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HomeMy WebLinkAbout1993-2004 - Ordinance - 03/11/1993ORDIN/LNCE NO. 2004 AN ORDINANCE GRANTING THE RIGHT, PRIVILEGE, AND FRANCHISE TO EMERALD FOREST COMMUNITY IMPROVEMENT ASSOCIATION, GRANTEE, AND ITS SUCCESSORS AND ASSIGNS, TO OWN, MAINTAIN AND OPERATE WITHIN THE FOLLOWING PUBLIC STREETS: AMBER RIDGE, ROSEWOOD AND EMERALD PARKWAY, WITHIN THE GRANTEE'S PROPERTY AND WITHIN THE PUBLIC UTILITY EASEMENTS CURRENTLY EXISTING ON GRANTEE'S PROPERTY IN THE CITY OF COLLEGE STATION, TEXAS, SUCH PIPES, ELECTRIC LINES AND OTHER APPLIANCES, STRUCTURESAND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF IRRIGATION AND LANDSCAPE LIGHTING SERVICES; PROVIDING FOR CONSIDERATION; FOR PERIOD OF GRANT~ FOR A METHOD OF ACCEPTANCEs FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY. WHEREAS, the City Council of the City of College Station, Texas, entered into an agreement with the Emerald Forest Community Im- provement Association to install landscaping and irrigation in the Emerald Parkway right-of-way for the purpose of providing a natural and aesthetically pleasing visual area at one of the major intersections of the City~ and WHEREAS, that agreement entered into on the 24th day of Septem- ber, 1992, required the Emerald Forest Community Improvement Association to accept and maintain the irrigation and landscape lighting systems upon completion~ and WHEREAS, the City Council of the City of College Station, Texas, desires to grant the right, privilege, and franchise to Emerald Forest Community Improvement Association to own, maintain, and operate within the street of Amber Ridge, Rosewood and Emerald Parkway pipes, electric lines and other structures for irrigation and landscape lighting~ NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: SECTION 1. GRANT OF RIGHT. PRIVILEGE AND FRANCHISE FOR MAIN- TENANCE OF IRRIGATION LINES AND SERVICE. That the right, privilege and franchise for main- tenance of irrigation pipelines, electric lines and appliances be, and the same is hereby granted to Emerald Forest Community Improvement Associa- tion and its successors, affiliates and assigns, subject to the terms and conditions hereinafter set forth, to own, maintain and operate within Amber Ridge, Rosewood and Emerald Parkway within the public utility easements currently existing in the Emerald Forest Subdivision in the City of College Station, Texas (hereinafter "City"), such ORDINANCE NO. 2004 PAGE 2 SECTION 2. pipelines, electric lines and other appliances necessary or convenient for rendition of irriga- tion and landscape lighting services to the land- scaping in the Emerald Parkway median and subdivi- sion entrance right-of-way. Such irrigation pipelines, electric lines and appliances shall be used only for irrigation and landscape lighting of the median and subdivision entrance right-of-way and shall not be used for any other purpose. Such irrigation pipelines, electric lines and appli- ances shall cross (i) Amber Ridge Drive at Emerald Parkway and (ii) Rosewood at Emerald Parkway. CITY SUPERVISION OF MATERIALS. PIPELINES. AND APPLIANCES. That all pipelines and electric lines placed by Emerald Forest Community Improvement Association shall be of sound material and reasonably straight and shall be set so that they will not interfere with other utilities and drainage structures and so that the same will not interfere with the ordi- nary travel of streets and sidewalks. The loca- tion, relocation, and rerouting of all pipelines and appliances by Emerald Forest Community Im- provement Association 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 all aspects of the Emerald Forest Community Improvement Association franchise, in- cluding all plats, replats, maps (indicating util- ity tie-ohs, right-of-way measurements, location of existing utilities), electric line locations, pipe locations, pipeline relocations, and materi- als used shall meet City specifications and be subject to City inspection and approval. 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 Emerald Forest Community Improvement Association pursuant to this franchise and/or the stoppage of irrigation in the event of a (1) violation of the National Plumbing Code, (2) a violation of re- quirements and design criteria of the Texas Health Department and/or the Texas Water Commission, (3) a violation of this franchise agreement, or (4) a ORD?NANCE NO. 2004 PAGE 3 SECTION 3. threat to the health, safety or welfare of the residents of the City of College Station as deter- mined by the city. Such relocation or stoppage of irrigation shall be at the expense of Emerald Forest Community Improvement Association. That if the City cuts off water to the pipeline and appli- ances due to a leak, the City shall not be respon- sible for any damage that may occur to the plant- ings in the franchised area. That the location of underground electrical lines before the meter 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, Emerald Forest Commu- nity Improvement Association shall utilize reason- able efforts to assist the City in locating, 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 Emerald Forest Community Improvement Association fails to locate its pipelines within such two (2) business day period, Emerald Forest Community Improvement Asso- ciation waives any claims of damages against City for damage caused to such pipelines by the appli- cable construction or repairs. Emerald Forest Community Improvement Association shall notify City and other applicable utility companies at least two (2) business days prior to performing excavation for the construction or repair of pipelines and appliances installed pursuant to the franchise in public utility easements existing on Emerald Forest Community Improvement Association 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 Emerald Forest Community Improvement Association in renew- ing, repairing, or maintaining its irrigation sys- tem shall be restored by Emerald Forest Community Improvement Association to the satisfaction of the City Council or of any City official to whom such duties have been made or delegated; and Emerald ORDINANCE NO. 2004 PAGE 4 SECTION 4. SECTION 5. Forest Community Improvement Association shall 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 Emerald Forest Community Improvement Association to renew or maintain its 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 the Emer- ald Forest Community Improvement Association. That the repair of electric lines servicing the landscaping is the sole responsibility of the Emerald Forest Community Improvement Association. PREPARATION FEE AND ANNUAL CASH CONSIDERATION TO BE PAID. The Emerald Forest Community Improvement Associa- tion agrees to pay as consideration for the grant- ing of this franchise an annual fee of Ten Dollars ($10.00) and other good and valuable consideration 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 the Emerald Forest Community Improvement Associa- tion's pipelines and appliances and to compensate City for its superintendence of this Agreement. PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTwR9 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 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 ORDINANCE NO. 2004 PAGE 5 SECTION 6. SECTION 7. SECTION 8. SECTION 9. 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 the Emerald Forest Community Improvement Association's obliga- tions, if any, to easement or franchise taxes. NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS O INANCE. That nothing herein contained shall be construed as giving to Emerald Forest Community Improvement Association any exclusive privileges. That Emerald Forest Community Improvement Associ- ation shall indemnify and hold harmless City from any and all claims for losses, damages and in- juries arising out of the operation of the fran- chise herein granted and use of public right-of- way and property in connection with the operation of such franchise. Further, in the event of liti- gation, Emerald Forest Community Improvement Asso- ciation shall pay any attorney's fees as may be incurred by City in enforcing the provisions of this franchise agreement. That the city reserves to itself exclusively the power to regulate Emerald Forest Community Im- provement Association to the full extent such power is conferred by law. That during business hours, Emerald Forest Commu- nity Improvement Association shall be open to city Council or its designated City official for the inspection of contracts, books of account, and cost operating records pertaining to its opera- tions covered by this franchise. SUCCESSORS. AFFILIATES. AND ASSIGNS. That the rights, powers, limitations, duties and restrictions herein provided for shall inure to ORDIN~I~ICE NO. 2004 PAGE 6 SECTION 10. SECTION 11. SECTION 12. and be binding upon the parties hereto and upon their respective successors, affiliates, and assigns. PARTIAL INVALIDITY AND REPF~L 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 re- pealed. That Emerald Forest Community Improvement Associa- tion shall acquire and maintain General Liability Insurance in the minimum amount of $300,000 for the term of this franchise and that Emerald Forest Community Improvement Association shall name the City on the insurance policy as an additional in- sured party. The Emerald Forest Community Im- provement Association shall require any contractor performing maintenance or repair work on the irri- gation 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. Emerald Forest Community Im- provement Association shall give at least fifteen (15) days written notice to the city before any insurance policy is changed, altered, or ter- minated in any way which would alter the above- stated minimums. TERM OF FPJ~NCHISE AND TERMINATION. That the term of this franchise shall be for ten (10) years. Emerald Forest Community Improvement Association 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. Emerald Forest Commu- nity Improvement Association may terminate this franchise prior to the expiration hereof by giving City written notice of such early termination six (6) months prior to the effective date of such early termination. ORDINANCE NO. 2004 PAGE 7 SECTION 13. ACCEPTANCE OF AGREEMENT. That Emerald Forest Community Improvement Associ- ation shall have sixty (60) days from and after the final passage and approval of this Ordinance in accordance with Charter Section 120 to file its written acceptance thereof, with the City Secre- tary, and upon each acceptance being filed, the date of its acceptance, and shall effectuate and make binding the agreement provided by the terms hereof. PASSED, ADOPTED, and APPROVED this the 11th day of March, 1993. ATTEST: City Secretary APPROVED: First Consideration & Approval: February 11, 1993 February 25, 1993 Second Consideration & Approval= Third Consideration & Approval: March 11, 1993