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ORD 1289 10/08/2019 OF C/& T C x s ORDINANCE NO. AN ORDINANCE OF THE CITY OF CIBOLO, TEXAS GRANTING AN ELECTRIC TRANSMISSION AND DISTRIBUTION, AND COMMUNICATIONS FRANCHISE TO THE GUADALUPE VALLEY ELECTRIC COOPERATIVE, INC. FOR THE USE OF CITY STREETS, ALLEYS,AND PUBLIC WAYS FOR A TEN YEAR TERM COMMENCING ON THE EFFECTIVE DATE; CONTAINING VARIOUS TERMS AND CONDITIONS WITH REGARD TO THE GRANT OF SUCH FRANCHISE; CONTAINING A SEVERABILITY CLAUSE; PROVIDING FOR THE SUPERSEDING OF ANY AND ALL KINDS OF ORDINANCES, REGULATIONS, RULES, OR POLICIES THAT ARE IN CONFLICT WITH THIS ORDINANCE AND PROVIDING 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, the City of Cibolo, Texas, Section 10.1 of the Home Rule Charter authorizes the City Council to establish franchises for public services and utilities;and WHEREAS, the City of Cibolo, Texas seeks to revise the existing franchise agreement with Guadalupe Valley Electric Cooperative, Inc., dated April 23, 1991. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CIBOLO,TEXAS: Section 1. The City of Cibolo, Texas ("City"), pursuant to this ordinance ("Ordinance") does hereby grant unto the Guadalupe Valley Electric Cooperative,Inc.("GVEC")and to any GVEC affiliates, successors and permitted assigns, the right, privilege, and franchise to erect, construct, maintain, operate, use, extend, remove, replace, repair, and excavate within, under, on, over, across,and along any and all of the present and future public roadways,highways,streets, squares, parks, lanes, alleys,public sidewalks, public ways, waterways, streams, and bridges in which the City now or hereafter has an interest, a system of poles, pole lines, transmission and distribution lines, wires, guys, conduits, switches, transformers, fiber optic cables, transmitters, receivers, amplifiers,wireless radio signal antennas and other wireless transmission signal devices,and other desirable appurtenances and facilities necessary or useful for the purpose of delivering, carrying, conducting, conveying, supplying, and selling to the City and the inhabitants of the City or other person or persons,firms or corporations,whether within or outside the City boundaries, electricity for light,heat,power and for any other purpose for which electricity may be now or hereafter used, and communication signals or the capability and capacity for transport of communication signals of whatever kind and character, including telephone signals, internet communications and cable TV signals;to deliver,carry,conduct,supply,and distribute electricity and communication signals by means of said poles, pole lines, transmission and distribution lines, wires, guys, conduits, switches, transformers, fiber optic cables, transmitters, receivers, amplifiers, wireless radio antennas and other wireless transmission signal devices, or other facilities to sell and distribute same to the City,the inhabitants of said City,or any other persons, firms or corporations,whether within or outside the City boundaries. Section 2. It is expressly understood and agreed that this Ordinance grants GVEC the rights and privileges contained in Section 1 above only as to property located within the corporate limits of the City presently in or hereafter added to the GVEC service area and to property hereinafter annexed by the City which is presently or hereafter located within the GVEC service area. The City shall notify GVEC in writing within thirty (30) days of the effective date of any annexation of property into the City limits that would require GVEC to include such properties for purposes of calculations of any payments due under this Ordinance. GVEC shall not be liable to City for any payments,penalties,or interest on gross receipts for GVEC customers within a newly annexed area until ninety(90)days after written notice from the City to GVEC of the annexation.Thereafter GVEC shall assure that any and all retail customers located within such annexed territory be included and shown on its accounting system as being within City boundaries. After such ninety (90) day written notice from the City to GVEC or after the effective date of the annexation (whichever occurs last), all customer accounts located within the annexed territory shall begin accrual for purposes of the payment provisions specified in Section 11 of this Ordinance. Section 3.GVEC's structures,lines,guys,and other installations shall be designed and constructed consistent with the National Electrical Safety Code and any other applicable state and national standards as well as the City's codes and regulations. The City will use its best efforts to support GVEC's need for easement conditions that do not unduly restrict GVEC's use of the easement,and City will exercise its regulatory power to manage the activities of GVEC within a public way only to the extent that such regulations are reasonably necessary to protect the health,safety and welfare of the public. The City will maintain appropriate ordinances that limit the use of utility easements by fee property owners to uses that do not substantially interfere with safe and effective operation of GVEC installed facilities. Upon written notification by GVEC to the City of an encroachment in a utility easement substantially interfering with the safe and effective operation of GVEC installed facilities,the City will take prompt and reasonable action to resolve the encroachment. Section 4. New Development or Construction 4.1 If the City, in order for the accommodation or new construction or expansion of its sewers, water lines, streets or other public works, shall require any structures, lines, guys, or other installations and facilities of GVEC located in a street or other City right-of-way to be shifted or relocated to a new position in a street or other available right-of-way, such structures, lines, guys, or other installations shall be so shifted or relocated by GVEC at GVEC's sole expense;provided,however,the City shall work with GVEC in good faith to minimize the economic impact on GVEC and the number of GVEC facilities that may need to be relocated or shifted. 4.2 City shall give GVEC reasonable prior written notice of its projects requiring relocation of GVEC facilities and shall provide a suitable alternate public easement for the facilities to be relocated. GVEC shall utilize appropriate equipment, as determined by GVEC,when relocating facilities.In the event that GVEC is required by City to remove or relocate its facilities under this Section 4 and City is eligible under federal, state, county, local or other programs for reimbursement of costs and expense incurred by GVEC as a result of such removal and/or relocation,and such reimbursement is required to be handled through City,City shall apply for such reimbursement and include GVEC's removal and/or relocation costs and expenses in the application by City for reimbursement,and remit such reimbursement to GVEC when received. City shall provide reasonable written notice to GVEC of the deadline for GVEC to submit documentation- to City for reimbursement of the costs and expenses of such removal and/or relocation. 4.3 For the avoidance of doubt,the City may not require GVEC to relocate any facilities underground in a public right-of-way,and a location underground in a public easement will not constitute a "suitable alternate public easement" for purposes of relocating GVEC facilities under this Section;provided,however,if the City,in order for the accommodation or new construction of its sewers, water lines, streets or other public works, requests that existing facilities of GVEC be shifted underground in a street or other available right-of- way at the City's expense, such facilities shall be relocated underground by GVEC at the City's sole expense; provided, however, the City shall work with GVEC in good faith to minimize the impact on GVEC and the number of GVEC facilities that may need to be shifted underground. 4.4 If a third-party desires or the City requires GVEC to adapt or conform any GVEC facilities,or in any way alter,relocate, or change GVEC property to enable any third party (whether public or private), other than the City, to use the public ways, GVEC shall have the right, as a precondition to making any such alteration, change or relocation, to require payment to GVEC for any and all loss, cost or expense occasioned thereby to be paid by the third party. The City shall,as part of any franchise agreement,or renewal thereof;with any future third party, include the requirement of payment by the third party to GVEC for any and all loss, cost or expense incurred by GVEC that is occasioned by the third-party request for any alteration,change or relocation of GVEC property. 4.5 GVEC shall permit private or public entities desiring to provide communication services to the City to use existing GVEC poles,provided that such attachment and use is feasible, does not interfere with GVEC's ability to utilize its facilities for its purposes, and is not in conflict with safety procedures or requirements of GVEC.Such use shall be subject to the entity's execution of GVEC's form of contract for pole attachment and payment of the GVEC fees applicable to such service. Section 5. Operation and Maintenance 5.1 GVEC may open-cut streets, curbs and sidewalks, and may bore, or utilize any other methods it deems reasonably necessary(including,but not limited to tree trimming) to construct, operate and maintain GVEC facilities within the City. Prior to starting any work, GVEC shall give five(5) business days written notice of the scope and duration of the work to the official designated by the City. Prior notice may be reduced or waived by the City in order to allow the work to proceed. In the event GVEC determines there is an emergency,GVEC may act without any prior notice,but shall provide notice to the City as soon as practicable. 5.2 The surface of any street,alley,or public way or place disturbed by GVEC shall be restored by GVEC within a reasonable time after the completion of the work to the same or similar condition as existed prior to GVEC work. No street, alley, or public way or place shall be encumbered by GVEC for a longer period than shall be reasonably necessary to execute the work. GVEC shall have no responsibility for any damages to landscaping or improvements located over,under,or around GVEC facilities,but shall use reasonable care to avoid such damages. 5.3 If the City abandons any public rights-of-way in which GVEC has facilities, such abandonment shall be conditioned on GVEC's right to maintain its use of the former public rights-of-way at no cost to GVEC and on the obligation of the party to whom the public rights-of-way are abandoned to reimburse GVEC for all removal and relocation expenses following abandonment of the public rights-of-way and on the obligation of the City to provide a suitable alternate public easement as provided for in Section 4.3 above. 5.4 Subject to the ordinances of the City,GVEC shall have the right,license,privilege, and permission to trim trees and bushes upon and overhanging the streets, alleys, sidewalks,rights-of-way,and public places of the City so as to prevent the branches thereof from coming in contact or interfering with the facilities of GVEC. If City adopts ordinances affecting GVEC's right, license, privilege and permission as granted in this Section 5.4,City agrees to provide written notice to GVEC and a copy of such ordinance(s). Section 6. GVEC SHALL INDEMNIFY AND HOLD THE CITY AND ITS OFFICERS AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS,LAWSUITS,JUDGMENTS, COSTS, LIENS; LOSSES, EXPENSES, FEES (INCLUDING REASONABLE ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, ACTIONS, DEMANDS, CAUSES OF ACTION, LIABILITY, AND SUITS OF ANY KIND AND NATURE, INCLUDING PERSONAL OR BODILY INJURY (INCLUDING DEATH), PROPERTY DAMAGE, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT THAT IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE CAUSED BY THE NEGLIGENT ACT, ERROR, OR OMISSION OF GVEC, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, AFFILIATE, OR SUBCONTRACTOR OF GVEC, OR THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, OR REPRESENTATIVES, WHILE INSTALLING, REPAIRING, OR MAINTAINING GVEC ELECTRIC AND COMMUNICATION FACILITIES IN A CITY PUBLIC RIGHT-OF-WAY. THE INDEMNITY PROVIDED BY THIS SUBSECTION DOES NOT APPLY TO ANY LIABILITY RESULTING FROM THE NEGLIGENCE OF THE CITY, ITS OFFICERS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. IF GVEC AND THE CITY ARE FOUND JOINTLY LIABLE BY A COURT OF COMPETENT JURISDICTION, LIABILITY SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THIS STATE WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER STATE LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER STATE LAW.THIS SECTION IS SOLELY FOR THE BENEFIT OF THE CITY AND GVEC AND DOES NOT CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. Section 7. TO THE EXTENT PERMITTED BY THE TEXAS CONSTITUTION AND STATE LAW AND WITH THE MUTUAL UNDERSTANDING THAT CITY IS A HOME-RULE MUNICIPALITY CHARTERED UNDER THE TEXAS CONSTITUTION AND A POLITICAL SUBDIVISION OF THE STATE OF TEXAS AND THAT AN INDEMNITY OBLIGATION CANNOT BE PAID FROM CURRENT REVENUES AND THAT NO ORDER,RESOLUTION, TAX NOR INTEREST AND SINKING FUND HAS BEEN SET, ADOPTED OR ESTABLISHED FOR PAYMENT OF THIS INDEMNITY OBLIGATION, AND WITHOUT EXPANDING CITY'S LIABILITY BEYOND THE STATUTORY LIMITS OF THE TEXAS TORT CLAIMS ACT OR EXISTING LAW, CITY SHALL INDEMNIFY AND HOLD GVEC AND ITS OFFICERS AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, COSTS, LIENS, LOSSES, EXPENSES, FEES (INCLUDING REASONABLE ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, ACTIONS, DEMANDS, CAUSES OF ACTION, LIABILITY, AND SUITS OF ANY KIND AND NATURE, INCLUDING PERSONAL OR BODILY INJURY (INCLUDING DEATH), PROPERTY DAMAGE, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT THAT IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE CAUSED SOLELY BY THE NEGLIGENT ACT, ERROR, OR OMISSION OF THE CITY, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, AFFILIATE, OR SUBCONTRACTOR OF THE CITY, OR THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES,DIRECTORS,OR REPRESENTATIVES,WHILE INSTALLING,REPAIRING, OR MAINTAINING FACILITIES IN A PUBLIC RIGHT-OF-WAY OR IN DIRECTING GVEC TO INSTALL FACILITIES (INCLUDING, BUT NOT LIMITED TO, STREETLIGHTS)AT A LOCATION.THE INDEMNITY PROVIDED BY THIS SUBSECTION DOES NOT APPLY TO ANY LIABILITY RESULTING FROM THE NEGLIGENCE OF GVEC, ITS OFFICERS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS IF GVEC AND CITY ARE FOUND JOINTLY LIABLE BY A COURT OF COMPETENT JURISDICTION, LIABILITY SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THIS STATE WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER STATE LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER STATE LAW.THIS SECTION IS SOLELY FOR THE BENEFIT OF THE GVEC AND THE CITY AND DOES NOT CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. Section 8. Nothing herein contained shall be construed as conferring upon GVEC any exclusive rights or privileges of any nature whatsoever;provided, however,that the rights granted to GVEC hereunder shall not be infringed upon or diminished by rights or privileges granted to a third party by City. Section 9. The provisions of this Ordinance are severable, and if any section, provision, or part thereof is declared invalid then it is hereby declared the intent of the parties that the remaining parts of this Ordinance would be adopted, notwithstanding such invalid part or parts, and the invalidity of any particular section, provision, or part shall not invalidate this Ordinance, unless such invalidation materially changes the rights or obligations of either party. Section 10.This Ordinance shall be in force and effect for a period of ten(10)years from and after the date on which the City adopts it in the form authorized by GVEC (the "Effective Date") and shall automatically be renewed for an additional ten (10) years. The GVEC's payment obligation provided for in Section 11 of this Ordinance shall become effective on the first day of the month following the Effective Date. This Ordinance shall supersede and take precedence over inconsistent ordinances, resolutions, or regulations hereafter or previously passed by the City, including ordinances requiring an application, permit, or fee to use or construct facilities within City streets, alleys, or any other public ways. Section 11. In consideration of the rights granted to GVEC herein, GVEC, during the term of this Ordinance shall pay quarterly to City(payable on or before the forty-fifth day after the end of each quarter) a franchise fee of three (3) percent of the gross receipts received by GVEC from the GVEC's sale of electricity, and three (3) percent of the gross receipts received by GVEC from GVEC's sale of fiber optic internet services, but only to the extent such services, whether for electricity or for fiber optic internet services,are provided through GVEC facilities located in,on, or under City public ways for which GVEC does not pay the City a rental fee or other consideration for such use outside this Ordinance, to each retail customer of GVEC whose consuming facility's point of delivery is located within the City's boundaries during such previous quarter. The term "gross receipts" shall not include (1) local, state, or federal taxes and regulatory fees of any kind collected by GVEC that have been billed to its customers and that are separately stated on customer bills,(2)the franchise fees paid under this Ordinance,(3)receivables or revenue uncollectible from customers(i.e.,bad debt)with billing addresses in the City that may have previously been included in gross receipts, or (4) revenue from the GVEC's pole attachment agreements. It is agreed that such franchise fee payment is in addition to any ad valorem tax now or hereafter to be assessed on and collected from GVEC under the laws of the State of Texas.Other than with respect to such ad valorem taxes, the payments so provided for in this section are in lieu of all other fees or charges, and the City shall not impose or collect, -nor attempt to impose or collect, any other charge or fee in connection with the construction,operation,and maintenance of GVEC facilities or GVECs use of City public ways. In the event GVEC customer bills contain charges for services or fees other than electric and/or communication service,customer payment shall be allocated between services on a pro rata basis for purposes of calculating the franchise fee.If GVEC elects to provide customer choice pursuant to the terms of the Public Utility Regulatory Act("PURA"),the electric franchise fee due under this Ordinance shall be as provided in the Texas Utilities Code Section 33.008 for an electric cooperative. Section 12. Upon the City's written request, at reasonable intervals not to exceed once per fiscal year, GVEC will provide to City reports setting out matters concerning rates charged for services provided and revenues received by reason of the operation of GVEC within the City for payments made within two(2)years prior to the commencement of the reports as such services and revenues relate to the calculation of the franchise fee herein. Such reports shall not include personally identifiable information, the content of communications, or other privately stored data. The City shall also be entitled, during normal working hours and at reasonable intervals during the term of this agreement, to audit records of GVEC supporting the payment for street rental, including customer lists, to the extent such information is public information. Any underpayments discovered as a result of an audit shall be promptly paid by GVEC, and likewise, City shall promptly refund any overpayments discovered. Each party shall bear its own costs and expenses incurred in connection with such audit. Section 13. This Ordinance may be assigned by GVEC to any entity with the consent of the City, which consent shall not be unreasonably withheld. Section 14. This Ordinance supersedes for all purposes the franchise previously granted by the City to the GVEC on the 23rd day of April 1991. Section 15. GVEC understands that the City is bound by and will comply with the Texas Public Information Act and that all information that is shared with the City is subject to the requirements of this legislation.The City shall promptly notify GVEC in the event that any information received from GVEC is requested by any third party. Section 16.As part of the consideration for GVEC's use of the City's streets and public ways under this Ordinance,GVEC agrees to provide street lighting service within the areas of the City covered by this Ordinance, as provided for in this section. The design and construction of the street light units shall be in accordance with the City's codes and regulations or if silent,then with reasonable industry standards. Subject to Section 16(e) and (f) below (cost-sharing provisions), if City hereafter adopts codes and regulation affecting the design and construction of streetlight units provided by GVEC under this Agreement, City agrees to work with GVEC to adopt design and construction standards that are reasonable and do not unnecessarily increase costs or regulatory requirements for GVEC to provide street lighting services, and GVEC shall have up to six (6) months to comply with such codes and regulations. a. Street light units shall be installed and maintained by GVEC at various locations on City property in the City, as mutually agreed by the parties,but not including locations on farm-to- market roads, State or Interstate highways,or toll roads. Such lights shall be located primarily on street comers, within the bounds of the City streets, or at other locations on City property. Such lights shall be located for the benefit of the public and in areas which are open to and frequented by the general public. Following initial placements of lights,reasonable additional street light installations may be requested by the City Manager (or his designee) in writing, specifying the location of such light or lights to be installed under the terms of this Ordinance. GVEC shall reasonably comply with such requests, in its sole discretion. b. GVEC shall not be obliged to provide street lights on private property. Existing lights installed under private contracts with various persons or with the City may be absorbed into the street lighting system to be furnished hereunder,at GVEC's sole discretion,and the persons contracting for such lighting shall be excused from their obligations under such contract, provided that such lights meet the requirements of this Ordinance. c. Street lights in new subdivisions within the City limits and the annexed areas of the City shall be installed from time to time pursuant to this Ordinance.The City's Unified Development Code or if silent with reasonable industry design standards shall be used in determining locations. Subject to Section 7 above (City Indemnification of GVEC), if City adopts rules and regulations affecting the locations of streetlights provided by GVEC under this Agreement, City agrees to work with GVEC to adopt location standards that are reasonable and do not unnecessarily increase costs or regulatory requirements for GVEC to provide street lighting services,and GVEC shall have up to six(6)months to comply with such rules and regulations. d. GVEC shall not install a street light in any block or area in which there is not at least one permanent residence or business, nor shall it erect street lights in areas along highways, roads or streets unless there is at least one residence or business within a normal city block or 500 feet of such light. Exceptions to this may be requested by the City Manager(or his designee) in writing, specifying the location of such light or lights to be installed under the terms of this Ordinance; GVEC shall reasonably comply with such requests, in its sole discretion. e.If the installation of different types of street light units other than those that are in accordance with reasonable industry standards should be requested by the City,such units will be installed and maintained by GVEC upon a cost-sharing basis. The City shall be billed for the balance of the cost of such light at such location. f. For lights requested by the City and installed by GVEC that are different than reasonable industry standards, the City shall reimburse GVEC monthly for its delivered cost of power consumed by such lights in excess of that applicable to the standard size light unit. g. In the event any area in which street lighting has been placed should no longer be used, either as business property or residential, to such extent that street lighting would not be appropriate under the terms of this Ordinance, then the street lights in such area may be removed by GVEC with the agreement of the City. If the City objects to the removal, the light(s) shall remain, and the City shall be billed for the electricity consumed by such light(s) at the applicable rates. h. All installations made hereunder shall remain the property of GVEC. Upon the termination of this Ordinance, GVEC may at its election remove street lights installed hereunder. i. It is understood that the street lighting being furnished under the terms of this Ordinance is being requested by the City and furnished by GVEC as a service to the City in the manner agreed upon herein. J.Notwithstanding anything herein to the contrary,GVEC's obligation to provide street lighting under this section shall apply only to areas of the City served electricity by GVEC. GVEC reserves the right to terminate its obligation under this section if its non-wholesale power revenues are materially reduced as the result of another entity performing power delivery function (i.e. distribution, transformation, metering, billing, etc.) in any section of the City served by the GVEC. If this Ordinance is terminated at any time or for any reason, all street lighting provided thereafter at the written request of the City shall be billed to and paid for by the City at the then-existing appropriate tariff or as otherwise agreed by GVEC and the City. Section 17. City agrees to include GVEC in the planning process for developments of land located within the GVEC service area, and the City Manager or his/her designee shall forward a copy of such proposed plats or subdivision master plans to GVEC for review and recommendation. GVEC shall provide a written recommendation to the City Manager or his/her designee with respect to the acceptability of the proposed plat or subdivision master plan and the provision of GVEC utility services provided hereunder. PASSED AND APPROVED by a vote of 7 for, �against,this 8'day of October,2019. APPROVED: Stosh Boyl ayor ATTEST: Peggy Cimics, City Secretary