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1988-1422445L NO AN ORDINANCE GRANTING A FRANCHISE TO ACME BRICK COMPANY FOR THE PURPOSE OF MAINTAINING AND OPERATING A NATURAL GAS PIPELINE WITHIN THE PUBLIC RIGHT-OF-WAY OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A FRANCHISE FEE, PROVIDING FOR THE REGULATION OF THE CONSTRUCTION, RECONSTRUCTION, MAINTENANCE, AND USE THEREOF, PROVIDING FOR A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the Charter of the person or corporation king use to right-of-way, Public grounds use or occupancy, and City of Denton requires any or occupying any City street, receive a franchise for such WHEREAS, by Ordinance No 83-86, Acme corporation, was granted the right to operate a natural gas pipeline within the the City of Denton until July 1, 1988, and Brick Company, a Texas install, maintain, and street right-of-way of WHEREAS, Acme Brick Company has requested franchise right to maintain and operate the within the right-of-way, and a renewal of its existing pipeline WHEREAS, the City Council of the City of Denton, Texas, has Brick Company aropriate to accordanceawith the t rms thereof, determined m to e Acme that 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, recon- struct, replace, maintain, use, and operate within the public right-of-way of City all necessary or desirable pipelines or s") in other structures or ipelinensystem(tfor Facilitthey"purpoor iconveying connection with a p p natural gas, subject to the conditions of this ordinance tnot he B. The rights and privileges herein granted to Aocme shall give Acme any exclusive right to the use of any p or permit any other party public right-of-way and City may grant subject to the rights to make use of any public right-of-way, s granted to Acme herein SECTION II LOCATION OF SYSTEM AND FACILITIES A The franchise granted herein for the Facilities is only for the use of that portion of the public right-of-way crossing in i Exhibit a A"length of , attached hereto approximately SIXTY Hobson 1e as n shown extending (60) feet, incor- porated herein by reference B City reserves the right to construct, reconstruct, repair, alter, and lay and permit to be laid, sewer, gas, water, electric, and other cables, conduits, pipelines, and lines and to overhead or g proper by surface or and permit may be deeed done, any underground, work that over, under, along, and across any public right-of-way occupied by the Facilities perof any mitting,lror requiring street including performing change of any Acme, or grade 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 of Acme, e ofr liability damage relieve acilities person corporation as otherwise provided to the F for herein or location, fegrade, o ature of C Whenever by reason of changes icurb the width of any street, alley, sidewalk, 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, pr that Acme will not be required to completely remove its Facilities from the public right-of-way SECTION III TERM This franchise shall have a term of ten (10) years, beginning effective from the ordinance, unless terminated for any breach or default as provided forhereinherwise SECTION IV FEE A, A^ cme shall pay to City an annual franchise fee of $100 00 per year 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 successsive annual anniversary date of this aordinance or before the PAGE 2 B The franchise fee provided for exclusive of and in addition to all oth other fees or payments that would be required or provided for in any other taxes or assessments that may be levied or state law in Section IV shall be er permit, inspection, or applicable to Acme, as ordinance, or any other as authorized by federal SECTION 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 tunnelling in, under, or across any public right-of-way Any permit fees, inspe by ion fees, or provided and shall ebef ins additions to any other ordinance 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 lwhand ich safety are imposed to I insand ure a the other protection related of the public or orders C In emergency situations, Acme may begin work within the public right-of-way without first receiving the required required but shall after beginning the work, apply for the e soon permits thereafter within twenty-four (24) hours or as s thereafter as is reasonable 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 Fac orunex cted wopheraichtion anticip ted iconstructiond wass not part of iany litiplannees 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 and without liability dangerous gcompensationtfor damages to Acme of Acme PAGE 3 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, 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 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 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 nelience in performing any the manner of constructing npublicinrightyof-way,when improvements 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 SECTION VIII RECORDS Acme shall keep complete and accurate maps, construction drawings, and specifications describing the location of the PAGE 4 Facilities within the public right-of-way, copies of which shall be supplies to city upon request SECTION IX NOTICE Any notice or communication required to be provided under this ordinance shall be sent as follows Notice to City will be to Notice to Acme will be to City Manager City of Denton, Texas 215 E McKinney Denton, Texas 76201 Jeffrey S Bodley Real Estate Manager Box 425 Ft Worth, Texas 76101 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 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 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 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 PAGE 5 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 B This ordinance shall be governed by the laws of the State of Texas 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 for- waiver waiver construed h or ordinance, feiture nshall be held under acte as e a and no any default any subsequent default 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 borne 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 rp SIGNED this q J-11 of S&/2-r , 1988 ACME BRICK COMPANY PAGE 6 PASSE AND APPROVED on first "Jt 1988, by a majority o e ty of Denton, Texas ATTEST r ~ I , J s E Y 464 AND APPROVED on second 1988, by a majority o of Denton, Texas reading this the day of vote of the entire ty Council CITY OF DENTON, TEXAS RAY S H S, M R reading this the of ouncil vote of the entire 4~day CITY OF DENTON, TEXAS AT H*Y~ ATTEST I„ T~R C S ET Y, C SET Y APPROVED AS TO LEGAL FORM DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY BY PAGE JLILPA VIN L JI I )L`fYf~ I / rENIA PARK M1$$Ey 4 DOTSON 1E. 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