A public right-of-way use agreement shall be required prior to any gas pipeline construction within the city. The public right-of-way use agreement shall include, but is not limited to the following information:
(a) 
The pipeline company/applicant/operator name, phone number, fax number, physical address, and, if possible, email address; if the operator is a corporation, the state of the incorporation, and if the operator is a partnership, the names and addresses of the general partners shall be provided.
(b) 
Detailed mapping of location and extent of proposed use within public right-of-way.
(c) 
A traffic safety and management plan as required by the public works department.
(d) 
Bonds in the amount of the cost of work or $50,000.00, whichever amount is greater. Such bonds shall guarantee:
(1) 
The faithful performance and completion of all construction, maintenance, removal or repair work in accordance with the contract between pipeline company and the contractor;
(2) 
Full payment for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of that contract;
(3) 
That pipeline company shall restore the right-of-way affected by such cut, opening, or other excavation in a satisfactory and workmanlike manner; and
(4) 
Maintain such restoration work in a state of repair satisfactory to the city for a period of two years following the date the city approves the restoration; and fully comply with the city’s ordinances governing excavation in the public right-of-way. If the pipeline company meets its obligations under this section, the city shall return the bond to the pipeline company upon expiration of the two-year period. The bonds shall name both the city and pipeline company as dual obliges.
(Ordinance 1852, § 1, 6-23-09)
The following fees shall be due to the city prior to any pipeline construction.
(a) 
Application fee.
Company shall pay the city an application fee. This fee shall be collected at the time company applies for a permit to construct gas pipelines within the city.
(b) 
Right-of-way use fee.
The pipeline company shall pay a right-of-way use fee. This fee shall be collected on or prior to the effective date of the agreement, and annually thereafter, company shall pay the city as compensation for its use of the public right-of-way for the term of this agreement in a “per linear foot fee” based on the linear foot of gas pipeline proposed to be constructed within the city.
(c) 
Construction plan review fee.
The pipeline company shall pay a construction plan review fee. This fee shall be collected on or prior to constructing any gas pipelines within the city for gas pipeline construction plan review.
(d) 
Inspection fee.
The pipeline company shall pay an inspection fee. This fee shall be collected on or prior to constructing any gas pipelines within the city for inspection of gas pipeline construction.
(e) 
Other payments and interest.
In addition to the above referenced fees, the pipeline company shall pay the city all sums which may be due the city for property taxes, license fees, permit fees, or other taxes, charges or fees that the city may from time to time impose on all other similarly situated entities within the city.
(Ordinance 1852, § 1, 6-23-09)
A pipeline company’s property and operations hereunder shall be subject to such regulation by the city as may be reasonably necessary for the protection or benefit of the general public. In this connection, the pipeline company shall be subject to, governed by and shall comply with all applicable federal, state and local laws, including all ordinances, rules and regulations of the city, as same may be adopted and amended from time to time.
(Ordinance 1852, § 1, 6-23-09)
The city has the right to control and regulate the use of the public right-of-way, public places and other city owned property and the spaces above and beneath them. Company shall comply with all applicable laws, ordinances, rules and regulations, including, but not limited to, city ordinances, rules and policies related to construction permits, construction bonds, permissible hours of construction, operations during peak traffic hours, barricading requirements and any other construction rules or regulations that may be promulgated from time to time.
(a) 
Pipelines shall not be erected, installed, constructed, repaired, replaced or maintained in any manner that places an undue burden on the present or future use of the public right-of-way by the city and the public. If the city reasonably determines that the pipeline does place an undue burden on any portion of the public right-of-way, the pipeline company, at the pipeline company’s sole cost and expense and within a reasonable time period specified by the city, shall modify the pipeline or take other actions reasonably determined by the city to be in the public interest to remove or alleviate such undue burden.
(b) 
Prior to the undertaking of any kind of construction, installation, maintenance, removal, repairs or other work that requires the excavation, lane closure or other physical use of the public right-of-way, the pipeline company shall, except for work required to address an emergency, provide at least 48-hours’ advance written notice to the owners of property adjacent to the public right-of-way that will be affected. In the case of emergencies, the pipeline company shall provide notice to the affected landowners within 24 hours after commencement of work.
(c) 
During any such work, the pipeline company shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public. The use of such traffic-control devices shall be consistent with the standards and provisions of part VI of the Texas Manual on Uniform Traffic-control Devices. The pipeline company shall utilize appropriate warning lights at all construction and maintenance sites where one or more traffic lanes are closed or obstructed during nighttime conditions. The pipeline company shall plan and execute construction of the pipeline so that no flood conditions are created or worsened on the surrounding land. To minimize erosion, the excavated portion of the right-of-way adjacent to the improved portion of the road shall be restored and re-vegetated in a manner approved by the city.
(d) 
The pipeline company shall bury or have buried its pipeline facilities at least four feet except underneath public roads. Underneath public roads, the pipeline company’s pipeline facilities shall be at least seven feet below the lowest point in such road pavement. When pipeline facilities cannot be bored, during backfill of the pipeline excavation, “buried pipeline” warning tape shall be buried one foot above the pipeline to warn future excavators of the presence of the pipeline. Any deviation to the minimum depth requirement must be approved in writing by the city engineer.
(e) 
Isolation valves.
The number and location of isolation valves on the pipeline shall be approved by the city and clearly indicated on the construction plans.
(f) 
Marking of pipeline.
The pipeline shall be marked, in a manner that is reasonably acceptable to the city and the inspection services provider(s), to show conspicuously the pipeline company’s name, a toll-free telephone number of company that a person may call for assistance, and the appropriate Texas One Call System telephone number. Other provisions notwithstanding, an identifying sign shall be placed at each point where a flow line or gathering line crosses a public street or road.
(g) 
Pavement cut coordination and additional fees.
The city shall have the right to coordinate all excavation work in the public right-of-way in a manner that is consistent with and convenient for the implementation of the city’s program for street construction, rebuilding, resurfacing and repair. To preserve the integrity of the public right-of-way, the pipeline company shall not cut, excavate or otherwise breach or damage the surface of any paved public right-of-way within 96 months following the construction or resurfacing of said public right-of-way unless the pipeline company obtains written consent from the director of public works, which consent shall not be unreasonably withheld, pays an additional fee agreed to by and between the parties, and restores the public right-of-way in accordance with the right-of-way use agreement.
(h) 
Restoration of public right-of-way and property.
The pipeline company, at the pipeline company’s sole cost and expense, and in a manner approved by the city, shall promptly restore any portion of the public right-of-way, city owned property or other privately owned property that are in any way disturbed or damaged by the construction, operation, maintenance or removal of any of the pipeline to, at pipeline company’s option, as good or better a condition as such property was in immediately prior to the disturbance or damage. The pipeline company shall diligently commence such restoration within 30 calendar days following the date the pipeline company first became aware of the disturbance or damage or, if the pipeline is being removed, within 30 calendar days following such removal. Any private service/utility lines that are in any way disturbed or damaged by the pipeline company’s construction, operation, maintenance or removal of any of the pipeline, shall be repaired at the pipeline company’s sole cost and expense within 24 hours.
(i) 
Relocation of pipeline.
Within 45 calendar days following a written request by the city, the pipeline company, at the pipeline company’s sole cost and expense, shall protect, support, disconnect, alter or remove from the public right-of-way all or any portion of its pipeline due to street or other public excavation, construction, repair, grading, regarding or traffic conditions; the installation of sewers, drains, water pipes or municipally-owned facilities of any kind; the vacation, construction or relocation of streets or any other type of structure or improvement of public agency; any public work; or any other type of improvement necessary, in the city’s sole discretion, for the public health, safety or welfare. If the pipeline company reasonably requires more than 45 days to comply with the city’s written request, it shall notify the city manager in writing within ten days of receiving notice and the city will work in good faith with the pipeline company to negotiate a workable time frame. Any relocation will require that the public works department, at the pipeline company’s expense, approve the pipeline company’s plans. It is the desire of both parties to determine such relocation within the existing public right-of-way.
(j) 
Emergencies.
(1) 
Work by the city.
A public emergency shall be any condition which, in the reasonable opinion of the officials specified herein, poses an immediate threat to life, health or property and is caused by any natural or manmade disaster, including, but not limited to, storms, floods, fires, accidents, explosion, water main breaks and hazardous materials spills. In the event of a public emergency, the city shall have the right to take whatever action is deemed reasonably appropriate by the city manager or fire chief, or their authorized representatives, including, but not limited to, action that may result in damage to the pipeline, and company hereby:
a. 
Releases the city, its officers, agents, servants, employees and subcontractors from liability or responsibility for any damages that may occur to the pipeline or that the pipeline company may otherwise incur as a result of such necessary response; and
b. 
Agrees that the pipeline company, at the pipeline company’s sole cost and expense, shall be responsible for the repair, relocation or reconstruction of all or any of its pipeline that is affected by such action of the city. In responding to a public emergency, the city agrees to comply with all local, state and federal laws, including, without limitation, any requirements to notify the Texas One Call System, to the extent that they apply at the time and under the circumstances. In addition, if the city takes any action that it believes will affect the pipeline, the city will notify the pipeline company as soon as practicable so that company may advise and work with the city with respect to such action.
c. 
Work by or on behalf of the pipeline company. In the event of an emergency that directly involves any portion of the pipeline and necessitates immediate emergency response work on or repairs, the pipeline company may initiate the emergency response work or repairs or take any action required under the circumstances provided that the pipeline company notifies the city as promptly as possible. After the emergency has passed, the pipeline company shall apply for and obtain a construction permit from the city and otherwise fully comply with the requirements of the right-of-way use agreement.
(k) 
Removal of pipeline.
(1) 
Pipeline company obligated to remove.
Upon the revocation, termination or expiration without extension or renewal of an agreement, the pipeline company’s right to use the public right-of-way under the agreement shall cease and the pipeline company shall immediately discontinue the transportation of gas in or through the city. Within six months following such revocation, termination or expiration and if the city requests, the pipeline company at the pipeline company’s sole cost and expense, shall remove the pipeline from the public right-of-way (or cap the pipeline, if consented to by the city), in accordance with applicable laws and regulations.
(2) 
City’s right to remove.
If the pipeline company has not removed all of the pipeline from the public right-of-way (or capped the pipeline, if consented to by the city) within six months following revocation, termination or expiration of an agreement, the city may deem any portion of the pipeline remaining in the public right-of-way abandoned and, at the city’s sole option:
a. 
Take possession of and title to such property; or b. Take any and all legal action necessary to compel company to remove such property; provided, however, that company may not abandon its facilities or discontinue its services within the city without the approval of the commission or successor agency or any other regulatory authority with such jurisdiction.
(3) 
Restoration of property.
Within six months following revocation, termination or expiration of an agreement, the pipeline company shall also restore any property, public or private, that is disturbed or damaged by removal (or, if consented to by the city, capping) of the pipeline. If the pipeline company has not restored all such property within this time, the city, at the city’s sole option, may perform or have performed any necessary restoration work, in which case the pipeline company shall immediately reimburse the city for any and all reasonable costs incurred in performing or having performed such restoration work.
(Ordinance 1852, § 1, 6-23-09)
The pipeline company, at the pipeline company’s sole cost and expense, shall provide the city with as-built plans of all portions of the pipeline located in the city showing such pipeline within 90 calendar days following the completion of such pipeline. The city manager or their designee may grant one extension, if requested in writing, for a specific number of days by the pipeline company. The pipeline company shall supply the textual documentation of such as-built plans and maps in computer format as requested in writing by the city and shall otherwise fully cooperate with the city in ensuring that the pipeline is accurately reflected in the city’s mapping system. Scans or image files of the final drawing sealed by the designing engineer or other approved professional in a file format approved by the city’s GIS department must be provided.
(Ordinance 1852, § 1, 6-23-09)
(a) 
Liability of pipeline company.
The pipeline company shall be liable and responsible for any and all damages, losses, liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands, defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including, without limitation, fees, disbursements, and reasonable expenses of attorneys, accountants, and other professional advisors, and of expert witnesses and costs of investigation and preparation) of any kind or nature whatsoever (collectively “damages”), which may arise out of or be in any way connected with:
(1) 
The construction, installation, operation, maintenance or condition of the pipeline or any related facilities or appurtenances;
(2) 
The transportation of gas through the pipeline;
(3) 
Any claim or lien arising out of work, labor, materials or supplies provided or supplied to the pipeline company, its contractors or subcontractors with respect to the pipeline; or
(4) 
Company’s failure to comply with any applicable federal, state or local law, ordinance, rule or regulation, except to the extent directly caused by the gross negligence or intentional misconduct of the city.
(b) 
Indemnification.
The pipeline company, at its sole cost and expense shall indemnify and hold harmless the city, its officers, boards, commissions, agents, employees, and volunteers (“indemnitees”), from and against any and all damages which may arise out of or be in any way connected with:
(1) 
Pipeline company’s construction, installation, operation, maintenance or condition of the pipeline or any related facilities or appurtenances;
(2) 
The transportation of gas through the pipeline;
(3) 
Any claim or lien arising out of work, labor, materials or supplies provided or supplied to the pipeline company, its contractors or subcontractors; or
(4) 
Pipeline company’s failure to comply with any applicable federal, state or local law, ordinance, rule or regulation, acts; or
(5) 
The negligent act or omission(s) of the city, its officers and employees.
(c) 
Assumption of risk.
The pipeline company hereby undertakes and assumes, for and on behalf of the pipeline company, its officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous conditions, if any, on or about any city-owned or city-controlled property, including, but not limited to, the public right-of-way.
(d) 
Defense of indemnitees.
If an action is brought against any indemnitee by reason of any matter for which the indemnitees are indemnified hereunder, the city shall give the pipeline company prompt written notice of the making of any claim or commencement of any such action, lawsuit or other proceeding, and pipeline company, at its sole cost and expense, shall resist and defend the same with reasonable participation by the city and with legal counsel selected by the pipeline company and specifically approved by the city. In such an event, the pipeline company shall not admit liability in any matter on behalf of any indemnitee without the advance written consent of the city.
(Ordinance 1852, § 1, 6-23-09)
The pipeline company shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverage’s as specified herein, naming the city as an additional insured and covering all public risks related to the use, occupancy, condition, maintenance, existence or location of the public right-of-way and the construction, installation, operation, maintenance or condition of the pipeline including the transportation of gas through the pipeline, as follows:
(a) 
Primary liability insurance coverage.
(1) 
Commercial general liability: $5,000,000.00 per occurrence, including coverage for the following:
a. 
Premises liability
b. 
Independent contractors
c. 
Products/completed operations
d. 
Personal injury
e. 
Contractual liability
f. 
Explosion, collapse and underground property damage
(2) 
Property damage liability: $1,000,000.00 per occurrence.
(3) 
Automobile liability: $1,000,000.00 per accident, including, but not limited to, all owned, leased, hired or non-owned motor vehicles used in conjunction with the rights granted under this agreement.
(4) 
Worker’s compensation: As required by law; and, employer’s liability as follows: $1,000,000.00 per accident.
(b) 
Requirements and revisions to required coverage.
The city may, not more than once every five years during the term of the right-of way use agreement, revise insurance coverage requirements and limits required by the right-of-way use agreement. The pipeline company shall agree that within 90 days of receipt of written notice from the city, the pipeline company will implement all such revisions reasonably requested by the city. The policy or policies of insurance shall be endorsed to provide that no material changes in coverage, including, but not limited to, cancellation, termination, non-renewal or amendment, shall be made without 30 days prior written notice to the city. The policies and certificate of insurance provided to the city shall contain the following language:
“CANCELLATION CLAUSE
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREFORE, THE ISSUING INSURER WILL PROVIDE THIRTY (30) DAYS WRITTEN NOTICE TO THE NAMED CERTIFICATE HOLDER.”
(c) 
Underwriters and certificates.
The pipeline company shall procure and maintain its insurance with underwriters authorized to do business in the State of Texas and who are reasonably acceptable to the city in terms of solvency and financial strength. Within 30 days following adoption of the right-of-way use agreement by the city council, the pipeline company shall furnish the city with certificates of insurance signed by the respective companies as proof that it has obtained the types and amounts of insurance coverage required herein. No construction shall commence until such certificates are received. In addition, the pipeline company shall, on demand, provide the city with evidence that it has maintained such coverage in full force and effect.
(d) 
Deductibles.
Deductible or self-insured retention limits on any line of coverage required herein shall not exceed $50,000.00 in the annual aggregate unless the limit per occurrence or per line of coverage, or aggregate is otherwise approved by the city.
(e) 
No limitation of liability.
The insurance requirements set forth in this section and any recovery by the city of any sum by reason of any insurance policy required under the right-of-way use agreement shall in no way be construed or affected to limit or in any way affect the pipeline company’s liability to the city or other persons as provided by the right-of-way use agreement or law.
(Ordinance 1852, § 1, 6-23-09)
(a) 
Filings with commission.
The pipeline company shall, upon request, provide copies to the city of all documents which the pipeline company files with or sends to the railroad commission concerning or related to its transportation of gas through or other operations in the city, including, but not limited to, filings related to:
(1) 
Rules, regulations and policies requested, under consideration or approved by the commission; and
(2) 
Applications and any supporting pre-filed testimony and exhibits filed by pipeline company or third parties on behalf of the pipeline company, on the same date as such filings are made with the railroad commission. In addition, the pipeline company shall provide the city with copies of records, documents and other filings that the pipeline company is required to maintain or supply to the railroad commission under any applicable state or federal law, rule or regulation.
(b) 
Lawsuits.
The pipeline company shall provide the city with copies of all pleadings in all lawsuits to which company is a party and that pertain to the granting of this agreement and/or the transportation of gas through the city within 30 days of the pipeline company’s receipt of same.
(Ordinance 1852, § 1, 6-23-09)