HomeMy WebLinkAbout1994-O-18 - UNITED COOP FRANCHISE ORDINANCE ORDINANCE NO. 1994-18
AN ORDINANCE GRANTING TO ERATH COUNTY ELECTRIC COOPERATIVE
ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND
FRANCHISE TO CONDUCT WITHIN THE CITY OF STEPHENVILLE,TEXAS,AN ELECTRIC
GENERATION, TRANSMISSION AND DISTRIBUTION BUSINESS AND TO ERECT,
CONSTRUCT,MAINTAIN,OPERATE,USE,EXTEND,REMOVE,REPLACE AND REPAIR IN,
UNDER, UPON, OVER, ACROSS AND ALONG ANY AND ALL OF THE PRESENT AND
FUTURE PUBLIC ROADS,HIGHWAYS, STREET, LANES AND ALLEYS OF THE CITY AND
OVER AND ACROSS ANY STREAM OR STREAMS, BRIDGE OR BRIDGES, NOW OR
HEREAFTER OWNED OR CONTROLLED BY IT, A SYSTEM OF POLES, POLE LINES,
TOWERS, TRANSMISSION LINES, WIRES, GUYS, CABLES, CONDUITS AND OTHER
DESIRABLE INSTRUMENTALITIES AND APPURTENANCES NECESSARY OR PROPER
FOR THE SUPPLY, DISTRIBUTION AND TRANSMISSION OF ELECTRICITY FOR LIGHT,
POWER AND HEAT,AND FOR ANY OTHER PURPOSE FOR WHICH ELECTRICITY MAY BE
USED, TO THE CITY AND INHABITANTS OF THE CITY, OR ANY OTHER PERSON OR
PERSONS WITH A TERM OF FRANCHISE LASTING UNTIL MARCH 1,2010;REGULATING
THE USE OF STREETS BY THE COMPANY AND THE REPAIR AND RESTORATION OF
STREETS DISTURBED BY THE CONSTRUCTION; CONTAINING A CONTRACT BY THE
COMPANY TO FURNISH FIRST-CLASS SERVICE AND THE GRADE OF SERVICE TO ITS
CUSTOMERS AS PROVIDED BY ITS RATE SCHEDULES EXCEPT UNDER CONDITIONS
BEYOND THE COMPANY'S CONTROL; PROVIDING FOR THE TEMPORARY REMOVAL,
RAISING AND LOWERING OF WIRES AND OTHER APPURTENANCES AND
ESTABLISHING STANDARDS FOR THEIR CONSTRUCTION;PROVIDING FOR USE BY THE
CITY FOR CERTAIN WIRE AND CONDUIT SPACE; PROVIDING THAT THIS FRANCHISE
SHALL NOT BE EXCLUSIVE; PROVIDING THE COMPANY'S OBLIGATION TO FURNISH
EFFICIENT SERVICE AT REASONABLE RATES; PROVIDING THAT THIS FRANCHISE IS
GRANTED SUBJECT TO THE PROVISIONS AND UNDER THE LAWS OF THE STATE OF
TEXAS, FOR METHODS OF DETERMINING RIGHTS THEREUNDER; PROVIDING A
SEVERABILITY CLAUSE;RESERVING ALL POWERS OF REGULATION;PROVIDING FOR
INDEMNITY BY THE COMPANY TO THE CITY; MAKING MISCELLANEOUS PROVISIONS
RELATIVE TO THIS GRANT OF FRANCHISE; REPEALING ALL PREVIOUS ELECTRIC
GENERATION, TRANSMISSION, AND DISTRIBUTION FRANCHISE ORDINANCES;
PROVIDING FOR ACCEPTANCE BY THE COMPANY; AND PROVIDING AN EFFECTIVE
DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF STEPHENVILLE, TEXAS:
Section 1. GRANT OF AUTHORITY
That, subject to the terms, conditions and provisions of this ordinance, the City of Stephenville
(hereafter CITY), does hereby grant unto Erath County Electric Cooperative Association, Inc. (hereafter
COMPANY), its successors and assigns and its power supplier Brazos Electric Power Cooperative, its
successors and assigns, the right, privilege and franchise to conduct within the boundaries of City, as such
boundaries now exist or may hereafter be extended, an electric generation, transmission and distribution
business and to erect, construct, maintain, operate, use, extend, remove, replace and repair, in, under,
over, across and along any and all of the present and future public roads, highways, streets, lanes and
alleys owned or controlled by City, and over and across any stream or streams, bridge or bridges, now or
hereafter owned or controlled by City,a system of poles,pole lines,towers,transmission lines, wires,guys,
conduits, cables and other desirable instrumentalities and appurtenances, necessary or proper for the
ECECA Franchise Ordinance
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purpose of carrying, conducting, supplying, distributing and selling to City and the inhabitants of City or
other person or persons, firms or corporations, electricity for light, power and heat, and for any other
purpose for which electricity may be used.
Section 2. DEFINITIONS
(a) "City" shall mean the City of STEPHENVILLE, Texas, a municipal corporation.
(b) "Company" shall mean Erath County Electric Cooperative Association, Inc., a corporation, its
successors and assigns and shall not mean any of its affiliates and subsidiaries who shall have no
right, privilege or franchise granted hereunder.
(c) "Director" shall mean the Director of the Finance Department of the City of STEPHENVILLE,
Texas or his designee.
(d) "Gross Receipts" shall mean all receipts collected by company for its electric generation,
transmission and distribution business within the corporate city limits of city.
(e). "System" shall mean all poles, pole lines, towers, transmission lines, wires, guys, cables, conduits
and other desirable instrumentalities and appurtenances necessary for the operation of Company's
electric generation,transmission and distribution business,including information transmission and
all other related uses.
Section 3. TERM OF FRANCHISE
Upon filing with City by Company of the acceptance required hereunder, this franchise shall be
in full force and effect until March 1, 2010, at which time it shall terminate, subject to the following
extension option. The initial term of this Contract as set out herein shall automatically be extended for
successive one (1) year periods under terms and conditions contained herein unless either party notifies
the other party in writing(certified mail) not less that 120 days prior to the expiration of the initial term
or any successive one (1) year period of the Contract.
Section 4. CONSTRUCTION AND MAINTENANCE OF SYSTEM
All poles erected by company after the effective date of this Ordinance and pursuant to the
authority herein granted shall be of sound material and reasonably straight, and shall be so set that they
will not interfere with the flow of water in any gutter or drain, and so that same will cause minimum
interference with ordinary travel on the streets, sidewalks or other public ways. Within the streets or
other public ways of City,the location and route of all poles,stubs,guys,anchors,lines,conduits and cables
placed and constructed and to be placed and constructed by Company in the construction and maintenance
of its system in City, shall be subject to the reasonable and proper regulation,control and direction of City,
or of any City Official to whom such duties have been or may duly be delegated.
Such regulation and control shall include,but not be limited to, the right to require in writing the
relocation of Company facilities, exclusive of street lighting and facilities installed for service directly to
City,at Company's cost within the streets or other public ways whenever such shall be deemed reasonable
and necessary on account of the widening, change of grade, relocation, or other City construction within
such streets or public ways, provided, however, that along with the written request for
alteration of Company's facilities, if City has right-of-way available, City will grant use to Company. If the
said requirements impose a financial hardship upon Company, Company shall have the right to present
alternative proposals for City's consideration, to which City will give, reasonable consideration.
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Section 5. STREETS TO BE RESTORED TO GOOD CONDITION
The surface of any public road, highway, street, lane, alley, or other public place disturbed by
Company in erecting, constructing, maintaining, operating, using, extending, removing, replacing or
repairing its System shall be restored immediately,within reason. Any length of time in excess of ten(10)
working days shall be prima facie evidence that the length of time is not reasonable. Exception to this
requirement will be granted when said delay is caused by shortages in materials, supplies and equipment
beyond the control of Company, or caused by fire, strike,riot, storm, flood,war or other casualty, or when
due to governmental regulations, limitations and restrictions as to the use and availability of materials,
supplies and equipment or as to the use of services or when due to unforeseen and unusual circumstances.
The work shall be completed according to City specifications, which appear as Attachment 1 to this
document. Said specifications may be amended from time to time.
Section 6. QUALITY OF SERVICE
The service furnished hereunder to City and its inhabitants shall be first-class in all respects,
considering all circumstances,and Company shall furnish the grade of service to its customers as provided
by its rate schedules and shall maintain its system in a reasonable and safe operating condition during the
continuance of this agreement.
An exception to this requirement is automatically in effect when due to shortages in materials,
supplies, and equipment beyond the control of Company and when due to fires, strikes, riots, storms,
floods, war and other casualties, and when due to Governmental regulations, limitations and restrictions
as to the use and availability of materials, supplies and equipment and as to the use of services, and when
due to unforeseen and unusual demands for service. In any of said events Company shall do all things
reasonably within its power to restore normal service as soon as possible.
Section 7. TEMPORARY REMOVAL OF WIRES
Company on the written request of any person shall remove or raise or lower its wires temporarily
to permit construction work in the vicinity thereof or 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
benefitted party or parties, and Company may require such payment in advance, being without obligation
to remove, raise, or lower its wires until such payment shall have been made. Company agrees that the
charge for this service shall be reasonable. Company shall be given not less than forty-eight (48) hours
advance notice to arrange for such temporary wire changes.
Company's lines for transmission and distribution of electrical energy, located within City, shall
be constructed, operated and maintained as to clearances that conform to the basic standards of the
National Electrical Safety Code, as written by the Institute of Electrical and Electronic Engineers and
approved by American National Standards Institute, as promulgated at the time of erection thereof.
However, nothing herein shall impair the right of City in the future by ordinance to adopt and require
compliance with any new, amended or revised code, or by ordinance to adopt and require compliance with
such further or different standards as may be found to be in the public interest, provided that such codes
or standards are recognized and accepted by the American National Standards Institute.
Section 8. PAYMENT TO CITY
Company,its successors and assigns,agrees to pay and City agrees to accept, on or before the 60th
day after the close of each calendar year, a payment based on the prior calendar year's receipts, and on
or before the same day of each succeeding year during the life of this franchise, a sum of money which
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shall be equivalent to four percent (4%) of the gross receipts received by company from the retail sale of
electricity for residential, commercial and industrial use, within the corporate limits of the City which
payment shall be for the rights and privileges herein granted to Company and its power supplier Brazos
Electric Power Cooperative or its successors and assigns,including expressly, without limitation,the right
to use the streets, alleys and public ways of said City. It is also expressly agreed that the aforesaid
payments shall be in lieu of occupation taxes, easement, and other franchise fees, or charges, in lieu of
municipal license and inspection fees, pole tax, street taxes, and street or alley rentals or charges, and all
other and additional municipal taxes, charges, levies, fees and rentals of whatsoever kind and character
which City may impose or hereafter levy and collect, unless allowed by State law, excepting and allowing
only the usual general or special ad valorem taxes, which the City is authorized to levy and impose upon
real and personal property.
The above consideration shall be received by City in lieu of, among the other charges mentioned
above,company's obligation to reimburse the City for regulatory expenses incurred, in relation to general
rate cases which may be filed by company, as allowed under Section 24 of the Public Utility Regulatory
Act or similar or successor law. If City incurs cumulative expenses, otherwise reimbursable by Company
in excess of$4,000,000.00, then in such event, Company shall reimburse only those expenses incurred by
City in connection with all general rate cases filed by Company during the term of this franchise in excess
of said $4,000,000.00. City hereby agrees to exercise reasonable best efforts, considering the facts and
circumstances, to keep its expenses on average to under $1,000,000.00 per general rate case.
Section 9. ADDITIONAL CONSIDERATIONS
Company shall hold itself ready to furnish, subject to the use of City, such wire space as may be
required from time to time by City upon the poles, duct or conduits now owned or hereafter erected by
Company in City for the use by the City, including but not limited to, police, fire alarm, communications,
and traffic signal systems; provided that the required wire space shall not exceed the wire capacity of any
one pole or duct. The location on the poles of the systems shall be determined on specific applications for
space, at the time the applications are received from City, and will be allotted in accordance with the
considerations for electrical construction of the National Electric Safety Code, as written by the Institute
of Electrical and Electronic Engineers and approved by American National Standards Institute. City will
follow the suggestions and requirements laid down for wire construction in the rules and regulations of the
Bureau of Standards of the United States Department of Commerce. All such wires, whether on poles
or in conduits, shall be constructed, maintained and operated in such manner as not to interfere with nor
create undue hazard in the operation of the electric power utility system of Company.
It is further agreed that Company shall not be responsible to any party or parties whatsoever for
any claims, demands, losses, suits,judgments for damages or injuries to persons or property by reason of
the construction, maintenance and inspection or use of the systems wires belonging to City. City will hold
harmless and defend the Company for any such claim.
Nothing contained in this Ordinance shall be construed to require or permit any electric light or
power wire attachments to Company's poles or placement in Company's duct or conduit by City or for City.
If such attachments or placements are desired by City or for City, then a further separate, noncontingent
agreement shall be prerequisite to such attachments or placements by City.
Nothing contained in this Ordinance shall obligate or restrict the Company in exercising its right
to voluntarily enter into pole attachment,pole usage,joint pole ownership and other wire space and facility
agreements with light and power companies, telecommunications companies,cable television companies or
other wire usage companies which are authorized to operate within City. Company will make a good faith
effort to maintain its present office within the City limits of Stephenville.
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•
Section 10. CONSOLIDATION OF GOVERNMENT ACCOUNTS
Upon request, Company shall consolidate all City electricity accounts so that City is billed under
Company's invoice billing methods, although billings under separate meters will be separately
stated on the invoice.
Section 11. RECORDS AND REPORTS
(a) Books of Account - Company shall keep complete and accurate books of accounts and records of
its business and operations under and in connection with this franchise. Company shall be the
system of accounts and the forms of books, accounts, records, and memoranda prescribed by the
Public Utility Commission of Texas or any successor agency charged with regulating electric
utilities. To the extent practicable, all such books of accounts and records shall be made available
at Company's principal office in Stephenville.
(b) Access by City - The Director shall have the right, at reasonable times and for reasonable
purposes,to examine,audit,review and/or obtain copies of the papers,books,accounts,documents,
maps, plans and other records of Company pertaining to this franchise for ascertaining the
correctness of any and all reports to City.
Section 12. NON-EXCLUSIVE FRANCHISE
Nothing contained in this ordinance shall ever be construed as conferring upon Company any
exclusive rights or privileges of any nature whatsoever.
Section 13. ANNEXATIONS BY CITY
This franchise shall extend to and include any and all territory which is annexed by City during
the term of this franchise.
Within sixty (60) days from the effective date of any such annexation, Company shall assure that
any and all customers located within such annexed territory be included and shown on its accounting
system as being within City. After such sixty (60) day period all Gross Receipts received from customers
located within such annexed territory shall be subject to the payment provisions specified in Section 8 of
this ordinance.
Section 14. EFFICIENT SERVICE TO BE PROVIDED
(a) It shall be Company's obligation as provided in Section 6 hereof to furnish efficient service to the
public at reasonable rates and to maintain its property providing service within the corporate limits
of City in good repair and working order, except when prevented from so doing by forces and
conditions not reasonably within the control of Company. In the event Company fails or refuses
to maintain its properties within the corporate limits of City in good order and furnish efficient
service at all times throughout the life of this franchise,except only when prevented from so doing
by forces and conditions not reasonably within the control of Company, or should Company fail or
refuse to furnish efficient service within the corporate limits of City at reasonable rates, lawfully
determined by City, throughout the life of this franchise, excepting only during such periods as
Company shall in good faith and diligently contest the reasonableness of the rates in question,then
Company shall be considered to be in violation of this franchise. If, within thirty (30) days after
CITY notifies Company, by letter, of the specific violation, and Company has not corrected the
ECECA Franchise Ordinance
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cause of violation,then CITY may cancel the franchise contract with Company,file a suit in specific
performance to require Company to correct the cause of violation, or avail itself of any other legal
remedy that CITY may have, in CITY'S complete discretion.
(b) Notwithstanding anything to the contrary set out herein,City hereby agrees to waive its authority
to regulate Company's rates until Company shall have 100 retail customers within the corporate
limits of City.
Section 15. SEVERABILITY
If any provision,section, subsection, sentence,clause, or phrase of this ordinance is for any reason
held to be unconstitutional,void or invalid(or for any reason unenforceable), the validity of the remaining
portions of this ordinance shall not be affected thereby, it being the intent of CITY in adopting this
ordinance that no portion thereof or provision or regulation contained herein shall become inoperative or
fail by reason of any unconstitutionality or invalidity of any other portion, provision or regulation, and to
this end, all provisions of this ordinance are declared to be severable.
Section 16. GOVERNMENTAL FUNCTION & RESERVE OF POWER
City by the granting of this franchise does not surrender or to any extent lose, waive, impair or
lessen the lawful powers and rights, now or hereafter vested in City under the Constitution and statutes
of the State of Texas and under the Charter of CITY to regulate the rates and services of Company; and
Company by its acceptance of this franchise agrees that all such lawful regulatory powers and rights as
same may be from time-to-time vested in CITY shall be in full force and effect and subject to the exercise
thereof.
Nothing contained in this ordinance or any section or subsection thereof shall be construed as to
create a contractual right of City to regulate the rates or service rules and regulation of Company or to
create any power, authority, or jurisdiction of City to regulate or control the rates or service rules and
regulations of Company. City shall have only such regulatory power,authority,and jurisdiction respecting
Company's rates and service rules and regulations as may be provided by law. If the Public Utility
Regulatory Act or other laws are amended or modified in such a way that City no longer has regulatory
power, authority and jurisdiction respecting Company's rates and service rules and regulations, then
Company's rates and/or service rules shall be set by Company's board of directors or by applicable law.
Section 17. TREE TRIMMING
Company, its successors and assigns, is hereby granted the right, license, privilege and permission
to trim trees, at Company's expense, upon and over hanging the streets, alleys, sidewalks, and public
places of City, so as to prevent the branches of such trees from coming in contact with the wires or cables
of Company, and when so ordered by City. All trimming shall be done according to standards set by and
provided to Company by the City official to whom said duties have been or may be delegated,provided that
said standards do not conflict or violate those standards of the National Electrical Safety Code.
Section 18. INDEMNITY
Company,as a condition of the grant of this franchise and in consideration thereof, shall indemnify
and hold harmless City, its officers, agents, and employees from and against all claims, losses, damages,
causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and
attorneys' fees, for injury to or death of any person, or for damage to any property, arising out of or in
connection with the construction, maintenance and operation of Company's facilities, and conduct of its
ECECA Franchise Ordinance
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business, within the corporate limits of City, in any way growing out of the granting of this franchise,
either directly or indirectly, when and to the extent such injury shall be found to have been caused by the
negligent act or omission, or intentional misconduct of Company, its officers, agents or employees, or by
any misconduct for which Company is by law responsible,provided that City provides to Company written
notice of such claim, if any, or 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 Company,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 City, its officers,
agents, 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 Company and City.
Section 19. ASSIGNMENT
This franchise shall only be assigned by Company with written approval of City and may only be
assigned in total, except that Company may assign this franchise to the Administrator, Rural Utilities
Service, as part of a general assignment of Company's assets and rights. In the event that this franchise
is assigned by Company to Administrator, Rural Utilities Service, said assignment shall include a
non-transfer clause that shall be approved by City. The rights and powers granted hereby are not
severable and separately assignable.
Section 20. ACCEPTANCE
Company shall, within thirty (30) days from the date this ordinance takes effect, file with the
City Secretary a written statement signed in its name and behalf in the following form:
"To the Honorable Mayor and City Council of the City of STEPHENVILLE."
"Erath County Electric Cooperative Association, Inc., for itself; its successors and
assigns, hereby accepts the attached ordinance and agrees to be bound by all of its
terms and provisions.
PASSED AND APPROVED at a meeting of the City Council of the City of Stephenville, Texas,
this 6th day of December, 1994.
Lavinia L , Mayor
AT EST:
Cindy L. ord, ity.Se ary
((((((////// + (,\
) LO d),
Reviewed by Donald B. Davis,
City Administrator
Randy Thomas, City Attorney
Approved as to form and legality
ECECA Franchise Ordinance
Page 7
ATTACHMENT 1
CITY OF STEPHENVILLE
COMMUNrTY SERVICES DEPARTMENT
STREET CUT REPLACEMENT POLICIES
SECTION 1 - OPENING AND EXCAVATION RESTRICTIONS
A. No opening or excavation in any street shall extend beyond the
center line of the street before being backfilled and the
surface of the street temporarily restored.
B. No more than three hundred (300) feet measured longitudinally
shall be opened in any street at any one time, except by special
permission of the Director of Community Services.
C. All utility facilities shall be located sufficiently ahead of
trench excavation work to avoid damage to those facilities and
to permit their relocation, if necessary.
D. Pipe drains, pipe culverts, or other facilities encountered
shall be protected by the permittee.
E. When work performed by the permittee interferes with the
established drainage system of any street, provision shall be
made by the permittee to provide proper drainage to the
satisfaction of the Director of Community Services.
F. When any earth, gravel, or other excavated material is caused to
roll, flow, or wash upon any street the permittee shall cause
the same to be removed from the street within twenty-four (24)
hours after deposit. In the event the earth, gravel or other
excavated material so deposited is not removed, the Director of
Community Services shall cause such removal and the cost
incurred shall be paid by the permittee.
G. Every permittee shall place around the project such barriers,
barricades, lights, warning flags, and danger signs as shall be
determined by the Director of Community Services to be necessary
for the protection of the public.
• Whenever any person fails to provide or maintain the safety
devices required by the Director of Community Services, such
devices shall be installed and maintained by the City. The
amount of the cost incurred shall be paid by the permittee.
H. Access to private driveways shall be provided except during
working hours when construction operations prohibit provisions
of such access. Free access must be provided at all times to
fire hydrants.
I. Excavated materials shall be laid compactly along the side of
the trench and kept trimmed up so as to cause as little
inconvenience as possible to public travel.
J. In granting any permit, the Director of Community Services my
attach such other conditions thereto as may be reasonably
necessary to- prevent damage to public or private property or to
prevent the operation from being conducted in a manner hazardous
to life or property or in a manner likely to create a nuisance.
K. If any settlement in a restored area occurs within a period of
one (1) year from date of completion of the permanent
restoration, any expense incurred by the City in correcting such
settlement shall be paid by the permittee, unless the permittee
submits proof to the Superintendent that the settlement was not
due to defective backfilling.
SECTION 2 - CLOSING POLICIES
A. The City will be doing all repair work after the utility has
backfilled the cut. Work performed will be saw cutting the
edges, cementing, and applying the final paving surfaces.
B. The utility will be billed for all work performed by the Street
Department.
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