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HomeMy WebLinkAboutORD 2008-69 - PEC Franchise AssesmentORDINANCE NO. 00g � 4pq i • i � / : r, i i / • : OR / WHEREAS, the Pedernales Electric Cooperative, Inc., a Texas electric cooperative association duly organized, existing and doing business under the laws of the State of Texas, hereinafter referred to as "PEC", is engaged in the provision of electric utility service in this State, and in furtherance thereof has erected and maintained certain items of its plant construction in a portion of the City of Georgetown, Texas, hereinafter referred to as the "CITY', pursuant to such rights as have been granted to it by and under the laws of the State of Texas and subject to appropriate regulation under the police power and franchise authority of the City; and WHEREAS, the City and PEC entered into that certain ten (10) year franchise agreement evidenced by Ordinance No. 98-22 and codified in Chapter 14.20 of the City of Georgetown Code of Ordinances, which ordinance and agreement expired on July 22, 2008; and WHEREAS, the City and PEC mutually agreed to proceed on a month-to-month basis under Ordinance No. 98-22 until such time as a new franchise agreement could be approved by both parties; and WHEREAS, Section 8.03 of the City Charter provides as follows: Sec. 8.03. Franchise; power of the City Council. The City Council shall have the power by ordinance to grant, amend, renew and extend, all franchises of all public utilities of every character operating within the City of Georgetown. All ordinances granting, amending, renewing, or extending franchises for public utilities shall be read at two (2) separate regular meetings of the City Council, and shall not be finally passed until thirty (30) days after the first reading; and no such ordinance shall take effect until thirty (30) days after its final passage; and pending such time, the full text of such ordinances shall be published once each week for four (4) consecutive weeks in a newspaper of general circulation published in the City of PEC Franchise Ordinance No. A0 of Page 1 of 9 Georgetown, and the expense of such publication shall be borne by the proponent of the franchise. No public utility franchise shall be granted for a term of more than twenty (20) years; no public utility franchise shall be transferable except with the approval of the City Council expressed by ordinance. WHEREAS, both the City and PEC desire that an agreement should be entered into establishing the condition under which PEC shall use utility poles, streets, avenues, alleys, rights-of-way, and public grounds and places in the City; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS, THAT: SECTION 1. The facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct, and are incorporated by reference herein and expressly made a part hereof, as if copied verbatim. The City Council hereby finds that this ordinance implements Effective Governance Vision Statement 4.0.0 of Georgetown's 2030 Comprehensive Plan, which states: "Georgetown has achieved a high level of service coordination, both internally and with County, State and other city service providers. is and further finds that the enactment of this ordinance is not inconsistent with or in conflict with any other Comprehensive Plan Policies. SECTION 2: Ordinance N0. 98-22 is hereby repealed and replaced with this ordinance. SECTION 3. Title 14 of the Code of Ordinances of the City of Georgetown, Texas is hereby revised to provide as follows: iIN 111.:1111111111111 1111,111111. ML Section 14.20.010. Term. This Agreement and Franchise shall be in force and effect for a period of ten (10) years from and after its effective date. All rights and duties are herein granted and acknowledged for such term and subject to the provisions of this ordinance. Section 14.20.020. Placement of Plant. The poles, wire, anchors, cables, manholes, conduits, facilities, guys, and other equipment and appurtenances used in or incident to the providing of electric utility services by PEC in the City may remain as now constructed, subject to such changes as under the limitations and conditions herein prescribed may be considered necessary by the City in the exercise of its lawful powers. PEC shall have the right to place, remove, construct and reconstruct, extend, and maintain its facilities and appurtenances for the purposes for which it is or may be from time to time required along, across, on, over, through, above and under all the public streets, avenues, alleys, rights-of-way and public grounds and places within those portions PEC Franchise Ordinance No. 200 1 a 101 Page 2 of 9 of the City in which it is granted authorization to provide electric utility service under applicable laws and regulations of the State of Texas and subject to the approval of the City of Georgetown's Assistant City Manager for Utility Operations in the exercise of the City's police powers as set forth herein. The City shall not require PEC to place below ground any line, wire, conduit, or other equipment or facility which has been or is hereafter installed or constructed above ground in accordance with the terms of this ordinance. In exchange for the use of the public rights-of-way and subject to the limitations of safety and sound engineering, PEC agrees to allow other public utilities to use its poles and other facilities in accordance with PEC's pole contact agreement, provided that a reasonable rental shall be paid to PEC for such use. The inability of such public utilities to agree upon rentals for such facilities shall not be an excuse for failure to comply with the direction of the City Council to provide other utilities such access. Section 14.20.030. Location of Poles. All poles placed shall be of sound material and reasonably straight and shall be so set as to not interfere with the flow of water in any gutter or drain and so that same will interfere as little as practicable with the ordinary travel on the street or sidewalk and with ingress and egress to and from all property. The location and route of all poles, stubs, guys, anchors, conduits, and cables placed and constructed in the City shall be subject to applicable City ordinance and the regulation, control, and direction of the Assistant City Manager for Utility Operations or the appropriate City official to whom such duties have been delegated. PEC shall give advance notice to the Assistant City Manager for Utility Operations of its intention to place poles, stubs, guys and anchors and shall include in such notification the location of all such installations. PEC is not authorized to license or lease to any person or entity the right to occupy or use the City's rights-of-way for any reason, except that PEC shall have the right, without the consent of the City, to allow other entities that have franchise with the City to use DEC's poles, conduits, and other facilities, on such terms as PEC may choose. PEG shall at its sole expense, at the request of the City, by or through its City Council or City Manager remove or change the location of any of its poles, wire, conduits, cables or any other of its appurtenances for the purpose of permitting full and free ingress and egress to and from properties, or for any other lawful purpose. However, the City shall remit to PEC any amounts paid to it by any third party to compensate the City or PEC for the costs of any such removal or relocation. Section 14.20.040, City Property to be Restored to Good Condition. The surface of any street, alley, highway, or public place disturbed by PEC shall be restored within a reasonable time after the completion of the work, to as good condition as before the commencement of the work to the PEC Franchise Ordinance No. Page 3 of 9 satisfaction of the Assistant City Manager for Utility Operations or of the appropriate City official to whom such duties have been delegated. No street, alley, highway or public place shall be encumbered by PEC for a longer period than reasonably necessary to execute the work. Section 1420.050. Public Safety and Convenience. All appurtenances and appliances used or useful in enabling PEC to maintain its electric utility services shall be placed and maintained with utmost consideration for the public safety and convenience, and any hazards created by storms, accidents, or other causes will be removed without undue delay. Section 14.20.060. Outside Plant Accommodations. PEC, on request of any person, shall remove or raise or lower its wires temporarily to permit the moving Of houses or other bulky structures. The expense of such temporary removal, raising or lowering of wires or other appurtenances shall be paid by the benefited party or parties, and PEG may require such payment in advance. PEC may require not more than seventy-two (72) hours advance notice to arrange for such temporary changes. Section 14.20.070. Tree Trimming. PEC shall have the right, license, privilege and permission to trim trees and bushes upon and overhanging the rights-of-way in accordance with standards promulgated by the City so as to prevent the branches thereof from coming into contact with the wires or cables of PEC. Subject to the limitations of safety and sound engineering, any tree trimming shall be in a manner that does not destroy the aesthetics and health of the trees, and so that the trees are not destroyed. • t 1:i • ! l PEC Franchise Ordinance No. p Page 4 of 9 ACTION OF EVERY KIND AND CHARACTER INCLUDING THE COST OF DEFENSE THEREOF, FOR ANY INJURY TO, INCLUDING DEATH OF , PERSON (WHETHER THEY BE THIRDPERSONS, CONTRACTORS, ! ., EMPLOYEES OFTHE PARTIES HERETO) AND ANY LOSS OF OR DAMAGE TO PROPERTY (WHETHER THE SAME BE THAT EITHER OF THE PARTIES HERETO OR OF THIRD PARTIES) CAUSED BY, ARISING OUT OF, OR IN CONNECTION WITH PEC'S WORK TO BE PERFORMED HEREUNDER WHETHER O. NOT i, CLAIMS, DEMANDS AND CAUSES OF ACTION IN WHOLE OR IN PART ARE COVERED BY INSURANCE* CITY, BY THIS AGREEMENT DOES •T GIVE CONSENT TO LITIGATION .. ANY SUCH CLAIM,DEMAND, O ,_ OF ACTION. Section 14.20.090. Cash Considerations. From and after the effective date of this ordinance, PEC shall pay to the City for its supervision of their Agreement, and for the use of its streets, alleys, sidewalks, rights-of-way, and other public places during the term of this Agreement an amount equal to two percent (2%) of the gross receipts for the preceding year received by PEC for electric utility services within the corporate limits of the City as it now exists or as it may be later changed by annexation or deannexation ordinance. Provided, that if PEC at any time pays a higher percentage of its gross receipts as a fee to any other governmental entity under a franchise agreement, then PEC shall be obligated to pay that same percentage to the City under this franchise agreement. This amount shall constitute compensation to the City for the expense incurred and for services rendered by the City in exercising its police power of regulation and supervision over the construction and location Of PEC's poles, wires, conduits, equipment and other facilities in the streets, alleys, rights-of-way and public grounds of the City and shall be due and payable in quarterly installments on January 31, April 30, July 31 and October 31 of each year for the preceding calendar quarter or any part thereof. PEC shall furnish annually by March 31 st of each year a verified statement under oath of all the gross receipts of the PEC from the rendition of electric utility service within the corporate limits of the City for the prior calendar year. This statement shall be addressed to: City of Georgetown Director of Finance 113 East 8th Street Georgetown, TX 78626 Section 14.20.100. Right to Verify Accounts. The City shall have the right at all reasonable times acting through its City Manager or designated officer, attorney, representative, or agent to inspect, review, audit and examine all the books, records and invoices of PEC. The City may require PEC Franchise Ordinance No. Page 5 of 9 reports on the operations of the utility in whatever form and with whatever information the City Council or the Council's designee prescribes. PEC shall supply requested information within 30 days Section 14.20.110. Additional Regulation. Pursuant to the City of Georgetown's City Charter, the City m8y: a) impose reasonable regulations to ensure safe, efficient and continuous service to the public; and b) require such expansion, extension, enlargement and improvements of plants and facilities as are necessary to provide adequate service to the public; and c) require PEC to furnish to the City, without cost to the City, full information regarding the location, character, size, length, and terminals of all facilities of PEC in, over and under the streets, alleys, and other public property of the City, and to regulate and control the location, relocation, and removal of such facilities; and d) to collect from PEC for operations in the City such proportion of the expense of excavating, grading, paving, repaving, constructing, reconstructing, draining, repairing, maintenance, lighting, sweeping, and sprinkling the streets, alleys, bridges, culverts, viaducts, and other public places of the City as represents the increased cost of such operations resulting from the occupancy of such public places by PEC, and such proportion of the costs of such operations as results from damage to or disturbance of such .public places caused by PEC; or to compel PEC to perform at its own expense, such operations as above listed which are made necessary by the occupancy of such public places by such utility or by damage to or disturbance of such public places caused by such public utility; and e) to require the keeping of accounts in such form as will accurately reflect the value of the property of each franchise holder which is used and useful in rendering its service to the public and the expenses, receipts and profits of all kinds of PEC. Section 14.20.120. No Exclusive Privileges Conferred. Nothing herein contained shall be construed as giving to PEC any exclusive privilege or franchise. Section 14.20.130. City Approval of Transfer. PEC shall have the right to transfer this Agreement. The written approval by the City Council shall be secured by PEC before it may transfer or assign this Agreement, or any of the rights or privileges included within it. Any successor or assignee of PEC shall be bound by all the duties, obligations, and conditions of the Agreement. Such transfer or assignment will be considered only upon the filing with the City Secretary of an instrument duly executed by the assignee agreeing to be bound. The City shall not unreasonably withhold approval of a transfer; provided however, the proposed assignee must show financial responsibility and must agree to comply with all provision of this Agreement. PEC Franchise Ordinance No. Page 6 of 9 Section 14.20.140. Right to Terminate for Breach of Contract. Violation of or failure or refusal on the part of PEC to perform, or in good faith begin and continue performance of any of the terms and provisions hereof after thirty (30) days written notice from the City of such claim, failure or violation shall, at the election of the City be treated as a breach of the terms of this Ordinance and Agreement, and failure on the part of PEC due to its negligence or refusal to well and truly perform or attempt in good faith to perform any Of its duties hereunder shall be treated as a breach of this Agreement, Ordinance and Franchise and this Ordinance, Agreement and Franchise shall, thereupon, at the election of the City, terminate and become inoperative. Section 14.20.150. Partial Invalidity and Repeal Provisions. All ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed only to the extent of the conflict herewith. Section 14.20.160 Acceptance. PEC shall have thirty (30) days from and after the final passage and approval of this Ordinance to file its written acceptance thereof with the City Secretary, and upon such acceptance being filed, this Ordinance shall be considered as taking effect and being in force and effect as soon as allowed after final, passage pursuant to the City's Charter, but no sooner than thirty (30) days from the passage and approval and shall effectuate and make binding upon the parties thereto, their successors and assigns, the agreement provided by the terms hereof. Failure to file such acceptance within thirty (30) days from final approval of the Ordinance shall invalidate the Ordinance in its entirety. Section 14.20.170, Performance. This contract has been made under and shall be governed by the laws of the State of Texas. The parties agree that performance and all matters related thereto shall be in Williamson County, Texas. Section 14.20.180. Limitations of Agreement. Nothing in this Agreement is intended to waive any legal right held by or granted to the City in the regulation of franchises within the City. The rights and powers of the City under or with respect to this franchise shall be limited insofar as they conflict with any obligation imposed on, or right conferred upon, PEC under the Public Utility Regulatory Act of Texas, the Federal Power Act, or similar state of federal law applicable to the utility industry. This Agreement is intended to grant PEC a nonexclusive right to construct, generate, and maintain lines, equipment, and facilities to provide electric service only. PEC Franchise Ordinance No. Page 7 of 9 SECTION 4. All ordinances and resolutions, or parts of ordinances and resolutions, in conflict with this Ordinance are hereby repealed, and are no longer of any force and effect. SECTION 5. If any provision of this ordinance or application thereof to any person or circumstance, shall be held invalid, such invalidity shall not affect the other provisions or application thereof, of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are hereby declared to be severable. SECTION 6. The Mayor is hereby authorized to sign this ordinance and the City Secretary to attest. This ordinance shall become effective and be in full force and effect thirty (30) days after its final passage, in accordance with the provisions of Section 8.03 of the Charter of the City of Georgetown. PASSED AND APPROVED on First Reading on the day of October, 2008 PASSED AND APPROVED on Second Reading on the,6w�� day of November, 2008 I Qy. � .<' �t - A/. Sandra D. Lee, City Secretary By: .c --4t!:5P / 'L Patricia E. Carls, City Attorney PEC Franchise Ordinance No. Page 8 of 9 THE CI By" Cep WJNIRUREEW• G. Garver, Mayor A qg2vlmm WHEREAS, the City Council of the City of Georgetown, Texas ("City") has heretofore enacted the above ordinance and agreement granting to the Pedernales Electric Cooperative, Inc., a franchise to operate within the City and use the City streets, alleys, rights -of -ways and public places and prescribing certain obligations and duties as set forth in that ordinance which is incorporated herein by reference, to become effective upon acceptance of the understanding in due form: NOW THEREFORE, for the purpose of complying with the terms of that ordinance and agreement, Pedernales Electric Cooperative, Inc., does hereby execute its written acceptance of all the terms and provisions of said Ordinance and Agreement, and accordingly files this instrument with the City Secretary of the City of Georgetown, Texas on this the day of 2008. PEDERNALES ELECTRIC COOPERATIVE, INC. By: ATTEST: (tvoed or arinted name) (typed or printed name) Title ACCEPTANCE filed on this PEC Franchise Ordinance No. Page 9 of 9 in the office of the City Secretary of the City of Georgetown, Texas, day of , 2008 Sandra D. Lee, City Secretary