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HomeMy WebLinkAbout1992-1991 - Ordinance - 12/10/1992ORDINANCE NO. 1991 AN ORDINANCE GRANTING THE RIGHT, PRIVILEGE, AND F~-NCHISE TO TAC REALTY, INC., G~ANTEE, AND ITS SUCCESSORS AND ASSIGNS, TO OWN, NAINTAIN AND OPERATE WITHIN THE FOLLOWING PUBLIC STREETS= AMSER- WOOD COURT, LAKESIDE COURT, BROOKWATER CIRCLE (TWO CROSSINGS), AND STONEBROOK DRIVE, AND THE FOLLOWING PROPOSED STREETS= SMOKE- TREE COURT SOUTH AND SMOKETREE COURT NORTHw WITHIN THE GRANTEE'S PROPERTY AND WITHIN THE PUBLIC UTILITY EASEMENTS CUrrENTLY EXIST- ING ON GRANTEE'S PROPERTY IN THE CITY OF COLLEGE STATION, TEXAS, SUCH PIPES AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECES- SANY OR CONVENIENT FOR RENDITION OF IRRIGATION SERVICES; PROVID- ING FOR CONSIDERATION; FOR PERIOD OF G~ANT~ FOR ASSIGNMENT TO AMBE~LAKE HOMEOWNER'S ASSOCIATION; FOR METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY. WHEREAS, the City Counci! of the City of College Station, Texas, desires to grant the right, privilege, and franchise to TAC Realty, Inc., to own, maintain, and operate within Amberwood Court, Lakeside Court, Brookwater Circle (two crossings), and Stonebrook Drive, and the proposed but not yet dedicated streets Smoketree Court South and Smoketree Court North, in the developed area pipes and other structures for irrigation; and WHEREAS, the City at such public hearing invited any interested person or his attorney to appear and contend for or against the granting of the proposed franchise; and WHEREAS, at such hearing recommendations were given as to what health requirements should be followed and maintained for the franchise, what procedures should he followed in case of a health risk, what construction procedures should be followed, and how many years such franchise should last. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS= SECTION 1. GRANT OF RIGHT. PRIVILEGE AND FP~NCHISE FOR MAIN- TENANCE OF IRRIGATION LINES AND SERVICE. That the right, privilege and franchise for main- tenance of irrigation pipelines and appliances be, and the same is hereby granted to TAC Realty, Inc., and its successors, affiliates and assigns, subject to the terms and conditions hereinafter set forth, to own, maintain and operate within Amberwood Court, Lakeside Court, Brookwater Circle (two crossings), and Stonebrook Drive, and the proposed but not yet dedicated streets Smoketree Court South and Smoketree Court North within the Woodcreek Subdivision and within the public util- ORDINANCE NO. 1991 PAGE 2 SECTION 2. ity easements currently existing in the Woodcreek Subdivision in the City of College Station, Texas (hereinafter "City"), such pipelines and other appliances necessary or convenient for rendition of irrigation services. Such irrigation pipelines and appliances shall be used only for irrigation of the Woodcreek Subdivision common areas and shall not be used for any other purpose. Such irrigation pipelines and appliances shall cross (i) A~berwood Court at Woodcreek Drive, (ii) Lake- side Court at Woodcreek Drive, (iii) Brookwater Circle at its western-most crossing with Woodcreek Drive, (iv) Brookwater Circle at its eastern-most crossing with Woodcreek Drive, (v) Stonebrook Drive immediately South of its intersection with Stonebridge Drive, (vi) the proposed but not yet dedicated street Smoketree Court South, (vii) the proposed but not yet dedicated street Smoketree Court North. CITY SUPERVISION OF MATERIALS. PIPELINES. AND APPLIANCES. That all aspects of the TAC Realty, Inc., fran- chise, including all plats, replats, maps (indicating utility tie-OhS, right-of-way measure- ments, location of existing utilities), pipe loca- tions, pipeline relocations, and materials used shall meet City specifications and be subject to City inspection and approval. All pipelines placed by TAC Realty, Inc., shall be of sound material and reasonably straight and shall be set so that they will not interfere with other utili- ties and drainage structures and so that the same will not interfere with the ordinary travel of streets and sidewalks. The location, relocation, and rerouting of all pipelines and appliances by TAC Realty, Inc., shall be subject to and con- structed in accordance with the requirements and design criteria for irrigation and sewerage sys- tems of the National Plumbing Code, the Texas Health Department, the Texas Water Commission, and the regulation, control, and direction of the City through the City Council or its designated City official. That the City Council or its designated City offi- cial shall have the authority to require the relo- cation of any pipelines or appliances installed by TAC Realty, Inc., pursuant to this franchise and/or the stoppage of irrigation in the event of ORDINANCE NO. 1991 PAGE 3 SECTION 3. a (1) violation of the National Plumbing Code, (2) a violation of requirements and design criteria of the Texas Health Department and/or the Texas Water Commission, (3) a violation of this franchise agreement, or (4) a threat to the health, safety or welfare of the residents of the City of College Station as determined by the City. Such reloca- tion or stoppage of irrigation shall be at the expense of TAC Realty, Inc. That if the City cuts off water to the pipeline and appliances due to a leak, the City shall not be responsible for any damage that may occur to the plantings in the franchised area. That the location of underground electrical lines near such pipelines shall be marked, paid for, and maintained by the City. STREETS AND APPURTENANCES TO BE RESTORED TO GOOD CONDITION. That at the request of City, TAC Realty, Inc., shall utilize reasonable efforts to assist the City in locating pipelines within two (2) business days after such request pipelines and appliances installed pursuant to this franchise in order to facilitate construction or repairs in the vicinity of such pipelines or appliances. In the event that TAC Realty, Inc., fails to locate its pipelines within such two (2) business day period, TAC Realty, Inc., waives any claims of damages against City for damage caused to such pipelines by the applicable construction or repairs. TAC Realty, Inc., shall notify City and other applica- ble utility companies at least two (2) business days prior to performing excavation for the con- struction or repair of pipelines and appliances installed pursuant to the franchise in public utility easements existing on TAC Realty, Inc., property; provided that such advance notice shall not be required in connection with any emergency repairs. That the surface of any street(s), sidewalks, or public utility easement(s) and appurtenances thereof within the City disturbed by TAC Realty, Inc., in renewing, repairing, or maintaining it's irrigation system shall be restored by TAC Realty, Inc., to the satisfaction of the City Council or of any City official to whom such duties have been made or delegated; and TAC Realty, Inc., shall ORDINANCE NO. 1991 PAGE 4 SECTION 4. SECTION 5. warrant such restoration for one year from the date the surface of said street or public utility easement is broken for such construction or main- tenance work, after which time maintenance respon- sibility shall rest with City. No such public street or public utility easement shall be encum- bered for a period longer than shall be necessary to execute the work. When it is determined that any public street(s) within the City must be dis- turbed by TAC Realty, Inc., to renew or maintain it's irrigation system, such street(s) shall be bored and not cut. Cutting a street shall only be allowed if boring is not possible and if a City permit is obtained. That irrigation pipeline and appliance maintenance and repair is the sole responsibility of TAt Realty, Inc. TAt Realty, Inc., agrees to be responsible for the cost of repairing any damage done to the pipeline and appliances if public utilities and/or any other currently franchised utility infrastructure are extended in the future along the right-of-way of Stonebrook Drive. PREPARATION FEE AND ANNUAL CASH CONSIDERATION TO BE PAID. TAt Realty, Inc., agrees to pay as consideration for the granting of this franchise a one-time fee of Five Hundred Twenty Dollars ($520.00). That to indemnify the City for any and all possible damages to its streets and public utility ease- ments which may result from the placing therein of TAC Realty, Inc.'s pipe lines and appliances and to compensate City for its superintendence of this Agreement, and as the cash consideration for the same, TAC Realty, Inc., agrees to pay to City annually during the continuance of this Agreement a sum of money equal to Fifty Dollars ($50.00). Said one-time fee shall be made October 22, 1992, and the annual payments shall be due on January 1 each year, commencing on January 1, 1993. PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYMENTS EXCEPT USUAL. GENERAL OR SPECIAL AD That City agrees that the consideration set forth in the preceding section hereof shall be paid and received in lieu of any tax, license, charge, fee, street or alley rental or any other character of ORDINANCE NO. 1991 PAGE SECTION 6. SECTION 7. SECTION 8. charge for these and occupancy of the streets and public utility easements of City; in lieu of any pole tax or other inspection fee tax; in lieu of any easement or franchise tax, whether levied as ad valorem, special or other character of tax; and in lieu of any imposition other than the usual general or special ad valorem taxes now or here- after levied. Should City not have the legal power to agree that the payment of the foregoing cash consideration shall be in lieu of the taxes, licenses, charges, fees, rental, and easement or franchise taxes aforesaid, then City agrees that it will apply so much of said payment as may be necessary to the satisfaction of TAC Realty, Inc. fs obligations, if any, to easement or fran- chise taxes. NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE. That nothing herein contained shall be construed as giving to TAt Realty, Inc., any exclusive privileges. LIABILITY. That TAC Realty, Inc., shall indemnify and hold harmless City from any and all claims for losses, damages and injuries arising out of the operation of the franchise herein granted and use of public right-of-way and property in connection with the operation of such franchise. Further, in the event of litigation, TAC Realty, Inc., shall pay any attorney's fees as may be incurred by City in enforcing the provisions of this franchise agree- ment. That the City reserves to itself exclusively the power to regulate TAt Realty, Inc., to the full extent such power is conferred by law. That during business hours, TAt Realty, Inc., shall be open to City Council or its designated City official for the inspection of contracts, books of account, and cost operating records per- taining to its operations covered by this fran- chise. ORDINANCE NO. 1991 PAGE 6 SECTION 9. SECTION 10. SECTION 11. SUCCESSORS. AFFILIATES. AND ASSIGNS. That the rights, powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors, affiliates, and assigns. Further, that the City Council of the City of College Station authorizes the assignment of the franchise by TAC Realty, Inc., to Amberlake Homeowners' Association, the non-profit corpora- tion which administers the applicable portion of the Woodcreek project; and upon delivery to the City of written notice of such assignment and the assumption by Amberlake Homeowner's Association of the obligations of TAC Realty, Inc., hereunder, TAC Realty, Inc., shall be released and relieved from any obligations, duties and liabilities aris- ing hereunder from and after the effective date of such assignment. PARTIAL INVALIDITY AND REPEAL PROVISIONS. That if any section, sentence, clause, or phrase of this Ordinance is for any reason held to be illegal, ultra vires, or unconstitutional, such invalidity shall not affect the validity of the remaining portions of this Ordinance. All ordi- nances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed. INSURANCE. That TAC Realty, Inc., shall acquire and maintain General Liability Insurance in the minimum amount of $300,000 for the term of this franchise and that TAC Realty, Inc., shall name the City on the insurance policy as an additional insured party. That TAC Realty, Inc., shall require any contrac- tor performing maintenance or repair work on the irrigation pipelines and appliances to acquire and maintain Automobile Insurance in the minimum amount of $300,000 and Worker's Compensation in the minimum amount of $100,000, both for the term of this franchise. TAC Realty, Inc., shall give at least fifteen (15) days written notice to the City before any insurance policy is changed, altered, or terminated in any way which would alter the above-stated minimums. ORDINANCE NO. 1991 PAGE ? SECTION 12. TERM OF FRANCHISE AND TERMINATION. That the term of this franchise shall be for ten (10) years. TAC Realty, Inc., shall give City written notice of any request for renewal of its franchise six (6) months prior to expiration of the franchise granted by this ordinance. TAC Realty, Inc., may terminate this franchise prior to the expiration hereof by giving City written notice of such early termination six (6) months prior to the effective date of such early termina- tion. SECTION 13. ACCEPTANCE OF AGREEMENT. That TAC Realty, Inc., shall have sixty (60) days from and after the final passage and agproval of this Ordinance in accordance with Charter Section 120 to file its written acceptance thereof, with the City Secretary, and upon each acceptance being filed, the date of it's acceptance, and shall ef- fectuate and make binding the agreement provided by the terms hereof. PASSED, ADOPTED, and APPROVED this lOth day of December, 1992. ATTEST City Secretary APPROVED: First Consideration & Approval: Second Consideration & Approval: Third Consideration & Approval= October 22, 1992 November 12, 1992 December 10~ 1992