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HomeMy WebLinkAbout2004-2705 - Ordinance - 03/25/2004ORDINANCE NO. 2705 AN ORDINANCE GRANTING TO TXU GAS COMPANY, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO FURNISH, TRANSPORT AND SUPPLY GAS TO THE GENERAL PUBLIC IN THE CITY OF COLLEGE STATION, BRAZOS COUNTY, TEXAS, FOR THE TRANSPORTING, DELIVERY, SALE, AND DISTRIBUTION OF GAS [hi, OUT OF, AND THROUGH SAID ML~NICIPALITY FOR ALL PURPOSES, PROVIDING FOR THE PAYMENT OF A FEE OR CHARGE FOR THE USE OF THE STREETS, ALLEYS, AND PUBLIC WAYS, REPEALING ALL PREVIOUS TXU GAS FRANCHISE ORDINANCES AND ORDINANCES IN CONFLICT HEREWITH, 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 SUCH FRANCHISE SHALL BE EXERCISED, 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 I GRANT OF AUTHORITY (A) The City of College Statton, Texas, hereto afle~ called "City," hereby grants to TXU Gas Company, hereinafter called "Company," its successors and assigns, privilege and hcense to use and occupy the present and future Public Rights-of-Way of the City for the purpose of laying, ma,ntammg, constructing, protecting, operating, and replacing the System needed and necessary to deliver, transport and distribute gas in, out of, and tlu'ough smd City and to sell gas to persons, firms, and corporations, including all the general public, within the City's corporate I.mts. (B} Said pnwlege and license being granted by this ordinance is for a term ending December 3 I, 2013 (C) The provisions set forth in this ordinance represent the terms and conditions under winch 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 I 0'~- o 7(.~' rights and powers under and by v,rtue of the Consmut~on and statutes of the Stale of Texas as tile same may be amended, nor any of ,ts r,ghts and powers under or by v,rtue of present or future ordinances ofthe Cfly Company. by ,ts acceptance of this fi-anch,se, agrees that all such lawful ,egulatory powers and rights as the same may be fiom time to tune vested m the City shall be m fidl force and effect and subject to the exerc,se thereof by the C,ty at any t,me. SECTION 2. DEFINITIONS For the purposes of lh,s ordinance, the following terms, phrases, words, and their denvatmns shall have the meanings given hercm When ,lot inconsistent w~th the context, words m tile present tense include tile future, words m the plural ,lumber iuclude the singular number. and wo, dsm the singular number include the pltual number The word "shall" ,s always mandatory and not merely d~rectory IA) "C,ty" shall ,nean the C,ty of College Stat,on. Texas I B) "Company" shall mean TXU Gas Company. ~ts successors and ass,gns, but does not include a TXU Affihate, which shall have no r,ght or privilege granted hereunder except through succession or ass,gnment m accordance with Section 6. (C) "C,ty Manager" means C,ty's manager, or h~s or her designee (D) "Gross Revenues" shall mean all reveque derived or received fi'om the sale of gas to ,ts res,dent~al and commerc,al customers w,thm tile corporate limits of sa~d C~ty lexpressly excluding revenues from governmental customers and revenues from mdusmal and any other classes of customers m smd C~ty except remdentlal and commercial customers) (Il (2) "Gross revenues" shall ,nclude la) other revenues derived from the following 'nnscella,~eot, s charges' charges to connect, dlscolmecl, or reconnect gas wllhln the City, charges lo handle returned checks from consumers within the C~ty, such other service charges and charges as may, from tnne to tm~e, be authorized m the rates and charges oil file with the City, and "contnbut~on~ m aid of construction" ("CIAC") (b) revenues b~lled but not ultimately collected or received by the Company. and. ¢c) gross receipts fees. "Gross revenues" shall not include la) the revenue ofany Person Including. without hnutatlon, all affiliate, to the extent that such revenue Is also included m Gross Revenues of the Company; and (bi sales taxes, and lc} any ,nterest income earned by the Company. and (d) all monies received from the lease or sale of real or personal property, provided, however, that tiffs exclusion does not apply to the lease of faelhtles within the City's right of way. and all revenues received by the Company from the transportation of gas through the pipeline system of Company within the City Io customers located within tile City. the value of gas transported by Company lbr Transport Customers through the System of Company within the City. and all revenue derived or received from the sale of gas to its governmental and. mdustrml customers within the corporate hmlts of said City. ~ E) "Person" shall mean any natural person, or any association, fim~. partnership.joint venture, colporatlon, or other legally recognized entity, whether for-profit or not-for-profit, but shall not. unless the context clearly intends otherwise, include the City o~ any employee, agent. servant, representative or official of the City ( FI "Public RJght-of-Way" shall mean public streets, alleys, highways, bridges, pubhc easements, public places, pubhc thoroughfares, grounds, and sidewalks of the City, as they now exist or may be hereafYer constructed, opened, laid out or extended within the present hmlts of the C~ty. or m such territory as may hereafter be added to, consolidated or annexed to the City (Gl "System" or"System facilities" shall mean all ofthe Company's pLpes, p]pehnes. gas mmns. laterals, feeders, regulators, meters, fixtures, connections, and all other appurtenant equipment used In or mcLdent to providing delivery, transportation, distrzbution, supply and sales of natural gas for heating, lighting, and power, located within the corporate bm]ts of the C~ty. ¢ H ) "TXU A fillmte" shall mean in relat]on to the Company. a Person that controls, is controlled by. or is trader common control with the Company As used m this definmon, the tero~ "control" means, with respect to a Person that ]sa corporation, the ownership, directly or indirectly, of more than 50°0 of the voting securmes of such person or. w~th respect to a Person that is not a corporallon, the power to direct the management or policies of such Person. whethe] 4 by operation of law. by contract or otherw,se. {I) "Transport Custo,ner" shall mean any person or entity for which Company transports gas through the plpehne system of Company wtthm tile City to customers for dehvery or consumption w~thm the City SECTION 3 EFFECT OF OTHER MUNICIPAL FRANCHISE ORDINANCE FEES ACCEPTED AND PAID BY TXU GAS (Al IfTXU Gas should at any time after the effective date of this Ordinance agree to a new municipal franchise ordinance, or renew an existing municipal franchise ordinance, w~th another mumelpahty, which municipal franchise ordinance delem~mes tile franchise t~:e owed to that municipality for the use of its pubhc rights-of-way m a manner that. if applied to the City. would result In a franchise fee greater than tile amount otherwise due City under this Ordinance. then the franchise fee to be paid by TXU Gas to City pursuant to th~s Oidmance shall be increased so that the amount due and to be paid Is equal to the amount that would be due and payable to City were the franchise fee prov~s~ons of that other franchise ordinance applied to C~ty. (B! The prowslons of this Section 3 apply only to the amount of the franchise fee to be paid and do not apply to other franchise fee payment prows~ons, including without limitation the timing of such payments. SECTION 4. ACCEPTANCE OF TERMS OF FRANCHISE { A ) The Company shall have sixty {60) days from and after the passage and approval of the ordinance to file its written acceptance thereof with the City Secretary. If the Company does not file such written acceptance ofth~s Franchise Ordinance, the Franchise Ordinance shall be rendered null and vmd The effective date shall be determined m accordance with the r~qmrements of Section 28 I BI At midnight on December 31.2013, ALL rights, franchises and privileges hereto granted, unless they have already at that nme ceased or been forfe,ted or extended by mutual agreement while ,~ new franchise ,s being negotiated, shall at once cease and terminate. SECTION 5 NO THIRD PARTY BENEFICIARIES Thls franch,se ,s made for the exclus,ve benefit of the C,ty and the Company. and nothing hereto is intended to. or shall confer any right, cia,m, or benefit ,n favor of any third party SECTION 6 SUCCESSORS AND ASSIGNS No ass,g,maent or transfer of this franch,se shall be made. m whole or m part. except m the case of assignment or transfer to an Affihate of Company and subsMmry of TXU Corp w,thout approval of the City Council of the C~ty. Not,ce of sa,d transfer or ass,gnment to an Affihate shall be provided to the City Tile City will grant such approval unless w~thheld for good cause Upon approval, the rights, privileges, and franch,se hereto granted to the Company shall extend to and include its successors and ass,gns. The terms, condfl,ons, prov,slons. requirements and agreements contained in tMs french,se shall be binding upon the successors and assigns of the Company SECTION 7. COMPLIANCE WITH LAWS~ CHARTER AND ORDINANCES Th,s franchise m granted subject to the laws of the United States of America and tis regulatory agencies and commlss,ons and the laws of the State of Texas. the College Station City Charter. as amended, and all other applicable ordinances of the City of College Station. not Inconsistent berew,th 6 SECTION g. CONFLICTING ORDINANCES All ordinances and parts of ordinances of the C,ty of College Station, Texas, with TXU Gas m conflict with the provls,ons ofthis ordinance are hereby repealed SECTION 9 NOTICES Any notices required or desired to be given from one party to the other party to this ordinance shall be m writing and shall be given and shall be deemed lo have been served and received {whether actually received or notl if 0) delivered in person to the address set forth below, l lll deposited iii an official depository tinder the regular care and custody of the United States Postal Serwce located within the confines of the United States of America and sent by certified mall. return receipt requested, and addressed to such party at the address hereinafter specified, or Ira} dehvcred to such party by coulter receipted delivery Either party may designate another address w~thm the confines of the continental United States of Amerma for notice, but until written notice of such change is actually reeelved by the other party, the last address of such party desl~ated for notice shall remain such party's address for notice CITY City Manager Ctty of College Station P.O. Box 9960 310 Krenek Tap Road College Station, Texas 77842 COMPANY Manager TXU Gas 297 bl Earl Rudder Freeway Bryan, Texas 77802 SECTION 10. 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 meamng ofthe various and several paragraphs hereof Both pames have partmlpated in the preparation of tMs ordinance and this ordinance shall not be construed either more or less strongly against or for either party 7 SECTION 11. CONDITIONS OF OCCUPANCY (A) All construction and the work done by Company. and tile opemuon or,ts bus~ness. under and by v,rtue of this ordinance, shall be m confom~ance w,th the ordinances, rules and regulations now ~n force and that may hereafter be adopted by the Cny. relating to the use of its Pubhc Rights-of-Way of the City This franch,se agreement shall ,n no way affect or ,mpa~r the rights, obhgat,ons or reined,es of the part,es under the Texas Utilities Code. or other state or federal Law Nothing hereto shall be deemed a waiver, release or rehnquisbment ofeither party's right to contest or appeal any action or deem,on of the other party, mclud,ng ordinances adopted by the C,ty. that ,t beheves ,s contrary to any federal, state or local law or regulat,on (B) The Company shall comply w,th the C~ty's R,ght-of-Way ordinance, a current copy ofwh,ch ~s attached as Exhlbn A Pursuant to the City's pohce power authority, th,s R,ght- of-Way ordinance ,nay be superceded by a new or amended ord,nance, wh,ch shall be of general apphcat,on to all users of C,ty rights-of-way other than the City The Company shall have the opportumty to comment on the draft form ofthe ordinance prior to its finahzat,on. In the event the Company beheves that the current, new or amended ordinance is contrary to the Cfly's legitimate police power or any federal, state or local law or regulation, and ,reposes obhgatmns on the Company or deprives the Company of benefits conferred by th,s Franch,se Ord,nance. nothing m this Franch,se Ordinance shall preclude the Company from ta 'lang any act,on it deems appropriate to preserve its rights (C) Company shall lay. maintain, construct, operate, and replace ns System facilities so as to interfere as httle as posstble w,th traffic The placement of all System facfimes shall be subject to the approval ofthe City Manager or h~s destguee prior to construction Reproducible 8 coptes of maps showing tile location of all System faciht~es shall be furnished to the City Manager ~ D ~ In determining the location ofCompany's plpehne within the City, Company shall itummlze interference with then--existing underground structures of City or other unhty franchisees or users of the pubhc rights-of-way. Likewise, m detemmmlg the Iocanon of the facllmes of the Cny and other utlhty fi anchlsees or users of the public rights-of-way within the City, Cny shall minimize interference with existing facdmes of Company and shall require other utdlty franchisees or users of the public rights-of:way to minimize interference with existing facdmes of Company. ~ E~ When £ ompany makes ol causes to be made excavations or places or causes to be placed obstrucuons m any Pubhc R~ght-ot:Way, the pubhc shall be protected by barriers and lights placed, erected, marked and man, tamed by Company m accordance with apphcable state and federal requirements Company shall repam clean up, and restore to as good a condmon as before commencement of work, all Pubhc Raghts-of-Way d~sturbed during the construcuon and repair of ~ts System In the event the Company fails to restore the Pubhc R~ghts-of-Way to as good a condition as before the commencement of the work and w~thin a reasonable time, the Ctty may restore or maintain same, after gxvlng the Company thirty (30) days' written notice, provided however that if tile Company ~s proceeding diligently to restore the property, the nme for restoration shall be extended for such time as is necessary for the Company to complete the restoration. I fthe Company fads to restore the Pubhc Rights-of-Way appropriately, the Company wall receive a btll for the cost ofthe C~ty repamng same The Company shall, within thirty f30! days alter rece~wng such bill, pay the actual cost for such service SECTION 12 MAPPING OF DISTRIBUTION SYSTEM { A) The Company shall provide tile City with "plans of record" (also callt, d "tis butlt" planal as provided for m the City's Right-of-Way ordinance (B) It is further agreed by City and Company that provision of this reformation doe~ not relieve the City or other third part.es from an obhgation to utlhze all appropriate procedures to locate underground facilities, including the obhgation to notify a notification cente~ estabhshed pursuant to Texas Uuhty Code Chapter 25 I, prior to conducting work m the rJght-o f-way such as excavating, drilling, underground bonng, jacking, o~ open cutung. SECTION 13 RELOCATION OF COMPANY EQUIPMENT (A) If the City tn constructing tls sewers, water lines, electncal lines, streets, uUlltles or other pubhc works should require any System fact ht~es maintained tn the Public right-of-way. to be shifted or relocated, System facd~t~es shall, upon reasonable notice, be t~mely shifted or relocated by Company at its own expense. { B) When the Company ts reqmred by City to remove or relocate its System facflmes to accommodate construction of streets and alleys by C~ty. and Company ts ehglble under federal. state, county, local or other programs for reimbursement of costs and expenses recurred 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 m any application by City for reimbursement, if Company subnuts ~ts cost and expense documentauon to City prior to the fihng ofthe application City shall provide reasonable not,ce to Company of the deadline for Company to submit documentauou of the costs and expenses of such relocation to Ctty. Notwithstanding anything contained tn the Rtght-of-Way Ordinance. ffthe Company ~s required by City to remove or relocate ~ts System facilities for any reason other than tile construction of streets and alleys by Ctty, Company shall be entitled to reimbursement from Ctty or others of the 10 cost and expense of such removal or relocation When Compaqy ~s reqmred to remove or relocate ~ts System fac~ht~es to accommodate construction ora h~gbway, road. street, pubhc way. or other public work by Ctty without rem~bursement from C~ty. Company shall have the r~gbt to seek a surcharge to recover relocation costs pursuant to Section 104 112 et al. of the Texas Ut~ht~es Code. If C~ty abandons any Pubhe R~ght-of-Way m which Company- has faclhtles, such abandonn~ent shall be cond,t~oned on Company's right to ma,ntam ~ts use of the former Pubhc R~ght-of-Way and on the obhgatlon of the party to whom the Pubhc Paght-of-Way is abandoned to reimburse Company tbr all removal or relocation expenses ~fCompany agrees to the removal or relocation or,ts facdmes following abandonment of the Pubh¢ Pdght-of-Way. If the party to whom the Pubhe R~ght-of-Way ~s abandoned requests the Company to remove or relocate its facthties and Company agrees to such removal or relocation, such removal or relocation shall be done within a reasonable hme at the expense of the party requesting the removal or relocatmn. If relocation cannot practically be made to another Pubhc R~ght-of-Way. the expense of any r,ght- of-way acquis~tton shall be considered a relocatmn expense to be reimbursed by the party requesting the relocation SECTION 14 LAYING OF LINES IN ADVANCE OF PAVING (A} Whenever the City shall conclude to pave any Pubhe R~ght-of-Way m which mains and p~pes already ex,st or m whxch Company may propose to lay its mares or p~pes, the Company w~ll be provided the opportumty, at no expense to the C~ty. m advance of such paving to lay or renew such mares or p~pes, ~fdefect~ve or inadequate m s,ze. to the properly hnes where buddings are already located. { B} The Company shall be g~ven ninety {90} days' written not,ce of the ~ntentlon of the C~ty to pave any such Pubhe Right-of-Way and spectfymg the new locations for the hnes II W~th~n mnety (90) days from receipt of such not,ce. Ihe Company. if tt has determined a need. shall inmate work and thereafter proceed m a wor'kmanhke mamler to compleuon of the necessary work If the Company should fad to so proceed, aud such street or alley ,s thereupon paved, except m an emergency, the Company shall for two (21 years thereafter not be allowed to cut such pavement or excavate ,n such paved street or alley for any pnrpose, except by written permission of the C~ty Manager under such terms and condfl,ons as the C,ty Manager may preset,be SECTION 15. CONFLICTING FRANCHISES If the Company. when mstalhng ~ts System. shall come into confl,ct w,th the facfl,t,es of atW other person or corporation authorized by the C,ty. the City Council shall dec~de all questions concerning the conflicting rights ofthe respecuve part,es, and shall deicing,ne the location of the atructures of the sa,d pames and what shall reconcde their differences The Company records shall be available to C,ty for review and inspecuon for comphance w~th th,s franchise at reasonable umes and upon reasonable not,ce. SECTION 16. INSTALLATION OF METER If a meter ns installed m or near the Pubhc Raghts-of-Way, Company agrees to d,scuss with the City Engineer or h~s delegate the aesthetics ofthe meter placement flag, cement cannot be reached, the Company may install standard eqmpment. SECTION 17. EXTENSIONS FOR RESIDENTIAL CUSTOMERS Company shall be reqmred to extend d~stnbut,on mares ~n any street up to one hundred { I00) feet for any one res,dentrol customer, provtded, however. ,f the Company determines the antic,pared connected load wdl prohibit Company a reasonable return on ~ts investment as may be allowed by statute, law. or regulation and the prov,smn of service ~s not economically feamble. the cost of such extension shall be borne by customer. Company shall not be required to extend 12 transmission mares m any Public Raghts-of-Way within City or to make a tap on any tmnsnusslon mmn w~thm City unless Company agrees to such extension by a written agrecment between Company and a customer SECTION 18. DUTY TO SERVE The Company hereby agrees that it will not arbmarlly refuse to provide service to any residential or conm~e~ cial customer that it is economically feasible for lhe~Company to serve if the customer to be benefited will pay the cost thereof or if it can be shown fha! the revenue resulting from such extension will, within a leasonable time after same is made, pay a reasonable retun~ on the Company's investment, after making the customary allowance for deprec~auon SECTION 19. RATES Company shall furnish reasonably adequate scl vice to the pubhc at reasonable rates and charges therefor, and Company shall maintain its System in good order and condition Such rates shall be established in accordance with all applicable statutes and ordinances Company shall maintain on file with the City copies of its current tariffs, schedules or rates and charges and service roles and regulations applicable to the City The rates and charges collected from its customers in the City shall be subject to revision and change by either the City or Company in the manner provided by law. SECTION 20. PAYMENTS TO THE CITY (A) In consideration of the privilege and hcense granted by City to Company to use and occupy the Public Rights-of-Way in the City for the conduct of its business, Company, its successors and assigns, agrees to pay and City agrees to accept such franchise tbes m the amount and manner described herein Except as provided for in Section 20(B), such payments shall be made on a quarterly bas~s, on or before the forty-fifth (45th} day following the end of each calendar quarter. The franchise fee shall be a sum of money that shall be equivalent to four 13 percent (4%) of the quarterly Gross Revenues. as defined ~n Sectnon 21D), w~th~n the corporate hmtts of City for the p~ecedmg calendar quarter. The mmal payment provided under tlus franchnse shall be due on or before May 15, 2005 based on the preceding calendar quarter {January I - March 31, 20051 and shall be for the right and pnvdege dunng the preceding calendar quarter {January I - Mamh 3 I, 2005} Subsequent payments shall be made as Ibllows during the term of the francluse. Payment Due Aug. 15 Nov. 15 Feb 15 May 15 Basis and Pnvdege Quaffer April I - June 30 July I - Sept 3{I Oct I-Dec. 31 Jan I - March 31 The final payment under thns (ranch.se wdl be due on or before February 15, 2014 and wdl be for the right and pr.v,lege during October 1 - December 31,2013. {B} The francMse fee amounts based on "Contnbutnons m a~d of Construction" CCIAC"} shall be calculated on an annual calendar year basis, . e from January I through December 31 of each calendar year. The (ranch,se fee amounts that are due based on CIAC shall be pa~d at least once annually on or before April 30 eacln year based on the total CIAC recorded w.thm the corporate hm~ts ofthe C~ty dur.ng the preceding calendar year. The final payment of franchnse fee amounts based on CIAC wtll be April 30, 2014, for the calendar year ending December 3 I, 2013. {CI It ns also expressly agreed that the atbresa,d payments shall be ~n Ineu of any and all other and add.tlonal occupation taxes, easement, franchise taxes or charges (whether levied as an ad valorem, specml, or other character of tax or charge}, mumcnpal Incense, pemm, and inspection fees, bonds, street taxes, and street or alley rentals or charges, and all other and 14 add,ttonal municipal taxes, charges, levies, fees, and rentals of whatsoever kind and character that City }nay now impose or hereafter levy and collect from Company or Company's agents, excepting only. l ) the usual general or special ad valorem taxes that City iq authorized to levy and impose upon real and personal prope~ ty, 2) tile Company's separate obhgatmn to reimburse the City for street repmrs }n accordance with Section I I (E), and 3 ) penalties as may be prowded for by this franch}se agreement or the Pdght of Way Ordinance Should City not have the legal power to agree Ihat the payment of the foregoing sums of money shall be in heu of occupatmn taxes, licenses, fees, street or alley rentals or charges, easements or franchise taxes, then City agrees that it wdl apply so much of said sums of money paid as may be necessary to satisfy Company's obhgattons, }fany, to pay such occupation taxes, hcenses, charges, lees or rentals (D) If}he Company fails to pay when due any payment prov}ded Ibr in this Section, Company shall pay such amount plus interest consistent w}th the rate for customer deposits under Texas Utd}tles Code Section 183 003 m effect for the t}me period involved (E) Company Recovery of Franch}se Fees City agrees that 0 ) as regulatory authority, it will adopt and approve the ordinance, rates or tanffwhlch provide for 100° ;~ recovery ofthese franchise fees as part of Company's rates, (l i) if the C}ty intervenes m any regulatory proceeding before a federal or state agency in which the recovery of Company's franchise fees is an Issue, the City will take an affirmative posit}on supporting 100% recovery of such franchise fees by Company and, (Iii) m the event of an appeal of any such regulatory proceeding }n wh}ch the city has intervened, the C}ty will take an affirmative position in any such appeals m suppor~ of the 100% recovery of such franchise fees by Company. City further agrees that it will take no action, nor cause any other person or entity to take any action, to prohibit the recovery of such franchise fees by Company iF) Lease of Facihtles W~thin City's Raghts-of-Way Company shall have the right to 15 lease, Incense or otherwise grant to a party other than Company the use of its facllmes within the City's pubhc nglnts-of-way provnded CJI Company first notifies the C~ty of the name of the lessee, hcensee or user, the type of servicel s} intended to be provided through the facflmes; and the name and telephone number ora contact person associated with such lessee, licensee or user and I~ll Company makes the franchise fee payment due on the revenues from such lease pursuant to Sections 20{Al and 201BI ofthis Ordinance This authority to Lease Facflnties within City's Rights-of-Way shall not afl, ct any such lessee, licensee or user's obhgation, ffany, to pay franchise fees SECTION 21 BOOKS AND RECORDS Company agrees that at the time of each quarterly payment, Company shall also submit to the City a sworn statement showing Its Gross Revenues for the preceding calendar quarter as defined m Section 21DI C~ty may, ff it sees fit, upon reasonable not.ce to the Company, have the books and records of Company examined by a representative of said City to ascertain the correctness of the sworn repons agreed to be filed herein Ifsuch an examination reveals that Company has underpaid the City, then upon receipt ofwntten not~fication from Cnty regarding the exnstence of such underpayment, Company shall undertake a revnew of the Cnty's claim and ~ f sand underpayment ns confirmed, remit the amount of underpayment to City, including any interest calculated in accordance with Section 201DI. Should the Company determine through examlnauon of its books and records that the City has been overpay& upon recenpt of written notnficauon from Company regarding the exnstence of such overpayment. City shall revnew the Company's clanm and ff sand overpayment ns confirmed, remit the amount of overpayment to Company SECTION 22. RESERVATION OF RIGHTS: GENERAI~ (A} The City reserves to itself the right and power at all times to exercise, in the 16 interest ofthe public and in accordance with state law. regulation and control of Company's use of the Pubhc 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 thl~ franchise {B) The rights, privileges, and franchises granted by th~s ordinance ate not to be considered exclusive, and City hereby expressly reserves the right to grant, at any tame. like prlvdeges, rights, and franchises as it may see fit to any other person o~- corporation for the purpose of furnishing gas for hghl. heat. and power and for City and the inhabitants thereof {C) City expressly reserves the right to own and/or operate its ox~n system for the purpose o f transport,ng, del,verlng, distributing, or selling gas to and tbr the City and inhabitants thereof SECTION 23 RIGHT TO INDEMNIFICATION AND TO BE HELD HARMLESS (A) In consideration of the gmnt,ng of this franchise. Company agrees to mdernmfy. defend, and hold harmless the City. its officers, agents, employees, boards and commissions (the "lndemmtees") from and against all suits, actions or claims of injury to any person or persons, or damages to any property brought 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 neghgent acts or omissions m connection with Company's operations, except that the mdennalty provided for in this paragraph shall not apply to any habthty detem~lned by a court of competent jurIsdiction to have resulted from the sole neghgence or intentional acts or omissions o fthe City. ~ts officers, agents and e~nployees lnthe event of joint and concurrent negligence or fault of both the Company and the City. responsibility and indemnity, if any. shall be apportioned comparatively in accordance with the laws of the State of Texas without, however, waiving any necessary consent to suit or governmental immumty avatlable to the City under Texas law and without waiving any of the defenses of the 17 part,es under Texas law Ft~rther. in the event ofjomt and concurrent neghgence or fauh of both tile Company and the C~ty. respons,bfl~ty lbr all costs ofdet"ense shall be apport,oned belween the C,ty and Company based upon tile comparanve fault of each { BI In fi~lfilhng ,ts obhgat,on lo defend and mdemm fy C,ty. Company shall have lhe right to select defense counsel, subject to C~ty's approval, whmh will not be unreasonably w,thheld Company shall re,am defense cotmsel w,thm seven { 7} bus~nessdays ofC,ly's wnnen nonce that C~ty m revoking ~ts right to mdemmfieatlon under Ibm Contract IfCompany thfls to retain Counsel w,thm such Im~e period. C~ty shall have the right to re,am defense counsel on ,ts own behalf and Company shall be hable for all defense costs mcnrred by C,ty. except as set out m Sect,on 23IA} SECTION 24 INSURANCE The Company w,II maintain an appropriate level of insurance in cons,deral,on of the Company's obhgat~ons and risks undertaken pursuant to th~s Franeh,se. Such insurance may be m lhe form of self-insurance to the exlent permitted by apphcable law. under an approved formal plan of self-insurance maintained by Company m accordance w,th sound accounting and risk- management pract,ees A certificate of insurance shall be provided to lhe C,ty SECTION 25 TERMINATION IA} R,ght to Term~nale In addmon Io any rights scl out elsewhere m th,s Fmnehme Ordinance. the Clly reserves the r~ght to terminate the franeNse and all rights and pnv,leges pertaining thereto, m the event that the Company violates any mater, al provmlon of the franchise. CB I Procedures for Term,nat~on. (11 The City may. at any t,me, term,hate th,s franeNse for a contmmng material v~olat~on by the Company ofany of the substantial terms hereof In such event, the City 18 shall g~ve to Company written nonce, specifying all grounds on whmh tenmnat~on or forfeiture ts clmmed, by registered ma~l, addressed and dehvered to the Company at the address set forth m Section 9 hereof The Company shall have smty (60~ days after the recmpt ofsuch nonce within whmh to cease such v~olanon and comply with the temps and prows~ons hereof In the event Company fads to cease such wolauon or otherwise comply w~th the temps Inereof, then Company's franchise ns subject to temm~anon under the following pmws~ons Provided, however, that, ffthe Company conwaences work or other eftbrts to cure such wolanons w~thm thtrty (30) days after receipt of written notme and shall thereafter prosecute such curative work wnth reasonable ddigence untd such curative work ~s completed, then such wolanons shall cease to ex~st, and the t'rancluse will not be terminated. (2) Termination shall be declared only by written decnsnon ofthe C~ty Council after an appropriate pubhc proceeding whereby the Company ~s afforded the full opportunity to be heard and to respond to any such not~ce ofviolat~on or failure to comply The Company shall be provnded at least fifteen (15) business day's prior written notme of any publnc heanng concerning the termination of the franchise. In add.t~on, ten (10l days not~ce by one t~me publication shall be g~ven of the date, time and place of any pubhc hearing to interested members of the pubhc, which notme shall be prod for by the Company (3) The City, after full pubhc heanng, and upon finding material wolat~on or fmlure to comply, may terminate the franchise or excuse the vlolanon or failure to comply, upon a showing by the Company of m~t~galmg c~rcumstances or upon a showing of good cause of said violat~on or fadure to comply as may be determined by the C~ty Council (4l Nothing herein stated shall preclude the Company from appeahng the final decision of the Cnty Council to a court or regulatory authority havingjunsdmt~on. The eftbctnve date of such tennmauon shall be e~ther when the appeal ns d~smnssed, w~thdrawn or when a court 19 order ul~hold~ng the tenmnatlon becolnes final and unappealable Until the tenmnatlon becomes effective the prows~ons of this franchise shall Iemam in effect for all purposes (51 Nothing hereto stated shall prevent the Cny from seeking to compel comphance by SUlt m any coart of competent jtlrlsd~cnon ffthe Company fml~ to comply w~th the temps ot' this franchise after due notice and the prowdmg of adequate time for Company to comply with said terms SECTION 26 SEVERABILITY This ordinance and every provision hereof, shall be considered severable, and the invahdity or uncorlstlRlilonahty of any sectlol]~ clause, provision, or pot[ion of th~s ordinance shall not affect the valldfly or constltutlonahty of any other pot[lOll ofth~s ordinance. If any term or provision of this ordinance is held to be illegal, invahd or unenforceable~ the legahty, validity or unenforceabfllty of the remaining terms or provisions of this ordinance shall not be affected thereby 2O SECTION 27 NO WAIVER Either City or the Company shall have the right to waive any requirement contained nn thns ordinance, whnch ns intended for the wmvmg party's benefit, but, except as otherwise provided herein, such waiver shall be effeetnve only ffm writing executed by the party for whose benefit such reqmrement ns intended. No waiver of any breach or violation of any term of thns 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 dnfferent type of breach or violation SECTION 28 EFFECTIVE DATE Thns franchnse shall be effecuve only after la} sixty (60} days following nfs final passage by the City Council, and {b) receipt by the City of Company's acceptance as provided by Sectnon 4 herein PRESENTED, AND GIVEN first reading on the 26 day of _~ebruary ,2004, at a regular meeting of the City Council of the Cnty of College Statnon, Texas: and gnven second reading, passed and approved on the 11 day of.~rr.h~, 2004, by a vote of 7 ayes and. I~ noes at a regular meeting of the City Council of the C~ty of College Station, Texas, and given third reading, passed and approved on the 25 day of Batch 2004, byavoteof 7 ayes and .. of College Station, Texas. ' L. I I. Connie Hooks, Cnty Secretary APP~.D~ED' ~-, Harvey carg~k/Cay At~i~e~ noes at a regular meeting of the Cnty Council of the City ~CIT COL GE STATION Ron ~SiIvla, Mayor 21 EXHIBIT A RIGHTS-OF-WAY ORDINANCE 2457 22 ORDINANCE NO 2457 AN ORDINANCE AMENDING CHAPTER 3, "BUILDING REGULATIONS", OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY AMEND- lNG CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE, AND DECLARING A PENALTY BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS PART I That Chapter 3, "Budding Regulatlo,~s", of the Code of Ordinances of the C~ty of College Statmn, Texas. be amended as set out in Exhibit "A". atlached hereto and made a part of this ordinance for all purposes PART 2: That if any prov,slons of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the vah'dity of the remaining prowsions or sections of this ordinance, which shall remmn ~n full force and effect. PART 3. That any persou, fim~, or corporation violating any of the provisions of this chapter shall be deemed guilty of a m~sdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty-five Dollars {,$25.00) nor more than Five Hundred Dollars ($500.00). Each day such violation shall continue or be permRted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 35 of the Charter of the C~ty of College Station. PASSED, ADOPTED and APPROVED this 22nd day of June. 2000. ATI~EST: CONNIE HOOKS, C~ty Secretary APPROVED APPROVED: HANEY. Mayor / Olgroup/legal/or&nance.Vcoc~ row ord~ dsc O6'2,9/OO ORDINANCE NO. 2457 Page 2 EXHIBIT A That Chapter 3 of the Code of Ordinances of the C~ty of College Station, Texas, is hereby amended by an~endlng Section 2 to read as follows. "SECTION 2: RIGHT-OF-WAY MAINTENANCE A GOVERNING LAW; LIMITATIONS; COMPLIANCE (i) This ordinance shall be construed in accordance with the C~ty's Charter and Code in effect on the effective Date of this ordinance to the extent that such Charter and Code are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas. This ordinance shall be governed in accordance with the laws of the State of Texas B. CIVIL PENALTIES (1) Civil penalties may be imposed for the violation of any provision of this Chapter, as follows: (a) Up to One Thousand Dollars ($1,000.00) for each violation, and each day of a continuing violation may be considered a new violation; and/or (b) If applicable, default and revocation of any or all permits granted to allow work in the right-of-way, subject to thc procedural guidelines noted m this chapter and any agreement which applies to the right-of-way user, and further subject to any limitations imposed by federal or state law. (c) In imposing the penalties and the amount, the City may weigh all applicable factors, such as damages caused by the violation, economic benefit to the violator, reasons for the violation, the seriousness of the violation, and all other factors. (2) Monetary civil penalties may be imposed in the manner prescribed by e~ther local or state law. (3) In addition, the City Council may order specific performance of any actions reqmred by this chapter or requi~l by a franchise, license or permtt, including the permit authorizing work to be performed in the rights-of-way, or any other agreement or authorization. row ord5 doc 24 ORDINANCE NO, 245? Page 3 Prior to initiation ofenfomement litigation, the user shall be given the opportunity to correct the violation within time frame specified by the City For the purposes of th~s Ordinance, when not inconsistent with the context, words, used in the present tense include the future tense, words m the plural include the singular, and words in the singular include the plural, and the use of any gender shall be apphcable to all genders whenever the sense reqmres. The words "shall" and "wdl" are mandatory and the word "may" is permissive. Words not defined in this Ordinance shall be given their common and ordinary meamng. C. CRIMINAL PENALTIES (1) That any person, firm, or corporation willfully and intentionally violates any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be pumshable by a fine of not less than Twenty-five Dollars ($25.00) nor more than Five Hundred Dollars ($500.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense D. DEFINITIONS Person shall include unless otherw,se reqmred in context, a natural person, a legal entity or other group or organization. Facilities means all the plant and equipment including all tangible and intangible real and personal property without limitation, and any and all means and inslxumentality in any manner owned, operated, leased, hcensed, used, controlled, furnished, or supplied for, by, or in connection with its business. Owner means the person who owns the facilities located m the City's right-of-way. Permit means the document issued by the City to the owner of the facilities that anthonzes the use of the right-of-way by the owner to install and maintain its facilities. Permitee means the owner. User means a person who uses the City's rights-of-way to install its facilities. Right of Way means the surface of, and the space above and below a public s~xeet, road, h~ghway, freeway, land, path, public way or place, alley, court, boulevard, parkway, drive, or other easement no or hereafter held by the Ctty (including any street, as defined, which is acquired by eminent domain) for the purpose of pubhc travel and shall include other easements or rights-of-way now or hereal~er held by the City or in which the City O/groupflegal/ordmanee~/cocs row ord$ doc IYa/28/O0 25 ORDINANCE NO. 2457 Page 4 has an interest (including any easements or rights-of-way acquired by eminent domain) which shall, w:th their proper use and meaning, entitle the City and a utility to use thereof for the purpose of installing faclht~es, and other property as may ordinarily be necessary and pertinent to a utility system Easement means and shall include any pubhc easement or other compatible use created by dedication, or by other means, to the City for public utility purposes or any other purpose whatsoever. City means the C~ty of College Station, Texas, a home-rule mumclp:~l corporation Applicant means the owner who submits an apphcatmn to the City for a permit authorized under the terms and conditions set forth in this Ordinance An application is not considered administratively complete if it is not signed by and submitted by the owner or the owner's authorized representative or if ~t does not contain all of the informatmn required by the application or this ordinance or if the required fee has not been submitted with the apphcation. Franchise means thc user fee or charge that the City reqmres as payment for using its streets, rights-of-way, public ways, and easements of the City in order to construct, maintain, and operate a private utility system, and includes fees for permits or licenses. Invalid Permit - a permit will not be considered valid if n contains information that incorrect at the time it was submitted or if it is executed by an unauthorized representative or if the applicant has made any misrepresentation of material fact m the application. RIGHT-OF-WAY CONSTRUCTION. No person shall commence or continue with the construction, installation or operation of facilities within the right-of-way in the City except as provided by the ordinances of the City and the directives of the City. All construction activity in City right-of-way will be in accordance with this Chapter. REGISTRATION AND CONSTRUCT[ON PERMITS (I) Registration. In order to protect the public health, safety and welfare, all users of the right-of-way will register with the City of College Station. Registration fees for right-of-way users will be set by College Station City Council resolution. Right of way users who are telecommunications providers and pay annual blanket right-of-way fees pursuant to Chapter 283 of the Texas Local Government Code as amended or users who hold a valid franchise with the City are exempt from the payment of registration fees under this Ord~anance OlgrOUl~egal/or&nanceslcoc..v row orr§ doc O6/28/OO 26 ORDINANCE NO 2457 Page 5 Registration and permits will be issued in the narae of the person who owns the facilities RegistmUon must be renewed every five (Si years. For utthues with a current franchise or license, the franchise or license will be evidence of renewal. If a registration is not renewed, and subject to sixty (60)-day notification to the owner, the facilities of the user will be deemed to have been abandoned. When any information provided for the registration changes, the user will infom~ the City of College Station of the change no more than thmy (30) days after the date the change is made. Registmuon shall include: (a) The name of the user of the right-of-way: (b) The name, address and telephone number of people who will be contact person(s) for the user; (c) The name, address and telephone number of any contractor or subcontractor, if known, who will be working in the right-of-way on behalf of the user, (d) The name(s) and telephone number of an emergency contact who shall be available twenty-four (24) hours a day; (e) Proof of insurance and bonds: An applicant must provide acceptable proof of liability insurance in the total amount of Three Million Dollars ($3,000,000.00); One Million Dollars ($1,000,000.00) primary plus Two Milhon Dollars ($2,000,000.00) umbrella if r~quested by the owner of the facilities, or other provisions as acceptable to the director of financial services or his/her designee. The City Manager or his / her designee may waive or reduce the bonding requiranents in a nm-discriminatory, competitively neulxal manner, taking into consideration both that the person has furnished the City with documcntauon sufficient in the sole discretion of the Finance Director to evidence adequate financial resources substantially greater than the bonding requirements, has a Standard & Poor's A bond rating or better or a Moody's A bond rating or better, and has demonstrated m prior right-of-way construction activity, prompt resolution of any claims and substantial compliance with all required applicable building codes and ordinances. The coverage must be on an "occurrence" basis and must include coverage for personal injury, contractual liablhty, premise habflity, medical damages, underground, explosion and collapse hazards. · O,~r~ulVlegal/ord~aa~ces/cocs rmv etd5 doc 06/28~00 27 ORDINANCE NO. ~ Page 6 Each policy must include a cancellation provision in which thc insurance company is required to notify the City in writing not fewer than thirty (30) days before canceling, failing to renew, or reducing policy limits. The applicant shall file the required original certificate of insurance prior to any commencement of work. The certificate shall state the policy number; name of the insurance company; name and address of the agent or authorized representative of thc insurance company, name, address and telephone number of insured, pohcy expiration date, and specific coverage amounts 5 Applicant shall file an annual surety bond which will be valid each year construction will occur through one (1) full year after the completion of the construction from a surety company authorized to do business in the State of Texas in the amount of the estimated amount of the cost to restore thc right-of-way for the work anticipated 1o be done in that year, in the event the applicant leaves a job site in the right-of-way unfinished, incomplete or unsafe or other provisions as acceptable to the director of financial services or his/her designee The above requirements may be met by utilities w~th a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of the City. (2) Construction permits. (a) No pcrsen shall perform any construction or installation of facilities in the right-of-way without first obtaining a construction permit, except as provided herein. The permit will be in the name of the person who will own thc facilities to be constructed. The permit mast be completed and signed by a representative of the owner of the facd~ties to be constmeted. The phrase "construction or installation of facilities" does not include thc installation of facilities necessary to initiate service to a customer's property, or repair or maintenance of existing facilities unless such repair or maintenance requires the breaking of pavement; the closure of a nonresidential traffic lane for a time period greater than four (4) hours; excavation or boring. O/~egal/ordtnance~/L~c~ ro~ ord$ doc 0~28/00 28 ORDINANCE NO 2457 Page 7 (b) (c) 2 Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however the City shall be notified m writing within two (2) business days of any construction related to an emergency responsel including a reasonably detailed deseripllon of the work perforated in the right- of-way and an updated map in a format prescribed by the City of any facilities that were relocated, if apphcable. Emergency response permits are required only if a permit is required pursuant to the applicable provmons herein. The permit shall state to whom it is issued, location of work. location of facilities, dates and times work is to take place and any other conditions established by the City The person requesting a permit will provide the Ctty with documentatmn in the format specified by the City describing: The proposed, approximate location and mute of all facdtfies to be construcled or installed and the applicant's plan for right-of-way construction. Engineering plans which will be on a scale of one inch (1") equals fifty feet ($0') unless otherwise approved by the City. Detail of the location of all fight-of-way and utility easements that applicant plans to use. Detail of all existing City utilities in relationship to applicant's proposed mute. Detail of what facilities the applicant proposes to install, such as pipe size, number of interducts, valves, etc. Detail of plans to remove and replace asphalt or concrete in streets (include City of College Station standard construction details). Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc. including depth located in public right-of-way. Handhole and/or manhole typicals of type of manholes and/or handholes applicant plans to use or access. O/group/legal/ordmance~lcocz row ord$ doc O6/28/OO 29 ORDINANCE NO. 2457 Page 8 (d) (0 (g) 9 Complete legend of drawings submitted by applicant unless otherwise approved by the City. 10. Four (4) sets of englneenng plans must be submitted with permit application. 11 The name, address and phone numbers of the contractor or subcontractor who will perform the actual cons.truction, including the name and telephone number of an individual employed by the contractor who will be available at all times during construction. Such information shah be required prior to the commencement of any work. 12. The construction and installation methods to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the right-of-way, and the dates and times work will occur, all of which (methods, dates, times, etc.) are subject to approval of the City. 13. A statement that the requirements of Subsection E(! )(e)l are met. All construction and installation in the right-of-way shall be in accordance with the permit for the facilities and any approved plans and specifications made in connection with it. The City shall be provided access to the worksite and to such further information as may be reasonably required to ensure compliance w~th the permit. A copy of the construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the City at all times when construction or installation work is occurring. All construction or installation work authorized by permit must be completed in the time specified m the construction permit. If the work cannot be completed within the specified time periods, the permittee may request an extension from the City. Extension requests are to be made at the same location where permits are issued The City will use its besl efforts to approve or disapprove a request for extension as soon as possible A copy of any permit or approval issued by federal or state authorities for work in federal or state right-of-way located in the City of College Station. if requested by the City. O/groupdegal/ordoto~ce~/cocs ro~ ord.~ doc 3O ORDINANCE NO. ~457 Page 9 G (i) (2) (3) (4) (h) A request for a permit must be submitted at least ten (10) working days before the proposed commencement of work in the request, unless waived by the City in writing. (,) Requests for permits will be approved or disapproved by the Ctty wlthm a five (5) business days of rece~vmg ali the necessary reformation. The City wall use best efforts to approve or disapprove a request for permit as soon as posmble. C~ty will provide reason to penmtee should penmt be disapproved. The City or the applicant can request a pre-construction meeting with the permittee and their constmchon contractor. (k) Permit applications are required for construction of new, replacement facilities or upgrading of the company's existing facilities in the right-of- way or public utility easement either aerial or underground (I) Permit fees as adopted by College Station City Council resolution will apply to those right-of-way users who do not pay annual blanket right-of- way fees. CONSTRUCTION STANDARDS. City must be notified twenty-four (24) hours in advance that construction is ready to proceed by either the right-of-way user, their contractor or representative. At the tune of notification, the right-of-way user will inform the City of the number (or other information) assigned from the one-call system. All cons~'uction shall be in conformance with all applicable City codes, local, state and federal laws. Three-by-three (3 x 3) feet information signs identifying the name of the company doing the work, telephone number and permittee's identity and telephone number shall be placed at the location where construction is to occur prior to the beginning of work in the right-of-way and shall continue to be posted at the location during the entire time the work is occurring. Pm reformational sign will be posted in public right-of-way one hundred feet (100') before the construction location commences and each one hundred feet (100') thereafter. unless other posting arrangements are approved or required by the City. Erosion control measures (e.g. silt fence) and advance warning signs, markers, cones and bamcades must be in place before work begins. The contractor will O/group/legal/ordtnaneezleac$ row ard$ doc O6/'28/OO 31 ORDINANCE NO. 2457 Page 10 (5) (6) (7) (8) (9) (10) (11) (12l (13) conlam and prevent all soil from mlgmtmg offs~te by use of water suppression, vehicle cleaning areas, silt fences, hay bales, etc. The Contractor wdl mamtain base material on streets under constroct~on and on detours as required to maintain sufficient moisture content m surface layer for dust control The Contractor will be responsible for cleaning mud and dust from roadways on a daffy bas~s. Lane closures on major thoroughfares will be hm~ted after 8:30 a.m and before 4'00 p.m. unless the City grants prior written approval. Arrow boards will be required on lane closures, with all bamcades, advance warning signs and thirty- six inch (36") reflector cones placed according to the specifications of the City. Permittee is responsible for the quality of the workmanship and any damage caused by its contractors or subcontractors. A designated representative of the permittee will be available to the City at all times dunng construction. Perouttee shall be responsible for storol water management erosion control that complies with City, state and federal regulations and guidelines. Requirements shall include, but not be hmited to, slit fencing around any excavation that will be left overnight, slit fencing in erosion areas until reasonable vegetation is established, barricade fencing around open holes, and high erosion areas will require wire-backed slit fencing. Upon request permlttee may be required to furnish documentation submitted or received from federal or state government. Permittee, contractor or subcontractor will notify the City immediately of any damage to other utilities, ¢~tber City or privately owned. It is the City's policy not to cut streets or sidewalks; however, when a street or sidewalk cut is necessary, prior written approval must be obtained from the City and all requirements of the City shall be followed. Repair of all street and sidewalk removals must be made promptly to avoid safety hazards to vehicle and pedestrian traffic. Installation of facihtles must not interfere with City utilities, in particular, gravity dependent facilities. New facilities must be installed to a depth approved by the City. All directional bonng shall have locater-place bore marks and depths whale bore is in progress. Locater shall place mark at each stem with paint dot and depth at least every other stem. O/groulVlegal/ordmance~/coc..I row ord$ doc O5/28/OO 32 ORDINANCE NO. 2457 Page I I (14) The working hours in the rights-of-way are 7:00 a m. to thirty (30) minutes before sunset, Monday through Friday Work that must be performed after thirty (30) minutes before sunset Monday through Friday must be approved m advance. Any work performed on Saturday must be pre-approved twenty-four (24) hours m advance by the City. D~reetional bonng is permitted only Monday through Friday 7:00 a.m. to thirty (30) minutes before sunset, unless approved m advance. No work will be done, except for emergencies, on Oty hohdays. (15) People working m the right-of-way are responsible for obtaining line locates from all affected utditics or others with facilities m the right-of-way pr/or to any excavation Use of the Geographic Information System or tho plans of record or both does not satisfy this requirement. (16) Permittee will be responsible for verifying the location, both hor,zontal and vertical, of all facilities. When required by the City, permittee shall verify locations by pot holing, hand digging or other method approved by the City prior to any excavation or bonng with the excephon of work revolving lane closures, as d~scussed above (17) Placement of all manholes and/or hand holes must be approved in advance by the City. Handholes or manholes will not be located in sidewalks, unless approved by the City (18) Locme flags shall not be removed from a location while facilmes are bemg constructed. (19) Construction which requires pumping of water or mud shall be contained in accordance with City of College Station ordinances, federal and state law. H. PLANS OF RECORD (i) Right-of-way and public utility eas~nent users will provide the City with "plans of record" (also called "as built "plans) within ninety (90) days of completion of facihties in the right-of-way and/or public utility easement. Users who have existing facihties ~n the right-of-way and public utility easements as of the effective date of this ordinance who have not provided a copy of the "plans of record" shall provide one-fourth ('/4) of the information concerning facilities in City right-of-way within one (I) year after the passage of the ordinance and one- fourth (¼) each SlX (6) months thereat~er. The plans shall be provided to the C,ty with as much detail and accuracy as rcqmred by the City. Plans that do not meet these requirements are incomplete and shall not be considered submitted to the City under this Ordinance All the r~quirements specified for the plans submitted for the initial permltshall be submitted and updated ,n the plans of record. The O/gro~egal/ordlnancerdco~ ,"ow ordJ doc 33 ORDINANCE NO. 2457 Page 12 detail and accuracy will concern issues such as locationand any other health, safety and welfare concerns required to be included by City. The detad will not include matters such as capacity of lines, customers, or competitively sensitive details. Submittal of"plans of record" shall be in &gltal format. (2) This requirement, or portions of this requirement, may be wmved by the City for good cause. RELOCATION OF FACILITIES REQUIRED; ABANDONMENT Whenever the City widens, or straightens, installs, relocates public streets, alleys, easements, b~keways, sidewalks, thoroughfares, highways, public ways, water lines, electric lines, fiber optic or sewer lines, the user shall relocate, at its own expense (unless otherwise provided otherwise by state law or a franchise in effect on August 26, 1999, until that franchise expires or is otherwise terminated), its facilities and other appurtenances in order to accommodate the installation, relocation, widening, or changing of the grade of same including if necessary relocating such poles wire cables anchors, manholes, conduits, or other £acflmes or appurtenances to a sufficient distance from thc edge of the pavement to permit a reasonable work area for maciunery and individuals engaged in installing, relocating, w~daning, or changing the grade of any public street, sidewalk, bikeway, alley, public thoroughfare, highway or public way Additionally, the user must relocate at its sole expense any facilities erected or maintained if said relocatmn is deemed necessary by the governing body or its designated representative for traffic safety purposes or the accommodation of other necessary utilities owned and/or operated by the City including traffic signals. Whenever by reason of changes in the grade of a thoroughfare or in the location or manner of constructing a water pipe, gas pipe sewer or other abovegrnnnd or underground stmcturo it is deemed necessary by the City to remove, alter change adapt or con.form the underground or aboveground faciliues of the user, the user shall make the promptly but not later than ninety (90) days from the date that notice is sent to Owner unless a different schedule was approved by the City without claim for reimbursement or damages against the City. If Owner fails to move its facilities after ninety (90) days or the approved schedule, whichever is applicable, as same may be extended from time to time, the facilities shall be deemed abandoned and City may remove the facdities without liability therefore and charge the cost of removal to Owner. IMPROPERLY INSTALLED FACILITIES (1) Any person doing work in thc City right-of-way shall install, repair, upgrade and maintain facJhties in a good and workmanlike manner, and in accordance with the standards and specifications established herein as well as all applicable industry standards, and local, state, administrative and federal laws, rules, regulations and guidelines. O/groupflegal/ordlnance. s/cocs row ord$ doc O6,78/OO 34 ORDINANCE NO. 2457 Page 13 (2) Facilities shall be considered to be improperly installed, repaired, upgraded or maintained it. The installation, repairs, upgrade or maintenance endangers property or people; (bi The facilities do not meet the applicable City codes, (c) The facilities are not capable of being located using stan~rd practices; (d) The facilities are not located in the proper place at the time of construction in accordance with the directions provided by the City. RESTORATION OF PROPERTY. (1) Users of the right-of-way shall restore property affected by construction of facilities to a condition that is equal to or better than the condition of the property prior to the performance oftbe work. Restoration must be approved by the City. (2) Restoration must be to the reasonable satisfaction of the City. The restoration shall include, but not be limited to: Replacing all ground cover with the type of ground cover damaged during work or better either by sodding or seeding, as directed by the City; Co) Installation of all manholes and handholes, as required; (c) Backfilling all bore pits, potholes, ~renches or any other holes shall be filled in daily, unless other safety requirements are approved by the City; (d) Leveling of all trenches and backhoe lines; (e) Restoration of excavation site to City specifications; (O Restoration of all landscaping, and spnnlder systems. All locate flags shall be removed during the clean up process by the permitiec or his/her contractor at the completion of the work. Restoration must be made promptly, as specified by approved City schedules and to the satisfaction of the City. If restoration is not performed promptly, all work-in-progress, except that related to O/gro~egal/ordmanee~coc~ row ord5 doc ORDINANCE NO. 2457 Page 14 L the problem, including all work previously permitted but incomplete may be halted and a hold may be placed on any permits in progress but not approved until all restoration is complete. REVOCATION OR DENIAL OF PERMIT. If any of the provisions of this ordinance are not followed, a permit may be revoked by the City. Ifa person has not compl,ed with the terms and conditions of this ordinance m work done pursuant to a prior permit, new permits may be denied or additional terms and conditions required. APPEAL FROM DENIAL OR REVOCATION OF PERMIT. Appeal from denial or revocation of a permit or from the decision of the City staff shall be to the City Council. Appeal shall be filed with the City Secretary within fifteen (15) days from the date ofthe decision being appealed." O/groupdegallordta~nce~/cocs row omi doc 36 EXHIBIT B CERTIFICATE OF INSURANCE 37 Fib-IZ-ZO04 03 ,~4~ From-T~(U G,~S *t g?g TT4 ;'628 T-585 P 003/006 F-350 Fcbma.Ty 12, 2004* Mr. Bdl Cody C~ty of College Station P 0 Box 9960 Coll%,c Smuo~, Texas ~7~2 I'XU Gas Company Insurance Certification CiW o~ College Station Franchise Agreemmt D~ar ~-. Cody. have any questions, pleas~ conta~ me al te.l~l~:mc number 214/812-4753. Risk Anai.v~ Six~ahst WRWIsd 38 Feb-IZ-2004 03 44pm FroB-T~LJ GAS 4,1 OT9 7?4 Z5Z6 T-085 P 004/006 INSURAN~ ................... CERTIFICATE OF DaUas, ~'e~u 752Of So~ Insured #aZ/ace 39 TEXAS DEPARTMENT OF PUBLIC SAFETY SAPETY RE~PUNSIBILITY BUREAU 512/424-2600 RE Self-Insurance' Ce~lficate No 78 To Whom IT May Concern. Th.s IS to certify That the above entity has bCuwl approved as a self-insurer under the ]'exas Motor Vah*cle Safe'~y Respenslbdiw Act and ass~grmd Ssi! Insuranoe Number 78 (seventy-mght). This number should be inserled m the space prowded on thc SR- 21, Insurance Informatmn !otto, which is to he at?ached to the a¢¢iden£ report form ~n reporbng all accidents This approval Is effecuve Apnl 1 9, 2002 and will remain vahd for Three years unless it should be cancelled by The Department On Apr. 19. 2005 this c$1~lflcate will expire and become void Sincerely yours, Debbe Cartwnght. Actin9 Manager Safe~y ResponsLhlhly Bureau DC.bw 1.1AIIXLIT'Y INSURANCI~ RIEQ'(JIREb~ENT5 OF [ ~R 60J 0il(1) AND 601.053, ONLY TEOSE FNTITY TO WM~M T~ ~RTI~ICATE JS I~D. 4O Fab-12-ZO04 03'45Dm From-TXU GAS 0528 ~ ~ysTem (former])' TL'Xa'c T,TfiUUe$ Cempnn}, System) means: T-585 P 006/006 F-350 At{~chm~,tA 41 STATE OF TEXAS ~ COUNTY OF DALLAS § WHEREAS, there was finally passed and approved on March 25, 2004, Ordinance No. 2705 granting to TXU Gas Company, a corporation, its successors and assigns, a frenchlas to furnish and supply gas to the general public in the City of College Station, Brezos County, Texas, for the transporting, delivery, sale and distribution of gas in, out of and through said municipality for all purposes, which is recorded in the Minutes of the City Council of said City; and WHEREAS, Section 4 of said ordinance provides as follows: "The Company shall have sixty (60) days from and after the passage and approval of the ordinance to file Its written acceptance thereof with the City Secretary. If the Company does not file such written acceptance of this Franchise Ordinance, the Franchise Ordinance shall be rendered null and void." AND, WHEREAS, it is the desire of TXU Gas Company, the holder of the rights, privileges and grants under the aforesaid franchise ordinance, to comply with the above-quoted provisions of Section 4 thereof. NOW, THEREFORE, premises considered, TXU Gas Company, acting by and through its duly authorized officers, and within the time prescribed by Section 4 quoted above, does hereby agree to and accept the franchise granted to it by the above-described ordinance, in accordance with its terms, provisions, conditions and requirements and subject to the stipulations end agreements therein contained. WITNESS THE EXECUTION HEREOF, on this the 7. C'~dey of April, 2004. TXU GAS COMPANY Vice President STATE OF TEXAS COUNTY OF BRAZOS CITY OF COLLEGE STATION I, Connie Hooks, City Secretary of the City of College Station, Texas, do hereby certify that the above and foregoing is a true and correct copy of a formal acceptance of a franchise ordinance finally passed and approved by said City on March 25, 2004, and of record in the Minutes of the City; and I do further certify that said acceptance has been duly presented to the City Council and filed in connectJon with and as a part of said franchise ordinance. OF WHICH, witness my official signature and the seal of said City on this the 26t:h day of ^?,-~ ~ ,2004. City of College STation, Texas 2