ORD 898 05/12/2009 ORDINANCE NO. R A
AN ORDINANCE AMENDING ORDINANCE NO. 725 OF THE
CITY OF CIBOLO, TEXAS, GRANTING GREEN VALLEY
SPECIAL UTILITY DISTRICT, ITS SUCCESSORS AND
ASSIGNS, THE RIGHT, PRIVELEGE AND FRANCHISE FOR A
PERIOD OF TWENTY (20) YEARS TO CONSTRUCT, LAY,
MAINTAIN, OPERATE, EXTEND, REMOVE REPLACE AND
REPAIR A WATER SYSTEM AND WASTEWATER SYSTEM IN,
UNDER, OVER,ACROSS AND ALONG ANY AND ALL STREETS,
AVENUES, PARKWAYS, SQUARES, ALLEYS, AND ALL OTHER
PUBLIC PLACES OF THE CITY OF CIBOLO, GUADALUPE
COUNTY, TEXAS, FOR THE PURPOSE OF PROVIDING WATER
AND WASTEWATER SERVICES TO THE CITY OF CIBOLO
AND ITS INHABITANTS AND OTHERS; PROVIDING
CONDITIONS CONTROLLING THE USE OF PUBLIC
THOROUGHFARES AND EXTENSIONS THEREIN;
ESTABLISHING STANDARDS OF SERVICE; PROVIDING FOR
PAYMENT OF TWO PERCENT (2%) OF THE GROSS RECEIPTS
FROM THE SALE OF WATER AND WASTEWATER SERVICES
TO CUSTOMERS WITHIN THE CITY OF CIBOLO; PROVIDING
FOR ADOPTION; PROVIDING THAT THIS ORDINANCE IS
CUMULATIVE OF ALL OTHER ORDINANCES OF THE CITY
OF CIBOLO NOT IN CONFLICT WITH THE PROVISIONS OF
THIS ORDINANCE; PROVIDING FOR SEVERABILITY;
PROVIDING SAVINGS; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City of Cibolo, Texas, is a Home Rule Municipality located in
Guadalupe County, Texas, created in accordance with provisions of the Texas Local
Government Code and operating pursuant to its adopted City Charter and all applicable
laws and enabling legislation of the State of Texas; and
WHEREAS, the City of Cibolo, Texas, is governed by a Home Rule Charter that was
approved by the Citizens of Cibolo in a duly called election held on September 11, 2004;
and
WHEREAS, Article X of the Cibolo City Charter authorizes the City Council to enter
into a franchise agreement with Green Valley Special Utility District for the provision of
utility services within the City of Cibolo; and
WHEREAS, the City Council has considered the merits of these amendments to the
Land Subdivision Ordinance and has determined that this ordinance is necessary to
protect the health, safety, morals, and welfare of the community.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CIBOLO,
TEXAS...
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SECTION 1.
INCORPORATION
That the above and foregoing premises are true and correct and are incorporated herein
and made part hereof for all purposes.
SECTION 2.
ADOPTION
That the Ordinance provisions incorporated in Section 3 herein are hereby adopted by the
City Council of the City of Cibolo, Texas.
SECTION 3.
FRANCHISE GRANTED
3.01 The City hereby grants Green Valley the right, privilege, and franchise to construct,
maintain, operate, use, extend, remove, replace, and repair in, under, upon, over, and across,
and along any and all of the present and future streets, squares, parks ,lanes, and alleys owned
or controlled, or hereafter owned or controlled by the City in the Franchise Service Area
granted to Green Valley through the State of Texas and over and across any stream or streams,
bridge, or bridges, now or hereafter owned or controlled by the City in the Franchise Service
Area granted to Green Valley through the State of Texas, and water supply/distribution and
wastewater collection system of pipes, appurtenances, and other desirable facilities necessary
or proper for the purpose of carrying, conducting, conveying, supplying, and selling to the City
and the inhabitants of the City of Cibolo in the Franchise Service Area granted to Green Valley
through the State of Texas, or other persons, firms, or corporations within the City of Cibolo
in the Franchise Service Area granted to Green Valley through the State of Texas, water supply
and distribution services and wastewater collection services by means of said pipes,
appurtenances, or other desirable facilities and to sell and distribute the same to the City, the
inhabitants of the City of Cibolo, and an other persons, firms, or corporations in the Franchise
Service Area granted to Green Valley through the State of Texas. Green Valley agrees that it
will use its best efforts, skill, and experience to provide first-class services to the Franchise
Service Area granted to Green Valley through the State of Texas. The rights and privileges
granted to Green Valley and this Agreement shall be limited to the delivery of water supply
and distribution services and wastewater collection services and other facilities in the Franchise
Service Area granted to Green Valley through the State of Texas for the provision of water
supply and distribution services and wastewater collection services. Green Valley shall be
required to obtain separate approval from the City to provide services within the City other
than in the Franchise Service Area granted to Green Valley through the State of Texas and for
services other than water supply and distribution services and wastewater collection services
over Green Valley's pipes, appurtenances, and other facilities located on public rights-of-way
within the City of Cibolo. Green Valley shall obtain a permit for any work in the Franchise
Service Area granted to Green Valley through the State of Texas performed by or for Green
Valley which requires a permit under general ordinances of the City, but such permit shall be
provided without charge by the City to Green Valley or its designated agent. Green Valley
shall obtain prior written approval from the City for all street cuts. All work performed in
public areas by Green Valley shall be done in workmanlike manner and, except in the event of
an emergency, at reasonable times of the day. All water facilities in the Franchise Service Area
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granted to Green Valley through the State of Texas currently owned by Green Valley or
erected or installed by Green Valley in the future shall be and remain the sole property of
Green Valley. This Agreement is expressly limited to those portions of the water and
wastewater CCNs granted to Green Valley that are located within the City of Cibolo. From
time to time the State of Texas may amend the Green Valley CCNs for water or wastewater
services and this agreement shall be deemed to be amended to conform to said amendments to
the certificated areas for water or wastewater service.
3.02. Structures,pipes, meters,valves, manholes and lift stations and other facilities necessary
to provide public water or sewer service under TCEQ rules, shall be erected by Green Valley
so as to interfere as little as possible with traffic over streets and public ways. In the placement
of new pipes, appurtenances, and other facilities, Green Valley will use front lot line easements
and dedicated alleys when such front lot line easements and dedicated alleys are available and
have sufficient width to allow access by construction and maintenance equipment commonly
used by Green Valley, as reasonably determined by Green Valley. Green Valley shall install
its facilities in a manner that limits visual impact. The City will continue to use its best efforts
to support Green Valley's need for easement conditions that do no unduly restrict Green
Valley's use of any easement. The City will maintain appropriate ordinances that limit the use
of utility easements to uses that do not substantially interfere with safe and effective operation
of Green Valley's installed facilities. Upon written notification by Green Valley to the City of
an encroachment in a utility easement substantially interfering with the safe and effective
operation of Green Valley's installed facilities, the City will take reasonable action to resolve
the encroachment.
3.03. The rights, privileges, and permits herein granted shall at all times be subject to the
ordinances and regulations of the City from time to time in effect, as modified by the explicit
terms of this Agreement.
3.04. The City, if reasonably necessary to make way for its public works, may require any
pipes, appurtenances, or other facilities of Green Valley to be shifted or relocated to a new
position in a street or other available right-of-way at Green Valley's expense. The City shall
use its best efforts to give Green Valley at least 120 days prior written notice of any such
required shift or relocation
3.05. In the event Green Valley, through any of its operations, damages, tears up, or injures
any street, alley, right-of-way, or public park, Green Valley shall promptly repair and restore
same to as close to its previous condition as soon as possible as directed by the City of Cibolo,
at the expense of Green Valley. In no event shall the City give Green Valley less than thirty
(30) days prior written notice.
3.06. TO THE EXTENT ALLOWED BY LAW, GREEN VALLEY AND THE CITY
SHALL HOLD EACH OTHER HARMLESS FROM ALL EXPENSE OR LIABILITY
FOR ANY ACT OR NEGLECT OF THE OTHER PARTY HEREUNDER.
3.07. Nothing herein contained shall be construed as conferring upon Green Valley any
exclusive rights or privileges of any nature whatsoever. Subject to applicable provisions of
law, the City may at any time during the term of this Agreement purchase the right to provide
water supply/distribution and/or wastewater collection utility service to Green Valley's
Franchise Service Area as granted to Green Valley by the State of Texas. Any retail City water
or sewer services within Green Valley's Franchise Service Area as granted to Green Valley by
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the State of Texas shall require the prior written consent or approval of the TCEQ and Green
Valley.
3.08. This Agreement shall be in force and effect for a period of twenty (20) years from and
after the date which is thirty (30) days after the date of the City's final adoption of this
Agreement ( the "Effective Date") as shown on the signature page hereof, and so long
thereafter as same is not terminated by written notice given by either party to the other of not
less than (two (2)) years prior to the date upon which this Agreement shall terminate and
subject to the following provisions:
a. In the event that state or federal legislation is enacted changing the water
supply/distribution and/or wastewater collection utility industry to allow parties other
than Green Valley to deliver services through Green Valley's pipes, appurtenances,
and other facilities located on public rights-of-way within the City of Cibolo,the City
shall have the right to terminate this Agreement if Green Valley does not promptly
take reasonable and prudent actions legally available to Green Valley to continue
collection of the franchise fee on all customer charges for water and sewer service
provided by Green Valley or other parties delivered over Green Valley's pipes,
appurtenances, and other facilities located on public rights-of-way within the City of
Cibolo.
b. The City shall have the right to terminate this Agreement upon the failure by Green
Valley to comply in any material respect with the provisions of this Agreement.
However, no such termination shall be exercised until written notice of such failure to
comply has been given by the City to Green Valley, and Green Valley shall have 90
days within which to comply or show cause acceptable to the City for its failure to do
so.
3.09. In consideration of the rights granted to Green Valley herein, Green Valley,
During the term of this Agreement, shall pay quarterly (payable on or before the forty-fifth
(45th) day after the end of each calendar quarter) a fee of two percent(2%) of the gross receipts
derived by Green Valley from within the City limits of the City during such calendar quarter
retail sales of water or sewer services to customers in the City. It is agreed that such payment
is in addition to any other fee or charge now or hereafter to be assessed and collected under the
authority of the Charter of the City or under the laws of the State of Texas that may be lawfully
levied against another political subdivision. Green Valley may state the franchise fee on its
customer billings.
3.10. Green Valley may establish, amend, and enforce Service Rules and Regulations for its
operations in the Franchise Service Area granted to Green Valley through the State of Texas to
the extent that such Rules and Regulations do not conflict with this Agreement. Nothing in this
Section prohibits the City from challenging Green Valley's Service Rules and Regulations on
the basis of inconsistency with this Agreement.
3.11. If the City deems it necessary or advisable to connect fire hydrants or other
devices to Green Valley's pipes or valves to combat fires, no charge shall be made to the
City for any such connections. It is the duty of Green Valley to provide safe potable
drinking water to meet the domestic water needs of the consuming public. Additionally,
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Green Valley's water resources are available for fire fighting activities without guarantee
or warranty of capacity at any specific point of usage in the distribution system at any
given time. All municipal and volunteer fire departments in Green Valley's service area,
or other fire fighters responding to mutual aid requests, may take water from Green
Valley's distribution system for emergency fire fighting purposes.
3.12 Within the city limits of, Cibolo, Green Valley shall endeavor to maintain
minimum flows of 750 gpm. on six-inch or larger water lines for the purpose of providing
emergency fire flows at its fire hydrants. There shall be no guarantee that any specific
fire hydrant will provide any given rate of flow at any given point in time.
3.13 Tests of Green Valley fire hydrants will be made once per year in accordance with
NFPA standards. Test results will be given to Cibolo and all affected fire departments
within 15 days of the results being obtained. As a result of such tests, the Green Valley
will color-code all fire hydrants in accordance with the NFPA color coding system. In the
event the fire department is using a hard suction supply line, such fire-fighting
organization will draw water from such fire hydrants in accordance with (not to exceed)
these color codes. Green Valley will establish an annual maintenance program for all fire
hydrants in its service area.
3.14 Cibolo and affected fire departments shall be notified in advance of removal or
modification of fire hydrants that might be used for fire fighting purposes. Green Valley
will not alter the system in a manner that will cause that part of the system to be in
violation of any state regulation, Ordinance or Code of Ordinances of the City of Cibolo
under which it was installed.
3.15 Use of a Green Valley fire hydrant or water supply for fire training or other non-
utility purpose is not permitted without permission from Green Valley's General
Manager. Unless authorized by Green Valley's General Manager, no person or entity
shall test a District fire hydrant except in the presence of a licensed District water
operator. This prohibition shall not apply to a fire fighter using a fire hydrant in the
course of a public safety emergency. Green Valley will not charge Cibolo or fire
departments for water used during fire fighting emergencies. Municipalities or fire
departments shall not be charged monthly minimum or standby fees for the availability of
fire fighting water.
3.16 Nothing in this Agreement shall be deemed to be a waiver of Green Valley's,
Cibolo's, or fire department's lawful immunity under the Texas Tort Claims Act or other
applicable statute.
3.17. The City reserves the right, upon reasonable prior written notice to Green Valley, to
require such reports from Green Valley setting out such matters concerning rates charged for
services and revenues earned by reason of the operations of Green Valley in the City of Cibolo
as it may elect, and such reports may be required at reasonable intervals (but not to exceed
more than one report per fiscal year of operation) as may hereafter be specified by the City
Council of the City.
3.18. Green Valley agrees to furnish water supply/distribution and wastewater collection
service to consumers in the Franchise Service Area in accordance with approved and accepted
standards of the laws of the State of Texas.
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3.19. The provisions of the Agreement are severable, and if any section, provision, or part
thereof be declared invalid then it is hereby declared the intent of the parties that the remaining
parts of this Agreement would be adopted, notwithstanding such invalid part or parts, and the
invalidity of any particular section, provision, or part shall not invalidate this Agreement,
unless such invalidation materially changes the rights or obligations of either party, as
determined in that party's reasonable discretion.
3.20. This Agreement shall not be assigned or transferred by Green Valley without first
obtaining the written consent of the City. Consent shall be granted only upon a showing that(a)
it is in the best interests of the ratepayers and the residents of the Franchise Service Area
granted to Green Valley through the State of Texas, and (b)the assignee is fully capable of and
willing to perform fully and in a timely manner, all obligations of Green Valley contained in
this Agreement. The City shall act upon a written application under this paragraph within 120
days after it is filled with the City by Green Valley and the proposed assignee. If the City fails
to consent to the assignment or transfer, the City shall take no actions to impede the use of
Green Valley's Facilities or services in contravention of Water Code 49.220 or other statute.
SECTION 4.
CUMULATIVE CLAUSE
That this ordinance shall be cumulative of all provisions of the City of Cibolo, Texas,
except where the provisions of this Ordinance are in direct conflict with the provisions of
such Ordinances, in which event the more restrictive provision shall apply.
SECTION 5.
SEVERABILITY
That it is hereby declared to be the intention of the City Council of the City of Cibolo that
the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are severable,
and if any phrase, clause, sentence, paragraph or section of this Ordinance should be
declared unconstitutional by the valid judgment or decree of any court of competent
jurisdiction, such unconstitutionality shall not affect any of the remaining phrases,
clauses, sentences, paragraphs or sections of this Ordinance, since the same would have
been enacted by the City Council without incorporation in this Ordinance of any such
unconstitutional phrase, clause, sentence,paragraph or section.
SECTION 6.
SAVINGS
That all rights and privileges of the City of Cibolo are expressly saved as to any and all
violations of the provisions of any Ordinances affecting platting or subdivisions, which
have accrued at the time of the effective date of this Ordinance; and, as to such accrued
violations and all pending litigation, both civil and criminal, whether pending in court or
not, under such Ordinances, same shall not be affected by this Ordinance but may be
prosecuted until final disposition by the courts.
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SECTION 7.
EFFECTIVE DATE
That this Ordinance shall be effective immediately upon the passage and approval of the
City Council of the City of Cibolo, Texas.
AND IT IS SO ORDAINED.
PASSED AND APPROVED by a vote of 6 for to 46 against this 12th day of May,
2009.
APPROVED:
Jefer Hartman,Mayor
ATTEST:
Peggy Cimics, City Secretary
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