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HomeMy WebLinkAboutOrdinance 0121 ORDINANCE NO. / ..:t / AN ORDINANCE WHEREBY THE CITY OF NORTH RICHLAND HILLS, TEXAS AND THE TRI-COUNTY ELECTRIC COOPERATIVE, INC. AGREE THAT THE TRI-COUNTY ELECTRIC COOPERATIVE, INC. SHALL CONTINUE TO MAINTAIN ITS NOW ERECTED ELEC- TRIC LIGHT AND POWER LINES WITH ALL NECESSARY OR DESIRABLE APPURTENANCES (INCLUDING UNDER- GROUND CONDUITS, POLES, TOWERS, WIRES, AND TRANSMISSION LINES) AND THE CITY GRANTS ITS CONSENT FOR THE USE OF ITS PRESENT STREETS, ALLEYS, HIGHWAYS, AND PUBLIC GROUNDS IN SAID CITY, UNDER REGULATIONS AND RESTRICTIONS AS STATED THEREIN AND THAT THE CITY OF NORTH RICHLAND HILLS SHALL RECEIVE AN ANNUAL PAY- MENT FOR SAME, ALL AS THEREIN PROVIDED. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICH- LAND HILLS, TEXAS: Section 1. That the City of North Richland Hills, Texas, herein called "City" hereby grants its consent to the use of its present streets, alleys, highways and public grounds by the Tri-County Electric Cooperative, its successors, and assigns, herein called "Cooperative," for the purpose of maintaining and operating electric light and power lines with all necessary or desirable appurtenances (including underground conduits, poles, towers, wires and transmission lines, and telegraph and telephone lines for its own use) within the area of the City of North Richland Hills, Texas, presently served by Cooperative for the purpose of supplying electricity to certain existing points of delivery to established customers within the said City for light, heat, power, and other purposes; said consent being granted for a term of 20 years from the date this Ordinance is adopted and approved. Section 2. Poles and towers shall be maintained so as not to un- reasonably interfere with traffic over streets and alleys. Section 3. Cooperative t s property and operations in the City shall be subject to such regulations by the City as may be reasonably necessary for the protection of the general public. Section 4. Cooperative shall hold the City harmless from all expense or liability for any act or neglect of the Cooperative hereunder. Section 5. In consideration of the grant of said privilege by the City and as full payment for the privilege of using and occupying the streets, alleys, highways, easements, parks and other public places within the City, and in lieu of any and all occupation taxes, easements, and franchise taxes (whether levied as an ad valorem, special or other character of tax), and in lieu of street taxes, street or alley rentals and of all other taxes, charges, levies, fees, and rentals of whatsoever kind and character which the City may impose or hereafter be authorized or empowered by law to levy or collect, excepting such inspection fees and charges which may become applicable in the maintenance of service and excepting the usual general or special ad valorem taxes which the City is authorized to levy or impose upon real and personal property, the Cooperative (Tri-County Electric Coope rative, Inc. and its assigns) shall pay to the City of North Richland Hills, Texas, annually and on or before March l5 of each year during the term hereof, beginning immediately, an amount equivalent to two per cent (2%) of the gross revenue received by the Cooperative, its successors and assigns during the preceding year from sales of electricity within the corporate limits of said City, exclusive of sales to federal, state and municipal customers and -2- exclusive of sales to industrial and other customers excluded from taxation under the provisions of the regulations of the Treasury Department of the United States, Article 40, Regulation 42 as amended by TD 4393, September 20, 1933, TD 4570, July 24, 1935, and TD 475l, July 21, 1937, unless such regulations and decisions have been or shall be repealed, amended, or changed. On or before the March 15 of each year a report shall be filed with the City by the Cooperative showing its gross revenues as aforesaid for the preceding year, and the payment made hereunder be based upon said report. Section 6. Nothing herein contained shall ever be held or construed to confer upon the Cooperative exclusive rights or privileges of any nature whatsoever. This agreement is made by the City of North Richland Hills, Texas with Tri-County Electric Cooperative, Inc. for the purpose of allow- ing Tri-County Electric Cooperative, Inc. to continue providing electric service to points of delivery of its established customers only in the areas annexed or to be annexed by the City of North Richland Hills, Texas, in which the Cooperative was serving prior to such annexation. Section 7. The Cooperative is hereby limited to service to existing points of delivery to such customers as are now established within the City of North Richland Hills, or shall be established upon annexation by this municipality, but nothing herein contained shall ever be held or construed to confer upon the Cooperative the right to extend its service to any dwelling, structure, apparatus, or point of delivery other than those so established. -3- Section 8. This Ordinance shall be cumulative and in addition to the other permits granted and ordinances owned, held, or claimed by the Cooperative; however, this Ordinance shall yield providing that any such ordinances or parts of such ordinances that conflict herewith are hereby repealed. Section 9. This Ordinance shall become effective as of this date. ADOPTED AND APPROVED this the:2..ff' % day of /?;1 d'f/ 'r} A. D., 1964. ~' ( Æ.,t~' Z~pr{;::4 , ayor of thU;ty of North Richland , ills, Texas L- ~/Žâ/ £27'Æ , q~~retary , -4- THE STATE OF TEXAS COUNTY OF TARRANT I !, ~~~/ ~~æ.¿ , ' Secretary of the City of North Richland Hills, Texas hereby certify t the foregoing is a true and correct copy of Ordinance No. /~/ , ereby the City of North Richland Hills, Texas and Tri-County Electric Cooperative, Inc. agree that the Tri- County Electric Cooperative, Inc. shall continue to erect and maintain its electric light and power lines with all neces sary or desirable appurtenances (including underground conduits, poles, wires, towers and transmission lines) and the City grants its consent for the use of its present and future streets, alleys, highways, and public grounds in said City, under regulations and restrictions as stated therein and that the City of North Richland Hills, Texas, shall receive payment for same, all as therein provided. WITNESS MY HAND AND SEAL, this the ....z.-..)dday of ~d~ A. D., 1964. (/ ~4d/~ Sec' ary of the City of NoW Richland Hills, Texas (Seal) May 8, 1964 TO: Honorable John P. Hunter, Mayor, and Members of the City Council of North Rich1and Hills, Texas SUBJECT : Authority of the City of North Rich1and Hills to grant Tri-County Electric Cooperative a franchise to expand its services within the city limits. It is the opinion of this writer that it would be unlawful for the City of North Rich1and Hills to grant Tri-County Cooperative a franchise to expand its services within the city limits of the City of North Rich1and Hills. This opinion is based on the following: The Texas Electric Cooperative Corporation Act, Vernon's Annotated Civil Statute 1528b, was enacted by the Texas Legislature in 1937 and the said Tri-County Electric Cooperative is governed by this statute, a portion of which is quoted... "Sec. 3 Co-operative, non-profit, membership corporations heretofore or hereafter organized under this Act are authorized to engage in rural electrification by anyone or more of the following methods; (1) The furnishing of electric energy to any person, for delivery to any dwelling, structure, apparatus or point of delivery which is located in a rural area, and which is not receiving central station service not withstanding the fact that such person may be receiving central station service at other points of delivery in a rural or non- rural area. (2) If any area in which such corporation is furnishing electric service to its members is annexed by an incorporated city or town (whether rural or nonrura1 as defined in this Act) in which central station service is supplied by such city or town or by a public utility corporation, the co-operative corporation is authorized to continue to furnish electric energy to any dwelling, structure apparatus or point of delivery to which the co-operative corporation was delivering electric energy on the date of such annexation and if any person desires electric service in such annexed area for any dwelling, structure, apparatus or point of delivery which was not being served by the co-operative corporation on the date the area became annexed and to which central station service is not avail- able from the city or town or public utility corporation, the co-operative corporation may thereafter furnish electric energy to such dwelling, structure, apparatus or point of delivery." -2- The leading case, based upon the aforementioned section, was decided by the Texas Supreme Court in 1957 in State vs Upshure Rural Electric Cooperative Corporation, 156 Texas 633, 298 SW(2nd) 805 (the City of Gilmer case). In this case the Co-op claimed the right to serve residents in annexed areas, regardless of whether it was servicing them when the area in which they resided were annexed. Speaking for the Supreme Court of Texas, Chief Justice Hickman held that "rural electric cooperative could continue to serve members resid- ing in areas annexed to city and that those persons not members of cooperative at time of annexation, even though residing in the same areas, could not be served." Based upon the statute and the Supreme Court case, it is my opinion that nothing would be gained by the granting of a franchise to the Tri-County Electric Cooperative because the law is very clear that they may serve only those customers which they were serving at the time of the annexation by the City of North Rich1and Hills. Respectfu11 sUbmitted~ ~; ~ , Glenn Goodnight, C' Attorney City of North Ri and Hills