The following terms contained herein, unless otherwise indicated,
shall be defined as follows:
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.
Calendar days.
The mayor or designee.
All pipes, accessways, pump stations, storage facilities,
equipment, and supporting structures, located in the city’s
right-of-way.
A person who has been granted a permit by the 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.
An entity or natural person.
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.
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.
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)
