The following terms contained herein, unless otherwise indicated, shall be defined as follows:
City.
The City of Pecan Hill, a municipal corporation and political subdivision of the State of Texas, specifically including all areas incorporated therein as of the effective date of this article and any other areas later added thereto by annexation or other lawful means.
Days.
Calendar days.
Director.
The mayor or designee.
Facilities.
All pipes, accessways, pump stations, storage facilities, equipment, and supporting structures, located in the city’s right-of-way.
Permittee.
A person who has been granted a permit by the permitting authority.
Permitting authority.
The city secretary or the head of the city department authorized to process and grant permits required to perform work in the city’s right-of-way, or the head of any agency authorized to perform this function on the city’s behalf. Unless otherwise indicated, all references to the permitting authority shall include the designee of the department or agency head.
Person.
An entity or natural person.
Revenue.
This term as used herein shall refer to all revenue collected from a utility’s customers with billing addresses that are within the corporate boundaries of the city, not including late fees.
Right-of-way.
As used herein shall refer to the surface of and the space along, above, and below any street, road, highway, freeway, lane, sidewalk, alley, court, boulevard, parkway, drive, utility easement, and/or road right-of-way now or hereafter held or administered by the city.
Utility or utilities.
As used herein shall refer to any public utilities that are approved by the city to obtain a franchise (specifically including, by way of example and not in limitation, water supply corporations, special utility district, electric companies, cable companies, telecommunication companies, and gas companies) for the placement of poles, guy wires, transmission lines, or pipelines and/or whose service requires the use of public highways, streets, alleys, and other public rights-of-way.
(Ordinance 09-09 adopted 7/21/09)
(a) 
Utilities that are approved by the city to obtain a franchise, specifically including, by way of example and not in limitation, water supply corporations, special utility district, electric companies, cable companies, telecommunication companies, gas companies, etc., shall be granted the right, privilege and authority, subject to the terms and conditions hereinafter set forth, to construct, operate, maintain, replace, and use all necessary equipment and facilities for a utility system, in, under, on, across, over, through, along or below the public right-of-way located in the city, as approved under city permits issued by the permitting authority pursuant to this franchise and city ordinances.
(b) 
A franchise is granted upon the express condition that it shall not in any manner prevent the city from granting other or further franchises in, along, over, through, below or across any right-of-way. Such franchise shall in no way prevent or prohibit the city from using any right-of-way or other city property or affect its jurisdiction over them or any part of them, and the city shall retain the authority to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, and dedication of the same as the city may deem fit, including the dedication, establishment, maintenance, and improvement of all new rights-of-way or other public properties of every type and description.
(Ordinance 09-09 adopted 7/21/09)
The term of the franchise between the utilities and the city shall be for a specific period set forth in the franchise agreements.
(Ordinance 09-09 adopted 7/21/09)
In consideration of the right granted to utilities to occupy city rights-of-way for the purpose of providing utility services within the city and as partial compensation for the city’s costs to construct, maintain, repair, develop, and manage the right-of-way, utility companies whose sales and service require the placement of poles, guy wires, transmission lines, pipelines and/or whose service requires the use of said public highways, streets, alleys, and other public rights-of-way agree:
(1) 
To collect and distribute to the city a franchise fee of 3%, equal to that agreed to by the city and the utility from the receipts for sale and service to customers located in the corporate limits of the city.
(A) 
This franchise fee shall be collected beginning upon the effective date of this article.
(B) 
Proceeds of the franchise fee collected shall be distributed to the city in accordance with the agreement entered by the city and the utility. A sworn statement of the gross sales and charges of said utility company for the preceding period for which the franchise fee is being tendered or part thereof subject to this tax shall be filed with the city secretary with the payment of the gross receipts tax.
(C) 
Any tax levied hereunder not paid when due shall bear interest from its due date until finally paid at the rate of ten percent (10%) per annum. Any utility subject to the payment of the gross receipts tax levied herein shall also be liable for payment to the city of a reasonable attorney’s fee incurred by the city to enforce collection of the tax and interest.
(D) 
The gross receipts tax levied under subsection (1) of this section shall be in lieu of any other tax or increased rate of tax, or other imposition, assessment or charges, except ad valorem taxes, in payment for the privilege of using and occupying the streets, highways, easements, and alleys in the city, whether as rental, supervision, and inspection charges, or otherwise. This provision shall not be construed to preclude the city from levying and collecting charges for damage done in the construction, reconstruction, maintenance and/or repair resulting to street paving or any other public property.
(2) 
Should a utility be prevented by judicial or legislative action from collecting a franchise fee on all or a part of the revenues, said utility shall be excused from the collection and distribution of that portion of the franchise fee.
(3) 
Should a court of competent jurisdiction declare or a change in law make the franchise fee to be collected on behalf of the city invalid, in whole or in part, or should a court of competent jurisdiction hold that the collection of the franchise fee by a utility is in violation of a pre-existing contractual obligation of the utility, then the utility’s obligation to collect and distribute a franchise fee to the city under this section shall be terminated in accordance with and to the degree required to comply with such court action or change in law as determined by the city council.
(4) 
All utility companies subject to the payment of the gross receipts tax levied herein shall make their books, records, and accounts available for inspection by the duly authorized officials or representatives of the city for the purpose of determining the correct amount due the city, to examine and verify the statements filed with the city in connection with this levy, and any other reasonable purpose determined necessary by the city council to fulfill the purposes of this article.
(Ordinance 09-09 adopted 7/21/09)
Nothing herein shall be deemed to direct or restrict the city’s ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of a franchise, including any reasonable ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The city shall have the authority at all times to control, by appropriate regulations, the location, elevation, and manner of construction and maintenance of any facilities located within the city right-of-way. Utilities shall promptly conform with all such regulations, unless compliance would cause the utilities to violate other requirements of law.
(Ordinance 09-09 adopted 7/21/09)
(a) 
Excavations.
(1) 
During any period of relocation or maintenance, all surface structures, if any, shall be erected and used in such places and positions within the right-of-way so as to interfere as little as possible with the safe and unobstructed passage of traffic and the unobstructed use of adjoining property. Utilities shall at all times post and maintain proper barricades and comply with all applicable safety regulations during such period of construction as required by the ordinances of the city or state law.
(2) 
Whenever utilities excavate in any right-of-way for the purpose of installation, construction, repair, maintenance or relocation of their facilities, they shall apply to the city for a permit to do so in accord with the ordinances and regulations of the city requiring permits to operate in the right-of-way. In no case shall any such work commence within any right-of-way without a permit, except as otherwise provided in this article. During the progress of the work, utilities shall not unnecessarily obstruct the passage or use of the right-of-way, and shall provide the city with plans, maps, and information showing the proposed and final location of any facilities in accordance with subsection (j) of this section.
(b) 
Abandonment of facilities.
No facilities laid, installed, constructed, or maintained in the right-of-way may be abandoned without the prior written consent of the director of a removal plan. All necessary permits must be obtained prior to such work.
(c) 
Restoration after construction.
(1) 
Utilities shall, after any installation, construction, relocation, maintenance, or repair of facilities within the franchise area, restore the right-of-way to at least the condition the same was in immediately prior to any such abandonment, installation, construction, relocation, maintenance or repair. All concrete-encased monuments which have been disturbed or displaced by such work shall be restored pursuant to all federal, state and local standards and specifications. Utilities agree to promptly complete all restoration work and to promptly repair any damage caused by such work at its sole cost and expense.
(2) 
If it is determined that a utility has failed to restore the right-of-way in accordance with this section, the city shall provide the utility with written notice including a description of actions the city believes necessary to restore the right-of-way. If the right-of-way is not restored in accordance with the city’s notice within fifteen (15) days of that notice, the city, or its authorized agent, may restore the right-of-way. The utility is responsible for all costs and expenses incurred by the city in restoring the right-of-way in accordance with this section. The rights granted to the city under this subsection shall be in addition to those otherwise provided by a franchise.
(d) 
Bonding requirement.
Utilities, to the extent [they] qualify as public agencies, are not required to comply with the city’s standard bonding requirement for working in the city’s right-of-way; non-public utilities are required to adhere to all bonding requirements.
(e) 
Emergency work.
In the event of any emergency where any facilities located in the right-of-way are broken or damaged, or if a utility’s construction area for its facilities is in such a condition as to place the health or safety of any person or property in imminent danger, the utility shall immediately take any necessary emergency measures to repair or remove its facilities without first applying for and obtaining a permit as required by this franchise. However, this emergency provision shall not relieve the utility from later obtaining any necessary permits for the emergency work. The utility shall apply for the required permits the next business day following the emergency work or as soon as practical given the nature and duration of the emergency.
(f) 
Blanket permit.
The terms “minor activities” and “blanket activities” shall be defined in specifically negotiated and agreed-to blanket permit definitions, a copy of which will be filed with the city secretary. The permittee shall be authorized to perform minor activities without a city permit of any kind and blanket activities under the terms and conditions of this section. All other activities will require a separate permit in accordance with city ordinances.
(1) 
The permittee shall pay the city a permit inspection/processing fee in the amount set out in the blanket permit definitions.
(2) 
The permittee shall provide a monthly list of permit construction activity by the 10th of the following month listing the previous month’s activity authorized under this section.
(3) 
The permittee shall provide payment of inspection fees for the monthly activity on a monthly basis. No statement will be provided by the city.
(4) 
For each separate use of the right-of-way under this section, and prior to commencing any work on the right-of-way under this section, the permittee shall:
(A) 
Fax or otherwise deliver to the permitting authority, at least twenty-four (24) hours in advance of entering the right-of-way, a city inspection request form, as provided by the permitting authority, which shall include at a minimum the following information: franchise ordinance number, street address nearest to the proposed work site, parcel number and description of work to be performed.
(B) 
Fax or deliver to the permitting authority a notice of completion in the form provided by the permitting authority within twenty-four (24) hours after completing work.
(5) 
In the event the permittee fails to comply with any of the conditions set forth in this section, the city is authorized to immediately terminate the permittee’s authority to operate under this section by providing the permittee written notice of such termination and the basis therefor.
(6) 
The city reserves the right to alter the terms and conditions of subsection (f) of this section and of the blanket permit definitions by providing thirty (30) days’ written notice to the permittee. Any change made pursuant to this subsection, including any change in the inspection fee stated in the blanket permit definitions, shall thereafter apply to all subsequent work performed pursuant to this section. Further, the city may terminate the permittee’s authority to work in the city’s right-of-way under the terms of this section at any time without cause by providing thirty (30) days’ written notice to the permittee. Notwithstanding any termination, the permittee will not be relieved of any liability to the city.
(g) 
Safety.
(1) 
In accordance with applicable federal, state, and local safety rules and regulations, utilities shall, at all times, employ ordinary care in the installation, removal, maintenance, and repair of facilities utilizing methods and devices commonly accepted in their industry of operation to prevent failures and accidents that are likely to cause damage, injury, or nuisance to persons or property.
(2) 
All utility facilities in the right-of-way shall be constructed and maintained in a safe and operational condition in accordance with applicable industry standards.
(h) 
Authority of city to abate dangerous conditions.
(1) 
Whenever facilities or the operations of a utility cause or contribute to a condition that appears to endanger any person or substantially impair the lateral support of the adjoining right-of-way, or public or private property, the director may direct the utility, at no charge or expense to the city, to take actions to resolve the condition or remove the endangerment. Such directive may include compliance within a prescribed time period.
(2) 
In the event the utility fails or refuses to promptly take the directed action, or fails to fully comply with such direction, or if emergency conditions exist which require immediate action to prevent imminent injury or damages to persons or property, the city may take such actions as it believes are necessary to protect persons or property and the utility shall be responsible to reimburse the city for its costs.
(i) 
Relocation of system facilities.
(1) 
Utilities agree and covenant to protect, support, temporarily disconnect, relocate or remove from any right-of-way its facilities without cost to the city, when so required by the city to facilitate the completion of or as a result of a public project, provided that utilities shall in all such cases have the privilege to temporarily bypass, in the authorized portion of the same right-of-way and upon approval by the city, any facilities required to be temporarily disconnected or removed.
(2) 
All facilities utilized for providing service within the utility’s service area and within the right-of-way shall be considered owned, operated and maintained by the utility.
(3) 
If the city determines that a public project necessitates the relocation of a utility’s existing facilities, the city shall:
(A) 
As soon as possible, but not less than sixty (60) days prior to the commencement of such project, provide the utility with written notice requiring such relocation; and
(B) 
Provide the utility with copies of any plans and specifications pertinent to the requested relocation and a proposed temporary or permanent relocation for the utility’s facilities.
After receipt of such notice and such plans and specifications, the utility shall complete relocation of its facilities at no charge or expense to the city at least ten (10) days prior to commencement of the project.
(4) 
Utilities may, after receipt of written notice requesting a relocation of their facilities, submit to the city written alternatives to such relocation. The city shall evaluate such alternatives and advise the utility in writing if any of the alternatives are suitable to accommodate the work that necessitates the relocation of the facilities. If so requested by the city, the utility shall submit additional information to assist the city in making such evaluation. The city shall give each alternative proposed by the utility full and fair consideration. In the event the city ultimately determines that there is no other reasonable alternative, the utility shall relocate its facilities as provided in this section.
(5) 
If the city requires the relocation of facilities within five (5) years of their installation or the subsequent relocation of facilities within five (5) years from the date of relocation of such facilities pursuant to this section, then the city shall bear the entire cost of such subsequent relocation.
(6) 
The provisions of subsection (i) of this section shall in no manner preclude or restrict utilities from making any arrangements they may deem appropriate when responding to a request for relocation of its facilities by any person other than the city, where the improvements to be constructed by said person are not or will not become city owned, operated or maintained, provided that such arrangements do not unduly delay or increase the cost of a planned city construction project.
(j) 
Utility maps and records.
As a condition of a franchise, and without charge to the city, utilities agree to provide the city with as-built plans, maps, and records that show the vertical and horizontal location of its facilities within the right-of-way, measured from the centerline of the right-of-way, using a minimum scale of one inch equals one hundred feet (1" = 100'). Maps shall be provided in Geographical Information System (GIS) or other digital electronic format used by the city and, upon request, in hard copy plan form used by the utility. This information shall be provided between one hundred twenty (120) and one hundred eighty (180) days of the effective date of this article and shall be updated upon reasonable request by the city.
(Ordinance 09-09 adopted 7/21/09)
(a) 
Utilities hereby release, covenant not to bring suit, and agree to indemnify, defend and hold harmless the city, its elected officials, employees, agents, representatives and volunteers from any and all claims, costs, judgments, awards, attorney’s fees, or liability to any person, including claims by the utilities’ own employees to which utilities might otherwise be immune arising from personal injury or damage to property allegedly due to the negligent or intentional acts or omissions of the utility, its agents, servants, officers or employees in performing activities authorized by a franchise. This covenant of indemnification shall include, but not be limited by this reference, claims against the city arising as a result of the acts or omissions of the utilities, their agents, servants, officers or employees except for claims for injuries and damages caused by the sole negligence of the city. If final judgment is rendered against the city, its elected officials, employees, agents, representatives and volunteers, or any of them, the utilities shall satisfy the same within 30 days of final judgment and before any collection procedure. The city may appear in any proceeding it deems necessary to protect the city’s or the public’s interests.
(b) 
Inspection or acceptance by the city of any work performed by the utilities at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be settled prior to the culmination of any litigation or the institution of any litigation.
(c) 
In the event a utility refuses to undertake the defense of any suit or any claim, after the city’s request for defense and indemnification has been made pursuant to the indemnification clauses contained herein, and a utility’s refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter) to have been a wrongful refusal on the part of the utility, then the utility shall pay all of the city’s costs and expenses for defense of the action and the prosecution of wrongful refusal including reasonable attorneys’ fees of recovering under this indemnification clause as well as any judgment against the city.
(Ordinance 09-09 adopted 7/21/09)
(a) 
Utilities shall procure and maintain, for the duration of the franchise, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to the utilities, their agents or employees. A combination of self-insurance and excess liability insurance may be utilized by the utilities. The utilities shall provide to the city an insurance certificate and proof of self-insurance, if applicable, evidencing the required insurance and a copy of the additional insured endorsements, for its inspection prior to the commencement of any work or installation of any facilities pursuant to a franchise, and such insurance shall evidence the following required insurance:
(1) 
Automobile liability insurance for owned, non-owned and hired vehicles with limits no less than $2,000,000.00 combined single limit per accident for bodily injury and property damage;
(2) 
Commercial general liability insurance policy, written on an occurrence basis with limits no less than $1,000,000.00 combined single limit per occurrence and $2,000,000.00 aggregate for personal injury, bodily injury and property damage. Coverage shall include premises, operations, independent contractors, products completed operations, personal injury and advertising injury. There shall be no endorsement or modification of the commercial general liability insurance excluding liability arising from explosion, collapse or underground property damage. The city shall be named as an additional insured under the utility’s commercial general liability insurance policy; and
(3) 
Excess liability in an amount of $5,000,000.00 each occurrence and $5,000,000.00 aggregate limit. The city shall be named as an additional insured on the utility’s excess liability insurance policy.
(b) 
Payment of the deductible or self-insured retention shall be the sole responsibility of the utilities.
(c) 
The coverage shall contain no special limitations on the scope of protection afforded to the city, its officers, officials, representatives, agents or employees. In addition, the insurance policy shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. The utility’s insurance shall be primary. Any insurance, self-insurance, or insurance pool coverage maintained by the city shall be excess of the utility’s insurance and shall not contribute to the requisite insurance coverage. Coverage shall not be suspended, voided, canceled by either party, or reduced in coverage or in limits except after thirty (30) days’ prior written notice has been given to the city.
(d) 
The utilities shall require all their subcontractors to carry insurance consistent with this section, and shall provide evidence of such insurance to the city upon request.
(Ordinance 09-09 adopted 7/21/09)
(a) 
In addition to all other rights and powers retained by the city under a franchise, the city reserves the right to revoke and terminate any franchise and all rights and privileges of the utilities in the event of a substantial violation or breach of its terms and conditions.
(b) 
A substantial violation or breach by a utility shall include, but shall not be limited to, the following:
(1) 
An uncured violation of any material provision of this franchise, or any material rule, order or regulation of the city made pursuant to its power to protect the public health, safety and welfare;
(2) 
An intentional evasion or knowing attempt to evade any material provision of a franchise or practice of any fraud or deceit upon the system customers or upon the city;
(3) 
Failure to provide the services specified in the franchise;
(4) 
Misrepresentation of material fact during negotiations relating to the franchise or the implementation thereof;
(5) 
A continuous and willful pattern of grossly inadequate service;
(6) 
An uncured failure to pay fees associated with the franchise.
(c) 
No violation or breach shall occur which is without fault of the utilities or the city, or which is as a result of circumstances beyond the utilities’ or the city’s reasonable control. Neither the utilities, nor the city, shall be excused by economic hardship nor by nonfeasance or malfeasance of its directors, officers, agents or employees; provided, however, that damage to equipment causing service interruption shall be deemed to be the result of circumstances beyond the utility’s or the city’s control if it is caused by any negligent act or unintended omission of its employees (assuming proper training) or agents (assuming reasonable diligence in their selection), or sabotage or vandalism or malicious mischief by its employees or agents. The utilities, or the city, shall bear the burden of proof in establishing the existence of such conditions.
(d) 
Except in the case of termination pursuant to subsection (b)(4) of this section, prior to any termination or revocation, the city, or the utilities, shall provide the other with detailed written notice of any substantial violation or material breach upon which it proposes to take action. The party who is allegedly in breach shall have a period of 60 days following such written notice to cure the alleged violation or breach, demonstrate to the other’s satisfaction that a violation or breach does not exist, or submit a plan satisfactory to the other to correct the violation or breach. If, at the end of said 60-day period, the city or the utilities reasonably believe that a substantial violation or material breach is continuing and the party in breach is not taking satisfactory corrective action, the other may declare that the party in breach is in default, which declaration must be in writing.
(e) 
The city may, in its discretion, provide an additional opportunity for the utilities to remedy any violation or breach and come into compliance with the franchise agreement so as to avoid the termination or revocation.
(f) 
Any violation existing for a period greater then 30 days may be remedied by the city at the utility’s expense.
(Ordinance 09-09 adopted 7/21/09)
All of the provisions, conditions and requirements of sections 13.04.006(a) (excavation), 13.04.006(b) (abandonment of facilities), 13.04.006(c) (restoration after construction), 13.04.006(h) (authority for city to abate dangerous conditions), 13.04.006(i) (relocation of system facilities), and 13.04.007 (indemnification) of this article shall be in addition to any and all other obligations and liabilities utilities may have to the city at common law, by statute, or by contract and shall survive the city’s franchise to the utilities for the use of the areas mentioned in section 13.04.002 herein, and any renewals or extensions thereof. All of the provisions, conditions, regulations and requirements contained in this article shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of the utilities, and all privileges, as well as all obligations and liabilities of the utilities, shall inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever the utilities are named herein.
(Ordinance 09-09 adopted 7/21/09)
This franchise shall not be sold, transferred, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary merger, consolidation or otherwise, without the prior written approval of the city. This section shall not act to require city approval of any utility action to mortgage or otherwise encumber its facilities, or other action related to corporate financing, financial reorganization, or refinancing activity.
(Ordinance 09-09 adopted 7/21/09)
Any notice or information required or permitted to be given to the city under the franchise may be sent to the following address unless otherwise specified: City Secretary, City of Pecan Hill, 1094 S. Lowrance Rd., Pecan Hill, Texas 75154, telephone: 972-617-6274, and facsimile: 972-576-3174. Any notice or information required or permitted to be given to the utilities under this franchise may be sent to the utility’s address as set forth in the individual franchise agreements with each utility.
(Ordinance 09-09 adopted 7/21/09)
The failure of either party to enforce any breach or violation by the other party of any provision of the franchise shall not be deemed to be a waiver or a continuing waiver by the non-breaching party of any subsequent breach or violation of the same or any other provision of this franchise.
(Ordinance 09-09 adopted 7/21/09)