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HomeMy WebLinkAbout1995-2153 - Ordinance - 11/09/1995ORDINANCE NO. 2153 AN ORDINANCE AMENDING ORDINANCE 1991 GRANTING THE NON-EXCLUSIVE RIGHT, PRIVILEGE, AND FRANCHISE TO TAC REALTY, INC., GRANTEE, AND ITS SUCCESSORS AND ASSIGNS, AMBERLAKE HOMEOWNERS ASSOCIATION, INC., TO OWN, MAINTAIN AND OPERATE SPRINKLER SYSTEMS, SUCH PIPES AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVEN- lENT FOR RENDITION OF IRRIGATION SERVICES; TO ERECT AND MAINTAIN MONUMENT SIGNAGE AND LIGHTING THEREFOR; TO PROVIDE FOR ADMINIS- TRATIVE REVIEW OF INSTALLATION OF FACILITIES AUTHORIZED PURSUANT TO SAID FRANCHISE; PROVIDING FOR CONSIDERATION; FOR PERIOD OF GRANT; FOR ASSIGNMENT TO AMBERLAKE HOMEOWNER'S ASSOCIATION; FOR METHOD OF 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 authorized by Vernon's Ann. Civ. St., article 1016; and WHEREAS, Amberlake Homeowners' Association, Inc. CAMBERLAKE") is the current grantee of a non-exclusive franchise in the City of College Station, Texas ("CITY'), under Ordinance No. 1991 granting the right, privilege, and franchise to AMBERLAKE to own, maintain, and operate within Woodcreek Subdivision in the develope{:l area pipes and other structures for irrigation on December 10, 1992; and WHEREAS, AMBERLAKE has requested the City's approval of an amendment of its current franchise to include the area contained in the plat attached hereto as Exhibit A and incorporated herein by reference; and WHEREAS, this amendment expands the area of the current franchise and grants franchisee the additional right to install subdivision signage and lighting therefor; and WHEREAS, on the ~ day of September, 1995, the City Council set a pubhc 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~.ClTY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS' I.t/c-/$el,t93 'tacrealt Ordinance No. 2153 Page 2 1.1 1.2 2.1 SECTION I GRANT OF RIGHT, PRIVILEGE AND FRANCHISE FOR INSTALLATION AND MAINTENANCE OF IRRIGATION LINES, SUBDIVISION SIGNAGE, LANDSCAPING AND LIGHTING This franchise amends Ordinance 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 lines for sprinkler systems to water landscaping, 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 and 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. SECTION 2 DEFINITIONS For the purpose of this franchise, the following terms, phrases, words shall have the following meaning: 2.1.1 "City" means the City of College Station, Texas; Brazos County, the City Council and officials that may be designated by the City Council to admin- ister or enforce this franchise. 2.1.2 "Franchisee" means AMBERLAKE HOMEOWNERS' ASSOCIATION, INC., or its duly approved assignee. 2.1.3 "Franchise Area" means the public ways depicted in the plat attached hereto 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 dedicated to the City. 2.1.5 "Signage" means signs of wood, iron, masonry, earth or other materials denoting the entrance to and displaying street names and/or the name of the applicable Woodcreek Subdivision. However, signs shall not contain any commercial advedimng or other signage. J~,C~s~'l~t9.~ tacrealt 2 Ordinance No 2153 Page 3 3.1 4.1 4.2 43 2.1.6 "Improvements or facilities" means the establishment or maintenance, 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 and depicts existing and proposed facility and improvement locations. The plan shall 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 of College Station Planning Department designated to administer any submissions for the installation, repair, relocation or removal of facilities 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 and Facilities Layout Plan.. SECTION 3 FRANCHISE TERRITORY The area covered by this franchise is the area of the Woodcreek Subdivision depicted in Exhibit A. SECTION 4 SUBMISSION, REVIEW, APPROVAL AND PERMI'I-I'ING OF IMPROVEMENTS AND FACILITIES. The Development Services Coordinator is hereby appointed as the official to administer the submission and review process for the Utility and Facilities Layout Plan. The construction, reconstruction, installation, maintenance, operation, and relo- cation or removal of Franchisee's improvements and facilities shall meet all applicable Codes, and Ordinances of the City of College Station, including the Utility and Facilities Layout Plan requirements as defined in Section 2 herein. Prior to the commencement of any installation, construction, reconstruction, removal or relocation of any improvements or facilities, franchisee shall: (a) submit a facilities plan to the Development Coordinator (b) obtain all required permits I~ c/set 1~5, tacrealt O,~ ,',~ 9.~ -3- Ordinance No. 2153 Page 4 4.4 51 5.2 5.3 5.4 6.1 4 3.1 Upon submission of facilities plan by franchisee, City shall: 4.3.2. (a) review said facilities plan (b) approve or deny said plan within days. If city denies the plan, it shall notify the franchisee of the basis for the denial in writing. 4.3.3 Franchise may resubmit the plan to City for approval after the plan has been changed to reflect the corrections required by City. 4.3.4 City may not unreasonably delay or withhold its plan approval. Upon completion of the work, City may inspect the franchisee's work to assure that the work complies with the Utility and Facilities Layout Plan and all appli- cable laws, codes, regulations and ordinances. SECTION 5 GENERAL CONDITIONS All facilities and improvements installed by Franchisee shall not interfere with other utilities or city facilities and structures. Franchisee's facilities and improvements will not create any hazardous condition or obstruction of vehicular or pedestrian travel upon public streets and side- walks. All 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 roadway and will not interfere with the ordinary travel of streets and sidewalks. The City Council or its designated City official shall have the authority to require the relocation 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 or state law, (3) a violation of this franchise agreement, or (4) a threat to the health, safety or welfare of the residents of the City of College Station as determined by the City. SECTION 6 LOCATION OF LINES At the request of City, Franchisee shall locate its pipehne(s) within forty-eight (48) hours. In the event that Franchisee fails to locate its pipelines within forty- e~ght (48) hours, Franchisee waives any claim of damages against City Fran- chisee shall nobly C~ty and other utility companies at least forty-eight (48) hours prior to working ~n any public r~ghts-of-way or utdity easements /~ c, septg3 tacreoh -4- Ordinance No 2153 Page 5 6.2 The location of underground electrical lines near such pipelines shall be marked, paid for, and maintained by the C~ty; provided however that Franchisee shall provide City hours notice in advance of the time that Franchisee requires location of ele'~trical lines. SECTION 7 STREETS AND APPURTENANCES TO BE RESTORED TO GOOD CONDITION 7.1 7.2 73 7.4 8.1 8.2 The surface of any street(s), 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 the properly to as good a conditions as existed before the work was undertaken, unless otherwise directed by the City. Franchisee shall warrant the 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 shall rest with City. During construction by Franchisee or its contractor, no street or public utdity easement shall be encumbered for a period longer than shall be necessary to execute the work When it is determined that any street(s) within the City must be disturbed by Franchisee to install, 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 OR IMPROVEMENTS The maintenance and repair of Franchisee's facilities and improvements is the sole responsibility of Franchisee. Franchisee shall, at its own expense, repair any damage done to its facilities and improvements resulting from the City and/or any other franchised utility infrastructure extended in the future along the public ways within the franchise area. 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 hability or cost therefor in the event of any lawful need. la't~'~¢pt93 'tacrcalt 09/28. 93 -5- Ordinance No. 2153 Page 6 8.3 9.1 10.1 10.2 11.1 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, maintenance, improvement or use of the public ways or for the operations of the City. SECTION 9 COMPLIANCE WITH APPLICABLE LAWS 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 the City of College Station and shall comply with all federal, state and local laws. SECTION 10 PREPARATION FEE AND ANNUAL CASH CONSIDERATION TO BE PAID. Franchisee agrees to pay as consideration for the granting of this franchise amendment a one-time fee of Five Hundred Dollars ($500.00). To compensate City for the 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 11 PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYMENTS EXCEPT USUAL, GENERAL OR SPECIAL AD VALOREM TAXES City agrees that the consideration set forth in the Section 10 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 the use and occupancy of the streets and public utility easements of City; in lieu of any pole tax or other inspection fee tax; in lieu of any easement or franchise tax, whether levied as 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 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, then City agrees that it will apply so much of said payment as may be necessary to the satisfaction of Franchisee's obligations, if any, to easement or franchise taxes. tx/c/sept95/tacreah 09, 28/95 -6- Ordinance No. 2153 Page 7 12.1 13.1 13.2 14.1 142 SECTION 12 NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE. 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 The Franchisee agrees to and shall indemnify and hold harmless City, its 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 costs, and attomey'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. The City by this 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 Fran- chisee assumes full responsibility 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 cost of defense thereof, for any injury to, including but not limited to death of, any person (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 The City reserves to itself exclusively the power to regulate Franchisee to the full extent such power is conferred by law. 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 records pertaining to its operations covered by this franchise. Ordinance No. 2153 Page 8 15.1 16.1 17.1 17.2 17.3 SECTION 15 SUCCESSORS, AFFILIATES, 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, affiliates, and assigns. Further, that the City Council of the City of College Station authorizes the assignment of the franchise to Amberlake Home- owners' Association, the non-profit corporation which administers the applicable podion of the Woodcreek project. SECTION 16 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. All ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed. SECTION 17 INSURANCE. Franchisee shall acquire and maintain General Liability Insurance and Auto Liability Insurance both in the minimum amount of $1,000,000 for the term of this franchise, and Franchisee shall name the City on both insurance policies as an additional insured party. Franchisee shall give at least fifteen (15) days written notice to the City before either insurance policy is changed, altered, or terminated in any way. Franchisee shall submit proof of insurance to City upon execution of this fran- chise amendment and annually during the term of this agreement. 18.1 SECTION 18 TERM OF FRANCHISE AND TERMINATION. That the term of this franchise shall be for ten (10) years from the date of its initial grant in Ordinance No. 1991 and shall expire on December 31, 2002. Franchisee shall give City written notice of any request for renewal of its fran- chise six (6) months prior to expiration of the franchise granted by this ordi- nance. Franchisee may terminate this franchise prior to the expiration hereof by giving City written notice of such early termination six (6) months prior to the effective date of such early termination II/c-/$ept95/tacrealt -8- Ordinance No. 2153 Page 9 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 ~'''f day of _.~,/ '.. (,- ;'. ,. ~, .-f. '-"-t,) , 1995. APPROVED: ATTEST: C'Ohn~e Hooks, City Secre ary First Consideration & Approval: September ~ 1995 Second Consideration & Approval: October 12: lqq.~ Third Consideration & Approval: November' 9~ 1995 ]~/c./$ept95.'tac ~ealt 09/28/95 -9-