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HomeMy WebLinkAboutOrd 186 Granting Franchise Agreement to TriCounty ElectricORDINANCE NO. 186 AN ORDINANCE GRANTING THE RIGHT. PRIVILEGE AND FRANCHISE TO TRI -COUNTY ELECTRIC COOPERATIVE, INC., GRANTEE, AND ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, ERECT, BUILD, EQUIP, OWN, MAINTAIN AND OPERATE IN, ALONG, UNDER, OVER AND ACROSS THE STREETS, AVENUES, ALLEYS, BRIDGES, VIADUCTS AND PUBLIC GROUNDS OF THE TOWN OF WESTLAKE, TEXAS, SUCH POSTS, POLES, WIRES, CABLES, CONDUITS AND OTHER APPLIANCES, STRUCTURES AND FIXTURES NECESSARY OR CONVENIENT FOR RENDITION OF ELECTRIC LIGHT, HEAT AND POWER AND FOR CONDUCTING A GENERAL LOCAL ELECTRIC LIGHT, HEAT AND POWER BUSINESS; PROVIDING FOR CONSIDERATION; FOR PERIOD OF GRANT; FOR ASSIGNMENT; FOR METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES AND FOR PARTIAL INVALIDITY. BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1. GRANT OF RIGHT, PRIVILEGE AND FRANCHISE FOR CONSTRUCTION AND MAINTENANCE OF ELECTRIC LIGHT, HEAT AND POWER PLANT AND SERVICE That the right, privilege and franchise be, and the same is hereby, granted to TRI -COUNTY ELECTRIC COOPERATIVE, INC., hereinafter referred to as the "TRI -COUNTY" and its successors or assigns, subject to the terms and conditions hereinafter set forth, to construct, erect, build, equip, own, maintain and operate in, along, under, over and across the streets, alleys, avenues, bridges, viaducts and public grounds of the Town, such posts, poles, wires, cables, conduits and other appliances, structures and fixtures necessary or convenient for rendering electric light, heat and power services and electricity within the town as well as beyond its limits. Where feasible all wires, cables and conduits will be installed underground rather than overhead. SECTION 2. SUPERVISION BY TOWN OF LOCATION OF POLES AND CONDUIT That all poles to be placed shall be of sound material and reasonably straight, and shall be so set that they will not interfere with the flow of water to any gutter or drain, and so that the same will interfere as little as practicable with the ordinary travel on the street or sidewalk. The location and route of all poles, stubs, guys, anchors, conduits and cables to be placed and constructed by TRI -COUNTY in the construction and maintenance of its electric system in the Town, and the location of all conduits to be laid by the TRI -COUNTY within the limits of the Town under this ordinance, shall be subject to the reasonable and proper regulation, control and direction of the Board of Aldermen or of any Town official to whom such duties have been or may be delegated. Where feasible all wires, cables and conduits will be installed underground rather than overhead, it being the expressed intent of the Town to avoid overhead electric lines as much as possible. TRI -COUNTY agrees to relocate its facilities situated in the streets, alleys and ways of the Town pursuant to this franchise ordinance, or any prior or successor franchise ordinance, as required by the Town for widening of streets, alleys and ways; such relocation shall be at Grantee's cost and expense unless otherwise agreed between Town and Grantee, or reimbursement is otherwise provided by law or regulation, or unless otherwise provided by law or regulation including, without limitation, any rule or regulation of the Public Utility Commission of Texas. That nothing in this Ordinance is intended to add to or detract from any authority granted by the Legislature of the State of Texas to the Town. SECTION 3. STREETS TO BE RESTORED TO GOOD CONDITION That the surface of any street, alley, highway or public place within the Town disturbed by TRI -COUNTY in building, constructing, renewing or maintaining its electric plant and system shall be restored within a reasonable time after the completion of the work to as good a condition as before the commencement of the work and maintained to the satisfaction of the Board of Aldermen, or of any Town official to whom such duties have been or may be delegated, for one year from the date the surface of said street, alley, highway or public place is broken for such construction or maintenance work, after which time responsibility for the maintenance shall become the duty of the Town. No such street, alley, highway, or public place shall be encumbered for a longer period than shall be necessary to execute the work. SECTION 4. TEMPORARY REMOVAL OF WIRES That TRI -COUNTY on the request of any person shall remove or raise or lower its wires within the Town temporarily to permit the moving of houses or other bulky structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the benefited party or parties, and TRI -COUNTY may require such payment in advance. TRI -COUNTY shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes. The clearance of wires above ground or rails within the Town and also underground work shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, United States Department of Commerce, as promulgated at the time of erection thereof. SECTION 5. TREE TRIMMING That the right, license, privilege and permission is hereby granted to TRI -COUNTY, its successors and assigns, to trim trees upon and overhanging the streets, alleys, sidewalks and public places of the Town, so as to prevent the branches of such trees from coming in contact with the wires or cables of TRI - COUNTY, and when so ordered by the Town, said trimming shall be done under the supervision and direction of the Board of Aldermen or of any Town official to whom said duties have been or may be delegated. SECTION 6. CASH CONSIDERATION TO BE PAID BY TRI -COUNTY. (a) In consideration for the rights and privileges herein granted, TRI-COUNTY's usage of public rights--of-way, the temporary interference with the use of public rights-of-way, the administration of this franchise by the Town, and other costs and obligations undertaken by the Town herein, TRI -COUNTY hereby agrees to pay the Town during the term of this franchise a sum of money equal to percent ( -3 %) of its gross revenue received from the sale of electric power and energy by said company. (b) Such fee payment shall be made in four (4) calendar quarterly payments. Each payment shall be due and payable on or before the last day of the calendar month following the close of the calendar quarter for which the payment is calculated. (c) The Town shall have the right to review or audit the Company's franchise related books and records regarding any amounts paid under this franchise. The Town shall give written notice to the Company of any additional amount claimed to be due to the Town as a result of the Town's review. Such notice shall be given no later than forty-eight (48) months following the close of the calendar year covered by such statement(s). The additional amount due to the Town, if any, shall be paid within thirty (30) days following determination by the parties that such amount is due and payable. SECTION 7. PAYMENT OF CASH CONSIDERATION TO BE IN LIEU OF ANY OTHER PAYMENTS EXCEPT USUAL GENERAL OR SPECIAL AD VALOREM TAXES That the Town agrees that the consideration set forth in the preceding section hereof shall be paid and received in lieu of any tax, license, charge, fee, street or alley rental or any other character of charge for use and occupancy of the streets, avenues, alleys, bridges, viaducts and public grounds of the Town; in lieu of any pole tax or inspection fee tax; in lieu of any easement or franchise tax, whether levied as an ad valorem, special or other .character of tax; and in lieu of any imposition other than the usual general or special ad valorem taxes now or hereafter levied. Should the Town not have the legal power to agree that the payment of the foregoing cash consideration shall be in lieu of the taxes, licenses, charges, fees, rentals, and easement or franchise taxes aforesaid, then the Town agrees that it will apply so much of said payment as may be necessary to the satisfaction of TRI-COUNTY's obligations, if any, to pay any such taxes, licenses, charges, fees, rentals, and easement or franchise taxes. SECTION 8. INDEMNITY TRI -COUNTY, as a condition of the grant of this franchise, and in consideration thereof, shall indemnify and hold the Town harmless against all claims for damages to persons or property by reason of the construction, maintenance and operation of TRI-COUNTY's facilities, and conduct of its business, in any way growing out of the granting of this franchise, directly, or indirectly, when such injury shall be found by a court of competent jurisdiction to have been caused by the negligent act or omission, or intentional misconduct, of TRI - COUNTY or any of its officers, agents or employees, or by any person for whose negligent act or omission or intentional misconduct TRI -COUNTY is by law responsible, provided that the Town provides to TRI -COUNTY written notice of any such claim or the filing of such lawsuit. Provided further, that this indemnity shall only apply to the extent that the loss, damage, or injury results from the negligence or intentional wrongful act or omission of TRI -COUNTY, its officers, agents, or employees, and does not apply to the extent such loss, damage, or injury is attributable to the negligence or intentional wrongful act or omission of the Town, or the Town's agents, representatives, or employees or any other person or entity. This Provision is not intended to create liability for the benefit of third parties but is solely for the benefit of TRI -COUNTY and the Town. SECTION 9. NO EXCLUSIVE PRIVILEGES CONFERRED BY THIS ORDINANCE That nothing herein contained shall be construed as giving to TRI -COUNTY any exclusive Privileges. SECTION 10. SUCCESSORS AND ASSIGNS That the rights, powers, limitations, duties and restrictions herein provided for shall inure to and be binding upon the parties hereto and upon their respective successors and assigns. SECTION 11. PERIOD OF FRANCHISE That this agreement shall be in full force and effect for the period beginning with the effective date hereof and ending Win- ( ) years after such date. SECTION 12. PARTIAL INVALIDITY AND REPEAL PROVISIONS That if any section, sentence, clause, or phrase of this Ordinance is for any reason held to be illegal, ultra vires or unconstitutional, such invalidity shall not affect the validity of the remaining portions of this Ordinance. All ordinances and agreements and parts of ordinances and agreements in conflict herewith are hereby repealed. SECTION 13. ACCEPTANCE OF AGREEMENT That TRI -COUNTY shall have sixty (60) days from and after the passage and approval of this Ordinance to file its written acceptance thereof with the Town Secretary, and upon such acceptance being filed, this Ordinance shall take effect and be in force from and after the date of its acceptance. and shall effectuate and make binding the agreement provided by the terms hereof. APPROVED this ; day of . A. D. 19_2/:. IV Dale White, Mayor ATTEST: f Ger' Wh te, Town Secretary APPROVED AS TO FORM: Paul C. Isham, Town Attorney