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HomeMy WebLinkAboutORD 97-65 - Pedernales Electric FranchiseAN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS ESTABLISHING A FRANCHISE AGREEMENT BETWEEN THE 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 OF GEORGETOWN SHALL RECEIVE A QUARTERLY FRANCHISE FEE FOR SUCH USE, PROVIDING FOR INDEMNIFICATION OF THE CITY OF GEORGETOWN, AND DECLARING 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. 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 2. 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 3. 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 ::ODMA\GRPWISE\CTW.AUS09.OR Lib:602.ior 2 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 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 4. 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. ::ODMA\GRPWISE\CTW.AUS09.OR Lib:602.1or 3 SECTION 5. 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 6, 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 party 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 7. 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 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. i !115UNIUMI iIII iI. ! 111 UT To M- INDEMNITYONLY APPLY WHERE,, DAMAGES, ::ODMA\G"WISE\CTW.AUS09.OR Lib:602.1or 4 ,11 1111111,111 1 R 1 ! WAV I ON I I FIRM UM 10) 11 of 104 16111 1!,1111111 1 1111111111111 1. , , ! 1 llii MIT0,131, . ,t ! ! ! ! • . • • l • 1, SECTION 9. 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 ::ODMA\GRPWISE\CTW.AUS09.OR Lib:602.ior 5 amount shall constitute compensationto 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. SECTION 10. 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. SECTION 11. 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, ::ODMA\GRPWISE\CTW.AUS09.OR Lib:602.1or 6 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 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 12. No Exclusive Privileges Conferred. Nothing herein contained shall be construed as giving to PEC any exclusive privilege or franchise. SECTION 13. 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 provisions of this Agreement. SECTION 14. 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 ::ODMA\GRPWISE\CTW.AUS09.OR Lib:602.ior 7 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 15. 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 16. Regulation of Rates. The City and PEC 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 17. 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 (3 0) days from final approval of the Ordinance shall invalidate the Ordinance in its entirety. . SECTION 18. 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 19. 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 :ODMA\GRPWISE\CTW.AUS09.OR Lib:602.ior 8 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. PASSED AND APPROVED on First Reading on the ay of Koyetylher , 1997. PASSED AND APPROVED on Second Reading on the .?74k day of DeZeM&4^ I WIyA 0 Sandra Lee City Secretary Marianne Landers City Attorney ACCEPTANCE THE CITY OF GEORGETOWN By:'Leo Wood Mayor WHEREAS, the City Council of the City of Georgetown, Texas, 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 ::ODMA\GRPWISE\CTW.AUS09.OR Lib:602.1or 9 1 of said Ordinance and Agreement, and accordingly files this instrument with the City Secretary of the City of Georgetown, Texas on this the 15 day of December , 1997. PEDERNALES ELECTRIC COOPERATIVE, INC. By: Attest: Joyce L. Greenslade (typed or printed name) Sec. 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 day of , 199. ::ODMA\GRPWISE\CTW.AUS09.OR Lib:602.ior 10 Lee City Secretary