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HomeMy WebLinkAboutORD 98-22 - Pedernales Electric CooperativeORDINANCE i / az'` AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS AMENDING TITLE 14 OF THE CODE OF ORDINANCES OF THE CITY OF GEORGETOWN, TEXAS, RELATING TO FRANCHISES, BY ADDING CHAPTER 14.20 TO ESTABLISH A FRANCHISE AGREEMENT BETWEEN THE CITY OF GEORGETOWN ("CITY") AND THE PEDERNALES ELECTRIC COOPERATIVE, INC. FOR THE PROVISION OF ELECTRICAL SERVICE WITHIN A PORTION OF THE CITY FOR A PERIOD OF TEN YEARS, AND THAT THE CITY SHALL RECEIVE A QUARTERLY FRANCHISE FEE FOR SUCH USE; PROVIDING FOR INDEMNIFICATION OF THE CITY; REPEALING CONFLICTING ORDINANCES AND RESOLUTIONS; INCLUDING A SEVERABILITY CLAUSE; AND ESTABLISHING AN EFFECTIVE DATE 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 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, 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 Utilities and Energy Policy 6 of the Century Plan - Policy Plan Element, which states: "The City will monitor the development of franchised utilities that provide adequate services forall citizens."; and further finds that the enactment of this ordinance is not inconsistent or in conflict with any other Century Plan Policies, as required by Section 2.03 of the Administrative Chapter of the Policy Plan, PEC Franchise Ordinance No. Page 1 of 8 SECTION 2. Title 14 of the Code of Ordinances of the City of Georgetown, Texas is hereby amended to add the following Section 14.20 entitled "Pedernales Electric Cooperative, Inc.": Section 94.20.010. Term, This Agreement and Franchise shall be in force and effect for a period of ten (10) years from and after its effective date herein provided. 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 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 Director of Community Owned Utilities 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 Director of Community Owned Utilities or the appropriate City official to whom such duties have been delegated. PEC shall give advance notice to the Director of Community Owned Utilities 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 PEC Franchise Ordinance No. 9T� ZZ Page 2 of 8 consent of the City, to allow other entities that have franchise with the City to use PEC's poles, conduits, and other facilities, on such terms as PEC may choose. PEC 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, guys, 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 94.20.040. 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 satisfaction of the Director of Community Owned Utilities 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 94.20.050 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 benefitted patty or parties, and PEC 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 94.20.070 Tree Trimming. PEC shall have the right, license, privilege and permission to trim trees and bushes upon and overhanging the rights-of-way so as to prevent the branches thereof from coming into contact with the wires or cables of PEG. 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. Section 14.20.080 INDEMNIFICATION. PEC AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS CITY, ITS OFFICERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY`S FEES, FOR INJURY TO OR DEATH OFANY PERSON, -OR FOR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE WORK DONE BY PEC UNDER THIS PEC Franchise Ordinance No.9c? ' 22 Page 3 of 8 CONTRACT. SUCH INDEMNITY SHALL ONLY APPLY WHERE THE CLAIMS, LOSSES, DAMAGES, CAUSES OFACTION, SUITS OR LiABILITYARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE OF PEC. PEC SHALL HAVE THE RiGHT TO CONTROL THE DEFENSE AND SETTLEMENT OF ANY SUCH CLAIM. PEC ASSUMES FULL RESPONSIBILITY FOR THE WORK TO BE PERFORMED HEREUNDER, AND HEREBY RELEASES, RELINQUISHES AND DISCHARGES CITY, ITS OFFICERS, AGENTS AND EMPLOYEES, FROM ALL CLAIMS, DEMANDS, AND CAUSES OFACTION OFEVERYKIND AND CHARACTER INCLUDING THE COST OF DEFENSE THEREOF, FOR ANY INJURY TO, INCLUDING DEATH OF PERSON (WHETHER THEY BE THIRD PERSONS, CONTRACTORS, OR EMPLOYEES OF EITHER OF THE 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 OR NOT SAiD CLAIMS, DEMANDS AND CAUSES OFACTION IN WHOLE OR IN PART ARE COVERED BY INSURANCE. CITY, BY THIS AGREEMENT DOES NOT GIVE CONSENT TO LITIGATION OF ANY SUCH CLAIM, DEMAND, OR CAUSE OFACTION. Section 14.20.090, Cash Consideration. From and after the effective date of this ordinance, PEC shall pay to the City for its supervision of this 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 31st 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. 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 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. PEC Franchise Ordinance No. Page 4 of 8 Section 14.20, 110, Additional Regulation. Pursuant to the City of Georgetown's City Charter, the City may: 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 the damage to or disturbance of such public places caused by PEG; 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 94.20.120. No Exclusive Privileges Conferred. Nothing herein contained shall be construed as giving to PEC any exclusive privilege or franchise. Section 14.20.130. City pproval 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 provisions of this Agreement. 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. PEC Franchise Ordinance No. fZE2Z Page 5 of 8 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. Regulation of Rates. The City and PEG agree that the City shall have the authority to regulate the rates and tariffs of PEC for electric utility service provided within the City in accordance with applicable laws of the State of Texas and ordinances of the City of Georgetown. Section 14.20.170. 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 14.20.180. 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 14.20.190. 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 or 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. SECTION 3. 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 4. 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. PEC Franchise Ordinance No. Yf Page 6 of 8 SECTION 5. 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 the Charter of the City of Georgetown. PASSED AND APPROVED on First Reading on the day of March, 1998, PASSED AND APPROVED on Second Reading on the w day of April, 1998. ATTEST: By: Sandra Lee, City Secretary ROVED AS Marianne Lai City Attorney FORM: nks PEC Franchise Ordinance No. 22 Page 7 of 8 THE CITY OF GEORGETOWN Leo Wood, Mayor ACCEPTANCE 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 as enacted and for the purpose of accepting said 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 they day of -4- ` , 1998. PEDERNALES ELECTRIC COOPERATIVE, INC. By: ATT[=CT• (typed or printed Secretary to General Manager Title (typed or printed name) General Manager Title ACCEPTANCE filed in the office of the City Secretary of the City of Georgetown, Texas, this,-- 4, day of = " Y , 1998. andra Lee, City Secretary PEC Franchise Ordinance No. X22 Page 8 of 8