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HomeMy WebLinkAbout1992-1974 - Ordinance - 08/27/1992ORDINANCE NO. 1974 AN ORDINANCE GRANTING THE RIGHT, PRIVILEGE AND FRANCHISE TO SCOTT & WHITE ~EMORIAL HOSPITAL, GRANTEE, AND ITS SUCCESSORS AND ASSIGNS, TO OWN, MAINTAIN AND OPERATE UNDER THE FOLLOWING PUBLIC STREET~ GLENHAVEN DRIVE AND WITHIN THE BOUNDARIES LEGALLY DESCRIBED IN EXHIBIT "A" OF THE CITY OF COLLEGE STATION, TEXAS, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS, PNEUMATIC TUBE LINES AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF TELEPHONE AND COMPUTER CABLES AND OTHER COMMUNICATION SERVICES AS ~ CURP~NTLY EXISTING~ PROVIDING FOR CONSIDEMATION~ FOR PERIOD OF GRANT~ FOR ASSIGNM~NT~ FOR METHOD OF ACCEPTANCE~ FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY. WHEREAS, Scott & White Memorial Hospital desires to receive a franchise from the City of College Station, Texas, for the purpose of installing and operating telephone and computer cables as well as pneumatic tube lines under a street in the City limits of College Station, Texas~ and WHEREAS, the College Station City Council desires to enter into a franchise agreement~ BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: SECTION 1. GRANT OF RIGHT. PRIVILEGE AND FRANCHISE FOR MAINTENANCE OF TELEPHONE EOUIPHEHT AND SERVICE That the right, privilege and franchise be, and the same is hereby, granted to Scott & White Memorial Hospital, hereinafter referred to as "Scott & White", and its successors or assigns, subject to the terms and conditions hereinafter set forth, to own, maintain and operate under the following public street: Glenhsven Drive and within the boundaries legally described in Exhibit "A" attached to and incorporated herein, of the City of College Station, Texas, such posts, poles, wires, cables, conduits, pneumatic tube lines and other appliances, structures and fixtures necessary or convenient for rendition of telephone and computer, and other communication services as are currently existing. SECTION 2. SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUIT That all poles placed by Scott & White, if any, 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 not interfere with the ordinary travel of the street and sidewalk. That all underground cables Ordinance No. 1974 Page 2 ~ ,1,~,d ~n &nv drainaae culvert or interfere with the shall not -. ~ ......... . ....... nd flow of water to any gutter or drain. The relocation = rerouting of all poles, stubs, guys, anchors, conduits and cables by Scott & White shall be subject to the requ. irements o~ th~ National Electrical Safety Code and.the regulation, contro~ .an& direction of the City ~ouncil or designated official of th~ City. The City Council or ~ts delegate shall have the authority to require the relocation of any pole~, stubs, .gu~s.,. anc~o~, conduits or cables ~n the event of a d~scoverea viola=ion o= =ne National Electric Safe~y Code or a threat to the health, ~afety or welfare of the residents of the C~ty of College Station as determined by the city. Such relocation shall be at the expense of Scott a White. SECTION 3. STREETS TO BE RESTORED TO GOOD CONDITION . At.the request ~f the City, Scott & White shall locate its l~nes w~thin forty-eight (48) hours. In the event that Scott a ~c4te fails to locate its lines within forty-eight (4~) hours, S ~tt & Whit? waives any claims.of ~amages against the City. Scott & White shall lay, maintain, construct, operate, and ~eplace its u~derground cables ~nd other, equipment so as to ~nterfere as l~ttle as possible w~th traffic. The placement of all cables and other appurtenant equipment shall be subject to the approval of the City Manager his designee prior to construction. Reproducible cop~es °off all maps showing the location of all cables and other appurtenant equipment shall be furnished to the City Manager or his designee. When Scott & White shall make or cause to be made excavations or shall place obstructions in any street, alley, highway or public place, the public shall be protected b~y barriers and lights placed, erected and maintained by Scott White in compliance with Traffic Controls for Streets and Highway Construction and Maintenance Operations of the Texas Manual of Uniform Traffic Control Dev--. When it is determined that any street(s) within city must be disturbed by Scott & White, such street(s) shall be bored and not cut. Cutting a street shall only be allowed if boring is not possible and if a City permit is obtained. That the surface of any street or public utility easement within the City disturbed by Scott & White in renewing or main- taining its telephone and underground cable system shall be restored within a reasonable time after the completion 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 (1) year from the date the surface of said street or public utility easement is broken for such construction or maintenance work. City may restore or maintain same, after giving Scott & White ten (10) days written notice. Scott a White shall, within ten (10) days after receiving a bill, which may Ordinance No. 1974 Page 3 include a penalty of twenty-five percent (25%) for such cost, pay the actual cost plus the penalty for such service. All construction and other work done by Scott & White in the operation of its business, under and by virtue of this Ordinance, shall be in conformance with the ordinances, rules and regulations now in force and that may hereafter be adopted by City, relating to the use of streets, alleys, highways, easements, public places, public thoroughfares, and grounds of City. No such street or public utility easement shall be encumbered for a longer period than shall be necessary to execute the work. SECTION 4. RELOCATION OF SCOTT & WHITE EOUIPMENT If city, within and without the city limits, in constructing its sewers, streets, utilities or other public works should require any underground cables or other Scott & White equipment to be shifted or relocated, such cables or other equipment shall be shifted or relocated by Scott & White at its own expense as and when required by City. SECTION 5. ANNUAL CASH CONSIDERATION TO BE PAID BY THE SCOTT Scott & White agrees to pay as consideration for the granting of this franchise a fee of $550.00. Scott & White shall pay on or before each and every anniversary date of this franchise a fee adopted by City Council resolution of $1.00 for each and every telephone and computer connection in the Scott & White system, said fee to be for the expenses of City involved in administering, maintaining records, supervising inspections, and regulating the use and maintenance of Scott & White's facilities located within the Jurisdiction of City. Scott a White shall pay on or before each and every anniversary date of this franchise a fair rental value adopted by City Council resolution and based upon the number of feet of cable installed and in use in any street, alley, easement, or other public property owned or controlled by City, but which shall include projects under construction. SECTION 6. PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYMENTS EXCEPT STREET CUT FEES AND 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 (excluding street cut fee), street Ordinance No. 1974 Page 4 or alley rental or any other character of charge for the use and occupancy of the streets and public utility easements 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 Scott & Whitens obligations, if any, to easement or franchise taxes. SECTION 7. NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS The rights, privileges, and franchises granted by this ordinance are not to be considered exclusive, including the use of this franchise agreement, and City hereby expressly reserves the right to grant, at any time, like privileges, rights, and franchises as it may see fit to any other person or corporation on the same terms and conditions that this franchise is granted. Nor shall Scott & White, at any time, sell or resell telephone or cable services under this franchise agreement. Scott & White further agrees that it shall be subject to the multichannel service provider ordinance and seek a franchise thereunder if it decides to sell its services to third parties. SECTION 8. Scott & White shall protect and hold City harmless against all claims for damages to any person or property by reason of the construction and maintenance of Scott & White's system facilities or in any way growing out of the granting of th~s franchise, either directly or indirectly, or by reason of any act, negligence, or nonfeasance of the contractors, agents or employees of Scott & White; Scott & White shall refund to city all sums which City may have been required to pay by a decision of a court of competent Jurisdiction in accordance with the provisions of this section; and Scott & White shall indemnify and hold City harmless from and on account of all damages, costs, expenses, and causes of action that may accrue to or be brought by any person or corporation at any time hereafter by reason of the exercise of the rights and privileges of Scott & White, its contractors, agents or employees, hereby granted or the abuse thereof. Upon the commencement of any suit or proceeding at law against City relating to or covering any matter wherein Scott & White has agreed, as stipulated above, to indemnify and save Ordinance No. 1974 Page harmless City, City shall tender the defense of said suit or proceeding at law to Scott & White~ and Scott & White shall thereupon, at its own cost and expense, defend, compromise, or settle the same. Any settlement involving a claim or Cause of action against City shall release City from any and all liability as a result of said claim or cause of action. SECTION 9. City reserves to itself exclusively the power to regulate Scott & White to the full extent that such power is provided by law. During business hours, Scott & White shall be open to City Council or its designated official for the inspection of con- tracts, books of account, and cost operating records pertaining to its operations covered by this franchise. SECTION 10. SUCCESSORS AND ASSIGNS That the rights, powers, limitations, duties and restric- tions 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 from the effective date. SECTION 12. 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. Ail ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed. SECTION 13. VE~E The venue of all actions at law and in equity, concerning any matter or controversy growing out of or incident to any exercise or abuse of the privileges and powers granted hereunder, or any default of the duties or obligations imposed hereunder, or any controversy concerning rates, in which City is a party, shall Ordinance No. 1974 Page 6 be in the State court of competent Jurisdiction of Brazoe County, Texas; and Scott & White, by the exercise of the privileges and the enjoyment of the benefits of this franchise, expressly agrees in all such matters to submit to the jurisdiction of the courts of the State of Texas, and hereby expressly waives whatever rights it may have to be sued or proceeded against in any other tribunal; provided, however, that if the laws of the State of Texas require such matters to be first submitted to a regulatory body of the State of Texas, same shall be done before recourse may be had to the State courts; and provided further that this section is subject to the jurisdiction of other cour~s as reguired by law. SECTION 14. ACCEPTANCE OF AGREEMENT That Scott & White shall have sixty (60) days from and after the final passage and approval of this Ordinance in accordance with Charter Section 120 to file its written acceptance thereof with the City Secretary, and upon each acceptance being filed, this Ordinance shall take effect and be in force from and after the date of its acceptance, and shall effectuate and~ake binding the agreement provided by the terms hereof. SECTION 15. It is hereby found and determined that the meetings at which this ordinance was passed were open to the public, as required by Article 62§2~17, V.A.T.C.S., and that advance public notice of time, place, and purpose of said meetings was given. APPROVED this 27th day of August, 1992. city Secretary First Consideration & Approval= Second Consideration & Approval= Third Consideration & Approval= 7/09/92 8/13/92 8/27/92 EXHIBIT Field Notes for a FRANCHISE EASEMENT to SCOTT & WHITE HOSPITAL & CLINIC, being out and a part of the RICHARD CARTER LEAGUE, Abstract #8, Brazos County, Texas, and being out of and a part of Glenhaven Drive, a Seventy Foot (70') Dedicated Public Street in the City of College Station, Texas, with this Franchise Easement being more fully described as follows: BEGINNING at an iron rod set in the East Line of the Right-of-Way of the aforementioned Glenhaven Drive, for the Southeast corner of this Franchise Easement, which bears N 39 deg. 53' 21" W, 90.93 feet, N 38 deg. 09~ 51" W, 152.07 feet, and N 35 deg. 10' 49" W, 149.81 feet, from the Northwest corner of Lot 1, Glenhaven Estates, Phase IV, according to the plat of record in Volume 746, Page 41, in the Deed Records, Brazos County, Texas. THENCE: S 58 deg. 24' 03" W, 70.00 feet, crossing Glenhaven Drive, to an iron rod set in the West Right-of-Way Line of Glenhaven Drive, for the Southwest corner of this Franchise Easement. THENCE: With the West line of this Franchise Easement, and with the West line of the Right-of-Way of Glenhaven Drive being a curve to the Right a distance of 30.00 feet, to an iron rod set therein, for the Northwest corner of this Franchise Easement, said curve having a radius of 1508.96 feet, and a chord which bears N 31 deg. 35t 57" W, 30.00 feet. THENCE: N 58 deg. 24' 03" E, 70.00 feet, with the North line of this Franchise Easement, to an iron rod set in the East line of the Right-of-Way of the Glenhaven Drive for the Northeast corner of this Franchise Easement. THENCE: With the East line of this Franchise Easement, and with the East line of the Right-of-Way of the Glenhaven Drive being a curve to the left a distance of 30.00 feet, to the place of beginning, said curve having a radius of 1438.96 feet, and a chord which bears S 31 deg. 35' 57" E, 30.00 feet, with this easement containing 2,100 square-feet of land.