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HomeMy WebLinkAboutOrdinance No. 85-22 ORDINANCE N0. 85'22 AN ORDINANCE GRANTING TO TEXAS-NEW MEXICO POWER COMPANY, ITS SUCCESSORS AND ASSIGNS , THE RIGHT, PRIVILEGE AND FRANCHISE TO CONDUCT WITHIN THE CITY AN ELECTRICAL LIGHTING AND POWER 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, STREETS, DEDICATED EASEMENTS , LANES AND ALLEYS IN SAID CITY AND OVER AND ACROSS ANY STREAM OR STREAMS, BRIDGE OR BRIDGES , NOW OR HEREAFTER OWNED OR CONTROLLED BY THE CITY IN SAID CITY A SYSTEM OF POLES, POLE LINES, TOWERS , TRANSMISSION LINES, WIRES, GUYS, CABLES , CONDUITS AND OTHER DESIRABLE INSTRUMENTALITIES AND APPURTENANCES (INCLUDING TELEGRAPH AND TELEPHONE POLES AND WIRES FOR THE COMPANY'S OWN USE) , NECESSARY OR PROPER FOR THE SUPPLY AND DISTRIBUTION OF ELECTRICITY FOR LIGHT, POWER AND HEAT, AND FOR ANY OTHER PURPOSE FOR WHICH ELECTRICITY MAY BE USED, TO THE CITY AND INHABITANTS, OR ANY OTHER PERSON OR PERSONS FOR A PERIOD OF THIRTY (30) YEARS; REGULATING THE USE OF STREETS BY THE COMPANY AND THE REPAIR AND RESTORATION OF STREETS DISTURBED BY 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 COMPENSATION . TO BE PAID TO THE CITY; PROVIDING THAT THIS FRANCHISE SHALL NOT BE EXCLUSIVE; PROVIDING THE COMPANY'S OBLIGATION TO FURNISH EFFICIENT SERVICE AT REASONABLE RATES; 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 ELECTRICAL LIGHTING AND POWER FRANCHISES HERETOFORE GRANTED TO TEXAS-NEW MEXICO POWER COMPANY; PROVIDING FOR ACCEPTANCE BY THE COMPANY; AND PROVIDING AN EFFECTIVE DATE. � � � � � BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FRIENDSWOOD, STATE OF TEXAS : Section 1 . That subject to the terms , conditions and provisions of this Ordinance, the City of Friendswood, Texas , does hereby grant unto Texas-New Mexico Power Company, its successors and assigns , the right, privilege and franchise to conduct within the City, as it now exists or as may hereafter be extended, an electrical lighting and power 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 , streets , dedicated easements , lanes and alleys owned or controlled by the City within said City, and over and across any stream or streams , bridge or bridges , now or hereafter owned or controlled by the City in said City, a system of poles , pole lines , towers , transmission lines , wires , guys , conduits, cables , and other desiable instrumentalities and appurtenances (including telegraph and telephone poles and wires for use of Company) , necessary or proper for the purpose of carrying, conducting, supplying, distributing and selling to the City and the inhabitants thereof, 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; to carry, conduct, supply and distribute electricity by means of said poles , pole lines , towers , transmission lines , conduits , cables or other instrumentalities , and to sell same to said City and inhabitants thereof, or to any other person or persons , firms or corporations . Section 2 . Upon the filing with the City by the Company of the acceptance required hereunder, this franchise shall be in full force and effect for a term and period of thirty (30) years . Section 3. Al1 poles erected by the Company 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 the same will interfere was little as practicable with the ordinary travel , on the streets , sidewalks , or other public ways . Within the streets or other public ways of said portions of the 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 the Company in the construction and maintenance of its electrical lighting and power system in said portions of the City, shall be subject to the reasonable and proper regulation, control and direction of the City, or of any City official to whom such duties have been or may be duly -2- delegated, which regulation and control shall include, but not by way of limitation, the right to require in writing the relocation of Company facilities, exclusive of street lighting and facilities installed for service directly to the City, at Company' s cost within the streets or other public ways whenever such shall be reasonably necessary on account of the widening, change of grade, relocation, or other City construction within such streets or public ways . Section 4. 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 electrical lighting and power system shall be restored immediately after the completion of the work to as good a condition as before the commencement of the work and maintained to the satisfaction of the City, or of any City official to whom such duties have been or may be duly delegated, for one (1) year from the date the surface of said public road, highway, street, lane, alley, or other public place is broken for such construction, maintenance or removal work, after which time responsibility for the maintenance shall become the duty of the City. No public road, highway, street, lane, alley, or other public place shall be encumbered by construction, maintenance or removal work by Company for a longer period than shall be necessary to execute such work. Section 5 . The service furnished hereunder to the 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 reasonable 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 the Company and when due to fires , strikes , riots , storm, floods , war and other casualties , and when due to -3- governmental regulations, limitations and restrictions as to the use and availability of materials , supplies and equipment and as to the use of the services , and when due to unforseen and unusual demands for service. In any of which event the Company shall do all things reasonably within its power to restore normal service. Section 6. The 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. The Company shall be given not less than seventy-two (72) hours advance notice to arrange for such temporary wire changes . All of Company's lines for the transmission and distribution of electrical energy, located within said portion of the City, shall be constructed, operated and maintained, as to clearances , in accordance with the National Electrical Safety Code, as published in March, 1948, by the National Bureau of Standards , Handbook 30; provided, however, nothing herein shall impair the right of the City in the future by ordinance to adopt and require compliance with any new, amended or revised code, or by ordinance to require compliance with such further or different standards as may be found to be in the public interest. Section 7. The Grantee shall report and pay during January, April , July, and October of each year during the term of this franchise ordinance a street rent equal to two per cent (2%) of the gross receipts of the sale of electricity only for residential and commercial electric service, as classified by Grantee 's tariff schedules , within the corporate limits of the City for the next preceding three months ' period . The charge herein made shall be in lieu of, to the extent permitted by -4- law, any other charges or fees of any kind by the City based on, connected with, or incident to the exercise of the nonexclusive right, privilege, and franchise herein granted, but shall not interfere with collection of ad valorem taxes by the City. Section 8 . Nothing contained in this Ordinance shall ever be construed as conferring upon Company any exclusive rights or privileges of any nature whatsoever. Section 9. It shall be the Company' s obligation as provided in Section 5 hereunder to furnish efficient electrical service to the public at reasonable rates and to maintain its property in good repair and working order, except when prevented from so doing by forces and conditions not reasonably within the control of Company. Section 10. The 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 the 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 the same may be from time to time vested in the City shall be in full force and effect and subject to the exercise thereof by the City at any time and from time to time. Section 11 . The Company, its successors and assigns , shall protect and hold City harmless against all claims for damages or demands for damages to any person or property by reason of the construction and maintenance of its electrical lighting and power system, or in any way growing � out of the granting of this franchise, either directly or indirectly, or by reason of any act, negligence, or nonfeasance of the contractors , agents , or employees of Company, its successors or assigns , and shall refund to City all sums which it may be adjudged to pay on any such claim, or which may arise or grow out of the exercise of the ri�hts and privileges hereby granted, or by the abuse thereof, and Company, its successors and assigns , shall -S- . , . indemnify and hold the City harmless from and on account of all damages , costs , expenses , actions , and causes of action that may accrue to or be brought by any person, persons , company or companies at any time hereafter by reason of the exercise of the rights and privileges hereby granted, or of the abuse thereof. Section 12. In granting this franchise, it is understood that the lawful power vested by law in the City to re�ulate all public utilities within City, and to regulate the local rates of public utilities within the City within the limits of the Constitution and laws , and to require all persons or corporations to discharge the duties and undertakings , for the performance of which this franchise was made, is reserved; and this grant is made subject to all lawful rights , powers , and authorities , either of regulation or otherwise, reserved to the City by law. Section 13 . This franchise replaces all former franchise agreements or ordinances with the Company. Section 14. The Company shall , within thirty (30) days from the date this Ordinance is passed and approved, file with the City a written statement signed in its name and behalf, in the following form: "To the City of Friendswood, Texas : "The Company for itself, its successors and assigns , hereby accepts the above and foregoing Ordinance and agrees to be bound by all of its terms and provisions . TEXAS-NEW MEXICO POWER COMANY By: "Dated the day of , 198 Section 15. 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 portons of this Ordinance shall not be affected thereby, it being the intent of -6- the 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 his end, all provisions of this Ordinance are declared to be severable. Section 16 . This Ordinance shall take effect and be in force from and after its passage and approval , and upon acceptance by the Company, the term of this franchise shall begin and continue in accordance with Section 2 hereof. PASSED AND APPROVED on first reading this the � �mu day of A���»�t , 198�. PASSED AND APPROVED on second reading this the 9TH day of SP,ptPmhar � 198�. PASSED, APPROVED AND ADOPTED on third and final reading this the ��_ day of SPntPmhr�r , 198�. �,�Q ,� , '"'��� ° Mayor ATT . M � City Secretary THE STATE OF TEXAS § § COUNTIES OF HARRIS AND GALVESTON § I, Deloris McKenzie, the duly appointed, qualified and acting City Secretary of the City of Friendswood, Texas , hereby certify that the above and foregoing ordinance of the City of Friendwood was passed at the regular meeting of the City Council of the City of Friendswood held on the 23RD day of �P=tPmhar , 1985 ; that written notice of the date, hour, place and subject of said meeting was posted for at least seventy-two (72) hours preceding the scheduled time of said meeting on a bulletin board located in a place in the city hall which is convenient and readily accessible to the general public at all times ; that the Mayor and Councilmen r,P�n Rr wn , -7- Bob Wicklander , Phyllis J. Lee �oe Pri�oda , velyn ewman , and Jan Jordan were present at said meeting and acted as the City Council throughout; that the same has been approved by the Mayor and is duly attested by the City Secretary; and that the same has been duly engrossed and enrolled in the records of the City of Friendswood, Texas . EXECUTED UNDER MY HAND and the official seal of the City of Friendswood, Texas , this 23RD da of September , 198 . . e or s McKenzie, C ty S retary City of Friendswood Texas (SEAL) To the City of Friendswood, Texas : The Company for itself, its successors and assigns , hereby accepts the above and foregoing ordinance and agrees to be bound by all of its terms and provisions . TEXAS-NEW MEXICO POWER COMPANY By: Dated the 30th day of September � 198 R. D. Woofter THE STATE OF TEXAS § § COUNTIES OF HARRIS AND GALVESTON § I, Deloris McKenzie, the duly appointed, qualified and acting City Secretary of the City of Friendswood, Texas , hereby certify that the above and foregoing Acceptance was received and filed in the office of the City Secretary of the City of Friendswood, on the 3� day of �'I'�B� , 198�. EXECUTED UNDER MY HAND and the office seal of the City f Friendswood, Texas , this 3� da f ��BER 198 � ' � . De oris McKenzie, City Secre ry City of Friendswood, T xas (SEAL) -8-