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.ORDINANCE NO:
DRr4FT
AN ORDINANCE AMENDING ORDINANCE 1991. GRANTING THE NC?N-EXCLUSIVE
RIGHT, PR1VtLEGE, AND FRANCHISE TO TAC REALTY,: INC., GRANTEE, AND fTS
SUCCESSORS AND ASSIGNS, TO OWN,. MAWTAIN AND :OPERATE SPRINKLER
.SYSTEMS, SUCH P1F"ES-AND QTHER APPLIANCES, STRUCTURES AND FIXTURES
NECESSARY OR CONVENIENT FOR RENDITiQN OF IRRIGATION .SERVICES;. TO
ERECT AND MAINTAIN "MONUMENT SIGNAGE AND LIGHTING THEREFOR; TO
PROVIDE FOR' ADMINISTRATNE REVIEW OF INSTALLATION OF FACILITIES
AUTHORIZED PURSUANT TO SAlD FRANCHISE; PROVIDING FAR CONSIDERA-
TION; FOR PER10D OF GRANT; FOR ASSIGNMENT TO AMBERLAKE HOME-
OWNER'S ASSOCIATION; 'FOR METHaD .QF ACCEPTANCE; FOR REPEAL OF
CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY.
WHEREAS, the City of College Station, Texas, is a Home Rule Municipality, incorpo-
rated under the laws of Texas and as such is vested with "the exclusive control and
power over the streets, alleys, ..public grounds and highways of the city and to grant
franchises for the use thereof as authorised b Vernon's art cle 01s;:and
m qke ol-+~ou~ntrs~ auv~oA Inc. ",rlgl~e')
WHEREAS, ., i e current gran ee o anon-exc usive ran ise in the
City of College Station, Texas ("CITY'), under Qrdinance No. 1991 granting the right,
privilege, and franchise to T-~-F~ee+t~-k3e., o .own, maintain, and operate within
Woodcreek Subdivision. in t developed area ipes and other structures for irrigation
on December 1 !3, 1992; .and ~~,.jQke
WHEREAS, ee+~, lee. has requested the City's approval of an amendment of its Tp~
current franchise to include t e area contained in the plat attached hereto as Exhibit A ~~
and incorporated herein by reference; and -~-"` war~~c~gggc
WHEREAS, this amendment expands the area of the current frarichise :and grants
franchisee the additional right to install subdivision signage and: lighting therefor; and
WHEREAS, on the day of September, 1995, the Cify 'Council set a public hearing
for Thursday, , at 7:00 p.m:, to receive comments concerning the grant-
ing of ` the franchise amendment. The notice of such hearing was published
such date being' not later that'the seventh day before the date of the
public hearing; and
WHEREAS, the City at such public hearing invited any interested person or his attor-
ney to appear and contend for or against the granting of the .proposed franchise
amendment; and'..
WHEREAS, at such hearing recommendations were given as to what health require-
ments should be followed and maintained' for the franchise, what .procedures should be
followed in case of a health risk, what construction procedures should be followed, and
how many years such :franchise should last;
NOW, THEREFORE,. BE IT ORDAINED BY THE CITY COUNCIL OF Tt-FE ;CITY OF
COLLEGE STATION, TEXAS:.
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SECTION 9
GRANT OF RIGHT, PRIVILEGE ANO FRANCHISE
FOR INSTALLATION ANd MAINTENANCE QF 1RRlGATION
LINES. SUBDIVISION SIGNAGE~ LANDSCAPING AND LIGHTING
This franchise amonds ~cdinance No. 1991 and grants franchisee the non-
exclusive'right to install, own, maintain and.:: operate the amenities detailed
herein within specified public ways depicted in Exhibit A in the Woodcreek
:.Subdivision. The ..facilities and improvements constituting the approved ameni-
ties are as follows: irrigation fines far sprinkler systems to water aandscaping,
subdivision signage and lighting therefor for the use and .benefit of the Wood-
creek Subdivision.
Such facilities shall be used only to benefit the Woodcreek Subdivision and its
..common. areas aryd shall not be used for any other .purpose.. The approved
facilities enumerated herein may cross public rights of way contained in Exhibit
A at designated areas`detailed in a :Utility and facilities Layout Plan pursuant to
the terms and conditions established in Section. 4 of this franchise.
1.1
1.2
SECTION 2
DEFINITIONS
2.
1 For the_purpose of his franchise, the following erms, phrases, words .shall .have
the following meaning:
2.9.1 "City" means the City of College Station, Texas; Brazos County, `the City
Council and.: officials that may be designated by the City: Council to admm-
ister or enforce'thisfranchise
2.1.2 "Franchisee" means Amb~rlake
Homeowners' Associatio or 'duly approved assignee.
Inc,
2.1.3 "FranchiserArea"-means the pu (c ways depicted in the plat attached
fiereto as Exhibit A and incorporated .herein by reference.
2.1.4 "Public Way" means the surface and subsurface of any public. street,. or
easement .depicted in Exhibit A currently or hereafter' dedic to the
CitY• ' ~rec}- hotmts 4nd f a'
:2.1.5 "Signage" :means signs of wood, iron, ma onry, earth. or other: materials
denoting the entrance to and displaying the name of the Woodcreek
Subdivision. However, signs shall not contain any commerci I advertising
or other signage. u l~crAblt:
2.1.6 "Improvements or facilities" means the establishment or main enance, or
both, of trees and decorative landscaping including landscape lighting,
watering systems,. and. other appurtenances for the maintenance thereof,
and signage.
2.1.7 "Utility. and `>Facilities Layout Plan" means a scaled engineering plan
including but not limited to all public ways which specifies street names
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and depicts existing and proposed facility and improvement :locations.
The plan shah detail dimensions and contents of signage;-scientific
names,: size and location of all- plantings for .landscaping; sizing of pipes
and conduits; sprinkler head locations; type of sprinkler system .proposed;
type, number, .wattage, and voltage of lighting,. as well as location and tie-
on .locations of utilities to city system.
2.1.8 "Development Coordinator" means the .official in the City.. oz College
Station _Planning Department .designated to administer .any submissions
forthe installation, repair. relocation or removal of #acilities and improve-
ments or any proposed alteration. of the Utility and facilities :Layout Plan
under this franchise.
2.1.9 "Development Services staff'.. means those .staff who are authorized to
review and approve any submitted Utility acid Facilities Layout Plan.
SECTION 3
FRANCHISE TERRITORY
3.1 The urea covered by this franchise is the area of the Woodcreek .Subdivision
depicted in Exhibi# A.
SECTION 4
SUBMISSION, REVIEW, APPROVAL AND
PERMITTING OF IMPROVEMENTS AND FACILITIES.
4.1 The Development-Services Coordinator is hereby appointed as the official to
administer the submission and review process for the Utility and Facilities Layout
Plan.
4.2 The construction, reconstruction, installation,. maintenance, operation, and relo-
cation or removal of Franchisee's improvements .and facili#ies shall meefi afl
applicable Codes, and :Ordinances of the City of College_ Station, including the
Utility and Facilities Layout. Plan requirements as defined m Section 2 herein.
4,3 Prior to the commencement of any installation, .construction,. reconstruction,
removal or relocation of any improvements or facilities, franchisee shall:
{a) subrni# a :facilities plan to the Development Coordinator
(b) obtain all required permits
4.3.1 Upon submission of facilities. plan by franchisee, City shall:
(a) review said facilities plan
(b) approve or deny said plan within days.
4.3.2. if city denies the: plan, it shsll notify the franchisee of the basis for the
denial in writing.
4.3.3 Franchise' may resubmit the, plan o City for. approval after the. plan has
been'changed to reflect the corrections required by City.
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4.3.4 City may not unreasonably delay or withhold its plan approval:
4.4 Upon completion. of the work, City may inspect the franchisee's work to assure
that the work complies'with the Utility and Facilities ~ayvut Plan and ail appli-
cable taws, codes, regulations and ordinances.
SECTION 5
GENERAL CONDITIONS
5.1 AU facilities and improvements installed. by Franchisee shall not interfere with
other utilities or city facilities and structures.
5.2 Franchisee's facilities and improvements will not create any hazardous condition
or obstruction of vehicular or pedestrian travel upon public streets. and side-
. walks.
5.3 Alf facilities and improvements `shall not intrude upon any portion of the sidewalk
which is needed for pedestrian 'use or intrude into any portion of the fioadway
and will not `intertere with the ordinary travel of streets and sidewalks.
5.4 The City Cauncii or its designated G.ity official shall have the authority to require
..the reloca#ion of any :improvements or facilities or abate or cause to be abated
any unlawful obstruction or use of any .public way for: (1) a violation. of the
College Station Code of Ordinances' or nationally recognized code; (2) a viola-
tion of any federal orstate law, (3} a violation'of this franchise agreement, or (4)
a threat to the health, safety or welfare of thee.: residents of'the City_;of College
Statiofi as determined by the City.
SECTION 6
LOCATIOIU OF SINES
6.1 At the request ofi City, Franchisee shall locate its pipeline(s) within forEy~eight
(48) hours. !n the event that .Franchisee fails to locate its p~peiines within forty-
eight (48) hours, Franchisee waives any claim of damages :against -City.
Franchisee ahall notify City .and other utility companies at least forty~ight (48)
hours prior to working in any public'rights-of-way or utility easements.
62 The location of underground electrical lines near such pipelines shaA be marked,
paid for, and maintained by the City; .provided however. that Franchisee shall
provide City hours notice in advance of the time that Franchisee requires
location of electrical-lines.
SECTION 7
STREETS AND APPURTENANCES
TO BE RESTORED TO FOOD CONDITION
7.1 -The surface of any streets}, sidewalk(s), or public utility easement(s) and appur-
tenances thereof within the City disturbed by Franchisee in installing, repairing,
or maintaining it's facilities or improvements shall, at its .own. expense, restore
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the property to as .good a conditions as existed before the work was undertaken,
unless otherwise directed by the City.
7.2 Franchisee shall warrant he repair or restoration for one .year from the date the
surface of said street or public utility easement is broken for such .construction or
maintenance work, after which time maintenance responsibility shat( .rest with
city.
7.3 During ::construction by Franchisee or its contractor, nQ street or public utility
easement shall be' encumbered for a period longer than shall be necessary to
execute the work.
7.4 When it -is determined that any. street(s) within thee: City must be dis#urbed by
Franchisee to irtstail, -relocate, repair or maintain it's facilities or improvements,
such street(s) shall be bored and not cut. Cutting a-street shall only be allowed
if boring is not possible .and only upon prior issuance by.City of a valid permit.
SECTION .8
REMOVAL OR' RELOCATION
OF FACILITIES ~R IMPR )VEMENTS
8.1 'The maintenance and repair of Franchisee's-facilities and improvements is the
sole t'esponsibility of Franchisee.. Franchisee shall, at its own expense, repair.
-any damage done o its: facilities and improvements resulting `from the Gty
andlor .any other.franchised utility. infrastructure extended in the future along the
public ways within the franchise .area
8.2 The relocation of improvements or facilities shall be at Franchisee's expense.
The City may remove all or any part of any facility or shut ofF utilities or abate
use of said facilities without liability or cost therefor..m the event: of any lawful
need.
8.3 City may require Franchisee to remove, relocate, change, or alter its improve-
ments if is determined that removal, relocation, change or alteration is reason-
ably necessary for-the construction, repair, maint®nance, improvement or .use of
.the public ways or for the operations of the City.
SECTf N 9
COMPLIANCE WITH APPLICABLE'LAWS'
9.1 The location, relocation, `repair, maintenance and operation of all facilities and
improvements by Franchisee shall be subject to and constructed in accordance
:with all National Codes as adopted. by he City of College: Station and shall
comply wi#h all federal, state and local laws.
SECTION 1 Q
.PREPARATION. FEE `AND ANNUAL
CASH CONSIDERATION TO BE PAID.
10.1 Franchisee agrees to pay as .consideration €or the granting of this franchise
amendment aone-time fee of Five Hundred Dollars ($500.:00).
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7 0v2 To compensate City forthe administration. of this. Agreement, Franchisee agrees
to pay to City annually during the remaining term of this Agreement a sum of
money equal to Fifty Dollars (.:$50.00). Said first payment hereunder. shall be
.due on January 1 each year.
SECTION 91
PAYMENT OF CASN CONSIDERATION '
T4 BE !N LIEU OF ANY OTHER PAYMENTS EXCEPT
USUAL GENERAL OR SPECIAL AD VALt~REM TAXES
11.1 City.. agrees that the consideration set forth in the Section 10 hereof shat! be paid
and received- in-lieu of any tax,: license, charge, fee, street or alley rental or any
other character of `.charge for the use and occupancy of the streets and public
utility easernen#s of City; in lieu of any pole tax or other inspection fee tax; in lieu
of any easement or franchisetax, whether levied as ad valorem,. special or other
character of 'tax; -and in lieu of :any imposition othee' than the usual. general or
.special ad valorem taxes now or hereafter levied. Should 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, rental,. and easement or franchise
taxes aforesaid, #hen City agrees'that it wilt apply.so much of said payment as
may be necessary to the satisfaction of Franchisee's obligations, if any, to
easement or franchise taxes.
SECTION 12
N~ EXCWSIVE PRIVILEGES
CONFERRED BY THIS ORDINANCE.
12.1 Nothing herein contained shall be construed as granting to Franchisee any
exclusive. privileges to use the public ways specified herein.
SECTION 13
INDEMNIFICATION AND RELEASE
13.1 The Franchisee agrees to and shall indemnifiy and hold harmless City, fits
'officers, agents and employees, from and against any and all claims,
losses,` damages, causes of action, .suits, and liability. of every kind: includ-
ing all expenses of litigation., court cos#s, artd attorney's fees, for injury to
or death of any person, or for damage to any property, or for breach of
.contract, arising :out of or In connection with the work done by the Franchi-
see, its contractors, subcontractors,) agents, or .:assignees, ..under this
Agreement, regardless of whether such.' injuries, death, damages or breach
are caused in :whole or in part by the negligence of City.
13.2 The City by his agreement does not give consent to litigation and the City
hereby expressly revokes any consent to litigation that it may have granted
by the terms of this Agreement, charter or applicable ..state law. The
Franchisee assumes full responsibiliity for the work to be performed
hereunder, and releases, relinquishes and discharges the `City, its officers,
agents and employees, from' all claims, demands, and causes of action of
every kind and character Including the cos# of defense hereof, for any
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injury to, including but not limited #o death of, any pecsvn (whether they be
third persons, the Franchisee, or employees of either of the parties hereto)
and any loss of or damage to property {whether the same be that. of 'either
of the parties hereto or of third parties) caused by or alleged to be caused
by, arising out of, or in connection with the Franchisee's work to be
perFormed hereunder whether or not-said claims,. demands and causes of
action; in whole or in part are covered by insurance.:
SECTION 14
REGULATION.
14.1 The Gity reserves to itself exclusively the power to regulate Franchisee to the full
extent such power is conferred by law.
14.2 During business hours,. Franchisee shall be open to :City Council or its desig-
nated City; official: for .the inspection of contracts, books of account, and .cost
operating recordspertaining to sts operations covered by this franchise.
SECTION 15
SUCCESSORS .AFFILIATES AND ASSIGNS.
15.1 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, affiliates, and assigns, Further, tha# the City Council of the City of
College Station 'authori2es the assignment of the franchise to Amberlake Flome-
owners' Association, the non-profit corporation which administers the: applicabie
portion. of the Woodcreek project.
SECTION 16
PARTIAL INVALIDITY AND REPEAL PROVISIONS.
16.1 That if any section, sentence, clause, or phrase of this Ordinance is for any
reason held to be illegal, ultra vices, or unconstitutiortial, 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 17
INSURANCE. ~ 300 pp0
17.1 Franchisee shall acquire and maintain General Lia ility ...Insurance anc9 .Auto
Liability Insurance both in the minimum amount of forthe term of this
franchise, and Franchisee. shall name the City`on both insurance. policies as an
additional insured party.
'17.2 Franchisee shall .give at .least fifteen (15) days written.. notice to the. City before
either insurance policy is changed, altered, or terminated in any way...
17.3 Franchisee. shall submit proof of insurance to City. upon execution of this fran-
chise amendment and annual:{y during the term of this agreement.
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SECTION 18
TERM OF FRANCHISE AND TERMINATION.
18.1 That the term of this franchise shall be for ten (10) years from the date of its
initial grant. in Ordinance No. 1.991 and shall expire on december 31, 20C2.
Franchisee shall give City written notice of any. request. for renewal of its fran-
chise six (6) months prior to expiration of ..the franchise granted by this ordi-
nance. Franchisee may terminate this franchise- prior to the expiration hereofi by
giving. City written notice of such :early. termination six (6) months prior to the
effective date of such early termination.
SECTION 19
ACCEPTANCE OF AGREEMENT
19.1 Franchisee ..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, the date of its acceptance, and shall effectuate. and make binding the
agreement provided by the terms hereof.
PASSED, ADOPTED, and APPROVED this the day of , 1995.
APPROVED:
ATTEST:
Connie Hooks, ity Secretary
Mayor Larry. Ringer
First Consideration & Approval:
Second Consideration & Approval:
Third Consideration & Approval:
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