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Ordinance 1996-21 CITY OF WYLIE, TEXAS ORDINANCE NO. q {, -;)...1 AN ORDINANCE OF THE CITY OF WYLIE, TEXAS GRANTING TO FARMERS ELECTRIC COOPERATIVE, INC., ITS SUCCESSOR AND ASSIGNS THE FRANCHISE AND RIGHTS TO CONDUCT THE BUSINESS OF ACQUIRING, MAINT AINING, INSTALLING AND OPERATING AN ELECTRIC SYSTEM TO THE CITY OF WYLIE AND THE INHABIT ANTS THEREOF; GRANTING THE RIGHTS TO USE THE STREETS, ALLEYS AND OTHER PUBLIC WAYS IN THE CITY FOR SUCH PURPOSES; PRESCRIBING THE CONDITIONS, RESTRICTIONS, OBLIGATIONS AND LIMITATIONS UNDER WHICH SUCH FRANCHISE SHALL BE EXERCISED; PROVIDING FOR ADEQUATE COMPENSATION TO BE PAID TO THE CITY; PRESCRIBING THE TERMS OF THE FRANCHISE; PROVIDING FOR SAVING, REPEALING AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, FARMERS ELECTRIC COOPERATIVE, INC., (the "COMPANY") is now and has been engaged in the electric light, heat and power business in the state of Texas; and WHEREAS, in furtherance of such business and for many years, the COMPANY erected and maintained certain aspects of its distribution system in the CITY OF WYLIE, TEXAS, ("CITY") pursuant to rights granted the COMPANY under the laws and regulations of the state of Texas, CITY and/or other governmental entity with the authority to contract with and regulate the COMPANY; and WHEREAS, the City Council for the CITY ("City Council") has investigated and determined that it will be advantageous and beneficial for the citizens of the CITY to grant to the COMP ANY the right to conduct its electrical business in the CITY and to enter into an agreement governing the terms and conditions of that business; and WHEREAS, it is to the mutual advantage of both the CITY and the COMPANY that an agreement should be entered into between the COMPANY and the CITY establishing the conditions under which the COMPANY shall operate in the CITY. ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 1 wylie/contractlelectric.ord BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1: There is hereby granted to COMPANY, its successors and assigns, the right, privilege and franchise to acquire, maintain, install and operate an electric light, heat and power business and system in the CITY for the purpose of distributing and transmitting electric service to the City and its inhabitants for the considerations, and subject to the conditions, terms, duties, obligations, limitations and regulations, hereinafter prescribed and subject to all statutes, 9haracter provisions, ordinances, rules and regulations applicable to the COMPANY and its operations. The use of the term CITY in this Ordinance shall hereinafter mean the CITY's . current corporate limits and shall include those corporate limits as may be extended by the CITY from time to time. SECTION 2: COMPANY is granted the right to have, acquire, place, remove, construct, reconstruct, extend, maintain, and operate along, across, on, over, through, above, and under the present and future streets, alleys, parkways, and other public grounds and places within the CITY's limits, a system of poles, wires, anchors, cables, manholes, conduits, and other facilities and equipment used in or incident to the giving of electric service in the CITY's limits. SECTION 3: The poles, wires, anchors, cables, manholes, conduits, and other facilities, construction, and appurtenances now used in or incident to the giving of the electric service and other maintenance of the electric service and system by the COMPANY in the CITY shall remain as now constructed, subject to: 1) such reasonable changes as may be considered necessary or desirable by the CITY or other applicable regulatory authority; 2) any changes required as a result of compliance with the limitations and conditions herein prescribed; and 3) any reasonable changes required by any applicable statute, charter provision, ordinance, rule and regulation ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 2 wylie/contractlelectric.ord governing the operation of COMPANY's business of furnishing electric services. All extensions, replacements, construction or reconstruction of any such equipment or facilities, and the location, relocation, routing and re-routing of all poles, wires, anchors, cables, manholes and conduits undertaken by the COMPANY within the CITY, either overhead or underground, shall be subject to reasonable control, regulation and direction of the CITY Manager or his/her designated representative. All poles used in the electric light, heat and power ~ystem shall be of sound material and reasonably straight. The poles shall be so set that they will not interfere with the flow of water in any gutter or drain, and that they will interfere as little as practicable with the ordinary travel on alleys, streets, or sidewalks. SECTION 4: The surface of any street, alley, highway or public place disturbed by the COMPANY in the building, constructing, renewing or maintaining of its electric plant and system shall be restored to substantially the same state and condition as existed prior to the disturbance by the COMPANY. The restoration shall be completed within a reasonable time, but no later than sixty days (60) days after the completion of the COMPANY's work, and shall be completed to the satisfaction of the CITY Manager or his/her designated representative. After restoration, the surface of any street, alley, highway or public place disturbed by the COMPANY shall be maintained to the satisfaction of the CITY Manager or his/her designated representative for one (1) year from the date of the disturbance; after such time, maintenance shall become the responsibility of the CITY. No street, alley, highway or public place shall be encumbered for a longer period than shall be necessary to execute the work designated by the COMPANY. The CITY may, from time to time, adopt reasonable ordinances regulating such work including, but not limited to, the times and extent of any such encumbrances. ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 3 wylie/contractlelectric.ord SECTION 5: The CITY shall at all times, have the right and power to require fair and reasonable extensions and types of services offered to the inhabitants of the CITY, taking into consideration the circumstances, conditions and costs involved. The CITY may, by ordinance, adopt policies regulating such extensions and services, subject to any regulations of the state of Texas or the United States which may supersede the CITY's ordinance. SECTION 6: In conducting its business and in the construction, reconstruction, location .or relocation of any lines or equipment as provided herein, including but not limited to Section 12, the COMPANY shall comply with all reasonable regulations and requirements of the CITY or other applicable regulatory authority. Upon default by the COMPANY to comply with any specific regulation or requirement of the CITY or other applicable regulatory authority, after reasonable notice to the COMPANY and opportunity to be heard, the CITY may proceed to perform or carry out such regulation or requirement, and any and all expenses incurred by the CITY in such performance shall be borne by the COMPANY. SECTION 7: The COMPANY shall indemnify and hold the CITY harmless from all costs, expenses (including reasonable attorney's fees) and damages to persons or property arising directly or indirectly out of the construction, maintenance or operation of the COMPANY's equipment and facilities, to the extent such costs, expenses and damages are found to be caused by the negligent actions or intentional misconduct of the COMPANY. The COMPANY shall have no duty to indemnify the CITY for any costs, expenses or damages to the extent such costs, expenses or damages are found to be caused by the negligence of any other person or entity, unless acting in an agency relationship with COMPANY. ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 4 wylie/contractlelectric.ord SECTION 8: The COMPANY shall maintain all of its equipment and facilities in reasonable operating condition at all times during the continuance of this Ordinance or franchise. An exception to the requirements imposed by this paragraph is automatically in effect when services furnished by the COMPANY is interrupted, impaired or prevented by fires, strikes, riots, storms, floods or any other causalities or occurrences beyond the control of the COMPANY; however, in case such events or occurrences, the COMPANY shall do all things reasonably within ~ts power to restore normal service as soon as practical. SECTION 9: The COMPANY on the request of any person shall remove, 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 wires shall be paid by the benefited party or parties, and the COMPANY may require such payment in advance. The COMPANY shall be given not less than seventy-two (72) hours advance notice for such temporary wire changes. The clearance of wires above ground shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, U. S. Department of Commerce, as promulgated at the time of erection thereof. SECTION 10: The COMPANY, its successors and assigns, is hereby granted the right, license, privilege and/or permission needed to trim trees upon and overhanging the streets, alleys, sidewalks and public places of the CITY, so as to prevent the branches from coming in contact with the wires or cables of the COMPANY. The COMPANY shall be responsible for trimming any tree at the request of the CITY MANAGER or his/her designated representative, and the CITY shall have the right to supervise and direct any such request. ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 5 wylie/contractlelectric.ord SECTION 11: To indemnify the CITY for the use of its streets, alleys and public grounds authorized hereby, and to compensate the CITY for its superintendence of this franchise and the performance of the CITY's regulatory functions (which such regulation the CITY shall exercise and to which the COMPANY shall be subject to the extent authorized by law), the COMPANY agrees to pay to the CITY annually a sum of money equal to four percent (4%) of the annual gross receipts for the proceeding year received by the COMPANY from the sales of all ~lectric, heat and power service revenues within the CITY, with the first payment being due and payable on March 15, 1997 and continuing with a like payment being due and payable on that same date each year throughout the remainder of term of this franchise. Further, the parties agree as follows: A. On or before March 15, 1997, the COMPANY shall pay to the CITY a sum of money equal in amount to four percent (4%) of the gross receipts received by the COMP ANY from the sales of all electric, heat and power service revenues within the corporate limits of the CITY from January 1, 1996 to and including December 31, 1996. B. Payments based on the gross receipts for each of the years subsequent to calendar year 1995 shall be made on or before March 15, 1996. C. The CITY agrees that the consideration set forth in the preceding paragraphs shall be paid and received in lieu of any tax, license, charge, fee, rental, expense or any other character of charge for use and occupancy of the streets, alleys and public places in the CITY. This consideration is in lieu of any pole tax, inspection fee tax and any easement or franchise tax whether levied as an ad valorem, special or ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 6 wylie/contractlelectric.ord other character of tax. However, this consideration (1) shall not be in lieu of any imposition expressly provided for herein, (2) shall not be in lieu of the usual general or special ad valorem taxes now or hereafter levied, and (3) shall not be in lieu of any other obligation to make payments or reimbursements to the CITY as provided or required by applicable law. SECTION 12: If reasonably ordered by the CITY in connection with the widening or relocation of any street or alley, or other public improvement, the COMPANY shall, upon sixty (60) days notice from the CITY, relocate any poles, conduits, wires and/or other structures and appurtenances or any extension thereof, located within any present and future streets, alleys and' public places as so directed by the CITY. Such relocation shall be without cost to the CITY, and shall be at the expense of the COMPANY. COMPANY shall give the CITY ninety (90) days advance, written notice of the construction of any transmission line within the CITY. SECTION 13: COMPANY shall use reasonable diligence to supply electric utility service to aid CITY and its inhabitants. The service shall be subject to such rules, regulations and service standards as may be approved by the CITY. The COMPANY may require reasonable security for the payment of its bills. SECTION 14: The COMPANY shall not discriminate against any person, corporation, firm or association in the charge for gas service or in the services rendered under like circumstances to customers of the same classification. The COMPANY will not directly or indirectly grant any discount, or rebate, or use any other device to circumvent the applicable rate schedule. ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 7 wylie/contractlelectric.ord SECTION 15: The CITY, by the granting of this franchise, does not surrender or to any extent lose, waive, imperil or lessen the lawful powers and rights now or hereinafter vested in the CITY under the Constitution or the Statutes of the state of Texas and under the Charter of the CITY to regulate the rates for services of the COMPANY; and the COMPANY, by its acceptance of this franchise, agrees that all such lawful regulatory power and rights as the same may from time to time be vested in the CITY shall be in full force and effect and subject to the .exercise thereofby the CITY at any time and from time to time. SECTION 16: The CITY Manager or his/her designated representative shall have the right, at all reasonable times, to inspect the books and records of the COMPANY relating to the services provided to the City and its inhabitants. SECTION 17: The COMPANY shall have available a map setting forth its distribution system located within the CITY which map shall be corrected and brought up to date from time to time. SECTION 18: The COMPANY shall not sell, exchange, transfer, lease or assign the property rights, franchise or privileges herein granted without thirty (30) days; prior written notice of same to the CITY. Upon receipt of such notice the CITY shall at its option, (1) take no action or (2) act to cancel this franchise as of the effective date of such sale, exchange, transfer, lease or assignment. The term "assign" in addition to its generally accepted meaning, shall mean a transfer of ownership of the controlling interest of the COMPANY, but shall not include assignment or transfer to a trustee or trustees (individual or corporate) as security for bonds or other obligations or securities. ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 8 wylie/contractlelectric.ord SECTION 19: This agreement shall be in full force and effect for the period beginning with the effective date hereof and ending five (5) years after such date. This Ordinance shall be extended for an additional five (5) year period unless either party notifies the other party in writing, delivered no less than ninety (90) days prior to the last day of the initial term, that it declines to renew this Ordinance. SECTION 20: This franchise is granted subject to the provisions of Section 2, Article X, of the Charter of the CITY. Nothing contained in this franchise shall limit or interfere with any power conferred upon the Public Utility Commission of Texas. SECTION 21 : In compliance with the provisions of the Charter of the CITY, this ordinance, upon being introduced at a regular meeting of the CITY Council, shall be read at two (2) separate regular meetings of the CITY Council, and shall not be finally acted upon until thirty (30) days after the first reading. This Ordinance shall take effect thirty (30) days after its final passage by the CITY Council and upon written acceptance by the COMPANY, which acceptance shall be filed with the CITY Secretary within thirty (30) days after the final passage of this Ordinance. SECTION 22: The CITY Secretary is hereby authorized and directed to make appropriate endorsements over his/her official hand and seal of the CITY, and attach such endorsements for recording at the conclusion of this Ordinance. The CITY Secretary shall record the date upon which this Ordinance shall take effect. SECTION 23: It is hereby declared to be the intention of the CITY Council that the sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable and if any phrase, clause, sentence, of section of this Ordinance shall be declared unconstitutional or invalid ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 9 wylie/contractlelectric.ord by any judgement or decree of a court of competent jurisdiction, such unconstitutional or invalid by any judgement or decree of a court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any other remaining phrase, clause, sentence paragraph or section of this Ordinance; and the CITY Council hereby declares it would have passed the remaining portions even though it had known the affected parts would be held unconstitutional. SECTION 24: All Ordinances in conflict herewith are repealed to the extent they are in conflict. Any remaining portions of said ordinances shall remain in full force and effect SECTION 25: A caption and summary if this ordinance shall be published in accordance with Article X, Section 3 of the CITY Charter as well as provide for the effective date being thirty (30) days after final adoption by the CITY Council. SECTION 26: In accordance with the Charter of the CITY, this Ordinance shall become effective on PASSED AND APPROVED THIS THE 1m.. DAY OF 17?~ 1996 J ATTEST: ORDINANCE GRANTING FRANCHISE TO FARMERS ELECTRIC - Page 10 wylie/contractlelectric.ord _ _ _ _ _ _ _ . APPROVED AS TO FORM: CITY ATTORNEY DATE OF PUBLICATION: , Wylie News ORDINANCE GRANTING FRANCNISE TO FARMERS ELECTRIC - Page 11 wylie/contracUelectric.ord THE WYLIE NEWS P.O. Box 369 Wylie, Texas 75098 STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned authority, on this day personally appeared Chad Engbrock, of THE WYLIE NEWS, a newspaper regularly published in Collin County, Texas and having general circutation in Coltin County, Texas, who being by me duly sworn deposed and says that the forgoing attached CITy OF ~1yLI~ - UtccCi.v~ance N0. 9G-20 av~d OtccL~.v~av~ce Na. 96-21 Mr~ y ~ ~ , 1996 and ,1996. ~ , Cha ngbrock Subscribed and sworn to before me this the a~ day of ,1996 to certify which witness my hand and seal of office. PGPP P~~\\c MP NQ~~o~rte~' e ~ ~ : P1'!^ et,~ ~~`4 ~y,R• :z~ ~a ~~,R~• Margaret Cook t,:,,~j~~ Notary Public in and for "••...~,.,E s~`S'` The State of Texas My Commission Expires 9-24-97 Serving Wideawake Wylie Since 1947 CITY OF WYLIF, TEXAS ORDINANCE NO. 96-21 AN ORDINANCE OF TNE CITY , OF WYLIE, TEXAS GRANTING TO FARMERS ELECTRIC COOP- ERATIVE, INC., ITS SUCCES- SOR AND ASSIGNS 'THE FRAN- CHISE AND RIGHTS TO CON- DUCT THE BUSINESS OF ACQUIRING, MAINTAINING, INSTALLING AND OPERATING AN ELECTRIC SYSTEM TO THE CITY OF WYLIE AND THE INHABITANTS THEREOF; GRANTING THE RIGHTS TO USE THE STREETS, ALLEYS AND OTI-~R PUBLIC WAYS IN THE CITY FOR SUCH PURPOS- ES; PRFSCRIBING THE CONDI- TIONS, RESTRICTIONS, OBLI- GATIONS AND LIMITA'T'IONS UNDER WHICH ~U~H FRAN- CHISE SHALL BE EXERCI3~SD; PROVIDING FOR ADEQUATE C4MPENSATION TO BE PAID TO THE CITY; PRESCRIBING THE TERMS OF THE FRAN- CHISE; PROVIDING FOR SAV- ING, REPEALING ANll SEY~R- ABILITY CLAUSES; PROVID- ING FOR AN EFFECI'IVE DATE OF THIS URDINANCE AND PROVIDING FOR THE PUBL,I- CATION OF THE CAPTION HEREOF. : Susan Shuler Ciry Secretary City of Wytie Sl-lt-c.