ORD 899 05/26/2009 ORDINANCE NO. 8 9 9
AN ORDINANCE GRANTING A FRANCHISE TO THE CITY OF
SCHERTZ, TEXAS FOR WATER SUPPLY AND DISTRIBUTION
SERVICES AND WASTEWATER AND SEWER SERVICES WITHIN A
PORTION OF THE CITY LIMITS AND EXTRATERRITORIAL
JURISDICTION OF THE CITY OF CIBOLO, TEXAS; AUTHORIZING A
FRANCHISE AGREEMENT; PROVIDING AN EFFECTIVE DATE; AND
REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN
CONFLICT WITH THIS ORDINANCE.
WHEREAS, it is found to be in the public interest and necessary to provide water supply
and distribution and wastewater and sewer services in the City of Cibolo, Texas (the "City") and
its extraterritorial jurisdiction; and
WHEREAS, the City Council of the City has determined to grant a non-exclusive
franchise for such services to the City of Schertz, Texas with respect to a portion of the City and
its extraterritorial jurisdiction; and
WHEREAS, the City has reviewed and is satisfied with the qualifications of the City of
Schertz, Texas to provide such services;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
CIBOLO, TEXAS:
Section 1. Franchise Agreement. The City Council hereby approves the Franchise
Agreement attached hereto as Exhibit A and authorizes and directs the Mayor to execute such
Agreement and to deliver it to the City of Schertz, Texas for execution.
Section 2. Effective Date. This Ordinance shall be effective on the date of its final
adoption, and the Franchise Agreement authorized herein shall be effective , 2009.
Section 3. Conflicting Ordinances. All other ordinances and parts of ordinances in
conflict with this Ordinance are hereby repealed.
PASSED,APPROVED, and ADOPTED the 2,6 day of "z&J , 2009.
• c_17
'fer iii'' an, Mayor, City of Cibolo, Texas
(Seal of City)
ATTEST:
Peggy Cimics
City Secretary, City of Cibolo, Texas
Ordinance Cibolo Franchise Agmt.doc
Exhibit A
Franchise Agreement
Ordinance Cibolo Franchise Agmt.doc A-1
FRANCHISE AGREEMENT
between the
CITY OF CIBOLO,TEXAS
and the
CITY OF SCHERTZ, TEXAS
Whereas, the City of Schertz, Texas, a political subdivision of the State of Texas
("Schertz"), provides water supply and distribution services and wastewater and sewer services
(the "Franchise Services") to certain customers within the corporate limits and extraterritorial
jurisdiction of the City of Cibolo, Texas, a political subdivision of the State of Texas ("Cibolo"),
as described on Exhibit A attached hereto (the"Franchise Service Area"); and
Whereas, Schertz and Cibolo desire to enter into this Franchise Agreement (this
"Agreement") to establish certain duties and obligations of Schertz and Cibolo with respect to
the Franchise Service Area and the Franchise Services.
Now, Therefore, Schertz and Cibolo, for the mutual consideration contained herein,
hereby agree as follows:
Section 1. Cibolo hereby grants to Schertz 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 Cibolo in the Franchise Service Area
and over and across any stream or streams, or bridge or bridges, now or hereafter owned or
controlled by Cibolo in the Franchise Service Area, a water supply and distribution system and
wastewater and sewer system of pipes, structures, meters, valves, manholes, lift stations, and
other appropriate facilities necessary or proper for the purpose of carrying, conducting,
conveying, supplying, and selling to Cibolo and the inhabitants of Cibolo in the Franchise
Service Area or other persons, firms, or corporations within the Franchise Service Area, the
Franchise Services by means of said pipes, structures, meters, valves, manholes, lift stations, or
other appropriate facilities and to sell and distribute the same to Cibolo,the inhabitants of Cibolo
in the Franchise Service Area and any other persons, firms, or corporations in the Franchise
Service Area. Schertz agrees that it will use its best efforts, skill, and experience to provide
continuous, high quality services to the Franchise Service Area. The rights and privileges
granted to Schertz in this Agreement shall be limited to the Franchise Services. Schertz shall be
required to obtain separate approval from Cibolo to provide (i) any services within Cibolo other
than in the Franchise Service Area and (ii) services other than the Franchise Services in the
Franchise Service Area. Schertz shall obtain a permit for any work in the Franchise Service
Area performed by or for Schertz which requires a permit under general ordinances of Cibolo,
but such permit shall be provided without charge by Cibolo to Schertz. or Schertz's designated
agent. Schertz shall obtain prior written approval from Cibolo prior to closing any streets or
commencing any construction including all street cuts. All work performed in public areas by
Schertz shall be done in a workmanlike manner and pursuant to any applicable Cibolo ordinance
or regulation. Except in the event of an emergency, all work shall be performed at reasonable
times of the day. All water supply and distribution facilities and wastewater and sewer facilities
in the Franchise Service Area currently owned by Schertz or erected or installed by Schertz in
the future shall be and remain the sole property of Schertz. By a written addendum to this
50160268.3
Agreement, Schertz and Cibolo may from time to time may agree to modify the description of
the Franchise Service Area set forth on Exhibit A.
Section 2. Pipes, structures, meters, valves, manholes, lift stations, and other
appropriate facilities utilized in the provision of the Franchise Services shall be erected by
Schertz so as to interfere as little as possible with traffic over streets and public ways, provided
Cibolo will permit wastewater pipes to be placed under streets whenever reasonably possible. In
the placement of new pipes, structures, meters, valves, manholes, lift stations, and other
appropriate facilities, Schertz will use Cibolo rights-of-way when available. Otherwise, Schertz
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 Schertz, as reasonably determined by Schertz and
approved by Cibolo Schertz shall install its facilities in a manner approved by Cibolo that limits
visual impact. Schertz and Cibolo will continue to use their best efforts to support Schertz's
need for easement conditions that do not unduly restrict Schertz's use of any easement. Cibolo
will maintain appropriate ordinances that limit the use of utility easements to uses that do not
substantially interfere with safe and effective operation of Schertz's installed facilities. Upon
written notification by Schertz to Cibolo of an encroachment in a utility easement substantially
interfering with the safe and effective operation of Schertz's installed facilities, Cibolo will take
reasonable action to resolve the encroachment.
Section 3. The rights, privileges, and permits herein granted shall at all times be
subject to the ordinances and regulations of Cibolo from time to time in effect, as modified by
the explicit terms of this Agreement. Cibolo shall provide Schertz, within thirty (30) days after
approval, with a copy of each ordinance or resolution approved after the Effective Date of this
Agreement which affects this Agreement.
Section 4. Cibolo, if reasonably necessary to make way for its public works, may
require any pipes, structures, meters, valves, manholes, lift stations, or other facilities of Schertz
authorized by this Agreement to be shifted or relocated to a new position in an easement, street,
or other available right-of-way at Cibolo's expense. Cibolo shall use its best efforts to give
Schertz at least ninety (90) days' prior written notice of any such required shift or relocation. In
no event shall Cibolo give Schertz less than thirty(30) days' prior written notice.
Section 5. In the event Schertz, through any of its operations, damages any street,
alley, right-of-way, or public park or other public property, Schertz shall promptly notify Cibolo
within five (5) days of the occurrence and subsequently repair and restore same to its previous
condition within thirty (30) days of the occurrence as directed by Cibolo's Director of Public
Works, at the expense of Schertz.
Section 6. To THE EXTENT ALLOWED BY LAW, CIBOLO AND SCHERTZ SHALL HOLD
EACH OTHER HARMLESS FROM ALL EXPENSE OR LIABILITY FOR ANY ACT OR NEGLECT OF THE
OTHER PARTY HEREUNDER.
Section 7. Nothing herein contained shall be construed as conferring upon Schertz
any exclusive rights or privileges of any nature whatsoever.
50160268.3 2
Section 8. This Agreement shall be in force and effect for a period of twenty (20)
years after the effective date of this Agreement as shown on the signature page hereof, and so
long thereafter as the same is not terminated by written notice given by either party to the other
of not less than one (1) year prior to the date upon which this Agreement shall terminate;
provided, however, Cibolo shall have the right to terminate this Agreement upon the failure by
Schertz 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 Cibolo to Schertz, and Schertz shall have sixty (60) days within which to comply or show
cause acceptable to Cibolo for its failure to do so.
The effective date of Cibolo's termination of this Agreement shall be the date of written
notice thereof to Schertz by Cibolo.
Section 9. In consideration of the rights granted by Cibolo to Schertz in this
Agreement, Schertz, 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 franchise fee of three percent
(3%) of the gross receipts derived by Schertz from its operations under this Agreement within
the Franchise Service Area during such calendar quarter, including all water related charges to
customers for any reason. It is agreed that such payment is in addition to any ad valorem taxes or
other fee or charge now, if any, or hereafter to be assessed and collected under the authority of
the Charter of Cibolo or under the laws of the State of Texas. Schertz may state the franchise fee
on its customer billings.
Section 10. Schertz's rates and charges in effect on the effective date of this
Agreement have been provided to and approved by Cibolo and shall remain in effect until
adjusted as further provided in this Section. Proposed changes to rates and charges shall be filed
with the Cibolo City Manager with appropriate supporting documentation at least four (4)
months prior to the proposed effective date thereof. The Cibolo City Council shall have the right
to review and provide input to Schertz prior to Schertz's implementation of revised rates and
charges. Schertz shall provide its customers notice at least thirty (30) days prior to the effective
date of any adjustments to rate and charges.
Section 11. Schertz may establish, amend, and enforce Service Rules and Regulations
for its operations in the Franchise Service Area to the extent that such Rules and Regulations are
approved by Cibolo and do not conflict with this Agreement.
Section 12. If Cibolo deems it necessary or advisable to connect fire hydrants or other
devices to Schertz's pipes or valves to combat fires, no charge shall be made to Cibolo for any
such connection.
Section 13. No person or entity shall have the right to connect to any Schertz facilities
or to obtain any water services furnished by Schertz, except as provided in Section 12 or with the
prior written consent of Schertz and upon full compliance with the Service Rules and
Regulations of Schertz and upon payment of any connection charges, impact fee, or rates which
may be established and required. No waiver of rates or charges may be granted by Schertz if
such waiver would result in discriminatory rates or charges.
50160268.3 3
Section 14. Cibolo reserves the right, upon reasonable prior written notice to Schertz,
to require reports from Schertz detailing rates charged for the Franchise Services and revenues
earned by reason of the operations of Schertz in the Franchise Service Area 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 Cibolo City Council.
Section 15. Schertz shall provide personnel to operate all segments of its water supply
and distribution system and wastewater and sewer system in the Franchise Service Area in an
efficient and safe manner. Service personnel shall be stationed in or available to the Franchise
Service Area to provide service in a prompt and orderly fashion. Schertz agrees to furnish the
Franchise Services to consumers in the Franchise Service Area in accordance with approved and
accepted standards of the water supply and distribution industry and wastewater and sewer utility
industry and the laws of the State of Texas.
Section 16. The provisions of this 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.
Section 17. This Agreement shall not be assigned or transferred by Cibolo or Schertz
without the prior written consent of the other party. Such consent shall be granted within 120
days after written request upon a showing that (a) it is in the best interests of the ratepayers and
the residents of the Franchise Service Area, and (b)the assignee is fully capable of and willing to
perform fully and in a timely manner, all obligations of Cibolo or Schertz, as applicable,
contained in this Agreement.
[The remainder of this page intentionally left blank]
50160268.3 4
This Agreement shall be effective as of May_, 2009.
CITY OF SCHERTZ, TEXAS
By:
Mayor
CITY OF CIBOLO, TEXAS
By: i M t /AGZh47ivt its/
ayor
•
50160268.3 5
EXHIBIT A
FRANCHISE SERVICE AREA
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