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Ordinance No. 6,117920109 -2 ORDINANCE NO. 6117 AN ORDINANCE GRANTING THE RIGHT, PRIVILEGE AND FRANCHISE TO GTE SOUTHWEST INCORPORATED, 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 INDEMNIFICATION; FOR PERIOD OF GRANT; FOR ASSIGNMENT; FOR METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City of Baytown and GTE Southwest Incorporated entered into a Franchise Agreement which was accepted by the City of Baytown on or about December 8, 1982; and WHEREAS, the City of Baytown and GTE Southwest Incorporated have agreed to repeal their aforementioned Franchise Agreement, negotiate a new agreement containing new terms; and WHEREAS, the City Council of the City of Baytown finds that the,new agreement contains new terms which are in the interest of the citizens of the City of Baytown; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: GRANT OF RIgHl. PRIVILEGE RIG 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 GTE Southwest Incorporated, 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 of Baytown, Texas, hereinafter referred to as 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 long- distance telephone business. • r: 920109 -2a Section 2: SUPERVISION BY CITY OF O • QE POLE • CONDUIT 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, nor interfere with the ordinary travel on the streets or sidewalks. The Telephone Company shall erect the poles at the edge of any sidewalks and shall keep the poles painted or chemically treated to prevent deterioration and shall keep the poles substantially erect. The wires and conductors shall be properly insulated and carefully and firmly fastened, so as not to come in contact with any object. 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. The City reserves the right, acting at the direction of the City Council to change the location of any pole, wire or conductor as the City Council deems the public interest requires, having due regard for the equities of the parties involved. The Telephone Company shall bear the expense of any change of location. Nothing in the Agreement shall be construed to prevent the City and its proper authorities from sewering, guttering or improving its streets and alleys, and for that purpose to require the Telephone Company at its own expense to remove its poles, wires, and connections to conform to and facilitate the improvements. In consideration of the rights granted herein, the City has the right to fasten, suspend and maintain on the poles erected and maintained by the Telephone Company, its successor and assigns, all wire the City requires for fire alarm and police purposes. The City will notify the Telephone Company at least ten (10) days prior to any exercise of such right. The City will reimburse the Telephone Company for any reasonable costs incurred for use of Telephone Company personnel or equipment in the event that Telephone Company personnel are used for purposes of fastening, suspending, or maintaining wire required by the City for fire alarm and police purposes. The City will also reimburse the Telephone Company for reasonable costs of repair incurred from damage to Telephone Company property resulting from placement of such wires by the City. 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. - 2 - 920109 -2b • 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 immediately prior to 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 of said surface shall devolve on the City. No such street, alley, highway, or public place shall be encumbered for a longer period than shall be necessary to execute said building, construction, renewal or maintenance. 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 temporarily 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 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 of erection thereof, or as amended and any other applicable Codes or Regulations or ordinances adopted by the City of Baytown either at the time of erection or as amended, including but not limited to any Standard Codes promulgated by the Southern Building Code Congress International, Inc. that have been adopted by the City. 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. - 3 - • • 920109 -2c Section 6: CASH CONSIDERATION TO BE PAID BY THE TELEPHONE COMPANY (a) 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 consideration for the same, the Telephone Company agrees to pay to the City quarterly during the continuance of this agreement a sum of money equal to three percent (3 %) of the annual gross receipts 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 quarter. (b) Such fee payment shall be made in four (4) calendar quarterly payments. Each payment shall be due and payable on or before the last day of the calendar month following the close of the calendar quarter for which the payment is calculated. The initial quarterly fee payment for the year 1992 shall be made no later than May 30, 1992. (c) The City shall have the right to review or audit the Telephone Company's franchise related books and records regarding any fees paid to the City or revenues received by the Telephone Company. The City shall give written notice to the Telephone Company of any additional amount claimed to be due to the City as a result of the City's review. Such notice shall be given no later than forty -eight (48) months following the close of the calendar year covered by such statement(s). The additional amount due to the City, if any, shall be paid within thirty (30) days following determination by the parties that such amount is due and payable. (d) The Telephone Company shall bill, on a monthly basis, to all customers residing within the City, pro rata, the Annual Fee. The amount billed will be identified as local tax according to tariff. (e) In the event there is any change in the corporate boundaries of the City, whether by annexation, disannexation or otherwise, the City shall provide to the Telephone Company, within sixty (60) days following the date of final passage of any such action, maps of the affected area(s) with sufficient detail to enable the Telephone Company to determine which customers reside inside or outside the City following such action. Within sixty (60) days of receipt of such maps, the Telephone Company shall either begin or cease billing, as appropriate, customers affected by the change in corporate boundaries. - 4 - 920109 -2d Section 7: PAYMENT OF _ CONSIDERATION TO BE IN LIEU OF MY OTHER EMENTS EXCEPT USUAL GENERAL •. 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, avenues, alleys, bridges, viaducts and public grounds 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 or special assessments for municipal improvements relative to real property owned by the Telephone Company 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 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 8: INDEMNITY The Telephone Company, as a condition of the grant of this franchise, and in consideration thereof, shall indemnify and hold the City harmless against all claims for damages to persons or property by reason of the construction, maintenance and operation of the Telephone Company's facilities, and conduct of its business, in any way growing out of the granting of this franchise, directly, or indirectly, when such injury shall be found by a court of competent jurisdiction to have been caused by the negligent act or omission, or intentional misconduct, of the Telephone Company or any of its officers, agents or employees, or by any person for whose negligent act or omission or intentional misconduct the Telephone Company is by law responsible, provided that the City provides to the Telephone Company written notice of any such claim within thirty (30) days of the City's receipt thereof, or the filing of such lawsuit within fifteen (15) days of the City's receipt thereof. The Telephone Company shall pay any final judgment, with costs, obtained against the City growing out of any such injury or damage within a period of 50 days. provided further, that this indemnity shall only apply to the extent that the loss, damage, or injury results from the negligence or intentional wrongful act or omission of the Telephone Company, its officers, agents, or employees, and does not apply to the extent such loss, damage, or injury is attributable to the negligence or intentional wrongful act or omission of the City, or the City's agents, representatives, or • employees or any other person or entity. This provision is not intended to create liability for the benefit of third parties but is solely for the benefit of the Telephone Company and the City. - 5 - 920109 -2e Section 9: NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE That nothing herein contained shall be construed as giving to the Telephone Company any exclusive privileges. Section 10: 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. Section 11: PERIOD OF FRANCHISE That this agreement shall be in full force and effect for the period beginning with the effective date hereof and ending five (5) years after such date, or upon any prior forfeiture. If the Telephone Company desires an extension of the franchise or a new franchise for a subsequent period, the Company shall apply to and negotiate with the City for that purpose at least six months before the expiration of the franchise. Nothing in this agreement shall be construed to bind the City to grant any extension or subsequent franchise. Section 12: PHIAL 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 13: ENTIRE AGREEMENT That the provisions of the original Franchise granted to the Telephone Company, accepted by the City of Baytown on or about December 8, 1982, are hereby repealed and this Franchise Agreement constitutes the entire agreement between the City and the Telephone Company. Section 14: EFFECTIVE DATE This franchise ordinance shall be read at three (3) separate regular meetings of the City Council and shall not be finally passed until at least thirty (30) days after the first reading and shall not take effect until sixty (60) days after its final passage, provided that the Telephone Company accepts the obligations under this Ordinance within such sixty (60) days period, and agrees and accepts all of the terms herein in the • manner provided in accordance with Section 15 hereof, and pending such time, the full text of this ordinance shall be published =W= 920109 -2f • once each week for four (4) consecutive weeks in The Baytown Sun and expense of such publication shall be borne by the Telephone Company. Section 15: ACCEPTANCE OF AQREEM= 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 force from and after the date of its acceptance, and shall effectuate and make binding the agreement provided by the terms hereof. INTRODUCED, READ and PASSED on the FIRST READING this the 9th day of January , 1992'. r � � • • ATTEST: '419 LEEK P.'HALL, Clty Clerk APPROVED: CTINACIO RAMIREZ, R., C ty Attorney INTRODUCED, READ and PASSED on the SECOND READING this 21st day of January .. 1992. -- qr— O. HUTTO, Mayor ATTEST: LEEN P. HALL, City Clerk APPROVED: 'ell -- -9 • ACIO RAMIRE2, ., City Attorney - 7 - • 920109 -2g INTRODUCE, READ and PASSED on the THIRD AND FINAL READING this 13 day of February , i992 ETT 0. HUTTO, Mayor ATTEST: EILEE P. L, City Clerk APPROVED: 4w4Q W42W4 NACIO RAMIREZ, R., City Attorney STATE OF TEXAS S S COUNTY OF HARRIS S I, EILEEN P. HALL, City Clerk of the City of Baytown, Texas, do hereby certify that the above and foregoing is a true and correct copy of the franchise granted by the City of Baytown, Texas, to GTE Southwest Incorporated as indicated herein. The same is now recorded in Volume 48 , Page 9201099 =2G , of the Ordinance Records of the City of Baytown, Texas. WITNESS MY HAND this the 14 day of February 1992. (seal) CITY CLERK - 8 - 0 WHEREAS, on the 13th entitled: 920109 -2h ACCERMCE the City Council of the City of Baytown, Texas, did day of February , - -, 1992, enact an Ordinance "AN ORDINANCE GRANTING THE RIGHT, PRIVILEGE AND FRANCHISE TO GTE SOUTHWEST INCORPORATED, 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 INDEMNIFICATION; FOR ASSIGNMENT; FOR METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF."' and WHEREAS, said Ordinance was on the 14111day of February, 1992 duly approved by the Mayor of said City and the seal of said City was thereto affixed and attested by the City Clerk; NOW THEREFORE, in compliance with the terms of said Ordinance as enacted, approved and attested, GTE Southwest Incorporated hereby accepts said Ordinance and files this its written acceptance with the City Clerk of the City of Baytown, Texas, in her office. Dated this day of , 1992. GTE SOUTHWEST INCORPORATED By: Vice President ATTEST: Assistant Secretary Acceptance filed in the office of the City Clerk of Baytown, Texas, this day of , 1992. 0 City Clerk C:1: SO: 8 - 9 - ACCEPTANCE WHEREAS, the City Council of the City of Baytown, Texas, did on the 13th day of February , 1992 , enact an Ordinance entitled: "AN ORDINANCE GRANTING THE RIGHT , PRIVILEGE AND FRANCHISE TO GTE SOUTHWEST INCORPORATED, 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 INDEMNIFICATION ; FOR ASSIGNMENT ; FOR METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY ; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. " and WHEREAS, said Ordinance was on the 14th day of February 1992 duly approved by the Mayor of said City and the seal of said City was thereto affixed and attested by the City Clerk; NOW THEREFORE , in compliance with the terms of said Ordinance as enacted, approved and attested , GTE Southwest Incorporated hereby accepts said Ordinance and files this its written acceptance with the City Clerk of the City of Baytown, Texas, in her office. Dated this 2,,,' day of if4i9i'K&1 , 1992 . GTE SO EST INCORPORATED iwU Y B 7 Vice Presiders ATTEST: lC - A s' stant Secretary Acceptance filed in the office of the City Clerk of Baytown, Texas, this / day of � ,?i , 1992. eff.//).5g0-ef-e- City Clerk C: 1:80:8 - 9 - • • STATE OF TEXAS ; • _ - '. " • COUNTY OF BARRIS • - - • --- • - Before me, the undersigned authority, on this day personally appeared • -. GARY DOBBS ., who being by me duly sworn, deposes and . • • • says that (s)he ;is the _PUBLISHER •� - � ' of the •� - - BAYTOWN -SUN - . • •� •• � •• ;" that said newspaper.is regularly published - . :in HARRIS-' -County (Counties), Texas, and generally circu-- . • • . lated in HARRIS & CHAMBERS • County (Counties), Texas; that - the attached notice. was published in said newspaper on the following date(s), to-wit: MARCH- . 2,9;16 &. 22, 1992 . . - • . - • . Newspaper Repesentative's Signature ' - - - . Subscribed and sworn to before me this the 3 Q --e of " . .///Glr-it ,• i90 to certify which witness my hand and'seal . . of office. - • . -. Notary P c is and.for . - =:.?" ,.,' . KATHY OERTSCH the State of Texas (SEAS . Netry; p;Mr..., State of Toxas 0. j' ..:r :l;a . sw,-1 f x ,gas 1-18-93- a . . - • . Print or Type Name of Notary Public • . - • • My Coamission Expires: )—/P—�3 `._...