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1998-352 ORDINANCE NO q00~ ~ff,~ AN ORDINANCE GRANTING A LICENSE TO ACME BRICK COMPANY FOR THE PURPOSE OF MAINTAINING AND OPERATING A NATURAL GAS PIPELINE WI FHIN THE PIJBLlC RIGHT-OF-WAY OF TIIE CITY OF DEWI ON, TFXAS, PROVIDING FOR A LICENSE FEE, PROVIDING FOR l liE REGULA 110N OF TilE CONS FRUC liON, RECONS FRUCTION, MAINTENANCE, AND USE THEREOF, PROVIDING FOR A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EI~FEC~l IVE DATE WHEREAS, the Charter of the City of Denton reqmres any person or corporation making use of or occupying any City street, right-of-way, or pubbc grounds to obtmn franchise or permit (e g, a license) for such use or occupancy, and WHEREAS, by Ordmance No 88-142, Acme Brick Company, a Texas Corporation, was granted the right to install, maintmn, and operate a natural gas p~pebne within the street right-of-way of the C~ty of Denton until July 1, 1998, and WHEREAS, Acme Brink Company has requested a renewal of its hcense .ght to maintain and operate the ex~st~ng ptpehne w~thm the right-of-way, and WHEREAS, the C~ty Council of the City of Denton, Texas, has determined that ~t ~s appropriate to grant the following hcense to Acme Brick Company m accordance w~th the terms thereof, NOW, THEREFORE, TIIE 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 I right and pnwlege to construct, reconstruct, replace, mmntmn, use, and operate w~th~n the pubhc right-of-way of City all necessary or desirable plpehnes 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 pnwleges hereto granted to Acme shall not give Acme any exclusive right to the use of any portion of the pubhc right-of-way and Cfly may grant or permit any other party to make use of any pubhc right-of-way, subject to the rights granted to Acme hereto SECTION II LOCATION OF SYSTEM AND FACILITIES A The hcense granted hereto for the Facilities is only for the use of that port~on of the pubhc right-of-way crossed by the pipeline at Hobson Lane, as shown m Exhibit "A", attached hereto and incorporated hereto by reference B City reserves the right to construct, reconstruct, repan, alter, and lay and permit to be laid, sewer, gas, water, electric, and other cables, condmts, plpehnes, and hnes 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 Faclht~es of Acme, mclu&ng any change of any curb, s~dewalk, or grade of any street In performing, permitting, or requiring such work, City shall not be hable to Acme for any damages however caused, whether by the negligence of City, its agents, employees or otherwise, prowded, however, nothing herren shall xeheve any other person or corporation from habd~ty for damage to the Famht~es of Acme, except as otherwise provided for herren C Whenever by reason of changes in the location, grade, or w~dth of any street, alley, ,,ldewalk, curb, or other feature of any public right-of-way or property, or the location or manner of {,onstructing 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 C~ty, whether undertaken by C~ty 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 Famhties 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 ~ FEE A Acme shall pay to C~ty an annual license fee of $75 00 for the use of the public right- of-way hereto 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 m Section IV shall be exclusive of and in addmon 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 SECTION V REGULATION OF CONSTRUCTION A That Acme shall obtain a right-of-way work permit and any other required permits, as spemfied by C~ty's ordinances, prior to beglnmng any construction, reconstruction, or other work that will require any digging, cutting, excavation, or tunnehng 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 prowded for in this ordinance B All work performed in the public right-of-way shall be performed so as to minimize interference or d~srupt~on of the use thereof by the pubhc, 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 construcnon work, barrmadmg 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 nght-of-way without first receiving the required penmts, but shall after beglnmng the work, apply for the required p~rmlts thereafter within twenty-four (24) hours or as soon thereafter as is reasonably possible dunng the business hours of City Any emergency work performed prior to obtalmng the reqmr~d permits shall be in accordance wlth the ordinances and regulations applicable to work performed under the reqmred permits An "emergency situation" shall only include the work on the FamhtleS which is lmmedmtely necessary to restore normal operations of the Facilities after unexpected disruption and which was not part of any planned or anticipated construction, repmr, 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 condmon at the expense of Acme and without hablhty 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 Faclht~es of Acme, any conveyance or transfer of t~tle or interest ~n 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 ~ INDEMNITY A Acme shall indemnify and save and bold harmless City, ~ts officer, employees, and agents from and against all claims, losses, damages, causes of action, suits and hablhty of every kind, including all expenses of litigation, court costs, and attorney's fees, for ~njury to or death of any person, or,for 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 ~s 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, stat, or liability resulting from the sole negligence of City, its officers, agents, or employees B Acme shall not make any claim against C~ty and City shall not be hable to Acme for any damage to the Facilities, whether actual or consequential, howsoever such damage shall be caused, whether by the neghgence 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 t~tle to the public right-of- way and lands occupied by the Famhtaes, or any part thereof D, Any claim made by Acme against any property owner adjacent to the pubhc right-of- way where the Faclhtles are located for negligence ~n the manner of constructing any improvements or performing any work within the public right-of-way, when the ~mprovements or work are authorized by City, shall be limited to actual damages to the Facthtles, and no claim for consequential damages shall be made PAGE 3 ~ RECORDS Acme shall keep complete and accurate maps, construction drawings, and specifications describing the location of the Facfimes w~thm the pubhc right-of-way, eop~es of whmh shall be supplied to City upon request SECTION IX NOTICE Any notice or communication required to be provided under this ordinance shall be sent as follows Not,ce to City will be to Notice to Acme will be to City Manager Steve F~ncher City of Denton, Texas Acme Brick Company 215 E McKmney 220 E Darnels Denton, Texas 76201 Denton, Texas 76~0~ SECTION X ASSIGNMENT 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 as to a parent, subsidiary, affiliate of Acme and, in such ease, the transferee or assignee agrees, ~n writing, to assume all of the obligations of Acme hereunder and to be bound to the same extent as Acme hereunder SECTION XI FORFEITURE A If Acme should violate any of the terms, conditions, or provisions of this ordinance or if Acme should fail to comply w~th any reasonable provisions of any ordinance of City regulating the installation, maintenance, or operation of the Facdmes and should Acme continue to violate or fall to comply with the same for a period of thirty (30) days after Acme is nonfied ~n writing by C~ty 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 here~n 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 g~ven 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 Facthtles 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 C~ty 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 ~ncons~stent or ~n 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 rather 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 Suppher 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 C~ty, the expense of which shall be borne by Acme A0me for itself, ~ts successors and assigns hereby accepts this ordinance and agrees to be bound by all of its terms and provisions SIGNED this _~ day of ~)~ ,1998 ACME BRICK COMPANY  D AND APPROVED on first reading this the {/.~--'-/~ day of ,1998, by a majority vote of the entire C~ty Council of Denton, Texas PAGE 5 PASSED AND APPROVED on second reading th~s the (57J~'~- day of ~, 1998, by a majority vote of the entire C~ty Councd of Denton, Texas JACK ~xI~ER, M,~Y-OR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY PAGE 6