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HomeMy WebLinkAbout1998-352\ICII IAIWOLIISIIAR6=EPTLOL Fu 1mm1,\ONnimcMOMrn¢ Odd doc ORDINANCE NO 90 �3J.Z AN ORDINANCE GRANTING A LICENSE TO ACME BRICK COMPANY FOR THE PURPOSE OF MAINTAINING AND OPERATING A NATURAL GAS PIPELINE WITHIN THE PUBLiC RIGHT-OF-WAY OF TILE CITY OF DENT ON, TFXAS, PROVIDING FOR A LICENSE FEE, PROVIDING FOR I HE RLGULA I ION OF THE CONS FRUC t ION, RLCONS rRUCTION, MAINTENANCE, AND USE THEREOF, PROVIDING FOR A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECT IVE DATE WHEREAS, the Charter of the City of Denton requires any person or corporation making use of or occupying any City street, right-of-way, or public grounds to obtain franchise or permit (e g , a license) for such use or occupancy, and WHEREAS, by Ordinance No 88-142, Acme Brick Company, a Texas Corporation, was granted the right to install, maintain, and operate a natural gas pipeline within the street right-of-way of the City of Denton until July 1, 1998, and WHEREAS, Acme Brick Company has requested a renewal of its license right to maintain and operate the existing pipeline within the right-of-way, and WHEREAS, the City Council of the City of Denton, Texas, has determined that it is appropriate to grant the following license to Acme Brick Company in accordance with the terms thereof, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I PURPOSE A The City of Denton, Texas, ("City"), grants to Acme Brick Company ("Acme"), the right and privilege to construct, reconstruct, replace, maintain, use, and operate within the public right-of-way of City all necessary or desirable pipelines or other structures or appurtenances ("Facility" or "Facilities") in connection with a pipeline system for the purpose of conveying natural gas, subject to the conditions of this ordinance B The rights and privileges herein granted to Acme shall not give Acme any exclusive right to the use of any portion of the public right-of-way and City may grant or permit any other party to make use of any public right-of-way, subject to the rights granted to Acme herein SECTION II LOCATION OF SYSTEM AND FACILITIES A The license granted herein for the Facilities is only for the use of that portion of the public right-of-way crossed by the pipeline at Hobson Lane, as shown in Exhibit "A", attached hereto and incorporated herein by reference B City reserves the right to construct, reconstruct, repau, alter, and lay and permit to be laid, sewer, gas, water, electric, and other cables, conduits, pipelines, and lines and to do and permit to be done, any underground, surface or overhead work that may be deemed necessary or proper by City, in, over, under, along, and across any public right-of-way occupied by the Facilities of Acme, including any change of any curb, sidewalk, or grade of any street In performing, permitting, or requiring such work, City shall not be liable to Acme for any damages however caused, whether by the negligence of City, its agents, employees or otherwise, provided, however, nothing herein shall relieve any other person or corporation from liability for damage to the Facilities of Acme, except as otherwise provided for herein C Whenever by reason of changes in the location, grade, or width of any street, alley, ',idewalk, curb, or other feature of any public right-of-way or property, or the location or manner of constructing any water, gas, sewer, pipelines, conduits, or any other surface or underground structure for any purpose whatsoever that shall be deemed necessary or required by City, whether undertaken by City or another party, Acme shall, when ordered by City in writing, relocate, alter, change, adapt, or conform the Facilities to accommodate the changes deemed necessary or required, without compensation or reimbursement to Acme, provided that Acme will not be required to completely remove its Facilities from the public right-of-way SECTION III TERM This license shall have a term of ten (10) years, beginning July 1, 1998, unless otherwise terminated for any breach or default as provided for herein SECTION IV FEE A Acme shall pay to City an annual license fee of $75 00 for the use of the public right- of-way herein granted The first annual payment shall be due and payable within thirty (30) days of the effective date of this ordinance, and each successive annual payment shall be due and payable on or before July 1 B The license fee provided for in Section IV shall be exclusive of and in addition to all other permit, inspection, or other fees or payments that would be applicable to Acme, as required or provided for in any other ordinance, or any other taxes or assessments that may be levied as authorized by federal or state law SSECTION V REGULATION OF CONSTRUCTION A That Acme shall obtain a right-of-way work permit and any other required permits, as specified by City's ordinances, prior to beginning any construction, reconstruction, or other work that will require any digging, cutting, excavation, or tunneling in, under, or across any public right-of- way Any permit fees, inspection fees, or other fees established by ordinance, shall be paid by Acme, and shall be in addition to any other fees provided for in this ordinance B All work performed in the public right-of-way shall be performed so as to minimize interference or disruption of the use thereof by the public, in accordance with the directions of City's authorized personnel Acme shall comply with all other construction or permit requirements of City and the reasonable directions or orders of City's authorized personnel as to the hours of construction work, barricading requirements, traffic control and safety measures, and any other related directions or orders which are imposed to insure the protection of the public PAGE 2 C In emergency situations, Acme may begin work within the public right-of-way without fist receiving the required permits, but shall after beginning the work, apply for the required p rmits thereafter within twenty-four (24) hours or as soon thereafter as is reasonably possible during the business hours of City Any emergency work performed prior to obtaining the required permits shall be in accordance with the ordinances and regulations applicable to work performed under the required permits An "emergency situation" shall only include the work on the Facilities which is immediately necessary to restore normal operations of the Facilities after unexpected disruption and which was not part of any planned or anticipated construction, repair, replacement, reconstruction, or maintenance program D City shall have the power at any time to order and require Acme to remove or abate any of the Facilities, or condition thereof, that are dangerous to life or property, and in case Acme, after written notice, fails or refuses to comply with the order within the time specified, City shall have the power to remove or abate the dangerous condition at the expense of Acme and without liability or compensation for damages to Acme SECTION VI RIGHTS IN THE EVENT OF ABANDONMENT If City closes or abandons any portion of the public right-of-way or property which contains the Facilities of Acme, any conveyance or transfer of title or interest in the public right-of-way shall be subject to the right of Acme to continue to operate and maintain its Facilities therein in accordance with this ordinance SECTION VII INDEMNITY A Acme shall indemnify and save and hold harmless City, its officer, employees, and agents from and against all claims, losses, damages, causes of action, suits and liability of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury to or death of any person, orifor damage to any property, arising out of or in connection with the erection, construction, location, replacement, reconstruction, repair, maintenance, or operation of Acme's Facilities regardless of whether the injury, death, or damage is contributed to by the negligence of City, its officers, agents, or employees, except that the indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit, or liability resulting from the sole negligence of City, its officers, agents, or employees B Acme shall not make any claim against City and City shall not be liable to Acme for any damage to the Facilities, whether actual or consequential, howsoever such damage shall be caused, whether by the negligence of City, its agents, employees, or contractors, or otherwise C Acme shall not have or make against City any claim or demand for or on account of any damage Acme may suffer or sustain because of any failure in City's title to the public right-of- way and lands occupied by the Facilities, or any part thereof D. Any claim made by Acme against any property owner adjacent to the public right-of- way where the Facilities are located for negligence in the manner of constructing any improvements or performing any work within the public right-of-way, when the improvements or work are authorized by City, shall be limited to actual damages to the Facilities, and no claim for consequential damages shall be made PAGE SECTION VIII RECORDS Acme shall keep complete and accurate maps, construction drawings, and specifications describing the location of the Facilities within the public right-of-way, copies of which shall be supplied to City upon request follows SECTION IX NOTICE Any notice or communication required to be provided under this ordinance shall be sent as Notice to City will be to City Manager City of Denton, Texas 215 E McKinney Denton, Texas 76201 SECTION X ASSIGNMENT Notice to Acme will be to Steve Fincher Acme Brick Company 220 E Daniels Denton, Texas 76Z05 All of the rights, privileges, obligations, duties, and, liabilities created by this ordinance shall pass to and be binding upon the successors of City and successors and assigns of Acme Acme shall not, however, assign or transfer its rights or obligations hereunder to any other party without the prior written consent of City, unless the transfer or assignment is to a parent, subsidiary, affiliate of Acme and, in such case, the transferee or assignee agrees, in writing, to assume all of the obligations of Acme hereunder and to be bound to the same extent as Acme hereunder SSECTION XI FORFEITURE A If Acme should violate any of the terms, conditions, or provisions of this ordinance or if Acme should fail to comply with any reasonable provisions of any ordinance of City regulating the installation, maintenance, or operation of the Facilities and should Acme continue to violate or fail to comply with the same for a period of thirty (30) days after Acme is notified in writing by City to correct or,remedy the violation or failure as specified in the notice, then Acme shall be declared to have forfeited all rights and privileges granted by this ordinance as provided for herein B Any forfeiture shall only be declared upon written decision of the City Council of City after a public hearing before the Council at which Acme shall be given notice and an opportunity to respond and be heard as to the alleged violation or failure to comply C Upon forfeiture, Acme shall promptly remove all of its Facilities from the public right-of-way and restore the surface thereof to the same or better condition as existed prior to removal, all at the sole cost of Acme SECTION XII MISCELLANEOUS A The obligations and undertakings of Acme and City under this ordinance shall be performable in the City of Denton, Denton County, Texas PAGE 4 B i This ordinance shall be governed by the laws of the State of Texas and the Denton City Charter C This ordinance shall be and is hereby declared to be cumulative of all other ordinances of City, this ordinance shall not operate to repeal or affect any of such other ordinances and insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this ordinance, the provisions of this ordinance shall govern and control over such conflicting provision as to any provision of this ordinance D Continued performance by either party pursuant to the terms of this ordinance after the default of any of its terms, shall not be a waiver of any right to cancel or cause a forfeiture of any right held under this ordinance, and no waiver of any default shall be construed or act as a waiver of any subsequent default E Nothing herein relieves Supplier of natural gas to Acme Brick Company from complying with all applicable local, state and federal laws including provisions of the Denton City Charter SECTION XIII APPROVAL AND ACCEPTANCE In accordance with Section 13 02 of the City Charter, this ordinance shall become effective twenty-one (21) days after final approval, if, before that date, Acme shall give its written acceptance of this ordinance by signing as provided below, and provided that, after final approval and before the expiration of twenty-one days, the full text of this ordinance shall be published once each week for two (2) consecutive weeks in the official newspaper of City, the expense of which shall be home by Acme Acme for itself, its successors and assigns hereby accepts this ordinance and agrees to be bound by all of its terms and provisions SIGNED this R9k day of G2 A 1998 ACME BRICK COMPANY BY /(.tC VP-FNRNCF A SED AND APPROVED on first reading this the day of 1998, by a majority vote of the entire City Council of Denton, Texas �TW! i+41, O. PAGE 5 A SED AND APPROVED on second reading this the N day of 1998, by a majority vote of the entire City Council of Denton, Texas ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY X WIA\� e<- t� C JACK ER, MAYOR PAGE 6 Oul WE iA PARK Q ,d �, LMASSEY a � I 1 - -,L J, ON loN ONPEKKY I KM1G5- 'AMD -�\ •000 \ T it CNA.EWAnc�l OOT„nw i II ��I a 40t49 Ec•S. At - E. 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