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HomeMy WebLinkAboutORD 85-50 ORDINANCE NO. fj;S-SO FRANCHISE AN ORDINANCE GRANTING TO SOUTHWESTERN BELL TELEPHONE COMPANY, ITS SUCCESSORS AND ASSIGNS , THE RIGHT, PRIVILEGE AND FRANCHISE TO USE THE CITY ' S PRESENT AND FUTURE PUBLIC STREETS, ALLEYS, AND OTHER PUBLIC THOROUGHFARES WITHIN THE CITY OF BEAUMONT, AND THE RIGHT TO ENTER UPON, ERECT, CONSTRUCT, MAINTAIN, EXTEND, REPAIR, REPLACE, REMOVE , IN, UNDER, UPON, WITHIN, OVER, ABOVE , ACROSS, AND ALONG ANY AND ALL OF THE PRESENT AND FUTURE PUBLIC STREETS , ALLEYS , AND OTHER PUBLIC THOROUGHFARES OF THE CITY OF BEAUMONT A SYSTEM OF POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER APPURTENANCES NECESSARY TO ITS COMMUNICATION SYSTEM; PRESCRIBING THE CONDITIONS GOVERNING THE OPERATION OF THE BUSINESS; RETAINING ALL RIGHTS OF CITY TO REGULATE THE LOCATION OF COMPANY' S FACILITIES IN, UPON, ALONG, UNDER AND OVER THE STREETS, ALLEYS AND OTHER PUBLIC THOROUGHFARES WITHIN THE CITY AS WELL AS TO REQUIRE THE RELOCATION OF SAME; RESERVING TO THE CITY THE RIGHT TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY; PROVIDING FOR THE COMPENSATION FOR THE PRIVILEGES HEREIN GRANTED; PROVIDING THAT THIS FRANCHISE SHALL BE EFFECTIVE FOR A PERIOD OF TWENTY (20) YEARS , COMMENCING UPON AND EXTENDING FROM THE SIXTY-FIRST (61ST) DAY AFTER FINAL PASSAGE HEREOF; PROVIDING THAT THIS FRANCHISE IS GRANTED SUBJECT TO ALL LAWFUL PROVISIONS OF THE CHARTER OF THE CITY OF BEAUMONT; MAKING MISCELLANEOUS PROVISIONS RELATIVE TO THIS GRANT OF FRANCHISE; PROVIDING RULES AND REGULATIONS GENERALLY FOR THE OPERATION OF SAID BUSINESS UNDER THIS GRANT; PROVIDING A SEVERABILITY CLAUSE ; PROVIDING FOR INDEMNITY BY THE COMPANY TO THE CITY; AND PROVIDING FOR ACCEPTANCE BY THE COMPANY . BE IT ORDAINED BY THE CITY OF BEAUMONT, TEXAS : Section 1 . Subject to the terms , conditions and provisions of this ordinance, the City of Beaumont, Texas , hereinafter referred to as "City" does hereby grant unto Southwestern Bell Telephone Company , hereinafter referred to as "Company" , its successors and assigns , the rights , privileges and franchise to conduct within the boundaries of' the City of Beaumont , as such boundaries now exist or may hereafter be extended , a communications system and to enter upon, erect , construct, maintain, extend, repair , replace and remove in, under, upon, within, over, above , across and along any and all of the present and .'future public roads , highways , streets , lanes and alleys of the City all necessary poles , wires , cables , underground conduits , manholes and other structures and appurtenances for said communications system. Section 2 . The 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 Company in the City shall remain as now constructed , subject to such changes as under the limitations and conditions herein prescribed may be considered necessary by the City in the exercise of its lawful power and by the Company in the exercise of its business of furnishing telephone service ; and the Company shall continue to exercise its right to place , remove , construct and reconstruct , extend and maintain its said plant and appurtenances as the business and purpose for which it is or may be incorporated may from time to time require along, across , on, over, through , above and under all the public streets , avenues , alleys and public grounds and places within the present city limits of City and within said limits as the same from -2- _J7 d time to time may extended s•ubjedt, to the ,gulatio ' limitations and conditions herein prescribed. Section 3 . 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 in any gutter or drain and so that the same will interfere as little as practicable with the ordinary travel on streets , sidewalk6 or other public ways ; the regulation and control herein reserved shall include, but not by way of limitation, the right to require in writing the relocation of Company facilities at Company ' s cost within the streets or other public ways whenever such shall be reasonably necessary on account of the removal of a traffic hazard , the widening, changing of grade , relocation or other City construction within such streets or public ways ; provided, however, Company shall be entitled to be paid for its costs and expenses of any relocation, raising or lowering of its wires required by City pursuant to this section if such expenses or costs are reimbursable or payable to Company or City by the State of Texas , the United States or any governmental agency or subdivision of either whether directly or indirectly but nothing herein shall impose any obligation on City to pay such costs and expenses except to the extent it receives funds from the United States , State of Texas or any governmental agency or subdivision of either for the reimbursement or payment of same . The location and route of all poles, stubs , guys , anchors , conduits and cables to be placed and constructed by Company in the construction and maintenance of its telephone system in the City -3- and the location of all conduits to be laid by Company within the city limits under this ordinance , shall be subject to the reasonable and proper regulation, control and direction of the City Council or any city official to whom such duties have been or may be delegated. Section 4. The surface of any street , alley, highway or public place disturbed by the 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 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 (1) 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 ; provided , however, that the Company shall not take up or excavate any pavement at any time without first securing permission, in writing, of the Director of Urban Transportation or the City Manager except in cases of emergencies ; and provided further, that all excavation and installation so made shall be performed in such a manner as will cause the least inconvenience to the public and no street , alley, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work. The City shall have the right to have one (1) inspector present at each excavation and installation and all reasonable expenses of said inspection shall be paid by Company. -4- Section 5 . The Telephone Company, on the request of any person, firm, corporation or governmental entity shall remove, relocate , raise or lower. its wires where located on, in or over the streets , alleys or other public thoroughfares or City temporarily to permit construction in the vicinity thereof or to permit the moving of houses or other bulky structures . The expense of such temporary removal , relocation, raising or lowering of such wires shall be paid by the benefited party or parties and the Company may require the payment in advance being without obligation to remove , relocate , raise or lower its wires until such payment shall be made ; provided , however, that no such payment shall be required of the City except as provided in section 3 . Company shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes . Section 6 . The right , license, privilege and permission is hereby granted to Company, its successors and assigns , to trim trees upon and overhanging the streets , alleys , sidewalks and public places of City so as to prevent the branches of such trees from coming in contact with the wires or cables of 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 . Section 7 . On or before the 31st day of January of each year during the life of this franchise , Company shall file with the City Clerk -5- a written, sworn eport setting out Company' s total gross receipts' from sales for local exchange telephone transmission service within the corporate limits of the City of Beaumont during the twelve (12) months ending. on the immediately preceding December 31 . Said report shall comply in other respects with the Charter of the City of Beaumont . Section 8. To indemnify City for any and all possible damages to its streets , alleys and public grounds which may result from the placing and maintenance therein or thereon of Company ' s poles , conduits and other telephone equipment or apparatus , and to compensate City for its costs of superintendence of this agreement , and as the cash consideration for the same , Company agrees to pay to City annually, during the continuance of the agreement , a sum of money equal to three percent 0%) of the annual gross receipts for the preceding year received by Company from the rendition of local exchange telephone transmission service within the corporate limits of City . Said annual payments shall be due and payable on the 1st day of February of each year and each shall be computed upon receipts by Company during the twelve ( 12) months ending on December 31st immediately preceding each such annual payment date. The total sum of money paid hereunder shall not , in any event, exceed the amount allowed by the Public Utility Commission of Texas as a reasonable and necessary expense of operation for rate-making purposes . Nothing herein shall be construed to bar, limit or abridge any legal right which City may hereafter have to -6- O - -�50 levy , charge , assess or collect an amount in excess of the three percent (3%) of Company' s gross receipts through a change in the present law by legislative action or final legal determinates The first payment hereunder shall be made February 1, 1986 and shall equal in amount three percent of gross receipts received from the effective date of this ordinance to December 31 , 1985 ; and thereafter payment shall be made annually on February 1 as herein provided . Section 9 . 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 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 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 . —7— Section 10. In addition to the considerations set forth elswhere in this ordinance , Company shall hold itself ready to furnish free of charge subject to the use of City such wire space as may be required from time to time by City upon the poles now owned or hereafter erected by Company in City for the use of City-owned traffic , police and fire alarm system wire or conductors and alarm or other necessary signal boxes ; provided that the required wire space shall not exceed the wire capacity of one ( 1 ) crossarm on any one pole . The specific location on the poles of these traffic , police and fire alarm wires or conductors shall be determined on specific applications for space at the time the applications are received from 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 Company ' s poles , 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 . Where conduits are laid , constructed, installed or extended or added to by Company, after the effective date of this franchise ordinance , Company shall , as part of same , provide free of charge for the installation by City of its traffic , police or fire alarm cables , sufficient duct space not to exceed the capacity of one (1) duct for use by City in carrying its traffic , police and fire alarm wires or cables . Company shall , prior to -8- each addition by it to any duct not existing or hereafter constructed , notify the Urban Transportation Department of City of the nature and location of such intended addition; further, Company shall , along with its application for permit to open a street , for the purpose of laying a new duct, provide the city electrical department and the City Engineer' s office each with a set of plans showing the type , number and location of the street , and of the ducts to be constructed . City shall , prior to the original installation by it of its equipment in any duct , notify Company of the time and place it intends to make such installations . Where underground duct lines now exist , Company will make space available to city upon request , in writing , for the installation by city of its traffic , police or fire alarm cables , sufficient duct space not to exceed the capacity of one (1) duct for use by the City in carrying its traffic , police and fire alarm wires . All City-owned conductors and cables , whether on poles or in duct lines , shall be constructed , maintained and operated in such a manner as to not interfere with nor create undo hazard in the operation of the telephone system of Company . It is further agreed that 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 traffic , police and fire alarm wires belonging to City ; and the City shall indemnify and -9- hold the Telephone Company harmless against all such claims , losses , demands , suits and judgments. Section 11 . Nothing contained in this ordinance shall be construed to require or permit any electric light or power wire attachment by City or for City nor to require or permit any electric light or power wires to be placed in any duct used by City in Company ' s conduits . If light or power attachments are desired by City or for City or if City desires to place electric light or power wires in any duct used by City, then a further separate noncontingent agreement shall be prerequisite to such attachments or such use of any duct used by City . Nothing herein contained shall obligate or restrict Company in exercising its right voluntarily to enter into pole attachment , pole usage, joint ownership , or other wire space and facility agreements with light and power companies and with other wire using companies which may be privileged to operate within City . Section 12 . This agreement shall be in full force and effect for the period beginning with the effective date hereof and ending twenty (20) years after August 30, 1984 . Section 13 . Nothing herein contained shall be construed as giving to Company any exclusive privilege . Section 14 . This franchise is granted subject to all lawful provisions of the charter of the City of Beaumont . -10- Section 15 . . Company, its successors and assigns , shall indemnify, save and hold harmless City from any and all claims for injuries and damage to personal property occasioned by or arising out of the construction, reconstruction, maintenance, operation or repair of said companies communication system or by the conducting of Company' s business in City 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 Company, its successors and 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 Company shall indemnify and hold City harmless from and on account of all damages , costs , expenses , 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 hereof ; provided , . however , that the provisions of this section shall not be applicable to any claims , damages , costs , expenses , or causes of action proximately resulting from the use by City , its officers , agents , representatives or employees of Company ' s poles and duct lines for the installation, maintenance or removal of City ' s equipment as provided in Section 10 . -11- Section 1,6. If any provision, section, subsection, sentence clause or phrase of this ordinance is , for any reason, held to be uncon- stitutional , void or invalid (or for any reason unenforceable) , the validity of the remaining portions of this ordinance shall not be effected thereby it being the intent of City in adopting this ordinance that no portion thereof or provision or regulation contained therein 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 17 . This franchise replaces all former franchise ordinances granted to Company . Section 18 . Company shall , within sixty (60) days from the date of final passage of this ordinance by the City Council of City, file with the City Clerk of City a written acceptance thereof signed in its name and behalf in the following form: "To the honorable Mayor and City Council of the City of Beaumont : Southwestern Bell Telephone Company, for itself, its successors and assigns , hereby accepts the attached ordinance finally passed by the City Council of Beaumont , the day of , 19849 and agrees to be bound by all of its terms and provisions . Southwestern Bell Telephone Company Y : Dated the 20th day of re ad��t-Texas Division 198 . -12- Section '19. The full text of this ordinance shall , after final passage by the City Council of City , be published once each week for four (4) consecutive weeks in a newspaper of general circulation published in City and the expense of such publication shall be borne by Company. Upon said publication being completed and the acceptance of this ordinance by Company as herein provided , this ordinance shall take effect sixty-one (61) days after its adoption on third and final reading by the City Council of City and thereafter continue for twenty (20) years . PASSED BY THE CITY COUNCIL of the City of Beaumont this the first reading on the - day of 1985 . PASSED BY THE CITY COUNCIL of the City of Beaumont this the second reading on the day of CZ,& 4 198-5 . T PASSED BY THE CITY COUNCIL of the City of Beaumont this the final reading on the day of 1985 . Mayor -13-