown shall be in full force and effect and subject to the exercise thereof by the City of Baytown at any time and from time to time. Section 13. The Company, it successors and assigns, shall protect and hold said City harmless against all claims for damages or demands for damages to any person or property by reason of the construction and maintenance of said telephone system, or in any way growing out of the granting of this franchise, either directly or indirectly, or by reason of any act, negligence or non -feasance of the contractors, agents or employees of the Grantee or assigns, and shall refund to said City all sums which it may be adjudged to pay on any such claim, or which may arise or grow out of the exercise of the rights and privileges hereby granted, or by the abuse thereof, and IF -M the said grantee or assigns shall indemnify and hold the City harmless from and on account of all damages, costs, expenses, actions, and causes of action that may accrue to or be brought by, a person, persons, company or companies at any time hereafter by reason of the exercise of the right and privileges hereby granted, or of the abuse thereof. Section 14. The Telephone Company shall, upon the written request of the City, relocate its facilities situated within any street at no expense to the City where reasonable and necessary to accommodate street widening or improvement projects of the City. This shall in no way affect the Telephone Company's right to reimbursement for the cost of relocating its facilities from the State of Texas or the United States under any applicable state or federal law, rule or regulation. Section 15. In granting this franchise, it is understood that the lawful power vested by law in the City of Baytown to regulate all public utilities in said City, and to regulate the local rates of public utilities within the City within the limits of the Constitution and Laws, and to require a.11 persons or corporations to discharge the duties and undertakings, for the performance of which the 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 of Baytown by its Charter or by the general laws of this state. Section 16. Repealing Clause. All ordinance or parts of ordinances i.nconsi.stent with the terms of this ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of such inconsistency and in all other respects this ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered by this ordinance. Section 17. The City may, at any time, declare a conditional forfeiture of this grant for a continuing violation by the Telephone Company of any of the substantial terms hereof. In such event, the City shall give written notice, specifying all grounds on which forfeiture is claimed, by registered mail, addressed and delivered to the Telephone Company, to the attention -7- of its President, in San Angelo, Texas. The Telephone Company shall have sixty days after the receipt of such notice within which to discontinue said alleged violation, or to file suit in a court of competent jurisdiction for an adjudication or declaration of the rights of the parties with respect to forfeiture of the franchise. No forfeiture shall become effective until and unless (1) the Telephone Company shall have continued such violations or violations for more than sixty days after receipt of such written notice from the City without filing such a suit; or (2) the Telephone Company shall have continued such violation or violations for more than sixty days (or such longer period as the Court in its discretion shall allow) after the entry or afirmance in a court of last resort of a final judgment finding and establishing the existence of such violation or violations, and that such violations are sufficiently substantial to warrant forfeiture, and decreeing forfeiture as a consequence thereof. The Telephone Company shall not in any event be deemed to be in default of performance of any provisions of this grant, nor shall any forfeiture be invoked for violations or violations for failure to perform any provision hereunder when due to shortages of material, supplies and equipment beyond the control of the Telephone Company, or to fires, strikes, riots, floods, war or other casualties, or to governmental regulations, limitations or restrictions as to the use or availability of materials, supplies or equipment or as to the use of the service, or to unforeseen or unusual demands for service, or for any other cause not reasonably or practicably within control of the Telephone Company. Section 18. The City of Baytown shall have the right and power to examine the books and records of the Telephone Company at all reasonable times and the Telephone Company shall make all books and records available to the City and its designated representatives. Section 19. The Company shall, within thirty (30) days from the date this ordinance takes effect, file with the City Secretary a written statement signed in its name and behalf in the following form: "To the Honorable Mayor and City Council of 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 teras and provisions. GENERAL TELEPHONE COMPANY OF THE SOUTHWEST Im Dated day of , 1972." PASSED first reading the_ 30th day of March , A.D., 1972. PASSED second reading the 18th day of April , R.D., 1972. PASSED third and final reading the day of A. D., 1972. APPROVED this day of ATTEST: EDNA OLIVER, City Clerk APPROVED: NEEL RICHARDSON, City Attorney C. GLEN WALKER, Mayor of the City of Baytown 0 A.D., 1972.