HomeMy WebLinkAboutORD 2020-28 - PEC Franchise AgrmtOrdinance No. Z020 - 29
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS AMENDING CHAPTER 14.20 OF THE CODE
OF ORDINANCES RELATING TO THE TERM AND CASH
CONSIDERATIONS OF THE PEDERNALES ELECTRIC
COOPERATIVE, INC. FRANCHISE; REPEALING CONFLICTING
ORDINANCES AND RESOLUTIONS; INCLUDING A SEVERABILITY
CLAUSE; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the City of Georgetown, Texas (the "City") is a home -rule municipality
incorporated under Article XI of the Texas Constitution; and
WHEREAS, pursuant to Section 1.04 of the Home Rule Charter (the "Charter") of the City,
the City has "exclusive dominion, control and jurisdiction in, upon, over and under the public
streets, sidewalks, alleys, highways, public squares and public ways (except those under State
control if required by State law) that are within the corporate limits of the city, and in, upon, over,
and under all public property of the City"; and
WHEREAS, the Charter provides for the inalienability of all public streets, highways,
sidewalks, alleys, parks, public squares, and public places of the City and prohibits the renewal or
amendment of any franchise affecting said places except as provided in the Charter; and
WHEREAS, the Charter grants the City Council the power by ordinance to amend and
extend all franchises of public utilities operating within the City of Georgetown; and
WHEREAS, Section 14.008 of the Texas Utilities Code states that the Public Utilities
Regulatory Act "does not restrict the rights and powers of a municipality to grant or refuse a
franchise to use the streets and alleys in the municipality or to make a statutory charge for that
use"; and
WHEREAS, Pedernales Electric Cooperative, Inc. ("PEC") is an electric utility organized
under Chapter 161 of the Texas Utilities Code, with a Certificate of Convenience and Necessity (a
"CCN") to serve portions of Georgetown; and
WHEREAS, in December 2008, the City granted PEC a franchise to operate within the
City's rights -of -way and other public places, but said franchise expired in December 2018; and
WHEREAS, since such time the City and PEC have continued to negotiate a renewal of
the franchise; and
WHEREAS, in 2008 PEC agreed to pay the City an amount equal to two percent (2%) of
the gross receipts for the preceding year received by PEC for electric utility services within the
Ordinance Number: Zou Page 1 of 3
Description: Chapter 14.20 PEC Franchise Amendment
Date Approved: 2020
corporate limits of the City, but if PEC at any time paid a higher percentage of its gross receipts
as a fee to any governmental entity under a franchise agreement, PEC was obligated to pay that
same percentage to the City; and
WHEREAS, PEC is currently paying four and a half percent (4.5%) of its gross receipts as
a fee to other governmental entities; and
WHEREAS, the City is willing to extend the PEC franchise through September 2020 as
the parties negotiate a renewal of the agreement, so long as PEC pays a franchise fee equal to four
and a half percent (4.5%) of its gross receipts as soon as possible as provided herein; and
WHEREAS, the City Council finds it necessary to amend Chapter 14.20 of the Code of
Ordinances as set out herein to extend the term of the franchise and increase the cash considerations
due and payable thereunder.
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.
Section 2. The meeting at which this ordinance was approved was in all things conducted
in compliance with the Texas Open Meetings Act, Texas Government Code Chapter 551.
Section 3. Chapter 14.20 of the Code of Ordinances is amended as shown on Exhibit A.
Section 4. All ordinances or resolutions that are in conflict with the provisions of this
ordinance are, and the same are hereby, repealed and all other ordinances or resolutions of the City
not in conflict with the provisions of this ordinance shall remain in full force and effect; however,
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 and no waiver or relinquishment shall be deemed to have
been made by the City unless such waiver or relinnuishment is in writing and signed by the City_
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. PEC shall give notice of the higher franchise fee to its members by March 31, 2020.
Beginning on May 1, 2020, PEC shall begin accruing for payment to the City the franchise fee as
provided in Exhibit A. Without waiving Section 14.20.160 of the current franchise, PEC shall
file its written acceptance of the amendments set forth in Exhibit A with the City Secretary by
April 24, 2020, 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
Ordinance Number: Page 2 of 3
Description: Chapter 14.20 PEC Franchise Amendment
Date Approved:. 2020
Charter. Failure to file such acceptance by April 24, 2020 shall invalidate the ordinance in its
entirety.
PASSED AND APPROVED on First Reading on the 1 lth day of February, 2020.
PASSED AND APPROVED on Second Reading on the A111-of_jj&&LA , 2020.
ATTEST: THE CITY OF GEORGETOWN
Robyn 61ensmore, City Secretary Dale Ross, Mayor
APPROVE TO ORM:
Charlie McNab , City At rney
Ordinance Number: IO17.p- `n Page 3 of 3
Description: Chapter 14.20 PEC Franchise Amendment
Date Approved: JADj Lic, Z!4 2020
Exhibit A
CHAPTER 14.20 - PEDERNALES ELECTRIC COOPERATIVE, INC.
Sec. 14.20.010. -Term.
This agreement and franchise shall be in force and effect feF a period Of teR yeaFs fre-FA �"d-
OfteF ,fi5, effective datethrough September 30, 2020.
All rights and duties are herein granted and acknowledged for such term and subject to the
provisions of this Chapter.
i4.^.0^. - Pia%2ient of plant.
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T he 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
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 Chapter. 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.
Sec. 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 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, 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.
Sec. 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 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.
Sec. 14.20.050. - Public safety and convenience.
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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.
Sec. 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 PEC may require such payment in advance. PEC may require not more than
72 hours advance notice to arrange for such temporary changes.
Sec. 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.
Sec. 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 of any person, or for damage to any property, arising out of or in connection
with the work done by PEC under this contract. Such indemnity shall only apply where the
claims losses, damages, causes of action, suits or liability arises 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.
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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 of action of every kind 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 of action 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 causes of action.
Sec. 14.20.090. - Cash considerations.
= ar ;af LeFthe e4eEt;ve date ef this `� PEC shall a to the City for its
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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 agreementa-an amount equal to four and a half
percent 4.5% 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. This statement shall be addressed to:
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City of Georgetown
Chief Financial Officer
113 East 8th Street
Georgetown, TX 78626
Sec. 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.
Sec. 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
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
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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.
Sec. 14.20.120. - No exclusive privileges conferred.
Nothing herein contained shall be construed as giving to PEC any exclusive privilege or
franchise.
Sec. 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.
Sec. 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 30 days written notice
form 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 Chapter 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, Chapter and franchise and this
Chapter, agreement and franchise shall, thereupon, at the election of the City, terminate and
become inoperative.
Sec. 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.
Sec. 14.20.160. - Acceptance.
PEC shall have 30 days from and after the final passage and approval of this Chapter to file
its written acceptance thereof with the City Secretary, and upon such acceptance being filed,
this Chapter 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 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 30 days from final approval of the Ordinance shall invalidate the Ordinance
in its entirety.
Sec. 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.
Sec. 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.
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