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
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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.
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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.
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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
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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,
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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
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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
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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
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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.
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Lee
City Secretary