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HomeMy WebLinkAboutORD 147 Requiring Southwestern Bell to continue maintenance of poles, etc. L.. 1 , 240 ORDINANCE NO. 147 D AN ORDINANCE WHEREBY THE CITY OF WEST UNIVERS rry PLACE, TEXAS, AND THE SOUTHWESTERN BELL TEL]PHONE COMPANY AGREE THAT THE TELEPHONE COMPANY SHALL CONTINUE TO ERECT AND MAINTAIN ITS POLES, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER PDANT CONSTRUCTION AND APPURTENANCES ALONG, ACROSS, 'ON, OVER, THROUGH, ABOVE AND UNDER ALL PUBLIC STREETS, AVENUES, ALLEYS, PUBLIC GROUNDS AND PLACES IN SAID CITY, UNDER REGULATIONS AND RESTRICTIONS, AND THAT THE CITY SHALL RECEIVE AN ANNUAL PAYMENT AND THE RIGHT TO USE CERTAIN FACILITIES OF THE TELEPHONE COMPANY, ALL- AS'ImREIN':REQUIRED. WHEREAS, the Southwestern Bell Telephone Company, here- inafter referred to as the "Telephchne Companylt, is now and has been engaged in the telephone business in the State of Texas, and in furtherance thereof, has erected and maintained certain items of its plant construction in the city of West University Place,Texas, hereinafter referred to as the "City", f'or many years pursuant to such rights as have been granted it by and under the laws of the State of Texas, and subject tq the exer- cise of such reasonable rights of regulation under the police power as have been also lawfully granted by and under said laws 1[1 to said City; and lJ WHEREAS, it is to the mutual advantage of both the City and the Tel~phone Company that an agreement should be entered into between the Telephone Company and the City establishing the conditions under which the Telephone Company shall opera~e in the city. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COMMISS- IONERS OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS, THAT: SECTION 1 - C~_N.S!l'aUc.~IQN AND MAINTENANCE OF TELEPHONE PT.ANT AND SERVICE.. 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 tele- phone business and system by the Telephone Company in the City, shall remain as now constructed, sub~ect to such changes as under the limitations and conditions herein prescribed may be considered necessary by the City in the exercise of its lawful powers and, by the Telephone Company in the exercise of its busi- ness of furnishing telephone service; and the Telephone Company ! shall continue to exercise its right to place, remove, construct, ~ and reconstruct, extend and maintain its said plant and appur-Lr o [J o 241 tenances as the business and purposes 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 pu~lic grounds and places within the present limits of the City and wi thin said limits as the same from time to time may be extended, subject to the regulations, limitatinmand conditions herein prescribed and that may be prescribed from time to time by the City. SECTION 2-S UPERVIS ION BY CITY OF LOCATION OF POLES. AND CONDUIT All poles to be placed shall be of sound materia:}. andreasonablp straight, and shall be so set that they will not inte~fere with the flow of water in any gutter or drain, and so' that the same will interf'ere as l~ttle as practicable with theordinal1ytravel on the street or sidewalk. The location and route of all poles, stubs, guys, anchors, conduits, and cables to be placed and con- structed by the Telephone Company in the construction and main- tenance of its telephone system in the City, and the location of all conduits to be laid by the Telpphone Company within the limits of the City under this ordinance, shall be subject to the reasonable and proper regulation, control and direction ,of the Board of Commissioners or of any City official to whom such duties have been or may be delegated. SECTION 3 - STREETS TO BE RESTORED TO GOOD CONDITION. . The construction, tp,aintenance and operation of such telephone sys~em and of all property of the Telephone company subject to this ordinance shall be subject to all lawful police regu- ,lations by the governing body of the city. , Ttae City shall have power at any time to order and require the Telephone Company to remove and abate any pole, wire, cable or other structure that is dangerous to life or property. The Telephone Company shall promptly restcnre to as good condition as begore working thereon, and to the reasonable satisfaction of' the ,Ci ty' s Engineer, all streets excavated by it. The Telephone Company shall never tear up nor excavate any pavement or streets at any time without first securing permis sion of the City, but such permit shall be given if the proposed excavation is in accordance with this ordinance. ' SECTION 4 ~ CONSTRUCTION OF OTHER UTILITIES. , The Cfu.ty reserves the right to ]lay, and permit to be laid, gas, water, and other pipe lines or cables, and to do and permit to be done, any underground work that may be deemed necessary or proper by the governing body of the City, in, across, along, or under any street, alley, highway, or public place occupied by the Te,J,ephone Company and to change any curb or sidewalk or the grade of any street. In permitting such work to be done, the City shall not be liable to the Telephone Company for any damage so occasioned, nor shall the City ih doing any such work, be liable to the Telephone Company for any such damageil. I. ' , L , 242 SECTION 5 - STREET GRADE~ CHANGE OF BY CITY fJ o Whenever by reason of the changes in the grade of any street or in the location or the manner of constructing any water pipes, sewers or any other underground structure for any purpose whatever, it shall be deemed necessary by the gov- erning body of the City to alter, change, adopt or conform the poles or conduits, or both, of the Telephone Company thereto, such alterations or changes shall be promptly ma~e by the Telephone Company when ordered in writing by the gov- erning body of the City, without claim for reimbursement or damages against the City; provided, however, that the City shall not require the Telephone Company tmremove its poles or conduits entirely from such street, alley, highway or pUblic place, and, if the City shall require the Telephone Company to adopt or conform its poles, conduits, or in any way or manner to alter, relocate or change its property to enable any other corporation or person, except the City, or any utility ovmed by it, to use, or to use with greater con- venience, said street, alley, highway or public place, the Telephone Company shall not be bound to make any such changes until such other corporation or person shall have undertaken, wi th solvent bond, to reimburse the Telephone Company for any loss and expense which will be caused by, or arise out of, such change, alteration or re2ocation of the Telephone Com- ' pany's property; prOVided, however, that the City shall never be liabae for such reimburs'emetltt. SECTION 6 - SERVICE To~~iRST CLASS AND MODERN. The Telephone Company shall at all times furnish telephone service to the City or its inhabitants and to all persons and corporations thereih demanding the same, which shall be first-class and modern in every respect and sufficient to meet all reasonable demands without undue interruption or fluctuations. An exceptions to this condition is automatically in effect when service furnished by the Telephone .Company is interrupted, impaired, or prevented by fires, strikes, riots, or other occurrences beyond the control of the Telephone Com- pany, or by storms, floods, or other casualties, in any of which events the Telephone Company shall do all things, reasonably within its power to do, to restore normal service. The rates charged shall ne~er be higher than those charged in the City of Houston. SECTION 7 - RULES AND REGUL~IONS GOVERNING SERVICE SHALL BE REASONABLE. n The Telephone Company shall furnish telephone service under reasonable rules and regulations (which rul~s and regulations shall be subject to the reasonable supervision and control of the governing body of the City) to any person, fi~ or corporation who shall demand service within the City,. upon the terms herein specified, or as hereafter 'may be specified o [} o o 243 and required by charter provision or ordinance duly passed by the City, and shall make connections therefor on demand, wi thout delay; provided, t,ha t the place where any such persdn, firm, or corporation shall desire such service to be furnished is not more than three hundred (300) feet by way of a street, alley, highway or. other public place from any pole line or conduit of the Telephone Company's system; provided, further, that it shall be the duty of the Telephone Company to,pro- vide and furnish telephone service to any particular part and portion of the City whenever as many as twenty-five persons applying to become subscribers and, residing in anyone vicinity, shall make bona fide demand therefor. As the means of enforc- ing this requirement, the City shall have the right and authority to require the service aforesaid to any portion of the City 'or along any street, alley, highway or public place in the City. SECTION 8 - TEMPORARY REMO VAL 0 F WIRES. 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 removl, raising or lowering of wires shall be paid by the benefited part or parties, and the Telephone Company,m.ay require such payment in advanc e. The Telephone Company shall be given not less than forty-eight hours advance notice to arrange for such temporary wire changes. SECTION 9 - TREE TRIMMING. 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, side- walks and public places of the City, so as to prevent the ,branches of such treeesfrom 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 ,Board of Commissioners or of any City official to whom said duties have been or may be delegated. SECTION 10 - ANNUAL CASH CONSIDERATION TO BE PAID BY THE TELEPHONE COMPANY. As compensation for the rights and privileges herein con- 'ferred, the Telephone Company shall pay to the City each year during the life of this agreement an annual bonus consisting of a sum of money equal to three per cent (3%) of the annual gross receipts received by the Telephone Company from the rendition of local exchange telephone transmission service within the City. Said bonus shall be due and payable on the 15th day of April of each year f0I' ,:' the preceding calendar year, the first payment to become due hereunder on the 15th d~y of April 1939, Such bonus shall be in addition to all, ad valorem taxes and special assessments for municipal improvements. The bonus herein ____~~~__________ . I ] II l'..lln! I.. . , . I b 244 providea for shall be in lieu of any pole charge of in- spection fee and in lieu or any easement charge and in lieu of all charges, in so far as concerns the Telephone Company, set forth and provided in ordinance No. 129, previously adopted by the City; and said Ordinance No. 129 shall have no application or apply to the Telephone Company, but otherwise shall remain in full force and effect. o SECTION 11 - FACILITIES TO BE FURNISHED CITY AS ADDITIONAL C ONSIDERAT ION. In addition to the consideration set forth in Section 10, the Telephone Company shall hold itself ready to furnish, subject to the use of the City, such wire space as may be ' required from time to tim~y the City upon the poles now owned or hereafter erected by the Telephone Company in the City ror the use of the City!s police, fire alarm anQ traffic control signal wires; 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, police and traffic control wire space shall be ,determined on spe- cific applications for space, at the time the applications are received from the City, and will be allotted in' accordance with the considerations for electrical constDuct1on 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 construct~on in the Rules and Regulations of IJ the Bureau of Standards of the Unite4.States Department of Commerce. Also where conduits are laid! or are construed- L. by the Telephone 'Company, said Company shall hold itself ready to furnish sufficient duct ,space not to exceed the capacity of one duct, for use by the City in carrying its police, firm alarm and traffic control signal wires. All such wires, whether on pol:es or in conduits, shall be con- structed, maintained and operated in such manner as not to I interferre with nor create undue hazard in the operation of the telephone system of the Telephone Company. It is further a.greed that the Telephone Compa.ny shall h0t'~be responsible to any part or parties whatsoever for any claims, demands, losses, suits, judgments for damages or injuries to persons or property by reason of the construction, maintenance, in- spection of use of the pOlice, fire alarm and traffic oon- trol s~gnal 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 judgements. SECTION 12 - ATTACHMENTS ON POLES AND S PACE IN mCTS NOT HERE AFFECTED. Nothing in this ordinance contained shall be construed to require or permit any electric light or power wire attach- ments by the City o~ for the City, nor to require or permit any electric light or.power wires to be placed in any duct used by the City in the Telephone Company's conduits. ,If light or power attachments are desired by the City or for the City, or if the City desires to place electric light or o u o o 245 power wires in any duct used by the City, then a further separate non-contingent agreement Shall be a prerequisite to such attachments or such use of any duct used cby the City. Nothing herein contained shall oblig~te or restrict the .Tele- phone Company in exercising its right voluntarily to enter into pole attachm~m~, pole usage, joint ownership, and other wire space and facilities agreements with light and power companies and with other wire using companies which may be privileged to operate within the City. SECTION 13 - PROTECTION OF CITY FroM LIABILITY. the Telephone Company shall protect and save the City whole and harmless from any and all liability and claims for injury or damage to persons or property occasioned by, or arising out of the construction, .reconstruction, main- tenance, operation, or repair of said telephone system or by the conduct of the Telephone CompanY's business in the City, and from any judgments'with reference thereto. / ' SEmTION 14 - NO WAIVER BY CITY OF RIGHTS. POWERS. PRIVILEGES OR REI'I'IEDIES. The City, by this ordinance, does not waive any right, power, privilege or remedy now given to it by law or that may be hereafter provided or that may be provided .by any charter, or amendment thereo,f, of the City. SECTION 15 - BOOKS. 'RECORDS AND ACcroUNTS' OF TELEPHONE COMPANY TO BE OPEN TO CITY - ANNUAL REPORT TO BE MADE BY COMPANY. The records, books and accounts of the Telephone Company shall at all reasonable times be open to inspection, examina- tion adn verification by the City, or by its duly authorized representative, for any purpose relating to the carrying out of this agreement or the exercise by the City of its right and power of regulation of the Telephone Company's nates and service. Annually, on the 15th day of April, the Telepho3;le ' Company shall make a report to the City showing the resullits of its ,operation from r,endering local exchange telephone service in the City. This report shall conform to and be in accordance with the System of Accounts prescribed for telephone companies by the Federal Communications ComIDissionji effective January 1, 1936, and the amendments thereto, SECTION 16 - RATES Without setting out any schedule of rates that the Telephone Company shall be authorized to charge for the various services that it may render to the public, and without prejudice to the right of the City to question whether or not the rates as are now in effect are reasonable or not, thegoverning body hereby ex- pressly reserves the right, power and authority to fully regulate and fix the rates and charges for the telephone company to their subscribers, fully reserving to itself all the rights, powers, '" .l.I ; "--,1 ;"'j:l" '""" 246 privileges and immunities which the Constitution, the Laws of the state, and any charter hereafter adopted confer upon the City, together1'w'i'th such amendments or either, or all, of the above mentioned sources of power, to deal with t~e question of rates. The rates charged shall never be in excess of those charged in the City of Houston. SECTION 17 - PERIOD OF TDIE OF THI~ 0 ROTNANCl"R -TiRJllfTNArrTON.. u This agreement shall be in force and effect for a full term and period of twenty G20) years from and after its effective date hereinafter provided. SECTION 18 - NO EXCLUSIVE PRIVIL"RG~S ClONF~RRRD RV rrHT~ ORnTNAN~"R Nothing herein contained shall be construed as giving to the Telephone Company any exclusive privilege. SECTION 19 - SUCCESSORS AND ASSIGNS ~ The rights, powers, limitations, duties and restrictions herein provided for shall inure to and be Qinding upon the parties hereto and upon their respective successors and assigns. SECTION 20 - ~LInITY PROVISION If any section, sentence, clause or phrase of this orddnance is for any reason held to be illegal, ultra vires or uncon- stitutional, such invalidity shall not affect the validity of the remaining portions of this ordinance. IJ SECTION 21_- AOCEPTANCE OF AGRRro~ENTa The Telephone Company shall have thirty (30) 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 passage and approval by the Mayor and shall effectuate and make bind- ing the agreement provided by the terms hereo . Approved thi s,f7f.day of. ' . A.D ...... ATTEST: ~A/7~~ T SECRETARY tt ~ % life v I II,J I ~ j-t tot! -" 1~ ,/ f) ''\t I" lei ".,e JR-t' f' " (i~ n