Loading...
HomeMy WebLinkAbout2007-2971 - Ordinance - 04/12/2007ORDINANCE NO. 2971 AN ORDINANCE GRANTING TO ETC TEXAS PIPELINE, LTD., ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO GATHER, COLLECT, RECEIVE, TRANSPORT FOR COLLECTION AND STORE OIL, GAS, OR OTHER FLUIDS USED OR PRODUCED IN CONNECTION WITH OIL AND GAS GATHERING OPERATIONS IN AND AROUND COLLEGE STATION, TEXAS AND TO OCCUPY THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF COLLEGE STATION WITH ITS FACILITIES FOR THAT PURPOSE; PROVIDING FOR THE PAYMENT OF A FEE OR CHARGE FOR THE USE OF STREETS, ALLEYS, AND PUBLIC WAYS, PROVIDING THAT IT SHALL BE IN LIEU OF OTHER FEES AND CHARGES, EXCEPTING AD VALOREM TAXES; PRESCRIBING THE TERMS, CONDITIONS, OBLIGATIONS, AND LIMITATIONS UNDER WHICH SAID FRANCHISE SHALL BE EXERCISED; REPEALING ALL PREVIOUS ETC TEXAS PIPELINE, LTD. FRANCHISE ORDINANCES AND ORDINANCES IN CONFLICT HEREWITH; REQUIRING COMPLIANCE WITH ALL REGULATORY ORDINANCES OF THE CITY; PROVIDING A SAVINGS CLAUSE, A SEVERABILITY CLAUSE, AND AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: SECTION 1. GRANT OF AUTHORITY (A) The City of College Station, Texas, herein after called "City," hereby grants to ETC Texas Pipeline, Ltd., hereinafter called "Company," its successors and assigns, privilege and license to use and occupy the present and future Public Rights-of--Way of the City for the purpose of laying, maintaining, constructing, protecting, operating, and replacing the System needed and necessary to gather, collect, transport in, out of, and through the City to an approved storage or disposal site or for injection into a transportation pipeline oil, gas, and other fluids used or produced in connection with oil and gas collection operations within the corporate city limits, as such limits may be amended from time to time. (B) Said privilege and license being granted by this Ordinance is for a term of ten (10) years from and after the effective date of this Ordinance. The Company shall give the City written notice of any request for renewal of this franchise six (6) months prior to the expiration of the franchise granted by this Ordinance. (C) This franchise covers the geographical area of the entire corporate limits of the City of College Station, Texas. With the exception of compensation provisions, this franchise also applies to the extraterritorial jurisdiction of the City. The Company agrees that the corporate limits are subject to expansion or reduction by annexation and contraction of municipal boundaries and that the Company has no vested right in a specific area. If the City approves any corporate limits expansion or reduction by annexation or contraction, the City will provide written notice to the Company. The Company must revise prospectively the calculation of its payments due to any expansion or reduction by annexation or contraction within a reasonable time after notice by the City of such expansion or reduction, but, in any event, beginning no later than sixty (60) days after receipt of notice. (D) The provisions set forth in this ordinance represent the terms and conditions under which the Company shall construct, operate, and maintain the System within the City. In granting this franchise, the City does not in any manner surrender or waive its regulatory or other rights and powers under and by virtue of the Constitution and statutes of the State of Texas as the same may be amended, nor any of its rights and powers under or by virtue of present or future ordinances of the City. Company, by its acceptance of this franchise, agrees that all such lawful regulatory powers and rights as the same may be from time to time vested in the City shall be in full force and effect and subject to the exercise thereof by the City at any time. SECTION 2. For the purposes of this ordinance, the following terms, phrases, words, and their derivations shall have the meanings given herein. When not inconsistent with the context, words in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. (A) "City" shall mean the City of College Station, Texas. (B) "Company" shall mean ETC Texas Pipeline, Ltd., its successors and assigns, but does not include an ETC Texas Pipeline, Ltd. affiliate, which shall have no right or privilege granted hereunder except through succession or assignment in accordance with Section 11. (C) "City Manager" shall mean the City's manager, or his or her designee. (D) "ETC Texas Pipeline, Ltd. Affiliate" shall mean in relation to the Company, a Person that controls, is controlled by, or is under common control with the Company. As used in this definition, the term "control" means, with respect to a Person that is a corporation, the ownership, directly or indirectly, of more than 50% of the voting securities of such person or, with respect to a Person that is not a corporation, the power to direct the management or policies of such Person whether by operation of law, by contract or otherwise. (E) "Linear Feet" shall mean each foot of pipeline in the Public Rights-of--Way, measured linearly without regard to size of pipeline installed therein. (F) "Person" shall mean any natural person, or association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit, but shall not, unless the context clearly intends otherwise, include the City or any employee, agent, servant, representative or official of the City. (G) "Public Rights-of--Way" shall mean public streets, alleys, highways, bridges, public easements, public places, public thoroughfares, grounds, and sidewalks of the City, as they now exist or may be hereafter constructed, opened, laid out or extended within the present limits of the City, or in such territory as may hereafter be added to ,consolidated or annexed to the City. (H) "System" or "System facilities" shall mean all of the Company's pipelines and other appurtenant equipment needed and necessary to gather, collect, receive, transport in, out of, and through the City to an approved storage or disposal site or for injection into a transportation pipeline oil, gas, and other fluids used or produced in connection with oil and gas gathering operations of the Company. SECTION 3. ACCEPTANCE OF TERMS OF FRANCHISE (A) The Company shall have sixty (60) days from and after passage and approval of this Ordinance to file its written acceptance thereof with the City Manager. If the Company does not file such written acceptance of this Franchise Ordinance, the Franchise Ordinance shall be rendered null and void. The effective date shall be determined in accordance with the requirements of Section 25. (B) At midnight on June 10, 2017, ALL rights, franchises and privileges herein granted, unless they have already at that time ceased or been forfeited or extended by mutual agreement while a new franchise is being negotiated, shall at once cease and terminate. SECTION 4. NO THIRD PARTY BENEFICIARIES This franchise is made for the exclusive benefit of the City and the Company, and nothing herein is intended to, or shall confer any right, claim, or benefit in favor of any third party. SECTION 5. PARAGRAPH HEADINGS, CONSTRUCTION The paragraph headings contained in this ordinance are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several paragraphs hereof. Both parties have participated in the preparation of this ordinance and this ordinance shall not be construed either more or less strongly against or for either party. SECTION 6. SEVERABILITY This Franchise Ordinance and every provision hereof, shall be considered severable, and the invalidity or unconstitutionality of any section, clause, provision, or portion of this Ordinance shall not affect the validity or constitutionality of any other portion of this Ordinance. If any term or provision of this Ordinance is held to be illegal, invalid or unenforceable, the legality, validity or unenforceability of the remaining terms or provisions of this Ordinance shall not be affected thereby. SECTION 7. NO WAVER Either City or the Company shall have the right to waive any requirement contained in this Ordinance, which is intended for the waiving party's benefit, but, except as otherwise provided herein, such waiver shall be effective only if in writing executed by the party for whose benefit such requirement is intended. No waiver of any breach or violation of any term of this Ordinance shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or a different type of breach or violation. SECTION 8. VENUE 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 power granted hereunder, or any default of the duties or obligations imposed hereunder, shall be in the State courts of competent jurisdiction of Brazos County, Texas; and the Company, 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 fast 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 courts as required by law. SECTION 9. COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES (A) This franchise is granted subject to the laws of the Untied States of America and its regulatory agencies and commissions, the laws of the State of Texas and its regulatory agencies and commissions, the College Station City Charter, as amended, and all other applicable ordinances of the City of College Station, not inconsistent herewith. (B) Company hereby agrees that with regard to the System installed it shall provide a certificate to the City that such installation was made in accordance with the laws and regulations pertaining thereto. SECTION 10. CONFLICTING ORDINANCES All ordinances and parts of ordinances of the City of College Station, Texas, with ETC Texas Pipeline, Ltd. in conflict with the provisions of this ordinance are hereby repealed. SECTION 11. SUCCESSORS AND ASSIGNS No assignment or transfer of this franchise shall be made, in whole or in part, except in the case of assignment or transfer to an Affiliate of Company without approval of the City Council of the City. Notice of said transfer or assignment to an Affiliate shall be provided to the City. The City will grant such approval unless withheld for good cause. Upon approval, the rights, privileges, and franchise herein granted to the Company shall extend to and include its successors and assigns. The terms, conditions, provisions, requirements and agreements contained in this franchise shall be binding upon the successors and assigns of the Company. SECTION 12. RESERVATION OF RIGHTS: GENERAL (A) The City reserves to itself the right and power at all times to exercise, in the interest of the public and in accordance with state law, regulation and control of Company's use of the Public Rights- of-Way to ensure the rendering of efficient public service, and the maintenance of Company's System in good repair throughout the term of this franchise. (B) The rights, privileges, and franchises granted by this Ordinance are not to be considered exclusive, 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 for the purpose of oil and gas gathering. (C) City expressly reserves the right to own and/or operate its own system for the purpose of oil and gas gathering and may, in accordance with applicable state law and the College Station City Charter, purchase this franchise from the Company. (D) Except as may be expressly set forth in this Ordinance, in granting this franchise the City does not in any manner waive its regulatory or other rights and powers under and by virtue of the laws of the State of Texas as the same may be amended, or any of its rights and powers under or by virtue of present or future ordinances of the City. SECTION 13. CONDITIONS OF OCCUPANCY (A) All construction and the work done by Company, and 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 the City, relating to the use of the Public Rights-of--Way of the City. This Franchise Ordinance shall in no way affect or impair the rights, obligations or remedies of the parties under the Texas Utilities Code, or other state or federal Law. Nothing herein shall be deemed a waiver, release or relinquishment of either party's right to contest or appeal any action or decision of the other party, including ordinances adopted by the City, that it believes is contrary to any federal, state or local law or regulation. (B) The Company shall comply with the City's Right-of--Way ordinance, a current copy of which is attached as Exhibit A. Pursuant to the City's police power authority, this Right-of--Way ordinance may be superseded by a new or amended ordinance, which shall be of general application to all users of City Rights-of--Way other than the City. In the event the Company believes that the current, new or amended ordinance is contrary to the City's legitimate police power or any federal, state or local law or regulation, and imposes obligations on the Company or deprives the Company of benefits conferred by this Franchise Ordinance, nothing in this Franchise Ordinance shall preclude the Company from taking any action it deems appropriate to preserve its rights. (C) Company shall lay, maintain, construct, operate, and replace its System facilities so as to interfere as little as possible with traffic. The placement of all System facilities shall be subject to the approval of the City Manager prior to construction. Reproducible copies of maps showing the location of all System facilities shall be furnished to the City Manager. (D) In determining the location of Company's System facilities within the City, Company shall minimize interference with the existing underground structures of the City or other utility franchisees or users of the Public Rights-of--Way. Likewise, in determining the location of the facilities of the City and other utility franchisees or users of the Public Rights-of--Way within the City, City shall minimize 4 interference with existing System facilities of Company and shall require other utility franchisees or user of the Public Rights-of--Way to minimize interference with existing System facilities of Company. (E) When Company makes or causes to be made excavations or places or causes to be placed obstructions in any Public Right-of--Way or other public place, the public shall be protected by barriers and lights placed, erected, marked and maintained by Company in accordance with applicable state and federal requirements. Company shall repair, clean up, and restore to as good a condition as before commencement of work, all Public Rights-of--Way or other public places disturbed during the construction and repair of its System. In the event the Company fails to restore the Public Rights-of--Way or public places to as good a condition as before the commencement of the work and within a reasonable time, the City may restore or maintain same, after giving the Company thirty (30) days' written notice, provided however that if the Company is proceeding diligently to restore the property, the time for restoration shall be extended for such time as is necessary for the Company to complete the restoration. If the Company fails to restore the Public Rights-of--Way or public places appropriately, the Company will receive a bill for the cost of the City repairing same. The Company shall, within thirty (30) days after receiving such bill, pay the actual cost for such service. SECTION 14. MAPPING OF SYSTEM FACILITIES (A) The Company shall provide the City with "plans of record" (also called "as built" plans) as provided for in the City's Right-of--Way ordinance. (B) It is further agreed by City and Company that provision of this information does not relieve the City or other third parties from an obligation to utilize all appropriate procedures to locate underground facilities, including the obligation to notify a notification center established pursuant to Texas Utility Code Chapter 251, prior to conducting work in the right-of--way such as excavating, drilling, underground boring, jacking, or open cutting. SECTION 15. RELOCATION OF COMPANY FACILITIES (A) If the City in constructing its sewers, water lines, electrical lines, streets, utilities or other public works should require any mains, pipes or other System facilities or equipment maintained in the Public right-of--way, to be shifted or relocated, such mains, pipes or other System equipment shall, upon reasonable notice, be timely shifted or relocated by Company at its own expense; provided, however, that the City shall pay the cost of relocating System equipment if such System equipment is located in a Company easement that has priority over the City's right to use the Public's Rights-of--Way as provided in Texas Utility Code § 121.2025. (B) When the Company is required by City to remove or relocate its mains, laterals, and other facilities to accommodate construction of streets and alleys by City, and Company is eligible under federal, state, county, local or other programs for reimbursement of costs and expenses incurred by Company as a result of such removal or relocation, and such reimbursement is required to be handled through City, Company costs and expenses shall be included in any application by City for reimbursement, if Company submits its cost and expense documentation to City prior to the filing of the application. City shall provide reasonable notice to Company of the deadline for Company to submit documentation of the costs and expenses of such relocation to City. If the Company is required by City to remove or relocate its mains, laterals, or other facilities for any reason other than the construction of streets and alleys by City or for reasons listed in paragraph (A) of this section, Company shall be entitled to reimbursement from City or others of the cost and expense of such removal or relocation. (C) If the City abandons any Public Rights-of--Way in which Company has facilities, such abandonment shall be conditioned on Company's right to maintain its use of the former Public Rights-of- Way and on the obligation of the party to whom the Public Rights-of--Way is abandoned to reimburse Company for all removal or relocation expenses if Company agrees to the removal or relocation of its facilities following abandonment of the Public Rights-of--Way. If the party to whom the Public Rights-of- Way is abandoned requests the Company to remove or relocate its facilities and Company agrees to such removal or relocation, such removal or relocation shall be done within a reasonable time at the expense of the party requesting the removal or relocation. If relocation cannot practically be made to another Public Rights-of--Way, the expense of any right-of--way acquisition shall be considered a relocation expense to be reimbursed by the party requesting the relocation. SECTION 16. CONFLICTING FRANCHISES If the Company, in laying its pipes, shall come into conflict with the rights of any other person or corporation having a franchise from the City, the City Council shall decide all questions concerning the conflicting rights of the respective parties, and shall determine the location of the structures of the said parties and what shall reconcile their differences. The Company records shall be available to City for review and inspection for compliance with this franchise at reasonable times and upon reasonable notice. SECTION 17. ABANDONING OR TEMPORARILY ABANDONING FACILITIES In the event the Company abandons or temporarily abandons any part of its System facilities, it shall be the duty of the Company under observation of the City Manager to comply with the following: (a) Facilities to be abandoned or temporarily abandoned in place shall be disconnected from all sources of the transported gas, oil or fluid such as wells, other pipeline, meter stations, control lines, and other appurtenances; and (b) Facilities to be abandoned or temporarily abandoned in place shall be purged of the transported gas, oil or fluid which shall be replaced with an inert material vented as appropriated and the ends sealed. SECTION 18. LAYING OF LINES IN ADVANCE OF PAVING (A) Whenever the City shall conclude to pave any Public Rights-of--Way in which mains and pipes akeady exist or in which Company may propose to lay its mains or pipes, the Company will be provided the opportunity, at no expense to the City, in advance of such paving to renew such mains or pipes, if defective or inadequate in size. (B) The Company shall be given ninety (90) days written notice of the intention of the City to pave any such Public Rights-of--Way and specifying the new locations for the facilities. Within ninety (90) days from receipt of such notice, the Company, if it has determined a need, shall initiate work and thereafter proceed in a workmanlike manner to completion of the necessary work. If the Company should fail to so proceed, and such street or alley is thereupon paved, except in an emergency, the Company shall for two (2) years thereafter not be allowed to cut such pavement or excavate in such paved street or alley for any purpose, except by written permission of the City Manager under such terms and conditions as the City Manager may prescribe. SECTION 19. FRANCHISE FEES, PAYMENTS TO THE CITY (A) In consideration of the privilege and license granted by City to Company to use and occupy the Public Rights-of--Way in the City for the conduct of its business, the City will assess, and the Company, its successors and assigns, will pay, a reasonable annual charge for the City's expenses for administering, supervising, inspecting and otherwise regulating the location of the System, including maintaining records and maps of the location of the System, in the amount and manner described herein. (B) Franchise fee payments shall be based on Two Dollars and Fifty Cents ($2.50) per linear foot per annum of facilities on, in or under Public Rights-of--Way or City owned property. (C) Such payment shall be made once each year during the month of February (D) At the time of the annual payment, Company shall also submit to the City a sworn statement in the form attached as Exhibit B showing the total linear feet of Company's pipeline in Public Rights-of--Way as of the end of each month within the previous calendar year. The franchise fee shall be a sum of money calculated by multiplying the per linear foot charge in Section 19(B) by the average linear feet per month for the previous calendar year. The average linear feet per month for the previous calendar year shall be calculated by adding the total linear feet for each of the twelve months as reported in the Company's sworn statement and dividing by twelve (12). (E) It is also expressly agreed that the aforesaid payments shall be in lieu of any and all other and additional occupation taxes, easement, franchise taxes or charges (whether levied as an ad valorem, special, or other character of tax or charge), municipal license, permit, and inspection fees, bonds, street taxes, and street or alley rentals or charges, and all other and additional municipal taxes, charges, levies, fees, and rentals of whatsoever kind and character that City may now impose or hereafter levy and collect from Company or Company's agents, excepting only 1) the usual general or special ad valorem taxes that City is authorized to levy and impose upon real and personal property, 2) the Company's separate obligation to reimburse the City for street repairs in accordance with Section 13(E), and 3) penalties as may be provided for by this Franchise Ordinance or the Right-of--Way Ordinance. Should City not have the legal power to agree that the payment of the foregoing sums of money shall be in lieu of occupation taxes, licenses, fees, street or alley rentals or charges, easements or franchise taxes, then City agrees that it will apply so much of said sums of money paid as may be necessary to satisfy Company's obligations, if any, to pay such occupation taxes, licenses, charges, fees or rentals. (D) If the Company fails to pay when due any payment provided for in this Section, Company shall pay such amount plus interest at the rate of ten percent (10%) per annum from the date the payment is due until and including the date the payment is received by the City. SECTION 20. ACCOUNTING: AUDIT; INSPECTION (A) The Company shall maintain, at its local office or principal place of business within the State of Texas, adequate books and records relating to the performance of its obligations under this franchise. (B) City may cause, upon reasonable notice, an audit to be made of the books and records of the Company relating to the Company's performance under this franchise. The omission by the City to exercise its rights to any audit at any time shall not constitute a waiver of such right. In the event City elects to exercise its right of audit, City shall provide to the Company written notice of such election at least forty-eight (48) hours in advance of the time of such audit. City shall have the right to select auditors to make the audit. The Company shall make available to the auditor such personnel and records as the City may in its reasonable discretion request in order to complete such audit, and shall make no charge to the City therefor. The Company shall assist the City during any audit conducted under this franchise, including answering questions and providing any requested records or information within seven (7) days of having received a written request therefor. The cost of an audit pursuant to this provision shall be borne by the City, unless the audit reveals an underpayment of fees paid during the audit period in excess of two percent (2%), in which case the Company shall pay for the audit. (C) The acceptance of any statement or payment shall not stop the Company or the City from asserting that the amount paid is not the amount due or from recovering any deficit or overpayment, including interest, by any lawful proceeding provided that any payment made by Company pursuant to this franchise shall be deemed final and correct as to both Company and City unless questioned by either party upon notice delivered to the other within five (5) years following the date of such payment. (D) Upon completion of the audits, the City shall make the audit report available to the Company, and shall give the Company an opportunity to respond to the audit findings. If requested by either party, the City and the Company shall meet and attempt in good faith to resolve any disputed issues arising out of the audit report. In the event the Company shall be determined to have under-remitted the fee required by this franchise, the Company shall pay, addition to the arrearage, interest on the arrearage at the statutory rate from the time of the underpayment until full payment is made. Intentional underpayment of fees by the Company may also subject the Company to penalties for noncompliance with this franchise. After reviewing the Company's response to the audit findings, the City shall make an initial determination as to whether the Company shall also be required to pay a penalty for noncompliance. The amount of the penalty, if any, shall not exceed eight percent (8%) of the arrearage. The City Council shall make the final determination of whether a penalty shall be required, and the amount of same subject to all legal rights and remedies available to Company. (E) If any of the records to be provided by Company or to be made available by Company are considered by the Company to be proprietary in nature or if such records are confidential under federal, state or local law, upon request by the Company such information shall be treated by the City as confidential, and shall be made available only to those persons who must have access to perform their duties on behalf of the City, including but not limited to the City Manager, Chief Financial Officer, the City Attorney, and the Council Members. City shall promptly notify Company of any requests for public disclosure of such records under Chapter 552, Texas Government Code, and Company shall have the sole responsibility to assert its claims regarding the proprietary or confidential nature of such records. SECTION 21. RIGHT TO INDEMNIFICATION AND TO BE HELD HARMLESS (A) In consideration of the granting of this franchise, Company shall, at its sole cost and expense, indemnify, defend and hold harmless City and all associated, affiliated, allied and subsidiary entities of City, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (City and such other persons and entities being collectively referred to herein as "Indemnities"), from and against all suits, actions or claims of injury to any person or persons, or damages to any property brought by or made for or on account of any death, injuries to, or damages received or sustained by any person or persons or for damage to or loss of property arising out of, or occasioned by Company's intentional and/or negligent acts or omissions in connection with Company's operations. (B) The Company's obligation to indemnify Indemnitees under this Franchise Ordinance shall not extend to claims, losses, and other matters covered hereunder that are caused or contributed to by the negligence of one or more Indemnitees. In such case the obligation to indemnify shall be reduced in proportion to the negligence of the Indemnitees. By entering into this Franchise Ordinance, City does not consent to suit, waive any governmental immunity available to the City under Texas law or waive any of the defenses of the parties under Texas law. (C) City shall not at any time be required to pay from its own funds for injury or damage occurring to any person or property from any cause whatsoever arising out of Company's construction, reconstruction, maintenance, repair, use, operation or dismantling of System or Company's provision of service. (D) In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, Company shall, upon notice from any of the Indemnitees, at Company's sole cost and expense, resist and defend the same with legal counsel selected by Company and consented to by City, such consent not to be unreasonably withheld; provided, however, that Company shall not admit liability in any such matter on behalf of the Indemnitees without their written consent and provided further that Indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of Company. Company's obligation to defend shall apply regardless of whether City is solely or concurrently negligent. The Indemnitees shall give Company prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section 21. Nothing herein shall be deemed to prevent the Indemnitees at their election and at their own expense from cooperating with Company and participating in the defense of any litigation by their own counsel. SECTION 22. INSURANCE (A) COMPANY shall procure and maintain at its sole cost and expense for the duration of the franchise insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by COMPANY, its agents, representatives, volunteers, employees or subcontractors. (B) COMPANY'S insurance coverage shall be primary insurance with respect to the CITY, its officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officials, employees or volunteers shall be considered in excess of the COMPANY'S insurance and shall not contribute to it. (C) COMPANY shall include all subcontractors as additional insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. (D) All Certificates of Insurance and endorsements shall be furnished to the CITY Manager at the rime of execution of this Agreement, attached hereto as Exhibit C, and approved by the CITY before work commences. A. Standard Insurance Policies Required: 1. Commercial General Liability Policy 2. Automobile Liability Policy 3. Workers' Compensation Policy 4. Pollution Liability Policy 5. Excess Liability Policy B. General Requirements Applicable to all Policies: 1. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted. 2. Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis for property damage only. 3. "Claims Made" policies will not be accepted. 4. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City of College Station. 5. Upon request, certified copies of all insurance policies shall be furnished to the City of College Station. 6. The City of College Station, its officials, employees and volunteers, are to be added as "Additional Insured" to all applicable Liability policies. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officials, employees or volunteers. C. Commercial General Liability 9 Standard comprehensive general liability including coverage for premises, operations, explosion, products-completed operations, blanket contractual liability, underground property damage, broad form property damage, independent contractors and personal injury: 1. General Liability insurance shall be written by a carrier with a B+:VII or better rating in accordance with the current Best Key Rating Guide. 2. Minimum Limit of $2,000,000.00 per occurrence bodily injury, $2,000,000.00 aggregate. Minimum Limit of $2,000,000.00 per occurrence property damage, $2,000,000.00 aggregate. 3. Coverage shall be at least as broad as Insurance Service's Office Number CG 00 O1. 4. No coverage shall be deleted from the standard policy without notification of individual exclusions being attached for review and acceptance. 5. The coverage shall include but not be limited to the following: premises/operations; independent contracts; products/completed operations; contractual liability (insuring the indemnity provided herein); and where exposures exist, "Explosion, Collapse, and Underground" coverage. D. Automobile Liability 1. Business Automobile Liability insurance shall be written by a carrier with a B+:VII or better rating in accordance with the current Best Key Rating Guide. 2. Minimum Combined Single Limit of $1,000,000.00 per occurrence for bodily injury and property damage. 3. The Business Auto Policy must show Symbol 1 in the Covered Autos portion of the liability section in Item 2 of the declarations page. 4. The coverage shall include owned or leased autos, non-owned autos, and hired cars. Where applicable endorsement MCS-90 (Motor Carrier Policies for Insurance for Public Liability) is required. 5. COMPANY is responsible for any liability and/or costs that exceed the dollar limits set forth in this section. E. Workers' Compensation 1. Employer's Liability limits of $500,000/$500,000/$500,000 are required. 2. City of College Station shall be named as Alternate Employer on endorsement WC 99 03 OI unless written through TWCARP. 3. Texas Waiver of Our Right to Recover from Others Endorsement, WC 42 03 04 shall be included in this policy. 4. Texas must appear in Item 3A of the Workers' Compensation coverage or Item 3C must contain the following: All States except those listed in Item 3A and the States of NV, ND, OH, WA, WV, WY. 10 SECTION 23. TERMINATION (A) In addition to any rights set out elsewhere in this Franchise Ordinance, the City reserves the right to terminate the franchise and all rights and privileges pertaining thereto, in the event that the Company violates any material provision of the franchise or the Company becomes insolvent, or is adjudged bankrupt. (B) The City may, at any time, terminate this franchise for a continuing material violation by the Company of any of the substantial terms hereof. In such event, the City shall give to Company written notice, specifying all grounds on which termination or forfeiture is claimed, by registered mail, addressed and delivered to the Company at the address set forth in Section 24 hereof. The Company shall have sixty (60) days after the receipt of such notice within which to cease such violation and comply with the terms and provisions hereof. In the event Company fails to cease such violation or otherwise comply with the terms hereof, then Company's franchise is subject to termination under the following provisions. Provided, however, that, if the Company commences work or other efforts to cure such violations within thirty (30) days after receipt of written notice and shall thereafter prosecute such curative work with reasonable diligence until such curative work is completed, then such violations shall cease to exist, and the franchise will not be terminated. (C) Termination shall be declared only by written decision of the City Council after an appropriate public proceeding whereby the Company is afforded the full opportunity to be heard and to respond to any such notice of violation or failure to comply. The Company shall be provided at least ten- (10) day's prior written notice of any public hearing concerning the termination of the franchise. In addition, ten (10) days notice by publication shall be given of the date, time and place of any public hearing to interested members of the public, which notice shall be paid for by the Company. (D) The City, after full public hearing, and upon finding material violation or failure to comply, may terminate the franchise or excuse the violation or failure to comply, upon a showing by the Company of mitigating circumstances or upon a showing of good cause of said violation or failure to comply as may be determined by the City Council. (E) Nothing herein stated shall prevent the City from seeking to compel compliance by suit in any court of competent jurisdiction if the Company fails to comply with the terms of this franchise after due notice and the providing of adequate time for Company to comply with said terms. SECTION 24. NOTICES Any notices required or desired to be given from one party to the other party to this Ordinance shall be in writing and shall be given and shall be deemed to have been served and received (whether actually received or not) if (i) delivered in person to the address set forth below, (ii) deposited in an official depository under the regular care and custody of the Untied States Postal Service located with the confines of the United States of America and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified, or (iii) delivered to such party by courier receipted delivery. Either party may designate another address within the confines of the continental United States of America for notice, but until written notice of such change is actually received by the other party, the last address of such party designated for notice shall remain such party's address for notice. CITY City Manager City of College Station P.O. Box 9960 310 Krenek Tap Road College Station, Texas 77842 COMPANY ETC Texas Pipeline, Ltd. 800 E. Sonterra Blvd., Suite 400 San Antonio, TX 78258 SECTION 25. EFFECTIVE DATE 11 This franchise shall be effective only after: (a) sixty (60) days following its final passage by the City Council; and (b) receipt by the City of Company's acceptance as provided by Section 3 herein. PRESENTED, AND GIVEN first reading on the8th day of March , 2007, by a vote of 7 ayes and 0 noes at a regular meeting of the City Council of the City of College Station, Texas; and given second reading, passed and approved on the 22nd day of March , 2007, by a vote of ~ ayes and 0 noes at a regulaz meeting of the City Council of the City of College Station, Texas; and given third reading, passed and approved on the 12th day of April , 2007, by a vote of ~_ ayes and -Q noes at a regular meeting of the City Council of the City of College Station, Texas. ATTEST: Connie Hooks, City Secretary APPROVED AS TO FORM: S(d~~- ~ ~~~'~l~L~ City Attorney CITY OF COLLEGE STATION Ron Si ayor 12