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Ordinance No. 3,464PUBLISHED: THE BAYTOWN SUN 20924 -6 Thursday, November 4, 1982 Thursday, November 11, 1982 Thursday, November 18, 1982 ORDINANCE NO. 3464 AN ORDINANCE GRANTING THE RIGHT, PRIVILEGE AND FRANCHISE TO GENERAL TELEPHONE COMPANY OF THE SOUTHWEST, GRANTEE, AND ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, ERECT, BUILD, EQUIP, OWN, MAINTAIN AND OPERATE IN, ALONG, UNDER, OVER AND ACROSS THE STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS AND PUBLIC GROUNDS OF THE CITY OF BAYTOWN, TEXAS, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF TELEPHONE AND OTHER COMMUNICATION SERVICE AND FOR CONDUCTING A GENERAL LOCAL AND LONG DISTANCE TELEPHONE BUSINESS; PROVIDING FOR CONSIDERATION; FOR PERIOD OF GRANT; FOR ASSIGNMENT; FOR METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: Grant of Right, Privilege and Franchise for Construction and Maintenance of Telephone Plant and Service That the right, privilege and franchise be, and the same is hereby granted to General Telephone company of the Southwest, hereinafter referred to as the "Telephone Company," and its successors or assigns, subject to the terms and conditions hereinafter set forth, to construct, erect, build, equip, own, maintain and operate in, along, under, over and across the streets, alleys, avenues, bridges, viaducts and public grounds of the City, such posts, poles, wires, cables, conduits and other appliances, structures and fixtures necessary or convenient for rendering telephone and other communication services and for conducting a general local /extended area and a long distance telephone business. Section 2. Supervision by City of Location of Poles and That all poles to be placed shall be of sound material and reasonably straight, and shall be so set that they will not interfere with the flow of water to any gutter or drain, and so that the same will interfere as little as practicable with the 20924 -Ga ordinary travel on the street or sidewalk. The location and route of all poles, stubs, guys, anchors, conduits and cables 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 to be laid by the Telephone Company within the limits of the City under this ordinance, shall be subject to the reasonable and proper regulation, control and direction of the City Council or of any City official to whom such duties have been or may be delegated, which regulation and control shall include, but not by way of limitation, the right to require in writing the relocation of the Telephone Company facilities at the Telephone Company's cost within the streets or other public ways whenever such shall be reasonably necessary on account of the widening, change of grade, relocation, or other City construction within such streets or public ways. That nothing in this Ordinance is intended to add to or detract from any authority granted by the legislature of the State of Texas to the City. Section 3. Streets to be Restored to Good Condition That the surface of any street, alley, highway or public place within the City disturbed by the Telephone Company in building, constructing, renewing or maintaining its telephone plant and system shall be restored within a reasonable time 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 Council, 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 V, 20924 -6b City. No such street, alley, highway, or public place shall be encumbered for a longer period than shall be necessary to execute the work. Section 4. Temporary Removal of Wires That the Telephone Company on the request of any person shall remove or raise or lower its wires within the City tem- porarily to permit the moving of houses or other bulky struc- tures. The expense of such temporary removal, raising or lowering 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 (48) hours advance notice to arrange for such temporary wire changes. The clearance of wires above ground or rails within the City and also underground work shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, United States Department of Commerce, as promulgated at the time the work is required to be performed. Section 5: Tree Trimming That the right, license, privilege and permission is hereby granted to the Telephone Company, its successors and assigns, to trim trees upon and overhanging the streets, alleys, sidewalks and public places of the City, so as to prevent the branches of such trees from coming in contact with the wires or cables of the Telephone Company, and when so ordered by the City, said trimming shall be done under the supervision and direction of the City Council or of any City official to whom said duties have been or may be delegated. The Telephone company shall be required to have all branches, limbs, or other debris resulting from tree trimming picked up and hauled to a land fill approved by the City 3 20924 -6c in order to leave all property located under Telephone Company wires or cables in as good a condition as it was prior to the tree trimming. Section 6. Quality of Service The service furnished hereunder to the City and its inhabi- tants shall be in conformity with the service standards and rules and regulations of the Texas Public Utility Commission, and the Telephone 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 con- tinuance 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 Telephone Company and when due to fires, strikes, riots, storms, floods, war and other casualties, and when due to Governmental regu- lations, limitations and restrictions as to the use and availa- bility 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 Telephone company shall do all things reasonably within its power to restore normal service. Section 7. Annual Cash Consideration to be Paid By The Telephone Company That to indemnify the City for any and all possible damages to its streets, alleys, and public grounds which may result from the placing therein of the Telephone Company's poles, conduits, or other equipment or apparatus, and to compensate the City for its superintendence of this agreement, and as the cash con- sideration for the same, the Telephone Company agrees to pay to the City annually during the continuance of this agreement a sum of money equal to two percent (2 %) of the annual gross receipts 4 20924 -6d derived by the Telephone Company from exchange access rates, contained in Sections 6 and 36 of its approved General Exchange Tariff, charged customers within the corporate limits of the City during the preceding year. The first payment hereunder shall be made March 31, 1983, and shall equal in amount to two percent (2 %) of the gross receipts derived from exchange access rates from the date of acceptance of this Ordinance to December 31, 1982; and thereafter payment shall be made annually on March 31st, as herein provided. However, the City of Baytown, at its option, reserves the right to review and /or renegotiate the required 2% annual gross receipts and payment as provided in Section 7 of this ordinance on the 5th, 10th, 15th, and 20th year of the 25 year term of this agreement. Section 8. Payment of Cash Consideration To Be In Lieu of Other Payments Except Usual General Or Special Ad Valorem Taxes That the City agrees that the consideration set forth in the preceding section hereof shall be paid and received in lieu of any tax, license, charge, fee, street or alley rental or any other character of charge for use and occupancy of the streets, alleys, and public places of the City; in lieu of any pole tax or inspection fee tax; in lieu of any easement or franchise tax, whether levied as an ad valorem, special or other character of tax; and in lieu of any imposition other than the usual general or special ad valorem taxes now or hereafter levied. Should the City not have the legal power to agree that the payment of the foregoing cash consideration shall be in lieu of the taxes, licenses, charges, fees, rentals, and easement or franchise taxes aforesaid, then the City agrees that it will apply so much of 5 20924 -Ge said payment as may be necessary to the satisfaction of the Telephone Company's obligations, if any, to pay, any such taxes, licenses, charges, fees, rentals, and easement or franchise taxes. Section 9. City Use of Telephone Company Poles and Under ground Ducts In addition to the considerations 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 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 Telephone Company poles shall be determined by the Telephone Company and will be allotted at the time specific applications for space are received from the City. All City traffic, police and fire alarm circuits on Telephone Company poles shall be installed in strict compliance with the applicable provisions of the National Electrical Safety Code, National Bureau of Standards United States Department of Com- merce, as promulagated at the time the work is performed; provided, however, nothing 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 dif- ferent standards as may be found to be in the public interest. Where main underground duct lines are located between manholes, the Telephone Company shall permit free of charge the instal- lation in one interior duct by the City of its traffic, police, or fire alarm signal cables. All cables installed by the City in 20924 -Bf Telephone company ducts shall be of non - metallic sheath type to prevent corrosive or electrolytic action between the City and the Telephone Company owned cables. A request for duct assignment shall in each instance be submitted to the Telephone Company and a sketch showing duct allocation shall be received from the Telephone Company prior to the installation of City cables in Telephone Company owned duct lines. All City owned conductors and cables, whether on poles or induct lines, shall be con- structed, maintained and operated in such a manner as to not interfere with or create a hazard in the operation of the Telephone Company's telephone and other communicative service system. It is further agreed that the Telephone Company shall not be responsible to any party or parties whatsoever for any claims, demands, losses, suits, judgment for damages or injuries to persons or property by reason of the construction, main- tenance, inspection or use of the traffic signal light system or police and fire alarm systems belonging to the City and all not be responsible to any party or parties whatsoever for any claims, demands, losses, suits, judgment for damages or injuries to persons or property by reason of the construction, main- tenance, inspection or use of the traffic signal light system or police and fire alarm systems belonging to the City and con- structed upon Telephone Company's poles or in its ducts, and the City shall indemnity 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 function of government. 7 20924 -6g Section 10. No Exclusive Privileges Conferred By This Ordinance That nothing herein contained shall be construed as giving to the Telephone Company any exclusive privileges. Section 11. Telephone Company To Indemnify City The Telephone Company, its successors and assigns, 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 telephone and other com- munication service 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 nonfeasance of the contractors, agents or employees of Telephone 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 exercise of the rights and privileges hereby granted, or by the abuse thereof, and Telephone Company, its successors and assigns shall indemnify and hold the City harmless from and on account of all damages, costs, expense, actions, and causes of action that may accrue to or be brought by any person, 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 12. Successors and Assigns That the rights,powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors and assigns. i•WMI Section 13. Period of Franchise That this agreement shall be in full force and effect for the period beginning with the effective date hereof and ending Twenty -Five (25) years after such date. Section 14. Compliance with Applicable Laws and Ordinances The Telephone Company shall conform to all applicable laws, rules and regulations of the United State, the State of Texas, and the City of Baytown in the construction and operation of its telephone and other communication service systems. The City recognizes that the Public Utility Commission of Texas presently has sole power to regulate the service and rates of the Telephone Company; however, the City reserves the right to adopt ordinances regulating the service and rates charged by the Telephone Company should state law ever be changed to allow municipalities to regulate telephone service. Section 15. Partial Invalidity and Repeal Provisions That if any section, sentence, clause, or phrase of this Ordinance is for any reason held to be illegal, ultra vires or unconstitutional, such invalidity shall not affect the validity of the remaining portions of this Ordinance. All ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed. Section 16. Acceptance of Agreement That the Telephone Company shall have sixty (60) days from and after the passage and approval of this Ordinance to file its written acceptance thereof with the City Secretary, and upon such acceptance being filed, this Ordinance shall take effect and be in full force and shall effectuate and make binding the agreement provided by the terms hereof. p 20924 -6i APPROVED on this the FIRST READING on this the 24th day of September , 1982. weg&�iy <044-7m W4WETT 0. HUTTO, Mayor ATTEST: ErLEEN P. HALL, City Clerk APPROVED: RANDALL B. TR NG, City torney APPROVED on this the SECOND READING on this the 14th day of October . 1982. '00<�h' EMMETT 0. HUTTO, Mayor ATTEST: 0) IZ .9 EILE N P. HALL, City Clerk APPROVED: ANDALL B. ST ONG, City At rney APPROVED on this the THIRD AND FINAL READING on this the 28th day of October , 1982. METT 0. HUTTO, Mayor ATTEST: J EILEEN P. HALL, City Clerk APPROVED: eRANDA-LLB.--t�TRONG, City A ney 10 AFF IDAVI T • • This is to certify that the gross receipts of the GENERAL TELEPHONE COMPANY OF THE SOUTHWEST received from the rendition of local exchange service within the Corporate Limits of the City of Baytown Texas, from January 1 , 1973 to December 31 , 19 73was $ 3,091,65950 /1/%4,/,'„,L, Revenue Accounting Manager Subscribed and sworn to before me this a9 day , 1975' C2Uelys,_2.)/14Lige.q,/ .;OTARY PUBLIC, TOM GREEN COUNTY, TEXAS My Commission Expires C y /97S